Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 2 - Evidence - Meeting of December 4, 2007
OTTAWA, Tuesday, December 4, 2007
The Standing Senate Committee on Aboriginal Peoples met this day at 9:33 a.m. to examine and report on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples and on other matters generally relating to the Aboriginal Peoples of Canada.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning, ladies and gentlemen. Honourable senators, I see quorum.
First of all, I will identify the senators with us today. On my left is Senator Sibbeston, Deputy Chair. Senator Hubley is from the East Coast, and Senator Dyck is from Saskatchewan. Senator Dallaire represents Quebec. On my right are Senator Peterson and Senator Gustafson from Saskatchewan, and we are privileged to have with us this morning Senator Adams from Nunavut. We will begin today's meeting by publicly hearing witnesses, and then we will move to an in camera session to discuss draft budgets.
This morning we have two organizations who are members of the Land Claims Agreements Coalition. The Nisga'a Nation is represented by Kevin McKay, Executive Chairperson; and Jim Aldridge, Legal Counsel. From Nunavut Tunngavik Inc. are Joe Kunuk, CEO; John Merritt, Constitutional and Legislative Adviser; and Udlu Hanson, Senior Policy Liaison. Our witnesses will enlighten us as to some of the challenges faced by them in dealing with the implementation process for land claims agreements.
Kevin McKay, Executive Chairperson, Nisga'a Nation: Thank you and good morning. Honourable senators, we are pleased to appear before you on behalf of the Land Claims Agreements Coalition.
In the course of our presentation and in response to questions, we shall draw mainly upon the claims agreements we are most familiar with, the Nunavut and Nisga'a agreements. We are here on behalf of the coalition, so the information we give from particular agreements will be for illustrative purposes.
The coalition was formed in 2003 when the first national land claims implementation conference was held. This was "Redefining Relationships: Learning from a Decade of Land Claims Implementation.'' A further conference, called "Achieving Objectives: A New Approach to Land Claims Agreements in Canada,'' was held in 2006.
The coalition represents all Aboriginal groups that have completed modern treaties, that is, comprehensive land claims and self-government agreements. One of our members, Makivik Corporation, this week will be signing a self- government agreement for Nunavik in Northern Quebec.
From east to west, our members are the following: from Labrador, Nunatsiavut Government; from Quebec, Grand Council of the Crees, Naskapi Nation and Makivik Corporation; from Nunavut, Nunavut Tunngavik Incorporated; from the Northwest Territories, Inuvialuit Regional Corporation, Gwich'in Tribal Council, Sahtu Secretariat Incorporated and Tlicho Government; from the Yukon, Council of the Yukon First Nations; and from British Columbia, Nisga'a Nation. We describe ourselves as a coalition, and we are just that. We are not a separate political or corporate body, nor are we another national organization. The Assembly of First Nations, the Congress of Aboriginal Peoples and Inuit Tapiriit Kanatami continue as umbrella Aboriginal organizations, and our members may be affiliated to one or the other. The coalition is not a similar organization.
The coalition operates by consensus and with co-chairs. Currently, the co-chairs are Mr. Nelson Leeson of the Nisga'a Nation and Mr. Paul Kaludjak of NTI.
Following our 2003 conference, we decided to work together on claims agreement implementation issues. We adopted four key points that formed the basis of our "4-10 Declaration.'' I shall outline these points over the next few minutes.
First is recognition that the Crown in right of Canada, not the Department of Indian and Northern Affairs Canada, is party to our land claims agreements and self-government agreements.
Second, there must be a federal commitment to achieve the broad objectives of the lands claims agreements and self- government agreements within the context of the new relationships as opposed to mere technical compliance with narrowly-defined obligations. This must include, but not be limited to, ensuring adequate funding to achieve these objectives and obligations.
Third, implementation must be handled by appropriate senior-level federal officials representing the entire Canadian government. Fourth, there must be an independent implementation and review body separate from the Department of Indian and Northern Affairs Canada, INAC. This could be the Auditor General's department or a similar office reporting directly to Parliament. Annual reports will be prepared by this office in consultation with groups with land claims agreements.
We put these points forward against a background of frustration and disappointment with the way our agreements are being implemented. Acceptance of these four points by the Government of Canada would offer a way forward from our current impasse. Disappointed and frustrated, you may ask? Why? Are these not legally binding agreements? Are they not constitutionally recognized? Are they not being followed? If only it were so. Were large cash transfers not paid under these agreements? We maintain that money is not and was not the only answer to the very complicated situation we are currently dealing with.
Quite simply, our treaties are not being properly implemented. We are not alone in our view. On October 30 of this year, the Auditor General tabled her annual report in the House of Commons. Chapter 3 focuses on implementation of the Inuvialuit Final Agreement. That agreement was signed in 1984 and is the next modern treaty following the James Bay and Northern Quebec Agreement. A press release issued by the Auditor General's office states:
. . . in the 23 years since the Agreement was signed, INAC has yet to show the leadership and commitment necessary to meet the federal obligations and achieve the goals of the agreement.
The Auditor General added:
In 2003 we made similar observations about the Department's approach to agreements with the Gwich'in and the Inuit. It is disappointing that INAC has continued to focus only on specific obligations and has not worked in partnership with Aboriginal groups toward the goals of these agreements.
In case the distinction between obligations and goals is not appreciated, I would quote the federal government's Comprehensive Lands Claims Policy released in 1987:
Land claims negotiations are more than real estate transactions. In defining their relationships, Aboriginal peoples and the Government of Canada will want to ensure that the continuing interests of claimants in settlement areas are recognized. This will encourage self-reliance and economic development as well as cultural and social well-being. Land claims negotiations should look to the future and should produce a means whereby Aboriginal groups and the federal government can pursue shared objectives such as self-government and economic development.
We should contrast this forward-looking policy statement of 20 years ago with the Auditor General's finding in 2007. She said, in part:
INAC officials have also said they do not view it as the Department's responsibility to achieve the basic goals of the Agreement, describing them as Inuvialuit goals, not Canada's. They stated that the Agreement obliges them neither to achieve these goals nor to measure progress toward them.
The Auditor General has looked at three comprehensive land claims agreements since 2003. In each case, there has been a failure to recognize the basic goals of these agreements. In each case, there has been a failure to work with the Aboriginal signatories towards their effective implementation.
Joe Kunuk, CEO, Nunavut Tunngavik Inc.: Other studies may be cited. In 2006, PricewaterhouseCoopers completed an independent review of the implementation of the Nunavut Land Claims Agreement, NLCA. This covers the period since 1998 and is an extensive and detailed study extending to almost 300 pages. It concludes that "there is much work to be done to fully achieve the objectives in all areas of the NLCA.'' It notes "key deficiencies in meeting obligations, and progress towards objectives.'' Further, "while there are many examples of key accomplishments, we found that many of these are isolated to specific initiatives, and there has not been widespread progress across all fronts.''
Last year, on December 7, 2006, NTI filed a Statement of Claim against the Government of Canada in the Nunavut Court of Justice for a long list of serious breaches of the NLCA, including the failure of the Crown to meet its fiduciary obligations.
It is not NTI alone that has resorted to litigation to ensure implementation of its land claims agreement. In October of this year, the Crees of Quebec approved, by referendum, an agreement to settle implementation problems that had accumulated under the James Bay and Northern Quebec Agreement. This provides, among other things, for the payment of $1.4 billion by Canada over 20 years to meet its obligations under the James Bay and Northern Quebec Agreement. Following the referendum, Grand Chief Matthew Mukash said:
We've been trying to get this deal for the last 32 years and it's finally come to a conclusion. It was due for a long, long time and that's why I'm very happy that the Cree Nation has decided to accept it.
It took thirty-two years to meet Canada's obligation under an agreement signed in 1975.
The issue of funding necessarily arises in discussions such as this. Modern treaties include various undertakings that government and Aboriginal parties cannot meet without the provision of adequate funding. The difficulties of securing such funding are indeed a problem. Under the Nunavut Land Claims Agreement, an implementation contract was negotiated in 1993 to cover implementation funding for the next 10 years. The funding commitment under the contract expired in 2003 and must be renewed. It has not been renewed, though negotiations for its renewal began in 2001. In 2004, the INAC walked away from the negotiating table. In 2005, former Justice Thomas Berger was brought in as a conciliator. NTI endorsed his interim and final reports. In December 2006, NTI commenced the litigation referred to earlier.
Last month, one small step was taken. The government announced that it would provide the funding recommended by Mr. Berger for management boards in Nunavut. To get the timing in perspective, INAC'S press release of November 28 explains:
These new investments are the result of a consensus on appropriate levels of funding for Nunavut's boards achieved in January 2006 among the Government of Canada, Nunavut Tunngavik Incorporated, and the Government of Nunavut.
This is almost two years after consensus had been reached; more than two years since the conciliator's interim report in August 2005; and four years after the expiry of the implementation contract.
To assist further with perspective, this funding is for management boards with responsibilities for the management of Nunavut's environment, including reviewing and approving development proposals. These boards are the Nunavut Wildlife Management Board, the Nunavut Impact Review Board, the Nunavut Planning Commission and the Nunavut Water Board. These boards carry out government responsibilities associated with northern resource development. Does it make sense for government to keep them cash-starved when they have important responsibilities to perform? Efficient, expeditious professional boards require adequate, stable financing to meet obligations in a way that benefit industry, government and beneficiaries. Should we not make a go of it? Are these boards not carrying out government responsibilities?
Minister Strahl, in his November 28 press release, stated:
The boards have an important role to manage the increase in Nunavut's mineral exploration, land use activities, water licensing, as well as new challenges in wildlife management.
We agree, and we do not hold Minister Strahl responsible for these delays. He was only recently appointed to his position. The problem is much deeper than particular ministers or even particular governments. To repeat the words of Grand Chief Mukash, "We have been trying to get this deal for the last 32 years.''
Our problem is reflective of the overall relationship between Aboriginal peoples and government in Canada.
I will mention another type of dispute. Under the Nunavut Land Claims Agreement, there is a requirement for governments — federal and territorial — to develop a contracting policy in consultation with NTI. With the Government of Nunavut this has been done, despite occasional disagreements. With the Government of Canada, 14 years after the Nunavut agreement was signed, we have still to reach agreement on such matters, with the exception of our agreement with the Department of National Defence on the cleanup of old DEW Line sites.
Honourable senators, we are aware of the important work this committee has done recently in areas such as specific claims and Aboriginal economic development. A voice such as yours, knowledgeable of government but independent, could play an important role in shifting the approach to claims implementation.
Honourable senators, the coalition seeks your help in regards to the following need:
The Land Claims Agreements Coalition calls upon Canada to honour the spirit, intent and broad socio- economic objectives of all modern land agreements — and thereby ensure the development and inclusion of Aboriginal peoples in this modern, thriving country called Canada.
Your committee can help meet this need by examining in detail the implementation process for modern treaties. In particular, we ask you to examine, and to provide recommendations in the form of a special report, the following points: ensuring that the Crown's obligations under land claims agreements are effectively implemented; establishing an effective machinery of government to undertake the implementation responsibilities; an independent implementation review body separate from INAC and reporting directly to Parliament; and a financial management system that does not place claims agreements in mutual competition or in competition with other government objectives but meets the Crown's solemn obligations consistent with the spirit and intent of these agreements.
The Chair: Thank you, gentlemen. I can recall years back, and I imagine Senator Sibbeston might have been at the table at this committee with me, when the Cree-Naskapi were before us saying that implementation was one of the major stumbling blocks. That situation has obviously exacerbated itself, and the Auditor General's report reinforces exactly what you are saying.
It is under the wise leadership of the committee members that we must decide which areas to study. We have been considering two areas: consultation and implementation.
Senator Sibbeston and I have been around this committee for quite a while. I will open up with Senator Sibbeston to ask whatever questions he may. I do have a question but I will ask it after Senator Sibbeston's.
Senator Sibbeston: When I became a senator seven or eight years ago, the first land claims agreement we had before us was the Nisga'a. It is disappointing to see problems arising, because when these land claims are made and there is an agreement by all the parties, there is a greet deal of hope and enthusiasm for the future; then a number of years later problems begin to arise. Last spring and winter we were dealing with specific claims. Specific claims deal with the whole issue of historic grievances that have occurred with treaties. I see this as a modern specific claims problem that is beginning to arise. Treaties have been made, and already not even 10 years into the agreement, there are beginning to be problems. I think it is serious. I do not know whether the federal government is all to blame or whether any of the claimants are ever partly to blame for this problem, but obviously there is a real problem with the federal government's not coming through with the terms of the agreement.
I will ask this of both Mr. McKay and Mr. Kunuk, or their counsel: I suspect the general terms of the agreement are complied with — the general transfer of lands and resources and the monies to be provided to the claimants under the agreement — and there must be a different level of the terms of the agreement that are not being complied with. What is it? What kinds of provisions are not being complied with by the Crown?
Mr. McKay: I will begin with the Nisga'a perspective and invite Mr. Aldridge to supplement. I want to specify to the committee that the Nisga'a are not unhappy with the land claims agreement that we signed with the federal government and the Province of B.C. We are quite happy with the terms of our final agreement. Of course, it goes without saying that those opportunities for the Nisga'a represent decades of hard work, sacrifice and compromise. We do not have any problem at all, honourable senators, with the terms of that agreement.
As we fast approach our eighth year in the implementation of those opportunities, we have a problem with the way the Government of Canada in particular chooses to implement those important opportunities in the agreement. That is why, as a member of the Land Claims Agreements Coalition, we are advocating for the Government of Canada to develop a national policy on implementation that will be more effective in assisting all parties to modern land claims agreements to implement those agreements.
On the point that the honourable senator raises, it is not productive for us to sit around after we identify a point of frustration or challenge and try to figure out who is to blame. That will serve no purpose. We are all to blame. We all signed that agreement. If the Government of Canada and the Government of British Columbia are as serious as the Government of the Nisga'a Nation is in meeting those obligations, we will then accept our fair share of responsibility when challenges have not been met to the satisfaction of the people — I dare say the people that those agreements are meant to provide opportunities to, and that is the Nisga'a Nation directly and indirectly all citizens of Canada and British Columbia.
Jim Aldridge, Legal Counsel, Nisga'a Nation: By and large, the Government of Canada fulfills the narrow legal obligations that are set out in the treaties. When the Government of Canada fails to do so, then the Aboriginal signatory of course has the option of litigation. Litigation has happened. It has happened in the James Bay and Northern Quebec Agreement and has happened, as indicated in the opening comments, with our colleagues in Nunavut.
To answer the question that was asked by Senator Sibbeston, part of the frustration that coalition members find is that the Government of Canada is singularly concerned with merely fulfilling what it calls the obligations, the narrow, technically-defined legalistic obligations — what they have to do — and is not sufficiently concerned, as the Auditor General pointed out, with working to achieve the overall broad objectives of the entire agreement.
We have tried to explain it in other forums at different times by saying that the subject of implementation defines the relationship and the attitude towards the relationship. That is the best method I have found of explaining in a few words the different ways this is looked at.
By and large, from the Aboriginal signatory side, entering into a land claims agreement is analogous to entering into a marriage: working out respective roles and responsibilities, communicating and sharing in order to have a happy and prosperous life together. Whereas from the Government of Canada's side, it seems, on the contrary, to be regarded more as a divorce: we work out an agreement, we divide up the assets, we determine the monthly or annual payments and ask what exactly do I have to do and not a penny more in order to avoid being sued or seeing each other any more than we have to.
Obviously, that analogy puts it in stark terms, but that is the kind of cultural or attitudinal difference we are trying to get at through promoting a new federal policy.
The Chair: I am not sure about your analogy, because 50 per cent of marriages end in divorce. I would hope we could do better than that!
Mr. Kunuk: To add to my colleague's comments, the Inuit gave up their Aboriginal title to the land in exchange for $1.4 billion, with the last payment being made in May of this year. The Government of Canada got what they wanted, 80 per cent of our land. We surrendered our Aboriginal rights to the land, and we are still waiting for many implementation issues that the Government of Canada has not settled. We have identified 39 breaches in our lawsuit.
Another example of how the Government of Canada is not moving arises in article 23, which deals with training and employment. The Inuit employment rates for the Government of Canada in Nunavut and the Government of Nunavut should be at the representative level of 85 per cent. The Government of Nunavut finally reached 50 per cent this past fall, and the Government of Canada rate went from 41 per cent last year to 37 per cent this year. A pre-employment training plan for the Government of Canada still has not been identified. The Government of Nunavut completed their Inuit employment plans in 1989, when the office handed over responsibilities to the premier and his government.
When Aboriginal programs are introduced by the Government of Canada, in most cases Inuit in Nunavut are excluded from those programs, such as housing, even though article 2 of our agreement says that just because we have this agreement, we should not be excluded from other Aboriginal programs. We lose out on many socio-economic opportunities because of the low Inuit employment rate in Nunavut within the Government of Canada and the Government of Nunavut.
The PricewaterhouseCoopers report identified that Inuit in Nunavut have lost at least $65 million in opportunities over the past 10 years because the governments of Canada and Nunavut continue to recruit non-Inuit people from the South. These are actual costs that were studied; they are not numbers taken from the air.
We have another big frustration with respect to the agreement. It says that five years after signing the Nunavut Land Claims Agreement, the Government of Canada should sign off Inuit impact and benefit agreements for conservation areas, and that has not been done yet.
We continue to encounter different barriers with the Government of Canada. They say that they will work on it. They go to the Treasury Board Secretariat or Indian and Northern Affairs Canada or other departments. It is like calling one department that says that is not our responsibility, go to this department. You go to that department, and they send you to yet another department. That is why, with respect to Mr. McKay's opening remarks and the points he made, we feel INAC should not be the main gate in dealing with implementation issues.
The Chair: I think Mr. McKay said that INAC claims they are not responsible for implementation. Did I hear that correctly? If so, can you tell us who is responsible?
Senator Peterson: I need some clarification. You both said you are happy with the agreements because you signed them, yet they go back to 1993 and 2000, and there is a list of others that go back to 1975. Implementation seems to be the problem, and you say it should not be INAC's responsibility. Do you have any suggestions or ideas as to who should be responsible? What should the structure be in order to move this forward and obtain a template and timelines where you can define issues?
Mr. Aldridge: One proposal put forth by the coalition is that the body responsible for implementation should have some sort of central agency function.
Currently, part of the frustration is that the Department of Indian and Northern Affairs Canada, even when it is trying its hardest and doing its best to bring about the objectives of the agreement, is often frustrated when it arrives at other departments to find that it has insufficient clout with the other departments. The other departments consider it to be INAC's agreement and not theirs, as opposed to what we say, which is that it is with the Crown in the right of Canada.
Other departments that have budgets for programs that could be made part of a self-government agreement say that they cannot do so because there are authority problems, since their programs were not designed for a land claims agreement.
While we do not pretend to have a magic bullet, what has been proposed is a machinery of government issue that would elevate the power of those responsible for implementation to a point where they command the attention of other departments. To the best of our knowledge, that would be a central agency function.
However, we proposed something separate from that. One of our four points is that there should also be some sort of a body responsible for assessing the achievement of the objectives of the agreement and reporting back to Parliament and to the parties on that. If objectives are not being achieved adequately, at least there would be a study and someone would know where the responsibility lies. As alluded to previously, which one of the parties needs to do something differently? Do all of the parties need to do something differently? That is the body we say could be housed, for example, within the Auditor General's department. That would be a different sort of body than the one that would be responsible for implementation.
Senator Peterson: You are saying it would definitely be out of INAC and tied to the Auditor General, who seems to understand what is not being done?
Mr. Aldridge: Yes. We are proposing something like the Auditor General's department, for the assessment of the achievement of objectives.
We have wanted to enter into a discourse with the Government of Canada to explore options to find out what might work most effectively. It would be inaccurate to say that there is a hard and fast opinion on the part of all coalition members as to precisely what structure should replace INAC, or whether INAC should be enhanced.
Senator Peterson: We certainly need something.
Senator Hubley: I would like to follow in the same vein of questioning that Senator Peterson has begun. You did invite the Senate to do a special report. In order to do that, we would have to be very clear on exactly what body you feel will have the authority, the funding and the accountability to do that work. I think, perhaps, that is why the question has begun at that point.
Taking that a little bit farther, do you feel the solution is in yet another body? Are we not perhaps taking the responsibility away from where it should be and, instead of holding them accountable, setting up another body which we will then have to look to for the same type of accountability if a problem should arise? That is my first question.
You suggested that the national policy for implementation should be looked at. I am wondering if the footprint is clear enough to do that type of work. I wonder also whether each of these treaties has the same implementation process. Could we compare one to the other to find out which is the best process?
John Merritt, Constitutional and Legislative Advisor, Nunavut Tunngavik Inc.: I have been involved in the day-to-day efforts to try to implement a land claims agreement. All of us at this table have experienced frustration in that exercise in the various parts of the country.
The Nunavut Land Claims Agreement was signed back in 1993 in the name of the Crown in right of Canada. It has constitutional status. Prime Minister Mulroney signed it at a well-publicized public event in Nunavut with most the population of Nunavut watching and absorbing. It was ratified by Parliament. Clearly, it was launched at a level that suggested that the good faith of the country was being pledged to the Inuit in exchange for this agreement. You may describe it as a type of cohabitation agreement or marriage. In any event, the Inuit, who have lived in Canada for thousands of years, were entering into a very solemn understanding with the representatives of the people of Canada as a whole. The sovereignty of Canada has been pledged to the fulfillment of that agreement.
Now, not very long afterward, as my colleague has mentioned, the Department of Indian and Northern Affairs Canada has walked away from the negotiations attempting to implement the agreement. A fine conciliation report done by a former judge in British Columbia sits unimplemented, notwithstanding that it has been endorsed by Nunavut Tunngavik Incorporated.
On a day-to-day basis, when we point this out, we wind up in endless discussions with INAC officials who are very low on the totem pole and who say they do not have mandates to act. There may be a variety of ways to fix this situation in an institutional sense, but I would suggest that the honour of the Crown, the honour of the country is not being discharged in a way that is effective. Nor will this path avoid the inevitable parade, if not landslide, of court cases and standoffs — the next generation of specific claims, as Senator Sibbeston suggested. This is not a workable situation.
The coalition as a group does not claim to be experts on the machinery of government. We know there might be a variety of ways for the Government of Canada to reconfigure itself to achieve better results. We know that trying to isolate this as a minor adjunct at a low level of one department will not deliver the coordinating solutions, the bureaucratic energy or the political oversight required.
Senator Dallaire: Coming from the Province of Quebec, I remain perplexed. We have spent so much effort trying to resolve historical differences between the European Canadians and natives. The issue is so well documented and monitored, and politically it is kept at the forefront of our attention. Therefore, I am consternated by how natives seem to fall off the radar screen regularly, and I am concerned that nations living within the sovereign territory of Canada do not seem to attract commitment on the part of the government.
Are you facing a group of people who are saying it will cost too much? Is it a bottom-line issue in that the government is trying to get out of doing its responsibilities on the one side or simply trying to low-ball everything and saying it is cheaper to go the legal route than to actually pay this stuff out? Are you hearing that it is a cash crunch problem?
Mr. Aldridge: It would be wrong to suggest that that is the major driving force, but certainly it is a part of it.
Let me give you a couple of illustrations. Under the Nisga'a agreement, which we are able to speak about, there is a commitment, a treaty obligation on all of the parties to negotiate and seek to reach agreement every five years on a fiscal financing agreement. We are currently in year seven of our five-year fiscal financing agreement, and the federal officials with whom we meet tell us they have no mandate to put any money on the table. We do not even know if they are too low; there is nothing on the table in our negotiations after some two years past the five-year point.
You might think that is unusual. Our friends from NTI will correct me if I am wrong, but I believe they are three or four years past the expiry of their implementation contract, which plays an analogous role. Our colleagues in the Yukon tell us they are in year nine of their five-year fiscal transfer agreement. In all cases, part of the problem is having the negotiators even get a mandate to talk numbers.
There is a complexity there, and it would be unfair to blame all of this on INAC. INAC does not get a separate pot of money dedicated to the implementation and funding of land claims agreements. It is part of the machinery of government issues that our coalition gets lost in. It seems to us that at times they go cap in hand to other departments saying, "Can you scrape together some dollars from your departmental budget that we will put over into the fiscal financing agreement so we can fund the land claims agreements at no net additional cost to government?'' By and large, the other departments respond by saying, "No, we do not have to and we are not going.'' We also hear that there are authority problems, and so on. INAC is left without the ability to bring these additional dollars to the table.
However, I am not sure whether it is an adequacy of dollars issue so much as an organizational problem and an issue of bringing about the understanding that the treaties are with the Crown, not with INAC.
Senator Dallaire: Do not let INAC off the hook. It is like saying that defence is the responsibility of the government but will be handled only by the Department of National Defence; we are talking about the Canadian government represented by that department.
The federal civil service functions within a methodology that is somewhat oriented to problem solving. It is like an engineering project: for instance, you have a truck that does not work any more because it is old. Therefore, a new truck is bought and they go through all the processes, including the purchase and the maintenance and training costs, and they solve the problem. They say, "We have a new truck so do not talk to me any more about trucks; we have solved the problem.''
In the context of your comments, I do not get the sense that INAC is handling your negotiations as projects but rather as a kind of policy discussion and debate of a whole series of factors that ultimately might find the cash flow through a possible call to the central agencies to have a project funded eventually. It is not a logical process to go to Treasury Board for funding for a project that is an agreement to be implemented.
Do you believe that INAC is ineffective in its role of bringing these projects forward to the government in order to get the funding and the resolution?
Mr. Aldridge: Yes.
Senator Dallaire: Should we not be looking at reforming INAC? We have been bent on trying to reform CIDA. CIDA and INAC have nowhere near the same budgets. We are freaking out about putting money into the international world, yet we have an agency or department that seems to be totally ineffective, but no one has suggested that INAC be reformed. Would you not acknowledge that there should be a fundamental reform to modernize INAC attitudinally and technically in its duties?
Mr. Aldridge: Speaking for ourselves, the logic is impeccable. Not all coalition members necessarily have the same view on whether the solution is to reform, enhance, give life to INAC, in the way that the senator has described, or whether it is beyond redemption and should be replaced by something else. That is a live question within the coalition. In fairness to our colleagues who are not here, we have to acknowledge that.
It would be unfair not to mention that INAC has engaged in a process with respect to approaches to implementation. They do not like to use the word "policy'' for some reason. They will talk about a framework to address possible improvements and problems that may arise in implementation, and some such words.
They had a series of consultation meetings that were designed and established unilaterally. Members of the coalition participated in good faith in that exercise. As we speak, the summary session is happening across the street at the Conference Centre. Our other colleagues are attending that session to deal with INAC officials. However, it is akin to ships passing in the night, if I may say, because the coalition members are speaking the same language as the senator used in his comments on the need for a new policy, approach and attitudinal change to make this important, whereas government officials are talking about a means to improve communications between departments. Essentially, the government is suggesting bureaucratic solutions to streamline paper flow rather than suggesting a broad-reaching new approach like the one we hope this committee will study should it undertake this report.
Senator Dallaire: There is no doubt that there are matrix processes within the government, whereby several departments get together because they have a project to solve. However, if the initiator, or project director, does not have the cash line behind the project, then it is a waste of time because he has no authority. He could have statutory responsibilities but if he does not have a cash line behind the project, then there is no project — it does not exist. They are already overcommitted trying to solve the funded projects, let alone something that does not even have a definition. It is some sort of an agreement, policy, reference that has a legal basis but not necessarily a tangible, practical one that I can define. Therefore, do you think that INAC should have a different methodology of funding in order to achieve some of these complex, omnibus projects that it faces?
Mr. Aldridge: Yes.
Senator Campbell: I am not proud to say that I know something about divorce, but, unfortunately, I do. Your description was very apropos. For the two years that I have been a member of this committee, I have been hearing the same thing. Quite frankly, I do not know why we are discussing INAC, period, because it is a nonentity. It has failed to move from the Dark Ages into society as we know it today. The department commands no respect, you say, so I do not know why the conversation should not be about how to replace INAC rather than change it. We need to start with an agency that actually wants to do something more than simply stay within that framework.
The bigger problem is that government needs a big attitude adjustment overall. Government cannot simply sign a document like the one before us or the Nisga'a agreement or other treaties and then just sit back and do nothing to implement the treaty until they are pushed to do so. How do we change the attitude of the government in this respect? It is not only this government but also previous governments. How far back does it go? It goes back at least to former Prime Minister Mulroney.
How do we go about changing that attitude? We hear the same thing day in and day out from every witness before this committee. How do we change that attitude? How do we make the government respect and understand that it is nation-to-nation we are talking about? Certainly, the government would never treat a foreign nation in this way, yet here within Canada they get away with it all the time. How do we change government's attitude?
Mr. McKay: Thank you, Senator Campbell. That particular debate is ongoing with the Land Claims Agreements Coalition as we speak. We agree that the attitudinal issue needs to be front and centre in this discussion. We do our best to meet with politicians, and we are quite honoured to appear before this committee but we need your help. We would call upon this honourable committee to advocate for us on the need for government to take this issue seriously.
The Nisga'a Nation has maintained throughout the decades of negotiating their treaty that we were looking to negotiate our way into Canada, not out of it. We wanted to be in Canada, and that is what we achieved. Now that we are in, we would like to take our rightful place. We agree with statements being made that part of the reality of implementing a modern land claims agreement, such as the Nisga'a Final Agreement, means that the Government of Canada has to find a way for us to take our rightful place so that we can speak to and work with the Government of Canada in a government-to-government relationship. Certainly, we developed our model of what Canadians refer to generally as the inherent right of self-government, but we can only do so much. Clearly, we need the Government of Canada and the provincial and territorial governments to work with us on those changes.
Again, in closing, we would strongly request that this committee, if it is at all possible, advocate on our behalf for what we are asking. That would give us the higher profile we need. There is a need for a major change in the institutional framework in the Government of Canada. That change will take a lot of effort.
Mr. Kunuk: Returning an earlier point about INAC's lowballing or looking at dollars, that is basically what we were told before 2004 when the government walked out of the negotiations. Instead of recognizing the government's obligations in implementing the agreement, they came to us and said that they can only work with cost of living increases. They told us the rate is 2.1 per cent and that is what we would get, not recognizing the actual obligations and the cost of implementing those obligations.
I will give some history of the implementation contract with Tungavik Federation of Nunavut, TFN, and Nunavut Tunngavik Incorporated, NTI. TFN was negotiating the land claims agreement, and the implementation contract was signed by the Government of the Northwest Territories and the Government of Canada. Inuit were not signatories to that agreement.
With the Government of the Northwest Territories agreeing to split the territory into two territories, there were too many other things to do to worry about what would happen in the next 10 years.
Regarding whether or not INAC is buying a new truck or identifying whether the truck is broken, in terms of processes we have seen that they will create a panel first and then a working group to determine whether that truck is actually broken. That is the cycle that we go through. For the committees that we were involved with, we end up using beneficiaries' money to come to Ottawa or for them to come to other communities to talk about creating working groups, panels, subcommittees and the session that is going on right now. All those committees and meetings and so on are costing Inuit money that was supposed to be used to benefit the beneficiaries.
We have elders who have been involved with land claims issues, elders who have never been to school, elders who were born in igloos, tents or sod houses, dealing with ministers, deputy ministers and lawyers. I am proud of my elders for taking that lead. There are so many of them, but one who comes to mind is Raymond Ningeocheak, our second vice-president, who has been involved with land claims issues for over 15 years and is not shy to come to committees like this. He went to a parliamentary committee not too long ago and spoke without reading notes or anything; it just came from his heart. We have elders that take the lead. Those elders are asking, "What are the benefits of signing this agreement? I thought we were going to get this,'' and we told them we thought so, too, but we have to go through endless committees to determine whether they agree to terms of reference in meeting those needs or even them denying our request for funding to participate in policy development or other committees from Parliament or the Department of Indian and Northern Affairs Canada.
Senator Campbell: Mr. Kunuk, Canada seems to be really into the North right now. What would happen if the Nunavut nation said it is ours; we do not want you here? I am tired of meetings that are doomed from the start. Senator Dallaire was right. I am surprised you do not have a committee that asks, "Is that a truck?'' What would happen if Nisga'a or those in the North said, "We do not want you here; goodbye''? What would they do to you? What could they do to you? Would that send the message finally that we are not fooling around any more? Could you say, "If you are serious, we are serious. If you are not serious, goodbye. It is our territory''?
Mr. Kunuk: Last week we were in Rankin Inlet for the NTI annual general meeting and the frustration of the members was clear. I will give an example. The Government of Canada or the Government of Nunavut in one way or another darts polar bears to get measurements. The quotas keep being reduced. The powers that be recognize scientists, professors and those with accreditation. We have what we call Inuit traditional knowledge, ITK. Like Mr. Merritt said, Inuit have been in the North for thousands of years. They know the environment and they know what happens to polar bears or belugas or geese, but their knowledge is never recognized because they do not have the title of doctor or scientist. We continue to struggle with that.
Not once since the Prime Minister started pressing the issue of sovereignty in the North has he ever mentioned Inuit. If you look through the speeches that he has made, whether in Iqaluit or in other parts of Canada, not once has his government ever mentioned the Inuit who live there and will continue to live there. Our president has written letters to the Prime Minister saying, "If you are going to talk about sovereignty, include us.'' Our president wrote a letter in February. He sent a note to the defence minister saying he will respond to your letter, but to date we have not received a response.
Inuit are getting frustrated with government programs, whether federal or territorial, and are saying, "We will not do this unless you recognize Inuit traditional knowledge. It is getting there. Since relocation from Northern Quebec to Resolute Bay and Grise Fiord, we have not been involved in any discussions on sovereignty and there has been no response from the government. Some Inuit want to just ignore the government. It is happening in different parts of Nunavut, and I am sure in other land claims groups.
Senator Dyck: Thank you, gentlemen, for a great presentation. The answers you have given so far have been illuminating.
We have before us presently a bill dealing with Nunavik Inuit land claims and the simple question would be why sign it. That is related to what Senator Campbell was saying. Given the issues of sovereignty now, why would you sign when you could have a better deal? Has this agreement with the Nunavik presently been improved by your past experiences of frustration, and is there any way of including in this new agreement a better way to carry out the implementation?
Mr. Merritt: As was mentioned at the beginning, the coalition is precisely that, an assembly of modern land claims groups trying to work together on what they have in common.
All the agreements are different, and all the groups have faced different negotiating environments. Makkovik, which is the Northern Quebec organization that represents the Inuit of that region who have negotiated that agreement, has gone forward with that agreement and believes it to be the best agreement that can be negotiated in the context. I believe there was a vote among Inuit in the communities, and they voted to endorse that agreement.
I think all we can say as a coalition is that we respect that each of our members must make difficult decisions in relation to choices and tradeoffs. Therefore, we could not really help you in terms of offering any advice on your particular question. We would encourage you to meet with the Makkovik representatives to discuss concerns of that kind.
On a broader point, and my colleague, Mr. Kunuk, has mentioned this, every agreement is an exchange. These are not acts of benevolence by government. Things are either left to be implemented or not, depending on how government configures its institutions or finances. These are exchanges. They are contracts.
The litigation that NTI started last December is rooted in contract. We are seeing two parties that had an agreement, and there were understandings and assumptions reached. The implementation is no longer left to the bureaucratic discretion of officials. That seems obvious, that these agreements are in fact exchanges and contracts and have the dignity and enforceability of contracts, but I am afraid that that concept is often lost.
We end up with an exchange with government officials who believe — I assume they say this sincerely — that if they lose some sort of internal optioning of resources exercise, that would be an adequate explanation as to why a contractual commitment is not delivered. We all know that as a logical proposition, let alone a legal one, that just does not hold.
I have one final comment. Senator Dallaire mentioned earlier about things being project-driven. I view my work that way. I think the fundamental problem is that the Department of Indian and Northern Affairs Canada does not define the project in a way that is ambitious or effective enough.
The Nunavut Inuit have the country's worst housing, one of the world's highest suicide rates and a 75 per cent drop- out rate in high school. It strikes me as absurd to believe that anyone could accept that the implementation of the Nunavut Land Claims Agreement was successful if those fundamental problems are not fixed. I can find you government reports and correspondence in which you get a veneer of complacency that somehow the government is doing what they are supposed to be doing under those agreements. To me, that is an absurd proposition. It means that the definition of the project is fundamentally flawed.
If this committee had a chance to rewrite the Department of Indian Affairs and Northern Development Act and to reset the project definitions — I am speaking personally — I think that would be a very viable contribution to the people of Canada.
Senator Dyck: Mr. Aldridge, I think you were saying that INAC did not have a separate pot of money to settle these kinds of agreements. Should there be a separate pot of money? If there is a separate pot of money, should it be housed within INAC? Or is there some other mechanism whereby that money could be protected?
Mr. Aldridge: We have suggested that the cost of implementing each agreement, in accordance with both strict obligations and the larger project or set of objectives, should be costed out, estimated and set aside for that agreement so that all parties know what is available. As I have said, the problem now is that there are bits and pieces.
I am not sure this is true, but it seems from where we sit that the Government of Canada decided that once they do the capital transfer, et cetera, on the effective day, they do not want to spend any more money than before they had land claims agreements for the ongoing implementation. They will take existing departmental money wherever they can find it, and instead of calling it Indian Act band funds, they will call it self-governing nation implementation funds. Guess what? It is coming out of the same stream. If you go down the list, there was a very useful document put out by Treasury Board a few years ago, and you see this dipping into existing funds of money, calling it by a new name and saying it is implementation.
Therefore, we do not know exactly how the machinery would work. We are not experts. The concept is that each agreement would be separately costed and funded so that everyone would know what they are working with without this scraping together of money from other departments.
Senator Adams: [Senator Adams spoke in his native language.]
My question is similar Senator Dyck's. Before the last break, in June, we had been working on land claim agreements between Nunavik, Nunavut and INAC. It started off with Bill C-51, which died on the Order Paper last fall. Now the issue arises as Bill C-11. They usually start off at a high number right after land claims were settled in Nunavut.
The organization within the corporation was interested in hunting rights and water in Hudson's Bay and Ungava Bay. At that time, in 1975, they ended up creating the James Bay and Northern Quebec Agreement between the Government of Canada and the Government of Quebec, and it was complete with hunting rights.
Senator Watt brought in some people in the early spring before Bill C-51 was introduced in the Senate. He had some people come in from Northern Quebec, including mayors and a few people that had been charged with over quotas on beluga whales.
According to the Northwest Territories, it was administrating waters between the Hudson's Bay and Ungava Bay right up to Newfoundland and Labrador. During that time, I was a member of the territory council, from 1970 to 1974, an MLA from Kewetin.
Northern Quebec is only up to tidal water and they are not allowed to go to the highlands. That was in the land claims agreement. According to my colleague, Senator Watt, he said the people made a mistake in signing that agreement. Mr. Merritt, maybe your group knows about the agreement with NTI.
In the meantime, the premiers signed an agreement for Nunavut between the Government of Canada and Makkovik. I was wondering, is there really a problem with that agreement? I know people would like to see more quotas when spring passes, but they are wondering how they will do that under the agreement with the Nunavut Wildlife Management Board. I did not hear anything from anyone saying that bill should not be passed.
Mr. Merritt: With respect to NTI and Makkovik, the two organizations have essentially worked out overlap arrangements. Some of the waters Senator Adams referred to are used by both Inuit that live in Nunavut and Inuit that live in Northern Quebec. There have been arrangements worked out based on reciprocal recognition of use and rights.
Therefore, the Nunavik offshore agreement that is now in front of the Senate for ratification is the agreement that the Nunavik Inuit are proposing to enter into with the Crown. Nunavut Inuit have, in effect, completed their business insofar as that proposed new agreement would affect Nunavut Inuit. They have respected that the decisions as to the kind of regime they would like closest to their community must now be made by Nunavik Inuit.
As the senator said, the Nunavik Inuit have imported and relied on many of the precedents struck in the Nunavut agreement to establish similar kinds of management arrangements. There may be debate as to whether they could be improved or changed. However, NTI does not represent the people making those choices. Therefore, we are reluctant to offer judgment on whether the agreement is good, bad or indifferent. That is not something we negotiated, and we respect that people have to make their own choices.
The Chair: Colleagues, I do not think there is a doubt that implementation is a challenge. Senator Dallaire, do you have a question?
Senator Dallaire: Yes, I have a short question. I am always interested in the provincial-federal side of the house. I believe in strong regions but only if they are going to make a stronger Canada and not stronger independent regions.
Are you facing similar scenarios in the implementation? Is the implementation of the agreement going through the same hassles at the provincial level that you are having at the federal level, in terms of their respective rights and obligations?
Mr. Aldridge: By and large, from Nisga'a point of view, no; the provincial government has been much better. However, nothing is perfect.
Senator Dallaire: It is better within the scope of their responsibilities for implementation?
Mr. Aldridge: Yes.
One point that was asked earlier and not properly answered was whether Mr. McKay read the quote from the Auditor General properly. Indeed he did. The exact quote was:
INAC officials have also said they do not view it as the Department's responsibility to achieve the basic goals of the Agreement, describing them as Inuvialuit goals, not Canada's. They stated that the Agreement obliges them neither to achieve these goals nor to measure progress toward them.
They suggest that they will fulfil obligations, but it is not their business to achieve goals. Since you asked that earlier, I wanted to make sure we made a response.
The Chair: I appreciate the clarification, Mr. Aldridge.
Colleagues, I do not think that there is any doubt that implementation is a real challenge, and I think we knew that before we came here this morning. That knowledge has been reinforced by the expert and the fine presentations we received here this morning. The Auditor General also said that federal officials have displayed a consistent aversion to the use of arbitration in respect of any financial topics. Obviously, whenever it comes to a financial scenario, there is resistance there. She suggested that a new comprehensive claims agreement or modern treaty implementation tribunal could be established to assist in this process. Therefore, there are suggestions out there.
I would like to thank the witnesses for their excellent presentation and for their candid and straightforward answers to questions put forward by the senators. This committee is operated on a nonpartisan basis as much as can exist here in Ottawa. It is not about us but about the First Nations. I thank all the honourable senators for their participation here this morning.
We are now going to go in camera to discuss draft budgets and I would like a motion that staff be allowed to remain while we go in camera. If there is a motion, we can proceed. Senator Hubley moves. Are all in favour?
Hon. Senators: Agreed.
The committee continued in camera.