Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 19 - Evidence - October 20, 2009

OTTAWA, Tuesday, October 20, 2009

The Standing Senate Committee on Aboriginal Peoples met this day at 9:42 a.m. to study the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and other matters generally relating to the Aboriginal Peoples of Canada (topic: government response to the committee's 2008 report on the implementation of comprehensive land claims agreements).

Senator Gerry St. Germain (Chair) in the chair.


The Chair: Good morning. I welcome honourable senators, witnesses and viewers across the country to these proceedings of the Standing Senate Committee on Aboriginal Peoples. I am Senator St. Germain, from British Columbia, and I am honoured to chair this committee. Our mandate is to examine legislation and matters generally relating to the Aboriginal peoples of Canada. This morning, we return to an issue that the committee studied in 2008: The implementation of comprehensive land claims agreements to determine what progress has been made.


We have with us today witnesses from the Department of Indian and Northern Affairs and the Land Claims Agreements Coalition to give us an overview of the efforts that have been undertaken to improve the implementation of these agreements.


The committee completed a report in May 2008 on the implementation of comprehensive land claims agreements entitled, Honouring the Spirit of Modern Treaties: Closing the Loopholes. The committee sought a government response to the report and, on July 22, 2009, the government provided its response. This morning, we would like to explore the issue further to determine what progress has been made on this important issue.

Witnesses today from Department of Indian Affairs and Northern Development are: Michel Roy, Senior Assistant Deputy Minister, Treaties and Aboriginal Government; and Stephen Gagnon, Director General, Implementation Branch. From the Land Claims Agreements Coalition, we will hear from Kevin McKay, Coalition Co-chair; Paul Kaludjak, coalition Co-chair; and Mike Smith, Chief, Kwanlin Dun First Nation.

Mr. Roy, please proceed with your opening remarks.


Michel Roy, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Indian and Northern Affairs Canada: Good morning, honourable senators. Thank you for your invitation to re-appear before the committee to discuss the government response to the report entitled ``Honouring the Spirit of Modern Treaties: Closing the Loopholes''.

As the chair mentioned, I am accompanied today by Stephen Gagnon, Director General of the Implementation Branch, Treaties and Aboriginal Government Sector.

I would like to open by quoting from this committee's report. It notes that the effective implementation of modern treaties takes enormous commitment, cooperation and trust among all partners. Indeed it does. Aboriginal, provincial, territorial and federal signatories are jointly responsible for implementing the terms that were negotiated in agreements. Implementation plans for most agreements involve between 100 and 200 implementation obligations for the various parties.

In many cases, particularly in the north, the federal government is responsible for over 50 per cent of all obligations, the majority of which are ongoing. As such, the implementation of these agreements requires all signatories to learn and make changes to their approaches along the way.


Since my last appearance before the committee, we have received the results of an impact evaluation on four comprehensive land claims agreements. This evaluation was conducted by independent evaluators and involved the participation of four Aboriginal signatory groups: The Inuvialuit, the Gwich'in, the Sahtu and the Naskapi. The purpose of the evaluation was to assess the impact of comprehensive land claims agreements and the extent to which the objectives established for the comprehensive land claims agreements have been achieved. The evaluation reveals that these agreements have succeeded on several counts: by bringing clarity and certainty to settlement lands; by contributing to creating a positive environment for investment; and by enabling Aboriginal groups to position themselves to take advantage of resource development.

As noted by the evaluation, comprehensive land claims agreements have had a positive impact on the role of Aboriginal people in their settlement area economy and their relationship with industry. These agreements also help to ensure that Aboriginal groups have a meaningful and effective voice in land and resource management decision- making. Currently, more than 2,400 Aboriginal businesses and corporations provide goods and services in settlement areas.

As with this committee report, the evaluation noted that improvement could be brought to the implementation of federal responsibility in the areas of training and capacity. These sentiments have been echoed by the Auditor General of Canada, the Standing Committee on Public Accounts and the Lands Claims Agreements Coalition. I can say with confidence that we are acting to improve the federal implementation of modern treaties.

In its response to your report, the government noted that it is taking action with respect to your recommendations and is committed to making improvements in key areas identified by the report. These include providing consistent guidance to federal implementers; improving horizontal coordination and decision making across federal departments and agencies; strengthening federal monitoring and reporting systems; and clarifying when Canada will agree to using binding arbitration.

I am pleased to report that progress has been made on several initiatives that contribute to our ongoing effort to strengthen the implementation of federal responsibilities under modern treaties.

We are currently developing guidelines for federal implementers. These will help to clarify Canada's approach to implementing modern treaties. They will provide practical advice and direction to federal officials and explain different roles and responsibilities within the federal government for implementing modern treaties. We will also develop subject-specific guidelines to assist federal officials in managing key implementation issues such as alternate dispute resolution, reviews and annual reports. These guidelines should help ensure that these process initiatives are managed in a current and predictable manner across the 22 agreements that we have in place at this time.

Improving horizontal management and decision making has been a point raised by this committee, other committees and the coalition. We are now in the final stages of approval for a government-wide management framework. The implementation management framework is a proposal to strengthen the management of modern treaty implementation across the federal government by improving cross-government coordination and decision making. This framework will consist of forums of federal officials at the regional headquarters and senior management levels. It includes mechanisms for implementers to work together to identify and resolve challenges. Its objectives are to: improve information sharing between the different departments, headquarters, regions, implementers and senior management; improve treaty implementation oversight, including improved monitoring and reporting; clarify accountabilities and responsibilities; and facilitate timely and efficient decision making.

We will evaluate our progress in meeting these objectives after a period of three years. We are also strengthening internal and cross-government monitoring and reporting mechanisms to improve results-based reporting and to demonstrate results. For example, we are enhancing our informatic systems to track progress in fulfilling obligations set out in agreements.


In addition to these initiatives that are currently underway, Canada has achieved success on other key implementation matters over the past year. In accordance with modifications to Treasury Board policy, Indian and Northern Affairs Canada has developed a process to compel federal departments and agencies to report on their contracting and procurement activities in comprehensive land claim areas.

Since April 2009, we have held 30 information and learning sessions to provide guidance in the areas of contracting and procurement, as they relate to land claim agreements. These sessions were attended by approximately 540 federal employees across 20 federal departments and agencies. More sessions are scheduled to take place over the next several months.

An important aspect of reporting on implementation is the tabling of annual reports in Parliament. These reports provide formal, often joint, records of implementation of a final agreement. Over the past year, we have made improvements to make our annual reports process more timely. We are now focusing on working with our treaty partners to make these reports more results-oriented, so that they report on key activities that are important to the signatories.

I am also pleased to report that we have made progress on recommendations regarding outstanding land transfers made by the Auditor General in her review of the Inuvialuit Final Agreement. For example, we recently completed two agreements to affect the exchange of lands between Canada and the Inuvialuit for the Pingo Canadian Landmark and for the airports lands. The Pingo Canadian Landmark land exchange agreement was signed in July, and the survey required by the agreement was completed by late summer.

An agreement with respect to the airports land exchange has been concluded and is in the final stages of approval.

Progress made on these matters has led to the formation of a stronger partnership with the Inuvialuit and provided a platform to move forward on issues of common concern.

Your report, as well as the recommendations from other parliamentary committees, the Auditor General and the Land Claims Agreements Coalition, has been invaluable to federal implementers in helping us identify areas for improvement. They have also served to heighten the profile of modern treaty implementation within the federal government.

As you can see from the initiatives I have discussed today, we have heard the concerns voiced by modern treaty signatories.

Indian and Northern Affairs Canada recognizes the importance of working together with treaty partners to ensure that treaties are implemented properly. Following the tabling of the government response to this committee's report, the deputy minister of Indian and Northern Affairs Canada wrote to the Land Claims Agreements Coalition to express that commitment to them and to discuss many of the initiatives I have just noted here.

The deputy minister also committed to sharing documents as they become available. Mr. Chair, we will continue to work with aboriginal, provincial and territorial signatories, as well as the LCAC, and keep them informed as the work moves forward.


I believe that Canada has done a good job in implementing those aspects of agreements that are one time or time limited in nature. We are now working to improve the implementation of certain aspects of agreements that are ongoing in nature and require government to adapt to changing circumstances, including our long term relationship with our modern treaty partner. I understand the committee is keenly interested in ensuring that Canada lives up to its modern treaty promises.

I thank you for inviting us to appear before this committee. We will be happy to answer any questions that members may have.

Paul Kaludjak, Coalition Co-chair, Land Claims Agreements Coalition: Good morning.

(The witness spoke in his native language, Inuktitut.)

Honourable senators, on behalf of the Land Claims Agreements Coalition we are glad to be here from Nunavut. When we arrived, we were told it is very cold in Ottawa — poor us. I told them it is summer here; you should go to Nunavut where it is freezing already. We have snow and people are getting their snowmobiles out.

We appreciate the invitation to make a presentation on this issue and to talk about implementation matters. My name is Paul Kaludjak and I am co-chair of the coalition and the President of Nunavik Tunngavik Incorporated. I am here with Kevin McKay, Chairperson of the Nisga'a Lisims government and our fellow co-chair from the coalition.

The coalition has 22 members, and they include Inuit organizations, First Nations, and Metis from Labrador, as well as British Columbia. We represent all Aboriginal peoples. We have signed comprehensive land claims agreements, or modern treaties, as we say today.

Despite our diversity, we share many problems relating to implementation of our agreements. This committee understands the nature of our problems very well: You heard evidence from us in 2007 and early in 2008. You also heard from the government, and independent witnesses, such as us.

You filed a very fine report in May 2008, Honouring the Spirit of Modern Treaties: Closing the Loopholes. It is a landmark for us. It is like the modern Inukshuk behind you — the white one there. It is a landmark Inuit constructed to show the way ahead, and is also used as indicators with a purpose.

Following your report, the coalition released a model policy for the treaty implementation. In the absence of any similar model for the Government of Canada to follow, all members of the coalition worked together to produce the modern policy which we shared with Minister Strahl before its release to the public. The model policy is like a second Inukshuk. It is aligned with this committee's report and the two Inukshuks mark the direction that government needs follow to fully implement our agreements, both in letter and in spirit.

Regrettably, when I read the government's response to your report, I see that they do not want to move in the direction indicated. Importantly, organizational and policy changes are needed. As your report concluded, both governments appear to keep going the way they have with an adjustment here and there, but no major change. Of course, this is disappointing.

The government response has come through the Minister of Indian Affairs and Northern Development. The Senate's motion of June 16, 2008, requested a response, not only from the minister, but also from the Minister of Intergovernmental Affairs and the President of the Queen's Privy Council of Canada.

Recommendation 3 was directed, in particular, to the Clerk of the Privy Council, and the DIAND response is vague on this point. While the government avoided responding to recommendation 2, a reply from the responsible government agency is required.

As NTI pointed out in our submissions, the Department of Indian Affairs and Northern Development, DIAND, is a line department, not a central agency. It cannot direct other government departments. Deputy Minister Wernick confirmed this when he appeared before this committee on February 12, 2008. He remarked:

To be candid, we have had difficulty in the past fully engaging other government departments in the implementation of these agreements.

He also referred to ``haggling with the centre'' about appropriate funding levels for Nunavut institutions. We are the signatories to land claims agreements which are agreements with the Crown and binding on the whole of government. However, in practice, we have to deal with DIAND, a department that, historically, has had difficulty getting the timely cooperation of other government departments, not to mention the Treasury Board.

The federal response speaks of various actions to improve coordination, but a quantum shift is needed. Essentially, we need the Prime Minister of Canada to take steps that will effectively implement our agreements. This requires changes in the machinery of the government, which is the responsibility of the Prime Minister.

At the recent G20 summit, the Prime Minister made reference to Canada's strong points in the international arena; among them, that Canada has no history of colonialism. This statement caused surprise amongst Aboriginal people. We have experienced residential schools, relocations of populations, no voting rights, assimilation policies and refusal of recognition of our land rights. We have certainly experienced colonialism within Canada.

In a recent statement to News/North, the Prime Minister's deputy press secretary stated what the remark about the lack of colonialism means in regard to Canada's history in foreign relations. He added:

The marginalization, mistreatment and racism towards Aboriginal people in the context of Canada's domestic history, including colonialism in Canada, has never been denied or minimized by our government.

Aboriginal people must struggle to receive fundamental justice. Before the Nisga'a received the decision of the Supreme Court of Canada in 1973, the federal government refused to recognize Aboriginal rights and title to this country.

In 1982, our Aboriginal and treaty rights were recognized in the Constitution. In 1993, Nunavut Inuit signed our land claims agreement. In 1999, the territory of Nunavut was created.

We know that wrongs of the past are but one side of the picture. There are other ways of doing things, as shown by these monumental events. Our land claims agreements are the basis for the building of a new and positive history within Canada. They must not be seen as extinguishment documents nor like divorce agreements. They are the basis of a new relationship, one that is not colonial. We do not want to say that Canada has no colonial past, but that it has no colonial future.

I would suggest that this committee consider asking the government to reconsider and provide a more robust and productive response to the committee's report, Honouring the Spirit of Modern Treaties: Closing the Loopholes and its recommendations.

Kevin McKay, Coalition Co-chair, Land Claims Agreements Coalition: Thank you, Mr. Chair, and good morning, honourable senators. My name is Kevin McKay, Chairperson of Nisga'a Lisims government. I am pleased to appear before you again today with Mr. Paul Kaludjak on behalf of the Land Claims Agreements Coalition.

You will recall that we last appeared before the Senate committee in December 2007. At that time, we expressed to honourable committee members our frustration and disappointment with the way in which our land claims agreements were being implemented and, in particular, our frustration with Canada's apparent lack of willingness to work with the coalition and its members to effectively implement our agreements.

It gives me much displeasure to inform the honourable senators today that our frustration with Canada in this regard continues. In December 2007, the coalition informed the honourable senators that Canada's approach to treaty implementation has largely focused on fulfilling the narrow, technically defined legal obligations set out in our agreements rather than achieving the overall broad objectives of our agreements. We also commented on Canada's failure to recognize the basic goals, spirit and intent of our agreements.

A number of the coalition's member organizations also appeared before the Senate committee separately to provide specific examples of the way in which Canada's approach to treaty implementation has interfered with the proper implementation of our agreements.

When we last appeared before this committee, we asked this committee to examine in detail the implementation process for modern treaties. In particular, we asked that you provide recommendations aimed at ensuring that the Crown's obligations under land claims agreements are effectively implemented; the establishment of an effective machinery of government to undertake the implementation responsibilities; the establishment of an independent implementation review body, separate from INAC and reporting directly to Parliament; and the establishment of a financial management system that does not place claims agreements in mutual competition or in competition with other government objectives, but rather meets the Crown's solemn obligations and the spirit and intent of these agreements.

The Senate committee's work resulted in what the coalition found to be a carefully considered and comprehensive report, which included a number of detailed recommendations aimed at improving Canada's existing implementation policies and practices. The coalition endorsed all of these recommendations. In the coalition's view, however, Canada's response to the Senate committee's report, like its approach to treaty implementation generally, is thin, inadequate and wholly unsatisfactory.

Canada's response to the Senate committee's report consists of a letter from the Minister of Indian Affairs and Northern Development dated July 22, 2009, more than one year after the committee released its report. In the opinion of the coalition, the minister's letter does not adequately address the committee's recommendations.

The committee's first recommendation is that the Government of Canada develop a new national land claims implementation policy based on the principles endorsed by the coalition members, and including directives to compel the parties' use of arbitration under land claims agreements and directives to ensure funding is delivered to Aboriginal signatories within specified time limits and consistent with the terms of the agreements.

Canada's response? The minister indicated only that he was working with his federal colleagues to develop guidelines to clarify when Canada will use binding arbitration. Nowhere in the letter does the minister even mention the idea of a new implementation policy.

As honourable senators are aware, the coalition released its model Canadian policy on treaty implementation on March 3, 2009. It was the hope of the coalition members that the policy would initiate a national discussion on ongoing federal-Aboriginal relations in a modern treaty context. Instead, with the exception of a published statement by the minister questioning the utility of a new treaty implementation policy, the coalition has had no response from Canada on its policy.

The coalition invited the minister to address coalition members at its conference in May of this year. After accepting our invitation, and with less than one week's notice, the minister cancelled his appearance at the conference.

At the time, conference organizers were informed that rather than meeting with us, the minister had decided to travel to Whitehorse on the day that he was to speak at our conference. The minister's office did not even offer to send someone in the minister's place.

Contrary to the committee's recommendation, Canada has continued to be unwilling to engage with modern treaty organizations and even discuss the concept of a new national policy for the implementation of our modern treaties.

The committee's second recommendation was that Canada, in collaboration with the coalition, take immediate steps to establish an independent body to oversee the implementation of comprehensive land claims agreements. The minister provided no direct response to this recommendation in his letter of July 22, 2009.

In its third recommendation, the committee proposed that the Clerk of the Privy Council establish a senior level working group to revisit the authorities, roles, responsibilities and capacities respecting the coordination of federal obligations under comprehensive land claims agreements. In response, Minister Strahl indicated that the Department of Indian Affairs and Northern Development:

. . .in consultation with other federal departments with implementation responsibilities, is developing options to better support all federal departments and agencies in fulfilling federal implementation responsibilities.

The coalition is curious about the status of and timelines for this developmental work, as we have been provided with very little information on the department's progress on this particular issue. As well, the coalition notes that two years ago the department undertook a series of consultation meetings regarding approaches to be taken in respect of treaty implementation. Members of the coalition participated in this exercise in good faith, despite the fact that the meetings were unilaterally designed and established by the department.

In early December of 2007, Aboriginal signatories from across Canada attended what the department described as a ``summative'' session hosted by department officials, at which time the department presented their findings. At this meeting, many of the Aboriginal groups present noted that the summary provided by department officials did not accurately represent the wide-ranging concerns raised by them at the previous regional consultation meetings.

During this meeting, we were informed that the department would be devising an action plan to address the implementation issues raised during the consultations during the four to five months following the summative session. The input of the Aboriginal signatories would only be sought after the action plan had been completed. Almost two years later, Mr. Chair, we are still waiting to hear back from the department on this issue.

In its fourth and final recommendation, the committee recommended that the periodic negotiation of funding for Canada's obligations under modern land claims agreements be led by a chief federal negotiator jointly appointed by the minister and the coalition. The coalition found Canada's response to be completely dismissive, as the minister indicated he would continue to use the services of chief federal negotiators ``where circumstances require'' and would consider joint appointments ``as appropriate.'' In conclusion, the minister suggested that the measures outlined in his letter would result in the ``improved management of implementation across the federal government.''

All in all, in the coalition's opinion, Canada's response falls far short of what this committee recommended. Better management of implementation issues is not the answer to the implementation issues affecting Aboriginal groups with modern treaties. In fact, to suggest that better management is the answer to improving Canada's implementation of modern land claims agreements is to provide yet another band-aid solution to the deteriorating relationship between Canada and Aboriginal treaty organizations.

Canada must stop reducing treaties to a series of obligations. Canada must begin working with Aboriginal signatories to identify and achieve the broad objectives of modern treaties in their entirety. As this committee concluded in its report:

. . . without a fundamental reassessment of current federal implementation practices, and a political commitment to amend these practices through a new land claims implementation policy, the inevitable consequence will be to perpetuate the inadequate attempts at implementation we see today.

The Chair: Mr. Roy, I have a question on arbitration, which, to me, is so basic. It is my understanding that only the Inuvialuit agreement provides that the government has no option but to go to binding arbitration. For the other 21 agreements, arbitration is voluntary, which means people are forced to take costly action through the courts, as opposed to mitigating their costs through an arbitration process. What is the current status? The Nisga'a Agreement is 10 years old, and some, such as the Inuvialuit, are older. Could you tell us where you think the government is on this matter?

Mr. Roy: We have had some internal discussions about the arbitration issue. We have to remember that all of the agreements in place have a process for dispute resolution. We have the implementation panel, which is the first step to discuss issues when there is disagreement. Of course, we can always use mediation or facilitation. The new relationship agreement with the Cree of James Bay has a process for alternative dispute resolution. One of the issues with binding arbitration is its effect on Parliament and its decision-making powers.

It is a bit of an issue for Canada, but there are other ways to proceed. We continue to have internal discussions within government on arbitration and how far we can go with it. Perhaps Mr. Gagnon has comments to add.

Stephen Gagnon, Director General, Implementation Branch, Indian and Northern Affairs Canada: We are trying to develop guidelines. We understand one of the underlying concerns about whether the government's response meets everyone's objectives and that we need to do a better job at resolving disputes.

As Mr. Roy said, this will be a difficult issue in some cases. We are developing guidelines internally because before we can move forward much internal consultation must take place. I will be frank and say that one of the more difficult issues will be arbitrating funding-related matters. The agreements provide that these kinds of decisions be voluntary because Canada can make certain decisions about what it wants and does not want to take to arbitration. I do not want to prejudge the discussions that we will have internally or with the LCAC and its individual members. We need to respect the agreements, but it is a difficult issue for us internally.

The Chair: In the same breath, these agreements have been achieved and signed. I do not understand why you defer to Parliament. You have signed agreements with First Nations people via these modern-day treaties, why can we not find the solution? This has gone on for many years. Previous governments have failed to respond in a proper manner. I question why we are deferring to Parliament when we have entered into these agreements.

Senator Patterson: It must be ratified by Parliament.

The Chair: Yes. I will not belabour the point.


Senator Brazeau: Thank you for being here this morning. My first question is for Mr. Roy. I think the rationale behind the idea of modern treaties is to improve the application and funding when it comes to implementing those agreements. That being said, are you able, first, to give us a sense of the progress on that front so far, and, second, to tell us what is working and why and what is not working and why?

Mr. Roy: In terms of implementing modern treaties or in terms of negotiating them, Senator? Are you looking for an update on the status of modern treaty negotiations?

Senator Brazeau: Yes.

Mr. Roy: As we said earlier, 22 negotiated modern treaties are in place, and they cover 40 per cent of Canada's land. To that, add all the historical treaties covering the Prairies, and a part of Ontario and Quebec.

The independent evaluation I mentioned earlier was very beneficial to the First Nations and aboriginal groups covered by modern treaties from an economic development standpoint. They now have more jurisdiction, more authority over land and resource management. They also have larger areas of land, where they have a meaningful role. Organizations were created to handle and provide services. I think that is one of the key benefits.

In addition, there are aboriginal governments now in place that are accountable to their people rather than to the government, as with First Nations governed by the Indian Act. That is a major benefit.

What does not work as well, as you have seen a little bit today, has to do with the possible interpretations of the obligations set out in modern treaty agreements. Right now in Canada, as a result of the attention from this committee, other parliamentary committees and the Auditor General, we are striving to put things in order at the federal level, first of all. That is why we are putting a lot of focus on internal procedure matters, cooperation and coordination within the federal government, in order to do a better job of managing our relationships with aboriginal modern treaty signatories. That is really where it gets a little tougher, in my view.

But when you look at agreements that go back a number of years — we are talking about the James Bay Cree and the Inuit in northern Quebec, for example, who have an agreement that is some 30 years old, as well as certain other agreements that were signed some time ago — you can see that the relationships between these aboriginal groups and the federal and provincial governments have matured. That is representative of a relationship based on respect, mutual understanding and results. I am quite optimistic about the future in terms of our relationships with various aboriginal partners.

Senator Brazeau: Now, if we look at implementation, could you tell us how the changes that have taken place will strengthen not only the government's implementation policy but, more importantly, the Government of Canada's relationships with the aboriginal populations concerned?

Mr. Roy: Excellent question. Earlier, we talked about the management framework that we want to put in place. We identified internal networks at the federal and regional levels. For instance, we want to get our federal partners at the regional level involved as they are in more direct contact with our aboriginal partners who have signed modern treaties.

The regions, as well as all departments, are also more involved, improving coordination across the departments. I chair a federal committee of assistant deputy ministers that meets to discuss horizontal implementation within the federal public service.

Regional participation has also increased, and that is due to our current efforts. Implementation has a much higher profile within the federal public service, as a result of the focus from this committee, the Auditor General and the LCAC. Consequently, there is a stronger interest in implementation throughout the public service.

Thus, I think the future looks promising in terms of the attention, coordination and cooperation of federal partners.

Senator Brazeau: Thank you.


Mr. Kaludjak, you mentioned earlier in your presentation that you represent Metis from Labrador. Can you indicate which Metis groups or individuals you represent?

Mr. Kaludjak: Before I respond, I want to let the committee know that under article 30 of the Nunavut Land Claims Agreement, our organization — Nunavik Tunngavik Incorporated — has submitted 17 arbitration issues related to matters dealing with implementation. Three parties are party to the agreement on our claim — the Inuit, the federal government and the territorial government — and the arbitration process is implanted in our agreement. When it is called for, it must proceed. Each time it has been rejected by the federal government. This information is simply for the information of this audience and the committee. Although we have those provisions in the claims, they do not prevail at times. Again, there is something seriously wrong with the mechanics of this process.

Referring to the question, we have 22 members. I do not know the exact makeup of each organization within those 22 members, but it covers Labrador, Nunavik, Nunavut and Inuvialuit. Mr. McKay can elaborate on the makeup of organizations in the southern part of our coalition.

The Chair: Senator Brazeau, were you seeking a response on the Metis in Labrador?

Senator Brazeau: In Labrador, specifically.

The Chair: He can put the question to you again, Mr. Kaludjak. It is in regard to the Metis you mentioned in your presentation.

Mr. Kaludjak: As I understand it, they are from B.C. as well as throughout Canada. I do not know the locations of these groups throughout the country. However, they are included in our membership.

Senator Brazeau: Okay.

Senator Peterson: Mr. Roy, you seem to be of the opinion that INAC is making enormous strides in dealing with treaty implementation. However, our report would indicate the exact opposite in the recommendations.

In the opinion of INAC, have you finished with our report? You have dealt with it and are moving on.

Mr. Roy: We are not done with it. The report and recommendations that you put forward are a guide. It is guiding us in the work we are doing to improve implementation of modern treaties.

Some of the recommendations the committee put forward are outside of our authority to decide; for example, the creation of an independent body. It lies within the Prime Minister's authority and is not for Indian Affairs to decide.

However, in the meantime, we are improving our process. You have highlighted some of the issues regarding implementation. We are dealing with those issues that we have control over. The report of this committee has been very useful. It is still a report that we are referencing.

Senator Peterson: We talk about improving horizontal coordination, whatever that might be, and that we will get better decision-making and reporting systems. I am sure 15 years ago you must have been thinking about that as well. Otherwise, we will simply keep having these meetings and go nowhere.

Could we go back to our report? Would you take it upon yourself to provide or develop an implementation strategy with time lines to address the issues we presented and come back to this committee in six months? We would then have something we could work with.

Mr. Roy: If you invite us back in six months, we will be pleased to be here and report where we are on implementation. Your report has been dealt with in the sense that the minister has answered to the chair and members of the committee on behalf of the Government of Canada. For us, it will be a pleasure to come back and report on where we are on implementation of those recommendations.

Mr. McKay: We could not be more clear, Mr. Chair. The minister's response in his letter of July 22, 2009 falls far short. It is a totally inadequate response to the good work of this committee in producing the report of last spring as far as the coalition is concerned.

With respect to the specific issue raised by Mr. Roy and the inability of Minister Strahl to speak on certain recommendations, we would recommend through this committee, Mr. Chair, that the Government of Canada carefully reconsider its response. They should not only communicate their reconsidered response through the minister of INAC, but also through the President of the Treasury Board and the Minister of Intergovernmental Affairs, Ms. Verner. I would hope that the Government of Canada can see its way to meeting that request. As far as we are concerned, what is on the record now falls far short of the mark.

Senator Lovelace Nicholas: Mr. Kaludjak, do you feel the government is fully cooperating with the coalition? I think you have answered the question that they are not; otherwise we would not be revisiting this issue.

Regarding land negotiations, are you negotiating the value of the land based on what it was worth then or the value now?

Mr. Kaludjak: The answer is no. Negotiations on the Nunavut Land Claims Agreement were done in 1993. The deal was struck and we have signed it. However, I know there are some new treaties being worked on and negotiations are happening as we speak. In terms of the coalition's work in our submission to the government in March, we wanted to ensure we addressed the need for modern policy.

I was hoping to hear Mr. Roy or someone of that nature to give us an update on that line of work; if there is any work being done on the modern policy work at this stage. I did not hear too much on that issue. We want to hear about something happening within government shortly. We have not heard anything since March, and we want to hear something new.

With regard to the land in the Nunavut land claim itself — I can only speak to that because I am directly involved — the negotiations and deal was done back in 1993, at the going rate for land at that time. However, it was not in today's prices.

The Chair: Do you have a brief response, Mr. McKay?

Mr. McKay: Actually, I have a slight correction. I misspoke. Of course, I was referring to the President of the Privy Council. Although, if the President of the Treasury Board is listening that would be good too.

Senator Lovelace Nicholas: You said there are 22 members in the coalition. Are there any women members?

Mr. Kaludjak: Yes.

Senator Lovelace Nicholas: How many?

Mr. McKay: The internal political structures of each of our member groups are obviously handled from within, but we do have a number of women representing these organizations, either as chiefs or presidents of organizations. They are very much a part of our coalition.

Senator Hubley: I would like to refer back to our second recommendation. In essence, we were asking government to take immediate steps through legislation to establish an independent body, such as a modern treaty commission. This was included as a recommendation because of witnesses who related to us the great difficulty they were having with progress being made on their claims. It was a very important recommendation from this committee.

The government's response was silent on that. However, Mr. Roy has included a solution, I believe, where you are asking for a forum; the framework will consist of forums of federal officials at the regional headquarters and senior management level, et cetera.

I do not feel, in the spirit of the recommendation, that we have made to you that this will fulfil it. Perhaps, just to clarify it, you might tell us more about the forums; will they be made up of ministers from different departments or comprised of employees from different departments?

I would also like to know how many forums you were planning, if all players are included in that forum and who the forum reports to.

Mr. Roy: The forum is mainly at the federal officials level from the different departments in the regions and headquarters. It is a way for us to improve the coordination among the federal government to address issues around implementation; to have the federal government working together to deliver on the obligations of the Crown relating to modern treaties. Those forums are being established in the different regions. We have what is called the regional council.

Mr. Gagnon may have some further information.

Mr. Gagnon: Mr. Roy is right. While the response did not create an independent body, from that, we took some of the underlying barriers to successful implementation, one of them being our own internal processes.

We know that, prior to effectuating an agreement, the federal government has a pretty robust approval system and interdepartmental coordination group that gets decisions made and gets mandates and approvals done. We are seeking to replicate that kind of approach post-effective date. That is one of the lessons we have learned from the last years and, certainly, from the reports of this committee, the coalition's comments and others, we need to do a better job.

These are officials-level committees internally, and some of them are at headquarters. We will model it on what we call our federal steering committee, which would include representation from all the departments implicated in either a land claim and/or a self-govern agreement. We will try to use groups like the federal councils in the regions to ensure that what is happening in headquarters from a policy perspective is transmitted down to the ground, or vice-versa, so that the people who will actually have to implement various aspects of these claims or other agreements are aware of them.

In terms of whom it reports to, in some senses there is no direct report. This is an ongoing relationship. We manage issues and we will try to solve problems. However, Mr. Roy presides over an ADM-level committee that oversees the operation of this work. Mr. Roy mentioned an implementation period of three-years. That is what we are working on and we will report progress to the ADM-level committee that Mr. Roy chairs.

Senator Patterson: Mr. Chair, I would like to follow-up on what Senator Hubley had just asked.

It was clear from the committee report that there was a concern that a line department which delivers programs does not have the authority to compel other peers — other line departments — to implement its obligations. Therefore, the committee recommended that the Clerk of the Privy Council intervene to establish a senior-level working group.

I gather from the report, and from the government's response, that has not happened. In fact, page 3 of Mr. Strahl's letter of July 22 talks about:

. . . my department, in consultation with other federal departments,. . .is developing options to better support all federal departments and agencies . . .

The response we were given today through these gentlemen, I believe, on behalf of INAC is that they are now in the final stages of approvals for a government-wide management framework.

Do I take it the notion of having a senior department of government like PCO or Treasury Board leading the discussions compelling departments to implement these solemn obligations has been rejected by the department? If so, the committee recommended that, alternatively, there is a need for something equivalent to a modern treaty commission.

Could you clarify whether this option of getting a central agency to put muscle behind implementation been rejected by the department and, if so, what will replace that? It seems clear that it is difficult to compel your peers as a line department.

Mr. Roy: Thank you for the question. First, I would like to clarify something. The response signed by Minister Strahl that you received represented a response from the Government of Canada. It is not just a response from the Department of Indian Affairs; Minister Strahl consulted with his colleagues before coming back to this committee with an answer.

When you talk about including other departments, you must understand that those agreements are obligations of the federal Crown. There is no need to compel because those obligations are protected by the Constitution. Of course, the government must deliver on those obligations.

One of the things that Indian Affairs has learned over the years is that negotiating land claims and managing the implementation of those agreements is kind of day-to-day work. For colleagues in other departments, it is more like something on the side, and they do not necessarily understand the meaning of all those agreements we have in place. We are currently working on that issue in order to raise the level of knowledge, and that is why we are providing them with this kind of management framework and guidelines. We are training people, so now they have a better understanding about the meaning of those agreements, the Northern treaties, and it is not only a matter to be dealt with by the Department of Indian and Northern Affairs; it involves the entire federal Crown. That is where we are focusing our efforts now, and we are making progress on that.

With respect to compelling, of course those are cautionary and protected agreements. Nobody will disagree that we have an obligation to follow through on those agreements. They have been voted on by Parliament, they are protected under the Constitution, so it is an obligation. It is more about a lack of knowledge in understanding the meaning of those agreements. That is why we have been focusing our efforts in that area.

I just want to remind you again that these are decisions made by the Government of Canada, not just the Department of Indian and Northern Affairs.

Mr. Gagnon: I do not think it would be accurate to draw the conclusion that because of the way the response is structured, central agencies are not involved. We deal with central agencies all the time in decision-making. The senior level committee that Mr. Roy presides over includes members from the Privy Council Office, the Department of Justice, Finance Canada, the Treasury Board Secretariat, Health Canada and others that are directly involved in managing land claims and self-government obligations.

There was some suggestion that perhaps a central agency could play a better role, but there will always be an operational need to get someone to collect the troops, if you will, and make sure things get done. Central agencies are involved in all decision-making processes where we need higher level approvals.

Senator Patterson: You talked about the final stages of approvals for a government-wide management framework and developing specific guidelines vis-à-vis arbitration. I am looking at page 4 of your submission. Also appearing on that page is: ``. . .currently developing guidelines for federal implementers.'' What is the time frame for completion of those initiatives?

Mr. Gagnon: We hope to have the approval of the interdepartmental management framework very soon, hopefully as early as November. With respect to the other guidelines, we are doing internal work now, and I am hopeful to have something done in the third or fourth quarter of this year. Then we need to start discussing with some of our partners in terms of a coalition, for example, to get feedback to the extent we can do that. I am hopeful that we get this done this year, at least on a couple of things, dispute resolution being one, which includes arbitration, and a more general guideline. We are trying to model it on the duty to consult and accommodate in order to give some direction to people.

We understood that one issue is whether or not Canada has an overall implementation policy from. Some of the concerns expressed by some of the members of the coalition are that they do not know where Canada stands on certain things, what kind of steps it will take for implementation. We understand that, and we think that is a reasonable thing for us to be doing.

If you will, the guidelines represent at least an operational policy response to some of these things, and they will be publicly available; people will know and will be able to comment on them.

Senator Patterson: Mr. Gagnon, you mentioned, and I appreciate your candour, that you felt that arbitration was a difficult issue because of the possibility of binding Parliament as a result of financial obligations, if I understood you correctly.

These agreements were negotiated with the Crown, and the honour of the Crown is at stake, as the Senate committee report eloquently pointed out. It was not only the agreements signed by the Crown that included the arbitration provisions, but Parliament itself ratified those agreements and gave them the protection of the highest law of the land through section 35 of the Constitution. Therefore, Parliament has already bound itself to the arbitration process. How can you now say it is a problem? Parliament made that decision in its wisdom. I do not understand the reasoning.

Mr. Gagnon: I was the one who mentioned that we expect challenges in the arbitration. From my perspective, there may be an element of Parliament, but maybe it is more proper to say there are some certain governmental policy issues at play here. The agreements on funding levels call for these amounts to be negotiated, not arbitrated, so there is an issue there about binding Canada's policy with respect to transfer of funding. We do not put those kinds of things to arbitration in a provincial or territorial context.

Again, I do not want to pre-judge the outcome of the discussion we will have internally, but I was trying to clarify that I foresee an internal debate about how that gets done.

Senator Patterson: With all due respect, if the unwritten guidelines for arbitration are that the federal government will not invoke arbitration where money matters are involved how do you settle negotiations? Mr. Kaludjak has talked about the 17 times that arbitration was rejected with the Nunavut land claim, which has unfortunately, in my view, led to litigation. If the arbitration option for settling a negotiation that does not work out is no longer there, then it seems to me there is no incentive to really have meaningful negotiations.

For you to say our policy calls for negotiation of funding issues but our practice with regard to arbitration removes that safety valve or that release valve, then you have a recipe for stalemate. I hope these guidelines can get around that because it seems we are stuck.

The Chair: For clarification, Mr. Gagnon, my understanding is that governments, previous and present, have refused to allow arbitration on any issue, not just money issues. They have basically refused to go to binding arbitration at all. Is that correct?

Mr. Gagnon: Yes. Clearly, some of the issues — and I will not speak for Mr. Kaludjak — he was talking about were not, strictly speaking, funding level issues. Yes, you are right. That is one area where we realize we need to do an awful lot of work.

We need to improve our dispute resolution mechanisms. I will not make excuses, but part of this is tied to the internal process and decision-making that I was talking about, and that is where we are trying to focus. There are an awful lot of important issues that have been raised in this report and the coalition's work, but this is the one where we need to focus our immediate attention.

Senator Raine: When these modern treaties are signed, I understand there is initial funding and initial obligations. There are then the ongoing obligations. At the time they are signed, is the funding for those ongoing obligations properly set up with Treasury Board, I guess, or does it come out of general INAC funding?

Mr. Gagnon: When we get a mandate approved to finalize an agreement, it goes through the whole cabinet and Treasury Board approval process, so the mechanics of it may be that it eventually would get transferred to the department. Our department now manages a large amount of implementation dollars but that is after it has been through the process, as you have spoken of, for approval.

Senator Raine: Does your department manage these implementation dollars on a program basis or is it specific to each agreement?

Mr. Gagnon: I do not want to generalize too much, but all of these agreements will have negotiated arrangements attached to them. They will have implementation plans that will talk about the amount of money that will be flowing, generally speaking. The amounts that flow from the agreements are the result of the negotiated settlements.

Senator Raine: I would like the coalition members to comment on how it is working from their perspective.

Mr. Kaludjak: Before it gets too far behind, I want to respond to one of the other senators on the membership of women on the coalition. There are four. They change every year. We have to keep who is there on a monthly basis. Currently there are four female members among the 22 members on the coalition.

The questions have been valid and interesting questions, and very reaffirming. We have been dealing with implementation matters since we signed the claim, basically. About 50 per cent of the Nunavut land claims agreement that has been implemented. The honourable senator mentioned funding to particular articles. Senator Patterson indicated that we have a court challenge because of the breach of the contract, the Nunavut Land Claims Agreement. The other land claims agreements are following our example in that process. How it will work out in the end, I am not sure. There is a lack of funding, but we are forced to take these unfortunate steps. We do not like to; those are not the best processes; but sometimes you have no choice. It did not begin with this current government, but way before. It was probably before Mr. Roy or Mr. Gagnon's time that these things began. I am glad that they understand on the INAC side, at the bureaucratic level, that they need to be educated sometimes. We do that on an ongoing basis. We did not understand the provisions on occasion. We forced ourselves to become educated and make people aware that the claims were signed for a purpose.

When it comes to, for example, the arbitration difficulty, even though it is implanted in the agreement and they signed on to it, the federal government has failed to carry out that process. These are the reasons why we have these challenges. I do not know if it is Mr. Roy's responsibility at that level, but when those people at that level do not understand the process, that is when something hits the fan. It is those kinds of situations in the Nunavut Land Claims Agreement, situations where funding and action that should have been taken did not happen.

Councils were supposed to be created according to the claim. For example, the marine council did not get created. Funding was suppose to be provided. It did not happen. We are talking about over 40 articles in the Nunavut claim that were agreed to. Many of them did not get funding, and they were supposed to be negotiated accordingly. It did not happen.

That is why we face this challenge right now. Whether we like it or not, we are there. There was a breach. Someone failed to do their job. Parts of the agreement failed to get implemented. That is where we are.

Mr. McKay: Thank you for the question, honourable senator. With respect to the Nisga'a situation, the treaty provides for the negotiation of a fiscal financing agreement. These agreements are five years in duration, and the obligation on the part of all parties is to negotiate agreement on funding for the delivery of programs and services to our citizens. As we understand the way this works on Canada's side, when the Nisga'a Final Agreement came into effect just about 10 years ago — May 11 is the anniversary date — no new pot of money was created for those obligations. As we understand it, these pockets of monies are taken from existing funds and then they are used to meet Canada's obligations under these fiscal financing agreements.

Indeed, Deputy Minister Wernick described what he said was a haggling process within his department to secure those existing pots of money. There were no new pockets of money created. Therein lies the problem.

Senator Stewart Olsen: Mr. Roy, nowhere in here do I see how you are developing lines of communications with the various groups with whom you are negotiating. It seems to be all a creation or just more layers of bureaucracy, which tends to bog things down rather than get things accomplished.

How would you address that comment?

Mr. Roy: Thank you, Senator Stewart Olsen, for your question. We have a line of communication with each of the groups. We have panel implementation groups with each of the signatories to the agreements. Throughout the process of negotiations, which is going on for years, we have established relationships with those groups and then when we turn to the implementation mode we have those committees in place. We have different panels in place and maintain a regular relationship with them on the different issues under discussion. We have those ongoing discussions with each of the groups individually, the 22 signatories.

Senator Stewart Olsen: Are the groups aware of the steps that you are taking from this response?

Mr. Roy: They are, because they are all members of the coalition, and we talk to each of those groups through our ongoing discussions with them. They are all members of the coalition, so they know what is going on in terms of trying to improve the internal process. All of them individually can see the progress at their own table, with their own issues. Each community and Aboriginal group at each of those tables has different issues with the Government of Canada on the implementation of their agreements. They can see at their table or group some evolution of the thinking and the process within government.

Senator Stewart Olsen: My only caution would be to be very careful you do not create more levels of bureaucracy which tend to be unproductive in dealing with the issues.

Senator Lovelace Nicholas: As a First Nations person myself, I think we all know that the lands under land claims belong to First Nations people. With all the money being spent on reports, on consultation and all these meetings that are taking place, would it not be cheaper to settle these land claims?

The Chair: You are brave, sir.

Mr. Kaludjak: Thank you. I try to be brave. Those are the responses that you need to hear from the government. That is what we have been saying all along, and I am really glad Senator Stewart Olsen indicated that less bureaucratic involvement creates less obstruction. That is where we have difficulty many times. I want you all to understand that the coalition is a political body. We have formed so we can bring to the political arena more thrust to get implementation matters dealt with by a new policy from the government. We asked them in March to consider producing a modern- day policy for implementation.

What it is trying to do is mandate the federal government to look at all the claimants, all 22 of us, more evenly, as being compatible or having parity as we work toward appropriate implementation. Mr. Roy mentioned obligations and the Constitution. When action must happen, it should be viewed as mandatory, compulsory, because of the claim signed with the three parties, in our case. That claim should give the guidance to proceed. Why question it when it has already been agreed to? You have already agreed to do certain things, and halfway down the line, in the case of Nunavut, you forget parts of the implementation process. We have to remind them that according to those articles they have to create new things along the way within a time frame. Certain things must kick in this year certain things must kick in that year. In this case, the orchestra was not working.

We need to engage the government in looking at a modern-day treaty policy that applies throughout the whole government. Everyone must know about it. The central agency of the government must know that they have a policy to fulfill; they have claims agreements that must be fully implemented and funded accordingly. That mandate from the current government must be given to these guys, to all of us in this room. We know very well that things must happen, and that is our ultimate goal. No bureaucratic level can hold up that process. Because it has been held up, you have challenges today.

Mr. Roy: I would like to add to the question, should we just not proceed with the land claim. The Government of Canada's position is that we should be proceeding. Actually, senator, we have somewhere around 70 tables of negotiations going forward in terms of concluding modern treaties, and in the coming year, we expect to conclude at least three new modern treaties. We have something like 450 communities right now involved in self-government negotiations, trying to define a new model of governance for their community through a modern treaty or through a specific self-government arrangement outside of the treaty process. We have something like 450 communities involved in that.

It is a very active area, and we are of course always looking to move forward in the context of land claims, but we have to realize too that not all Aboriginal groups want to move forward with modern treaties, and we have to develop alternatives for those groups to develop a new relationship.

Senator Lovelace Nicholas: Hopefully, let us say, next year we can put all this behind us?

The Chair: That is wishful thinking.

Mr. Roy: You are giving us quite an agenda.

Mr. Kaludjak: Just say yes.

The Chair: We have had interesting presentations from both the department and the coalition. I go back to what Deputy Minister Wernick said when he was here in February of 2008, and I quote him.

To be candid, we have had difficulty in the past fully engaging the government departments in the implementation of these agreements.

He also referred to haggling with the centre, and I think previous governments and the present government have had real challenges dealing with the implementation. The present government, if we can get them to handle it like they did specific claims, it will be perfect because the government responded to our report by implementing legislation. In British Columbia, my home province, several modern-day treaties are under negotiation. It is important that we find a resolution. As a committee, we should maybe consider requesting the reappearance of — I think it was Senator Peterson, who suggested it — Mr. Roy or whomever the department decides to send or the minister himself to keep us abreast of any and all progress being made. Hopefully this arbitration thing, which I feel is a given, will be taken into serious consideration.

Mr. McKay, you have a brief comment?

Mr. McKay: In thanking the honourable senators for this opportunity, I would like to leave you with a reflection on the meaning of the word ``spirit.'' Canada is a great nation in part because it is a nation of laws. Laws and contractual agreements are designed to protect us all, but it is when we lose sight of the spirit of those laws and agreements that the heart, the very life that gave rise to them, goes cold. That is when we begin to lose our way.

The letter of the law is strict. The strict, exact force of the language used in the statute is distinguished from its spirit, its very reason for being. I propose that Canada, a proud nation of laws, can learn from the spirit of its Aboriginal peoples and what we are committed to achieving. As we implement our treaties, let us be mindful of the spirit in which they were conceived. This way, we will approach our duty with honour and service of both current and future generations. Thank you.

Mr. Kaludjak: On behalf of the Inuit of Nunavut and all the members we represent, thank you. I am glad you have an Inukshuk here to guide you. We have our share guiding us in Nunavut. As long as we have those, we will never make a mistake, we will continue and never give up hope.

The Chair: The meeting is adjourned.

(The committee adjourned.)

Back to top