Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 8 - Evidence - Meeting of April 2, 2008
OTTAWA, Wednesday, April 2, 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.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: The committee will begin today in camera to consider the draft budget.
The committee continued in camera.
The committee resumed in public.
The Chair: We are now in public session. We need to approve this budget in full session. The motion is moved by Senator Peterson to approve $12,500 for expenses related to the study of legislation. All those in favour?
Hon. Senators: Agreed.
The Chair: The second budget is for $17,000 for expenses related to the study of matters generally relating to the Aboriginal peoples of Canada. The motion is moved by Senator Hubley. All those in favour?
Hon. Senators: Agreed.
The Chair: We will now invite the witnesses back.
This evening we carry on with our study of the implementation of comprehensive land claims. Our guests tonight are Jim Aldridge, Legal Counsel for the Nisga'a Nation; John Merritt, Constitutional and Legislative Adviser for Nunavut Tunngavik Inc.; and Tony Penikett, Mediator, and author of Reconciliation: First Nations Treaty Making in British Columbia.
Both Mr. Aldridge and Mr. Merritt have appeared before us previously, and we always look forward to their enlightening testimony. We are honoured likewise to have Mr. Penikett with us whom we hear has been an informative and engaging witness on this subject matter.
I will introduce the members of the committee. I am Senator St. Germain from British Columbia. We also have the deputy chair, Senator Sibbeston, from the Northwest Territories; Senator Lovelace Nicholas from New Brunswick; Senator Dyck from Saskatchewan; Senator Hubley from Prince Edward Island; Senator Dallaire from Quebec; Senator Gustafson from Saskatchewan; Senator Peterson from Saskatchewan; and Senator Campbell from British Columbia.
Honourable senators, Aboriginal witnesses have told the committee that modern treaty making cannot be seen as a way in which to end the Aboriginal issue. Rather, it must be seen as process that establishes a new and more positive relationship between particular Aboriginal peoples and the Crown. In the view of these witnesses, relationships established through treaty should be based on mutual recognition and affirmation of rights, and interconnection between the two parties.
The committee is interested in hearing whether, in the view of the witnesses, the current federal land claims policy supports this view of treaty making. Perhaps you can also comment on the view of the Department of Indian and Northern Affairs, INAC, that a new federal implementation policy is not required.
Welcome to our witnesses and I invite you to begin your presentations. Once all of you have had the opportunity to speak, senators will have questions.
John Merritt, Constitutional and Legislative Advisor, Nunavut Tunngavik Inc.: Thank you for the invitation to appear today. I am a lawyer who has worked as counsel to a number of Inuit organizations since 1979. I spent many years in the negotiation of the Nunavut Land Claims Agreement and I am one of two representatives of Nunavut Tunngavik Inc., NTI, on the implementation panel for that agreement. I have also worked on the establishment of the Government of Nunavut in 1999 and national constitutional issues.
I shall be as candid as possible today drawing on personal experience. You can appreciate that I cannot put aside my responsibilities as an NTI lawyer. Therefore, by definition, I must situate my remarks in that relationship.
Honourable senators will recall that in its February 26 presentation, NTI provided the committee with specific suggestions for reform of federal policy in relation to the implementation of modern land claims agreements. In light of testimony you heard yesterday from INAC officials, it is important to restate the machinery of government recommendations you received from NTI on February 26.
From that presentation, the first of two recommendations was to establish a land claims agreements implementation commission overseen by a commissioner of modern treaties to be established by statutes and perhaps housed in the Office of the Auditor General. The commission would evaluate and audit implementation of modern treaties, report annually to the Parliament of Canada and advise the Government of Canada and Aboriginal signatories.
The second recommendation was to establish a bureau of modern treaties in the Privy Council Office with the mandate to ensure that agencies of the Government of Canada take a coordinated perspective in fulfilling the Crown's modern treaty responsibility.
I will add two things to these recommendations by NTI. First, I have additional observations as to why the current federal land claims policy is not working. Second, I have one further recommendation to the two from NTI.
By way of additional observations as to why the current approach is not working, I will identify four contributing factors. I have been selective; I could have added more, but from my perspective, these factors were the most important ones.
First, the federal government takes the view that the real negotiations as to how to adapt the implementation of agreements to changing circumstances take place within the federal government itself, not with Aboriginal parties. The departments work out what they believe is appropriate among themselves and present Aboriginal peoples with what amounts to a fait accompli. Only the details are up for grabs with the Aboriginal people.
This is what representatives of Parks Canada Agency told you yesterday. Departments negotiate with the Department of Indian and Northern Affairs to gain access to the claims funding envelope. You may wish to inquire how the total level of funding in the claims envelope is established, how it is replenished from time to time and the department's objectives and priorities in negotiating with other departments over the use of any reserve monies. All those financial issues are being sorted out within government and Aboriginal people have limited insight or access as to how the decisions are being struck.
Second, in the internal negotiations within the federal government over implementation on specific agreements, the operative test is not — as observed by the Auditor General and many others — what must we do to make progress against objectives; it is what minimal investments we can make to avoid being sued.
The third factor I would identify that has been noted by many others before your committee is that the current federal policy is light. Additionally, it is almost all process oriented rather than results oriented. Federal implementation efforts take place where the dimension of time is stripped out of the mix. NTI's experience with PricewaterhouseCoopers' research on the cost of continuing to rely on the recruitment of government workers outside of Nunavut is an example. Even though it costs the public $65 million annually in avoidable recruitment and relocation expenditures to sustain this situation in Nunavik, no one in the federal government is mandated or motivated to negotiate based on finding better use of long-term expenditures.
The fourth factor is the effectiveness of dispute resolution mechanisms that exist both within agreements and in laws of general application. These mechanisms that are available are not being used because of the ingrained federal belief that one party to a two-party contract should veto all solutions that are not its first preference.
A marriage, a friendship or a partnership that has a blanket assertion of veto as its organizing principle will not go far. It is litigation waiting to happen. It has happened both in the case of Quebec Crees and now in the case of Nunavut Tunngavik.
Yesterday, you heard from the Department of Indian and Northern Affairs that the Government of Canada is adopting a results-based management framework to improve implementation of agreements, and that Treasury Board of Canada Secretariat and INAC have come to agreement to streamline access to claims implementation funding. These initiatives may be of some use but fall short of what is needed and what every member of the land claims coalition has recommended.
Modest administrative changes will not solve central political policy and fiscal problems. For example, they will not change the situation identified by Deputy Minister Michael Wernick back in February who told you he cannot compel anyone outside INAC to implement land claims agreement.
I invite you to consider one additional recommendation beyond what has already been received from NTI and the other coalition members: That this committee call upon the federal government to embrace the proposition that, until such time as legislative and broader policy reforms can be effected, it will agree to the use of arbitration on all outstanding implementation matters. I add that third recommendation to the two you have already received from NTI.
Jim Aldridge, Legal Counsel, Nisga'a Nation: Honourable senators, I start by expressing my appreciation to the committee for inviting me to appear before you once again in respect of the important topic of the proper implementation of comprehensive land claims agreements, or modern treaties as they are becoming increasingly known.
As senators may recall from my last appearance, I have had the privilege of acting for the Nisga'a Nation for almost 30 years; sometimes they joke and say, since time immemorial. This work included acting as lead counsel during most of the years of negotiation of their land claims agreement and, since the effective date of their treaty in 2000, I have been General Council to the Nisga'a government. While I am pleased to appear in my own capacity, obviously my views and knowledge have been shaped by the long and continuing relationship with the Nisga'a Nation and my participation in the long struggle for the settlement of the land question.
When the Aboriginal governments and organizations that had successfully entered into modern treaties formed the Land Claims Agreements Coalition in late 2003 to address shared frustrations with the federal approach to implementation of those agreements, the Nisga'a Nation was the new kid on the block. They had the most recent treaty. Since then, the Labrador Inuit and Tlicho have also entered into final agreements and have joined the coalition.
From a personal point of view, the remarkable thing about the members of the coalition — most of whom have talked to you during your study — is that they each have acquired a sophistication in matters dealing with the federal government by virtue of having navigated the shoals and waters of negotiating comprehensive land claims agreements over many years. They obviously have a shared commitment to the value of negotiation as the preferred means for solving problems, and they came almost immediately to a remarkable unanimity about the problems of federal implementation as well as the way in which those problems should be solved. They set that out in the coalition discussion paper and the Four-Ten Declaration, both of which have been shared with this committee.
The proposition is that the Government of Canada effectively and genuinely must realize the treaties are with the Crown and not the Department of Indian and Northern Affairs. This proposition underlies the entire approach of the coalition. This approach is the legal reality. Federal officials and politicians seem to find it easy to acknowledge that reality. However, if it is not to be a mere platitude to which they pay lip service before carrying on with business as usual, it is apparent that there must be a fundamental change in the structures and approaches of the federal government.
I have read the transcripts of most of the witness who have testified to this committee during this study. In my respectful view, the most telling point was acknowledged by Deputy Minister Wernick who, with admirable candor, described the fundamental problem. He said his department has had:
. . . difficulty in the past fully engaging other government departments in the implementation of these agreements. More often than not, these agreements are presumed by our colleagues to be the responsibility of our department. As a department, there is only so much we can unilaterally accomplish in fulfillment of the terms of implementation without the full participation of our colleagues right across the government.
This is the paradox: Under the Department of Indian Affairs and Northern Development Act, the department is accountable to Parliament for the implementation of modern treaties. However, Parliament and the government have failed to give the department the authority and means to do so. Therefore, you heard Mr. Wernick and his colleagues describe to you how they must attempt to persuade or, to use his words, ``haggle or argue with other departments'' to fulfil the constitutional responsibility of Crown. In this context, he indicated the need to explore, as the coalition has long suggested, some sort of ``external mechanism to hold the federal government's executive branch to account for progress on implementation.''
In my respectful view, the suggestions made to you by the coalition members who have spoken here and, in particular, those advanced and summarized crisply by Nunavut Tunngavik are exactly the right way to go. There needs to be a bureau within the Privy Council Office and there should be an implementation commission that reports to Parliament.
However, a fundamental attitudinal shift is needed within government. May I say with respect, this point has been eloquently articulated already by several honourable senators during this study.
For example, Mr. Chair, you asked Mr. Wernick:
Why does the government not fulfil its end of the bargain? Is it that these agreements are treated just like some kind of program? Are they treated as a program or is there a budget established for the long-term settlement of these particular agreements that were entered into so that, when funding runs out, the process does not stop until the government gets more money?
With respect, you hit the nail on the head. Senator Dallaire raised a similar point on February 26, during the presentation by NTI in which Senator Dallaire said accurately:
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 is exactly the point for long-term, ongoing funding under the agreements; the federal government treats the agreements exactly as a program that is funded out of normal funding dollars.
I will pause for a moment to depart from my text. Mr. Wernick was candid with the committee again when he said there is a difference between the one-time expenditures that the treaty requires only once because the department is given statutory authority of the enactment and ratification of the treaty, and the long-term renewal or ongoing costs that define the nature and the dynamic of the relationship.
That point leads exactly to the result that was well described by Mr. Merritt in his first point tonight that officials in departments within the Government of Canada end up negotiating internally no matter how long that negotiation takes, in a way that is completely not transparent to the Aboriginal group, and then presents the Aboriginal people with the fait accompli.
Senators will recall the presentation made on December 4 by Kevin McKay, the Executive Chairperson of Nisga'a Nation government. He recounted how, despite the wording of the Nisga'a treaty requiring the parties to negotiate a new fiscal financing agreement every five years, the Nisga'a Nation is now in year eight of their five-year agreement. Despite making a comprehensive proposal to the Crown in December of 2005, there has been no response, no mandate given to INAC officials to negotiate and no negotiations. Mr. McKay's presentation was made more than a month ago. I can advise there has been no change in the situation, and this continues to cost the Nisga'a Nation a great deal of money.
The closest to an explanation that has been provided — and we have been told this in discussions with federal officials — was again in Mr. Wernick's testimony to the committee. He said:
Mr. Sewell spent the best part of a year haggling with the centre about the appropriate funding level for the Nunavut regulatory bodies. We spent the good part of a year arguing about the implementation of the next cycle of Nisga'a agreements. I do not see any alternatives. That is how money is appropriated in our system. All we can do is work hard with our central agency colleagues in other departments to ensure they understand that these are ongoing relationships between the Crown and the other partner in the treaty.
Now the concern is, as sure as day follows night, after the internal haggling is complete and when federal officials obtain a mandate, they will present the Nisga'a Nation with a fait accompli to be taken or left. No negotiations will have occurred and the Nisga'a will be told, ``Sorry, that's all the money that we have in our mandate.''
I am not making this up, of course. That situation is exactly what happened with NTI. If the sum is not enough, what options do the Nisga'a or any other land claims agreement signatory have: refuse the money; go to court; or go to arbitration?
Mr. Merritt made this point, on which I will conclude on it as well: The Government of Canada includes the possibility of arbitration in each land claims agreement that it signs and then, particularly if money is involved, it refuses to consent to arbitration. This practice must stop.
In conclusion, I suggest that the problems with the current situation are clear and there is little controversy that the problems exist. In my view, as well as in the view of the coalition, these problems are not intractable. The way forward has been described by members of the coalition, and to a remarkable extent, agreed to by the government witnesses.
I have no doubt that this committee's report can and should play an invaluable role in advancing the need for a new policy and new structures, and in bringing about a new culture within the federal government in respect of the proper implementation of these important agreements.
Tony Penikett, as an individual: Honourable senators, I enter this discussion as an interested individual who, for some years, was temporarily employed as a minister and later as a deputy minister responsible for Aboriginal negotiations.
More recently, I was a Gordon Foundation Senior Fellow at the Centre for Dialogue, Simon Fraser University, during which time I wrote a book on treaty making called Reconciliation, which one or two people in the country have read.
Over the last three decades, Canada has negotiated modern or northern treaties with Aboriginal groups, ranging from the James Bay Cree to Yukon First Nations, to the Nisga'a, Tlicho and the Inuit in Nunavut, among others. These treaties, which are appended to the Constitution as expressions of section 35 rights, represent enormous nation- building achievements for Canada. However, failure to implement the provisions of these treaties faithfully as negotiated puts Canada at risk of generating new legends of broken promises for our country. This matter is not trivial.
In 1999, Miguel Alfonso Martínez, the United Nations Special Rapporteur on treaties, found that the greatest disappointment over hundreds of years of New World treaty making has been the colonial governments' consistent failure to implement fully what had been agreed to in negotiations.
On February 12 this year, INAC Deputy Minister Michael Wernick told this committee that there is only so much his department can do to accomplish implementation.
I appreciate the conflicts and the conflicted role that the Department of Indian and Northern Affairs suffers, but I tell you honestly as a former deputy minister, I cannot imagine Rick Van Loon or Arthur Kroeger having made a statement such as was made on February 12.
However, I support the call of the Land Claims Agreements Coalition to transfer implementation to a central agency. I do so, as Jim Aldridge said here a moment ago, because treaties are made with the federal Crown, not with INAC or with the finance or justice departments.
Treaties are covenants between two parties. In Canada, disputes between treaty signatories are adjudicated ultimately by courts appointed by only one of those parties. Parliamentarians should ask, in 2008, if this situation is fair.
Before the Commons committee considering Bill C-30 two days ago, I expressed the wish that Parliament take more seriously the issue of truly independent tribunals for treaty implementation disputes.
When Robert Kennedy became Attorney General of the United States in 1961, he famously ordered his department to hire enough lawyers to settle all outstanding treaty disputes quickly, in a matter of months. Political will is essential to achieving this situation, but as other witnesses have pointed out, government also needs the machinery to express that political will.
UN Special Rapporteur Martínez said:
States with significant indigenous populations should establish a special jurisdiction to deal exclusively with indigenous issues. . . .
He proposed that in countries like Canada indigenous-nonindigenous equality was essential for truly independent adjudicative bodies.
In 1975, New Zealand established the Waitangi Tribunal to hear disputes arising from the 1840s treaty between Britain and the Maori. This body has an equal number of Maori and non-Maori commissioners, and may hold bilingual hearings.
At the House of Commons committee hearings on Bill C-30 two days ago, I heard the view expressed that because of concerns about fiscal restraint only superior court judges can adjudicate treaty implementation disputes. Perhaps things are different in the Yukon, but there we did not appoint judges on the basis of fiscal restraint, or their inclinations in that direction.
Nowadays, as you all know, the majority of ongoing treaty negotiations in this country take place in British Columbia. I invite senators to consider one other adjudication possibility there.
As it happens, the British Columbia Treaty Commission, BCTC, is composed of two government and two First Nations appointees with a chair rotating among the parties. Under the current policy, the BCTC is supposed to be wound up when treaty negotiations are complete in the province. Since, at the current rate of negotiations, they will not be completed for another century or two, why not add a treaty adjudication role to the BCTC mandate? The present structure is like a quasi-judicial tribunal, the B.C. Labour Relations Board, for example. With its expertise and a little added independence, it possibly might play a role in addition to that of the courts. Even if adjudication requires persons of a judicial character, surely there are enough Aboriginal lawyers in Canada these days to fill half the seats on any implementation tribunal.
Part of the implementation failure, I believe, is rooted in the negotiation process that, even for modern treaties as my two colleagues here today have said, is laid down in government policy. Rather than hiring facilitators and allowing parties to plan the negotiating process jointly, the federal government tends to lay down the law. Although every treaty contains innovations, some chapters are standard. For example, as Mr. Aldridge said, every treaty has a dispute resolution chapter. These chapters tend to be off-the-shelf texts that, years later, prove unworkable. For example, as both my colleagues have mentioned, the arbitration chapter in Nunavut's constitutionally protected treaty proved worthless when the federal finance department absolutely refused to participate in any arbitration process.
The main reason that alternative dispute resolution, ADR, tools do not work in the new treaties is simple: Those tools were not tested during negotiations. When First Nations treaty negotiations reach an impasse at a treaty table in recent years, their only option was to go to the court. However, INAC policy says that First Nations can negotiate or litigate, not both. This policy is completely anomalous. It is unknown in any other field of activity in Canada, for example, commercial or matrimonial disputes. Both federal and provincial governments have resisted using mediators and other ADR tools and facilitators, et cetera, during treaty negotiations. The great advantage of mediation, from my point of view, is self design whereby both parties set up the process and then participate in it. It can also be cheap, fair and effective. Moreover, rather than diverting parties from negotiations, mediation allows parties to loop back to negotiation. Therefore, instead of going back to the courts, parties end up back at the negotiating table.
I admit that there is no unanimity on this view. Mr. Aldridge told me that during the 20 years at the Nisga'a negotiation table, he never once saw a case for mediation. My response to that comment was that if 20 years at a negotiating table is not an argument for mediation, I do not know what is. Government's fondness for 20-year negotiations and resistance to mediation leads some critics to wonder whether Canada is more committed to treaty negotiations than it is to treaty settlements.
If I had more time here today, I would argue that mediation and other ADR tools should be available during negotiations and at the implementation stage. I will leave you with that thought.
The Chair: I thank our three witnesses for their excellent presentations. Obviously, they bring a considerable amount of experience to this particular issue. I am sure that senators are anxious to ask questions.
Senator Sibbeston: Yesterday, the assistant deputy minister of INAC, Michel Roy, who appeared before the committee said that most of the 22 settled claims were 90 per cent to 95 per cent implemented. He argued that some changes in policy being made this year — a streamlined framework for funding, additional staff training and an expandable mandate of the ADM-level steering committee — should be sufficient to address outstanding issues. Mr. Roy said that a new central body is not needed.
Can you provide your views on whether only 10 per cent of the implementation is outstanding and whether the changes described yesterday by INAC officials and officials of other departments represent significant improvement in the implementation process? Also, what else needs to be done?
Mr. Merritt: Perhaps I will begin the response and my colleague can add to it.
I do not know what the 90-per-cent figure is based on, but it does not conform in any way to my experience, the experience of NTI and the experience of most, if not all, of the coalition members. You heard a great deal from officials of the Office of the Auditor General of Canada and others about the fundamental objectives not being met. If fundamental objectives are not met, then agreements cannot be said to be 90-per-cent complete. In my view, there is a logical contradiction in any attempt to say that unfulfilled objectives mean that agreements are close to being fully implemented. I find the 90-per-cent figure against the backdrop of unmet objectives to be an arbitrary assessment.
In the annual reports on many of these agreements, there are inventories. All the obligations are listed as if they are of equal weight. In the case of Nunavut, for example, we conducted our own research that said there is a huge problem around the lack of progress on hiring Inuit. That finding led to a mediation report by former Justice Berger who said that the Nunavut project is in crisis. Those were his words. One cannot say that a project is 90 per cent complete when it is in crisis. It is not a proposition that will stand.
One cannot take an approach to implementation commitments that essentially equates all the elements. If they do not fulfil the core commitments, the fact that they score heavily on the trivial matters is of little importance to anyone. The attempt to reduce this process to a small-scale accounting exercise is, in itself, a major barrier in terms of people adopting the attitudes necessary for success. My colleague, Mr. Aldridge, spoke to that point. Perhaps he can speak to the second part of the question in respect of the proposed changes that you heard about yesterday.
Mr. Aldridge: I would like to speak to the first part for a moment as well concerning 90 per cent to 95 per cent implementation. Forgive me, but what does that statement possibly mean? If you jump off the top of the Peace Tower, 90 per cent to 95 per cent of the way down, it is safe. It is the last 5 per cent that will cause the problem.
Did they have a meeting? Yes, an implementation obligation has been fulfilled. Did they implement a one-time cash transaction: yes. My friend used the word ``trivial.'' Perhaps the matters are not trivial but they are done once, and what does that implementation mean for the ongoing relationship? Financing these non-negotiations for the Nisga'a is absolutely critical to the survival of Nisga'a government. It cannot be reduced to 5 per cent simply because the government showed up at fisheries meetings. That approach is what drove NTI to court. I do not know what ``streamlined funding'' means. It must refer to the fact that the department will have fewer pieces of paper to send to different offices. The proof of the pudding, I suppose, is in the eating, and I have no idea what that amounts to.
``Expandable mandate of the ADM committee'' are not words that bring comfort, I think, to anyone's heart. Senior officials of INAC, though they may say they are not doing their job, I do not know that they will say they cannot ever do it. That is why implementation must be taken away from them and located in a more senior place at the centre, with the responsibility to command other departments to do what the government is obliged to do.
Mr. Penikett: Two points that have recurred here — independent adjudication and central agency responsibility for implementation — are important. We have been talking about modern treaties. I do not need to remind senators that a hundred years after we implemented Treaty 6 in 1876, we were still arguing about the medicine chest provisions. For Treaty 8 signed in 1898, we were still arguing, until recently, about the tax provisions of that treaty because we did not have any independent adjudication.
The Auditor General, in the reports cited by Mr. Merritt in reviewing the Gwich'in treaty and the Nunavut treaty, said the trouble with INAC is that the department has not yet reorganized to reflect the fact that northern treaties have all been done and that substantial devolution had taken place. The department is still operating on the old structure.
The central issue for me is independent adjudication and central agency responsibility for implementation.
Senator Dallaire: Gentlemen, if I did not know better, I would sense a certain amount of cynicism in your comments. I know better because of the absolute impatience and frustration you have gone through, so it is fair to be at the limit, at times, of your ability to remain objective in a comment. However, the depth of your arguments is solid.
That point brings me to my questions. First, I do not doubt — and I do not think you doubt — that there is a work ethic within INAC, and that the civil servants employ their time to conduct government work according to processes to which they are submitted, and within the limits of the authority and funding resources given to them.
However, if we take that point as a given, and having lived the experience, where departments can keep civil servants going flat out with all kinds of process, my comment is about the content of what is being done. Who in this arena do you think is pondering the essential new policy development that should come about, due to some of the successes already and also the desire of this country and its people to see resolution?
Within any of the government departments looking at Aboriginal affairs, has any innovative approach been attempted, or will it be attempted, to bring in new policy, and that ultimately has tried to change the political leadership?
Extending that question, what new political initiative have you seen out there over the last while that had any chance of shifting significantly the situation in regard to the whole sense of attitude and culture regarding implementing and seeing resolution of treaties?
That is my short question.
Mr. Aldridge: First, I absolutely agree with the initial proviso. There is no doubt that people work hard and sincerely within the limits of the authority and mandates they are given. No part of my comments at least calls that situation into question.
Who is pondering the big picture? As far as I have ever been able to discern, no one is on the government side. That is the short answer to the short question.
Is there any new political initiative that, in the last few years, is capable of shifting significantly the culture that is brought to bear? There is not one that I have seen, on these questions, with a couple of possible exceptions. A larger exception is in British Columbia, the whole treaty process that was referred to by Mr. Penikett and, if I can say this with respect, the road-to-Damascus conversion of the premier to an apparently sincere commitment to bringing about modern treaties. That political change in British Columbia is significant. However, that change is not to implement initiatives; that change is to discuss them. I think that change is significant and has elevated consciousness in the way you refer to.
On a more modest level, the work that the coalition has completed, and was engaged in until late 2005, if I can put it that way, was capable of coming up with the protocol between the coalition and the Government of Canada to set out expressly many of these principles and set in train a process for tackling the machinery-of-government issues that others have spoken to. That initiative, shall I say, has been interrupted until recently. Hopefully, with the work of this Senate committee, we will be able to re-establish that process.
Mr. Penikett: Senator, I once asked a Department of Finance Canada official why he thought it took so long to settle treaties in this country. He responded that he thought it was because it is cheaper to negotiate than to settle. I think that view is wrong-headed.
A better response was from Harry Swain, former Deputy Minister of Indian and Northern Affairs Canada. He said the problem in Canada is that, as a matter of policy, we have capped the cost of settlements, but we have unlimited expenditures on negotiations, which is also a myopic policy.
To add to what Mr. Aldridge said, I think a lot of innovation is taking place in British Columbia. He mentioned the new relationship accord initiated by the premier. However, also in Haida Gwaii, a whole new kind of treaty built around co-jurisdiction and governance arrangements is emerging; not around land but around governance. I think innovation is taking place in accommodation agreements all over the place in B.C., but these innovations largely happen outside the British Columbia Treaty Commission box. They do not take place in the federal framework; they take place outside it. The process we have now is deeply constipated, and people are finding ways around it. That is interesting, but I think we need the kind of reflection at the centre that your question posed as well.
Mr. Merritt: What you said about cynicism is interesting. It is important that people not become cynical, for the reasons you cited. Blame is ultimately irrelevant. Life in the rear-view mirror does not take us anywhere. The problems, by and large, are impersonal and institutional. They are not a function of ill intentions, conspiracies or anything of that kind.
Individuals can make a difference. You heard from Raymond Chrétien, and I think you had a compelling presentation, substantiating the fact that a gifted, committed, energized, intelligent individual put in place as a federal negotiator can make a huge difference.
Mr. Aldridge said to you earlier that the Nisga'a have not had a negotiator to negotiate the most important issue in their world since 2005. At NTI, the federal government walked away from negotiations in 2004. It is hard to find solutions when people will not appoint negotiators. I do not know what is left. That situation is not a question of blaming the negotiator; that problem is because we do not have a negotiator. The negotiator does not come with a bad attitude; the negotiator does not come at all.
Have there been interesting, positive experiences? Sure: In NTI's case, to our surprise, we were allowed to work with former justice Tom Berger, who spent 15 months as a conciliator, along the lines that my friend Mr. Penikett talked about. He came up with an excellent report. The interesting thing about that report is that when the correspondence was exchanged about its fate, the answer we received from the then-minister was he could not act on it because he would need to go to cabinet.
NTI's response was, ``Go to cabinet.'' To us, that was not an answer. That was only a direction. Yet, that response was marketed as a complete answer as to why action on that report was inconceivable. With roadblocks like that, optimism is difficult to sustain.
Senator Dallaire: You said that when the federal government finally comes to the table, they come with a fait accompli. They have already gone through the exercise internally, and it is a take-it-or-leave-it discussion. When they do this work of negotiating within the government matrix of all the government departments, what criteria do they use for settlement? Do you know what they try to work out as a deal when they do that, or do they use a template to work out an all-government solution before they come to you?
Mr. Aldridge: That question is an excellent one. The short answer is that we see it only through a glass darkly. We receive little bits and pieces, but nobody has ever told us exactly what they do.
Here is how it appears, though. I will give you an example. Part of the Nisga'a proposal under the fiscal financing agreement is for increased funding to support fisheries management activity of the Nisga'a government. As senators will know, and Senator St. Germain and Senator Campbell know especially, the Nass River is the third largest river in British Columbia; it is the third largest salmon-producing river in British Columbia; and, it has recently been named by the Sierra Club as the best managed watershed on the West Coast. The Nisga'a government manages it, but money is short. We said to the Department of Fisheries and Oceans that we need more money to support these activities. They said no, you must deal with that issue through fiscal financing.
The negotiations did not start, so we attempted to raise it at fiscal financing. We said that we need this money, and we were told by the official that the Department of Fisheries and Oceans said no. Why did they say no? The answer was, there seems to be authorities problems. What does that mean? That means that the funding that the Department of Fisheries and Oceans has comes with authorities and restrictions that were not devised in contemplation of land claims agreements. Therefore, it is not on the list, and they cannot transfer the money from that pot to the land claims agreement implementation pot.
We are supposed to say, ``Thanks for trying.'' I believe the answer to your question lies in there somewhere.
Senator Dallaire: Process and more process dominate the whole exercise, and not necessarily content. It is process.
Senator Campbell: Do not think that the term, ``I have to go to cabinet,'' is rare. It is a way of stopping things from going forward, and it is used all the time. We hear, ``Do not do anything with this issue. They are going to cabinet, so do not worry about that.''
It will come as a big surprise to my colleagues, but some 20 years ago, I took extensive training in alternative dispute resolution. I want to make sure we are clear about the differences between arbitration and mediation. Unless it has changed in 20 years, we learned about both, but then, by looking at personality, they decided whether they wanted to be an arbitrator or a mediator.
We cannot use those terms interchangeably. What we want is arbitration, not mediation. One can book out of mediation, but with arbitration, they had better hang in there because if they do not, the other party will take advantage of that situation.
At the end of the day, an arbitrator says, ``This is my decision. It is binding on both parties,'' and away the parties go. It is a dangerous way to go. It shows, from my point of view, a huge amount of respect for the process because it can go any way.
My question is: Do we go straight to an arbitrator? Nobody in these discussions should be able to say, ``We are not coming. We will not appoint a negotiator. You must go to another body.'' Then, negotiations are jammed.
Is arbitration what you want, and are you prepared to live with it no matter what happens?
Mr. Penikett: Let me separate the question into two, Senator Campbell. The question is an important one.
Treaties are constitutional documents, so for good reason, I think, the federal government will not let Vince Ready or some other arbitrator from British Columbia, even the celebrated ones, make final decisions on big constitutional questions. They properly will say that it might go ultimately to the Supreme Court.
However, on clear financial issues such as the ones faced by NTI or the more recent one faced by the Nisga'a, there is absolutely no reason why arbitration is not a cost-effective solution, a way to proceed, especially if there is a backlog of these issues.
I argue, though, that even on the constitutional questions, skilled mediators can add value, and the point about the mediators is they can act during the process. If they reach a little impasse or a logjam, the mediator can sit down with the parties, work with them and bring them back onto the negotiating track. That is the value. The arbitrators can come in on questions like the money questions when parties have reached an absolute impasse and they need a decision.
Senator Campbell: You talked about two completely separate situations. I have no problem with mediation working as they go through the process. That process is ongoing and keeps everything rolling along. I agree with regard to arbitration and constitutional issues, but for arbitration to truly work, both parties must agree to say two things: First, we accept the decision; or, second, as two parties, we both agree this decision cannot be made by arbitration and we must go straight to the courts. Those two divisions must be there.
Chair, we continually hear about this relationship between INAC and First Nations. Blow it up; blow up the department; get rid of it; it is parental; it is disgusting. You said it no clearer. Here we are, and they are still dealing with the North and they do not have anything in there. It has all been agreed to. All that money they have put up there should go to these people. I do not know how often we need to hear this message, and we continue to hear it: INAC is dysfunctional. They probably work hard, but there is no place for INAC any more.
Mr. Aldridge: To comment on Senator Campbell's last point, one of the Yukon chiefs, when we all met back in December, pointed out — sometimes obvious things need to be pointed out, to me at least; I had not understood it before — the irony that there is this gigantic branch within the Department of Indian and Northern Affairs called the self-government directorate. Think of the words, ``self-government directorate.'' The branch is a gigantic part of Indian and Northern Affairs Canada.
As far as arbitration and mediation goes, I want to be clear. The distinction you made is absolutely valid. The ground rules you outlined are absolutely correct. Each agreement has within it a chapter on how it works — in the Nisga'a case, a detailed chapter on how they book in and out. It is not a situation of, ``We are stuck; let us hire an arbitrator.''
We have not turned the agreement on or taken it out for a drive yet. The problem is that we know from our colleagues that the federal government will not agree.
Senator Campbell: That is simply not an option. If they make arbitration or mediation an option, it is useless. If I have my choice, I will not go to either one of them, but they do not make it an option when they deal with this process. If parties cannot get their act together, they will go to arbitration, period; end of the story. If they do not show up at the arbitration, the arbitrators will hear only one side of the story, so parties had better show up.
The Chair: I have a short supplementary question on this issue for the legal minds here. Considering that these treaties include dispute resolution mechanisms and arbitration provisions, if we set up an independent body to deal with implementation, should that body be able to resolve disputes? How will this body relate to the dispute resolution process contained in the treaties? Can it supersede these provisions?
Mr. Penikett, you have followed the hearings on Bill C-30. This committee recommended some of things that are in that bill, including an independent adjudicator. If an independent adjudicator were established, as the independent body, in a central agency such as the Privy Council Office, would it be proper for that body to override the provisions of arbitration and the dispute settlement resolution mechanisms such as those that you, Mr. Aldridge, negotiated in your treaty?
Mr. Aldridge: From the Nisga'a point of view, the answer is absolutely not. We do not propose the establishment of a new adjudicative tribunal. Mr. Penikett did. The coalition has been clear. You will see in the discussion paper that members of the coalition were at pains to say that they all negotiated their dispute resolution processes and they do not want them replaced, tossed out or superseded. Rather, we want a bureau within the central agency — and we suggest the Privy Council Office — with the appropriate bureaucratic hat so a deputy minister does not say, ``I do my best, but the other departments won't listen to me.'' We must have someone who is listened to. We want a commission that would hear and recommend to Parliament in line with the function of an Auditor General. We would rather leave the dispute resolution mechanisms to each agreement, where they have been painstakingly negotiated. We prefer to recommend that the federal government abandon its policy of routinely refusing to go to arbitration, particularly where money issues are involved.
Mr. Penikett: I agree with Mr. Aldridge. The problem is that when Nunavut's agreement was tested, it did not work because the other party would not participate. That goes back to my main argument, so I recommend that anyone in negotiations now test drive those dispute resolution processes during negotiations and adjust them if necessary. Otherwise, parties may be disappointed.
Finally, even if the agreements are all working, some issues will still arise for which no body is available, which is why I think there is virtue in having some other adjudicative forum.
Mr. Merritt: I agree with the remarks of my colleagues, but would add a bit of detail to NTI's experience. After negotiations, which essentially ended with the disappearance of the federal negotiator, NTI offered, on different occasions, to send 17 separate issues to arbitration. I accept Senator Campbell's point. Arbitration is a risk for both sides. NTI is not naive. NTI realized the issues would go before a panel of fair-minded people who would make a decision, and they would have to live with that decision. However, all 17 proposals were rejected.
One issue in our court case is that it is not possible to reject 17 offers to arbitrate and still suggest they are implementing the agreement in good faith, when an entire chapter is devoted to the possibility of arbitration. That issue is before the courts.
There is an irony to this issue. By rejecting arbitration 17 times, they help to bring about court resolution instead. They do not dodge the issue; they only transfer the problem and elevate the stakes, which is not terribly helpful.
When former Justice Berger looked at the Nunavut implementation issues, he said arbitration should be routinely available. He said that the only time the federal government should reject arbitration is when a vital national interest is at stake, when something in one agreement has spill-over effects to other regions of the country. That test seemed reasonable, but it would not justify rejecting 17 offers.
Senator Hubley: The deputy minister suggested, when he was before the committee, that using broad aspirational language in agreements, such as language identifying broad principles and objectives, may not be practical. He also suggested that he prefers to dial down the language to something that can be tracked and traced. Do you think the language is a problem, and what might the deputy minister mean by ``tracked and traced''?
Mr. Merritt: If you look at these agreements as agreements between societies, to suggest they should not have aspirations is to say that societies should shoot low, avoid controversy, settle the small stuff and bury the big stuff. That is such a modest project in terms of finding long-term accommodations between Aboriginal peoples and non- Aboriginal peoples that you have to ask why we would bother to do that in the first place.
From the Aboriginal side, you would certainly ask why we would exchange common law rights in relation to lands and resources for a set of society-shaping treaty commitments engaging the honour of the Crown if all we received was a set of straight-ahead, check-list kind of adjustments. I hear what he is saying. Yes, aspirations are difficult to fulfil; that is precisely why they are aspirations. Of course, the more important the document is, the more ambitious the aspirations.
As Mr. Penikett said, these are section 35 Constitution documents. Analogously, the Charter of Rights and Freedoms is ambiguous from top to bottom and generates all sorts of interpretations and conflicts. However, precisely because it is so important, it must be conceived, respected and implemented, however difficult. I accept his analysis, but I think he has come to a diametrically wrong conclusion.
Senator Hubley: Raymond Chrétien, the chief federal negotiator, appeared before this committee. He was working with the spirit of the document rather than necessarily the letter of the document. That approach was positive. He approached this task with the goal of getting the job done. Difficulties were things to be overcome by both sides, but both parties seemed to know that they would do the job this time, and in three short years, great progress was made.
How difficult it is to replicate that experience?
Mr. Aldridge: We would like to find someone like that. I do not know how many of them are available.
Senator Hubley: There must be others.
Mr. Aldridge: I have a slightly different take on this matter than Mr. Merritt. If we look at the sequence of land claims agreements from the James Bay and Northern Quebec Agreement in 1975 through to the more recent agreements, we see an evolution in the style, language and format of these important agreements.
There was a time during the 1980s and the early 1990s when the agreements tended to have more of what has been referred to as ``aspirational language,'' or statements of objective. On one level, for the reasons Mr. Merritt said, that language is not a bad thing, but the cynic in me looks at it slightly differently.
Aboriginal groups would say, we want a hard obligation on this matter. There is a point we want. We give you a proposal and we want you to promise that such and so will be achieved or that you will deliver this, that and the other. The Government of Canada will say, we cannot possibly promise to do that, but we will agree that we will put in the language that it will be a shared objective of the parties to work toward that goal.
The objective is a step down to what the Aboriginal people wanted, which was a traceable commitment that could be tracked. Instead, they were required to settle for a mere statement of objective, an aspirational statement.
Now, the issue comes full circle and the Government of Canada says those are only objectives: in Inuvialuit, those are their objectives, not our objectives; or in NTI, those are objectives and they are not enforceable. They say it would be better if the agreements did not have these aspirational things in them. Well, they are only there because the government would not agree to the hard, traceable commitment.
The Nisga'a agreement has few statements of that sort because the Nisga'a, from whom I took instructions, said we are not interested in the poetry; we are interested in legal, contractual treaty commitments. The objectives of the agreement can be discerned by reading the agreement as a whole, but there are few places where there are statements of objectives or aspirations.
Mr. Penikett: I want to add something on language, senator, because I have thought about this issue a lot. I am one of the hundreds of people responsible for the Yukon land claims final agreement being longer than the New Testament.
It has always bothered me that, by contrast, the Constitution of the most powerful nation on earth is about 12 pages. I have come to conclude that we would be better off if we wrote treaties as plain-English, principled agreements and left a lot of the appendages — information about how many people sit on the wildlife committee, what constitutes a quorum and what day of the week it meets — in administrative appendices.
I went through an exercise of trying to draft a template for such a treaty when I was a B.C. deputy; it was 30 pages long. Beneficiaries are far more likely to read a plain-English, 30-page document than a 300-page document which, in the case of the Yukon agreement, has legal language, literary language and sentences that are neither, which does not make good bedside reading.
The language of these documents is important. Whether we aim high or low, I am in favour of shorter, tighter treaties — because they are constitutional documents — than the ones we have now.
Senator Peterson: Gentlemen, in your experience over many years, have you ever had the feeling that the government was sincere in trying to reach the implementation?
Mr. Penikett: I did not hear the question.
Senator Peterson: In your many years of dealing with governments, have you ever felt that they were sincere in trying to reach a solution to the implementation? You reached your agreements, but what about the solution to finalizing the implementation?
Mr. Aldridge: For my part, there were many instances of individual officials who sincerely wished to solve the problem. However, I cannot think of a clear instance where ``the government'' was sincerely trying to solve the problem, at least until this committee started pushing and probing. Now we see little glimmers of at least expressed desire to solve the problem.
Mr. Penikett: One of the problems with political careers is that they tend to be short — although not in the Senate. As a minister who is around for three, four or five years, someone may be able to push negotiations a long way and may come to the point of reaching an agreement. If there is the rare case of someone being around to see an agreement implemented, a clear demonstration of political will can achieve a lot. For example, while we had the norm of 20-year negotiations for most of the northern treaties, the James Bay agreement was completed in something like 2 years because there was extraordinary political will, both at the federal and provincial level.
Mr. Merritt: Governments are big and complicated, and cannot be said to have feelings per se in a discernible sense. Going further, most individuals I have dealt with have been sincere individuals, and I do not question their sincerity.
It seems to me we are back to a point that Senator Dallaire made: At stake here is whether we solve problems. Merely sustaining progress out of sincerity of intent is not solving the problem. Therefore, your question is beside the point in most cases.
Senator Peterson: It appears to me there is a lot of fear out there. Nobody is moving. What do you recommend this committee could try to help you kick-start this process, other than coming to things like this committee for another 10 or 12 years?
Mr. Merritt: One thing that motivated the coalition from its creation, and the groups that have come forward — as well as us, as individuals preparing for this evening — is to try to give you a set of specific objectives as stripped-down and crystallized as we can make them.
The last time we were here with the coalition, Mr. Aldridge and I said we are not experts in the machinery of government, so we cannot tell you that some institutional shift will solve all problems. It will not. We know if you make some central changes to how the institutions are set up and how they are directed to meet fundamental objectives — and to start solving problems now as opposed to sustaining processes — if you can offer your ideas about a path forward, that will be extremely helpful.
Mr. Penikett: Having no marketable skills, I am one of those rare people who have been both a minister and a deputy. One reason why governments go to private contractors as negotiators — people like Raymond Chrétien sometimes — is because the character of public servants is to be risk averse.
They are cautious, and they should be cautious, with public funds. They are not what would usually be called ``entrepreneurial personalities''; they are not innovators. There are wonderful exceptions within every public service in which I have worked, but that situation is the norm.
Therefore, they go to outside contractors and they usually have teams of people they work with. Whenever I had an interdepartmental team, the truth is that a couple of people on the team would be productive and huge contributors, and others would be less so.
It occurs to me that in the proposals coming from the coalition and others, if we had someone with the independence of a Mr. Chrétien or an outsider like the Auditor General as a spur — as an active auditor of the implementation of these things, publishing reports that were received by Parliament and read — that role might make a real difference.
As you know, the Auditor General's office does not do this review every year because they have a cycle of audits. The office comes back through INAC every so often and I have been on advisory committees to the Auditor General.
However, given the volume of issues before government, we almost need someone doing this full time; someone who is independent and someone who has the personal authority, like a Mr. Chrétien, to assure an audience if they raise concerns; and someone who would speak and be listened to by the media, by Parliament and by departments.
Senator Gustafson: I have been listening here and I have attended several of these meetings. A couple of things come into play. One is, how many cases do we have to solve; and two is, how much money will it take to solve them?
If I make a deal with someone to buy a farm, I need to know what I can buy it with. I wonder if government is not saying, we will reach a little agreement here and that agreement will push the matter on another few years.
I do not want to say that some do not want a settlement, but maybe they want to keep the door open.
Mr. Merritt: That observation, senator, ties in closely to a point I tried to make in my presentation. It is important to give direction to public officials as to what kind of time frame officials have to assess options. Every homeowner knows that one option for the porch that is about to collapse is to put a coat of paint on it and hope it lasts the season. A better investment is to determine what we are trying to achieve. What is the objective? What is the pay-off for something that is essentially only crisis management as opposed to something fundamental in terms of objectives?
One thing I found interesting in Mr. Chrétien's testimony is that in the negotiations — if I had more time I would give you the exact quote — he said they started to look at solving problems in 20-year time horizons. They were making calculations inside the federal government as to what the 20-year choices were. That point is important.
At NTI, we do not have a negotiator, but the people we deal with essentially have a current-year financial framework and that is it. We can say they are spending $65 million a year and, if they bring in the actuaries, the long- term cost will be off the charts. We can say, if they do not fix these problems now, they will generate larger costs later. That information does not help them because they are not given mandates or encouragement to try and solve problems in a longer term sense. The element of time is essentially stripped out of their equation. The fact that Mr. Chrétien, in the Cree case, insisted on seeing what the Government of Canada was trying to work through with the Crees over a 20- year time cycle was a crucial element in how he was able to convince people inside Ottawa that those commitments, even if on the face of them looked large, in the long term they were a good investment.
Senator Gustafson: If they pay interest for 20 years, it amounts to an awful lot of money.
Mr. Merritt: The dilemma for government is that problems unsolved do not disappear. It is trite to say that, but in many cases, in the implementation world, we negotiate as if tomorrow never comes and as if problems will somehow be resolved in the absence of action. That is a fantasy world, from my perspective. It is not a choice; it is hoping that the future looks after itself.
Senator Dallaire: I do not understand why the people who work from the government side seem to be so short-term oriented in implementation plans that should be in place for eternity. It is not as if the nation will disappear in 20 years. I look at the negotiations for those who suffered through the residential schools, and we come up with a solution for 12 years of funding — now three years of funding — as if suddenly they will be healed psychologically in three years. We fund veterans for life because of the trauma they endured, but victims of residential schools receive funding for only three years.
I came from a department where I planned for the army 25 years down the road, with a capital program 15 years down the road and rolling.
When they move into these negotiations, are they limited to the budgetary fiscal year plus maybe one or two, or are they authorized to do the long-term negotiations and then work back from that negotiation on implementation costs?
Mr. Aldridge: The situation varies from agreement to agreement, senator. Remember to make the distinction between the one-time expenditures and —
Senator Dallaire: I am in implementation now.
Mr. Aldridge: Our fiscal financing agreements are supposed to last five years. Five years is the horizon. It becomes a five-year contract to provide funding for the agreed-upon programs and services. That is the horizon.
However, it appears to us that the way the agreement is implemented is that there is not a separate pot of money allocated to the provision of programs and services under the fiscal financing agreement. Rather, there is an assembly. Officials from the Department of Indian and Northern Affairs go out and haggle, as they testified to you, for bits and pieces of funds already appropriated to similar programs and services out of other departmental budgets. Then, they package it all together and say, presto chango, this money is no longer other departmental money; this money is implementation money or, in our case, fiscal financing money. Why do they do it that way? That is a good question; we are obviously opposed to that approach.
In the meantime, Nisga'a are in year eight of our five-year agreement, NTI is in year fourteen of their ten-year agreement, Yukon is in year nine of their five-year agreement, and the government is pocketing savings. They are not making money as far as we know, not yet, but who knows? When we reach an agreement, will it be retroactive to the end of 2005? My clients are out of pocket covering the time that the government, as testified to this committee, was haggling with the centre. My clients are bleeding while that haggling takes place.
I know usually it is the other way around, but I have a question, if anyone knows the answer. I am surprised that you do not receive representation from the Privy Council Office because I would think that they are the people who can give answers. We are guessing. They can give answers on questions such as this one.
Senator Dallaire: Guess what, we are like you. They do not want to play with us.
The Chair: It came up last night. They have been invited to attend; but at the present time, they have declined to do so, due to unknown reasons. Having said that, the ``central agency'' that Mr. Penikett referred to that could become a player in the whole process of resolving this implementation dilemma.
Senator Dallaire: Have you thought of the concept of an inspector general of implementations of treaties who responds directly only to the minister or to a grouping of ministers with authority and a budget?
To give you an example, if we look at the three Ds — defence, diplomacy and development — there is an idea of having all three of them together out there in the field with a pot that all three must go to for money. The idea is that they will not have independent budgets.
What if you had an inspector general with some of these ministers together but also with access and authority to implement demands on budget calls in, not only the current year, but the whole five-year rolling program? That option does not exist now, apart from the Auditor General; is that correct?
Mr. Aldridge: As far as we are aware, that option does not exist now.
Senator Dallaire: Indian and Northern Affairs Canada, as an example, does not have an inspector general of what is happening inside the department?
Mr. Aldridge: Yes.
The Chair: I have one short question regarding arbitration. As you know, Mr. Aldridge and others, I do not have a law degree; but it came out that the government seems to have the privilege of not appearing at these arbitrations. If a resolution cannot be arrived at, what is there in law to force the government to arbitration? You negotiate these agreements in good faith, and if you put an arbitration clause or dispute settlement mechanism process in the agreement, and one side refuses to go to the arbitration process, can anything be put into these agreements to mitigate costs? If parties do not go to arbitration then they go tolitigation. Then they are involved in the horror story of huge legal costs.
Can we recommend something in the process to this dilemma? As you say, if the Department of Finance says they will not go to arbitration, then you are left standing there.
Mr. Aldridge: Again, the difficulty is the historical evolution of these agreements. The Inuvialuit agreement included a provision for compulsory arbitration. After Canada agreed to that arbitration, they said, metaphorically, ``never again.'' There has not been an agreement signed since Inuvialuit that includes compulsory arbitration on a general scheme. To be pedantic for a moment, there are some provisions on particular limited issues, but not on financial issues.
In every one of the agreements, the only way in which the federal government would agree to including arbitration provisions at all was if the provisions were included with the mutual consent of the parties seeking to arbitrate.
Nonetheless, as Mr. Berger pointed out in the conciliator's report on Nunavut, that situation still gives rise to the reasonable expectation that they will avail themselves of arbitration from time to time and not routinely turn it down.
To answer your question, is there anything in those agreements in law that can be used to force Canada to agree to arbitration: not that I know of.
Mr. Merritt: The question you raised is precisely one of the questions involved in the NTI litigation: whether there is an enforceable requirement on the part of the Government of Canada to use arbitration in disputes — not necessarily all disputes, but certainly in disputes that arise from time to time. Of course, the contrary proposition is that the Government of Canada can veto arbitration each and every time.
The Chair: I thank the three of you for having brought your experience and integrity to the table. You have greatly contributed to our study, and hopefully we can bring recommendations forward that reflect the quality of your presentation and your presence here tonight.
Honourable senators, does anyone want to cover anything else? If there is nothing else, I thank you for your participation.
Senator Sibbeston: Would you remind members of the meeting we will have next week so everyone knows what is upcoming?
The Chair: We will commence hearings on the Kelowna Accord. The initiator of that legislation, member of Parliament Mr. Martin, will be requested to appear. Providing he appears, we will have a meeting next Tuesday.
If there is no other business, honourable senators, the meeting is adjourned.
The committee adjourned.