Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 4 - Evidence - Meeting of April 22, 2009
OTTAWA, Wednesday, April 22, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 7 p.m. to study 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 (topic: 2009 March Status Report, chapter 4: Treaty Land Entitlement Obligations).
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good evening. I call the meeting to order.
Senators of the Standing Senate Committee on Aboriginal Peoples who are in attendance tonight are as follows: the deputy chairman, Senator Sibbeston, from the Northwest Territories; Senator Nancy Greene Raine, from British Columbia; Senator Daniel Lang from the Yukon; Senator Hubley, from P.E.I.; Senator Cook, from Newfoundland; Senator Dyck, from Saskatchewan; Senator Nolin, from Quebec; Senator Peterson, from Saskatchewan; Senator Campbell, from British Columbia; and Senator Lovelace Nicholas, from New Brunswick. I am Senator St. Germain, from British Columbia. I have been given the honour of chairing this committee for a period of time.
We have the good fortune this evening of having before us once again representatives from the Office of the Auditor General of Canada. Tonight, they are here to discuss chapter 4 of their 2009 March status report, which deals with treaty land entitlement obligations. Once our witnesses have completed their presentation, senators will have an opportunity to ask questions.
Senators, please join me in welcoming our witnesses, Ms. Sheila Fraser, the Auditor General of Canada, Mr. Ronald Campbell, Assistant Auditor General, and Mr. Frank Barrett, Principal.
I thank all of you for being here.
Ms. Fraser, we are pleased to have you here. Please proceed with your presentation.
Sheila Fraser, Auditor General of Canada, Office of the Auditor General of Canada: We very much appreciate the invitation to appear before you tonight and this opportunity to discuss our office's work related to chapter 4 of our March 2009 Status Report, that chapter being entitled Treaty Land Entitlement Obligations.
As the chair mentioned, I am accompanied by Ronald Campbell, Assistant Auditor General, and Frank Barrett, Principal, both of whom are responsible for our work on Aboriginal issues.
Treaty land entitlements are one type of specific claim. While comprehensive land claims are claims by First Nations to land not covered by a treaty, specific claims are claims that arise from alleged non-fulfillment of Indian treaties already in place and other lawful obligations. Specific claims also arise from the improper administration of lands and other assets under the Indian Act or other formal agreements.
In the 1990s, Canada signed treaty land entitlement agreements with many First Nations in Saskatchewan and Manitoba. These are solemn agreements between the Crown and First Nations that set out how Canada will fulfill century-old treaty obligations to provide land owed to First Nations under historical treaties. Treaty rights are recognized and affirmed in the Constitution Act and, as such, are constitutionally protected.
[Translation]
First Nations in Manitoba and Saskatchewan are among the most impoverished in Canada. Acquiring land under treaty land entitlement agreements can have a significant impact on their social and economic development opportunities. These agreements outline the necessary responsibilities for Indian and Northern Affairs Canada, the provinces and First Nations to complete the process of converting lands selected by First Nations to reserves.
Our office first examined the government's fulfillment of treaty land entitlement agreement obligations in 2005. These obligations include converting up to 1.4 million acres in Manitoba and up to 2.7 million acres in Saskatchewan to reserves, once they have been selected for conversion.
The audit specifically examined Indian and Northern Affairs Canada's progress in converting land selected under these agreements to reserve status in Saskatchewan and Manitoba. The audit also examined whether the Department was managing the conversion process in a way that was consistent with its legal obligations to First Nations.
[English]
The 2005 audit found a number of deficiencies in the department's management practices for meeting its obligations — for example, inadequate planning and an absence of targets for land conversions. The audit found that these deficiencies limited the department's progress in converting lands to reserve status, in particular in Manitoba. Our 2005 audit found that about 58 per cent of acres selected by First Nations in Saskatchewan had been converted to reserve status, while only 12 per cent of these lands had been converted in Manitoba.
In that audit, we made eight recommendations, most of which focused on the need for the department to improve its management practices. The department agreed with our recommendations and, in 2006, the Minister of Indian and Northern Affairs committed the department to converting 150,000 acres of land in Manitoba to reserve status in each of the following four years.
Chapter 4 of our March 2009 Status Report examined the department's progress in converting land to reserve status and in implementing the recommendations from our 2005 audit. We found that Indian and Northern Affairs Canada had made significant progress in converting lands selected by First Nations to reserve status.
[Translation]
Since 2005, the department has converted over 315,000 acres to reserve status in the provinces of Saskatchewan and Manitoba. This represents a 42 per cent increase in land conversions in just three years. In Manitoba alone, over 227,000 acres have been converted to reserves since our last audit.
The follow-up audit also found that the department had made efforts to improve its communications with First Nations and work more closely with them on plans to convert outstanding land selections. However, our 2009 audit also found that Indian and Northern Affairs Canada had not made satisfactory progress toward implementing several of our recommendations for improving its management practices to meet its obligations to First Nations. For instance, in Manitoba, the department has not developed a plan that outlines how it will manage its operations to process outstanding selections within a reasonable period of time. It has also not tracked processing times, and could not demonstrate that these times have improved over the last three years.
[English]
The continuing management weaknesses identified in this follow-up audit are of particular concern as they relate to treaty obligations that Canada incurred more than a century ago. Our audit found that, in Manitoba, over 430 selections — representing close to 650,000 acres of land — remain to be converted. In Saskatchewan, over 700 selections, representing 451,000 acres, remain to be converted. Our audit concluded that, without sustained management attention to correct the weaknesses we have identified, the department risks being unable to sustain its progress in converting land to reserve status.
Some of our observations in this audit also highlight the importance of critical factors that we identified in our 2006 Status Report. In that audit, we identified seven factors that appeared to have been critical in implementing our recommendations. The presence of some of these factors enabled the successful implementation of our recommendations. The absence of others hindered the implementation and, in turn, impeded significant change in the lives of First Nations people and Inuit.
For example, in 2006, we found that meaningful consultation with First Nations often contributes to or results in significant change. In this follow-up audit, we found that the department has improved its communications with First Nations and is making efforts to work more closely with them on their plans to convert outstanding land selections. As already mentioned, the department has converted a significant amount of land to reserve status since our 2005 audit.
Another critical factor we identified in 2006 was the need for sustained attention on the part of senior management to effect lasting change. In our recent audit, we observed significant progress in converting land to reserve status in Manitoba, specifically in response to a commitment made by the minister. The department converted 159,000 acres to reserves in Manitoba in the first year of the minister's commitment, while it achieved a more modest 43,000 acres in the second year.
[Translation]
The remaining critical factors we identified in 2006 were: the importance of coordination among federal organizations delivering similar programs; the value of developing capacity within First Nations communities; the importance of establishing First Nations institutions; the potential for conflicting roles of Indian and Northern Affairs Canada in its relations with First Nations; and last, the necessity for an appropriate legislative base for First Nations programs.
Mr. Chair, this concludes my opening statement. We would be pleased to answer your committee's questions.
[English]
Senator Sibbeston: Thank you for attending here and thank you for your report. Your audit noted that other departments besides INAC — notably, NRCan and Justice and perhaps even Finance and other central agencies — play a role. Did INAC raise any issues with respect to their role? Have you investigated whether these other departments help or hinder the treaty land entitlement, TLE, process? If so, what did you find? If not, do you intend to include them in future reviews of progress on this file?
Ms. Fraser: We did not specifically look at the role played by other departments. Our focus was the activities of Indian and Northern Affairs Canada. To my knowledge, no issue was raised regarding the relationship with other departments — however, Mr. Barrett might elaborate a bit.
Frank Barrett, Principal, Office of the Auditor General of Canada: We did not audit the other departments in any detail. We did hear some comments related to NRCan's surveys vis-à-vis time involved, or related to the Department of Justice, but we did not examine these in any detail.
Senator Sibbeston: My next question relates to the difference in management of land selection between Manitoba and Saskatchewan. In general, it seems that the Saskatchewan office has more comprehensive and better organization.
What reason did the department give for these differences between Manitoba and Saskatchewan? Were there internal or external factors that caused the Manitoba office to function less well? What best practices might be transferred from Saskatchewan to improve the situation in Manitoba?
Ms. Fraser: The senator is correct that there is an obvious difference in the management practices between those two offices. The office in Saskatchewan, we note, has been more successful over time in converting land to reserve status, has been more proactive in communications with First Nations and has done work to try to resolve third-party interests, which at times is one of the major impediments to doing these transfers.
The Manitoba office seems to take a much narrower and very limited view of its mandate, and in fact told us that it did not have a mandate to deal with third-party interests — and yet the Saskatchewan office was doing it.
We did not go into a lot of analysis about why that would be the case, why these offices would have these different practices, though it is something that we note fairly frequently — and not only in Indian and Northern Affairs but in many departments. We note that there is a wide variety of management practices and systems from region to region. That variety of management practices is something you may want to explore with the department. Certainly, we believe there are practices in Saskatchewan that should be adopted in the Manitoba region.
Senator Sibbeston: All of these involve dealing with Aboriginal people, and obviously it is very important work that has to be done. I appreciate that in some respects you are limited in your analysis of management and financial matters and so forth, but I often wonder why there is not more progress. Are people dispassionate about the work they do? Do people not care? Is there a malaise or sickness? Because it is native people, people out of work, do people not care? Have you noticed anything like that? Are you able to say anything about that aspect of human nature?
Ms. Fraser: I would refer the committee back to our 2006 status report, where we tried to identify some of the factors of success and why some of our recommendations were implemented, whereas with others, there seems to be absolutely no progress. I mentioned some of them in my opening statement.
I believe some of the critical factors are consultation with First Nations and sustained management attention. In this department, the deputy minister has been in place for several years now, but the average tenure before that of the deputy minister was perhaps 18 months, at best.
We have also raised an issue in many of our audits where the government will sign an agreement or a treaty but the officials limit themselves to simply fulfilling the legal obligation as is written in the agreement without thinking about the overall objectives.
I remember quite clearly one case in the North where the overall objective was to increase employment of Aboriginal peoples. The agreement stated that a yearly meeting would be held to track progress. We asked about the progress. They said they had to hold the meeting; they were not really concerned about the progress.
We have had an ongoing debate, which occasionally shows up in our audits, about exactly what is the role of the officials. Their role should be to work towards the objectives and not simply to have a legal requirement that is being met. There is an attitudinal issue as well.
The last issue I would raise is that we do not often talk about funding, and we are cautious when we talk about funding. However, when we see Aboriginal populations growing by some 10 per cent and the departmental funding growing by 1 to 2 per cent, I truly believe that has an impact as well on the ability of the officials to deliver the programs and services.
Senator Campbell: Thank you, again. You and I are meeting for the second time today — the first being the Legal and Constitutional Affairs Committee. It is quite an honour for me.
Did you look at any of the land claims outside of Saskatchewan and Manitoba?
Ms. Fraser: In this particular audit, we did not; this audit was focused on treaty land entitlement. We have looked, though, at other agreements. Perhaps Mr. Campbell can speak to those. We have done a number of audits.
Senator Campbell: Perhaps I can narrow it down for you. I am specifically interested in those First Nations that are within municipal boundaries or require municipal services. In the Lower Mainland, the First Nations concerned would be the Tsleil-Waututh, Musqueam, Tsawwassen and Squamish.
In 2005, you identified that negotiating agreements between the First Nations and the municipalities for services was a factor in delaying. Do you have any update on that, or is that something we should be looking at as we go forward?
Ronald Campbell, Assistant Auditor General, Office of the Auditor General of Canada: That is a very good question. I do not think we have much to add in relation to this audit. Recently, we did an audit on the B.C. treaty process. We audited the process by which those treaties are currently being negotiated and did note that they are complex and that they are not happening particularly quickly. That is the most recent work we have done in B.C. to date.
Senator Lang: I should like to refer to third-party interests. Obviously, this is an area of concern; as well, it has political overtones, if it is not done properly.
I noticed that $190 million was made available to the First Nations — I believe, in Manitoba — to purchase private owners' remaining land. As well, in Saskatchewan, the figure was $440 million over 12 years. In some cases, money was not spent — I believe in the Manitoba situation. It refers to $8.9 million.
Could you explain how that process is working — or if it is working — and what is happening? Are there sufficient finances to purchase the land in these third-party interests?
Ms. Fraser: I will ask Mr. Barrett to respond to that.
Mr. Barrett: To clarify, with the signing of the treaty land agreements in both provinces, in some cases — particularly in Manitoba — there is an agreement that the First Nations can select provincial lands, particularly those that have not been developed. However, recognizing that the land some of the First Nations would want to select was already held by private-sector interests, $190 million was allocated to that that. That is a little bit different than the requirement to address third-party issues.
In Saskatchewan, most of the land has already been acquired by private-sector interests, and hence there is a greater amount of funding available to purchase lands privately. Again, the third-party interests still need to be addressed.
Senator Lang: Generally, in referring to third-party interests, I am talking about whether or not you are purchasing private land — or at least that is a major element of it. Are the funds sufficient to be able to complete this process?
Mr. Barrett: My understanding is that this was a negotiated process and the issue is not that there is not enough money. The challenge with third-party interests — once land is purchased and held in fee-simple status by the First Nation — often is that there are still issues related to acquiring municipal services. For example, there may be an issue with hydro lines or other third parties that have access or requirements on the land that is held fee-simple. Those types of issues need to be addressed before the land can be obtained by the Crown and converted into reserve status.
Ms. Fraser: If I could clarify, when we talk about third-party interests, we are not referring to the acquisition of land from another party; we are referring to dealing with municipal governments, rights-of-way, all sorts of things like that, that may affect title to the land and that have to be resolved before it can be converted into reserve status.
Senator Lang: Further on that, from the information I have been provided, the Manitoba Treaty Land Entitlement Framework Agreement set aside $8.9 million to address third-party interests. The 2005 Status Report revealed that none of the money had been disbursed. Since then, is that the case? Has that trust been working? Are the First Nations able to access that money and has it been spent?
Ms. Fraser: I am afraid we do not have an update, but we do note in the report that the department was not being very helpful to resolving third-party interests; that is not the case in Saskatchewan. Often it takes another party; it takes the department to try to resolve these differences rather than the First Nation and the third party arguing about things. It probably has not been spent in part because the department has not been helping and encouraging the parties to resolve their differences.
Senator Lang: Perhaps we could be provided that information by the department, as an update, to see if that program is working.
Ms. Fraser: From the Department of Indian and Northern Affairs, yes.
The Chair: We will see that we get it for you, Senator Lang.
Senator Hubley: My question relates to point 15 on your written presentation this evening. You list the remaining critical factors that you identified in 2006. Would you elaborate? We have discussed ``the importance of coordination among federal organizations delivering similar programs'' and ``the value of developing capacity within First Nations communities.'' You demonstrated that, when there was a dialogue with First Nations, the process became more efficient.
On the ``importance of establishing First Nations institutions,'' would you tell us what you had in mind there and what type of institutions could be put in place to facilitate speeding up the land claims?
Also, I was a little concerned about the fourth critical factor in your list — ``the potential for conflicting roles of Indian and Northern Affairs Canada in its relations with First Nations.'' On the fifth critical factor — ``the necessity for an appropriate legislative base for First Nations programs'' — how do you see that happening and what should that encompass?
Perhaps you could also tell us if any of those were looked at in the 2009 report.
Ms. Fraser: I would start with the end. We did not look specifically at any of these in this report, although we do mention that sustained management attention will be critical to ensuring that the issues with the management processes are resolved.
On the question of First Nations institutions, there are a few that have been created recently, such as the First Nations Statistical Institute, which can provide better information for decision making. One of the reasons we talk about this is that many services and programs were transferred to First Nations without the kind of framework and institutions that we would have in place.
For example, with respect to education, there is the issue of who establishes the curricula? In the non-First Nation community, there are institutions that deal with many of these issues; it is important that those institutions be established for the First Nations as well.
On the potential for conflicting roles, Indian and Northern Affairs wears a number of hats. The department obviously funds First Nations for many of the programs and services; it also negotiates with them. The department is also the subject of many lawsuits by First Nations; it is also a trustee for many of their funds. Can you really do all of those things and be effective at all of them and never come into a position of conflict in dealing with a First Nation?
We raised the issue that, at times, we believe the relationship could be strained because of difficult negotiations or an ongoing lawsuit. At the same time, there has to be proper funding of programs and services. There is a possibility of conflicts.
With respect to the last critical factor — ``the necessity for an appropriate legislative base'' — most of the programs are based on policies at this point. This is an issue that has come up in some of our audits. One in particular I remember is the non-insured health benefits, where the federal government provides the program for prescription drugs for First Nations people, and yet there is no legislative base for that.
The question we were raising was around the information that could be used to manage the program and to ensure that people were not receiving, for example, excessive quantities of prescription drugs or prescription drugs that potentially could be harmful in combination. There was a whole issue about obtaining the consent to disclose that kind of information. We were told that a legislative base is one of the solutions to help resolve that.
I am sure there are other areas as well, because it comes up frequently in many of our audits: What is the role and responsibility of the department vis-à-vis First Nations, be it in housing, education, health, et cetera? Those are all based on policy, not legislation.
The Chair: I have a quick question. How far can your department go in making a recommendation? Regarding education, you are saying there are so many other aspects of this department that may or border on dysfunctionalism, from the perspective of many people.
I do not think there is anything intentional or mean-spirited in the process. We sit in this committee, Ms. Fraser, and are frustrated with seeing only minor changes. I have been on this committee for about 16 years. I see change, but it is so infinitesimal, and we are losing our greatest resource — our people. These young people are not benefiting. It has been proven that, when the government lives up to its treaty obligations, there is economic development. There is living proof of that in Saskatchewan.
How far can you go, do you feel, in your parameters in saying, ``This department does not work any more; it just does not operate efficiently enough to fulfil its obligations to the constituency it is supposed to serve''?
I am not trying to put you on the spot. It is just a question. Your office is the Holy Grail of this city; who else can I ask?
Ms. Fraser: We would be very reluctant to go so far as to make a statement like that. We do not do an assessment of a department as a whole; we tend to go by programs. To try to audit a whole department would be enormous for us.
I think it is worthwhile, perhaps, to pause to look at all of the responsibilities in that one department. Indian and Northern Affairs is responsible for more than 600,000 people, including services and programs. In many ways, it is equivalent to a provincial government in terms of many of the services and program. Each provincial government has myriad departments to deal with various services and programs. INAC has to fight for its share amongst a whole lot of other departments. If there were a separate department of water, health and education, you have to wonder whether there would still be the same management challenges and resource challenges facing this department.
INAC covers such an enormous variety of programs in these communities. I think that question has to be asked. Maybe it is something that a parliamentary committee could look at.
With all the other conflicting roles — the trustees, negotiations and the lawsuits — INAC really does have a very complex series of operations. Also, the department seems to me to be quite often dealing in crises; things happen and it is a crises. You wonder whether they ever get to a point where they can get above all that. I think it would be certainly something worth discussing with the department, but we would be very reluctant to get into that.
The Chair: I can understand that.
Senator Peterson: Most of my concerns have been covered. I have a couple questions.
Have all the band treaty entitlement selections been completed in Manitoba and Saskatchewan?
Ms. Fraser: No.
Senator Peterson: Therefore, there are still bands out there that have not been dealt with and who have not even started the process, correct?
Ms. Fraser: That is correct. Mr. Barrett can respond to that.
Mr. Barrett: I believe all the bands have made some of their selections — but not all of them yet. Most bands have a few outstanding selections still to be made. Therefore, a given band — to keep the numbers simple —might select 1,000 acres. They might have selected 800 acres to date but not the last 200.
Senator Peterson: I know there was a band in Saskatchewan that got ahead of the curve and claimed traditional lands of another band — which creates a lot of problems. Is that an issue? Does it pop up?
Mr. Barrett: I do not believe that is at issue under the treaty land entitlement process. They are allowed to select lands that were not their traditional lands, so they can select lands that were outside of what they traditionally had in the past. Therefore, it is not a matter of determining whose traditional land it was for the treaty land entitlement process.
Senator Peterson: When do you get to make your pick? That is the problem.
There have been some improvements since 2005, but the average completion is still seven years. Could this committee make recommendations that they set targets and goals to benchmark this, to see if we can be more effective?
Ms. Fraser: Absolutely. We believe they should have a plan in place as to how they will do this and what timelines they should be working towards. They should be monitoring their progress on this. It would be very helpful.
We must realize, too, that it is likely to become more difficult as we go forward because we are probably dealing with more numerous yet smaller lots of land, whereas, in the past, there may have been large selections where a number of acres can be transferred at once.
Therefore, the department really needs to assure that its process is as efficient as possible. That is something I think the committee could certainly make a recommendation about.
Senator Lovelace Nicholas: My question is about INAC. I have dealt with INAC before, in my other life. They seem to have a take-it-or-leave-it attitude.
My question to you is whether INAC should be replaced with a different process? Perhaps First Nations peoples should be involved within this organization. How do you think we should address these problems?
Ms. Fraser: We recognize that INAC has a very complex and difficult role to play. It is my opinion that the people in the department are committed and trying to do the right thing, but they do have enormous responsibilities. I believe they have many funding challenges; and, as you point out, they need to have much better consultation, communication and coordination with First Nations in doing this.
We hear a lot about the turnover of people. If you talk to any First Nations group about their negotiations, they will say that they have had X number of negotiators and that the process is always starting over. Obviously, some of that will be inevitable, but I think the department must try to make a better effort to build those relationships. You need to have people who are around for a while, especially given that matters such as treaty negotiations can take a long time.
Sometimes the problem lies with some of the basic programs. We have done audits on housing, education and economic development. Even in the last one we did on child and family services, there was no monitoring vis-à-vis what was happening in the provinces. The funding levels were significantly below what was happening in the provinces and there is a new agreement now in Alberta. Funding is going up 75 per cent. They were not funding preventive services, so why are there so many children taken into care? It is because that is what they were funding.
They need to be much more proactive in looking at what is happening, at how they can improve the services, and at provincial benchmarks. I think much of that comes back to the funding of the department. They do not have the resources to be able to do it.
Senator Lovelace Nicholas: As I suggested, there should be more First Nations people in INAC and more people going into the communities to see what is going on, rather than just taking their word for it.
Senator Dyck: Welcome.
My question relates to your point 13. You said that meaningful consultation with First Nations seems to be one of the key factors that allows the land conversion to proceed.
Could you expand on that? What mechanisms are involved? For example, is there something in place in Saskatchewan that is not in place in Manitoba that has allowed Saskatchewan to proceed more quickly and efficiently?
Ms. Fraser: We note in the report that Saskatchewan is much better in their consultation process. I will let Mr. Barrett elaborate.
Mr. Barrett: We saw a few differences between Saskatchewan and Manitoba. I will focus specifically on the consultation process.
Anecdotally, in addition to the work we do in the departments, whenever we are working with First Nations we try to meet several communities. The communities we met in Saskatchewan consistently knew who their land manager was. They met with them every four to six weeks. They talked about the list of all their land selections and at what stage of the process they were. If they were stalled, they were trying to move them along. That is not to say that everything was perfect, but clearly the communication was there.
In Manitoba, we heard quite consistently that they did not know at what stage their land selections were. Departmental officials were very focused on getting the lands converted and often would not have time to meet with the First Nations because of the work that needed to be done in headquarters. We did not see the same level of rapport and communication.
Senator Dyck: The consultation would be between the First Nation communities and someone from INAC regionally?
Ms. Fraser: Yes.
Senator Dyck: What role would the Office of the Treaty Commissioner play in this, if any?
Mr. Barrett: There are slightly different processes in the two provinces. For example, in Manitoba there is the Treaty Land Entitlement Committee. That committee plays a role in coordinating with First Nations, but we do not see that as being a reason for INAC not to be communicating with the First Nations. It need not be a block in the communication. It has a different role.
Senator Dyck: It sounds to me as though it would play the role of bringing people together as a facilitator to make a process work.
Mr. Barrett: Ideally.
Senator Dyck: I may be mistaken, but I thought there was a process in place in Saskatchewan at one time with treaty tables.
Mr. Barrett: No, we did not audit those organizations. We met on numerous occasions with the Treaty Land Entitlement Committee and with the Federation of Saskatchewan Indian Nations. We discussed roles and activities and how the treaty land entitlement process works. However, we were not auditing them, and we were clear and transparent on that point.
Senator Dyck: You say it takes about seven years to go through a third-party process and then to convert the land to reserve status. What is the main stumbling block and what would you recommend to overcome the main stumbling block to conversion?
Mr. Barrett: In exhibit 4.1 on page 6 of our chapter 4, we outline the process in each of the three phases. By far the longest phase is phase 2, and these are the activities that take place at the regional office.
In our 2005 audit, one of the big stumbling blocks was the requirement to have an environmental assessment and to have the land surveyed. By the time the land was surveyed, often the environmental assessment was no longer valid.
We gave the department credit for changing its policy in the ensuing years. The environmental assessment is now good for five years, which should help address that issue to some extent.
In the three-year time span between the first audit and the follow-up, we are not able to speak specifically to how much time was spent at each of the phases because the seven-year time average for the year one conversions extends beyond the three-year time change.
Senator Dyck: Is INAC the party that decides when the environmental assessment is going to be done? Would that not come under their umbrella in terms of setting up the work plan? If they know that an assessment will only last five years, they would know that they have to have step two done before step one expires.
Ms. Fraser: One would think. The problem we noted in the first audit was that the environmental assessment could be no older than two years. Two years goes by pretty quickly in this type of process. They start the process, do the environmental assessment, two years would go by, and then the environmental assessment is no good and they would have to start all over again. Land surveys was the same issue.
A lot of these lands will not change significantly over time and the environmental assessment could have a longer life than two years. That issue was being raised quite frequently, but they have now changed that.
Senator Raine: I am new to all this. Could you explain how First Nations make their land selection? Are the parcels of land that they are selecting only considered with respect to the number of acres, or is value and/or location part of the selection criteria?
If a First Nation has not finished its land selection, is there good land left for them? This will obviously have an impact on the ongoing economic welfare of the First Nations involved.
Ms. Fraser: I will ask Mr. Barrett to respond in more detail, but it is a question of acres. First Nations can purchase land as well. Money is given to them so that they can purchase land. The land does not necessarily have to be, for example, Crown property.
Mr. Barrett: I will expand on that slightly. In Saskatchewan, it is particularly an issue because much of the land is acquired. In that framework agreement, a minimum acreage versus entitlement acres was worked out. There was a requirement to select a minimum amount, but if a First Nation wanted to select more, it could do so. That allowed a First Nation to decide whether to use the funds available to purchase a smaller number of more valuable acres or a larger number of less valuable acres. Some First Nations may have bought five acres or so of land near Regina while having their main land further away from Regina. In that way, a First Nation can have an economic base to build from, but that would be the choice of the First Nation.
Senator Raine: I have a vision of them choosing land that is under water at this time of year in Manitoba. Maybe they are looking for some high ground, but it is already taken.
The Chair: Mr. Barrett, how big an impact does the process of provincial and municipal approval have on binding up the system?
Mr. Barrett: If it is Manitoba particularly, where they were selecting provincial land, there is the requirement to be working with the province. However, there is also the 1930 agreement that the Province of Manitoba has with the federal government, that if First Nations are selecting Crown land as part of treaty rights they do still maintain a right to select it and there is a process for the province to turn that land over for that purpose.
Senator Campbell: Someone asked about overlapping traditional land claims. I know that in the Lower Mainland, in Vancouver, that is a large issue. About 110 to 120 per cent of Vancouver is claimed between Squamish, Tsleil-Waututh and Musqueam.
There are no treaties there. We are in the process of getting treaties. Is there a difference between those First Nations that already have a treaty and now are getting their land commitments fulfilled versus those that are in the process of forming a treaty?
I know it takes a long time in British Columbia, but I am wondering if, at the end of the day, you would not have a comprehensive treaty in place dropped down, rather than we have a reserve land here, and now, more than 100 years later, we are trying to fulfil those obligations. Is there something to be said for the B.C. process?
Ms. Fraser: I will start and let Mr. Campbell continue.
There is no dispute about the acreage or the land that is owed to First Nations. The issue here is transferring that land into reserve status. In the case of B.C., there is, of course, much disagreement about land ownership and entitlement.
We did the audit of the B.C. treaty process about two years ago. At that point, that process had been in place for 25 or 26 years and an agreement had not yet been signed. I believe since then two or three agreements have been signed. It is an extremely long, difficult and expensive process. It may be the only way to do it, but at least in this there is much more certainty that there has been an agreement, there is certainty around the land, and the First Nations can access that land and actually engage in economic development to use the land. On the other hand, in the B.C. process, before these 120 claims are all resolved, we will probably all be gone. It is a very long process. They are different realities.
Senator Campbell: I suppose that is true. What would Saskatchewan and Manitoba look like right now if we were doing a treaty process? It is easy to look at 150 years ago, where the process involved a non-First Nation individual who said, ``This is what we are doing,'' with no chance for disagreement.
How involved is INAC in the B.C. treaty process?
Mr. Campbell: INAC is very much involved. They have the lead on that. You are absolutely right in what you said about the timing of Manitoba and Saskatchewan. There are two areas of certainty here: One is that there is no doubt about the ownership of the land in Manitoba and Saskatchewan; the second is that there were treaties then, followed by agreements and an admission by the Crown that they had not fulfilled those treaties. So not only is ownership an issue, but the quantum that is owed is very different in B.C.; the amount of spare land in the Lower Mainland is just not there.
Senator Campbell: You know we just gave away the golf course and a chunk of parkland, which is fair. I do not have any disagreement. That is the problem, but I suppose it is simply the reality of life as it is now. Thank you.
Senator Lang: I want to go back to something the chair raised, the question of how far the auditor actually goes. I am at times overwhelmed by the size of the department and the many aspects for which the department is responsible. It is clear here to me that, at least on the surface, Saskatchewan is getting on with the job and Manitoba is not getting on with the job.
Does the deputy minister say to the people responsible in Manitoba: Look, you have to pick this up and you have to look at Saskatchewan and start doing this better? Or is it the auditor who goes in at that level and says: The comparisons are this, and these are the things you should be doing, other than strictly consultation?
There are obviously other issues involved here. That is the question I would ask, because otherwise it is just left hanging, and then five years from now we will see Manitoba over here and Saskatchewan over here.
Ms. Fraser: We have the power of recommendation; we cannot force departments to do anything. However, in most cases, and in this case, the department does agree with the recommendations. They generally put together an action plan and commit to taking action. That might be something the committee would want to explore with the department: What commitments did they make and what is their progress on meeting those commitments?
Certainly, after our 2005 audit, the minister was quite clear and specifically made a commitment about the transfer of lands in Manitoba, 150,000 acres a year, which they met in year one but not in year two. It would be interesting to see where they are in year three.
When the minister makes those kinds of commitments, we do see that the department does respond. The issue was that, even though they transferred a lot of title, they do not seem to have resolved the underlying management issues. Personally, I think it will be hard for them to meet those commitments going forward if they do not address those kinds of basic system issues in Manitoba.
One thing I could suggest is that the committee ask the deputy whether he has done the analysis of why things are different in Manitoba and what has he done to correct those kinds of differences. We do not get into that level of detail, but that is something that he should certainly be able to respond to.
Senator Lang: To follow up on that, a further observation I would make is that one of the problems I see happening in respect to the department and its relationship with the First Nations is that commitments are made and then they are not honoured.
Ms. Fraser: Absolutely.
Senator Lang: Credibility then comes into question, and subsequently we talk about the plight of the next generation.
It would seem to me, Mr. Chair, that the committee should be asking someone from the department to appear and tell us what they are doing.
The Chair: We have asked. There is movement, but it is infinitesimal. It is like pushing a string, unfortunately. We have asked. I am not saying we should not ask again. If we stop asking, we certainly will not see any progress. I am sure we will have the department before us and, senator, you will have your opportunity then to question the department.
Senator Raine: Ms. Fraser, you spoke about the need for sustained attention on the part of senior management. You have seen, I guess, all the departments and the ministries in government. Can you envision a management structure for INAC that would work and, if so, how it would be different? I have this feeling that people come to work for INAC, and then as soon as they can, they jump to a better job in a different department and there is no continuity. I think it goes to the question of what Senator Lovelace Nicholas said, that maybe we need a structure that can attract people who are passionate for the cause.
Can you envision something? What would you see as the magic kind of management structure?
Ms. Fraser: I am not sure I agree with the senator that we always need people who are passionate for the cause. We need people who are really good managers and people who will ensure that things get done.
There are many people in the department who are long-term employees who are very committed to what they are doing. It seems to me, though, that there are so many things that must be done. They tend to deal a lot with crisis. It is crisis management. It is rare that we would ever say these sorts of things, but it goes back many times to a question of resources. There are not enough resources to deal with everything with which they must deal.
We pointed out in a couple of reports that the Aboriginal population is growing by 10 per cent or 11 per cent and funding is growing by 1 per cent. When you already need I cannot remember how many thousands of houses, and 75 per cent of the houses you have are in need of repair, when your funding levels for child and family services are 70 per cent of comparable services in provinces, when your education levels are such that you do not have schools and you cannot get teachers and you have to pay them less than they would have in the provincial system, it is not surprising that things are not going well in a lot of communities.
There needs to be some sort of basic review of the services. This is something we talked about in child and family services. What services are provided? Are they comparable to what every other Canadian receives? What are the funding levels for these services in the respective provinces? Compare that to what is going on in INAC and I think we would all be very surprised.
The Chair: Senators, this committee has a challenge before it — and it is not only our challenge but the challenge of the entire country. Look at Manitoba right now. These people were relegated to the swamps, the sloughs and the muskegs. They are experiencing a flood there today and they are suffering severely from the impact of the flood.
Ms. Fraser, I do not want to quote you, but you indicated that nothing is working that well in education, health and housing and that we are losing another generation. There are huge health problems, fetal alcohol syndrome and what have you.
There is one thing that really upsets me. I come into contact with a lot of chiefs and First Nations people. It is with cap in hand that they go to the department. They are virtually at the mercy of the department. It is demeaning and unhelpful for these people to assert themselves in our society.
I want to thank you, Ms. Fraser, for the work you carried out and for the recommendations you make so objectively and fairly — and your entire department. You do honour to the office and you do honour to us as Canadians. Keep up the good work and thank you for being here. God bless.
Ms. Fraser: Thank you.
The Chair: If there is no other business, we will adjourn to the call of the chair. The committee will meet on Tuesday next.
(The committee adjourned.)