Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 7 - Evidence - Meeting of March 12, 2008
OTTAWA, Wednesday, March 12, 2008
The Standing Senate Committee on Aboriginal Peoples met this day at 6:20 p.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.
[English]
Marcy Zlotnick, Clerk of the Committee: Good evening, honourable senators. Unfortunately, the chair and deputy chair are unavoidably absent tonight. As clerk of the committee, I must preside over the election of an acting chair.
Senator Dyck, would you like to nominate someone?
Senator Dyck: I would like to nominate Senator Hubley.
Ms. Zlotnick: Are there any other nominations?
Seeing none, it has been moved by Senator Dyck that the Honourable Senator Hubley be acting chair of this committee until the return of Senator Sibbeston or Senator St. Germain.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms. Zlotnick: Senator Hubley, I invite you to take the chair.
Senator Hubley (Acting Chair) in the chair.
The Acting Chair: Good evening, colleagues and invited guests. We are ready to begin. This evening we are carrying on with our study of the implementation of comprehensive land claims. To assist us in our work, we will hear the testimony of Mr. Raymond Chrétien, Partner and Strategic Advisor, and Ms. Anne Drost, Partner, both from Fasken, Martineau, DuMoulin LLP in Montreal.
I would like to introduce our senators this evening. We have Senator Dallaire from Quebec, Senator Nicholas New Brunswick, and Senator Dyck and Senator Peterson from Saskatchewan.
In August of 2004, Mr. Chrétien was appointed Chief Federal Negotiator by the Government of Canada for the negotiations. With the assistance of a team at Fasken, Martineau, DuMoulin LLP, Mr. Chrétien's mandate included undertaking negotiations with the Grand Council of the Crees of Quebec aimed at implementing the James Bay and Northern Quebec Agreement and settling related litigation. Such negotiations included issues regarding First Nations governance, out-of-court settlement, treaty implementation and alternative dispute resolution mechanisms.
In 2007, the Government of Canada and the Quebec Cree came to an agreement respecting the implementation of federal obligations. We are eager to hear more about the negotiation process, both in terms of its challenges and the reasons for its success.
Mr. Chrétien, I invite you now to proceed with your presentation, which will be followed by questions from the senators.
[Translation]
Raymond Chrétien, Partner and Strategic Advisor, Fasken, Martineau, DuMoulin, LLP, as an individual: Thank you very much, Chair, for inviting us to discuss this matter. I am accompanied today by Ms. Anne Drost, from our firm, who was very actively involved in the negotiations with the Crees of James Bay.
[English]
I am aware that Bill Namagoose and Brian Craik of the Grand Council of the Crees made a presentation to you. Therefore, I will not repeat what you have already heard about the Cree federal negotiations and the James Bay and Northern Quebec Agreement.
As requested, I will focus my remarks on the following four points: first, the problems with the implementation of the James Bay and Northern Quebec Agreement; second, the scope and flexibility of my negotiation mandate; third, the relationship with the Minister of Indian Affairs and Northern Development, the minister's office, other departments and other officials during this negotiation; fourth, the mechanisms in the new relationship agreement to avoid future disputes and to facilitate implementation.
First I will discuss the problems with implementing the James Bay and Northern Quebec Agreement. Bill Namagoose presented the history of the James Bay agreement and also its implementation problems. I will not repeat that. It should be noted that many of the provisions are being implemented and were not at issue. The problems with the implementation involved several provisions dealing with the administration of justice, employment training, economic and community development.
As an example I will read one provision of the agreement that helps to understand why implementation was indeed very problematic. Let me read you section 28.11 on community services:
Subject to the extent of financial participation possible by Canada, Quebec and the Cree communities and to the priorities mutually agreed to by the interested parties at the time annual budgets are discussed and prepared, Quebec and Canada shall provide funding and technical assistance for:
(a) the construction or provision of a community centre in each Cree community;
(b) essential sanitation services in each Cree community.
There are many conditions in this section and the wording is somewhat ambiguous. In order to resolve the implementation problems, we did not dwell on what the clause meant or who was at fault. I did not take an adversarial approach during this negotiation but instead took a practical, problem-solving attitude.
We collectively recognized the problem and found the best approach to resolve it, which was to transfer the responsibility to the Crees along with the resources needed to implement according to their priorities. The Crees will determine what is required to meet these provisions.
The lesson to be drawn from my experience may be limited as we were dealing with a particular situation — implementation of treaty provisions over 30 years later. I understand that you are interested in implementing up front and ensuring that a treaty is ``implementable.'' Certain lessons can be drawn from the James Bay and Northern Quebec Agreement and from our new agreement: Be concise in drafting and, if an obligation is joint between the provincial and federal government, seek clarity as to how this will work in practice. The other key is to include timelines, where possible. More generally, I think the approach that we took is in the right direction, as the implementation of the agreement will be largely carried out by the Crees themselves.
Second is the scope and flexibility of my mandate. I understand that the issue of mandating chief federal negotiators is a big problem. I heard about this at the January meeting of chief federal negotiators held by Minister Strahl here in Ottawa. In my case, I had a well-drafted mandate, but this was a particular situation. The treaty had already been signed — 32 years ago — so we knew what the outstanding issues were. We knew what we had to resolve.
However, even with a well-drafted initial mandate, we did need to return to cabinet to revise my mandate in order to reach an agreement. This took a great deal of time and tested the political will. We were successful in keeping the Crees at the table during months of waiting. Indeed, some were very surprised that we managed to maintain the Crees' presence and their trust throughout these many months.
Speaking of political will leads me to my third point, my relations with the Minister of Indian Affairs and Northern Development, his staff, other departments and officials at various levels working at Indian and Northern Affairs Canada, INAC. From the outset, when I was given my mandate by Minister Mitchell, I indicated to him that I was not interested in a 10-year negotiation leading nowhere. I told him I would do my best to work quickly and would need his support all the way. Three ministers followed: Mr. Scott, Mr. Prentice and Mr. Strahl, who signed the agreement on February 21.
Minister Prentice and his chief of staff were very much involved and instrumental in our reaching an agreement. Minister Prentice was at INAC at a critical point when we were nearing conclusion of an agreement and we needed his support. We could speak with his chief of staff, Jean-Sébastien Rioux, daily, as often as we wanted, and eventually Minister Prentice got cabinet approval.
Over the three years, I also regularly wrote to or met with other ministers who had an interest in the negotiations: the Minister of the Environment, the Minister of Justice, the Minister of Human Resources and Social Development and all of the ministers on the cabinet's Operations Committee. I kept all of the key ministries informed of our progress throughout, and I sent the key documents signed at the negotiating table to the different ministers. I have provided you with a copy of a report that summarizes this approach in our negotiating strategy.
At the same time as communicating at the political level, I worked closely with the officials at INAC, those assigned to the negotiations and the higher level officials, Michel Roy and on occasion Michael Wernick. We also had a high- level INAC steering committee established specifically for these negotiations, and I always consulted with this committee as we progressed in our negotiations.
This two-pronged strategy — direct communications with politicians, especially the minister but also with the PCO and occasionally the PMO, while working with the bureaucrats — was, I think, key to our success. However, it was not always popular with the bureaucrats, although it did work.
Another key role in our negotiations was to conduct the internal communications with the central agencies of government. This is a big, difficult job, and it is critical that the person who has that responsibility be very capable. The internal communications are not normally the chief federal negotiator's job. In fact, the central agencies did not want to see me or have direct communications with me. We were fortunate because the person who ran with the agreement inside, Guylaine Ross, was very good and she got the job done.
Another issue to point out regarding working relationships between external chief federal negotiators and the government is that there is, unfortunately, a great turnover in the government. During that negotiation, I had to work with four different ministers and three different federal directors during the three years. We were told that we achieved this result in record time at record speed. It is interesting. Quite often I felt criticized by the bureaucracy for moving too fast, while lawyers in my firm thought I was moving too slowly, so we must have done it at the right pace.
Imagine the turnover of staff for those long, 20-year negotiations that many of my chief federal negotiator colleagues are working on. This is very difficult, as each new minister and each new director has to learn about the file and has to fit in with the existing negotiating teams.
[Translation]
My fourth and last point is with regard to the conflict resolution mechanism.
[English]
The new relationship agreement provides for a standing liaison committee made of three members from Canada and three Cree representatives. These are high-level officials. This committee will meet with the Quebec Cree committee at least once per year. This is a forum to ensure that the agreement is implemented and that disputes are resolved before they grow. We also have provisions for mediation and arbitration.
[Translation]
I am pleased to see several colleagues and friends around this table. I welcome your questions.
[English]
The Acting Chair: Is there anything you would like to add, Ms. Drost, to the debate this evening?
Anne Drost, Partner, Fasken, Martineau, DuMoulin LLP, s an individual: I welcome the questions as well, and I will assist in answering them. Thank you.
Senator Peterson: Thank you to the presenters. We hope you are on the right track here because it goes back a long way. We have many others that were before us.
I am interested in knowing why you think this new negotiation will work and how long you think it will take to implement this agreement under the new agreement. Give me your best guess.
Mr. Chrétien: First of all, what proof do we have that it will work? That we were able to resolve the dispute of the last 30 years and that we were able to be far more precise now about the obligations of each party will be a positive development in this regard. It augurs well for the future.
Also, a big difference is that for the next 20 years, the Crees will have the resources and the money to do their own economic and community development and their own training. The ball will be far more in their court than it has been before. The relationship will be totally different than it has been in the last 30 years.
My worry and their worry is that it is a huge amount of money and it is not paid over 20 years. It is paid up front, $1.05 billion right up front. I am sure that they have to be worried about how this will be carefully managed in a volatile economic environment. We will see. The proof will be later on in this period of 20 years.
I think that also a much better respect has been established between the Crees and Ottawa. There was a lot of bickering between the Crees and the federal bureaucracy when we started. As we ended this process, I found there was a much better spirit. That is why we call it a new relationship, but we will see. Nobody knows with precision what it will be.
Senator Peterson: Should an entity other than INAC administer this?
Mr. Chrétien: I know that is being talked about. I have no strong views about whether a new entity is required. I can tell you that the present department worked with us. We were able to do our deal with the present entity. Whether you could have a better one or a smaller one, a new department or a new centre, the key is making sure that there is good coordination and that all the departments involved work together. That will be difficult under any institution that you might wish to create.
For us, it did work well at all levels. At times there was a danger that they would see us in Montreal as the other gang. They thought that I was being too candid with them, that I was opening up our game more than they would have liked. However, I wanted to do this negotiation my way. When I accepted this mandate from Minister Mitchell, I was candid. I said, ``Minister, if you appoint me, be careful. It will be different; it will be fast and it will be transparent.'' It created some problems with Ottawa. They were not used to this kind of approach. However, it did work.
[Translation]
The matter was dealt with to my complete satisfaction.
[English]
The four ministers, certainly the first one who gave me the mandate and the last one, Minister Prentice, kept that. Minister Strahl went on to implement the deal, but it was dealt with in cabinet by Minister Prentice at the time. Their will never wavered. Whenever I needed them, I could get them on the phone. Therefore, I have no criticism to make towards the department. I know that many of my colleague chief federal negotiators do not feel the same way, but for us it was all right.
Senator Segal: It strikes me that Her Majesty was fortunate to have you as chief negotiator acting on behalf of the Crown, and I am appreciative of the time you have set aside to help us learn from that experience.
Could I ask you to step back for a moment from the specific negotiation, which obviously was a triumph for both sides, which is evidence of a superb negotiation. Based on your own international and other broad experience, could you reflect on how we are doing as a country with respect to our First Nations as compared to how our Commonwealth brothers and sisters in New Zealand or elsewhere are doing. Are we doing what we should be doing, moving at the broadest possible pace, or do you think there are still some lacuna that are slowing us down? From the point of view of a layman, which would be my perspective, one gets the sense that the problems that are festering and not being addressed — this is without regard to who happens to be in office at any one time — are still larger than we need to have. This committee is looking for ways to provide some impetus for more rapid resolution of these difficulties, which is why we are so delighted to discuss this particular experience, because it is so hopeful. However, we do not want the encouragement of this experience to cloud the larger problem, which we know is out there.
Mr. Chrétien: This is a huge issue. I do not know the specific case of New Zealand, but let me give you a few comments in answer to your question. This has nothing to do with our own negotiation with the Crees, but in Canada right now there are hundreds of land claims going on, if my memory is correct. There are still 800 claims to be dealt with. My worry is we will never see the end of this, and more and more are going to court.
As you know, the Crees were suing the federal government for $4.5 billion; it went on for 20 years, and they felt that they had a strong case. My worry is seeing other groups take the same approach, thinking that is perhaps the only way to get Ottawa's attention.
I do not know what I would do if I were the Minister of Indian Affairs and Northern Development today. There are issues around abolishing the Indian Act. I do not feel qualified to talk about that. Ms. Drost is stronger when it comes to the rights of Aboriginal peoples.
Ms. Drost: To follow up on the 800 pending claims, all may not be land claims, but we were told that they are outstanding claims the government has. On average, 10 claims are settled per year, and it takes 13 years to settle them. Clearly, we cannot go on at that rate because there is no end. I would hope the new tribunal being created, where there is a three-year term, will help get some of the smaller claims settled quickly.
I cannot really speak to New Zealand or the U.S. I suppose New Zealand may have a smaller problem than Canada. The problem in Canada is vast.
Mr. Chrétien: I would like to comment on the U.S. because I lived there for seven years. There is a huge difference between Canada and the U.S. when it comes to the attitude towards and treatment of Aboriginal peoples. Many may not agree with me, but I find that in Canada we have a much higher degree of sensibility and sensitivity towards the plight of indigenous people than is the case in the United States. Whenever I have travelled in the U.S. and talked to Aboriginal people in various parts of that huge country, they have never given me the impression that they had the attention of their governments — not only national government but state government — the way it seems to exist here in Canada. The collective Canadian conscience is far more attuned to the needs of our indigenous population. However, with regard to New Zealand and Australia, I could not tell you.
Senator Segal: We often hear First Nations leaders taking different views about the best way ahead, as would be expected from any group of Canadians. First Nations people are no more monolithic than non-Aboriginal Canadians are. One group feels strongly that it is about land claims and constitutional right to self-government and that giving any quarter on that, or even postponing those kinds of concerns, is a huge strategic and tactical error for First Nations, legitimate, drilled-down interests.
Another group argues that it is about jobs, opportunity, social integration, economic equality of opportunity and education and that if we were to focus half the collective energy from both the Aboriginal side and the non-Aboriginal side that we put into land claims on these other issues instead, we would achieve far more dynamic progress for people as human beings making their way as First Nations Canadians who want some progress for themselves and their families.
There is a mix of measures in this agreement, which I think is very encouraging in many respects. Can we learn anything from this particular process about the argument, which has good people on both sides — those who want to work almost exclusively on the land claim and the self-government right versus those who believe we should be investing far more on the other side? We would like to do both in a perfect world, but if we had to make choices, what have you learned from this process that would help us?
Mr. Chrétien: First of all, our agreement was not a land claims agreement. It was a mixture. It was an out-of-court settlement and a governance preliminary report. The governance part will have to be dealt with over the next three to five years.
I will use the example of the Crees. I would situate the Crees in your second group, those interested in getting the economic means at their disposal to develop themselves and their group on all fronts, including education and health. Based on my experience over the last three years, I think that is their priority. However, they are also very conscious of their identity. That is why they want a regional Cree government. They want their own entity and their own institution run by them with as little interference from Ottawa as possible, to help their people.
I would put the Crees more in your second category but with still a strong interest in their background, culture and history. They call themselves the Cree nation. Remember, they are highly politicized and political. Remember the referendum of 1995? They took a very strong stand at that time.
They struck me as being one of the most articulate, developed Aboriginal groups in the country. They are after the means to develop their people more than the first.
Senator Segal: As a negotiator, you were clear about saying to the minister, ``Be careful; I will do this my way, how I think is appropriate.'' I am delighted the minister of the day had the good sense to let that happen; we have all benefited from that.
You would have had a series of instruments made available and constraints placed upon you as part of the negotiation. Without reflecting necessarily on this particular agreement, as a negotiator, would you have been better off if you had had a different range of instruments or fewer constraints? Can we learn anything in that regard going forward?
Mr. Chrétien: I will be very candid here. When I was first approached about this, I asked the minister of the day, ``Why would you even think of a guy like me? I know absolutely nothing about what you are asking me to do.'' His answer was, ``This is exactly what we want. We want someone with no background, a fresh look but something very different. We do not want a litigator. We have tried litigators in the past, always confronting the Crees. We want to try something else. We want a negotiator.'' I told that I know nothing about the rights of Aboriginal peoples, but I know something about negotiation. I said, ``If that is your desire, minister, I am your guy.''
All along, it came with benefits and weaknesses. When I first met the Cree team, and you met two members here, it was quite impressive. Anne Drost knew nothing, I knew nothing, and those four guys had 150 years of collective experience dealing with the Quebec government and the federal government. We thought we were just two amateurs. Slowly we got into it. We proceeded very systematically; we gained their respect, and we kept their respect throughout. They threatened to leave, and they threatened press releases, and I told them, ``Listen, it will not work. If you do this once more, I am out of this; you find someone else.''
It was a strange but very interesting experiment. When I started I thought that our chances of succeeding, when six previous negotiators had failed, were very slim. In the end, it was a combination of the political will and the trust factor. These guys were very surprised by my initial comments. I said, ``I do not know what you have been through in the past years, but I can promise you I will be candid; I will never mislead you.''
Of course, people in Ottawa were wondering what would happen later on but I never waivered from that line. Therefore, when it became difficult and intense, we thought the trust was still there, but they knew that I could deal with the bureaucracy at the political level, which had never been tried before. All the previous negotiators were dealing with a bunch of bureaucrats. It is great to do that but, in the end, it is the government of the day that must approve the deal. That created problems for me because they did not like me to send information to a bunch of ministers, always copying the Minister of Indian Affairs and Northern Development. I thought the ministers would have to approve the deal. It paid off, but it is not easy to submit such a proposal; it must be approved. It did work, but I do not know if it will be tried again in the future.
These negotiations were carried out in surroundings that were not always well organized. In our case, I had a prepared statement for each meeting with the Crees. It was so well prepared that I gave it to the leader of the Cree team at every meeting so that he knew exactly where we were going. We started by delineating what both sides wanted to achieve. We produced a statement of intent, which I signed with the Cree negotiator. Of course, in Ottawa they were flabbergasted by this. They were horrified, but it showed the seriousness.
Ms. Drost: We had the outline for an agreement. It went fast, but everything was documented. There was always approval before tabling anything with the Crees. We had the INAC steering committee. It was fast but it was rigorous and well-documented throughout.
Mr. Chrétien: There were minutes of every meeting, and normally that does not happen. It showed the seriousness, organization and commitment. I guess they were convinced, because in the end it did work.
Senator Segal: Was it commutative or hypothecated? Did you make a series of agreements and move on, or was it more the case that you do not agree to anything until you agree to everything?
Mr. Chrétien: No. We made small agreements all along and we never came back on those. The idea was always to progress. They were in writing and initialled by me and Bill Namagoose, Executive Director of the Grand Council of the Crees, whom you met here a couple of weeks ago. It forced the bureaucracy along.
Senator Segal: What should we conclude from the fact that a distinguished Canadian with international, nation-to- nation negotiating experience may be more successful than a domestic litigator in these kinds of discussions?
Mr. Chrétien: The proof is in the pudding. I guess it did work. I am pleased to report to this committee, in case you do not know, that since then Minister Prentice has asked a number of my colleagues now at the Department of Foreign Affairs and International Trade to tackle those files, using this example of negotiator as opposed to litigator. Hopefully, my colleagues will produce the same results.
This was a particular negotiation, just coming out of a huge deal with the Crees worth more than $3 billion. Quebec had solved their contention with the Crees, who were suing us for $4.5 billion. There was discussion with the Crees in Ottawa to conclude that the time was right for serious negotiations.
I must give credit to all my predecessors who failed. They did great work but the stars were not aligned as well as they were for us.
Senator Dyck: To some extent, you have already answered my question. During your presentation and in answers to questions you indicated that you met with many ministers many times. You said that you always kept them informed, kept the PCO informed and sometimes the PMO so that everyone knew what was going on.
Is there a way to document that process, so that those coming behind you to negotiate agreements can benefit from your experience? In order for things to work, everyone needs to know what is going on.
From the Cree side, we often hear that First Nations do not think that they receive adequate consultation. However, your process was handled diligently and everything was done in a regular fashion and documents were appropriately tabled. Everyone knew what was going on. Could a standard be written up so that there is a formula?
Mr. Chrétien: That is a good question. We have already produced a document that reflects this approach, in part. It is not a popular approach in Ottawa with the bureaucracy. It makes the civil service uneasy if they have the impression that you are going above their heads to their political masters. I kept telling them that we were all part of the same team. We will do the job but, in the end, ministers have to approve. Therefore, they must know what is going on.
The Minister of Justice had a key role to play, and he wanted to know what was going on. I would phone him and say, ``By the way, we have a problem here with another department,'' and he would talk to his colleagues. However, standardizing this approach might not come from the department; it is unlikely that they would do that. At some stage in the process, the Prime Minister's Office came into the picture because this negotiation was of great interest to Quebec. At the time, Quebec was in the midst of launching a huge project that would divert the Rupert River. The Crees had made their deal with Quebec but it was controversial because many did not want the project to happen. Therefore, we decided we had to satisfy them on past non-implementation of commitments in order to convince them to take a more positive attitude toward this huge development of interests in Quebec. The Government of Quebec is constantly in touch with Ottawa on this issue at the highest level. Remember, in Quebec there was a negotiation by the Premier of Quebec himself.
The Crees looked at the two of us and a bunch of civil servants and asked, ``Where is the Prime Minister?'' I said, it does not work that way in Ottawa. The other agreement was negotiated with ministers in the room over a couple of months. To explain the labyrinth of the federal government took quite some time. We told them that 100 lawyers were working on the file, but they did not understand that many lawyers could be working on it in different parts of Canada at the same time. The federal process was not easy for them to understand and created huge frustrations for them. The Cree have a great sense of political realism. They always want to know who has the power, who decides. They are used to going to the decision makers. Therefore, if there is a lesson for the future, it is for the minister or the government to appoint someone who is confident to deal with the bureaucracy.
I was a deputy minister and I know how it works. I know that if you patronize an assistant deputy minister for a week, he might be your friend. My point is that you have to appoint someone who knows the federal bureaucracy. If the person does not, he or she is lost.
Senator Dyck: Do you envision having a permanent person who could replicate what you have just done? Could there be such a person whose primary job is to do what you have just done?
Mr. Chrétien: No names come to mind. Senator Segal is smiling there. I do not know.
You need a combination of skills and the experience of the federal government, hopefully a much better experience of the indigenous group that you are dealing with, which was not my case. Again, I recognized that weakness, and I told the minister that before I started all of that work, I would go up North. I spent a week in the North talking to all the chiefs, fishing with them, going to their tent and talking and eating caribou and beaver. It was a cultural experience that I felt was necessary before I would even start my work. It was not the equivalent experience of someone who had an intimate knowledge of the Crees, but at least I had a better feel for their fears. I met chiefs up there who were against the Rupert development project and some who were in favour of it. I saw their democracy in action. I did not know what democracy meant to the Crees, but I realized that it did exist. It is very different from what you might see in other parts of the country.
I was able to understand them better culturally, and you need that as well. You need the desire to understand and you need the capacity to keep them at the table and not to antagonize them.
You also need to gain the respect of the ministers in Ottawa. In the end, if the minister phones you and asks if it makes sense, why it makes sense, and how he should sell this to his colleagues, you must have the aptitude to say, ``Minister, here are the 10 reasons why the Government of Canada should approve this deal.''
If you find the person or persons who can do that, you have your candidate.
Senator Dyck: Can we clone you?
Mr. Chrétien: We will see. I will tell you something interesting in this regard. There is a second part to this negotiation. The governance part in chapter 3 has to do with the establishment of a Cree Aboriginal government in Northern Quebec, in the James Bay area. This will be one of the most difficult negotiations in the years to come. I do not know if this is the right comparison, but Princess Diana said about her marriage to Prince Charles that there was a third party in the relationship. There will be a third party in this relationship, and a big one: the Government of Quebec. We will be three: Quebec, the Government of Canada and the Crees. This will not be easy. This negotiation will deal with territory, borders, sovereignty and a Cree constitution. Chapter 3 talks about a Cree constitution. Imagine when they start writing that constitution. I do not who the negotiator for Quebec will be, but it will be very interesting. In my view, the negotiation will take three to five years. I am sure that Minister Strahl will find the right person to do that.
Senator Lovelace Nicholas: Do you anticipate any difficulties in the implementation settlement?
Mr. Chrétien: I do not foresee difficulties in implementing the deal we have made. It is $1.05 billion as start-up and $50 million more for Wemindji, Waskaganish and Oujé-Bougoumou; then $100 million 30 days following the amendments to the Cree-Naskapi act. That part I think is on the rails and will happen. The difficult part will be when we start, hopefully this spring or maybe next fall, with the government. I expect this will take quite some time. The three parties will have to be very careful at the beginning to delimit the parameters of that negotiation and what they want to achieve. I am not worried, but I know it will be very complicated.
I can also see more problems between Quebec and the Crees. I think at some stage in that negotiation, the federal negotiator will just watch an interesting dialogue between Quebec and the Crees because of the battles in the past and the tensions that have existed between the Crees and the Government of Quebec. It is now all very good. They have a good relationship and a much better understanding. However, it will be very difficult when the Crees start talking about having a seat at the United Nations and wanting international recognition. We will have to develop a position on this.
My answer to you is that for the first part of the deal, I think it will go well. The second part remains to be seen.
Senator Lovelace Nicholas: Do you think the second part of this deal will take 10, 20 or 50 years?
Mr. Chrétien: How many years it will take, I do not know. If I do it — and I would like to do it — we will proceed with the same seriousness, clarity and dedication, but it will be more complicated because there will be two sovereign governments involved and one that would like to be sovereign.
I cannot tell you exactly how long it will take, but my experience is that you have to keep the momentum going. You cannot just stop and go. You must be systematic and push for those negotiations. If you sit back and say we will meet in two months, it might go on for 20 years; it will never happen. Again, if the political will is there to do it, I think we can succeed. I think the political will is there at the moment among the three parties, but my experience has been that when there are three parties in that type of negotiation, it becomes very complicated.
Senator Lovelace Nicholas: In my experience, I have seen the situation go on for years and years. Everyone in this building knows that if you settle a land claim or an agreement or a dispute of some kind for First Nations people, it will only improve their lives, so I do not know why the process takes so long.
Mr. Chrétien: We were a model of rapidity. As I told you, when I started, no one gave us any chance of succeeding, but we did it in three and a half years as opposed to ten years. All the committee members are right to ask why it takes so long. It is not easy, especially if the negotiator has to travel to the other end of the country, if he is from New Brunswick for example and has to deal with a file in B.C. You are correct to make that point, but these are not easy negotiations. These are among the most complex negotiations taking place in the country.
Senator Lovelace Nicholas: I know what the issue is: it is money. We get our funding from the people we are fighting with: the Government of Canada. That is part of the problem.
Mr. Chrétien: Yes. I do not disagree with that.
Ms. Drost: I have one point to add on the implementation. As we mentioned earlier, the implementation of the agreement will largely be done by the Crees. When we were up for the signing ceremony on February 21, the ceremony took place in a community centre that was built last year. We read out one of the clauses in the James Bay and Northern Quebec Agreement, the construction of community centres. That centre was not there when we first went up. The Crees used some of the money from La Paix des Braves for that community centre, which will now be paid back out of this agreement. I am quite confident that the Crees already have the plan to put in place all of the different facilities that are listed under the agreement.
[Translation]
Senator Dallaire: Mr. Chrétien, I would like to congratulate you for the work you have done. Although I have only sat on the committee for a few months, I realize that we are far from having maximum success in terms of resolving conflicts with Aboriginal peoples and I would like to discuss this in order to know how you went about it.
First, who did you report to in the hierarchy?
Mr. Chrétien: The Minister of Indian and Northern Affairs.
Senator Dallaire: Was it the minister's mandate to bring the other ministers to the table or was that your initiative?
Mr. Chrétien: It was within the minister's mandate and I helped him.
Senator Dallaire: And what were the responsibilities of the PCO?
Mr. Chrétien: The PCO is the central authority. In other words, a member of the Privy Council Office looks after agreements with Aboriginal groups throughout the country.
This person prepares a report for the Prime Minister. Therefore, we always had to have him on our side.
Senator Dallaire: This person had no influence over the ministers to ensure that they played by the rules?
Mr. Chrétien: No.
Senator Dallaire: Were you not tempted to use your relations with the Prime Minister in this context?
Mr. Chrétien: No, I knew that the Prime Minister was advised on a regular basis. I knew that the Government of Quebec also kept him informed and that the Minister of Indian Affairs — whether it was Mr. Mitchell, Andy Scott, Jim Prentice or the current minister, Mr. Strahl — had the ability and the authority to speak to his colleagues and to convince them.
Senator Dallaire: This is apparently quite different from all the other negotiations or supposed negotiations that seem to take place. We tend to hear that people from Indian Affairs do not have the authority to take the lead nor do they want to.
Mr. Chrétien: I felt that and therefore decided to look after co-ordinating the other departments just to help the Department of Indian Affairs. I was very aware that they needed this nudge. The beauty of it all is that, as the CFN, you are not bound or restricted by all the rules of the bureaucracy. My commitment was to the minister. My only boss was the Prime Minister and I told him: ``I will do it my way.'' He asked me what that meant and I answered that he would see in time.
I believe that it was essential to go about it this way. Believe me, it was not well received in Ottawa. The department's officials were not very happy to see me going back and forth. Especially when I told them that I was going to see the Minister of Justice, the Minister of Human Resources, and so forth. They wondered:
[English]
Who does he think he is? Why does he do this? It has never been done before.
[Translation]
Just because it has never been done before does not meant that it will not be done. I did what I felt I had to so that, in the end, — not just for the success of the departmental negotiations — I would have allies around the table when the Government of Canada in cabinet was apprised of the matter. The eight or ten ministers interested in the matter had to be kept informed as we went along. That was my way of doing things.
Senator Dallaire: There is mention of a range of solutions and I am trying to understand all these initiatives. The assistant deputy ministers mandated by one department could bring to the table the matrices of other departments wishing to arrive at a solution if they believed that they were mandated to do so by their minister.
Mr. Chrétien: They did that. I must say that I had a great deal of cooperation from Michel Roy and Michael Warnick at various times. That was their role. That is their job. It is not a bad thing to help them out. I felt I could telephone Michel Roy and tell him that there absolutely had to be some movement at the Department of Health, for example, and he told me that he was going to phone his counterpart at Health Canada. That worked relatively well. I dealt with senior officials in the ministers' offices.
Senator Dallaire: You were the catalyst in the process?
Mr. Chrétien: Yes.
Senator Dallaire: By extension, we could infer that the bureaucracy's classic approach to problem solving, even with a good dose of political will, needs another tool to help these matters move along.
Mr. Chrétien: Perhaps. As I said earlier that is another role. I was busy with the institutions I was dealing with. I did not want to play a certain role. I agree with you.
Senator Dallaire: We are looking at a number of other agreements and we see indecisiveness, inefficiency, a lack of desire to take the situation in hand. Responsibility for negotiations is found at a very low level, at the director level. There has been no change, just a great deal of frustration.
Mr. Chrétien: I agree.
Senator Dallaire: Yet you picked up a file where implementation had caused frustration for more than 30 years. They signed in 1975. They gave a pile of money, responsibilities were to be assumed and they were not.
Mr. Chrétien: Yes.
Senator Dallaire: We note that, with almost all the agreements, it seems fairly easy to bring in the surveyors, mark out boundaries, hand over a pile of money and to announce an implementation process. But afterwards there are no financial resources to actually implement the agreements. For example, if I plan to purchase a truck, my responsibility is not only to purchase it but also maintain to it for an unspecified period of time — the life of the truck — and to set aside money for parts, gas, maintenance and so forth.
You were given a file where the financial responsibilities were never formally placed on the table. The Department of Indian Affairs never said it was going to sign the agreement and guarantee $50 million per year to put things in place. There was never a process to establish and explain the financial needs. Do you not find this absurd?
Mr. Chrétien: Yes.
Senator Dallaire: Were you at a disadvantage because of a responsibility that was never assumed?
Mr. Chrétien: What you are saying is true. However, I also realized that the James Bay Agreement was the first of its kind. It was negotiated at a time when there was also a great deal of political pressure. There was very little experience in such matters. That is why the clause mentioned is a good example of ambiguity. We cannot blame those who negotiated the agreement 30 years ago. The context was different. The fact remains that the federal government's responsibilities and obligations were not fulfilled and that was acknowledged by the department.
Senator Dallaire: I really empathize with the public servants of the 1970s who were just starting out. However, we are now in the 21st Century. We have a stack of signed agreements, conflict resolution processes underway and some are negotiated every five years. That is the second or third time and nothing has been resolved. That shows a lack of will on the department's part.
I believe that, by its very nature, the Department of Indian Affairs and Northern Development — even though Treasury Board, PCO and other departments are involved — has the responsibility to influence the others. Did you observe that the department was not forward thinking, that there was a lack of initiative and desire to arrive at solutions? Or is there an almost neo-colonial attitude of managing and waiting for the problems to arise? I would ask you to be discreet.
Mr. Chrétien: Well, I am a candid and straightforward kind of person. I will answer your question frankly. I did not perceive a colonialist attitude with respect to the Cree. I always found the people who worked with me to be conscientious. It was clear that the problems of the past 30 years had to be resolved because Quebec had done so and we were being taken to court. The department recognized that we had no choice.
I never discerned that kind of attitude; it may exist in other parts of the department, but I never felt it.
Senator Dallaire: If a public servant has a gun to his head because he is being sued for $4 billion, he would tend to show a bit of initiative and willingness. If, however, as you say, one does not wish to resort to this method, did you see, during the three and a half years that you worked on the matter, that there were new ideas, new methodologies conducive to learning?
I will give you an example. Within the department, do they have a process for educating or training their officials? I am not talking about a two-week course on how to cook beaver or trap animals. I am talking about in-depth training, in anthropology for example, for one year, in order to study and understand the Aboriginal peoples and to be able to adjust their processes in order to conduct negotiations? Did you at least see some signs of such initiative?
Mr. Chrétien: Yes, there were a few signs of this willingness.
Senator Dallaire: Perhaps not a great deal.
Mr. Chrétien: Perhaps not, but we have to be fair towards the men and women working at the department. Many have good intentions. Obviously, the major issues you are raising are of national scope. The future of Canadian policy with respect to Aboriginal peoples will not be decided by the Department of Indian Affairs. It is a political issue faced by our country. But I never felt, at least when I was negotiating with the Cree, that these officials wanted to sabotage negotiations, for example, or that they were reluctant to strike an agreement.
Senator Dallaire: I did not want to bring this up again but they knew very well that, if it did not work, it would be costly because they would have to go to court.
You are familiar with the workings of these places and other departments in such matters. In terms of attitude, was there anything more than just wanting to expedite files based on the rationale that ``when that one is settled, it will no longer be an issue for us.'' Was the department forward thinking and did it wish to work in the modern era? It has been 30 years. At the time, they did not understand. I have the impression that they still do not understand. Do you have a different impression?
Mr. Chrétien: I think that the answer to your question would be, once again, that there has to be a political impulse and that can only come from the top, from government. It would be asking the impossible of officials to make a decision in this matter. They may and do have ideas; some have worked in the field for many years, some know these communities very well. It is asking them to do a job that is not really theirs. Canada's overall policy with regard to Aboriginal peoples will not be fashioned only by the officials of the Department of Indian Affairs.
Senator Dallaire: Perhaps not. However, the country's defence policy is initiated by the Department of National Defence, is it not? They have a department that makes defence policy and that works towards focussing the defence effort. I think it would be normal for the Department of Indian Affairs to have this type of authority — to be perceived by the other departments in this way — and to have that power. But I have the impression that it does not.
Mr. Chrétien: Perhaps it does not. I am not in a position to know whether or not that will exists within the department. That again is a comment made on the basis of my past experience. I believe that the issues you are raising in the end will only be dealt with if there is a very strong impulse, a political will on the part of the government, to deal with the problems you just mentioned. How can this political will be expressed? You know as well as I do that it can take different forms at a given point in time.
Senator Dallaire: Oka? Perhaps not an uprising, but something along those lines.
Mr. Chrétien: Preferably not. It might be a major political debate. Listen, I will give you a theoretical answer to your question. It might be by launching a debate in Canada on these issues: what do Canadians think of these issues, what should be done about these problems. It would be the kind of debate that would start in universities, cities, villages, and so forth, and would give some expression and organization to the Canadian will on this matter. I am not talking about doing something similar to Quebec's commission on reasonable accommodation. We could encourage pan- Canadian dialogue on the importance, as a nation, of treating our aboriginal peoples properly.
That has to come from the grassroots. Ideas could be developed throughout the country. They would be gathered, collected, organized by the Department of Indian Affairs. However, in the end, a forum of ministers — the men and women who govern us — would have to look at these recommendations and, if they so wished, if the timing was right for them, create a new policy.
You know what it is like; we have both been in government a very long time and our governments have many priorities. These days, we know the government's priorities; however, the government is not always able to deal with all the major issues at the same time.
Senator Dallaire: Nevertheless, we are talking about human beings.
Mr. Chrétien: Take, for example, the debate on Afghanistan. It is an engaging debate of interest to all Canadians. It is an issue that is debated every day by the politicians and the media. I think that Canada's policy with respect to Aboriginal peoples does not generate the same interest.
[English]
Senator Gustafson: Welcome. The last time we met we were in the embassy in Washington. I am very intrigued with what you have said. Is it possible to finalize an agreement that has to be added to over time? You are talking about 800 claims, which is almost unthinkable. I imagine all the lawyers who must be involved in those 800 cases. Is it even possible for a government to finalize those in one term?
Mr. Chrétien: No.
Senator Gustafson: That is what I though. This must be done over time, or the country could not afford it.
Mr. Chrétien: It cannot be done in one term. It will take many years. You mentioned lawyers. It is not necessarily lawyers; good negotiators can do it. This takes a massive amount of time.
Senator Gustafson: Is it the Aboriginal people or the bureaucracy who want to finalize it, or do they both want to keep a foot in the door?
Mr. Chrétien: This is the key issue. It is an issue of political will. If there is no political will, no chief federal negotiator worthy of the name should accept the position. Otherwise, you waste your time, the money of the citizens of Canada and the time of the group concerned. You will go nowhere, and it is very frustrating.
The issue of political will can be tested. The best way to test it is through the mandate. If they ask Mr. X or Madam Y to sit down with Group X to resolve a longstanding land claim with absolutely no mandate, the discussion will go on ad infinitum. The will must be tested. If you have the impression that the will is not there, forget it.
It is up to the department and the ministers to determine which claims to deal with. You cannot deal with them all at the same time; you must prioritize.
Senator Gustafson: I believe that the ground will shift in time. Whether due to inflation, finding different mining operations, oil, or whatever, the ground will shift. We do not know what the North or much of this area will look like in 20 years.
Mr. Chrétien: That is a good point. It has started to shift.
Senator Gustafson: There is no question that it has started to shift.
Mr. Chrétien: Mining in Northern Quebec is huge. Huge mines will be opening within the next few years. The Cree themselves have identified a couple of serious possibilities on their territory. You are right that in 10 or 50 years down the road, it will be a very different game up there.
Senator Gustafson: That is also true in Saskatchewan.
Mr. Chrétien: I am sure it is.
Senator Segal: Senior First Nations leaders have said for some time now that the demographics are clear: bright, young leaders who are somewhat more impatient, somewhat less part of the negotiation process and perhaps a bit more cynical about the process are coming along and putting their own leadership under very real pressure.
How would you respond to a proposition that might be advanced in this way? All of these negotiations are not about final results and they are not about tangible change: they are just about managing the problem. That is INAC's real mission. There are good people amongst First Nation leaders who worry about that and are under pressure on that issue from their own young people who are looking for action and results now, as is the case with young people in all groups. I am interested in your response to that.
Mr. Chrétien: What do you mean by ``managing the problem?''
Senator Segal: As long as they are negotiating, worse things are not happening. As long as they are negotiating, there appears to be good faith. As long as they are negotiating, people are engaged. Is anything changing on the ground in real terms? We can look at the Inuvialuit and others where things did change on the ground, remarkably well and attributed to all side. However, for many of our First Nations brothers and sisters, nothing is changing on the ground. In fact, for some of them, the situation is actually getting worse.
Mr. Chrétien: I am strongly against this. Young people are interested in improving their lives, opportunities and education. They want results on the ground. They want more than endless dialogue; they want to see concrete results.
We could see that in our negotiations with the Cree and in talking with young leaders among them. They are developing. We met many of them in these communities. They are lawyers, engineers and very successful contractors.
If we talked forever, it would be dangerous. They would not accept talk forever. They would see through it, and rightly so. In the end, if you do not produce the results, they will take action, which could lead to violence. It has led to violence in the past.
The Acting Chair: I would like to clarify something. We have been referring to 800 claims, and I believe those are specific claims of historic treaties; but since 1975, there have been 21 comprehensive claims that are now settled or are modern treaties.
[Translation]
Senator Dallaire: It is difficult to accept that part of the Canadian population is living in third world conditions. Given the enormous problem, resolutions have to be made. Efforts in this regard have not been prioritized.
There are more than one million Aboriginal peoples, including the Metis. Their population is increasing more rapidly than that of any other group in Canada. The crisis will only worsen.
In Schedule B of your document, on page 4, paragraph 4.1, we read the following.
[English]
In Schedule B of the report that you submitted to us, paragraph 4.1 on page 4, you state: ``. . . and assumed thereafter by the Cree Nation Government.'' You have mentioned that you built a town hall or something. Is that right?
Ms. Drost: In fact, it was not Canada that built the community centre; it was the Cree who built it.
Senator Dallaire: Who paid for it?
Ms. Drost: They paid for it out of money from the la Paix des braves agreement. That money, which was to be used in economic development elsewhere, will be refunded by this agreement.
[Translation]
Senator Dallaire: I did not take classical studies, but I will use a Latin term. The amount of $1.2 billion will be applied ad vitam aeternam.
Mr. Chrétien: This money is for the next 20 years.
[English]
This agreement is for the next 20 years.
[Translation]
Senator Dallaire: Why was a limit imposed in the case of a nation destined to live for all time?
[English]
Mr. Chrétien: It is a limit. However, there is also a provision in there that before the expiry of this agreement, the parties will begin a discussion about renewal. This agreement is for the last 30 years and the next 20 years. It is not the end of time for the Cree.
[Translation]
Senator Dallaire: We sign an agreement with a nation that wants to be and must become autonomous. However, the agreement is good for 20 years and after that we will revisit the situation.
Perhaps not all factors were considered. Do we anticipate that Canada will reassume this responsibility one day?
[English]
Ms. Drost: The James Bay and Northern Quebec Agreement is in perpetuity. This is a 20-year agreement to resolve 30 years of the past and outstanding litigation as well as 20 years of the implementation of the agreement. There was actually quite a rigorous cost side table where we looked at all of the different facilities that were outstanding, what it would cost to build them and what the operations and maintenance would be over 20 years. That is why it is a 20-year agreement.
In addition, the Cree have the responsibility to interpret what is somewhat ambiguous. These facilities included workhouses and poorhouses. What does that actually mean today? They have the responsibility to determine how they want these provisions to be implemented and in 20 years will look at what they did. They will establish a renewal agreement so that the Cree can carry on implementing. Or, if there is no agreement, Canada picks up and carries on the operations and maintenance of these agreements.
[Translation]
Senator Dallaire: That approach is very progressive on your part. The other agreements did not evolve over 20 years. A great deal of money was paid for territorial claims. In some ways, we built them a cabin without putting aside money to maintain it. This cabin will not last 150 years, but about 25. Who will rebuild it after that?
[English]
Mr. Chrétien: Operations and maintenance continue. Go ahead.
Ms. Drost: It is one of the points critical to the Cree and could have ended the negotiations. It was fundamental for the Cree that the obligations under the James Bay agreement were not extinguished by this agreement, that it became a 20-year term.
The treaty obligations continue, but for 20 years the Cree will be implementing. There is operations and maintenance in the agreement for 20 years.
Mr. Chrétien: Apart from the sums allocated in our agreement.
Senator Dallaire: There is a separate operations and maintenance budget of about $50 million a year?
Ms. Drost: It is within that amount.
Senator Dallaire: Within the $1 billion?
Ms. Drost: That is right.
Senator Dallaire: Will it be disbursed over time?
Ms. Drost: No. The Cree are managing all of the money up front. We understand from Bill Namagoose that they are looking at ways to ensure it is a safe investment. Out of those monies, the Cree will build the facilities and maintain them.
I would like to make one point in response to Senator Segal's earlier question about closing deals, if there is no desire or will to close, and managing the problem for the long term. I have learned, through negotiating this agreement and in my real estate transactions in my other life, that there is no perfect deal. You cannot reach a perfect deal and continue to try to find the actual perfect language. It is good to have some pressure to close. In our case, the litigation did that throughout the three years of negotiations. We asked the Cree, and they postponed the filing of the federal defence 12 or 13 times. It was always on a fairly short rope, not a long period of time. There was always a pressure to close.
Senator Dallaire: An incentive?
Ms. Drost: Yes, an incentive to close. It is important in all negotiations that there must be an end date in order to make the compromises required. Both sides may be happy with some of the clauses and not with others, but there is no perfect deal.
The Acting Chair: On behalf of the Standing Senate Committee on Aboriginal Peoples, I would like to thank you both, Mr. Chrétien and Ms. Drost. Yours has been an enlightening presentation this evening, and I thank you very much for sharing that negotiation approach with us. We have been heartened by hearing the lessons you learned.
The committee adjourned.