THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, November 30, 2022
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to resume study on the subject matter of those elements contained in Subdivisions A and B of Division 3 of Part 4 of Bill C-32, An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 3, 2022 and certain provisions of the budget tabled in Parliament on April 7, 2022; and examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples; and, in camera in consideration of a draft report.
Senator Brian Francis (Chair) in the chair.
[Editor’s Note: Portions of the proceedings were presented through an interpreter.]
[English]
The Chair: Honourable senators, I would like to begin by acknowledging that we are gathered today on the traditional unceded territory of the Algonquin Anishinaabe People.
I am Mi’kmaq Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of the Standing Senate Committee on Indigenous Peoples.
Before we begin our meeting, I would like to ask everyone in the room to please refrain from leaning in too close to the microphone, or remove your earpiece when doing so. This will avoid any sound feedback that could negatively impact the committee staff in the room.
I would now like to begin by asking committee members in attendance to introduce themselves by stating their name and province or territory.
Senator Martin: Yonah Martin, British Columbia.
Senator Christmas: Good evening. Dan Christmas, Membertou First Nation, Nova Scotia.
Senator Lovelace Nicholas: Sandra Lovelace Nicholas from Wolastoqiyik, New Brunswick.
Senator Hartling: Nancy Hartling from New Brunswick.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Pate: Kim Pate from here on the shores of the Kitchissippi, the unceded, unsurrendered territory of the Algonquin.
[Translation]
Senator Dupuis: Renée Dupuis from the senatorial division of The Laurentides, Quebec.
[English]
Senator Tannas: Scott Tannas from Alberta.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Cardozo: Andrew Cardozo from Ontario.
Senator Coyle: Mary Coyle from Antigonish, Nova Scotia.
The Chair: Today we will begin by resuming our study on the subject matter of those elements contained in Subdivisions A and B of Division 3 of Part 4 of Bill C-32, also known as the fall economic statement implementation act, 2022. These sections relate to the enactment of the Framework Agreement on the First Nations Land Management Act and the repeal of the First Nations Land Management Act.
I would now like to introduce our witnesses. With us today, we have the Honourable Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations, and the Honourable Patty Hajdu, P.C., M.P., Minister of Indigenous Services.
The ministers are accompanied by departmental officials: from Indigenous Services Canada, Lisa DeMoor, Manager, Community Lands Development, Lands and Economic Development; and from Crown-Indigenous Relations and Northern Affairs Canada, Roxanne Gravelle, Manager, Engagement Policy Directorate, Indigenous Institutions and Governance Modernization, Resolution and Partnerships.
Wela’lin, and thank you to our witnesses for being here tonight.
Minister Miller and Minister Hajdu will each provide opening remarks of approximately five minutes, and then we will move into a question-and-answer session of approximately five minutes per senator. Due to time constraints, please keep exchanges brief and precise. To avoid interrupting or cutting anyone off, I will hold up this sign when there is a minute left of the allocated time.
I will now invite Minister Miller to give his opening remarks.
Hon. Marc Miller, P.C., M.P., Minister of Crown-Indigenous Relations, Crown-Indigenous Relations: Wela’lin, chair.
Kwe-kwe, hello, bonjour. I thank you for acknowledging the territory that we are on and the Algonquin Anishinaabeg people.
[Translation]
Thank you for inviting me to appear before this committee this evening. I’m pleased to speak about our work to repeal and replace the First Nations Land Management Act, an initiative that has truly been led by and co-developed with First Nations partners.
Since 2015, the federal government has been guided by the principle that Indigenous peoples are self-determining and self-governing. Since June 2021, with the passage of Bill C-15, the Government of Canada has committed to working with Indigenous peoples to review and reform the laws of Canada, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples Act.
[English]
This includes supporting new options for First Nations land management, particularly the subject matter of this discussion.
In 1996, as a historical matter, 13 chiefs came together to sign the Framework Agreement on First Nations Land Management. In 1999, the agreement was ratified by Canada through the First Nations Land Management Act. This act and the framework agreement work together to support First Nations as they transition away from 44 land-related provisions of the Indian Act. I note Senator Christmas’s community, Membertou, has done so.
Through the framework agreement, First Nations have full jurisdiction, legal authority and law-making powers to manage their reserve lands through uniquely developed and community-approved land codes. Today, there are 194 signatories to the framework agreement, and 101 First Nations are operating under a community-approved land code. Three additional First Nations have also progressed to comprehensive self-government agreements.
Mr. Chair, as you heard from the Lands Advisory Board and Resource Centre in this committee on November 22, further work is now required. First Nations have made it clear that the current act does not meet their needs and expectations. To put it simply, the First Nations Land Management Act duplicates certain sections of the framework agreement and requires the oversight of the federal government. This duplication has created ongoing confusion about implementation of the act among First Nations and other partners.
[Translation]
That’s why the government co-developed the proposed legislation to repeal and replace the First Nations Land Management Act. This was done hand-in-hand with the Lands Advisory Board, the Indigenous organization that represents First Nations that are signatories to the Framework Agreement. The legislation we’ve proposed is shorter, simpler and gives force of law to the nation-to-nation Framework Agreement on First Nation Land Management — the document signed by chiefs 26 years ago.
Giving greater power to the Framework Agreement would simplify the amendment process by eliminating the need for concurrent amendments to the federal legislation with every amendment to the agreement.
[English]
This change would allow us to situate the framework agreement really as the central authority through which First Nations can choose to govern their lands. Repealing and replacing the act would allow us to strip out duplication and confusing language and bureaucracy and provide some much-needed clarity to First Nations, simply put, allowing them to lift up their own powers to determine themselves.
During the special meeting on March 15, 2022, a consultation draft of this legislation was presented to the signatory First Nations to the framework agreement, and it received approval. In addition, the proposed legislation aligns with articles 26, 32 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples, which speak to the rights of Indigenous peoples have to their land.
In closing, I want to emphasize that this is a First Nations-led initiative. The Lands Advisory Board, First Nations Land Management Resource Centre and signatory First Nations have done extensive advocacy and work to develop this legislation. First Nations across the country have expressed their support for it during the engagement process.
Mr. Chair, I’ll conclude my remarks by saying this legislation will support First Nations self-determination and inherent rights, and I welcome any questions the committee may have about Bill C-32. Meegwetch, thank you.
The Chair: Thank you, Minister Miller.
Hon. Patty Hajdu, P.C., M.P., Minister of Indigenous Services, Indigenous Services Canada: Kwe-kwe, hello, bonjour. It is such a joy to join you here today on the traditional and unceded territory of the Algonquin people. I come from Fort William First Nation, which is a signatory to the Robinson-Superior Treaty area.
I’m very pleased to be able to appear before this committee to discuss First Nations land management, and I want to express my full support of the repeal and replacement of the First Nations Land Management Act.
Since I have been the Minister of Indigenous Services and even before, I have heard directly from First Nations chiefs, leaders, elders, families and community members about how control of the land and control over their own decisions in that land is imperative to advancing economic development, improving housing, fostering more equitable health systems and addressing many other challenges.
The Framework Agreement on First Nation Land Management provides a formal mechanism for First Nations to take control of their land and to advance their priorities for their community members. The revised First Nations Land Management Act before you today will reaffirm the nation-to-nation principle that was at the foundation to the Framework Agreement on First Nation Land Management, and it will reaffirm Canada’s commitment to ensuring that First Nations are completely in control of their own land, codes and laws.
There has been quite a bit of progress advancing First Nations land management since the previous First Nations Land Management Act came into force. Through the leadership of key partners like the Lands Advisory Board and Resource Centre, the previous act supported 194 First Nations to adopt their own land codes. The proposed legislation will continue to support and build on that work with First Nations under the First Nation Land Management Framework and all of the work that was able to be completed under the previous legislation.
This is a work that we should all take great heart in because I think it exemplifies the relationships that are improving between Canada and First Nations. It certainly aligns with the principles that I’ve asked the department to consider in all of their work: honesty, equity and self-determination.
First, honesty. In 1996, Canada signed the Framework Agreement on First Nation Land Management, and since then we’ve striven to uphold the spirit of that agreement. Now, we are striving to fulfil promises made in Budget 2022 and the Fall Economic Statement to give force of law to the agreement by repealing and replacing the First Nations Land Management Act.
Second, equity. Canada must be a partner in ensuring true equity, which means reducing the role of Indigenous Services Canada wherever we can. First Nations Land Management does exactly that. It helps First Nations opt out of 44 provisions in the Indian Act to re-assert jurisdiction over their lands and resources.
Finally, self-determination. First Nations communities must have the autonomy to chart their own way forward. That’s why my department works hand-in-hand with the Lands Advisory Board and Resource Centre to support First Nations as they do that difficult work of disentangling from the Indian Act.
When a First Nation becomes operational under First Nations Land Management, they break away from the land provisions of the Indian Act to take control over land and environmental management. What’s more, support to participating communities is increasingly led by First Nations partners at the Resource Centre. Our support for First Nations Land Management is directly in line with the Government of Canada’s commitment to service transfer and tools that enable self-determination and self-government.
In closing, Mr. Chair, I look forward to seeing the positive impact that these changes would have to continue advancing prosperity, self-determination and equity in communities across the country. Meegwetch, thank you.
The Chair: Thank you, Minister Hajdu.
Before we go to questions, I wish to remind everyone in the room to please refrain from leaning in too close to the microphone or remove your earpiece when doing so.
Senator Christmas: Thank you, ministers, for being here this evening and explaining the rationale for revising the act.
I realize in your opening statements you didn’t have a whole lot of time, but could you explain to the committee why was it necessary to replace the First Nations Land Management Act with this new revised version?
Mr. Miller: Obviously, you know the history behind why it was put together in the first place. Simply put, it’s quite a small piece of legislation in the grand scheme of things.
It was more than just avoiding duplication but really centring the authority and the decision making on First Nations and centring on the framework agreement to embody that as the mechanism through which the members that choose to do so — and I think “choice” is an important word to stress — govern themselves and not have the federal government play that heavy hand of sitting over there and actually slowing things down and breathing down people’s necks. There is still an authority that the minister exercises, but it is much more of a clerical one than what we were doing before, which is visually and from a factual basis having a level of scrutiny where we would have to potentially go back to Parliament for minor changes.
I would note for clarity that there will be, when we talk about title and land registries, an additional step that will need to be made that isn’t part of this law when communities move that decision-making process in and around land registries, which has been an additional request from the board itself. It is not part of this discussion but the next step as we move forward.
Senator Christmas: From my understanding, this new piece of legislation would give precedence to the framework agreement that was signed back in 1996, and that document then takes precedence in this act than the previous one.
Mr. Miller: That’s an accurate description of this.
Senator Coyle: Thank you to our witnesses here this evening. It’s wonderful to have both our ministers here with us.
Minister Miller, you described this as a First Nations-led initiative. Could you describe a little bit further what you mean by that and what the process has been in that First Nations-led initiative that brought us to where we are today?
Mr. Miller: I think what we heard from the onset in terms of the reform was to make sure that First Nations were at the table and co-developing and moving on these changes in a way that really reflected their sense that this piece of legislation had to reflect the current thinking on self-determination, what they already knew, and essentially the theme that we need to get a little more out of the way. I will not substitute my thinking for the thinking of the original drafters, but I don’t think the state of thinking in this nation was the same in the mid-1990s as it is today.
Roxanne has been a part of this, so if you could accord her a couple of minutes, she could probably give you a sense of the detail around that. It has been quite extensive.
Roxanne Gravelle, Manager, Engagement Policy Directorate, Indigenous Institutions and Governance Modernization, Resolution and Partnerships, Crown-Indigenous Relations and Northern Affairs Canada: Thank you very much, minister, and thank you for the question.
Yes, this has been fully directed by First Nations who are signatories to the framework agreement. The Lands Advisory Board was part of this process from beginning to end. We essentially started with drafting principles together, and we wound up with the legislation that you have in front of you today through providing consultation draft, having multiple meetings and discussions and coming to consensus on the content of the bill. This was very much First Nation-directed, and it was a really enriching experience for all of us.
Senator Lovelace Nicholas: Thank you for being here tonight.
The first thing I have to say is: What land? As you know, our land has been taken, stolen, never been replaced. Where I live in New Brunswick, there is no place to build a house because there is no land. With this agreement, is it a guarantee that everybody who wants to have a house will have a house? That question is to whoever wants to answer.
Ms. Hajdu: Sadly, no, senator. That’s not what this is about. It’s not about a guarantee that everybody who wants to have a house will have a house. It’s streamlining and reducing duplication in legislation so that communities can set their own laws about what will happen on their land. It might, for example, include things around financial accountability for revenues that the First Nation generates from the lands; the making and publishing of First Nations land laws, including conflict of interest laws; a community process that could develop rules and procedures applicable to land on the breakdown of a marriage; or a dispute resolution process. These are just some of the things that a land code could contain.
If you’re okay, I’ll turn to my official and she could speak more about the work we do on land codes with partners.
Lisa DeMoor, Manager, Community Lands Development, Lands and Economic Development, Indigenous Services Canada: As the minister spoke to — and thank you for the question — it doesn’t fix housing issues, for example, but it does make development on reserve land easier by breaking away from the Indian Act and getting away from some of the rules under the Indian Act that are, admittedly, quite time-consuming. First Nations can move forward much more quickly on development. They’re supported better to do land use planning to determine where new housing, new community assets and new economic development projects should be located. It really puts that control of the reserve lands back in the hands of the community. In that way, it can help to foster both social and economic development opportunities.
Senator Lovelace Nicholas: Thank you for that answer. It used to be that when we cleared the land, it was ours because we kept it up. This was a while back, before your time. I just want to know why it is so important now that we have this land management when there is no land.
Mr. Miller: Senator, you’ve posed some painful and deeper philosophical questions in and around the custody and identity of land that has been stripped from your peoples that this piece of legislation, sadly, doesn’t address. They are more profound discussions, and the reflection in and around this piece of legislation is that, with respect to the minuscule amount, the small percentage, of land that has been “reserved” for First Nations around this country, even that control, care and custody haven’t been afforded to Indigenous peoples in our history, as you well know. I don’t think I’m educating anyone in this room.
This is an effort within that strict confine to get out of it and to follow the spirit of self-determination contained in UNDRIP and the inherent right of your peoples to control and have care and custody of land within the confines of those lands that have been reserved for First Nations. It doesn’t address the greater issue of additions to reserve, which I will note for the purposes of this committee is perhaps the worst way to get land back to communities. Even within that construct, we are failing miserably. This is part of a greater discussion about who cares for the land, how it’s been taken and how Canada has been built on the reality that a lot of us spend a lot of time denying. I acknowledge that question, and I hope that Minister Hajdu and I have answered it within the context of our knowledge.
Senator Lovelace Nicholas: Thank you.
Senator Tannas: Minister Hajdu, you won’t be surprised at my question. I asked the folks from the board who were here — Chief Louie, his colleague and their lawyer — what this was really about. I think everybody understands that this is the recognition that this piece is not delegated; it is surrendered, as if we ever owned it or should have ever owned it. This mechanism, the framework agreement, is a mechanism by which they can take up their rights and exercise their jurisdiction, sovereignty, whatever you want to call it, over the lands that they have. We were all agreeing that that’s what it was, and it was a happy day. I think it is a happy day.
I don’t want to be pedantic, but the fact is that in the discussion we had with the board, we talked about the bureaucracy and sometimes the years it took to get simple things done. Being on this committee, we hear about it a lot. We have too many people in your departments. They’ve expanded hugely over the last few years while you’ve been busy devolving responsibilities to First Nations governments. At some point, you get so many people that they just get in the way. They’re going to meetings, creating meetings, having to double-check and triple-check stuff.
What is the actual number of people out of the 8,800 that you have in your combined ministries that will no longer be needed to look over anything with this? There must be some. Is there a plan? Is there somebody who’s saying this with this section over here now, because one third of the First Nations have taken up their rights, one third of folks have to go do something else somewhere else in the government? Is there any of that going on? And if not, why not?
Ms. Hajdu: Well, listen, we as ministers really work with primarily one public servant, and that’s our deputy minister. As you know, the Finance Minister has been very clear in looking for savings, in particular around the size of our bureaucracies, and I think that’s something we all take very seriously.
There is, obviously, a transition process for communities, and there are still supports that communities need in a variety of different ways. There are still rights that communities have in, for example, health, where we have a very large contingent of staff who provide support through the First Nations and Inuit Health Branch, who do a vast number of things, such as community nursing, policy, direct delivery and support for all kinds of health needs. It’s not an easy answer to give because there are professionals in my department, in particular — also in Mark’s — who are working directly every day with First Nations communities. I am certain we will be able to reduce our ranks as communities are more independent.
I think it would be good to speak to Ms. DeMoor about what the department does to analyze the capacity of the department and whether or not there are opportunities for reduction in staffing.
Senator Tannas: That’s great, and if you would. I’m really just looking to see — we are starting to hear, and I would expect we will hear more — how you guys get out of the way. How do you make sure you get out of the way when great events like this happen?
Ms. Hajdu: Before I turn to Ms. DeMoor, we just spoke about additions to reserve. Additions to reserve, as many of you here know, are extremely complicated and require interactions with 15 or more departments federally, and that is before we start talking to provinces and territories. Part of our challenge with additions to reserve is that we don’t have the physical manpower to get through the numbers of additions to reserve that are piling up on both of our desks. It is a balance of making sure that wherever we would reduce, we would not in any way slow things down.
Ms. DeMoor: Thank you, minister, and thank you for the question.
I think what’s important to note — and the minister spoke to it — are the shorter- and longer-term impacts. This absolutely is about getting out of the way. In the short term, it does change the relationship between Indigenous Services Canada, the departmental officials and the First Nation so they move away from managing the land on behalf of the First Nation. I know you heard from Councillor McCue last week of instances where the department is managing the land and the First Nation is not even at the table. It moves from that to a much more nation-to-nation relationship where, through the developmental phase, Indigenous Services staff are working with the First Nation to support them and to develop an individual agreement which lays out the terms of the jurisdictional transfer. Because there has been such uptake for First Nations land management over the past five years, we have added, I think, about 10 new First Nations a year. There does continue to be the need for Indigenous Services staff in national and regional offices, but over time, I think it could certainly be part of the reduction. We hope to continue to have some uptake, so we’ll probably need to continue to work with communities to support them through the developmental phase, at least in the near term.
The Chair: I want to remind everyone that we have a tight schedule. Lots of senators want to ask questions. If you could keep your answers as precise as possible, it would be greatly appreciated.
Senator LaBoucane-Benson: I have a question for each of you.
Minister Miller, I note there are no Alberta reserves — First Nations — that are part of this framework agreement. There is one now? Woodland? Okay. I think the problem is that they wonder if entering into the framework would contravene their treaty rights. Does it? If it does not, what is your strategy for building trust with those nations so they will feel like they can take control of their own children and develop their own child welfare laws or land code?
Mr. Miller: I could take up hours answering that question, senator.
Treaty primes over this. You just have to look at the Constitution to read the plain words in section 35, although we often have not followed through and honoured our treaty promises. It is an understandable human reaction when you sit across the table from someone and say, “Trust us, we’ve got this grand, brand-new scheme,” and they look at you and say, “You owe us $100 in agricultural benefits and annuities.” I wouldn’t trust someone like that. You can’t expect that without building years of trust. It is one of the largest barriers to moving forward in any relationship, but particularly one with First Nations. There is no easy answer to it.
We need to understand what treaty means and not sit back. Often, invoking treaty had been to say to Canada that we have broken it or to say to provinces that they are not respecting it, and it is not necessarily a positive conversation. It is not a conversation around spirit and intent. It’s not a conversation about the relationship and how we move it forward in a modern expression of interacting. It is one that is very much used as a shield, and that is normal too. When folks come along and say they have a certain way of managing your land, I understand the reaction. This is not for everyone. It is a choice, and those that have chosen have seen their communities prosper within the confines of the choices they have made. But within treaty areas, there has been that reticence. There are a few, and I’m not going to judge every signatory to treaty because they are different, and there are different conceptions of how treaty is invoked and expressed. However, I think it’s one where we have to, in the future, realize that when we come to the table with new, novel ideas, you actually have to consider where we’ve come from and what we need to honour first before moving into modern treaties or whatever.
Having sat in the role that my colleague now has, often the first thing we hear is, “I need a hospital” or “I need a road” or “I need a type of service” or “I need you to respect the treaty.” With respect to Treaty 6, particularly, but with other treaty areas as well, the treaty right that they invoke to do with health is often delivered by Canada in a program way that carves out formulas and portions for which they have had no input. You know this well, but that, in my mind, is one of the impediments to having this well adopted across the Prairies in particular.
Senator LaBoucane-Benson: Minister Hajdu, I know the resource centre is supposed to be there to help other nations come into this process and build their own codes. How is it financed? I am interested in this also for child welfare. The resource centres or centres of excellence where good law and best practices are shared — how are they resourced and funded? Do you have best-practice facilitators to help new First Nations come into this process?
Ms. Hajdu: I will turn to my official to answer those questions.
Ms. DeMoor: Thank you for the question.
With respect to how the resource centre is financed, Indigenous Services Canada does provide supports to the resource centre in terms of supporting resource centre staff and the activities of the land advisory board. Indigenous Services Canada also provides support that flows through the resource centre to First Nations.
During the developmental phase, the support that goes to communities actually goes through the resource centre. The resource centre also has funding for different kinds of pilot projects that can support First Nations who are operational and may want to do some additional activities around the environment or enforcement, for example. Certainly, there is the funding model there.
With respect to best practices, I would say that is really where the resource centre excels. They have excellent mechanisms to share information between communities. They have a whole professional development stream of courses. They hold their annual general meetings and trainings across the country. They have done a lot online and virtually over the course of the pandemic. Really, it is very strong work from the resource centre there.
Senator LaBoucane-Benson: Thank you.
[Translation]
Senator Dupuis: My question is for one of the two ministers. Thank you for being here this evening. I’d like to clarify something. The Framework Agreement was signed with 13 First Nations at the time; today, as I understand it, 194 First Nations have signed on.
When you told us that the process was led by the First Nations in co-operation with them, you talked about signatories to the agreement. Who approved the principle of this bill and what is in the legislation? Was it the 13 signatories to the agreement or all 194 First Nations?
Mr. Miller: That’s a very good question. There was a consensus-based process. Not all 194 First Nations participated, but the vast majority did. I don’t think there was any objection. I can’t say for sure that everyone was consulted or involved in the process. Some are further along than others, but those who are further along have been involved and there have been no objections that I know of.
Ms. Gravelle: No, there was no objection. For the First Nations to accept the project, there had to be two-thirds support. There was really a mechanism led by the Lands Advisory Board, and so the support was verified and validated with us. As we understand it, there was impressive support.
Senator Dupuis: So we can be sure that not only has all of this been developed in consultation with them, but that there is considerable support from the participants.
I’d like some clarification on something else. I don’t know which of the two ministers I should address my question to.
The bill states that previous decisions and documents — land codes, separate agreements, First Nations laws, permits, authorizations and contracts — that were drafted in accordance with the former act or framework agreement remain in force. So if I understand clause 123 of the bill correctly, this legislation will not apply to what was done before. Anything that was done in accordance with the former act will remain in force. Do I understand correctly?
Mr. Miller: That was the objective, so that they wouldn’t be repealed by the very fact that the bill was passed. They will remain in force, but they have the benefit of the new provisions, as far as I know.
Senator Dupuis: In any case, these are land codes, documents, permits and authorizations that were given by these First Nations.
Mr. Miller: Yes.
Senator Dupuis: We are keeping in force what has been done, and we want these provisions to apply in the future. Is that right?
Mr. Miller: Yes.
[English]
Senator Patterson: To the ministers: It sounds like there was an exemplary co-drafting process undertaken here, beginning with a joint agreement on principles, which we haven’t always seen, so this is great to hear. It’s undoubtedly a good bill, good provisions, as well as in the interests of self-government and in keeping with the goals of UNDRIP.
I’m wondering about the fact that we have about a third of the First Nations in the country adopting this regime. I understand there are about ten a year that get included. Is there significant interest growing in participating in the land management regime? Is there adequate resources available to support those numbers if they are increasing?
Mr. Miller: It’s a great question.
I would preface by saying, as I said earlier, this isn’t for everyone, but for those who are willing to take the path that this piece of legislation charts, you wouldn’t want to be in a position where you’re keeping people at the door. We feel it is adequately resourced. The intake is — is it 10 or 50 over the last —
Ms. Gravelle: It’s 50 over a period of five years.
Mr. Miller: Over a period of five years.
There is a potential that there will be increased interest in that, and we will have to adjust how we fund it. I would leave that to officials to answer. They have given us their assurances that, over the cyclical funding period, the institutions get funding for that this is sufficient. It is something we have to keep an eye on as things increase, and we’ve seen that with ten-year grants and other things that are getting a little more popular, whereas perhaps in the past, they needed more start-up funds.
Senator Patterson: I hope that goes well. Thank you.
Mr. Miller: Appreciate it. Thanks.
Senator Martin: I don’t know if this was answered, but in terms of the consultations, to what extent did they take into account the regional diversity of First Nations?
Mr. Miller: Well, the consultation reflected those communities and First Nations that have taken up the legislation voluntarily. It is West Coast-heavy, no doubt, and it gets thinner as you proceed east, and then there’s a few in Quebec and some in the Atlantic provinces. But it is West Coast-heavy, so obviously it reflects some of the thinking around those communities that have really been championing this. It is a reflection of that membership, however they choose to organize themselves. I don’t think we went to solicit communities that weren’t part of it as to whether they — there’s some reflection around that —
Senator Martin: I am curious as to what diversity was considered and reflected and therefore there would be broader take-up of this agreement.
Mr. Miller: Yes. In this case, it really reflected the current membership, which is the composition as I described it. Not to mischaracterize your words, but it wasn’t an opportunity for a sales pitch, but I think as communities reflect and see fewer barriers to entry and more of the federal government getting out of the way, I would venture to think that more communities would say, “Well, the federal government is not having to pass legislation dictating what I do, it sounds less Indian Act-ish, let’s jump on board.” That wasn’t the context in which to do it.
Senator Martin: I wasn’t suggesting that there should have been a sales pitch. I was curious about the — yes.
Mr. Miller: No, no. I was running with your question and speculating, basically. On the basis of the communities that were consulted, it was broad, and those that did participate were overwhelmingly positive.
Senator Martin: Were there concerns raised during the consultations? If so, to what extent were those concerns adopted or addressed?
Mr. Miller: I didn’t participate directly in them.
Ms. Gravelle: Thank you for the question.
We didn’t participate directly in the engagement. It was really led by the Lands Advisory Board and Resource Centre. The concerns that were raised were brought to us in the form of our discussions over the bill. Not to get into some of the details of the discussions we had while we went through, we didn’t always agree on the content or the language that was used, but we found a way to really reflect what First Nations wanted to see in this bill, and this is what they supported.
Senator Pate: Thank you, ministers and officials, for being here.
I’m interested in the 194 First Nations who signed on. What’s the correlation between those who are also doing health management within their systems and also taking up the child welfare management options? I hear you clearly — it’s not a sales job — but many communities are looking for support. The last time you were before the committee, Minister Hajdu, you talked about the fact that funding plots had been provided for capital expenditure in terms of water issues, but not in terms of the ongoing management. Are there correlations between those First Nations that had more of that self-governance, if I can put it that way, nation-to-nation relationships with provinces and municipalities, and how do we see building the strengths and capacity within those First Nations? This is for both of you. It made me think of the parallels between the last time you were here.
Ms. Hajdu: I will give it a light touch and then turn to my colleague, but my sense is that once capacity, autonomy and self-determination start to build, it’s like a cascading effect in communities. People get a taste of it in one area and realize the transformative power of having control in other areas. Communities are looking, increasingly, for tools of self-determination and for more control over matters that are affecting their own citizens. My sense is that when a community is on that path to increase capacity and to increase governance and financial capacity, for which there are tools to support communities to increase those skills and those assets in their own community, it is like a cascading effect. Communities begin to see themselves thrive in a variety of different ways and, understandably, attract former residents back to the community who have left to gain new skills, and that continues to snowball into some really tremendous communities with not a lot of need for the federal government to interfere in their affairs.
Mr. Miller: I wouldn’t have precise numbers, but I suspect there is a strong correlation with self-government. C-92, I don’t think we have run the numbers, but I would suspect that would track as well. It is much as Minister Hajdu said, issues around capacity and buy-in and willingness to move on that model.
A number of these things are a reflection that Canada, when it has participated, has forced a round peg into a square hole. Some communities have courageously walked that path and some have just rejected it. We have been too slow looking at the communities that choose not to take that path. It’s something that we reflect on when we talk about treaty areas but also when we talk about implementing Bill C-92. We’re doing this in a way that is much more reflective of UNDRIP. The legislation you have before you today is a bit of a correction of what perhaps wasn’t the thinking in the mid to early 1990s.
Senator Pate: I actually have a comment. I mentioned as we were coming in — I would just like to put it on the record — that I think it was excellent to see both of you and the Prime Minister in James Cree First Nation responding to the calls that that community has had for support as they’re moving through a healing journey, and further into the future, what they called for in the face of the horrific tragedy they dealt with, which was not what many perhaps would have hoped they could capitalize on in that moment. You’ve taken that up, met with the community and are working with them. As I mentioned, I’ve heard from members of the community, and they were incredibly heartened to see that kind of response. On behalf of those of us who weren’t part of it, thank you for doing that.
Senator Lovelace Nicholas: Minister Miller, you mentioned Land Back. Since there’s Land Back, do my people have to pay to get this land back, or is the government going to pay it for us? Also, since when is this Crown land? When did that happen? It’s not Crown land. It’s Indigenous land.
Mr. Miller: Thank you for the question, senator. Again, this would perhaps be a several-hour or a several-day discussion that we could have, and it would be a highly interesting one.
I was listening to Professor Sanderson from the University of Toronto the other day speaking specifically about Land Back, and to paraphrase him, he said the land hasn’t gone anywhere. It’s really a question of who governs and controls it and how it shapes identities. That was sort of a powerful reflection because you’re talking about an institution, the Government of Canada, that likes control and likes to dictate the terms of engagement. That hasn’t been more true in the expression of how there have been understandings, treaty or otherwise, in and around land and understandings in and around sharing, and we were first to break those relationships.
If I move that reflection into the current way that we are trying to work with Indigenous communities and the legitimate atmosphere of suspicion that is levelled against the Government of Canada, trying to change the way we operate and renew our relationship comes with a lot and with the recognition of that history. As I mentioned earlier, the worst way to do “Land Back” is through the ATR process, which is broken, to use a good expression, but a positive one, whether it’s through settlements of treaties that we are now not, rightly so, requesting cede and surrender language, which is offensive to communities, whether it is the option to buy back lands from people who are willing sellers. These are all options on the table, as well as restitution of “Crown land,” whether it’s provincial or federal.
We’re very limited in the options that we can deploy in an expedited fashion, but I think with this government, there has been some openness. One way is by catching up to the Supreme Court, whether it’s Tsilhqot’in in Haida or others, such as Delgamuukw, which has gone painfully slowly, despite a quarter of a century lapsing, all elements where we still have a heck of a lot of work to do with our understanding of what land means to people and our way of ensuring that communities that are rightful in their cause and making sure that land is reacquired, that the control and custody of it is done by the community in the leadership and the governance that they choose.
We can unpack that statement and get into various bifurcating conversations about that, but what I would say is that there has been a lot of movement in the last few years. I don’t discount the fact that there will be flashpoints because people, particularly people who look like me, get very possessive about their land, and fear is very easy to instill. These are difficult conversations, but they are conversations that have to be had with communities and the way they interact with us in moving forward in these very difficult and painful conversations at times.
As you can hear, I don’t have a specific, precise answer to the questions you pose because I think we could go on very long about how we sort that out, which is at the core of our relationship, I would conclude.
Senator Lovelace Nicholas: Thank you.
Senator Cardozo: Thank you to the two ministers and officials for joining us today.
I want to take you in a slightly different direction and then come back to this. This is regarding the boil water advisories. You’ve made considerable progress over the last number of years. Do you have any numbers in terms of how that’s going? Do you see this framework agreement having any effect on something as important boil water advisories?
Ms. Hajdu: I’ll take the easy part first and tell you that there are 31 boil water advisories left over 27 communities in various states. In fact, the majority of them are close to being lifted. You can follow along on the Government of Canada website, where it will tell you specifically, community by community, what stage they are at. The majority of communities are well into the construction phase, and like I said, many are very close to being lifted.
I answered this question the other day at Senate Question Period. It’s undeniable that I personally wish they were all lifted, but it’s not a simple straight line. Certainly, the Government of Canada has enough money now to pay for the construction of any remaining water systems, if you will, but there are other challenges that exist within communities that deliver that water.
We are now in a space where we are also paying equitable salaries compared to provincial rates, so we’re not losing talented trained people to municipalities that can afford to pay more. That was part of the challenge.
Another part of the challenge is remoteness and capacity, with systems that can be very complex to deliver without a lot of people in the community to be able to deliver them. That’s why the Atlantic First Nations Water Authority is such an amazing model, and I’m really working closely with our colleagues in northern Ontario, like with the Matawa tribal council, who is looking at the Atlantic First Nations Water Authority very closely because it provides the volume of communities, the expertise and the backup, in fact. Some communities have one water operator, and that poor water operator doesn’t get a lot of time off. When somebody gets sick or there is something needed, not having a backup puts communities in a fragile space.
In terms of the intersection between people with their own land codes and boil water advisories, my suspicion is that there is not really any that have a boil water advisory, but I will turn to my official. They tend to be congregated in northern Ontario and remote parts of northern Manitoba and some in northern Saskatchewan. Those communities are not necessarily in the space of having their own land code yet.
Perhaps I can turn to you, Lisa, in case I got anything wrong.
Ms. DeMoor: No, as you spoke to — and thank you for the question — I suspect you’re correct in terms of the overlap that we see with land code communities.
With respect to how this initiative would impact that, it would be very limited to any kind of infrastructure planning, land use planning or community-driven sort of piece. As the minister spoke to, the technical and human resource challenges would not be strictly linked to First Nations management.
Senator Hartling: Thank you for being here, ministers and your officials.
It’s really kind of exciting that you’re here tonight because we recently heard from Chief Robert Louie in B.C. and Councillor McCue from Georgian Bay. They were very enthusiastic about this and also explaining to us some of the benefits for them. The one in Georgian Bay was that they would now be able to collect their rents directly from the lands rather than it go to the government and then back to them. In some of the consultations and the research, were there other things you heard, benefits in that sense, that give them more self-determination and ways that they wouldn’t have to go around back to the government and around the circle? They were very excited about this. Was there anything you could share about that?
Mr. Miller: Again, I wasn’t directly part of the negotiations, but the reflection in and around this is also a reflection that we need to have, and I’ll pass the last part to Roxanne on answering this question, senator.
We all make mistakes as humans. This was a good piece of legislation that got us out of 44 provisions that — there are a lot of people who like to think that the Indian Act was a grand design. It is a racist document, but it is also — I was going to swear — a really crappy document, and it does a lot of dumb things. There is way too much power in some circumstances and then an incapacity to do anything in others, no matter who thought about it. It’s just a really stupid document. This has been designed by people who know what their land is about, know the colonial construct that has been imposed on them and are taking this interim measure to move it in an area where they know best what to do with their land. That’s a positive development, and it’s been ameliorated by this particular amendment in replacement of the act.
I think Roxanne can speak a little more about the details, but we did hear suggestions, and we did hear what the next step is, which about registries and the next step and full control and custody over the land.
Ms. Gravelle: Your question is relevant. Thank you for that.
As the minister mentioned, the legislation is really putting back the focus on the framework agreement. It really will allow First Nations to come forward with future amendments to have this initiative evolve even further without having to go through a very complex legislative process, but what it actually does is really allows First Nations to do business in real time, not have to come to Canada to get permits signed and all that bureaucratic aspect. It really gets us out of the way. As Minister Miller pointed out, a First Nation-led land registry would also accelerate that process because we continue to be involved in that process today. This is a really exciting initiative for us as well, and the Lands Advisory Board and the First Nations signatories have every right to be excited about this. Thank you.
Senator Christmas: Minister Miller, you mentioned earlier that Membertou was one of the First Nations that adopted a land code. Before coming to the Senate, I was extensively involved in the First Nations Land Management Act and the eventual adoption the land code. I want to comment on the exceptional work done by the Lands Advisory Board and also the Resource Centre. We’ve worked closely with those two bodies, and they’re outstanding. Going back to Senator Tannas’s point about, yes, the government has to get out of the way, but equally, they have to resource these outstanding organizations to enable them to continue the work that needs to be done.
The other part of it is that the communities themselves need qualified, experienced staff to look after their land code. In our case, we have land managers who are now looking after that. So those have to be resourced as well. Yes, you may reduce resources on one end, but on the other end you need to be able to develop the capacity to allow First Nations to do it.
I’m sorry for the long intro. The bottleneck in this whole process, of course, is the additions to reserves. So yes, our communities have land codes, but to get those lands under the jurisdiction of the land code is a real bottleneck. Could you describe — either minister — what that bottleneck is and how you propose to enable more lands to come under the jurisdiction of First Nations?
Mr. Miller: Yes. It’s a shared responsibility between me and Minister Hajdu. Not enough people getting these additions out quickly enough. There is way too much bureaucratic white tape, as I’m reminded by First Nations partners. I love that joke. There’s way too much of a processing time and an inability to actually turn on a dime in some of these things. Some things take 20 years, and sometimes it’s people not answering the phone at the municipal level or us just dragging our feet. It’s also a policy process that is way too heavy and, as Minister Hajdu said, there are way too many departments involved. We did get $40 million to get more resources in the last couple years. The results are trailing, but there is a process that Minister Hajdu can speak a little bit more on how we reform and move forward on it, knowing that it’s still within an imperfect system.
Ms. Hajdu: Thanks for that curve ball. I’m not sure I can speak to how much better we’re doing, but certainly I have a better understanding after a year of working with First Nations just how complicated the process is for addition to reserve.
The reality is some of the processes have a time stamp on them — for example, if you’re working with the Ministry of Environment at the provincial or federal level and there is an environmental assessment and there is a clock ticking on that and that process runs out and then you’re back to square one with them while you’re also pursuing other processes. That might not be the right example but this is the kind of frustration that communities are talking about.
I know Lisa is working on this. In fact, Minister Miller’s office is working on this, and it is a priority for me because, to your point, it really stops communities in their tracks. Some communities are not even bothering to use addition to reserve. Some communities are purchasing land, using that land in a different way, and that may be a sign of frustration. It may be just a more expedient way to be able to develop lands that are important to them or regain lands in some cases that were part of their traditional territory.
Lisa, do you want to speak a little bit about some of the thinking on additions to reserve —
The Chair: We’re out of time. We have a tight schedule and another group waiting to testify. Sorry about that, but our time is up. This panel is now complete, and I wish to again thank the ministers and their officials for joining us today.
We will now switch gears and resume our briefings from officials to discuss their work and priorities with the committee, with the goal of informing and guiding our future work.
On the second panel, we will hear from the Land Claims Agreement Coalition, Aluki Kotierk, Co-Chair of the Land Claims Agreements Coalition, and President, Nunavut Tunngavik Incorporated; and Alastair Campbell, Senior Policy Advisor, Nunavut Tunngavik Incorporated.
Wela’lin, thank you to our witnesses for being here tonight. President Kotierk will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session of approximately five minutes per senator. I am pleased to advise that we have arranged for simultaneous interpretation from Inuktitut into English this evening, so President Kotierk is welcome to speak in the language of her choice.
Due to time constraints, I ask everyone to please keep exchanges brief and precise. To avoid interrupting or cutting anyone off, I will hold up this sign when you have one minute left in your allocated time.
I will now invite President Kotierk to give her opening remarks.
Aluki Kotierk, Co-Chair of LCAC and President, Nunavut Tunngavik Incorporated, Land Claims Agreements Coalition: Good evening, senators. I am pleased to be able to appear before you tonight in person in my role as a co-chair of the Land Claims Agreements Coalition.
The Land Claims Agreements Coalition — or “the coalition,” as I’ll refer to it tonight — is an informal body of Indigenous modern treaty governments or organizations like Nunavut Tunngavik Incorporated. We formed in 2003, following a national conference called “Redefining Relationships: Learning from a Decade of Land Claims Implementation.” At that conference, we found a great deal of common experience in having to deal with government’s failure to effectively implement our agreements.
The coalition has two co-chairs: me as president of Nunavut Tunngavik Incorporated and Eva Clayton as president of the Nisga’a Nation. We both wished to attend tonight, but unfortunately, other obligations meant that President Clayton was unable to join me.
I will summarize the four points that the coalition members agreed upon in 2003. One, our modern treaties are not with DIAND or CIRNAC. They are with the Crown, and a whole-of-government approach is needed to meet the Crown’s obligations. Two, the federal government must meet the broad objectives of our agreements, not just focus on the obligations interpreted in a narrow sense. Three, implementation must be handled by senior federal officials, not delegated to officials who do not have the authority to make necessary decisions. Four, there must be an independent body established to review the implementation of our agreements, reporting directly to Parliament.
In 2015, some progress was made under Minister Valcourt on meeting our objectives when he secured a cabinet directive and established a Deputy Ministers Oversight Committee. This is one important mechanism to help ensure that the whole of government is engaged in implementation. It also addresses, in part, the coalition’s insistence that the implementation of our agreements be handled by senior officials.
Another important way for the federal government to meet the coalition’s objectives would be to adopt an implementation policy consistent with the four points that I have outlined. Recently, we have been working well with CIRNAC officials, under Minister Miller, to develop an implementation policy for the government to adopt. This work is not complete, but it is well advanced, and we look forward to finishing it.
The coalition has also proposed a modern treaty review commission to be established within the Auditor General’s office. We have had some difficulty finding acceptance for this idea. It appears that the executive has some reservations on establishing such a body within the Auditor General’s office. I can say, however, that we have recently begun more serious discussions with senior officials on this matter.
I would like to conclude by raising one other important objective of the coalition. This is in relation to securing an amendment to the Interpretation Act so that it is clear that all federal legislation would be interpreted as upholding our Aboriginal and treaty rights. As you are aware, the 2007 report of the Standing Senate Committee on Legal and Constitutional Affairs, Taking Section 35 Rights Seriously, recommended that the following wording be inserted into the Interpretation Act:
Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.
This was not acted on at the time, but we have continued to emphasize the importance of this legislation. Indigenous peoples should not have to monitor all the bills that pass through Parliament to determine whether or not they might be interpreted to our disadvantage and, in those cases that have non-derogation clauses, to assess how they are crafted.
We have seen suitable non-derogation clauses included in the Fisheries Act in 2019, in part due to our own lobbying, and the recent act respecting shíshálh Nation self-government. We ask for similar wording to be included in the Interpretation Act. It can be done.
Finally, I ask you to carefully examine any non-derogation clauses that occur in any bills that appear before you and that you assist us to secure an amendment to the Interpretation Act, as we have sought. We look to you in assisting us in ensuring the complete and timely implementation of our agreements.
The Chair: Thank you, President Kotierk.
Before we go to questions, I wish to remind everyone in the room to please refrain from leaning in too close to the microphone or remove your earpiece when doing so.
I’ll now open up the floor to questions.
Senator Christmas: I was curious, Ms. Kotierk, about your discussions with CIRNAC and the possible adoption or development of an implementation policy. I realize it’s still under negotiation, but can you give us more detail about what this implementation policy looks like and how modern-day treaties can benefit from that policy?
Alastair Campbell, Senior Policy Advisor, Nunavut Tunngavik Incorporated, Land Claims Agreements Coalition: That is a little difficult to answer because it’s still under discussion, and I suppose we have been engaged in the development of this somewhat in confidence because eventually this proposed policy will need to be reviewed by cabinet.
However, there are a couple of things important about it, and some of it is the policy itself. That is the direction of the federal government on implementation, on the one hand, and then there is the work to be done afterwards, again, as an outcome of the policy and to be provided for in the policy to assess the effectiveness of what’s happening. For example, we could say what the coalition has emphasized from the beginning, which is that the objectives of modern treaties must be met, not just the obligations. That’s a pretty fundamental point. Then, as part of the work afterwards, there is assessing that this is, in fact, happening. I’m not sure if that answers your question, but I hope it gives you an idea.
Senator Christmas: Yes, Mr. Campbell. I suspected that was the answer.
If I may follow up on that, do you think the implementation policy, then, is a suitable replacement for the Modern Treaties Implementation Review Commission? You mentioned there was some difficulty in getting traction on the commission idea. Would this implementation policy replace that?
Mr. Campbell: The Land Claims Agreements Coalition has always emphasized, right from 2003, the need for an independent body to monitor the implementation of agreements, which would probably be specific to particular agreements and not do them all at once. Does the policy replace that? No. I suppose I recall some correspondence we once had with a former deputy minister, Michael Wernick, to the coalition. In it, he made the comment that a policy without appropriate implementation mechanisms is not sufficient. That is certainly something I think is correct. It doesn’t mean you shouldn’t have a policy, but there need to be independent mechanisms to review what is happening — in other words, performance reviews on the ground and assessments of them, and these are provided to Parliament as a check upon what is happening.
The Chair: President Kotierk, I have a question for you. In your view, are there priority topics or areas that could be studied by the Standing Senate Committee on Indigenous Peoples?
Ms. Kotierk: Are you talking in relation to the Land Claims Agreements Coalition?
The Chair: Yes.
[Interpretation]
Ms. Kotierk: As I said in my presentation, I sat as a co-chair. In 2003, that was started. I know that the Senate committee has reviewed that and had discussions, and they talked about the Interpretation Act. I believe that the Interpretation Act should be included, and the rights of the Aboriginal Indigenous people should not be minimized at all when policies are introduced. Indigenous people should not have to worry about their rights being minimized or being less.
[English]
Senator Lovelace Nicholas: Welcome to the committee tonight. You’ve already answered one of my questions, which is how long this coalition has existed.
Do you handle all land claim applications from coast to coast to coast? Are you involved in all land claims?
[Interpretation]
Ms. Kotierk: Thank you for your question.
We are not involved in negotiations of new land claims. We deal with completed treaties and land claims organizations that are implemented. The claim or treaty has been passed when you’re implementing it. There are 25 at the moment. I believe there are 21 or 22 that are involved in this committee.
[English]
Senator Lovelace Nicholas: We have a comprehensive land claim that is 40 years old. Why does it take so long for Indigenous people to get a land claim?
[Interpretation]
Ms. Kotierk: Thank you.
I do not know myself, but I think when we desire, if the government is willing to work and compromise with you, as we will compromise together, there has to be the willingness to settle land claims on both sides of the party.
Now, when it comes to completed land claims agreements, there are obligations that still have to be completed and obligations as well that are still outstanding.
[English]
Senator Coyle: Thank you, President Kotierk and Mr. Campbell, for being back with us. It’s good to have you here.
I would like to probe a little further on this oversight issue, the review commission idea, and your interactions with the Auditor General’s office on that. I believe you said that there has been some resistance but that there may be some kind of an opening. Could you describe a little more to us about when you first broached this with the Office of the Auditor General? What kind of feedback were you getting there? Where are you seeing the openings now? We’ve had the Auditor General’s office here talking with us about other things, and if we had been aware of this, we would have asked them about that.
[Interpretation]
Ms. Kotierk: Thank you for the question.
Regarding the discussions we’ve had, when the coalition started in 2003, we had that vision. When we approached the Office of the Auditor General in 2016, we gave them a report as to why the coalition was created, what the mandate was and what the mission statement was. We were then informed that the Office of the Auditor General had already had an oversight commission to review others. We decided and asked if they could perhaps produce another commission — an oversight committee of land claims similar to the one they had.
[English]
Senator Patterson: Welcome to the witnesses.
I just want to say that your recommendation on the amendment to the Interpretation Act resonated well with me because my friend and former colleague former senator Charlie Watt sponsored a private member’s bill in the Senate which went very far, as you said. It went to the Standing Senate Committee on Legal and Constitutional Affairs. The bill has been drafted. It’s a good bill. I was here when it almost made it into passage in the Senate, and maybe the time is ripe now to revive that. I want to say I am very supportive, because the non-derogation clauses on Indigenous rights are all over the map in the federal legislative regime, and this would clean that all up — modernize it, so thank you for that.
I want to pursue a little further what you said, Ms. Kotierk, about the federal government being leery that the proposed independent treaty review commission would be housed within the Office of the Auditor General. If that is the problem, has the coalition considered another way of housing the commission other than within the Office of the Auditor General? There are many independent commissions like that that stand on their own or in a different situation. Are there other models that you might consider?
[Interpretation]
Ms. Kotierk: Thank you for your question.
Firstly, I want to thank you for your support. When we said that changes had to be made so that the rights of Indigenous people can be honoured and equalized, I thank you for your support. If you could write to Mr. Lametti or speak to him about how you support us, I think that would be very helpful.
Secondly, about the independent commission, we have thought of various ways for many years, but we felt that it was the Auditor General’s office that would be best because the land claims and treaties are signed, and the federal government has made these laws, and I believe that it has had an equal importance to any other policy being recognized in law in Canada. We felt that it was important to have it under the Auditor General.
[English]
Senator Patterson: Thank you for that.
I know that Nunavut Tunngavik sued Canada over the non-implementation aspects of your agreement, and there was progress made in the settlement agreement that was signed as a result of the lawsuit. I wonder if you could outline to the committee what some of the positive changes were that came out of that lawsuit.
[Interpretation]
Ms. Kotierk: Thank you.
We are regretful that Nunavut Tunngavik had to bring the federal government to court in 2006 due to the lack of implementation in the Nunavut land claim agreement obligations. As Indigenous people, we signed in good faith with you that things would be implemented, and it was very hurtful to us. We no longer trusted the government for broken promises regarding article No. 23 — Inuit employment — and article No. 24 — Inuit firms and the use of Inuit firms in business contracts. Those are the two articles that we identified when we went to court. It was many years. In 2015, we settled out of court. The Inuit were given $255 million from the federal government due to lack of implementation of those articles of agreement.
We thought $175 million would go to training Inuit into employment training. We call it makigiaqta, which means “let us rise” by training and by education so they can gain employment.
Outside of the agreement, the federal government also introduced a policy to be utilizing Nunavut — that the Inuit firms in Nunavut would be better honoured by contracting out.
Those are the two examples I use: articles 23 and 24.
[Translation]
Senator Dupuis: As a coalition, what is the status of your relationship with the Government of Canada in implementing the United Nations Declaration on the Rights of Indigenous Peoples?
We passed legislation in 2021 that provides for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law. Is your coalition having discussions with the government about how to implement not only the claims agreements, but everything in your proposed review commission?
[English]
Mr. Campbell: Essentially, the coalition was set up with a limited mandate, and it was not set up to deal with the United Nations declaration. However, article 37 of the declaration does refer to the need to respect treaties and agreements made with Indigenous peoples. In that respect, it is supportive of the position of the coalition with regard to the implementation of the agreements that we made — that means that they be respected and that means that they be properly implemented. Discussion on precisely how within the coalition we should relate to the action plan idea of the UN declaration legislation is something that is just beginning.
[Translation]
Senator Dupuis: You referred to Nunavut’s lawsuit against the federal government for the improper implementation of the Nunavut Land Claims Agreement.
The same kind of problem occurred with the James Bay and Northern Quebec Agreement, with many lawsuits and settlements.
Of all the claims settled to date, has the coalition painted a picture of the problem with the implementation of each of the agreements that have been concluded? Are there common elements that emerge from what happened with the Cree or in Nunavut, what happened with the Nisga’a Final Agreement or with other nations? What are the common elements of the implementation issue?
[English]
[Interpretation]
Ms. Kotierk: Thank you for the question.
When we sign land claims agreements or treaties as Indigenous people, we expect the agreements to be honoured and implemented and obligations carried out. We don’t plan to take people to court. We signed in good faith with the federal government, like we intend to do. We Indigenous people keep running into roadblocks because obligations and implementations do not get implemented by the other party. The Metis and First Nations people who have treaties do, of course, run into similar problems of agreements and obligations not being implemented by the federal government. It does happen.
[Translation]
Senator Dupuis: If this review commission isn’t placed under the authority of the Auditor General, could creating an officer of Parliament position be considered?
You said earlier that the relationship is with the Crown, not the department. Do you think it would be useful for an officer of Parliament to be designated to carry out this implementation review and to report directly to Parliament?
[English]
Ms. Kotierk: Thank you for that question.
I think it is important that there be a modern treaty implementation review commission set up, and not just one person. I think we have the experience currently that there is a commission, for instance, for Indigenous languages. For us, I think it’s really important that we have a commission focused on the implementation of modern treaties because we have common challenges. Regardless of which community or which area we’re from, as Indigenous peoples of Canada, we go into agreements with the Crown and we believe that they will implement the agreements, and then we spend so much of our time and effort trying to get our agreements — that we both agreed on — to be implemented.
We know the Office of the Auditor General has done a number of audits over the years intermittently in Nunavut, as well as in the Northwest Territories, and I think it has been very useful, but if there was one commission focused on that, it would be able to highlight the common challenges we have across our country in terms of implementing agreements that we’ve all agreed to. Now, we’re spending our time begging for them to be implemented.
Senator Patterson: In 2019, Canada announced a collaborative self-government fiscal policy which was designed to renew fiscal relations with Indigenous governments. I’m wondering, from the Inuit point of view, whether you have participated in that new fiscal relationship commitment or, in fact, whether it’s the Inuit-Crown partnership table that is the main vehicle for redefining relations with Canada. I know you’re a participant in the ICPC table, President Kotierk. Is that the way you’re discussing fiscal relationships with Canada rather than the renewed fiscal relationship policy that was announced in 2019?
Mr. Campbell: I can answer part of that. The fiscal relations table in relation to self-government is not one that NTI was involved in although, as I understand it, some other Inuit organizations were. It is not something that the coalition itself is involved in, although many coalition members are.
With regard to the ICPC table, I think there are many things under discussion there, but I’m not personally involved in that particular aspect of it. I can’t really comment on that.
For NTI, what’s critical with regard to implementation of our agreement is the contract that governs government actions over the next 10 years, and this is under negotiation right now. That is a negotiation that will deal with all the aspects of the Nunavut agreement, which the two parties agree what actions need to be taken and what financial resources need to be provided in relation to them.
Senator Patterson: Do I understand that there is an arbitration process built into that implementation contract model that has been exercised?
Mr. Campbell: Arbitration is a problem that NTI faced and was one of the things that led to our court case, because we had a provision in our agreement that required the government to agree if Inuit thought a matter needed to be arbitrated.
The contrast to that is the Inuvialuit Final Agreement, which provided for either party to take a matter to arbitration.
When the NTI lawsuit was settled, one of the agreements was to amend the provisions in the agreement relating to arbitration. Matters can now proceed to arbitration following a process that’s outlined in the agreement, following a mediation process, and there are some matters on their way to arbitration now.
Senator Patterson: Thank you.
The Chair: Senators, we are out of time.
The time for this panel is now complete, and I wish to again thank President Kotierk and Mr. Campbell for joining us today.
We will now go in camera.
(The committee continued in camera.)