Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 31 - Evidence - February 6, 2018
OTTAWA, Tuesday, February 6, 2018
The Standing Senate Committee on Aboriginal Peoples met this day at 9:09 a.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples and to consider a draft budget.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning, bonjour, tansi. Sorry to have kept you waiting, witnesses, but we had a prior meeting.
I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples here in the room or listening via the Web.
I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional, unceded lands of the Algonquin peoples.
My name is Lillian Dyck, and I have the honour and privilege of chairing this committee. I’m from Saskatchewan. I would now invite my fellow senators to introduce themselves, starting on my left.
Senator Pate: Kim Pate from Ontario.
Senator Boniface: Gwen Boniface from Ontario.
Senator Christmas: Dan Christmas from Nova Scotia.
Senator Raine: Nancy Greene Raine from B.C.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Tannas: Scott Tannas from Alberta.
Senator Patterson: Dennis Patterson, Nunavut.
The Chair: And we also have one of our newly appointed senators here today.
Senator McCallum: Mary Jane McCallum from Manitoba.
The Chair: Thank you, senators.
We continue our study on what a new relationship between the government and First Nations, Metis and Inuit peoples of Canada could look like. We continue looking at the history of what has been studied and discussed on this topic.
Today, we are going to hear from the Auditor General about the work done on this area, but, before we do that, we have some business that the committee needs to look at. That is the consideration of the draft budget, which I believe every member has a copy of. Are there any questions regarding the budget? You might want to take a few moments to have a look at it. As you know, we have proposed a series of witnesses, and our first foray out into the field will be to Western Canada.
Seeing no questions, is it agreed that the special study budget application for public hearings and fact-finding in Winnipeg, Buffalo Lake, Prince Albert, Île-à-la-Crosse, Siksika and Calgary, part of the committee’s study on the new relationship between the Crown and indigenous peoples, for the fiscal year ending March 31, 2018, be approved, with the changes as discussed, and that the Subcommittee on Agenda and Procedure be authorized to approve the final version of the budget for the chair to submit to the Standing Committee on Internal Economy, Budgets, and Administration? Is it agreed?
Hon. Senators: Agreed.
The Chair: Thank you, senators. That is passed.
We’ll now move back to our witnesses today. We have before us Michael Ferguson, Auditor General of Canada, accompanied by Joe Martire, Principal; Glenn Wheeler, Principal; and James McKenzie, Principal. Mr. Ferguson, you have the floor, to be followed by questions from senators. Please proceed.
Michael Ferguson, Auditor General of Canada, Office of the Auditor General of Canada: Thank you. Madam Chair, we’re pleased to be here to talk about our audit work that may be useful to your committee’s study on the new relationship between Canada and First Nations, Inuit and Metis people.
The Office of the Auditor General of Canada has a long history of auditing federal programs and activities that affect indigenous peoples. In 2011, we brought some of that work together in a status report that looked at what the federal government had done to implement the recommendations we made in seven audits we issued between 2002 and 2008. We showed that the government had not made any improvement in the results of the programs we looked at.
We also included a preface to our 2011 status report in which we identified four impediments that severely limited the delivery of public services to First Nations communities and hindered improvements in living conditions on reserves.
Since 2011, we have done more audits on topics that are of particular interest to indigenous peoples. We are including a brief summary of some of these audits in this statement.
Based on our recent work, I’m sorry to report that there still has been little improvement in federal government programs for indigenous peoples.
[Translation]
Madam Chair, I want to be clear that we find it very disappointing. In a message I issued in 2016, I said that my predecessor, near the end of her mandate, summed up her impression of 10 years of audits on First Nations issues with the word “unacceptable.” Since my arrival, we have continued to audit these issues. When you add the results of our recent audits to those we reported on in the past, I can only describe the situation as it exists now as beyond unacceptable.
We have consistently shown that government programs have failed to effectively serve Canada’s Indigenous peoples. Delivering effective programming requires leadership — leadership from federal, provincial, territorial, and First Nations levels — with most of the responsibility falling on the federal government, though all levels have some responsibility. Until a problem-solving mindset is brought to these issues to develop solutions built around people instead of defaulting to litigation, arguments about money, and process roadblocks, this country will continue to squander the potential and lives of much of its Indigenous population.
In an effort to find solutions, we identified eight factors that need to be in place to make programs for Indigenous peoples work. We compiled these eight factors to identify how to improve services. But many of them are also important to establishing a mature relationship between the federal government and Indigenous peoples.
The first factor is sustained political will. In our 2015 report, Establishing the First Nations Health Authority in British Columbia, we said that the sustained commitment over a period of 10 years by leaders from British Columbia First Nations, the Government of Canada, and the Government of British Columbia built a climate of trust and respect that allowed the parties to establish the First Nations Health Authority in British Columbia.
The second factor is aggregation. One challenge to creating a new relationship is the level of disaggregation that has existed. On the one hand, there are over 600 Indigenous communities and representative organizations, and on the other hand, there have been multiple federal departments under no common direction. Also, the provinces and territories are involved. In the negotiations to establish the First Nations Health Authority in British Columbia, First Nations across British Columbia agreed to a unified approach to negotiation with other levels of government, so they formed the First Nations Leadership Council. This council acted as a single point of contact for the federal and provincial governments.
[English]
The third factor is real consultation. There are many people who know much more than I do about the duty to consult. Consultation is something that we’ve mentioned in a number of our audits. For example, in our 2016 audit of the First Nations specific claims process, we said that, without input from First Nations, Indigenous and Northern Affairs Canada developed a separate process to settle small-value claims. But, because it didn’t seek input from First Nations, the department created barriers to, rather than removed barriers from, the settlement process. For example, the department didn’t provide First Nations with the information it used to arrive at an offer, and the department’s letter of offer to compensate First Nation claimants for small-value claims didn’t invite discussion or negotiation. The offers were take-it-or-leave-it offers.
The fourth factor is the need for clear statements on the level of service to be delivered. This factor, along with the three factors that follow, were the four impediments we identified in 2011. In 2015, we reported on this problem in our audit on access to health services for remote First Nations communities. We found that Health Canada didn’t compare the access that remote First Nations communities had to health services with the access other remote communities had to health services. The department had not met its objective of ensuring that remote First Nations communities had comparable access to the clinical and client care services as other provincial residents living in similar geographic locations.
The fifth factor is the need for an appropriate legislative base that supports the desired level of services. A legislative base is an unambiguous commitment by the government to deliver certain services. It allows funding to be defined and it leads to accountability. The federal government has often developed programs to support First Nations communities without establishing a legislative base. In 2011, we said that this meant there was no legislation for programs in areas such as education, health and drinking water for First Nations members living on reserves. In our 2014 report on the First Nations Policing Program, we found that in Alberta and Manitoba, the policing agreements clearly required services funded by the program to comply with provincial policing legislation and standards, but we found that for the two agreements we examined in Ontario, there was no requirement for self-administered policing services in First Nations communities to comply with provincial policing legislation and standards.
[Translation]
The sixth factor is the capacity for local service delivery with appropriate governance structures and accountability to the Indigenous peoples receiving the services. Provinces have established many organizations and structures to support local delivery of programs and services. For example, provinces have school boards and health services boards. In 2011, we said that there were few similar organizations to support service delivery within First Nations communities. But even when local service delivery organizations are established, they will be successful only if they have appropriate governance structures in place. In our 2015 report on establishing the First Nations Health Authority in British Columbia, we were able to show that, in establishing the authority, the parties overcame the four impediments we identified in 2011. But we found problems in the authority’s governance framework.
The seventh factor is appropriate and stable funding. In 2015, we looked at the Labour Inuit Land Claims Agreement. This agreement was signed in 2005 by the Labrador Inuit and the governments of Canada, and Newfoundland and Labrador. It was a comprehensive land claims agreement that settled Indigenous title and ownership of lands and resources, and set out the future relationships and obligations of the three signatories. The agreement was supported by a five-year Fiscal Financing Agreement that provided financial support to the Nunatsiavut government. But even though the Nunatsiavut government had responsibilities under the agreement for housing, the lack of a federal program for Inuit housing south of the 60th parallel limited the Nunatsiavut government’s ability to fulfill its housing responsibilities.
[English]
The eighth and final factor is the need for the federal government to monitor whether it is living up to its commitments. In our 2014 audit of the Nutrition North Canada program, we found that the measurement strategy of Indigenous and Northern Affairs Canada established performance indicators, such as the weight of food shipped. However, there was no indicator to measure whether the full subsidy on food was passed on to consumers. So the department measured what was easy to measure — how much food was shipped — and didn’t measure what was important: Did the food get to the intended beneficiaries, and what was the effect of the program on the price of the subsidized food? In our opinion, it’s critical for the government to measure its performance and faithfully report its results as measured against the program terms and conditions in order to know whether its programs are improving people’s lives.
Madam Chair, we hope that we can contribute to your committee’s reflections. We’d be pleased to answer any questions you may have. Thank you.
The Chair: Thank you very much, Mr. Ferguson. We’ll now turn to questions from the senators, starting with Senator Tannas.
Senator Tannas: Gentlemen, thank you for being here.
Mr. Ferguson, I want to just focus in on the areas around clarity and measurement that you talked about, such as clear statements for service, appropriate measurements and, I presume, some kind of consequences or reaction if you don’t make the measurements, because having indigenous people now being able to confidently say they’re not being served but having nothing coming out of it isn’t helpful either. So there is the whole continuum of clear statements, measurements and some kind of consequence if service levels aren’t being delivered.
Is there anywhere in Canada’s government where you could find an example that you could show the folks at Indigenous and Northern Affairs or the subset that’s responsible for delivery? Failing that, is there anywhere in the world where you see great examples that you could point to and help them develop what needs to be developed?
Mr. Ferguson: Thank you. Unfortunately, nothing right now is coming to mind in terms of the federal government. I mean, I’m sure there are some, but I would have to try and find an example. But it’s been a theme that we have identified in a number of different audits recently. We did an audit on Canada Revenue Agency’s call centres recently and indicated there that what the Canada Revenue Agency was saying about its performance versus what we found its performance to be was significantly different.
In terms of something more related to your study, we also recently issued an audit on the oral health program for First Nations and Inuit people. There, even though we identified that it is well known that the state of dental disease among those populations is twice as bad as the rest of the population in Canada, we found that the department wasn’t measuring its program to see whether anything it was doing was actually having an impact on that outcome of the level of dental disease. They were running and administering the program according to their rules, and the program was paying for a lot of services, but even after many years and after the department had committed at least twice to put in place a measurement process to identify whether they are meeting their objective, there was still no indication of there being any improvement.
They did put in place a small program that was geared to prevention amongst children and there were some indications that that program was having an impact, but it was not available to all First Nations. In fact, the data they had indicated enrolment in that program was declining even though the program seemed to be having some success.
So this whole issue of departments not really measuring the results that they are achieving is a problem that we see across the board in many different departments and many different programs that we audit.
Senator Tannas: Given that, do you think potentially that some of the solutions, then, might come from funding individuals and allowing them to seek the services when and if they need them? Is it that this is not a problem or an issue that the government should solve but one that people are best to solve, and that if they have the resources, they can do it? Is that what the problem is, or is it something else?
Mr. Ferguson: I won’t get into options of policy. That’s the government’s role, and we don’t comment on policy.
Senator Tannas: Fair enough.
Mr. Ferguson: Again, the message that we keep trying to send to all departments — and I think it’s particularly important in this file — is that when departments are delivering programs and services to people, they need to understand the following: What is the experience of that person when that person is accessing that service, can that person access the service in the right way, does that person feel they are getting the service the government said they were going to get and is the service achieving the outcome it is supposed to achieve?
So for us, fundamentally, all government departments should be looking at their programs within that type of a lens. If, at the end of the day, they find the programs are not achieving what they are supposed to achieve, then that’s when you get into the policy debate of whether it is a policy fix or whether there is something wrong with the way the policy has been implemented. Fundamentally, we see departments too often not looking at the service and the service delivery from the point of view of the person who is receiving the service.
Senator Tannas: Thank you.
Senator Pate: Thank you to all of you for your work.
Given what you’ve presented, the many audits you’ve done and the recommendations you’ve made, what do you think the best advice might be to us and to the federal government in terms of what kind of new fiscal arrangements could be made to close the socio-economic gaps experienced by indigenous communities, and are there some recommendations you think we could make that might assist in terms of the study we’re doing on the nation-to-nation relationship process?
Mr. Ferguson: You mentioned the term “closing the socio-economic gap.” We have an audit under way right now looking at how the government measures and monitors the socio-economic gap. We’re not finished that yet, so I can’t speak to what we’re finding in it, but understanding and being able to measure what that socio-economic gap is and then being able to know whether the government is actually having an impact on that socio-economic gap are two of the first things.
I’m going to go back to the eight factors I mentioned in my opening statement. Before I do that, though, I’ll make mention of the fact that I’ve been involved in some different conferences — by the Institute on Governance, for example — on the whole nation-to-nation relationship. One of the concerns I have is that framing it as “nation-to-nation relationship” perhaps oversimplifies what needs to be done, because, as I said in my opening statement, there are over 600 First Nations, Metis, Inuit communities and organizations. That means it isn’t just a one-to-one conversation; there needs to be a way to understand what that conversation is. Even on the federal government side — and I know there’s been a recent change to the two departments to make one responsible for services and one responsible for relations — but, over time, there have been many different departments responsible on the government side and they haven’t been under one direction either. All of that has complicated this whole idea of nation-to-nation relationship. It’s the right concept, but I think it’s more complex than just putting down “nation-to-nation relationship.”
I want to explain again where the eight factors came from. In 2011, my predecessor Sheila Fraser issued a report that identified four impediments that were the ones that, over a 10-year time period, the office had identified were getting in the way of good service delivery to First Nations. Those four impediments were clear statements of the level of service to be delivered, an appropriate legislative base, local service delivery capacity, and appropriate and stable funding. There was a lack of appropriate and stable funding, a lack of a legislative base, a lack of clear statements for the level of service and a lack of local service delivery capacity.
Later on, we went to look at the British Columbia First Nations Health Authority, which was an organization that managed to get established. We wanted to know how they got past those four obstacles in the course of establishing the British Columbia First Nations Health Authority. I’m not going to say that health authority is necessarily the best example of what can come out of it. I don’t know. It’s still new. But there was success on the part of the federal government, the provincial government of British Columbia and the First Nations organizations to get the authority established. To do that, they had to overcome all four of those obstacles. They overcame the funding obstacle, for example, by putting in a 10-year funding agreement. Just the fact that they were setting up the authority was establishing local service delivery.
So they got past those four obstacles, but in the course of that, we also identified that it wasn’t just getting past the four obstacles that led to success; there were other things that led to success.
The first one was sustained political will, which is to say that all the parties stayed in that conversation for 10 years to get that established.
There was aggregation. The First Nations identified that it would be easier for the federal government and the provincial government to negotiate with one voice rather than 200 individual First Nations. That helped reduce the complication in the conversation for the government. It didn’t reduce the complication for the First Nations; they still had the 200, so they did that work themselves.
There was real consultation, which is something we don’t see in a lot of other programs.
But the one thing we were concerned about with the B.C. First Nations Health Authority was that it was a new organization and was trying to take on a lot all at once, and we were concerned that it didn’t have robust governance structures in place. It had work it needed to do to get those robust governance structures in place in order not to jeopardize the success of establishing it.
The eighth factor, which really didn’t come out of that work, is for the federal government to actually know whether it is delivering on its own commitments: Is the federal government delivering on the commitments it said it would deliver?
Senator Christmas: Thank you, Mr. Ferguson, to you and to your office for the auditing of federal services and programs dedicated to indigenous people. I appreciate the eight factors you outlined in your presentation. I think they all resonate with me.
Prior to outlining your eight factors, there were a couple of statements you made in your presentation, and I would appreciate if you would elaborate. First, in paragraph 6, you talk about the need for a problem-solving mindset. Second, in paragraph 7, you talk about how important it is to establish a mature relationship between the federal government and indigenous people. Could you elaborate on why you felt the need to have a problem-solving mindset and a mature relationship?
Mr. Ferguson: Again, in paragraphs 5 and 6, I’m repeating a message I delivered in 2016, along with a number of audits that we released at that time.
A problem-solving mindset is important. It’s important on this file particularly, but it’s important for all government programs, again, to understand what the program is supposed to be delivering. Is it delivering that? If it’s not, how do we get it so that it’s delivering what it’s supposed to deliver? But we see too often that there isn’t that type of a mindset.
I’ll go to the audit of specific claims, for example, and Mr. Martire can help me out on this one. Again, as I said in my opening statement, the Department of Indigenous and Northern Affairs decided that one way to perhaps settle some of the claims more quickly would be to put in place a separate process for small-value claims, but the department decided itself what constituted a small-value claim. They didn’t talk to the First Nations about what a small-value claim was. They didn’t share the information they used to assess the claim. Then, in the end, they just sent a letter to the First Nation and said, essentially, “Here’s what we will provide,” without any invitation for negotiation or discussion for that amount, so the First Nations considered those things to be a take-it-or-leave-it type of offer.
So here they identified something they wanted to do, which was to speed up the settlement of those low-value claims and, in fact, they ended up making it worse, not better. That was looking at it from the point of view of what would make it faster for the people in Indigenous and Northern Affairs. It wasn’t what will make this whole process faster from the point of view of the people administering the program as well as the people putting claims in. It was looking at: How can we make our process faster?
The other thing was that, in the specific-claims process, they identified the need to establish a mediation service. If a First Nation did not agree with the settlement, there was going to be mediation. But they set the mediation service up within the Department of Indigenous and Northern Affairs. So, to First Nations, they didn’t see that as real, independent mediation because it was set up inside the Department of Indigenous and Northern Affairs. So it only ended up being used once.
That’s what we mean by a lack of a problem-solving mindset. I don’t know, Joe, whether there’s anything you want to add on specific claims.
Joe Martire, Principal, Office of the Auditor General of Canada: I’ll just add that this is a good example of how the political will was established through the reform that started with Justice At Last, where there was agreement among all parties in terms of moving forward. Now, it was up to the department to take those principles that were established in Justice At Last and actually implement them through their program design and delivery. Some of those principles were all aimed at resolving claims, which speaks to improving reconciliation and improving the relationship. What we found when we did the audit was that, rather than focusing on improving that situation, the measures that they’ve improved that the Auditor General just spoke to, they actually hindered those negotiations.
Then, to tie it back to the reporting that we talked about earlier, when you look at the way they measured their own success, the department was measuring success because they were closing files. Closing files doesn’t mean that they were actually resolving claims. They were punting it back. Also, by cutting back on the research funding, what would happen is that that obligation would go back to the First Nation, but the outstanding obligation, which was recognized as being a legal obligation, still exists. The cost of that would be increasing over time.
So all of those things that were intended to improve the relationship through the measures that they put in place actually worked in the opposite direction. That’s a concrete example of, perhaps, a well-intended political decision through Justice At Last. Then it was up to the department to implement them, and that implementation basically fell short.
Senator Christmas: Mr. Ferguson, could you also comment on the need for a mature relationship between the parties?
Mr. Ferguson: Again, I think we’ve seen that in a number of different places. I think the establishment of the British Columbia health authority was an example of a real, mature relationship between all of the parties that got that established. Again, that organization needs to make sure that it is successful, because there was that maturity of relationship that got them to the point of being able to get that agreement in place.
I think I would also say — and Mr. McKenzie can help me out on this one — that in the negotiation of the Labrador Inuit Land Claims Agreement, again, there were a lot of good things that went into that negotiation. But, even there, there were some places where I feel that the federal government perhaps should have done better on some parts of that. For example, as I said in my opening statement, the Nunatsiavut government was responsible for housing, and they took that responsibility for housing, but they didn’t have any way to fulfill that responsibility. There were some sort of one-off programs, but there was no general way for them to take on all of that responsibility. When you’re in a negotiation with another party and that other party ends up taking on a responsibility, I think it becomes the responsibility of both parties to make sure that there will be a way for that party to be able to live up to that responsibility. In the case of something like the housing, that wasn’t there.
Again, the other thing is that, similar to the mediation that I mentioned earlier on specific claims, they put in place a dispute-resolution mechanism in the Labrador Inuit Land Claims Agreement. But, even though they had disputes on things like shrimp fishing and a couple of other things, none of them went through the dispute mechanism, which, again, I think, would give you an indication that perhaps the parties weren’t prepared to trust the dispute resolution, and it could have been either party that didn’t want to really deal with it through dispute resolution. Again, in a mature relationship, I would think you would establish a dispute resolution mechanism and give it its authority, and then the parties would have the trust and the confidence in that mechanism.
I think there’s still a significant way to go to make sure that, in some of these things, there truly is that mature relationship in establishing who’s going to be responsible for what and how we know that it’s going to be done.
Senator Christmas: Thank you, Mr. Ferguson.
Senator Raine: Thank you very much. I appreciate your being here.
I’ve been interested for many years in nutrition and health, active, healthy living. I’m just wondering: When you did your review of the Nutrition North program, you’ve already mentioned today that measuring the outcomes wasn’t really done properly. But could you comment on that program with regard to how nutrition and the nutritional value of what we are subsidizing to the North is determined, and was there adequate consultation with indigenous populations in the North to make sure what we were shipping was compatible with country food as opposed to just shipping what perhaps non-indigenous people living in the North were used to having, i.e., Southern food? I’ve always been concerned that there must be a link between the nutrition and the quality of the food. As indigenous populations transition to Southern foods, processed foods, soft drinks, those kinds of things, the impact on their health with regard to dental health is probably connected. In your auditing, is there a way to link together the nutritional subsidies that we’re giving with the dental health program? They’re two separate audits; I recognize that.
Mr. Ferguson: I’m going to start, and then I’ll ask Mr. Wheeler to provide some details on the Nutrition North audit.
In Nutrition North, the goal or the objective of the program was to subsidize nutritious food. It was part of the program design to try to provide nutritious food. Then, of course, it comes down to the definition of nutritious food, and I’ll let Mr. Wheeler speak to that.
Certainly, when it came to looking at the oral health audit, there were many things we identified as context to why it’s a significant challenge within these populations. You’re talking about remote populations that are not always near the services they need, and they don’t always have access to nutritious food perhaps. There are a number of contexts like that, but we couldn’t put a link directly to the outcomes on oral health.
That’s why our main concern was that there were enough signs over about a 15-year period that oral health was not improving, which was part of the goal of the program. We felt the department needed to do much more to try to identify what should be done to try to improve the oral health outcomes. That could go all the way back, perhaps, to understanding whether part of the problem was related to food consumption.
I’ll ask Mr. Wheeler to speak to the Nutrition North Canada program.
Glenn Wheeler, Principal, Office of the Auditor General of Canada: Madam Chair and honourable senators, this was an area where we found that Indian and Northern Affairs Canada actually did some good work. They undertook extensive consultations with Health Canada to identify which foods were most nutritious according to the food guide. They identified nutritious foods as being eligible for what was called the full subsidy and less nutritious food being eligible for only the partial subsidy. This was a mechanism that INAC used to encourage the program to focus on nutritious food. That was an area where we made some positive observations.
In terms of country foods, the dynamic was a little bit different there. We didn’t actually scope country foods into our audit, and the reason for that was that a lot of country foods are actually produced in the North. There are some other factors at play in terms of how those foods are produced and provided to communities, so that was not something we scoped into the audit.
Senator Raine: From what you’ve just said, Health Canada determined what was nutritious, probably based on a Southern diet, such as fresh fruits and vegetables, whole milk and those kinds of things, which are very difficult to ship to the North and deliver to remote communities. But they might have missed out on shipping things like the wonderful pulses we grow in Canada that can be shipped dry, stored for long periods and added as extra nutrition to foods like wild meat and fish and for the traditional making of stews, soups and things like. It would be relatively inexpensive.
I would call that “let’s see what works for the North by people who have lived hundreds of thousands of years in the North and know how to live perhaps healthier before they were introduced to southern food.” My biggest concern is that the introduction of refined sugar into the diet of the Northerners has certainly had poor outcomes. I would have thought the Nutrition North Canada program could be somehow analyzed in an audit to identify whether those factors were included.
Mr. Wheeler: The list of eligible foods and fully subsidized foods was based on Canada’s Food Guide, yes, which is something that is put together and based on a predominantly Southern diet. Our audit did not get into a level of detail you’re suggesting. However, one of the things we did note in the audit is that the department had committed to continually reviewing the list of foods that were identified as fully subsidized versus partially subsidized. I would think that as part of that review, the department would hopefully be looking at different foods and other alternatives on a going-forward basis. But we just didn’t get down to that level of detail in our audit work.
Senator Raine: Thank you.
Senator Boniface: Thank you to the panellists, particularly for laying out the eight factors. It’s extremely helpful to us as a committee.
I wanted to zero in on the sustained political will element. One of the examples I would like to refer to is your audit on First Nations policing. I have some background in this area. I was struck, from my experience, by what I used to refer to as the federal-provincial shuffle that takes place when you’re trying to bring parties to the table to provide a service within communities, particularly when the funding falls so far behind their counterparts in non-indigenous communities. As you move forward, using that as an example, how do you build the trust at the table to ensure that the parties are actually able to work together? As you know, in the history, as a 52-48 split, different governments have different interests at different points in time. Because it’s so close on the 52-48 split, it’s often difficult to get them to agree on the purpose and the outcome as well. I’m quite interested in that, using that program as an example.
Mr. Ferguson: As far as how to do it, I’m not necessarily sure. The importance of it, though, is clear.
If you go back to the establishment of the British Columbia First Nations Health Authority, all three parties were at the table, they understood what they were trying to achieve and they stayed at the table. Part of that mature relationship is for the federal government and the provinces to get their acts together in terms of how they are going to try to put these things in place.
I’ll let Mr. Martire talked about the details of the policing, but one of the things we found there was that there was supposed to be a negotiation of these policing agreements. However, in many cases, the First Nation was provided with a policing agreement in the last month before the previous one expired and were essentially told, “Sign this, or you’re not going to have the policing services.” It was another sort of “take it or leave it” type of approach. Those things are signs that this is not a mature relationship, which I talked about earlier on.
I’ll speculate now, so perhaps I’m getting further than I should go on something like this, but lots of times, when it comes down to the federal-provincial-territorial side of these types of issues, rather than saying, “What is it we need to do to solve the problem, and then let’s figure out how we pay for it,” they worry about how it’s paid for first, and because they can’t get past how it’s paid for and who’s paying what, they don’t get to, “Here’s what we need to do to fix the problem.” Again, that’s why I’ve said many times that the first thing needs to be about what the service is that needs to be delivered and how it can be delivered well. Then it’s about figuring out how to pay for it. Of course, all services need to be affordable, but the starting point needs to be what service is needed, then how we can structure that in a way that’s affordable.
I’ll ask Mr. Martire to speak more about the policing audit.
Mr. Martire: With this program, as with many of the audits, we tend to look at the program design, the program delivery, and the measurement and the reporting of program results. This one was implemented in the early 1990s, and it was in response to the events of those days, as many people in this room would know. It was intended to be an enhanced policing program; it wasn’t intended to replace an existing program.
Again, there was good work done in terms of laying out the legislative framework and the principles that this program was intended to do. Initially there was actually more funding than there was take-up. Over time, that shifted and things on the ground got blurred.
When we did the audit, there was a lot of confusion in terms of what this program was really intended to do. Again, it brings you back to the program design. When we met with the chiefs of police for the First Nations policing services, they basically told us that they were the police on the ground. But when you look back to the program, that was never its intent. The program was intended to supplement and enhance existing policing, not replace it.
So again, it speaks to the point of the importance of getting the parties together through tripartite agreements, because that is the vehicle we’re talking about. Even with the British Columbia Health Authorities, it’s basically a tripartite agreement.
In the case of the policing, there were a number of reviews that were done. First Nations provided their input, and they were frustrated because they never heard back in terms of what happened, so things never changed. So come the end of the year, they were basically handed last year’s agreement and asked to sign it or otherwise they wouldn’t get the funding. That speaks again to the relationship, and unfortunately, that deteriorates the relationship; it doesn’t enhance it.
So when we were doing that work, we actually set out to say, “Okay, here are the principles that the framework had agreed to. How were they implemented and how were you reporting against those?” That’s where the problems started showing up.
The good news is that in two out of the three provinces we went to, they had actually followed those principles, so the police were actually recognized as police. In Ontario, on the other hand, in those service agreements, they didn’t have the status of police, so they were kind of in ambiguity. That caused real concern to the safety of First Nations, the community’s people and the police officers themselves in terms of the standards that they had to follow and the conditions of the police detention units and so on. None of that was governed through a legislative framework.
We haven’t followed recent events but, through that tripartite agreement, I think there have been announcements that that program has been enhanced. I think that’s an area where progress is being made, but time will tell whether it actually improves the safety of people in the community. That’s really what the program was about.
Senator Doyle: Mr. Ferguson, I noted in your report on the Labrador Inuit — and, of course, you mentioned this a few minutes ago as well — that fisheries has been a point of contention between the Inuit and the federal government. It’s actually been that way for quite a number of years, as it has been between the successive provincial governments. Are the Inuit making any inroads in dealing with federal fisheries since your initial report? If not, could you comment, maybe, on what might be a good way forward for the Labrador Inuit to solve that age-old problem that they seem to have had for quite some time?
Mr. Ferguson: Again, I’ll start and then I’ll ask Mr. McKenzie to give you any information he knows about what has been going on since.
I guess the first thing is we wouldn’t expect any of these types of agreements to be 100 per cent perfect. You put together an agreement and the parties do the best they can on it, but sometimes things will arise that were not necessarily thought all the way through, perhaps, or considered in a particular vein, and that can cause a dispute. In this case, there was a dispute over shrimp fishing, and there was a dispute over local harvest as well. The fact is that some of this could have been dealt with earlier but, nevertheless, some of those types of disputes will arise.
I think what was most concerning for us, in the case of the shrimp fishery in particular, was that the dispute had been going on for a long period of time. It wasn’t being settled. The position of the department seemed to alter. Early on, the position of the department seemed to be more aligned with the Nunatsiavut government, and then later on their position shifted. But what really concerned us was that there ended up being no way of actually settling the dispute. Even though there was a dispute resolution mechanism in the agreement, the parties were not prepared to use that dispute resolution mechanism, so this dispute carried on without being resolved.
I’ll ask Mr. McKenzie to provide further details on what I just said or anything else he might know that’s been happening on that front.
James McKenzie, Principal, Office of the Auditor General of Canada: In terms of the fisheries issues, maybe what I could do is point to or focus on the access to the shrimp fishery. It’s interesting because, going back to the Auditor General’s opening statement in paragraph 6, where he had mentioned that taking a problem-solving mindset is important, I think an underlying cause or factor that prevented progress in this area. The government had taken a position where it was looking at how it was interpreting obligations. There is policy in the federal government, and others, such as the Supreme Court, for example, that has encouraged the federal government to look at the purpose of the obligations, but not necessarily to treat them reasonably. This may have been a case where there was a narrow interpretation that did not really look at what outcomes it was trying to achieve.
My understanding is that since the audit was tabled, the minister had put in place an advisory panel to look at the last-in, first-out policy that was in place. That was an underlying cause of contention between the Labrador Inuit and the federal government. Essentially, that policy meant that if you were one of the last to come into the fishery and there was a decline in quotas and cutbacks, you would be one of the first ones to go out. The Inuit felt, for reasons such as adjacency, their historical use of the fishery and because they had specific obligations that were in the Labrador Inuit Land Claims Agreement, that ran counter to that last-in, first-out policy. In my understanding, the panel has recommended to the minister that the policy be rescinded, and I wanted to point out something that I thought was quite interesting in their decision. They had indicated that the fishery had traditionally been accessed by fishing organizations and companies and, over time, as the Labrador Inuit developed a capacity, they entered the fishery. But because they were behind the traditional fishing organizations, as I guess you could say, they would obviously be one of the first ones out because they were one of the last ones in. I thought it was interesting because the panel had indicated that the policy didn’t take into account situations such as that which would put the Labrador Inuit and others, for example, in a position where they were going to be the last in. There was that time lag during which the conditions and circumstances changed.
Obviously, fisheries is a very challenging sector to manage and there are a lot of competing interests. I think it was an important decision because it recognized that the time lag between the indigenous capacity to access the fishery versus that of other players needed to be taken into consideration and that it was reasonable to expect that the policy could change over time to allow for those types of circumstances. I thought it was interesting.
My understanding is that the minister has accepted the panel’s recommendations. I’m not exactly familiar with what that has meant on the ground, but my understanding is that the Labrador Inuit had lobbied that the policy was obviously not something that they supported. I think it has been positively received by them. It’s interesting to show that it has changed and that the federal government, by looking more at how we can solve this problem as opposed to narrowly interpreting the obligations of the agreement, looked more at the problem and what outcomes they were trying to achieve. As a result, they seemed to have resolved some of the differences.
Senator Doyle: In the report, you noted that the Inuit had problems with housing spending. I got the impression that areas of jurisdiction were unclear and that the funding was inadequate. Would you care to comment on what level of funding really should be in place in that particular area? It’s been a problem for quite a number of years.
Mr. Ferguson: I’ll ask Mr. McKenzie to provide the details, but yes, the fundamental issue was that, under the fiscal financing arrangement, the Nunatsiavut government was given the responsibility for housing, but there was no federal housing program that provided that appropriate and stable funding I talked about earlier. There was no program that would provide that below the 60th parallel. They did get some funding, but there wasn’t a congruence between the Nunatsiavut government having a responsibility for housing but not really having any way of living up to that responsibility. Mr. McKenzie could provide the details.
Mr. McKenzie: This relates in part to the fiscal financing agreement that was signed between the federal government and the Labrador Inuit. That played an important role in terms of providing the Labrador Inuit with the capacity and the means to support their self-government.
Interestingly, the federal government, along with the Province of Newfoundland and Labrador and the Nunatsiavut government, did work together and did a study on housing needs. It identified that there were some significant issues regarding the number of housing units, but it also identified repairs required for housing, because there were some serious problems with respect to the quality of housing.
As you had mentioned, there was an issue with respect to jurisdiction. Funding was going to the province and then to the Nunatsiavut government, and the Nunatsiavut government felt they had the capacity and the wherewithal to manage those issues directly. From what I understand, in 2016, funding in the federal budget was announced for housing, and $15 million was allocated for the Nunatsiavut government to address housing issues. I understand there may have been a bit of a hiccough initially, because it was going to go through the province, if you will, but I believe that has since been adjusted to go to the Nunatsiavut government. They are using it to address some of those issues identified in that housing study conducted by the federal government, the province and the Nunatsiavut government.
Senator Doyle: Thank you.
The Chair: As a point of clarification, I think the change in the funding arrangement was a result of this committee, the report and the recommendations we made to the ministers regarding that.
Senator McCallum: Thank you for all the work that you’ve done and for being a voice after looking at all the issues that come to your table. It must be a very difficult job.
I’m going to be going back to some of the comments made by different senators. I just want to let you know that I’m a dentist. I’ve worked in the field as a contract dentist for many years but also as a regional dental officer for four years, so I’ve seen both sides of the policies and impediments that First Nations have to go through when they’re looking at self-government and trying to make progress, and we look at the inadequate funding and inadequate resources in terms of human resources.
First, there was a question on initiatives we can copy from other places or other countries. In regards to that, I wanted to reaffirm that there is a special relationship with First Nations and there are treaty rights involved, which adds difficulty to making progress with this relationship we’re talking about.
My second comment is on the oral health of First Nations and that their state of dental disease is more than twice the level. I’ve worked there, and when I go into a community for the week, I have about 25 slots to give to First Nations. Sometimes there are 200 to 300 people that come in. The care we deliver is all emergency work; there’s no comprehensive work.
Improving the oral health of First Nations contributes to systemic health. When you look at delivering care from an emergency care perspective, we’ve trained people to access care only when they’re in pain. When we look at improving the health of First Nations, we need to look at how we practise comprehensive care, how we have people be part of the treatment plan we make with them and for them to agree with it. The first responsibility they need to look at is their self-care, and that has been taken away through residential schools and other policies that have come in.
So when I look at the people that I treat at First Nations, I have to look at the social determinants of health. This brings in Nutrition North Canada. When a patient comes to me, I look at the social determinants of health that affect dental. It’s not only a bacterial problem. There’s homelessness, for instance. They couch surf and cannot go into the fridge at any time, even if they’re grannies, because they don’t feel they’ve contributed to the household.
When you have homes that don’t even have closets, you can’t take a glass to put your toothbrushes in. Where do you store your toothbrushes? They’re all over the house. They’re thrown into the toilets by younger kids. My students will tell me, “My little brother threw it into the toilet.” The mother is like, “Who cares about the toothbrush when they’re not even having their basic needs met?”
You look at unemployment. They can’t afford the food or the toothbrushes. There’s the violence, the addictions, the cost of the food — all of these affect their self-care and their life skills, which is another determinant of health.
When I go into a community, there are four dentists cycling through, so there’s no continuity of care. You have decreased access to dental care, because they can’t build a trust level with any of the providers coming in. When you have that decreased access to dental care and it’s emergency care, a lot of them lose function because they’ve lost their teeth. So if you don’t have teeth, how can you chew the food that’s available?
I lost voice in speaking about my own issues. How do you even start building that? They don’t feel they have the right to voice their concerns and sometimes, with the literacy skills, they cannot.
As a result, the data that Health Canada presented is in the quantitative form. I read the report. With the quantitative, they acknowledge that they weren’t able to get the data together to give a report, so how can they say it’s improved? They can’t, because there are no qualitative stats that have been done.
With the quantitative, it’s based on a fee-for-service. So when we go in, the more higher-cost work I can do, like root canals, surgicals, the higher my per diem is. So, if I’m providing appropriate care to the people, which is restorative, my per diem comes down. I’m busy, but it’s based on a fee-for-service system that never worked. That’s why the dental therapy program came into place, because they knew that fee-for-service wouldn’t work in First Nation communities. That’s the model that exists now, and it continues. I received the new contract, and, in there, there is even more onus on the dentist. We have to predetermine a lot of the benefits, and those have increased now. So our ability to provide care in a remote setting is getting less and less.
Then I look at the COHI program, and I work in an area where it has been for 10 years. There is an increase in general anaesthetic, which means that the COHI program isn’t working. I don’t know how they came to the conclusion that it’s working. With COHI, you have unqualified, unlicensed people who work, and they have no oversight body whatsoever. They are not licensed anywhere. They’re working on First Nations, and only on First Nations land would that happen. We have brought this up with FNIHB in Manitoba, and they have not addressed it.
Some of the other solutions were: Couldn’t they fund the indigenous people to run some of their programs? I work with First Nations that are in the transfer process. We’re now into block funding, with some set funding that’s in place. This First Nation has been in transfer for 25 years. When I started working with them in 2013, there was so much unilateral decision-making by representatives from the government that they were running the program. So it was a pretence that there was transfer going on. So we did meet with them, and there was a letter written to Minister Philpott and to Prime Minister Trudeau about the concerns of the governance structure of this transfer. With transfer, the funding they got was so inadequate that, to provide service for 12,000 people, I was the half-time dentist who provided that, and they had very little money to provide other funding to bring in the dentists they needed.
So it’s been really frustrating to look at this issue of governance when you’re down here and looking at the model that exists. When I look at what has eroded in our relationship with government, it’s been the trust. It’s the cross-jurisdictional problems of the silos that the government has made. When I look at governance, it’s with INAC because they look after government, it’s FNIHB because they’re dealing with health, and it’s Justice when we look at the health issues of incarcerated First Nations. So you’re looking all over, and nobody has been able to bring everybody to the table and say, “How do we resolve this?” You look at the history of the land claims, and I talk about transfer continuum and the conflict of interest that exists because, if this government-to-government relationship comes about, then you’re looking at devolving a lot of the departments. Why would people who are in there help us to move forward?
The final comment is on B.C. I looked at the B.C. agreement because they were able to licence and have the dental therapists work in their community with a tripartite agreement. We were trying to do the same thing in Manitoba, but we hadn’t gotten to that part yet because the dental association is against dental therapists being recognized in Manitoba. That’s one of the issues too.
When you look at the sustained political will that exists, you’re looking at one province with modern-day treaties. When you look at the other provinces, you’re looking at 11 treaties. Then you say there’s one voice, rather than multiple, with B.C. Well, there will be multiple voices across Canada. There’s just no way that you can do it with one voice because one size doesn’t fit all, and it never has. It has led to more ill health, and I believe it has led to — I don’t know if the word is racism against First Nations, but people seem to have the perception that this is mostly First Nations’ fault, that we are where we are because we choose to be on welfare or choose to be lazy or choose to be whatever they want to give us. Really, we are unable to fulfill responsibilities because the government cannot act, and they have not found a way through all of this.
My question to you came from that Institute of Governance. How does our understanding of such a relationship that I have described and experienced firsthand on multiple levels have to be modified or refined to take into account the special place of First Nations in Canada? I know that’s not a question that you can answer today and that this meeting today is inadequate to even finish the conversation that we’ve started. I’m not on the committee. I’m sitting in. I know that they have worked so hard. Thank you so much. This is my first time here, so I don’t want to offend anyone. That’s my question, and I don’t know where we go from here.
The Chair: The auditor will respond to your question.
Senator McCallum: Okay.
Mr. Ferguson: Thank you. Remember, we audit federal government departments. That’s what our mandate is, to audit federal government departments. So what we point out is where the federal government departments are not doing what they should be doing.
You mentioned a number of things, for example, treaty rights. In the audit we did on the Labrador Inuit Land Claims Agreement, we tried to identify how many treaty obligations there are on the part of the federal government. They didn’t have a complete listing of all of the treaty obligations. They were trying. They had a system. They were trying to put them in. But they didn’t know what they all were, and there was some disagreement over which department was responsible for which obligations. So there’s a starting point on the part of the federal government. At the very beginning, they should have an inventory of what the federal government’s obligations are under treaty arrangements and whether they are living up to them.
In terms of the oral health program that we looked at, again, yes, fundamentally the department was paying for services, and they were paying for a lot of services, but the services they were paying for were the types that you were talking about, such as extractions and those types of things. There was some evidence that the COHI, Children’s Oral Health Initiative, was resulting in fewer cavities, but it was just an indication. Again, they didn’t have the data about what the impact of preventative services would be on the overall oral health or the understanding of whether it can be done through preventative or restorative treatment, or is it all of those other factors, the socio-economic factors that are contributing to it and it doesn’t matter what type of an oral health program they put in place; they will never improve the outcome. But they don’t know that type of information. What they know is that they get a lot of claims in every day, they get requests for certain procedures that have to go through a process of being predetermined or to determine whether they’re going to pay for it, and so that’s the program they’re running as opposed to a program that is really geared towards how we can get to better oral health outcomes. And we thought they would have that.
On the socio-economic gap, as I said, we’ve got a piece of work under way right now to look at how is that identified, how is it defined and what are they doing to monitor the socio-economic gap. I think when you talk about some of the situations that you describe, it is hard to think about situations that serious happening in places other than in indigenous communities. I’m sure it does in some non-indigenous communities, but I think it’s obviously much more prevalent in the indigenous communities. So, again, it speaks to the fact that there has just been year after year after year of not resolving these issues.
As I said, my predecessor, after 10 years of doing audits in this area, referred to the situation as being unacceptable. We haven’t seen any improvement in the government program since I’ve been here in the last six years, and if you think about children who are starting in school and are now six years older, it’s hard to get those kids back on track if in those six years they are suffering from all these different problems. That’s why I said in my opening statement that we’re in danger of continuing to squander the potential of many indigenous people in the country if we don’t get these issues resolved and get them resolved as quickly as possible.
I understand all of the complexities, and it’s why, in your discussion of the difference between British Columbia and Manitoba, I think calling it a government-to-government relationship or a nation-to-nation relationship is too simplistic because what worked in British Columbia to get to aggregation may not work in Manitoba or in other provinces. There needs to be a way to get all of that trust and that jurisdiction and trying to remove some of the complexity from all of those conversations in order to make these things move forward. But, again, that’s why the best I can offer is there needs to be a starting point of we need to solve these problems as opposed to a starting point of we have a bunch of programs and the federal government pays for some things and the provincial governments pay for other things, and who’s managing them and who’s running them, and we just get down into managing different types of activities, and by managing those activities none of the outcomes are being improved.
I guess you had the good sense to realize that I wasn’t really going to be able to give an answer to your question, but I think all of our work at least can help the committee focus in perhaps a little bit on some of the underlying problems that are happening in the way the federal government delivers programs for indigenous people.
The Chair: Thank you. We will move to second round with Senator Christmas. Before we do that, I have a question.
We did talk a little bit about the specific claims process and the problems associated with that. Some of us will recall the bill for that, setting up the specific claims process, and a tribunal actually originated through this committee under the able leadership of Senator St. Germain, I believe, and it was co-developed along with the government lawyers as well as lawyers from the Assembly of First Nations. However, having been co-developed, it’s clear that there were problems, and it sounds as though some of those problems are associated with the implementation through the department. No matter where we go forward now, INAC in some form or another is going to be part of the program delivery in terms of development or the services.
You talk about the need for political will. Currently we have political will to move forward, but how do we translate that political will into what could be called operational will? Because we have the operational arm of government, which goes through INAC in its old form, or the two separate departments now under the Crown-First Nation relationship or under services. How do we change the people who are actually trying to implement any changes? How do we get the operational will from whatever machinery, mostly personnel? How do we get that change to then enter their minds so they start thinking differently?
Mr. Ferguson: Madam Chair, that comes back I think to my point about the federal government monitoring whether it’s living up to its commitments. The operational will, if you want, comes down to what is the intended result? And when Justice at Last came in, I think there was optimism that this was going to be a way to settle specific claims. But, as we said, the way that it was implemented actually resulted in less confidence in the system rather than more. Again, it really comes down to once the departments are taking on that implementation, they have to understand what is the objective, what are we trying to achieve, and is the way we are implementing this program going to achieve that intended objective?
In the specific claims, for example, we found the department reported that it had a lot of success, but many of the claims that it reported as successes under Justice at Last, under the new program, had been mostly already negotiated before Justice at Last came in. The payout was made after Justice at Last came in, so they counted that money as being a success under Justice at Last, when it wasn’t that process at all.
Part of the problem is the departments don’t always focus on the results and how to measure the results and how to tell people whether the results are or are not being achieved, and part of the problem is the departments have a tendency to try to show that programs are working when perhaps they may not be working. To me, it really comes down to that whole performance measurement continuum: What are we trying to achieve, how do we know whether we are achieving it and, if we are not achieving it, let’s admit we are not achieving it so we can find ways to adjust it. And until there is a focus on whether the real intended results are being delivered, then the focus will always be just on performing activities, and that’s what needs to change.
The Chair: As a quick follow-up to that, I don’t think the recipients, the individual First Nations, have a role to play in determining whether the goal has been achieved. Should they then be able to rate whether the service provided by the department has actually been successful?
Mr. Ferguson: I think that obtaining that type feedback from the people who are on the receiving end of a program or service would be a normal way of monitoring whether a program is doing what it is supposed to be doing. Yes, I think the department should have a mechanism for getting feedback from the First Nations on whether the process is working for them.
Senator Christmas: As our chair just mentioned, the Government of Canada is dissolving the Department of Indigenous Affairs and Northern Development into two departments. The Minister of Indigenous Services, as I understand, is charged with the identification of models to deliver improved services and accountability to indigenous peoples.
I have two questions. How can the Department of Indigenous Services begin to measure the comparability of services delivered to indigenous people against what the provinces deliver to Canadians? And second, Mr. Ferguson, what recommendations would you have as the new department is being established?
Mr. Ferguson: The comparability, again, is an issue that we’ve raised in a number of different audits. The health on remote First Nations was one where we raised that again, and we raised it because the department itself said that it was part of its goal to provide comparable services.
When they’re trying to provide services to First Nations that are comparable to what is available in the provinces, the first thing they need to do themselves is define the comparable level of service. So they would need to look at what service is in a certain province. What is that normal service? There probably would need to be some factor to recognize that you’re going to get different service if you’re in a metropolitan area versus if you are very remote, but there needs to be some consideration of what that means. To me, they need to identify what would be considered the baseline level of service in a province and what they can deliver to First Nations in their province, and then monitor whether they are delivering it. The first thing is for them just to define. If they’re going to say it’s a comparable level of service, then they should have a way of defining it.
Again, I think the advice that I would have at this point for the department is going to be very much about understanding the services. Our focus is very much on program and program delivery. In terms of what needs to be done to get to that more mature relationship, we’ll offer up our audits as a place to look, but our focus will be primarily on the day-to-day services. Our message for them there is to change their focus from doing activities to whether the program is actually improving the lives of the people who are receiving these services. When you start with twice the rate of dental disease or some of those other types of measures, how do you know that you’re actually moving the bar and making things better for the populations that you are serving? I think that’s the number one piece of advice that I would have for them: Know what the current situation is, know what you’re trying to achieve with your programs, measure whether you are achieving it and know whether what you are doing is actually improving the lives of the people receiving the services.
Senator Christmas: Thank you, Mr. Ferguson.
Senator Boniface: I wanted to raise a question around consultation. Through your work, what guidance can you offer on the results of meaningful consultation with indigenous people? We’ve often heard at this table from other witnesses that consultation by different departments is conducted differently, so I’m quite interested in what guidance you can give.
Mr. Ferguson: I’ll start and I’ll ask Mr. Martire to provide some other thoughts. As I said in my opening remarks, there are a lot of people out there who know a lot more than I do about the duty to consult and how to do those consultations. I don’t want to try to portray that I have any more information on this than I do.
We have seen some places where departments have done a good job of consulting with First Nations. The one that comes to mind is Correctional Service Canada, which actually did a reasonably good job of consulting with First Nations about what types of programs should be put in place for indigenous offenders. Again, I’m not trying to say that the programs for indigenous offenders are perfect programs, but they did try to engage First Nations to understand what they should take into consideration when they’re doing that.
Then again, you get the example of the Specific Claims process, where it was all set up originally with the involvement of First Nations, but then when the department implemented it and made changes to it, they didn’t consult with the First Nations.
I think Mr. Martire probably knows a little more than I do about some of the work that goes on in consultation.
Mr. Martire: In short, insofar as we looked at consultation in the audits we’ve done, I would have to say it has not been very good.
I’ll point to the Specific Claims policy and many of the issues that were raised in that report in terms of the barriers that we talked about earlier. The First Nations themselves and their representatives, in terms of the research assistants, had communicated those same concerns to the department long before we started the audit, so it shouldn’t have been any surprise to the department that those barriers were, in fact, impeding the resolution of claims. That’s what the aim of the program was about. It was not about closing files. It was not about pushing files to the left in terms of going back to the First Nations or to the tribunal. It was intended to resolve claims through negotiations. When all that was punted back, there were loud voices speaking to the department about what was going on and the lack of information. They were frustrated because they weren’t hearing anything back. That was on the Specific Claims.
When we talk about the policing, again, there were two series of consultations when they reviewed that program. Again, when we spoke to the First Nations and to their representatives and police chiefs, they never heard anything back. There was all kinds of activity and all kinds of negotiations and meetings, but nothing really came out of it in terms of feedback to the First Nations and how that can impact their programs.
I would say that even extends to when they have committees. We can talk about inter-jurisdictional disputes, which has been mentioned a few times today. They have committees at the working level. They have working-level committees and senior-level committees that talk and meet often. But when you look at what they do, they don’t actually resolve any problems. They meet and they do research, but we didn’t see any evidence where a problem was identified, actions were identified, the proper people met and they came up with an action plan and tried to make movement on that file. We have mentioned that in a number of our audits, including the access to health services in the North. Again, we see that there are mechanisms, but they’re not working as intended. That’s what we reported a number of times.
Senator Pate: I was alternatively pleased and surprised to hear your comment about the Correctional Service being one of the best in terms of consultation, but then in light of Mr. Martire’s comments, I wonder whether good consultation — or what appears to be good consultation — is resolving problems. Certainly, when it comes to corrections, we clearly see that is not the case, particularly in light of the audit just recently completed that showed that when it comes to implementing sections of the Corrections and Conditional Release Act, it relies on providing resources to indigenous communities so that they may sponsor indigenous prisoners or parolees into their communities and that, in fact, those have not been implemented well.
There might be lots of consultation about what kinds of things might be good for indigenous people who find themselves incarcerated, but I just want to check that you’re not saying that, given the rates of incarceration, the lack of conditional release and the overclassification of prisoners, they’ve resolved any of the issues that they may have consulted about? Am I correct in making that conclusion?
Mr. Ferguson: I guess so. If you look at the specific claims process, the fact that there is consultation at the beginning does not necessarily translate into the program being implemented in the way it should and that there are successes.
In terms of corrections, we did identify some things. They have the healing lodges, the releases to communities and elders, but they aren’t available to offenders across the country in the same way. Not all indigenous offenders take part in the culturally specific programming because, in some cases, it is not available to them at the same point in time. They can reach their eligibility for parole quicker if they take the non-indigenous programming. There were still a number of issues with how Correctional Service Canada was managing indigenous offenders. Again, none of that deals with the problem of how many indigenous offenders are coming into the system; it deals with the indigenous offenders they have to deal with.
We identified that they did a good job of consultation, and they have implemented some programs for indigenous offenders. But indigenous offenders are staying incarcerated longer than non-indigenous offenders, and just that metric alone indicates there’s more they have to do to help get indigenous offenders prepared for parole earlier and on a more consistent basis, as they do for non-indigenous offenders.
Senator Pate: My understanding is you also found the manner in which their classification system, which has been identified by many groups, including yours and the Canadian Human Rights Commission, has discriminatory impact and features to it, and that it results in an overclassification, and that one is more likely to be in segregation and therefore less likely to have access to the few programs that exist or the elders that may be available. That’s also part of what is influencing the increasing numbers inside — because they’re also not being conditionally released. So they may not be able to control who comes in, but they’re also interfering with that process of who gets to go out.
Mr. Ferguson: Their ability to prepare indigenous offenders for release at parole is worse than for other offenders. When indigenous offenders enter the system, one of the things they are supposed to do is ask whether an Aboriginal social history was prepared and take that into consideration in their classification and programming for the offender. We found in a number of cases that they weren’t getting an Aboriginal social history, even though it was prepared. So, yes, there were some aspects of what they were doing on intake that would end up with the indigenous offenders being placed at a higher level of security than perhaps necessary, or they were being assigned to more programming than is necessary. That is important because you’re not going to be put forward for parole unless you’ve finished all of your programming and probably unless you’ve already managed to move down from a higher level of security. Those decisions at intake can affect the ability to prepare an offender for release at parole.
Senator Pate: In fact, there’s evidence that when those social histories are done, they’re actually sometimes contributing to the overclassification because of a misunderstanding of those approaches.
I also want to link something to that: How do you see this impacting nation-to-nation relationships if it’s a good model of consultation but it’s not achieving the results? What should we take from your learnings regarding them doing some of the best consultations but not having meaningful results?
Mr. Ferguson: Again, I think that goes back to the reason why, for example, I didn’t say that there was only one factor. There are many factors that need to be taken into consideration to make all of this work. Consultation is one of them but, as Mr. Martire said, if you consult and gather information but then the government never goes back and talks to the First Nation about what they heard and what they’ll do about it, and what do you think about that — just doing consultation isn’t going to be enough. Just measuring outcomes isn’t going to be enough. Just having political will isn’t going to be enough. There are many different aspects to this that will have to be in place to get to the point of having that mature relationship on all of these issues.
Senator Pate: Thank you very much.
The Chair: Before we close, I want to ask a question with regard to the operation of INAC in its current form. There may be a misconception among the general public about how much it costs to run the department. Many people think a significant percentage of the overall budget is directed toward First Nation, Metis and Inuit. We heard earlier today that perhaps it’s only 6 per cent of the total budget. Do you have any figures that would indicate how much it costs to run the department?
Also, considering that you’ve raised a number of examples where the department might not necessarily be performing the duties it should be in terms of service delivery, not performing as it should be, is it a wise use of taxpayer dollars to run a department that might not be fulfilling what it should be in terms of operations?
Mr. Ferguson: Madam Chair, I don’t have the numbers with me. We could go back and check in the Public Accounts. In general, the federal government spends about $300 billion a year. If you took 6 per cent, that would be in $18 billion, probably in the ballpark, but we’d have to go back and check that. When you’re looking at INAC, you have to look at the operation of the department and then what is paid to provide the services as well. You have to look at both components of that. But we can get some numbers for you on that.
In terms of the value for money question, again, that’s why it’s always incumbent on departments to be able to say, “Here are the results we are supposed to achieve and here is what we are achieving.” If you see that the rate of dental disease has stayed at being twice as bad as anywhere else, you say, “Wait a minute. What is being achieved here?” It’s because of the bits of information that are known with the results of some of the programs that you will get people asking those questions. It’s very much incumbent, not just on INAC but on every department, to be able to say, “Here are the results we are trying to achieve, and here’s what we have achieved.” Then people can make a fair assessment of whether what has been spent was worth those results.
I would like to remind the committee — and I didn’t have it in my opening statement — that we are also the Auditor General for each of the three Northern territories. We do audits in each of the three Northern territories, which touch on issues that are important to indigenous Canadians. We report those audits directly to the legislative assemblies in those territories. We don’t report them to Parliament, but we report them directly to those legislatures. We have looked at things like corrections in each of the three Northern territories, as well as health and a number of other issues. That’s just a reminder to the committee.
The Chair: Thank you. I just have one final question. I’m being deliberately provocative here, following on from some of the questions that Senator McCallum raised. There certainly are a lot of what appears to be systemic inequities and discrimination built into service delivery, and there have been some people, including senators, who have suggested that there should be an audit of every First Nation to ensure accountability and good use of taxpayer dollars. How would you respond to that suggestion?
Mr. Ferguson: Accountability and transparency are fundamental to our business. It’s a fundamental belief that we have. I guess the way that I look at accountability and transparency in terms of the indigenous file is that the primary accountability and transparency should be to indigenous people, because if there is money going into programming that is supposed to be there to improve and help the lives of indigenous people, then it is, to me, the indigenous people that should be getting the information about how those programs are being delivered and how the results are being achieved. I think too often the emphasis is put on accountability back to the federal government, whereas I think the primary line of accountability should be to the indigenous people who are receiving the services. Quite frankly, I think they have the same interest to know that they’re getting the services that they should be getting for the money that’s going in. That’s my personal view of that issue.
The Chair: So in terms of the accountability from the First Nation back to the federal government, what is in place?
Mr. Ferguson: Well, again, I think if there is good and appropriate accountability to the First Nations people receiving the services, then that probably will result in the accountability that is needed to understand whether the programs are functioning as they should, whether the results are being achieved, and therefore whether the money is delivering what it should be delivering.
The Chair: Perhaps I could be more precise in my question. Do First Nations have to report back to the federal government with respect to how they manage their money?
Mr. Ferguson: Well, again, I think I’ve explained where I see the emphasis. At the end of the day, I’m not going to say sort of yes or no because that is a federal government policy decision. My recommendation to them would be to make sure that the emphasis is primarily on accountability and transparency to indigenous people themselves.
The Chair: Thank you. On behalf of the committee, I would like to thank you, Auditor General Michael Ferguson, and your principals with you. You’ve provided the committee with some very strong testimony, especially with the eight factors that you outlined very clearly to us that are essential to success, likely, in moving forward on a new nation-to-nation relationship.
(The committee adjourned.)