Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 3 - Evidence - Meeting of March 30, 2010
OTTAWA, Tuesday, March 30, 2010
The Standing Senate Committee on Aboriginal Peoples met this day at 9:34 a.m. to examine 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: follow-up to the committee's report on the implementation of comprehensive land claims); and for the consideration of a draft budget.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators, members of the public and viewers across the country who are watching these proceedings of the Standing Senate Committee on Aboriginal Peoples on CPAC or on the Web.
I am Senator St. Germain from British Columbia, and I have the honour of chairing this committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada, generally. This gives the committee a broad scope to look into issues of all types which touch on matters of concern to First Nations, Metis and Inuit.
The purpose of today's meeting is to obtain from Indian and Northern Affairs Canada a follow-up to the committee's report on the implementation of comprehensive land claims. This committee's 2008 report entitled Honouring the Spirit of Modern Treaties: Closing the Loopholes chronicled our concerns. In that report, we made four recommendations directed at ensuring that appropriate processes and structures for implementation of obligations under modern treaties are put in place.
The committee sought and obtained a government response to this report. However, not all of the committee's concerns were addressed in the response. The committee would like to use this opportunity to explore in what ways and to what extent its recommendations will be acted upon and when. If there is no current will to act upon certain of our recommendations, we would be eager to receive an explanation why.
[Translation]
Before we hear from our witnesses, I would like to introduce the committee members to you.
[English]
On my left is Senator Sibbeston from the Northwest Territories; Senator Dyck, the deputy chair of this committee; Senator Campbell from British Columbia; Senator Hubley from Prince Edward Island; and Senator Demers from the Province of Quebec. On my right is Senator Raine from British Columbia; Senator Patterson from Nunavut; Senator Stewart Olsen from New Brunswick; Senator Poirier from New Brunswick; and Senator Brazeau from the Province of Quebec.
Members of the committee, please help me in welcoming our witnesses from Indian and Northern Affairs Canada. We have with us Mr. Michel Roy, Senior Assistant Deputy Minister, Treaties and Aboriginal Government; and Stephen Gagnon, Director General, Implementation Branch.
Michel Roy, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Indian and Northern Affairs Canada: Good morning, honourable senators. Thank you for your invitation. We are very pleased to be here today to provide you with an update on the changes that have been made and those that are in process and upcoming that will improve the federal implementation of modern treaties.
Canada has and continues to work to address many of the common concerns raised within the federal government, by parliamentary committees, the Auditor General, and the Land Claims Agreements Coalition.
As I mentioned during our last appearance, an evaluation completed in October 2009 of all the older land claim agreements confirmed they are showing success. Following that, INAC is conducting an evaluation of self-government and its impact on Aboriginal signatory communities. Several communities at various stages of self-government are participating in this evaluation project. This process will include both qualitative and quantitative research, as well as a series of interviews with committee members, leadership and other implicated parties.
This evaluation is anticipated to conclude early in the next fiscal year. Its results will provide some important insights on how self-government is working and how it impacts its intended beneficiaries.
While the federal government has been able to work collaboratively to implement initial, one-time and transactional items, it is not a secret there have been challenges in working together in a coordinated fashion to resolve implementation challenges that arise from time to time, and in making adjustments in a timely and consistent manner.
When we were here in October 2009, we told you the Department of Indian Affairs was taking action. Our department is committed to making improvements in key areas identified by this committee's report.
Canada works to strengthen implementation and continues to work on three key areas that I will discuss more fully during my presentation. First, in terms of comptrollership, we are strengthening internal and cross-government monitoring and reporting mechanisms to improve results-based reporting and to demonstrate results to Aboriginal signatories and Canadians.
In the second area of management, we are establishing cross-government structures to improve the management of the Government of Canada implementation responsibilities.
Our third key area is guidance for implementers. We are currently developing guidelines to distribute to colleagues across the federal government whose work touches on modern treaties and their implementation.
[Translation]
Concerning management issues, during our last appearance, I spoke about the implementation of a management framework which will strengthen the management of modern treaty implementation across the federal government by improving cross-government coordination and decision-making.
I am pleased to report that the Federal Framework for the Implementation of Modern Treaties was approved by the Federal Steering Committee on Self-Government and Comprehensive Claims on December 14, 2009. Copies have been prepared for you and for all my members. One of the key features of the Framework is the broadening of the focus and mandates of the Federal Caucus and Federal Steering Committee (FSC) to include ongoing, outstanding and emerging implementation issues.
It also incorporates regional implementation caucuses of federal officials into the FSC process in recognition that much of the essential and ongoing business associated with modern treaty implementation is carried out in an array of federal bureaus and installations across Canada.
Over the next few months, representatives from the Implementation Branch, under Mr. Gagnon, will be undertaking several activities to operationalize the framework.
These activities will include a series of engagements with the regional caucus representatives in the three pilot areas. A presentation was made to the regional caucus in Atlantic Canada on March 2, 2010, with meetings in the Northwest Territories and British Columbia to be scheduled shortly.
Indian and Northern Affairs Canada recognizes the importance of working together with treaty partners to ensure that treaties are implemented properly. We will soon be sharing the implementation management framework with the Land Claims Agreement Coalition.
We will continue to work with Aboriginal, provincial and territorial signatories, as well as the coalition, and keep them informed as the work moves forward. Additionally, we are developing guidelines to distribute to implementers across the federal government.
These will provide practical advice, consistent guidance and direction to federal officials who have responsibilities relating to the implementation of modern treaties, as well as inform them of department roles and responsibilities.
These guidelines are in the internal INAC approval process and will soon be sent to central agencies and other government departments for their comments.
We will also issue subject-specific guidelines to assist federal officials in managing key implementation issues, such as alternate dispute resolution (including binding arbitration), reviews, renewals and annual reports.
These guidelines should help ensure that these processes and initiatives are managed in a coherent and particular manner across the 22 agreements. We are hopeful for conclusion on several of the guidelines by the fall of 2010.
As I have already mentioned, to improve comptrollership, we are also strengthening internal and cross-government monitoring and reporting mechanisms to improve results-based reporting and to demonstrate results to Aboriginal signatories and Canadians.
For example, over the past year, the department has developed an enhanced web-based system which will be launched on April 1, 2010 to track all federal obligations. The redesign of this system has addressed the shortfalls of the old tracking system. The new system is more user-friendly and allows for the production of specific reports, by departments or by claims; it identifies gaps in implementation efforts; it facilitates reporting, internally and to Parliament; and it allows for the linking up to other departmental reporting requirements.
[English]
The Senate committee report raised serious concerns with the way fiscal funding of modern treaties in Canada are renewed. The report recommended that federal officials consider "the development of transparent, flexible and timely funding processes and fiscal planning procedures." The federal government recognizes that fiscal arrangements are a key part of the post-treaty government-to-government relationship. On March 2, 2010, Minister Strahl announced that INAC would be developing a new national approach to funding of Aboriginal self-government. These arrangements will need to satisfy the interests of all parties. They should be fair, transparent and consistent and they should be manageable, timely and affordable.
We anticipate that this new approach will include an open and transparent articulation of federal policies set out in the public policy statement or through a legislative framework. We anticipate a funding formula to calculate federal funding support and take into account Aboriginal governments' contribution from their own source revenue. We also anticipate an ongoing process for consulting with Aboriginal people or Aboriginal groups collectively on matters related to fiscal financing.
Over the coming months, federal officials will develop a detailed proposal and then engage in policies and discussions on the proposal with Aboriginal governments, provinces and territories across Canada.
Recognizing that we will be working with provisions in existing agreements, any change to those provisions will require the agreement of the signatory groups.
[Translation]
In addition to these initiatives that are currently underway, Canada has achieved success on other key implementation files over the past year.
I spoke to you last fall about clca.net. This innovative system, following from a Treasury Board lead initiative, would see federal departments reporting on their contracting and procurement activities in land claim areas.
Since our last appearance, approximately 875 federal employees across 30 departments have attended learning sessions. Each session leads to more requests from departments for additional training.
During our last appearance, I mentioned that the e-learning tool, entitled "Aboriginal Considerations in Procurement," was released by the Canada School of Public Service on Campusdirect, the public service's e-learning system, in May 2008. I am pleased to report that this same learning tool was awarded a recognition award from the Materiel Management Institute of Canada (MMIC) for its innovative approach to learning in the area of procurement.
We continue to make progress on implementation activities across the country and I would like to highlight just a few for you. After concluding successful renewal negotiations, on March 24, 2010, the Minister, along with his counterparts from Makivik and Quebec, announced the signing of their renewed five-year Nunavik Housing Agreement. It will become effective on April 1, 2010 and cover the period 2010-2015.
An order in council was approved in January 2010 for the coming into force on February 1, 2010 of amendments to the Cree-Naskapi (of Quebec) Act. This fulfills a key commitment of the New Relationship Agreement between the Cree of Eeyou Istchee (James Bay) and Canada.
Additional appointments include an OIC in January 2010, making amendments to the capital transfer payments with the Inuit of Labrador as a result of the overlap agreement between them and the Inuit of Nunavik.
Federal appointments to the co-management boards have been completed and, as a result, all boards are established and operating under the Nunavik Inuit Land Claims Agreement.
We are also happy to report that the Nunatsiavut Governance Day took place November 18, 2009 in Ottawa. Over 60 senior officials from the Nunatsiavut Government and the federal government met to discuss the successes and challenges of the Labrador Inuit Land Claims Agreement. They used the opportunity to learn and share experiences which resulted in improved collaboration and further strengthening of the relationship between governments.
[English]
In Nunavut, recognizing that we are still dealing with litigation issues, the Nunavut Implementation Panel met in January 2010. The panel reached consensus to develop terms of reference for the upcoming Article 23 periodic review. This is the article dealing with Inuit employment within government. All parties will be collaborating actively in the contracting process.
The panel members also agreed to develop terms of reference for the 2005-2010 five-year review, which is expected to begin this coming fiscal year. It was also agreed that a more streamlined annual report process will be put in place to allow for more timely and effective reporting.
Earlier this month, Canada, British Columbia and the Nisga'a Nation completed a subsequent financial transfer agreement effectively retroactive to April 1, 2009, which supported the Nisga'a government in the provision of agreed- upon programs and services. The estimated value of the six-year agreement is $366 million, and it supports the Government of Canada's objective to promote fiscal relationships with First Nations that meet the governance responsibility and community needs.
Finally, through Budget 2010, Indian and Northern Affairs Canada received $8 million over two years to support community-based environmental monitoring, reporting and base line data collection through the Northwest Territories Cumulative Impact Monitoring Program and the Nunavut General Monitoring Program.
As Minister Strahl commented at the B.C. principles meeting, Canada remains committed to negotiating modern treaties with willing First Nations. Negotiated settlements enable all parties to achieve progress on important issues. First Nations and Aboriginal people gain access to many opportunities for economic and social development. Canadians benefit from strong, confident and self-sufficient First Nations and Aboriginal communities.
[Translation]
We are also committed to improving how we implement those treaties. Our work thus far is a big step in ensuring more consistent and timely implementation of our federal obligations, one that is more responsive both to the needs of First Nation communities, and all Canadians.
[English]
The Chair: Thank you, Mr. Roy. I have a question. On page 5 of you brief, you say, "We will also issue subject- specific guidelines to assist federal officials in managing key implementation issues such as alternative dispute resolution" and in brackets you have "including binding arbitration."
What does that really mean? I believe there is only one agreement of the modern-day treaties — and I stand to be corrected on this — which is the Nisga'a, who have binding arbitration, and the rest of them are voluntary arbitration. One of the key concerns of the coalition and the committee was that the only recourse that these people have is to go to court. That is what has happened in Nunavut.
You issued subject-specific guidelines. Can you explain exactly what that means? Unless First Nations have other recourse, their only recourse currently is the courts, unfortunately, which is frustrating for these people who have signed these modern-day treaties.
Mr. Roy: I will ask Mr. Gagnon to answer that question, but before he does, I would like to say that we have to keep in mind that with all of those agreements, we have implementation panels where all the parties are working together and trying to find solutions to some of the issues. When we talk about arbitration, what we are developing now are guidelines where the Government of Canada could agree to go to a process of binding arbitration for non-financial issues. For financial issues, it will always be a problem for Canada to agree to be the subject to binding arbitration.
The Chair: Their only recourse are the courts, then?
Mr. Roy: If the issue is relating to money, their only recourse is the courts, yes.
Stephen Gagnon, Director General, Implementation Branch, Indian and Northern Affairs Canada: To answer the specific elements of your question, many of the agreements have binding arbitration. The question is whether or not it is something that is mandatory or voluntary. I think the Inuvialuit Final Agreement requires arbitration in some cases although I am not certain whether it is financial. The other ones are permitted — the Nunavut agreements, for example — to have arbitration and once both parties agree, and then the decision would be binding. There are those outlets.
What we are talking about is putting in place a series of directives so that we have the processes in place to get the decisions made to take things to arbitration from the federal side. I think in our last visit here, we talked about that being an issue to the point that the federal processes were not in place, so decisions were not being made in a timely fashion. That is what the guidelines are supposed to be addressing.
The Chair: We were told that in most cases, the federal government will not enter into arbitration because most of the agreements are voluntary. I hear you saying that once the decision is made, if it is decided to go to arbitration, it is binding. However, the federal government is reluctant to get there. That is one of the biggest problems facing the people trying to deal with these modern-day treaties from the First Nations side.
Mr. Gagnon: Understood, and that is why we are trying to put the guidelines in place, in order to make the rules around when Canada will and will not go to arbitration a little clearer. I do not think it will ever be perfect, but we need something in place. We are striving for clearer rules so people will understand under what circumstances Canada will agree to binding arbitration and under what circumstances it will not. I acknowledge that has been a concern of both this committee and other groups that have made representations here.
Senator Stewart Olsen: Thank you for appearing and updating us. It is a very good update, and I appreciate it.
Will the general population be able to access your new website? I understand the website will be launched April 1 and will have information concerning federal obligations. Will the website be open or an inter-governmental website?
Mr. Gagnon: That will be an internal system for the federal government to monitor and track. One of the ultimate goals is to produce reports that we can share to let people know how we are doing on treaty obligation management.
Mr. Roy: It is really a management tool to manage and report the real information. It is an internal system.
Senator Stewart Olsen: I am sure that all members of the committee would appreciate knowing when the website is up and running. Please send us the link when it is ready, as this website will assist us in monitoring the progress of certain items.
Senator Sibbeston: This issue of implementation is, of course, a big problem, that began in the 1970s with the James Bay Agreement. That is where modern comprehensive claims started, and then we had quite a number in the Northwest Territories, Nunavut being the biggest one.
The issue of implementation that we are dealing with is very serious. The honour of the Crown and so forth is at issue. I would have thought that part of the federal government's response would be that it has responsibilities and treaty obligations and they are very definitely intent and resolved to implement and comply with the agreement.
Have you made such a statement? The Land Claims Agreements Coalition is an organization that has begun meeting to deal with issues. They would like to hear that the federal government is serious about and intent on living up to its obligations provided in the modern land claim agreements.
Are you able to say to us, to the land claimants and to all Canadians that the federal government will live up to and comply with the modern land claim agreements?
Mr. Roy: I have to say that, of course, Canada will face its obligations. The goal of our activities has always been to meet our obligations together with the other parties. It is a shared obligation of all signatories. If you look at a one- time obligation, such as the transfer of land, we have a good record. There are a couple of little issues here and there, but we have a good record. In the longer term, the goal is to develop partnerships and work better together. We have to learn these things over time. It takes time to develop a new relationship, based on government-to-government relations. That relationship influences the current relationship and the way that we do business. Of course, we want to meet our obligations.
Senator Sibbeston: In your presentation, you spoke about a federal framework. Is that the most important change you are making to enable land claim agreements to be implemented properly? Is this an internal mechanism or framework to make the implementation possible?
Mr. Roy: I would not say it is the most important action. It is simply to provide a framework to help federal officials to understand the meaning of modern treaties, the obligations and to guide them in the sense of how Canada will want to assume its responsibilities. It is a document to guide the system and federal officials in the context of the implementation of treaties.
Senator Sibbeston: In terms of people and resources available in the department, have you added, strengthened or reorganized in any way to make the implementation more successful?
Mr. Roy: Mr. Gagnon and his team proceeded to a major reorganization within their branch to ensure that they are better prepared to meet and work with the partners.
[Translation]
Senator Brazeau: I have two fairly simple questions. First, following the department's answer to the committee's report, what is the department doing to encourage First Nations to enter into negotiations to sign a modern treaty?
Second, in the department's view, what would be the benefits for one or more First Nations to enter into such negotiations?
Mr. Roy: As to what the department does to encourage First Nations or Aboriginal groups to enter into negotiations, it is up to the Aboriginal group to decide whether it wants to proceed with a modern treaty that would change its relations with the federal Crown. In a number of cases on the Prairies, historic treaties are already in place.
The communities in British Columbia, Quebec, the Atlantic and the Algonquins here in Ontario, are obliged to enter into negotiations with us. In the majority of cases, at least in the Atlantic, Quebec and Ontario, we are conducting negotiations with all groups.
In British Columbia, there is a process in place with about 50 negotiating (bargaining) tables, but that does not include all First Nations. Some First Nations are not ready to accept the process in place and we have to respect their decision.
As to the benefits of coming together, we try to show the groups that there are advantages, especially when it comes to taking on certain powers. I feel that it would not be appropriate for us to support just one community that wants to implement child and family services or education services for that one community only. Even if that community has jurisdiction, it would not make sense for them to do it. They would have to come together to be able to carry out the functions.
So we encourage First Nations to come together so that they can take on broader responsibilities.
Senator Brazeau: You mentioned that negotiations are currently underway. Has the department analyzed the costs per negotiating table?
Mr. Roy: Each year, the direction of the negotiating table undergoes a review process to find out whether we are really moving towards a common vision with the Aboriginal group.
The processes are expensive and the Aboriginal groups have to incur debts. That is why we want to make sure we share the same vision. If that is not the case, we sit down again with the Aboriginal group and discuss the need to redirect the negotiating table or simply to suspend it while we work together on developing a common vision.
Senator Brazeau: Do you have any information that shows the costs incurred?
Mr. Roy: Actually, the costs of the negotiations can be seen in official government documents.
[English]
Senator Patterson: Mr. Roy and Mr. Gagnon, I am disappointed that there has not been more progress since this committee issued its report in 2008. I want to follow up on the arbitration issue. The committee's report recommended that the government abandon its practice of systematically refusing to consent to arbitration. I am aware that the provision in the Nunavut Land Claims Agreement was a "may" and not a "shall." Given that we are talking about the honour of the Crown, surely Parliament intended it to have some meaning when it approved that clause in the land claim agreement. If the government did not intend to ever use it, why would there have been agreement to put it in?
In Nunavut, money in staggering sums is being blown away on lawyers now that the Government of Nunavut has been engaged in this lawsuit. I would not want to count the dollars or the waste of time.
When you appeared before this committee in the fall, you said that you were working on the arbitration issue. Today, we find out that you are working on subject-specific guidelines but only for non-monetary issues. How many issues are not monetary?
With the greatest of respect, that is a tiny solution to a huge problem. The major claimant groups have formed a Land Claims Agreements Coalition. These experienced people are from all regions of the country. Our committee's report recommended that federal officials work with the Land Claims Agreements Coalition to take steps to develop a new approach to implementation policy that would include clear and enforceable directives that compel the use of arbitration.
Do you dialogue with the coalition? Is it not a worthwhile recommendation to try to develop a collaborative approach on a new comprehensive policy?
Mr. Gagnon: As Mr. Roy mentioned we have been working on guidelines, and on things like dispute resolution, including the use of arbitration. At this point, I admit that our discussions have been internal. We need to get the federal position in order before we start talking more broadly to people.
We have had communications with the Land Claims Agreements Coalition over the past year. I will not go so far as to say that has been consultation. We have been trying to keep people advised as to where we stand.
We do meet with the groups individually in their implementation committees. The members all have agreements in place and we meet with them from time to time. We understand the concerns. However, we are at the stage of just doing the internal federal discussions as to what it is we will be able to discuss.
Senator Patterson: Why does it have to take so long? In your presentation, you say, "We are hopeful for a conclusion on several of the guidelines by the fall of 2010."
It has been two years since our committee's report, and you say you are hopeful that you will have a conclusion on several of the guidelines by the fall, which you have said are non-monetary and which exclude most of the meaningful subjects.
Is the tactic here to take as much time as possible to avoid confronting this issue? I cannot help but wondering, with the greatest respect, why on earth does it have to take so long?
Mr. Gagnon: Obviously, I will not refer to that as a tactic; certainly, that is not in people's minds. It has taken longer than I would like it to, I admit. It will be a priority this year to get these guidelines out.
I will make one more distinction about non-monetary issues. Where we think there will be an internal discussion, we know that many of the decisions will have monetary implications. We are not talking about thinking of excluding all things from arbitration.
What is a concern, though — and we suspect will be a concern to some of our colleague departments — is where there is a requirement for a negotiated level of funding, that would be something that would be put to arbitration. We think that will be a significant issue for the federal government.
As I said in my last appearance, I will not prejudge the discussion we will have internally with the colleague departments, but we expect that to be a lively debate.
Senator Patterson: I would like to turn to the federal implementation management framework, the federal steering committee that you described in your brief. In it you refer tom a federal caucus on self-government and claims, a secretariat and an implementation branch secretariat. You have an e-learning tool as well, which talks about Aboriginal "considerations" in procurement. With respect, the word should be "obligations." They are solemn obligations; they are not considerations.
The procurement issue has come up recently in some major contracts where federal officials in various departments — I will name Public Works and Government Services Canada — have dumped provisions that were previously in place with existing contracts under renewal. I refer specifically to the North Warning System contract that has been in place for five years and which is up for renewal this year.
It seems that previous provisions, giving preference to Aboriginal companies and to companies that employ Inuit in Northern contracting, have been jettisoned. In looking at it, it seemed to me that there is a need for a government-wide procurement policy.
As I understand this new committee, it will address procurement issues, among other things. Could you tell me whether this committee is the vehicle — and it does include central agencies, which is important — for implementing what I think is necessary, which is a government-wide procurement policy on Aboriginal procurement obligations? Is this something new that will lead to a government-wide policy on Aboriginal procurement?
Mr. Gagnon: I am not sure that I understand the full scope of your question, but let me try to answer. In this committee, we are adapting the committee that exists for pre-effective date approvals of negotiation. The federal steering committee already exists. We are adapting it to also deal with implementation matters — what we call post- effective date issues. We will strengthen the regional role so that people on the ground in the regions will be connected.
Essentially, this is to try to address one of the concerns that were raised in the Auditor General's report — and I believe indirectly in this committee's report — that Canada has to get a better handle on how it manages implementation obligations. This is one of the internal structures to raise awareness and bring some rigour to how we are managing our obligations.
I think the committee would be the place where we would deal with ensuring that the obligations in existing agreements are respected. However, as for a broader policy, we already have directives in place from Treasury Board as to Aboriginal contracting and things like that. I do not want to suggest that it will go quite that far.
Senator Patterson: I acknowledge that the Treasury Board has policies in place, but there are other federal agencies and major departments that seem not to have guidelines, or seem to be dropping them in a restraint mode if they do have them. I believe there is a need for a government-wide Aboriginal procurement policy.
I see you are planning to share the implementation management framework with the coalition. We have it today. How soon will you be sharing it with the coalition?
Mr. Roy: We are sharing it with you today and we will be sharing it with the coalition.
Senator Hubley: The committee's second recommendation states:
That the Government of Canada, in collaboration with the Lands Claims Agreements Coalition and its present and future members, take immediate steps to establish an independent body, through legislation, such as a Modern Treaty Commission, to oversee the implementation of comprehensive land claims agreements, including financial matters.
It recommends:
That the mandate of the Commission be developed jointly with the Land Claims Agreement Coalition and its members.
The response from the government was silent on that recommendation. Can you add to that today for us, please?
Mr. Roy: The creation of any new structure is the prerogative of the Prime Minister, so we are working with the established system. We established those committees. We established a federal caucus at the Aboriginal level.
We are taking action to move forward and make sure we have all the systems in place to get to a better implementation system of modern treaties. However, the decision on an independent commission will be the decision of the Prime Minister.
Senator Hubley: You said in your presentation:
While the federal government has been able to work collaboratively to implement initial one-time and transactional items, it is no secret there have been challenges to working together in a coordinated fashion to resolve implementation challenges. . . .
Would you share those challenges with us?
Mr. Roy: It is mainly within the federal system. We try to ensure that all colleagues in the department are aware of their obligations and that we have a common understanding of the meaning of a modern treaty. It is one thing to negotiate those treaties on behalf of the Federal Crown, but we must then ensure that everyone understands them. Everyone is looking at us to report on different activities and obligations. We need the participation of other departments for that to ensure it is working well. Those are the challenges we have faced. We are trying to find solutions.
There is also the question of developing a new relationship with our Aboriginal partners. That is not an easy task from either side. We are used to that relationship being based on the Indian Act. We are now negotiating modern treaties and we want to change the relationship on both sides. There is a learning curve for both sides to develop that new relationship.
Senator Lovelace Nicholas: You talk about modern-day treaties. Before we were all born, I believe the treaties of that time were to uphold our fishing, hunting and land rights. Are you moving toward where we do not own the land anymore, we do not get any more land, and we do not get to fish and hunt?
Mr. Roy: Under the modern treaties, there is some clarification about the land ownership. First Nations are getting land under modern treaties where they have jurisdiction or there is a partnership arrangement or shared arrangement with provinces and territories for other territory. Aboriginal groups are getting land and their rights are being respected. We have some certainty around the arrangement we are negotiating.
Senator Lovelace Nicholas: I thank you for that, but as far as I know and have read, there is no more salmon. How can we still maintain our living if the salmon is gone?
Mr. Roy: That is a different situation. In that context, it is a question of protecting the natural resource. This is something in which the Department of Fisheries and Oceans has to be involved in discussions with First Nations.
For example, modern treaties in British Columbia still recognize the fishing rights of Aboriginal peoples. The question now is how to protect the species.
Senator Lovelace Nicholas: Thank you, but you did not quite answer my question.
I am from the East. We fish salmon for our livelihood, and there is no salmon in the rivers. How could that be negotiated? Will you put salmon into our rivers so we can fish?
Mr. Roy: Fishing rights will be confirmed through the treaty. First Nations will then have to enter into arrangements with the Department of Fisheries and Oceans to implement the right when there is no assignment. It is a question of survival —
Senator Lovelace Nicholas: Yes, the survival of the fittest.
Are there any Aboriginal people involved on the government side in negotiating land claims?
Mr. Roy: Of course, we have.
Senator Lovelace Nicholas: How many?
Mr. Roy: I cannot report the exact number, but we try to hire as many Aboriginal people as we can in the department. We currently have around 30 per cent or 35 per cent Aboriginal employees. I cannot tell you how many I have in the sector dealing with negotiations, but I can provide those numbers.
Senator Lovelace Nicholas: Yes, please.
Senator Patterson: To be blunt, after hearing the evidence before it, I believe our committee felt that, with all respect, the Department of Indian Affairs and Northern Development, as the federal lead on implementation matters, did not have the necessary authority to ensure effective coordination of federal responsibilities across all departments. The Auditor General came to the same conclusion in successive reports. The Auditor General recommended the establishment of a senior-level working group moving beyond the department charged with overseeing issues. Our committee recommended that the Clerk of the Privy Council should take the lead to establish a senior-level working group, including officials from central agencies such as the Privy Council Office, the Department of Finance and Treasury Board.
You set out in your brief a federal interdepartmental caucus and a federal steering committee. Which department is the lead in those bodies?
Mr. Roy: The federal steering committee includes assistant deputy ministers from departments involved in negotiations and implementation issues, including all central agencies. I chair that committee. This committee has responsibility for overseeing implementation. I have all of the key players at the table.
The interdepartmental caucus is a system that involves officers from all departments throughout the government with any involvement in negotiations. It is under the lead of INAC. We call and organize meetings. It is a process to group all of those departments at the officer level.
Senator Patterson: I understand that notwithstanding the Auditor General's reports and our committee's recommendations, INAC feels that it has the clout to ensure coordination of federal responsibilities. I think that is your clear response to these recommendations.
It is fine to talk about coordinating, educating and the like. However, my view on the procurement issue is that cabinet needs to establish approve a firm government policy. Do you agree that, rather than coordination, there should be government-wide policies in place to implement land claims obligations?
Mr. Gagnon: You mentioned earlier that we are talking about obligations contained in these agreements. We agree. The implementation management framework is a federal steering committee at a senior level. One of its jobs is to ensure that obligations are met. You still need to have people do what they need to do in order to ensure the policy is fulfilled. We already have obligations in many cases. In that sense, we have gone beyond policy. We need to face that.
We hope that the directives or guidelines we are trying to produce will give specific guidance to people as to how they can do what needs to be done under agreements to meet the obligations. That is the purpose. We will evaluate this over the next couple of years to see if the federal steering committee is the appropriate vehicle or if we need something else.
We think we have the right players in place, but we will test drive this for the next couple of years and then see where it goes.
Senator Patterson: I know there is a hierarchy and pecking order in the Government of Canada. What rank of "senior officials," sit on the committee?
Mr. Gagnon: In this particular context, they are assistant deputy ministers, such as Mr. Roy. These ADM's report directly to our deputy minister. There are about as senior as you can get without being head of a department.
The Chair: Colleagues, as you can see, it is an important issue. Certainly to those of us who are from the province of British Columbia, where there are no treaties, modern-day treaties are the future.
Mr. Roy, I am sure you have taken heed of what the senators are asking. There is concern in this committee.
In the audience here today, from the Land Claims Agreements Coalition, are Mr. Terry Fenge and Ms. Udlu Hanson. The concern affects the lives of many people who have signed on to these modern-day treaties. The implementation is a major concern.
Senator Patterson, who is from Nunavut and has lived in the North all of his life and has been Premier of the Northwest Territories, is sounding the alarm that something must be done to improve the situation. I am sure that you are well aware of that. I want to thank you for taking time on a tough issue and for being so candid and straightforward in your responses.
At this time, colleagues, we thank the witnesses, and I thank you for the questions. We will go in camera for a small budget item to look after and then we will go back into full committee.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: We are back in full committee. The motion is that the budget as presented to you, with the exception of activity 1, be approved.
Hon. Senators: Agreed.
The Chair: Agreed? Opposed, if any? Carried.
Colleagues, we will be having a meeting of the steering committee to determine what future business we will be dealing with, and we will be getting back to you in the near term.
Any other questions or comments?
Senator Demers: May I ask a question? It may be an observation. I thought Senator Patterson was well prepared and asked very good questions. This is my opinion. Then Senator Lovelace Nicholas asked questions and did not get any answers.
Senator Campbell: Because they do not have any answers.
Senator Demers: What are we doing here? This man comes prepared, well organized. He asked very good questions. I am a former coach. We are all skating on the same side and no one is coming back in the zone. Call it whatever you want. I am frustrated for this man who I respect a lot. He came here prepared and did not hear an answer.
We are here as a committee. We respect Senator St. Germain as our chair, but we must have answers at some point. I do not expect answers all the time, but it is always, "We will see you next week." It is not fair, especially for someone who comes well prepared. I thought Senator Lovelace Nicholas wanted an answer. At some point we need answers. That is why we are here.
The Chair: Your observation is quite astute. Senator Patterson, logically, has lived with this serious issue. He comes out of the boiling pot, so to say, so he is fully aware of the issues.
As far as responses go, you will find that, unfortunately, we do not always get a response. It is often not answer period but just question period.
I think we could possibly write a letter, as a committee, to the minister, stating that certain questions posed by senators were not responded to adequately and get a response from him, if you feel that would be the right way to proceed.
Senator Demers: Thank you very much.
Senator Raine: I think that is a good idea.
The Chair: If you agree with that, I will see that our staff and the clerk draft something, and we will get it before you before I send it, so that everyone understands where we are coming from and they can have some input into the message that we send to the minister.
Senator Raine: The scary thing is we have done a few modern treaties, but there are many more to go. What incentive would you have to negotiate a modern-day treaty if you look around and see that the treaties that are signed are not implemented?
The Chair: That is right. For your information, Senator Demers, we initiated this study because of the fact that the government was not responding to these modern-day treaties. This is not just the present government. Former governments did the same. They virtually ignored the modern-day treaties. That is why we conducted the study. That is why we brought them before us. That is why we have now called the witnesses back; because we did not consider the response we received to be adequate, in any way, shape or form. That is why the witnesses returned here this morning. That is why I think we should be relentless.
We will go back to the minister and see where we go from there, if everyone is in agreement. If there are any objections, say so now or forever hold your peace.
No other business?
The meeting is adjourned.
(The committee adjourned.)