Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 10 - Evidence
OTTAWA, Wednesday, April 9, 2008
The Standing Senate Committee on Aboriginal Peoples met this day at 6:22 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 Nick G. Sibbeston (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good evening. We are gathered here today to continue our study of the implementation of modern land claims. We have to date heard witnesses from Aboriginal groups who have formed an alliance to work together to deal with this issue. We have heard from government departments, notably, Indian Affairs and Northern Development Canada, Public Works Canada and Parks Canada. Last week we heard from counsel from Nisga'a and Inuit people.
We are coming to the end of our study. Tonight we have Mr. Richard Van Loon, who will provide his views on the type of institutional and governmental changes that are necessary to improve the implementation process.
I would like to introduce the senators here tonight for our viewing audience. We have Senator Charlie Watt from Northern Quebec, Senator Elizabeth Hubley from Prince Edward Island, Senator Roméo Dallaire from Quebec, Senator Lovelace Nicholas from New Brunswick and Senator Leonard Gustafson from Saskatchewan.
Mr. Richard Van Loon was appointed President and Vice-Chancellor of Carleton University on August 1, 1996. He served as president until July 2005. His career in government and academia has spanned almost 30 years. Prior to his appointment at Carleton, he was Associate Deputy Minister, Health Canada, for two years and also served as Associate Deputy Minister, Indian Affairs and Northern Development Canada. He has taught political studies at Queen's University and public administration at Carleton University and the University of Ottawa.
Good evening, Mr. Van Loon. Feel free to proceed with your presentation.
Richard Van Loon, as an individual: Thank you, Senator Sibbeston. I do have some opening remarks. As you will have noted from the introduction, I have been quite a long time away from the land claims process. I do not suppose I could claim that nine years as president of a southern university, a couple of years in another government department and three years of semi-retirement exactly make me perfectly up to date. However, I did take the opportunity to read the remarks made by many of the other witnesses, and I must say that reading their remarks, and some contemplations that I have had over the years, has brought back a lot to me. I do feel privileged to be able to speak to you, and I am looking forward to it.
I was privileged, too, to be responsible for comprehensive land claims at a time, between 1986 and 1994, when the Government of Canada changed its land claims policy very substantially and, as a result, we were able to arrive at a large number of comprehensive claims settlements. It was a wonderful time to be involved in land claims negotiations.
With respect to the substance of what you are contemplating right now, the main issues at the time I was responsible for land claims and Northern programs were land claims settlements rather than implementation. We were certainly concerned with the implementation of the James Bay and Northern Quebec Agreement, and I must say — truth in advertising — we did not actually arrive at a settlement while I was there . We could also see the problems in implementation of the Inuvialuit Final Agreement. As a result of that, the land claims policy that the Government of Canada put forward in 1986 paid much more attention to implementation planning than was the case before that time, but still it was not the main issue with which I was primarily concerned.
I would like to start with comments on three specific points. Then I would like to look at the role of DIAND in the context of government, and then I want to look at the proposals that were put before you by the coalition that Senator Sibbeston referred to at the start of his remarks and put forward a possible variation, based on my own experience. These are not in order of importance. They are almost in reverse order of importance, but I do not want to categorize them as one being more important than the other.
I will start with the role of arbitration. Many of the people who appeared before you referred to the reluctance, I might even say absolute reluctance, of the Government of Canada to use arbitration in settling implementation issues. All of the claims settlements with which I was involved have arbitration clauses in them. We certainly expected them to be used, but we expected them to be used only rarely. That was because of two things that could be observed by a political scientist, which I am, as well as by a former government official.
There is a view inside government, right or wrong, that arbitrators tend to view the capacity of government to pay money as infinite. Therefore, the arbitration settlements of financial issues tend, in government's view, to fall on the much-too-generous side. That certainly makes the Department of Finance and the Treasury Board very reluctant to approve any kind of arbitration about anything that has to do with money in land claims settlements.
In addition to that, because arbitration is an uncontrolled situation as far as government is concerned — and many of you who have been involved in government in one way or another will know that governments hate uncontrolled situations — that also lends a reluctance to use arbitration.
That suggests to me that if arbitration is to play a significant part in the settlement of implementation issues in land claims, it may be necessary to set out general conditions under which it will be used. Whether the Supreme Court of Canada is the right place for those conditions to be set out, or whether they can be set out in something which I will suggest at the end of my remarks, is an open question. There needs to be further agreement among the claim beneficiaries and government about when arbitration is to be used.
Second, I would like to comment on program funding of implementation. Many of your witnesses expressed surprise that the funding for implementation issues was handled in a normal program budgeting way. The deputy minister, Michael Wernick, covered this very well when he spoke to you. It is simply the way governments budget, and it really does not matter inside government whether we are talking about something which is constitutionally protected or not. Governments fund programs and they do budgeting on a program-funding basis. That applies as much to equalization — which actually appears in the 1982 Constitution as a word — as it does to comprehensive claims settlements. The expectation that there will be something other than normal program budgeting to deal with comprehensive claims implementation may not be particularly realistic.
A claims settlement group might point to something like the Green Plan — this goes back to my days in the federal government — that we had in the late 1980s and early 1990s and point out that there was a program budget envelope there from which money could be drawn.
That is true. However, before you could draw the money, you had to go through the normal program budgeting process. As it happened, in the case of the Green Plan, over half the money was never spent. Therefore, even if there is a dedicated envelope, it does not change the process which you have to go through in budgeting.
Third, I would like to look at a comment made by more than one of your witnesses: that the real negotiations with respect to implementation take place within government. The Aboriginal people, the people who are on the other side of claims implementation, basically get a take-it-or-leave-it answer.
From what I have just said, it is true that DIAND must negotiate funding internally with Finance Canada and with Treasury Board. Sometimes it is necessary to actually go to cabinet to try to put some fire under Finance Canada and Treasury Board.
However, what I did not see reflected in the witnesses' comments — and I cannot say whether this is something which has changed since my time in government or not — is the fact that, when we were arriving at claims settlements, there always was an informal second table. At this table, we in DIAND or inside government would try things out on the people we were negotiating with.
Sometimes the answer which we were carrying back from Treasury Board or Finance Canada was quite unacceptable to the other side. We developed an instinct about that. When you are in the bureaucratic business and you have to deal a lot with people outside your department, you develop an instinct about how much flexibility Finance Canada and Treasury Board have and how hard you have to push on behalf of the claimant group. There is a lot of back and forth, at least there used to be, even though, in the end, someone who would have to put forward a take-it-or-leave-it answer.
My experience in claims settlements was that, while we came within the original mandates which we had from cabinet on many matters, there were always some which were substantially changed from the original mandate. Sometimes that was over quite substantial resistance, usually from the Department of Finance or the Department of Justice.
I will give you a couple of examples: The financial settlement in the Gwitchin and Sahtu claims were substantially above the originally-mandated amounts. The structure of the Yukon First Nations land claim, that umbrella structure of a land claim agreement, was unique. There was reference to in the original mandate but the final settlement was a long way from what was contemplated in the original mandate. Again, that was due to ``back and forthing'' among negotiators, officials in DIAND and the government.
To take the biggest example: at the time that Minister Tom Siddon agreed to create Nunavut, we had no cabinet authority to do that. In effect he was operating not just outside the original mandate, but outside the current instructions of cabinet. It was very courageous on his part to do that, but we could see from the government side that sooner or later Nunavut was going to be created. Why not do it in a full and generous way and as part of the land claims settlement? So we did. The point I make is that it was outside the original mandate, and it was put into the settlement as a result of a lot of ``back and forthing'' during the claims negotiations.
I would like to say a bit about the role of DIAND within government. In the comments of many of the witnesses, there was a strong feeling that DIAND could not do the job for them; that DIAND was not the place to be the centre for implementation of claims settlements and so on. Many people seemed to find it quite a revelation when the Deputy Minister of DIAND, Michael Wernick, said DIAND has had difficulty in the past fully engaging other government departments in the implementation of these agreements.
I looked at the testimony that Tony Penikett gave a few weeks ago. He referred to me by name and said I would not say that. I did not always agree with Tony then and I do not necessarily agree now. I probably would have said that. DIAND does have difficulty in getting the cooperation of other government departments in the implementation of land claims.
This is not a surprise. Every government department, whether they are working with something constitutionally protected or not, has problems getting other government departments to do things. Bureaucracies are not pure hierarchies. You know that. It is simply a fact that departments are independent and represent many different interests. You must built coalitions and consent in order to do anything inside government.
It does not matter whether it is the federal government, a municipal government or a claim group. The people who negotiated on behalf of Nunavut or the people who negotiated on behalf of the Yukon First Nations had to build their own coalitions inside their claims settlements. Not all 16 Yukon First Nations were highly enthusiastic about the umbrella final agreement, but a coalition had to be built in order to get the agreement.
It should not be surprising, though it seems to be, that inside government, departments have to build coalitions to get things done. That will just always be so. It is the responsibility of DIAND, in implementing claims negotiations, to build those coalitions. It is not an easy thing to do. That is what I read Mr. Wernick as saying. I also read his remarks as saying we are trying very hard to do it. Sometimes it is easier than other times. It honestly was not all that difficult for a number of reasons when I was at INAC. However, it still can be done.
What seems to have broken down in this case is a recognition that there is an essential alliance between the people who are primarily responsible for claims implementation inside government and those outside government. The people who are responsible inside government are DIAND. The people who are responsible outside are the members of the coalition or members of claim beneficiary groups.
That is an alliance, and it is a coalition. DIAND depends on the cooperation and the push of the outside groups in order to get things through government. However, if the outside groups are saying, as I have heard some say, that DIAND is a place of ill will, it is inept, it is not able to ``carry the can'' inside government, all they do is diminish the ability of DIAND to work inside government.
While the Auditor General pointed to a number of problems in what DIAND does in claims implementation, I think she was also right in saying that, when things break down, there are two parties involved, and both sides must work on it.
I want to say a bit about the role of Government of Canada in Aboriginal affairs too and, by extension from that, the expectations of the claims groups. This is not going to be particularly popular with the groups with whom I have often negotiated comprehensive claims settlements.
However, we have to remember that the Government of Canada, mostly through its action arm, DIAND, is responsible for all First Nations on reserve. It is responsible for the territorial governments, it is responsible for the Inuit in varying degrees and it is just as responsible for ancient treaties as it is for modern treaties.
Claims settlements and claims are only part of its responsibilities, and claimant groups are a minority of Aboriginal people.
It is unrealistic for claims groups to expect all of their relationships with the federal government to come through the claims process. Most, I would guess, of the economic development matters that flow to many of the claims groups will come through normal programming, not through comprehensive claims programming. Why? Because, although those who have signed modern treaties do have a special status, the Government of Canada must also be thoroughly mindful of its responsibilities for all the Aboriginal people under its mandate.
On the other side of that coin, it is not always recognized within the Government of Canada, in fact, I think it is rather seldom recognized within the Government of Canada, that the Government of Canada is also a major beneficiary of claims settlements. There always has been — and I am sure there still is now — an inclination inside government to think that a claims settlement is something where the federal government pays out money, maybe some outside interests get some land-title issues dealt with, and the Government of Canada really does not get much out of it. This is just not true.
Many of the departments in the Government of Canada depend on claims settlements for a lot of their work. Parks Canada and Environment Canada depend on claims settlements for a lot of the work they do in various parts of the country. The Government of Canada is as much a beneficiary of comprehensive claims settlements as the other side.
This is kind of an aside, but there is a vocabulary problem here. I am as guilty of this as anyone else. We talk about claims beneficiaries as being ``out there.'' If the Government of Canada, provincial governments and people outside government entirely are also beneficiaries of claims settlements, it is rather strange to identify just one group as claims beneficiaries. We are all beneficiaries of claims settlements. Inculcating that attitude inside the Government of Canada can be quite a difficult thing. That is another one of the responsibilities of Indian Affairs and Northern Development Canada. It takes a lot of talking and sometimes pushing on people in ways they do not want to be pushed, but it is still an important point to make.
Finally I want to turn to the proposals. I am finally getting to the machinery-of-government issues. I want to look at two of the proposals made by many of the people who were witnesses here.
The first is for a land-claims agreement commission, and the second is for something which has gone by the title of ``bureau of modern treaties'' in the Privy Council Office.
The land claims agreement commission idea — where someone who was a commissioner for land claims settlement and would be a continual observer of land-claims settlements and would be attached, likely, to the Auditor General's office — actually found some favour, I noted, with Michael Wernick and the Department of Indian Affairs, but I am skeptical about it for a number of reasons.
First, it is another accountability structure in a government which is strangled with accountability structures. Part of the problem in getting implementation settlements is that no one seems to be able to — we use this word carefully — ``freelance'' anymore. No one seems — in the bureaucracy, certainly — to have enough authority to be able to take a few chances. If you add another accountability structure, then you may make that problem even worse than it is now. Certainly, if you create a necessity for yet more annual reports, that is another problem.
There is also no particular evidence, from past experience with commissioners or commissions applied to the Aboriginal field, of much success. There was a Saskatchewan treaty land commissioner in the 1970s — someone may correct me on that. There have been commissioners for specific claims at various times and in various guises. Some of them are authoritative commissioners, that is, they actually have authority to make settlements. Some are observing commissioners. There has been no particular evidence that I could see that they achieved settlement or implementation agreements any faster when you had a commission than when you did not.
A third problem is that a commissioner and a commission can lead to more public airing of grievances. Public airing of grievances is absolutely sometimes necessary, but it can also set people in their ways. It can create resistance and pressure inside government.
If you set up a lands-agreement commissioner, I can guarantee people will pay attention to the first two reports, and that will be it. No one will pay any attention after that. It will not have the same fang as Auditor General's reports do, because it does not have all the variety that Auditor General's reports have. People simply will look at it for a couple of years and then will start to disregard it.
Obviously you do not want to throw the idea out, because Mr. Wernick did refer to it as something they wanted to look at. It is an idea that has been around in the comprehensive claims field for a long time, but you would have to mark me down as rather skeptical about its utility.
The one where I am not skeptical at all is with respect to the bureau of modern treaties in the Privy Council Office. I am not skeptical, because I think that is a non-starter. That is not what Privy Council Office does. Privy Council Office is a coordinating agency within government. It is there to serve the cabinet. It is not there to serve individual or clientele interests. It is not an action agency; it is a coordinating agency.
Even if it were, you have to go back to what I said earlier: you cannot actually make a department do anything it does not want to do. Now that is an absolute statement and many of you who have been around government for a while know that on some things you can, but you cannot do it on very many things. If Natural Resources Canada does not want to implement some part of a land claim and really does not want to do it, unless Privy Council Office — or the Prime Minister's Office probably in the current case — wants to push awfully hard, it will not happen. It does not matter whether it is Privy Council Office or DIAND doing it. In fact, in my experience, having an equal at DIAND pushing you is more effective than having someone from above pushing you, unless it is the Prime Minister or a very explicit cabinet directive.
In any event, it will not happen. The machinery of government does not make that kind of use of Privy Council Office. I can understand its appeal from outside, but it is a concept which will not have any traction in government.
Finally, I want to suggest an alternative. If I do not like the idea of a permanent commissioner very much and I think that a bureau inside PCO is definitely a non-starter, then what else might work? There I would go back to our experience in the 1980s. The process of land-claims settlement negotiations was thoroughly broken in the early 1980s. We had had the Inuvialuit Final Agreement and the James Bay and Northern Quebec Agreement, but those were in the 1970s and nothing much was happening in the 1980s. Many negotiations were going on, but nothing really was happening.
The government of the day — under David Crombie, the Minister of Indian Affairs at the time — appointed a time- limited task force which was to make recommendations on how to fix the negotiation process. The task force was chaired by Murray Coolican, the executive director of the Canadian Arctic Resources Committee, CARC. It had strong Aboriginal representation; there was Inuit representation, British Columbia non-treaty Indians' representation and so on.
It made a report in 1985 — I might be wrong by one year on that. It was a very good report. It looked at what had gone wrong with the process and made quite realistic suggestions about what could be done to fix it.
The report fell on my desk because I was responsible for comprehensive claims at that time. We were able to take the report and, with not an awful lot of changes except that we did not accept the recommendation for a commissioner, we built it into the Government of Canada's new comprehensive claims policy. We made that policy public with a fair amount of fanfare in 1986, and followed it up immediately with claims negotiations. Within the next seven years, we had a very large number of settlements, all under that policy.
What I would suggest you might look at as an alternative to the permanent commissioner concept, and the bureau in Privy Council Office concept, is the creation of a time-limited commission or task force on claims implementation. This would really be patterned after the 1980s task force, with strong representation from the claimant groups, with an outside chair. Then the Government of Canada would be asked to take its report and build it into a new claims implementation policy.
Senators, I have already taken a lot more time than I planned to and maybe more than you can stand, so I will stop right there.
Senator Segal: Mr. Van Loon, it is good to see you again. Thank you for giving so freely of your time to the committee's efforts.
I want to ask a more fundamental question because of your broad experience not only in INAC but in other large government departments, and as someone who has studied and written about public administration in this country to the benefit of a generation of students and public servants over the years.
Should we have a Department of Indian Affairs? Is that not a kind of colonial overhang that reflects the notion of trusteeship, of managing a subgroup of the population as a whole? Do we not have to, in a perfect world — and it is difficult because of the day-to-day burdens — stand back and ask a more fundamental question?
You talked about the 1980s. I recall Minister McKnight from Saskatchewan, who was the minister in charge, Minister Epp on energy, the Prime Minister, Minister Mazankowski, who all wanted the devolution of mineral rights to our First Nations and our territories in the North. They wanted them, as was the case with the Atlantic Accord and the Western Accord to have control over their own future and not be waiting for that cheque from Ottawa.
My experience, having been part of the hired help in the underbrush at the time, was basically between Treasury Board, Finance Canada, and to some extent INAC, there was huge resistance to that fundamental change. To be fair, I think public servants believe that we would be giving away great riches that the country needed over time and that would be an irresponsible thing to do. The presumption was that the riches belong to us here, in the South, for our purposes, and that First Nations and others had interesting rights perhaps, and perhaps we could sort out some access royalty basis for them, but in the end it all belonged to us.
If you accept the premise philosophically that we have become a multinational country, a country made up of the nation of Quebec as part of a strong and united Canada, as well as the First Nations, who are dealing more and more on a nation-to-nation basis with us, should we not be looking at a more fundamental restructuring of our relationship? Is it a relationship that can continue to be served well through a vertical department of government without in any way questioning the hard work, the determination, the commitment, the good faith of the public servants who work in that department? That is not a question at all.
Is the structure itself not so limiting as to really have the effect of holding back our First Nations, holding them back from setting their own terms for their own development, their own economic and social priorities, as we would want all Canadians to have the right to do?
I am not trying to be disruptive to the discussion, which is a focused one about specific options. However, could you step back from the role you played as a distinguished public servant in that department and, based on everything you have seen since, give us your best insight as to whether perhaps we should be aiming a little higher here. Should we be aiming not at administrative and collaborative arrangements, but for something more fundamental, where we say these are First Nations, they do have fundamental constitutional rights, we should be devolving money, mineral rights and other issues to them, and they should be allowed to make their own decisions. Some of these decisions will be great, some will not be so great, just like ours have been. Should we not treat them that with that measure of equality and equanimity? This is not to be provocative, but I would be interested in your perspective.
Mr. Van Loon: Of course I have some thoughts on that. I will start with your last point. To me, the model of where we would like to go is Nunavut. It is not a perfect model because it is still a territorial government. Whether it can ever evolve to be a provincial government in the full sense of the word, I think it is too soon to say. However, we created in Nunavut a place where mostly Inuit, 85 per cent Inuit population, can take responsibility for their own lives and their own future. It had lots of teething pains. Members of the committee will know that very well. There are all kinds of problems with what happens in Nunavut.
My personal feeling has generally been that self-government is better than perfect government; that unless you have self-government you will not ever learn to have perfect government. Part of the impetus for the creation of Nunavut was that philosophical view, which I would say was certainly held by Minister Tom Siddon. It was, you may recall, fairly strongly held within the cabinet. Senator Lowell Murray was really important in carrying the ball forward for the creation of Nunavut. It is a good way to go.
There is a territorial integrity to Nunavut that is very difficult to achieve with reserves, so there is a difficulty immediately in applying that model simply elsewhere.
To go to the first part of your question, which really amounts to what do we do about DIAND? What should happen to DIAND?
DIAND has shrunk a great deal over the years. If we go back to the 1960s and 1970s, there were 30,000 people working in DIAND. Now it is approximately 5,000. It has become a much smaller department and a lot of its work — but certainly not enough of it or all of it — is premised on trying to encourage First Nations to take more responsibility for themselves. It is not always easy to do, it does not always work, and there are a lot of reasons for that. One of the most fundamental reasons is the basic structure of the Indian Act.
Senator Segal has been around government for a long time and knows how devilishly hard it is to change the Indian Act. No matter how much one consults, one will be accused of not consulting enough.
I spoke of coalitions inside government. There are coalitions in many interests among First Nations in Canada and not all of them will agree on what the future should be instead of the Indian Act. Therefore when the government has made serious attempts to make major changes to the Indian Act and to create more independence for First Nations, it has very often run a cropper. There are lots of reasons for that, but I do not think all of the reasons can be laid at the door of the Government of Canada.
When I was in DIAND, the deputy minister for most of the time I was there was Harry Swain. Harry was very keen on exactly what you are saying, and so was I. However, we had to recognize that there were a lot of First Nations that were not in a position to take over the responsibility that we would like them to take over. It was just a very long and hard road in order to get there.
I want to make one comment on the devolution of natural resources to the territorial governments. That story started before I took responsibility for northern programs, it was still going when I left and it is still going now. In some ways, it is a mirror image of what has happened with the Atlantic Accord and with resource issues in the Atlantic Provinces and Saskatchewan.
The position that the Government of Canada takes is that we could, and in some circumstances are willing to, transfer or devolve, all of the responsibility for mineral resources and the finances that would be derived from those to you. However, you cannot expect to keep the transfer payments to territorial governments untouched. There has to be some kind of tax-back. The issue then becomes what kind of tax-back and how much.
Senator Sibbeston will remember this. It was an issue when he was leader of the Government of the Northwest Territories.
Around the periphery of that is the fear that territorial governments will not behave responsibly if given this responsibility. This fear is less on the part of people inside the Government of Canada than people in the oil and mining industry
When I was in the northern programs, my view on that, and I know Harry Swain's view was ``tough.'' If we can get over the financial parts of devolution, the territorial governments are responsible enough to understand that they will not get the development they want unless they find a modus vivendi with the private sector. The private sector is smart enough to realize that if they want in, they have to deal with the territorial governments. We thought it could be resolved in a sense by telling them to work it out between them.
Senator Segal: As a committee, suppose we were to recommend a one-paragraph act that repealed the Indian Act as of a particular date, for example 36 months hence. The Indian Act would have been repealed so it was made perfectly clear that the old way was gone. That would produce discussions about what self-government and other instruments would have to be put in place. It would not be easy. I am interested in that and on the mineral resources: would you would reflect on how else we get fundamental change.
What if we were to have a territorial accord with respect to mineral and energy resources that said four years hence, all those resources shall accrue to the territories as is the case with the provinces providing that between now and then, we arrange an appropriate tax base as we have with all the provinces.
In the Atlantic Accord and the Western Accord, we had all kinds of shoot-outs, you will recall, with our provincial government friends. Apparently some are not quite over. Why would we have a double standard and say it is okay for the established White guys to do these deals and work on the problems later, but we cannot do that with our First Nations as equals?
I am not trying to be provocative. If we are to try and achieve fundamental change, how do you do it unless you say the safety net of the present structure must go? Otherwise, there will be no reason for people to concentrate on what has to replace it.
Mr. Van Loon: With respect to the devolution of natural resources, I would love to hear you say that. I think that might have a chance of actually doing something.
With respect to the termination of the Indian Act within 36 months, Senator Segal, if you were still in the Prime Minister's Office and I were still in the deputy minister's office, I would say that is a very courageous recommendation.
Senator Segal: The good Lord has sorted things out so that neither of us is in those positions.
Mr. Van Loon: It is still courageous.
Senator Dallaire: Was it in 1996 when you left the public service?
Mr. Van Loon: It was 1995.
Senator Dallaire: Which meant you were living in the throes of the massive budget cuts that were coming in.
Mr. Van Loon: Yes.
Senator Dallaire: Was it at that time that Indian Affairs and Northern Development Canada had massive personnel cuts.
Mr. Van Loon: No. It had been a gradual process. Most of it took place in the late 1970s and early 1980s. You will remember the great old, terrible old Canadian tradition of Indian agents. Indian agents were on every reserve in Canada in the 1960s. The elimination of those agents and the support structure around those was when the reduction took place.
With respect to the government cuts that took place in 1995, the only department that did not receive budget reductions in the 1995 Budget was DIAND.
Senator Dallaire: You come across as very pragmatic and realistic in your assessment of the ability of the system of governance, but particularly of our government to be able to handle potentially innovative ideas or significant changes and demonstrate flexibility. The Indian Act has been here for a long time as has the National Defence Act.
Even though the Act still contains the absolutely gross terms of assimilation and so on, could we not take the whole realm of the Crown including INAC and the Aboriginal people and consider a White Paper on a whole new policy restructuring? Such a restructuring would demand a realignment of whatever that government entity would be, even including the building, the name, the logos and so on. However, you would go through a metamorphosis for the future versus continuing to manage based on the past. The bulk of everything we have received has been people handling the past. Often they have been inept in attempting to solve present problems, let alone managing the future.
I say that not pejoratively, but as what we have seen as process. Doing this would introduce new methodologies of program management within the department, a whole program of educating people to handle how one nation will function with other nations on the same territory and work out the details necessary for that.
Has such an idea or concept ever appeared apart from the mid-1990ss when what I call the tiger team, that mixed group, did the review? I asked the Auditor General if there have been innovative ideas or significant methodologies, not the tactical stuff, at the strategic level in INAC to bring a major reform. The answer was no. It does not go beyond desk officers. They could find nothing in particular on that issue.
Has there not been that sort of attempt? Would we not be better served in this era by a revamp of enormous significance of that department?
Mr. Van Loon: Yes, there have been attempts in the past and they have been less than successful. However, that does not mean that there should not be another.
You have to be careful with the term ``white paper'' as applied to Aboriginal affairs because there is an infamous white paper which was promulgated by the Trudeau government in 1979. It was almost purely ``assimilationist'' in its intent and structure. It produced a huge backlash among not just First Nations but Inuit as well. It was completely rejected. The term ``white paper'' is a red flag in the Aboriginal world.
There were many incremental changes. I would refer to the changes I spoke of in the 1980s about comprehensive claims policies as important but incremental. The next big review was the Royal Commission on Aboriginal Peoples, about 1996. I would have to be reminded on the date.
The Royal Commission on Aboriginal Peoples was a huge effort with a great deal of fine research and a lot of very hard work by many people. However, the recommendations it made were all over the map. Some of them were ``sovereigntist'' in tone; others were very much less so. It was not a coherent program and not something that any Government of Canada could have taken and implemented.
I think we would have to do a whole study on what went wrong with the Royal Commission on Aboriginal Peoples in order to give an answer to what the problems were. None of that is to say that the idea you are putting forward now should not be put forward. Like any major policy area, there need to be reviews every 8, 10 or 12 years. Those reviews must be public and quite high profile. They must involve both government and people outside government. They can move the yard sticks very considerably. It is not a recommendation you should shy away from. However, do not use the term ``white paper.''
Senator Dallaire: I had not thought of that. ``Green paper'' might already be in use. That's the kind of thing I mean.
I will move to a bit more of your content. Thank you very much for laying it out in such a fashion. It is very cogent and logical.
I want to come to program funding and the management of programs. It is true that you work within your fiscal baseline and that is the general trend of things. However, when you are involved in significant policy changes or acquire a new responsibility or task, then the central agencies and working through the process will give you or provide you with new money.
I do not understand why, when we talk about implementation — and not land claims settlements, which has been the history for the most part — we did not move in a sort of a project-management methodology or an omnibus project way. This would mean having a cash line identified for that requirement and a project office set up to implement q new initiative that would work through the complexities to respond to a senior review board.
Why is not there a set methodology, nor, seemingly, negotiation in these land claims in regards to guaranteed cash lines for periods of time for implementation? They can be reviewed, of course, but guaranteed cash lines.
Mr. Van Loon: If I may, I would take that as a suggestion that you are making. It is not a question I can answer. I am not in government.
Senator Dallaire: At the time, you were.
Mr. Van Loon: At the time we were trying to get a settlement. We had an implementation plan, and the implementation plan did have a budget line. It did have that.
Senator Dallaire: It was funded, then?
Mr. Van Loon: Yes, there were two elements in the budget line and the biggest and easiest to implement was the cash settlement. It is a lot of money, but you pay it out.
There were estimates for the rest of it of what the implementation would cost. However, our problem was the novelty. For example, it is a new thing when you are setting up things like wildlife management boards with joint membership of the claimant party, the Government of Canada and various parts of the Government of Canada.
We did not know how much it would cost. We were just making a guess. The amounts of money that we had in our notional budget were probably inadequate. I had left by that time, so I cannot guarantee that they are. You know from military experience, there is nothing that stops you from going back and trying to get a supplement to that money. That is fine; that is just the way you do things.
We did have budgetary structures. I would be the first to say, though, that they were not adequate.
Senator Dallaire: It is the management thereof.
In the methodologies that were used at the time for these attempts at moving towards implementation, including negotiations towards a settlement: why create a department or have a department that absolutely must work the matrix of the other departments, yet does not necessarily have the cash line to ensure that those others who will join it will get access to funds, nor give it the authority as the senior department in the matrix, to lead the process to move these things to cabinet and get them not only approved but implemented and monitored? Why create an equal to others that cannot move anything of great significance without having the other ones very intimately involved with the process.
Mr. Van Loon: That is quite a ``machinery of government'' issue. It amounts to that. Except for Treasury Board, nobody can actually allocate money to a department's budget. Therefore DIAND cannot make an allocation of money to Parks Canada, for example. It can recommend that money be allocated to Parks Canada, it can refer to a budgetary pot from which the money might come. However, only Treasury Board can actually deliver the money.
I did notice in another one of the sessions you had the Assistant Deputy Minister Responsible for Claims and the Treasury Board analyst together here. They referred to an agreement which they had worked out which would facilitate that kind of moving of money. Inside government, that is probably about the best that you can do because of the limited nature of line departments' authority.
I imagine that, without ever having had any direct experience with the Department of National Defence, that DND could not directly allocate money to DIAND or anybody else.
Senator Dallaire: That is part of the project management process. If you are coming in with a project of several billion dollars and it does involve other departments, and it is your project, then Treasury Board works out the deals to ensure that those funds that you are projecting are actually put into the budgets of others at your expense. I managed a 15-year capital program, so I am familiar with this.
Even though we have an Indian Act and you have created a line department to manoeuvre, it makes no sense that it does not have any hammer whatsoever on the other departments that are absolutely crucial to be able to implement many of its agreements. Due to this, it sees many of these implementations just fall to the wayside because the other guys play or not because of the way they feel.
Mr. Van Loon: I would not put it that strongly.
Senator Dallaire: I am not pragmatic.
Mr. Van Loon: I might say they do not have a hammer, but what they do have is rope. They can pull other departments into the coalition.
As a matter of realpolitik inside the bureaucracy the way you handle this is to create an interdepartmental committee. There has always been, and was when I was there, an interdepartmental assistant deputy minister's committee on claims. That is where you form the coalition. Treasury Board is in that committee, and so are Finance Canada and the Privy Council Office. They are all sitting there. Around that table, you build the coalition. If you cannot do it, if DIAND feels that something must be done in order to implement a claims settlement and they have not been able to build the coalition, then you do have to be able to go to cabinet. You do have to get a cabinet decision that says, ``Damn it, you do it.''
Senator Dallaire: The response is cabinet, not another agency.
Mr. Van Loon: In extremis, yes.
Senator Hubley: Welcome. I will first go back to that favourable situation that you related to us in the 1980s. I understand that the negotiations or the methodology for claims settlement and implementation was completely not working.
Mr. Van Loon: That is right.
Senator Hubley: It was both claims and implementation, was it?
Mr. Van Loon: Yes, that is basically right.
Senator Hubley: A task force was charged with looking into this. In five years, they would come up with a report that government then built into their policy.
Mr. Van Loon: Yes, except it was not five years. They worked very quickly. That task force did its work within a year, which is very important.
Senator Hubley: Under which department was that task force brought about?
Mr. Van Loon: It was under DIAND and David Crombie.
Senator Hubley: They pulled away from their internal workings and created another body. It was successful. They called it a task force. We might look at that as a more modern name today.
Mr. Van Loon: Yes.
Senator Hubley: Having had some success at that, has it ever been repeated?
Mr. Van Loon: Not in the claims area that I know of. Remember, I am 14 years out of there. If you are running a university, you cannot pay a lot of attention to DIAND. I do not believe it has been repeated. I am not sure of that, so check it.
Senator Hubley: I do not think it has, just from the information we have received, but I could be wrong. Is that a model that you would see as working today?
Mr. Van Loon: I think it could, yes, because was time limited, it made a public report, it had good representation on the committee, it was remarkably pragmatic and it was almost implementable just as it sat. It was a very good piece of work. Yes, we could hope for that.
Senator Hubley: It was a good piece of work because all of the important players were at the table coming up with the solutions?
Mr. Van Loon: I think so.
Senator Hubley: I would like to ask you a question on funding because it certainly is intertwined in all of our hearings. It comes up at some point in the evening. We have heard from witnesses that the department's funding process is opaque. They do not know how the department arrived at their implementation funding and the figures they are using. I think there is a need to know how it is costed out.
Would it be fair, in your view, to ask that federal officials table a business case with the Aboriginal group explaining how they arrived at their figures? Could the process be made more transparent and also become part of a model that could be used in other instances?
Mr. Van Loon: Yes, I think that is a very fair suggestion. There might be some resistance to it, but it is perfectly fair.
Senator Lovelace Nicholas: Thank you for being here. Do you think Canada is meeting its legal obligations to First Nations people by not settling land claims?
Mr. Van Loon: Which land claims are you referring to?
Senator Lovelace Nicholas: Any land claim, whether comprehensive or specific. I ask this question because several of these small communities are running out of land base. It is very important to the people to settle these land claims, not only to get money back but because land is also needed.
Mr. Van Loon: I think that issue would refer to specific claims and particularly treaty land entitlement. That is not what I intended to address today, and it is not actually something that I did work on. I could only observe from sort of semi-outside, because I could see what was going on in the department. It is certainly a devilishly slow process. Part of the responsibility lies with the federal government. It is also true, though, that some of the responsibility lies with the First Nations involved. You will know that it is sometimes very difficult for a First Nation to say ``yes.'' Once you have said ``yes'' to a treaty land entitlement settlement, that kind of ends the matter, and then you begin to worry, as I would begin to worry if I was in that First Nation, whether they have done everything they can for their children, for the next generation. Saying ``yes'' can be difficult on both sides. I do not deny that the process has been very slow. It is just that I am not in a particularly good position to address it.
With respect to comprehensive claims, I must point out that there is no obligation on the part of the Government of Canada or the Aboriginal groups to enter into comprehensive claims negotiations. If there are no negotiations, then the Aboriginal title, which is still not a particularly well-defined concept, vests on those lands. If the Aboriginal group wishes to continue in that status and that situation, that is okay. If the federal government says, ``We do not feel we need to have these negotiations right now,'' that is okay too. There is not a legal obligation.
To me, there was a kind of moral obligation, and I think still it exists. To go back to my view, and I actually wrote this in the 1986 comprehensive claim policy, a quote used in this room, that these are not land claims settlements. That is bad vocabulary. These are settlements to establish the relationship between a group of people and another group of people, between an Aboriginal group and the government and people of Canada. As long as that relationship is unsatisfactory, which it very often is, then there is an obligation to try to make it a satisfactory relationship through, if possible, comprehensive claims negotiations, providing that the other side, the Aboriginal people, are willing.
Senator Lovelace Nicholas: As you know, the government has legal obligations to First Nations by treaties. I feel that if they do not want to settle land claims, and it is taking so many years and people are getting frustrated, then they are denying the people the ability to hold their head up and not depend on the government all the time. I have to ask this question: Does the government have the power to solve land claims today or tomorrow? Could the minister write us a letter this minute and say, ``The land claims will be settled''?
Mr. Van Loon: No.
Senator Lovelace Nicholas: That was short and sweet.
Mr. Van Loon: It only has the power to negotiate. If the Aboriginal people do not agree, there is no settlement, no matter what the government says.
Senator Lovelace Nicholas: It seems like it does, because we have been wanting to settle land claims, yet they will not come to the table. If they do come to the table, as you said earlier, it is, ``Take it or leave it.''
Mr. Van Loon: Again, I am talking about comprehensive claims, not specific claims. This is not my area.
Senator Watt: Mr. Van Loon, we meet again, many years later. There are a number of us like Mr. Van Loon who have been in the middle of the implementation process of land claims. I spent a number of years also trying to implement the so-called modern treaty, the first treaty that was signed back in 1975.
After 1975, a certain specific enactment took place, which was a creation of various institutions that we negotiated under the provincial government. There was one piece of legislation that we called umbrella legislation. It was Bill C-9, which was federal statute.
Negotiation never really ends, even when an agreement should be implemented. You have to keep a close eye on when there is specific enactment taking place within the provincial government, such as creating a regional government, a school board, a health board or a justice system and those types of things. On the other side of the table, there are people eating away at what you have achieved or what you think you have achieved. Therefore, the negotiation never really ends.
Over 30 years later, I began to wonder whether this is the right way to go. I felt, as an individual Inuk involved in implementing the James Bay and Northern Quebec Agreement, I had developed some expertise. I felt that I had succeeded well in the area of a straightforward business concept. I had no difficulties implementing the agreement in that regard. I have made big money creating various successful companies.
When you see a monopoly out there, you take advantage of that opportunity and get your hands on it. On that account, during my presidency of the Makivik Corporation, we created two airlines. One is First Air and the other is Air Inuit. They are both successful companies.
That goes to show you that when there is no influence from the outside other than businesspeople that you have to deal with, there is no limit to success. There is no limit to the joy you can experience. People who are watching this and are a part of it, their heart rate becomes elevated. The motivation continues to build. Any successful businessman or businesswoman would say the same thing, whether they are Aboriginal or non-Aboriginal.
I am not really asking a question, but I am taking this opportunity to say that in the past, there were some successes and there were some failures. We have ended up with broken sticks everywhere because no one was really communicating. That has a lot to do with the give and take of negotiations.
There is a formula in this country of ours that if you enter into a land claims negotiation, there are certain conditions that you have to accept. In the old days — Mr. Van Loon is very aware of this — there was the concept of an extinguishment. You have to be willing to be extinguished. You are notified of it, and you live with the consequences.
During negotiations, the government wants something from you, and you also want something from the government. The third element is that you want to protect who you are and the elements of what you are. You want to be able to advance this. However, that will never come because the other side does not understand. In addition, Aboriginals do not understand what the government wants.
Today we have a policy within the government called the non-assertion technique. What does that mean? It is exactly the same thing as extinguishing your personal rights. Some might disagree with that, but I am sorry to say that is my legal interpretation. Certain legal people interpret it that way. That is also based on the word ``existing'' within the Constitution. When we negotiated the Constitution, the word ``existing'' was not there. Do they mean only existing in law or in the reality of life? This is what we are living with today.
Mr. Van Loon, I think you will agree with me on this; I think today is the time, as a country, to move on. What is the best solution for this country? We are, in a sense, economically dragging in this country as Aboriginal people. If we do not want that to continue happening, I would suggest moving along in the direction that Senator Segal was talking about. Examine this. We need to formulate a plan. How can we make this work? Do we agree with the Department of Indian Affairs and respect the fact that Aboriginal people are the same as everyone else? Are they willing to conduct business with the private sector? Let us work out the funding formula. I think that would be the best thing to do. We might not have every element we need to have on the table, but let us start putting things on the table so we can begin to move forward. Otherwise, we will not move anywhere.
Mr. Van Loon: I am in broad agreement, one point I would like to go back to is when you said negotiating never really ends. I agree with that. However, I think we should not expect it to ever end, just as negotiations between the federal government and the provinces never end either. The federal government and the provinces are two sovereign entities, both fully sovereign within their sphere of jurisdiction, but there is constant negotiation about what that means. I think we must expect the same thing will happen with regard to Aboriginal rights.
Senator Watt: I fully agree with you, Mr. Van Loon. This is a fact of life. Negotiation never ends, and we have to accept that.
Senator Gustafson: We have had quite a history lesson here today. I do not want to confuse the situation, but my thinking comes from the committee that I sat in last night, the Standing Senate Committee on Fisheries and Oceans. We had an American researcher there who scared the devil out of us. He basically said that sovereignty and the expansion of the North is a tremendous opportunity, but we must be careful about our sovereignty. He was recommending almost a joint sovereignty. That is what I took from it.
Senator Watt: Yes; harmonization.
Senator Gustafson: That is a good word. The interesting thing is that the North is developing so fast. I think it was Senator Adams who then mentioned the oil development there. It was noticeable. It was an American company. There is great change in the area of settlements. Maybe there is some advantage in moving a little more tactfully and a little more slowly on some situations. I understand what the senator was saying. There is an advantage to getting things done quickly.
Canada's North has great opportunity and great opportunity for its people. They should certainly have their fair share of what there is there. I do not think we know what there is.
Mr. Van Loon: Again, I can only agree.
Senator Dallaire: I want to go back to the sovereign state or nation state of Canada, its land mass and waters, and the peoples who live thereon. I have significant difficulty in agreeing that there is not a fundamental responsibility of Canada, the Crown, to initiate negotiations with all Aboriginal nations within its land mass. It needs to establish a reference point and set out its realm of responsibilities within a modern, post-colonial, context.
The Indian Act makes me sick whenever I read it. In fact, I sit here as a White Rhodesian often and I do not comprehend why, even on the basis of human rights of the Charter, we permit the government to knowingly not negotiate or not want to initiate negotiations or attempt all means to do so. Because we know there are people who live within this land mass living in Third World conditions and not getting the support structures that they require for themselves. We should respect them, as we are doing with CIDA in developing countries overseas.
We were briefed on Kelowna. I looked at the milestones. I have seen better ones in CIDA working in developing countries. Do you not feel that there is a fundamental human right, an ultimate responsibility of the Crown, to those nations to get to that table and move those yardsticks, versus standing back?
Mr. Van Loon: No. If I want to have negotiations with you about buying a car — maybe not a very happy analogy, but let me go on with it — and you do not want to sell your car, I cannot make you negotiate. If the Government of Canada wants to have negotiations with some Aboriginal people who have not signed a treaty — and the largest number of those are in British Columbia, and they do not want to negotiate — we cannot make them negotiate. I think we have to approach them in a way that is welcoming to negotiation, in a full and generous spirit, as the courts often put it. We must do that. However, in the end, if they will not come to the table, we cannot make them come to the table.
I think I am agreeing with the spirit of what you said, but I am taking a more literal position.
Senator Dallaire: But if we have treaties that are ancient and ineffective and create dependencies instead of pursuing the post-colonial modernism of treating these peoples, different groups, as nations, and so on, do we not have a responsibility for reopening those and bringing them into the modern era and reducing that sort of Crown and bunch of people dependency?
Mr. Van Loon: Let me be pragmatic. You are raising a big issue. To renegotiate all the historic treaties is an immense thought. I have a sentimental feeling that it would be good to do that, but a pragmatic feeling it would not.
Senator Dallaire: I am driven far more by a human rights responsibility. The Newfoundlanders continue to be annoyed with Quebec because of the deal on Churchill. That is nothing compared to what we are seeing in many of these other treaties.
Let me speak about arbitration. Your pragmatic response to arbitration is that when the government goes that way, people think there is an unlimited resource and we can take them to the cleaners. I do not see that as a responsible position to take for not going to arbitration. I think that demonstrates poor faith. Would you not take that position?
Mr. Van Loon: Yes; essentially, I do. That is the view inside government. I am not saying it is a view I agreed with; it is a view we had to overcome in order to even get the mention of arbitration in the original claims settlements. I have left the job, so I could not do much more about that, but I do think there needs to be a definition of when arbitration will be used.
When I addressed the matter of arbitration, I suggested that is something which might be put into the task force, or whatever we want to call it, that I referred to at the end of my remarks; because I think it needs to be defined. I do think there are uses for arbitration, and government should not be allowed to simply avoid it all the time.
Senator Dallaire: I feel that we are not holding the Crown accountable for its interrelationships and responsibilities ultimately with all these different nations. We manage it like we manage trucks in the Department of National Defence, and fuel for the Coast Guard, and so on. To me, that is not reflective of the nature of this country. Thank you for your comment.
Senator Segal: I wanted to see if you might help us with the challenge we face relative to our First Nations communities who live off reserve, in our urban centres, for example. When you look at a demographic analysis, we are dealing with a population which is vastly under the age of 25. In any population, First Nation, in our own country, in other countries, when you have a huge population that is under 25, you have a series of tensions and pressures around jobs, economic capacity and education, which is challenging. We all know that in urban areas across Canada, it is part of the challenge we face on housing and on substance abuse. We all know around this table that our First Nations population are, sadly, wildly overrepresented in our prisons.
Chief Brazeau, who I believe represents the First Nations Congress, which is an organization that seeks to represent First Nations members who live in the cities and are not on reserve, is scheduled to be a witness before this committee in the not-too-distant future. When he appeared before the House of Commons committee on the Kelowna Accord, he made the point that whatever was planned by the good-faith activities around the Kelowna Accord, such as the amounts of money, it related largely to people who lived on reserve. Fundamentally, 70 per cent of our First Nations peoples do not live on reserve at this time.
Understanding the difficulty that the federal government has delivering services in mainly provincial and municipal jurisdiction, and understanding the obligation we have under our existing statutory and constitutional basis for First Nations at the federal level, can you give us any advice, in terms of direction though not of detail, as to how we can as a society, federal and provincial together, do a better job so that not quite so many of our First Nations peoples fall between the cracks.
Mr. Van Loon: I have some thoughts. I did not deal with that area at Indian Affairs until the end when I became Associate Deputy Minister.
Senator Segal: You were with the Health Canada.
Mr. Van Loon: I was Associate Deputy Minister there too. As you point out, it bears on Health Canada almost as much as it bears on Indian Affairs and Northern Development. I always thought it was surpassing strange that the Government of Canada did not read the Constitution, which says that the federal government is responsible for Indians and land reserve for Indians. It says ``Indians and land.'' It does not say Indians on land reserved for Indians. I felt there was a constitutional responsibility that the government was not taking up.
The position within government was that we made transfer payments to provinces and Indians off-reserve are citizens of the province so the equalization and other transfer payments, which are after all per capita payments, should look after that.
As you correctly point out, Senator Segal, there are obligations and costs to dealing with Indians off-reserve, which are greater, on average, than dealing with non-Indians. They require certain services because they are not in their homeland that other people in the cities do not require.
What to do? The only thing that comes to mind is that federal transfers to provincial governments, to some extent, should be shaped by the proportion of Aboriginals off-reserve in their population. It bears particularly on Manitoba and Saskatchewan where those transfer payments, whether CHT, CST or equalization, should be shaped by that Aboriginal population.
You will no doubt recall that the Department of Finance rigorously opposes fiddling with transfer payments on a cost basis. They are happy to make flat per capita transfers, although they will fiddle them a bit to save money, and happy to make equalization payments, but needs-based social transfers are anathema to the Department of Finance. That is why I did not win it but, to me, it remains a possibility.
Senator Segal: I remember in my provincial government days, when the government would announce that they were flat-lining expenditures, the Department of Health for the Province of Ontario would have a list of things they would cut first, such as paediatric cardiac care. The next thing on the list was rural ambulances. They were always things that no government could ever sanction or cut.
One of the ways that the province dealt with it in those days was to insert a small envelope with the list of walled areas not to be messed with into the large envelope for social policy.
Your sense is that within the federal transfer process as it now exists, you should insert such small envelopes because in Saskatchewan, let us say, or parts of New Brunswick where some of the population can be defined as First Nations, there are explicit needs that are clearly demonstrable. Finance Canada will not, no matter who is in power, ever want to play that game and they will make that kind of targeting difficult?
Mr. Van Loon: They sure did not want to play it when I was there. That is all I can say.
The Deputy Chair: That concludes questioning by senators. Mr. Van Loon, I thank you for your informative and practical information. I can assure you that the information you provided to our committee will be most helpful in our report.
The committee continued in camera.