Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 5 - Evidence - Meeting of February 26, 2008
OTTAWA, Tuesday, February 26, 2008
The Standing Senate Committee on Aboriginal Peoples met this day at 9:40 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, honourable senators and invited guests. This morning we continue our study of the implementation of the comprehensive land claims by hearing witnesses. As committee members know, we decided that this was an important area to tackle in that there are certain areas within the implementation process where progress has been frustratingly slow. It is our hope that this committee, with the help of our various witnesses, will be able to shed light on these deficiency areas with a view to recommending improvements.
To aid us in grasping the challenges faced by the claimants, we are assisted this morning by representatives from Nunavut Tunngavik Inc. and from the Grand Council of the Crees.
The committee has followed the work of the Auditor General, in which she has found serious weakness in the implementation of three comprehensive land claim agreements since 2003. The committee would like to know, in your view, what the main factors hindering implementation are and what solutions you might propose.
The Deputy Minister of Indian Affairs and Northern Development, in his appearance before the committee, noted that one of the challenges is the capacity of the parties to fully implement the obligations set out in the agreement. The committee would be interested in hearing how the capacity of the people on the ground in the regions affected by the agreements has influenced the ability of the parties to implement certain treaty provisions.
With that, perhaps we could move to our testimony this morning. As I said, our witnesses this morning are from Nunavut Tunngavik Inc. We have James Eetoolook, Acting President; Alastair Campbell, Senior Policy Advisor; and Terry Fenge, who is a consultant, with us. They will be the first witnesses, to be followed by the Grand Council of the Crees, whom I will introduce when they take their position at the table.
The witnesses will each offer a presentation of approximately five minutes or so, which will be followed by questions from senators. This morning we have, as deputy chair, Senator Sibbeston, from the Northwest Territories; Senator Lovelace Nicholas, from New Brunswick; Senator Dyck, from Saskatchewan; Senator Dallaire, from Quebec; Senator Peterson, from Saskatchewan; Senator Campbell, from British Columbia; Senator Gustafson, from Saskatchewan; and Senator Adams, from Nunavut.
Mr. Eetoolook, if you are ready, the floor is yours, sir.
James Eetoolook, Acting President, Nunavut Tunngavik Inc.: Thank you, honourable senators. It is good to be here in Ottawa, even though the weather is not very good. It is cold up North, too, so we are even.
On behalf of Nunavut Tunngavik Inc., NTI, I would like to express my appreciation to you for this opportunity to present our views on the implementation of the Nunavut Land Claims Agreement. My name is James Eetoolook. I am the acting president of NTI. With me today, to my right, is Alastair Campbell and, to my left, Terry Fenge.
NTI is an organization that represents Nunavut Inuit with respect to the responsibilities and obligations flowing from our 1993 land claims agreement.
There are important problems with the implementation of our land claims agreement, and I commend you for making this complex area the centre of your attention.
We saw the signing of our land claims agreement in 1993 as marking the beginning of a new relationship between us and the Government of Canada. This was not a ``cash-for-land'' transaction. Our land claims agreement is a complex document, the product of two decades of discussions, research and negotiation. When we signed, we saw it as a new covenant that would shape our place in Canada for generations to come. It was a solemn commitment to a new relationship.
We have tabled a brief that outlines many of the problems that we see with the implementation of our agreement. I will not read all the material, but I will give you an outline.
Our agreement has been reviewed twice by independent consultants and reports were published in 2000 and 2006. These reviews show that many articles in the agreement have not been fully implemented. Examples include the following: Article 8 and Article 9, which provide for the Inuit Impact and Benefit Agreements in relation to parks and conservation areas; Article 12, which provides for environmental and social monitoring; Article 15, which recognizes the principle of adjacency in awarding commercial fisheries quotas; Article 23, which provides for a representative levels of Inuit employment in the federal and Nunavut governments; Article 24, which provides for government contracting opportunities for Inuit; and Article 38, which provides for arbitration of disputes.
These are not isolated problems. These problems stem from the inefficient and ineffective workings of the Government of Canada.
When, Michael Wernick, Indian and Northern Affairs' deputy minister, appeared before you, he said that he could not compel anyone outside INAC to do anything to implement land claims agreement.
Land claims agreements are not self-implementing. Many departments and agencies have responsibilities. INAC has many responsibilities, but it is a line department that cannot direct others.
If we were to look at federal priorities, such as official languages, we would not have such explanations for inaction. The Commissioner of Official Languages reports to Parliament and ensures that the departments take their obligations seriously.
Our treaties are with the Government of Canada, but, when federal agencies ignore their obligations under our agreement, who can hold them accountable? Until someone is in charge and accepts responsibility for implementation, the objectives of our agreement will not be attained and the honour of the Crown will not be upheld.
Many federal agencies have significant roles in implementing land claims agreements. Federal agencies must be fully engaged, involved and orchestrated, if the Crown's obligations and duties under our agreements are to be carried out. The record indicates that we cannot rely on INAC to conduct the federal orchestra. This raises a major question: Should we get a new conductor?
Mr. Joe Linklater, from the Council of Yukon First Nations, said that these modern treaties are underused as a vehicle to improve the lives of Aboriginal peoples. He is correct. Therefore, what should you recommend to the Government of Canada? In early December, you heard from the Land Claims Agreements Coalition that the Government of Canada should adopt a formal land claims implementation policy.
We suggest you recommend that the Government of Canada adopt a land claims agreements implementation policy that, one, acknowledges that modern treaties are constitutional documents and that the honour of the Crown demands that they be fully implemented; two, acknowledges that modern treaties are between Aboriginal signatories and the Crown and commits the whole government to comply with them; three, commits the Government of Canada to effective coordination to implement modern treaties; four, accepts the recommendation of the Auditor General of Canada in her reviews of the modern treaty implementation; five, ensures that the senior officials bring coordinated, government-wide perspectives to modern treaty implementation; six, incorporates independent reviews into implementation; seven, removes barriers in the budgetary system that impede implementation; eight, allows arbitration to resolve disputes; and nine, implements modern treaties to achieve public policy objectives.
The most important recommendations you can make deal with the machinery of government. We have two recommendations: First, establish a land claims agreements implementation commission headed by a commissioner of modern treaties. The commission would evaluate implementation of modern treaties and report annually to the Parliament of Canada and advise the Government of Canada and Aboriginal signatories.
Second, establish a bureau of modern treaties in the Privy Council Office with a mandate to ensure that the agencies of the Government of Canada take a coordinated perspective to fulfil the Crown's modern treaty responsibilities.
I would like to close by reading the appeal to the Government of Canada by the Land Claims Agreements Coalition.
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.
That concludes my presentation. Thank you, Mr. Chair.
The Chair: Thank you, Mr. Eetoolook. I have Senators Sibbeston and Campbell.
Senator Sibbeston: Mr. Eetoolook, I am very much aware of the Nunavut people. I was involved in politics and government in the North, prior to 1999, when there was quite a movement toward the establishment of Nunavut and the land claims.
The Inuit people, in many ways, are fortunate. They have their own government; they have a government up in Nunavut. It is likely to remain that way because there are not that many people from the South that are likely to move into the North. It is still the homeland of the Inuit people. In one sense, you are a very fortunate people. You are perhaps the most fortunate Aboriginal people in the country because you have everything to which many Aboriginal people in our country aspire. You have self-government; you have a land to yourself, and there will likely not be any encroachment. You then have your own land claim provisions. In one sense, people would wonder what you have to complain about; you have everything.
On the other hand, I recognize that there has not been full implementation of your land claims. I noticed that your land claim agreement does have an implementation plan, and it has provisions for a panel as well as an arbitration board. All these elements seem to be in place, yet you feel that the federal government has not come through, and you have basically sued the federal government for $1 billion.
Do you mind telling us why that happened?
Mr. Eetoolook: Thank you, Senator Sibbeston, for that question. It is good to see you again.
We have a land claims agreement that we thought in the beginning the Government of Canada would be on the ball to implement. It is not happening. We have been after them. We have had that land claim since 1993, which is 15 years ago. We still see provisions of the Nunavut Land Claims Agreement that were to be implemented about 10 years ago, or beyond, and are still not being implemented by the federal government. We cannot implement the land claims agreement alone. The government has a responsibility to implement it. In fact, so does the territorial government.
There is a majority of Inuit people in the Nunavut legislature, but it is a public government, and we are a private and Inuit organization. When we were negotiating the land claim, we said that we would settle for a public government when Nunavut separates from the Northwest Territories, thinking that, in the future, if the public government starts to run away from the Inuit concept, then we will form the self-government. I feel that will be forthcoming.
Mr. Fenge wants to add a comment about the problem that we face when it comes to the implementation of the land claim. Even though we have an implementation plan, it is not working the way it should.
Terry Fenge, Consultant, Nunavut Tunngavik Inc.: Let me try to come to grips with your question with a general answer first. Many areas of the Nunavut agreement have been implemented. It is important, in the beginning, to acknowledge this. Many areas have gone well. We are not here to gripe and whinge and complain. We are trying to improve what has not worked well.
Our experience is that many of the repetitive functions, the simpler areas, the one-off jobs identified in the agreement, have been implemented, and it has been done well. Where the system seems to fail is when it requires creativity and coordination here in Ottawa.
The chair, in his opening remarks, talked about capacity. There is a certain sense that difficulties with the capacity lie solely and only in the North, in the regions. There is also a capacity issue here in Ottawa that is getting in the way of actually implementing fully and comprehensively the Nunavut agreement, which is why in our lengthy brief that we circulated to you we did not want to just come forward with a series of problems; we wanted to suggest potential solutions that you potentially could recommend to the Government of Canada. That is why we have played back to you the remarks that you heard a few weeks ago from the deputy minister, Mr. Wernick. If you read the record, Mr. Wernick came perilously close to saying that, even with a new policy, we do not have the ability or capability to implement it. That is why we have made some fairly significant machinery of government recommendations to you.
Senator Sibbeston: Taking legal action is an action of last resort, one of desperation to try to get the federal government to move on the implementation issue. What has been the result? Do you believe that you will have to follow through with the legal action to its bitter end, or has that legal action spurred the federal government to know that you are serious about it and that you will take the matter to court if you have to? Has that legal action spurred any activity on the part of the federal government? Are you optimistic that there can be a solution?
Alastair Campbell, Senior Policy Advisor, Nunavut Tunngavik Inc.: I will go back to something else that you asked about, which is connected with this. You referred to arbitration. In recent years, in meeting with a number of people and explaining problems that were occurring in securing the implementation of the Nunavut Land Claims Agreement, various people would ask why we do not take the government to court. The answer was that we were not there yet. However, eventually, NTI came to that point, feeling that there was no other alternative. Nothing else was working.
Built into the Nunavut Land Claims Agreement is a provision for arbitration, very similar to what is in other land claim agreements. On the face of it, one would believe here is an alternative. If a dispute cannot be resolved, one goes to arbitration. Actually, two important steps have been followed. The first is that a conciliator was brought in, Justice Thomas Berger. He made his reports, and, basically, they received very little attention from government. They certainly were not acted upon. Second, in terms of arbitration, the requirement in the Nunavut Land Claims Agreement is that both parties agree to refer a dispute to arbitration. In a number of cases, NTI has tried to refer disputes to arbitration, and every single case has been turned down by the federal government. That is the absence of an alternative dispute mechanism that has forced NTI into seeking legal action.
I would say that, in comparison, the Inuvialuit Final Agreement also provides for arbitration but, for the Inuvialuit, either party in that case can go to the arbitrator. The Inuvialuit have done it a number of times, have been able to do it and have been successful. That opportunity is cut off.
One explanation that shows up in one of the Auditor General's reports is that officials have said they cannot go to arbitration because there might be financial implications and that would somehow infringe on the sovereignty of Parliament in terms of appropriating money. Justice Berger makes the comment that pretty well every arbitration decision will lead to money somehow or other, or at least expenditure to do something. However, in the case of Justice Berger, his comment was that the government cannot use a blanket excuse to turn down all arbitration, which is essentially what they are doing. They cannot put a section in an agreement that we will have arbitration and then say that it does not mean anything because they have to agree, and they will never agree. It is a type of duplicitous provision in a way.
In terms of litigation and what will come out of it, there are always attempts to find out how serious we are about it. Although there is interest, perhaps, in exploring other opportunities, I would say the litigation process looks as if it will have to go further ahead. Thus far, it is not even in discovery. The most recent action was on the part of the Government of Canada attempting to make NTI act to add the Government of Nunavut as a co-defendant, which is currently under consideration by the court. That is essentially where we are at the present time.
Senator Campbell: Thank you very much for coming today. I welcome you.
I would doubt very much whether you would use the terms ``creativity'' and ``INAC'' in the same sentence. My sense here is that there simply is no creativity on the part of INAC. This is confirmed by what you have said. All we ever hear from INAC, quite frankly, including the deputy minister, is excuses and not solutions. I often wonder, sitting here, what the case would be if you were a private, large company who found themselves in this position with the government. I would suggest to you that you would not have to be here and that there would be a solution found.
It is interesting that in his appearance before this committee, the deputy minister, Mr. Wernick, stated that there had been much discussion about ongoing implementation funding in the Nunavut agreement, particularly around education. He added, however, that the department has ``consistently offered to try to negotiate an appropriate settlement of those issues, and that offer is still open.'' Given this statement by the deputy minister, can you tell us why the negotiations to date have failed to produce a satisfactory resolution? His indication is that he is open to listening to you, to sitting down and talking to you, yet whenever you say, ``Let us take this to arbitration and find out what is going on,'' they block you. Can you tell me what the main obstacles are to achieving resolution on any of these issues?
Mr. Fenge: First, it is our view that there are many well-qualified, hard-working dedicated civil servants in the Government of Canada, and it is important to say this. However, there are systemic problems that get in the way of expeditious, efficient and effective decision making. The deputy minister basically admitted this to you.
In the experience that we had in trying to negotiate the renewal of a 10-year implementation contract, there were a variety of problems. There were problems with the negotiator from the Government of Canada not having an appropriate mandate, in essence, suffering under arbitrary direction, and the fact that the INAC appeared to be unable or unwilling to bring people from other agencies with expertise to participate in the negotiations. INAC has arrogated unto itself the coordinative role, but we feel that INAC is probably doing a poor job of motivating and bringing other agencies to the table, which is why many of our recommendations go to the nub of how we get decisions made out of a large government system here in Ottawa.
This is why we have suggested that it would be helpful if you recommended taking this responsibility out of the hands of what is, in essence, a peripheral agency in Ottawa, INAC, and putting something in the Privy Council Office. The Privy Council Office, as a central agency, has a better chance of bringing the various interests together within the Government of Canada to move ahead on full and complete implementation of our agreement, and we would imagine other agreements as well.
I hope that, at least in part, answers your question.
Senator Campbell: I want to be clear that when I make reference to INAC, I am referring to the agency and not the people who are working there. INAC, quite frankly, was borne in paternalism, has never moved out of it and has never been able to come into the modern world and address issues that are being addressed by our First Nations. I do not believe that, for the most part, this has to do with the people so much as the culture of the organization that refuses to change.
My question has to do with the lack of government participating in arbitration: In 2003, the Auditor General found that not one case had come before the arbitration panel. Has that changed in 15 years?
Mr. Campbell: It is still the same.
Senator Campbell: There has never been one?
Mr. Campbell: No, there has not.
Senator Dallaire: When I appeared before the American senate committee on human rights and the law, a Republican senator immediately stated that he did not believe in the UN because they were all crooks and took 25 per cent of all monies away before we could do anything. That did not inspire me to try to sell him on the UN.
However, I echo Senator Campbell's position with regard to INAC. I believe that it is not an instrument in which the people necessarily have ill will. I do not believe that. However, I am not sure whether that institution has actually moved out of the colonial era and met with the challenges that you have brought forward.
I am trying to figure out — along with my colleagues, I am sure — this fundamental and conceptual methodology of work in that outfit that makes it an impediment. I will come specifically, if I may, to your agreement.
In 1999, you signed the agreement, and the notes indicate a settlement of $1.17 billion in financial benefits over 14 years, with a share in resources and so on. Seeking this, you have a lawsuit asking for $1 billion, where you believe that the implementation provisions of the agreement total about $123 million annually.
My question is for you and for those who were there in 1999 and before. During negotiations, was there at that time any mention of a guaranteed source of funding for implementation separate from the amounts you were getting for the actual land claim? Was there, at that time, someone who said that they had $123 million a year in their budget to implement this; or was there simply a promise to work out the details and money hopefully would be found?
Mr. Eetoolook: Either Mr. Fenge or Mr. Campbell will answer that question.
Before they do, you are talking about the compensation we received from the federal government, which amounts to $1.14 billion. That is compensation money. Besides that, the government agreed to implement part of the agreement.
It is worth noting that some of the provisions being implemented are costing the Inuit a large amount of money. Particularly Article 23, which is employment of Inuit within their government system. That has not been implemented, so we are losing large sums of money in that area, even though the government is a signatory to the agreement. We would like to see these provisions implemented so that the agreement will be more meaningful.
We do not want to use the land claims compensation money; that is set aside for future generations. It is currently in the bank drawing interest. There are other provisions that we are after within the agreement.
Mr. Fenge: From 1992 to 1993, a 10-year implementation contract was negotiated between the parties. When the Nunavut agreement itself was ratified by Inuit through a vote and by the Parliament of Canada, at the same time there was a separate document, another 150- to 200-page document. That document provided figures for budgets for the institutions of public government. That document purported to, if you will, breathe life into implementation.
However, an obvious point was that that document was negotiated without any experience because we had not started to implement the agreement. Ten years later, we had reviews and all sorts of experience, and we wanted to incorporate that into the renewal and renegotiation of that implementation contract for the next 10 years. We could never come to an agreement with INAC on that because INAC was wedded to what had been agreed to in 1992 and 1993.
Senator Dallaire: I return to that. There was a cash line identified in that separate agreement on a yearly basis for the implementation, although maybe the data was not complete. Is that correct? Was it an identified cash line that the federal government would commit itself to implementation of these provisions?
Mr. Fenge: The basic answer is, yes. However, it was not a cash line. It was a 200-page document that outlined how much money would go to various organizations for various purposes.
Senator Dallaire: Are those various organizations within your structure?
Mr. Fenge: Yes, they are.
Senator Dallaire: However, from the federal government, was the source of that funding identified? Was it identified in a contractual methodology?
That brings me to 10 years later. Has there been, over this 10-year period, a review of that cash line by the department with which you have been involved in regard to its commitment on a specific requirement for new monies — because you are probably asking for more — to this implementation process? Have any of those discussions been had?
Mr. Fenge: I need to gather my thoughts. The answer to your question is, yes. We have all sorts of discussions happening virtually all the time to try to implement various provisions and portions of the agreement.
For example, we have discussions that continue on Inuit Impact and Benefit Agreements, IIBAs, in relation to parks and conservation areas. There has been tremendous difficulty in getting these IIBAs funded. You stress the source of funding. There has been tremendous difficulty in getting the Canadian Wildlife Service to actually obtain the money to implement agreements that have been negotiated.
I did not want to stress the funding element, although it is obviously a clear and important element. We are here not just to talk about obtaining more money; we also want to deal with the policy parameters and issues.
Mr. Campbell: There are some elements in the agreement that call for negotiations, such as the Inuit Impact and Benefit Agreements relating to parks. The amount of money that is required for those must be developed in the negotiating process, so that everything cannot be fixed in advance.
One of the difficulties has been, for example — and NTI talked about it in our December 4 appearance — money that goes to institutions of public government, such as the Nunavut Impact Review Board, Nunavut Planning Commission and so on. A budget was allocated to those, and after 10 years the question came up: How much do they need for the next 10 years?
These institutions came up with their budgets, NTI came up with their estimate and the Government of Nunavut came up with its estimate. Basically, the federal government wanted to follow through on the old budget.
It was one of the issues that Justice Thomas Berger was brought in to look at. He came in and recommended figures that, finally, NTI, the institutions, the Government of Nunavut and the Government of Canada agreed upon. It still took nearly two years following that agreement for the money to actually be provided. Those institutions are operating without the extra funding for another two years.
Senator Dallaire: I am trying to get at the methodology being used. It is not that you are here because you want more money. However, why do you end up in catastrophic failure and crises and no money for two years toward a program when government plans five years in advance and other departments plan up to 15 to 20 years in advance for major projects?
To me, this separate implementation exercise is an omnibus project in which there is a bunch of separate projects with separate departments to meet separate requirements of an omnibus implementation.
Do you ever get a feeling that there was an omnibus bringing about an approval by government of that and a funding line for that?
Do you believe that Indian and Northern Affairs Canada was mandated to influence the funding and authorities within the other departments to seek those monies from the central agencies in order to implement it? You talked about the project management office, but did you ever feel they had that mandate and they were actually doing it?
Mr. Campbell: There is a simple answer: INAC feels that it has the mandate to do its departmental responsibility, but other departments that have obligations have their responsibility.
Senator Dallaire: When you argue that it is the Government of Canada, you are setting yourself up to fail because it must be a department within the federal government that has the overall responsibility of an omnibus program that involves other departments. It is, of course, coordinated by Treasury Board of Canada Secretariat, but in essence, if one department does not lead this and ask for the budget lines two or three years in advance, no one will offer themselves up to fight for that just because they have been given a task that has seemingly no authority above it.
Do you feel that all the departments are saying that they do not have that ultimate authority, and it should be INAC? Do you feel that INAC, in your negotiations, say that they really do not have the authority to influence them to get the money either, so they are left in a limbo?
Mr. Fenge: Your analysis is basically correct. I will not disagree with it. You must appreciate that much of this is business within the federal government, and we have a limited view of what happens with internal business. Our experience in a variety of clauses and aspects of the Nunavut agreement is that INAC seems to be unable to coordinate, compel, cajole or encourage other agencies to do what is required. That is why, to come back to the basic point, there is a capacity problem as well as a will problem, a structural problem and a systemic problem. That is why the critique we bring to you in terms of implementation is a critique about the way the Government of Canada is working.
Senator Dallaire: If no one is going after a cash line for a project such as this, they will not spend the staff effort on it. There is no guarantee you have money coming down the pipe that is pre-programmed; they will not work on it. They have a million other tasks to work on. My perception is that there has never been an omnibus concept in which a lead department is actually mandated to move other departments to seek those funds and to guarantee that those funds are brought into the budgetary process. That, I believe, is what you are telling me also. Am I correct?
Mr. Fenge: Yes, you are correct.
Mr. Eetoolook: Could I ask Laurie Pelly to talk about the Inuit Impact and Benefit Agreements? That was part of the question.
The Chair: We are running tight for time, colleagues, and we have others to hear from. I suggest that if we have any questions that relate directly to NTI, we should place them. If there are questions of generality, we could allow those questions to go to the next set of witnesses. I am trying to expedite this to make it flow as well as possible.
What did you ask of me, Mr. Eetoolook?
Mr. Eetoolook: I wanted Ms. Laurie Pelly to talk about the Inuit Impact and Benefit Agreements.
The Chair: Yes, she may, very briefly. Would you give your name and your title for the record?
Laurie Pelly, Legal Counsel, Nunavut Tunngavik Inc.: My name is Laurie Pelly. I am legal counsel with NTI. I could describe briefly one example of a situation that would answer your question.
The Inuit Impact and Benefit Agreements are required to be negotiated under the land claim in connection with parks and protected areas. Canada Wildlife Service, CWS, was responsible for that negotiation. We began discussions with them in 1998 toward developing an IIBA. At the outset, they had no concept that they were required to provide monetary benefits to Inuit under this agreement. They were people who deal with birds. They had no understanding. It took four years for NTI to assist CWS to identify a funding source within INAC that they could access to negotiate an IIBA.
In 2002, after four years, they identified a figure of $8.3 million to negotiate this IIBA. We are still waiting for that funding of $8.3 million. We negotiated the IIBA over the course of two years, from 2002 to 2004. Up to the present time, CWS and Environment Canada have still not been able to confirm that funding from INAC.
Senator Lovelace Nicholas: My question is a simple one. Since the government is not living up to the treaties that take care of First Nations people and their well-being, do you feel all First Nations people should take the step of suing the government for its lack of honouring the treaties?
Mr. Fenge: The basic answer to your question is, no. However, you heard from Mr. Linklater from the Council of Yukon First Nations, CYFN. A number of senators asked him why he was so happy about implementation. You will find there are different experiences here. In terms of the litigation that NTI has mounted, that is purely because of NTI's circumstances.
Senator Adams: Thank you for coming back to Ottawa again. We might have an election next month for the new president for NTI. I just want to put that on the record.
I have heard about the agreement for a long time. How many went through the department? I heard every department went through the negotiations for the money. Can you give us an idea of how many departments went through the negotiations? I heard some of the departments have been saying that it is not their responsibility, that other departments are responsible. Is that true? They have been negotiating for the last four or five years.
Mr. Fenge: If I understand the question correctly, you are suggesting that there are departments that are passing the buck.
Senator Adams: Maybe start with INAC; INAC say they have nothing to do with it. Other departments, Fisheries and Oceans Canada or Parks Canada, say that they have nothing to do with it.
Mr. Fenge: I stand to be corrected by my colleagues, but I do not believe that that is the issue. It is not necessarily buck-passing. Departments operate according to their policy objectives. Many departments have yet to understand the comprehensive land claim agreements provide for constitutionally entrenched rights and benefits and that they override departmental policy. We need a strong, coordinative presence — and we are suggesting in the Privy Council Office — to make departments realize this and to break out of their individual policy boxes. It is not just a question of buck-passing. It is a question of welcoming and assuming responsibility.
Senator Adams: In the meantime, we need the money because the Government of Canada has something to do with employment, too, for Inuit to get more jobs. Instead, the Government of Canada says that they look after all those birds, seals and whales and that they do not need the Inuit to look after those.
When I was up in Nunavut last week, we heard the budget debate. People are getting a bit fed up with some of the questions, especially when they talk about polar bears dying off because of climate change. It has nothing to do with that. I hear from people in the North that they see more mammals up there than they had before. The Inuit understand more about looking after the future and managing things up in Nunavut, in the North.
Mr. Eetoolook: Often, when we deal with the Government of Canada departments, we have to educate them first, although I feel it is the government's responsibility to teach their departments about the Nunavut land claims. In many cases, however, we go through hardship in trying to implement the Nunavut land claims.
Mr. Campbell: This is perhaps worth mentioning because you spoke about peoples' livelihood and so on. One important area is Article 24, which deals with government contracts. The Government of Canada has basically failed to come up with a policy to implement Article 24 in a consistent way. There is one good counterexample to that, and that is National Defence for the cleanup of their Distant Early Warning Line sites — or DEW Line sites — in the North. Consistent with Article 24, they have negotiated with NTI. Under that agreement, they have secured more than 70 per cent Inuit employment and more than 70 per cent Inuit contracting dollar value. For some reason, other government departments find this a difficult route to take. National Defence has not found this difficult at all. It is a good example of how it could be done.
Senator Hubley: We are dealing with the question of who has the responsibility to implement these ongoing issues pertaining to the land claims. It was suggested that this should be the Privy Council Office. Will that answer all of the problems that we are facing? Should we have funding lines and timelines to try to solve some of these issues? There seems to be a disconnect between government departments.
Mr. Fenge: The system in Ottawa, as you know better than us, is very slow-moving. In putting our recommendations together, we tried to figure out how to get it moving. We believe much more senior coordination is required. From our perspective, it makes sense to take it out of a peripheral agency, where it was dying, and put something into the Privy Council Office.
We know, as well, that for the system to move, it must be prodded constantly. The Auditor General reports are a method of prodding. The other major recommendation that we suggest is to establish this commissioner of modern treaty implementation. There are plenty of models out there in terms of commissions and commissioners. No matter what we do, there will always be problems in terms of getting the system moving. We brought to you a coordinative recommendation and a commissioner of modern treaties recommendation as a prod. We feel both of those recommendations go together.
Senator Hubley: Concerning a timeline, in this day and age, should we be able to put a reasonable time on the completion of certain issues pertaining to implementation?
Mr. Campbell: Some of those timelines in the agreement have not been realized. Yes, it is good to put timelines there, but by themselves, they are not enough.
A good example is the timeline put in 1999 for the creation of the Government of Nunavut. That was legislated and it happened, but that was somewhat of a unique circumstance, and it had much high-level political will behind it. Therefore, it happened. Things that are lower down in the system do not get so much attention, and it is very difficult to move those along.
There is a problem with the whole financial appropriation processes relating to claims implementation that must be dealt with.
Senator Peterson: It is my opinion that INAC is dysfunctional as a department and appears to be more representative of the problem rather than the solution. In that view, your suggestion of a commissioner of implementation who had some authority may be the answer to lead us out of these endless discussions on trying to get matters resolved.
I feel we should recommend that, Mr. Chair, and I feel you should pursue it as well.
The Chair: Thank you, honourable senators. Mr. Eetoolook summed it up when he said that we cannot rely on INAC to conduct the orchestra; we need a new conductor. Somewhere along the line, I believe the deputy minister, when he appeared before us, indicated there was trouble with keeping the orchestra flowing smoothly.
Unfortunately, time is our greatest enemy. We have another group of presenters. We thank you for taking the time to be with us, traveling this far and for your excellent, straightforward presentation. It was an honour to have you here. Thank you.
We have before us now representatives from the Grand Council of the Crees. We have Brian Craik, Director of Federal Relations; and Bill Namagoose, Executive Director.
Gentlemen, welcome to our committee. Thank you for taking the time to appear before us. Hopefully, you will be able to enlighten the committee and answer some of the questions that committee members will have after your presentation.
The senators are certainly interested in resolving and improving the implementation process of our comprehensive treaties signed by the federal government.
Mr. Namagoose, you have the floor, sir.
Bill Namagoose, Executive Director, Grand Council of the Crees: Thank you for inviting us to appear before you today. I will be brief in my comments as I believe you want to ask questions.
The James Bay and Northern Quebec Agreement was signed in 1975 following an out-of-court settlement after our successful contestation, in the Quebec Superior Court, of the construction of La Grande hydroelectric complex. While the decision of our injunction was later over-turned by the Court of Appeal, the recognition of our rights raised questions that led to our negotiations with Canada and Quebec. It has contributed to the rationale for the round of modern treaty making in Canada.
In 1975, the Cree and Inuit of Northern Quebec, Canada and Quebec signed the James Bay and Northern Quebec Agreement. In 1982, the Cree and Inuit rights in the James Bay agreement were protected by the Constitution of Canada. Among others, the agreement contains sections about Inuit and Cree rights on the legal exchange, eligibility, lands, hydro dams, local government, regional government, health and social services, education, police and justice services, environmental protection and future development, hunting, fishing, trapping, compensation and taxation, economic and social development, and also an income security program for the Cree hunters and trappers.
In 1986, the federal government removed the possibility of including health and social services, education, justice, police services and other programs with respect to training and community development programs in land claim agreements.
The Crees were criticized in 1975 by many Aboriginal groups in Canada for having signed an agreement with Canada and with Quebec; thus in some manner, they thought, weakening the relationship between Aboriginal peoples and the imperial Crown. We were, however, trying to get into Canada on terms that were best for our people.
We had seen the health services that Canada provided to our people through the Moose Factory hospital and through the nursing stations that we had in the communities, and we compared them to the offer of modern health and social services that Quebec offered, and we have not looked back since then.
The same thing happened in education. Our federal schools were in poor shape and run by people who, for the most part, had little commitment and knowledge of the communities. The provinces were involved and had high standards for health, social services and education, whereas the federal government took a minimalist approach, seemingly in the hope that the Aboriginal problem would go away. As it turned out, we experienced an immediate improvement in services from what they had been. However, even with Quebec, it still took a number of years to get significant application of provincial standards. With Government of Canada, it was worse.
Five years after the agreement was signed, federal officials were pretending that the implementation of the James Bay and Northern Quebec Agreement would cost a couple million dollars more to implement. By 1980, our communities were suffering from Walkerton-type epidemics. People were dying as a result. We lobbied Ottawa and, in 1982, a federal report on the implementation of the James Bay and Northern Quebec Agreement was resolved. This effort resulted in water and sewer systems, airports for our remote communities, renovation of the former federal, now Cree, health board nursing stations and, in 1984, resulted in the passage of the promised Cree-Naskapi (of Quebec) Act and a resultant tripling of operational and maintenance funding.
We still lacked housing. The federal government had not invested in policing and justice services. Much-needed, promised training money was not supplied. Economic development initiatives were unfunded or under-funded. When our people heard of the new demand from Quebec, in 1989, for more dams, they balked, as part of the 1975 agreement had not been delivered. As a result, our people were not ready for more dams. We fought an international campaign for six years that resulted in the end of the proposed Great Whale hydroelectric project and the NBR projects. The diversion of seven major rivers was averted, and 12,000 square kilometres of land was saved.
In 1994, Quebec and the Cree started discussions to renew our relationship. Why did we do this? Neither of us was going anywhere, so we had to find a way to live in peace. After six years of discussion, our people would not accept any more hydro projects as Hydro-Québec and Quebec proposed, even if the flooding was only a few hundred square kilometres. The problem was that the proposed involvement in this economic development project still did not complete Quebec's obligation to the Crees in the James Bay and Northern Quebec Agreement.
After more discussion, in 2002, an agreement was proposed to the people. In it, Quebec committed to fulfil its James Bay and Northern Quebec Agreement obligations for 50 years in return for the Cree's accepting of the Eastmain-1 and Eastmain-1A projects. In spite of vociferous opposition in the Cree camp, after a referendum in which a majority of the electorate participated, the result of the secret ballot was 70 per cent approval. The agreement gave the Crees an indexed $70 million per year, with which the Crees would decide their priorities for the implementation of the standing obligations of Quebec to the Crees.
Throughout the period from 1986 to 2002, we negotiated with six different federal negotiators for the federal implementation of the agreement, without result. In 2002, the agreement with Quebec did, however, set a clear and public standard for the implementation of the often joint obligations of Quebec and Canada to the Crees. Once again, with a new federal negotiator, we undertook negotiations. The result was that the basic model of the agreement from Quebec would be used for a comparable annual amount of money over a period of 20 years this time, and, once again, the Crees would decide the priorities for implementation.
There are two differences in the federal agreement. The Cree allocation of funding over the period of 20 years on the federal obligations will condition the allocation of funding for the renewal of the agreement. The agreement contains a significant initiative that recognizes the Cree Nation government, and the designation of certain federal responsibilities to be followed by a set of negotiations involving the Cree, Canada and Quebec will further develop the Cree regional government.
The funding from the Canada-Cree new relationship agreement will involve a cash payment of $1.5 billion, plus another $100 million when Royal Assent is given to changes already agreed to with the government through the Cree- Naskapi (of Quebec) Act. A third payment of $200 million will be made when Royal Assent is given to Cree Nation governance legislation, to come probably in three to five years. A further $50 million is provided in April 2008 to settle issues surrounding three community issues. For all this, the court cases against Canada were withdrawn and, together, we set out on a new footing for the future.
In 1975, we were 6,500 people. Today, we number over 17,000. In 1975, the territory was undeveloped. Today, it provides over half of the electricity produced in Quebec. Moreover, the territory has nickel, gold and diamond resources under development. We are readying ourselves to seize the moment — employment for our people in resource development, institutions for services and to the governance of the territory. Over 90 per cent of our people still speak the Cree language, and 95 per cent of our people still live in the Cree communities. We have the lowest rate of suicide among Aboriginal communities in Canada, and about the same rate for Quebec. Our employment rate, while variable, seems to be about 80 per cent most of the time.
Thank you for allowing us to speak today.
Senator Segal: What do you feel is the most profound rule of the road in dealing with government that you have learned through the experience of this agreement? What is the most fundamental aspect that you feel has worked for you in getting the agreement executed in those areas where you believe it has been done appropriately by government; and what do you feel has worked against you in that process? That would be of immense help to this committee.
Mr. Namagoose: We signed the James Bay and Northern Quebec Agreement in 1975, 32 years ago. In that agreement, there is an exchange clearly for massive hydroelectric development in our territory, which had tremendous repercussions on our way of life, culture and the environment. That was the exchange.
In order for governments to listen, Quebec and Canada, we had to oppose development in the territory. We had to stop hydroelectric development, which caused great economic damage to Quebec. There was about $20 billion of export contracts lost by Hydro-Québec for the sole reason that they did not respect the James Bay and Northern Quebec Agreement. We were not included in economic development, which was stipulated in the James Bay and Northern Quebec Agreement. Canada did not provide training and education, money for job training and job integration and development. Our perception was that Canada wanted the Cree out of the development. Quebec and Canada wanted the Cree out of the way.
We had to assert ourselves, our rights and out treaty. That is the lesson that we learned. That agreement is called the peace of the brave. In order to have a peace treaty, I guess we have to have war. We were at war — economic war — with the Quebec government over development at a great cost to us and personal cost to many of our leaders. That seemed to be the strategy that worked for us.
We were willing to negotiate a fair and equitable solution that would not abrogate, cap or in any way denigrate our treaty rights.
Senator Segal: In terms of the references you made to economic and other development for members of your First Nation, what have been the most significant steps ahead over the last 32 years; and what are the most grinding problems not being satisfied at a pace that would satisfy you?
Mr. Namagoose: The federal and Quebec governments took the minimalist approach. In 1975, Quebec took the position that they were not responsible for Aboriginal people and that it was federal jurisdiction. The federal government said that they did not have the capacity or the budgets, and so on.
Much of our economic development came when we used our own compensation money to at least develop the communities. We got small injections of funding from the federal government; a minimalist approach. That was part of the economic development.
With the James Bay and Northern Quebec Agreement, we were supposed to be part of the development of the territory, yet Canada and Quebec did not provide the funding for job integration, training and access to the territory. They took the position that Canada and Quebec are the developers and that the Cree should stay on Category I lands.
We wanted to be integrated into the territory. We did not want to be corralled on to reserves within our territory. We are the majority population in Northern Quebec, an area the size of New Brunswick. They cannot set aside and leave the Crees out of the development. We have to be participants in it.
It was only seven years ago that we and Cree Human Resources Development, CHRD, signed an agreement with Canada on job implementation, training and integration into the territory. It was very successful. We created 1,200 jobs with that agreement in the territory, where we subsidized telecommunication, forestry, hydro and forestry operation companies to hire Crees and train them while providing them with a subsidy. That has been very successful. Can you imagine if we had done that in the 1970s?
Brian Craik, Director of Federal Relations, Grand Council of the Crees: Most importantly, we have eventually worked out good relations with Quebec. As a result, we have a school board that is up and running very well, and the same goes for the health board.
Quebec is in this with the Crees for the long term. They want to see improvements in services and all around. Again, it is important that Quebec is in this with the Crees — the Crees are making the decisions mostly, but Quebec is involved — with the future in mind.
As Mr. Namagoose said, the investments in employment have been important. People want to be employed. The Crees want jobs, and there are many young people coming up looking for jobs. Because the rate of population growth is very high, it is very important that the Crees get these people into jobs as fast as possible. We have worked not only with Cree companies but also with non-Cree companies, francophone and larger multinational corporations that are in the territory. These companies are interested in having a good labour force and a local labour force.
We have worked out agreements with the Troilus Mine. We are working with Goldcorp Inc. right now on another proposal, which will see Cree workers as a major part of their workforce. There are other mining companies in the territory, not to mention Hydro-Québec. We have long-term agreements with Hydro-Québec for Cree employment.
Senator Dyck: To follow up with the questions that Senator Segal was raising, I understand that you have had a great deal of success, but it has taken a number of years. From the material that we have been given, it looks as though you started a litigation process in the 1980s, fairly soon after the James Bay and Northern Quebec Agreement was signed, in about a five-year period. In that sense, it sounds as though you circumvented going through Indian and Northern Affairs Canada by taking the litigation route early on. Is that a correct interpretation?
Mr. Namagoose: We signed the James Bay and Northern Quebec Agreement 32 years ago and took litigation 19 years ago. That is a citizen's right to go to court, when he or she feels his or her rights have been violated. However, the federal government sometimes takes the position that they will not negotiate with people if they are suing them. We have heard this many times, yet we refused to withdraw our litigation. At the same time, we still negotiated. The federal government would never say that to a major corporation, yet they do that to many Aboriginal groups across Canada. Therefore, the result of the court is denied. In our case, we pushed ahead.
We have a relationship with the Quebec government, and there is much history there. We have political leverage with Quebec because Quebec and Canada signed the James Bay and Northern Quebec Agreement.
Senator Dyck: Would it be fair to say that part of the reason for your success in actually getting funding in the supplementary estimates in the new budget was the fact that you had gone through the courts rather than trying to continue to work with INAC?
Mr. Namagoose: Yes, it was a great impetus to the agreement we had signed and the court case. We advised people that they have to protect their rights. Use all the institutions of democracy to protect your rights and advance your cause and the rights of your people.
Senator Dyck: It sounds as though you had the wisdom to find what your bargaining tools were. You were saying that it was the blockade of the hydroelectric dams, and your territory is also very rich in resources. Those were your bargaining strengths.
Mr. Namagoose: We did not blockade anything. Our blockade was in the courts.
[Translation]
Senator Dallaire: Regarding the Paix des braves agreement, it is true that you need peace in order to negotiate, and there is no doubt that there was no peace during the period we are referring to, namely in 1993 and 1994.
I was the commander for the entire Quebec sector in 1995 and 1996, and I clearly recall that there were security concerns while the peace negotiations were going on and people feared that there might be violence. Do you think that the situation could have escalated if your conflict with the province of Quebec had not been resolved?
Mr. Craik: That is hard to say. But you cannot deny the fact that the Cree have always defended their rights publicly. They have always held that they should inform the public of their situation when defending their rights. Many Quebecers and Canadians were sympathetic towards the Cree and their fight to defend their rights.
We always did so with the greatest respect for Quebecers and the Government of Quebec. After we won a small battle in the Great Whale conflict, Hydro-Quebec's lawyers came over and congratulated us.
Senator Dallaire: I remember that.
Mr. Craik: That is because we fought honourably.
Senator Dallaire: I asked the question because at that time things may not have been quite as calm as you suggest in your description. I am pleased that the situation was resolved without the need to resort to action which could have involved damage to infrastructure, or other damage.
Turning towards the future, there is a lot of pressure to develop nuclear energy in order to avoid flooding half of Quebec, which is what would happen if Ontario's electricity needs increased. How do you see the future 20 years from now, when certain provinces will need even more hydroelectricity?
Mr. Craik: It is hard to see that far into the future. The Cree never vandalized infrastructure belonging to the Province of Quebec or to Hydro-Quebec. At the time, there was a group in southern Quebec which vandalized Hydro- Quebec's towers, or it may have been its power lines in the south of the province. For a brief moment, the Cree were suspected, but it was proven later that it was a small religious group in southern Quebec which had done the damage.
As for the energy future of Quebec, the Cree are discussing this amongst themselves; they are thinking about developing several wind power projects, since there is a huge potential for this type of energy in northern Quebec. In fact, there is a community today which is working on a 500 megawatt wind power project; so that is a possibility. There may be other possibilities in northern Quebec, but we have not talked about them yet. The Cree are involved in the construction of the Eastmain-1-A project, but we have not thought about what comes after that.
[English]
The Chair: My question is to all of the witnesses. You were here when NTI made their representation. In their presentation, they were advocating a commissioner of modern treaties and establishing a bureau in the Privy Council Office. I have sat on this committee for the past 14 years, and the Cree and Naskapi have appeared before us previously in their frustration of trying to establish implementation of the treaty that they signed in 1975.
In a nutshell, do you see the recommendations of NTI as a possible assist in the implementation process?
Mr. Namagoose: In our experience with the implementation of the James Bay and Northern Quebec Agreement, the federal government tried to use their existing systems to implement it, and that led to failure. When we signed the James Bay and Northern Quebec Agreement, they wanted us to deal with the regional office in Quebec City. Those are district offices.
However, they insisted that the James Bay and Northern Quebec Agreement implementation be conducted out of Ottawa, not the headquarters. They established what they called a James Bay implementation office here in Ottawa that deals strictly with the Cree and the Naskapi Inuit that signed the James Bay and Northern Quebec Agreement. That has helped because it is in the neighbourhood of the Treasury Board and central agencies.
However, we would support enhancing that with a commissioner or an office with powers to implement or to inquire on the lack of implementation of agreements.
Sometimes it is not the structure; sometimes the will is lacking. We experienced with our treaty that the reason it took so long to negotiate an agreement was the federal government's position with respect to treaty rights. We understand that the federal government wants to terminate treaties. There is a treaty-busting mentality in the bureaucracy.
For example, in our treaty, we have a provision for community centres to be built in each community. INAC's position is that there should be only one community centre built for each community and that would be it, so that treaty obligation is terminated.
Our perception is that community centres should be built for each generation in a perpetual nature, and we would negotiate the lifetime cycle of a community centre. We believe every generation of Cree is entitled to a community centre. It is not a one-time obligation. It is a perpetual obligation. That is why it took so long to come to an agreement, because we want to preserve the perpetual nature of the treaty for many generations.
No matter what type of structure is put into place, if the will is not there to implement the treaty and to respect the treaty rights, and if the position of the collective bureaucracy is to terminate the treaty, then it will not work. It is the respect of the treaty and the perpetual nature of the treaty that is most important.
Senator Dallaire: Are you telling me that when they were discussing issues in the example you provided, that in their perception it was a one-time affair and that they would not be held accountable for the operations and maintenance, upgrades and future replacement of that down the road; in fact, it was a one-time shot, and you would absorb the costs in later days?
Mr. Namagoose: Yes, that is the position we recognized as being tabled.
Senator Dallaire: That is what they were proposing? That is how they saw the implementation fee?
Mr. Namagoose: Yes, that is correct. As another example, the Cree Trappers Association put in front of us a five- year agreement to implement the James Bay and Northern Quebec Agreement, and it said that at the end of that time that this would fulfill such-and-such a section. ``Fulfilled'' means it is done. That is it; we cannot return from that.
That is the trouble we ran into, and that is what we fought against in the negotiations.
Senator Dallaire: This reaffirms that these departments are not putting into their funding base the requirement ad vitam aeternam of their operations, maintenance or upgrades of these implementation processes. It is as if they throw some cash at it and hopefully it will go away versus it being part of the fundamental cash line of the annual budget that they submit from their department to government. Thank you very much for that clarification.
The Chair: Personally, as one who has sat on this committee for years, I feel there is no way one can legislate honour. The honour of the Crown will either be there, or it will not. It is our responsibility as senators to ensure that the honour of the Crown is fulfilled and the fiduciary responsibilities live up to it.
Senator Segal: I agree with your comment except to say that there is a contractual or a statutory deficit. In other words, there is a law that says that certain measures must happen. Treaties are signed that require, by contract, that certain measure must happen. Then there is government policy, which seems to, on an administrative basis, move as slowly as possible to avoid fulfilling those measures because they are under central agency pressure on finances, or because they have decided a new government has come in and has different priorities.
However, those deficits continue, and they are real. Probably no single group of Canadians have suffered from those deficits more directly than our First Nations, although we could make lists of others who are governed by statute where the department has decided not to actually execute that part of its act, even though it is governed by that act. That is a more general problem. However, the extent to which our First Nations fellow citizens are elevating the question, both by legal action and by other actions, allows us to get into the question more substantively on an ongoing basis.
Senator Banks has often made reference to his simple legislative idea that laws passed by both Houses of Parliament but not signed in or proclaimed, at some point someone should have to tell us why. This is in that same category.
I do not believe it is wilful, although, in some cases, it may be that public service is simply hoping that we will forget or will not apply pressure sufficiently. Sadly, over history, they actually have not been wrong. Our pressure application has been sporadic. The chair's comments are spot on, and I appreciate them very much.
The Chair: Thank you. If there are no other questions at this time, I would like to thank the witnesses for having presented here this morning. Mr. Namagoose, you did an excellent job, as did you, Mr. Craik.
If there is anything else you feel you can contribute as the process continues, do not hesitate to make the committee aware of any new ideas that may surface as more witnesses appear before us or as you sit down and analyze the proceedings here today. With that, I thank you again.
Honourable senators, I do not believe there is any other business at this moment. If not, we are adjourned until tomorrow, when we will have the Nisga'a Nation before us.
The committee adjourned.