Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 8 - Evidence - Meeting of October 18, 2006
OTTAWA, Wednesday, October 18, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 6:16 p.m. to examine and report on the nature and status of the Government of Canada's Specific Claims Policy.
Senator Gerry St. Germain (Chairman) in the chair.
[English]
The Chairman: Honourable senators, good evening. It is my pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. I am Gerry St. Germain, from the province of British Columbia, and chair of the committee.
Today our committee continues its special study on specific claims. The committee intends to examine the federal specific claims process with a view to making recommendations to contribute to the timely and satisfactory resolution of First Nations grievances in that matter.
These evening, honourable senators, we will hear from the Auditor General of Canada and, later, from two organizations very experienced with specific claims, one from Manitoba and one from Saskatchewan.
We have a guest in the audience this evening, Chief David General, an observer from the Chief of Six Nations.
Welcome, Chief General.
First, let me welcome Ms. Sheila Fraser, Auditor General of Canada. She is accompanied today by the Assistant Auditor General, Mr. Ronnie Campbell, and by Mr. Jerome Berthelette, Principal.
Ms. Fraser, I understand that you have a presentation to make to us. Welcome to the committee. Thank you for taking time out to be with us. All members of this committee have looked forward to this meeting, and I believe the attendance is an indication of the interest you have generated as a result of your agreeing to attend tonight.
Please proceed, Ms. Fraser.
Sheila Fraser, Auditor General of Canada, Office of the Auditor General of Canada: Thank you, Mr. Chairman, and thank you, honourable senators, for this opportunity to discuss our office's work related to specific claims.
As was mentioned, I am accompanied this evening by Ronnie Campbell, Assistant Auditor General, and Jerome Berthelette, the Principal, both of whom are responsible for our work at Indian and Northern Affairs Canada.
Over the past several years, our office has audited comprehensive land claims, as well as the implementation of one type of specific claim. Comprehensive land claims, as you know, are claims by First Nations to land not covered by a treaty. They are based on the assertion that Aboriginal rights and title continue to exist over the claimed area. The objective of negotiating comprehensive land claim treaties is to clearly set out rights to use of lands and resources for all parties. Mr. Chairman, this coming November, my office will publish another audit on comprehensive land claims. This one will be with respect to the federal involvement in the British Columbia treaty process.
In contrast to comprehensive land claims, specific claims are claims that arise from alleged non-fulfillment of Indian treaties already in place and other lawful obligations, or the improper administration of lands and other assets under the Indian Act or other formal agreements. Claims for alleged breaches of the government's obligations can include: The non-fulfillment of a treaty or other agreement provision; the breach of an Indian Act or other statutory responsibility; the breach of an obligation arising out of government administration of First Nation funds or other assets; or an illegal sale or other disposition of First Nation land by government.
Indian and Northern Affairs Canada had, as of March 31, 2006, 729 specific claims under negotiation, which represents significant contingent liabilities. Contingent liabilities are determined for the purposes of the public accounts on the basis of management's best estimates using an established formula and valuation methodology.
The methodology is quite complex and involves a great deal of work on the part of the department. When a new specific claim is accepted, it is classified under one of the 76 different typologies or classifications as defined by the department. For example, specific claims can be classified as: treaty land entitlements, for example, land not set aside; taking of lands, for example, permits and hydro lines; or surrenders and alienations of land, for example, highways.
Based on the classification, the new specific claim will receive a value based on the historical average of settlements by claim type. New settlements, therefore, will affect the average value of the classification and, therefore, specific claims under negotiation for the particular claim type. This attribution of land value based on type is determined solely by Indian and Northern Affairs Canada.
[Translation]
In Chapter 7 of our November 2005 report, we examined how the government is doing in meeting its obligations under the Treaty Land Entitlement agreements signed with Manitoba and Saskatchewan First Nations. Treaty Land Entitlement agreements address historic shortfalls with respect to the land that should have been provided to the First Nations under the treaties.
We examined whether Indian and Northern Affairs Canada has a framework in place to manage the additions to reserves resulting from Treaty Land Entitlement agreements consistent with its legal obligations as set out in those agreements. We found that deficiencies in the department's management practices have limited its progress in converting to reserve status the large number of acres that First Nations have selected as additions to their reserves in these two provinces. The three major causes for these delays are outdated environmental reviews, insufficient resources made available for land surveys and the lack of a strategy for guidance to First Nations on how to resolve third party interests.
We also found that the department did little to track the progress made in land selections, and had no plans or targets in place to convert lands selected. Moreover, file management practices were found to be inadequate, with few tools and guidance for staff to follow.
We made six recommendations related to these key areas. We have not yet followed up on the department's actions since our audit, but we note that it has released revised guidance on environmental site assessment on their website, as they had committed to doing in response to our audit. We plan to follow up on departmental progress in resolving treaty land entitlements in the coming years.
[English]
In May of this year, we also published another chapter that might be relevant to your examination of specific claims. It examined the extent to which progress was made toward implementing recommendations from chapters published or completed between 2000 and 2003. While these chapters did not examine specific claims, per se, they did examine the management of a broad range of federal programs for First Nations.
Our follow-up audit made several important observations, which I would like to highlight for you this evening. We found that the federal government has made satisfactory progress in implementing the majority of the 37 recommendations set out in those chapters. However, we found progress on 15 of our recommendations to have been unsatisfactory. Those were generally the recommendations that are the most important to the lives and well-being of First Nations people.
[Translation]
In this audit, we also identified seven factors that appear to have been critical in the successful implementation of our recommendations. These factors include: sustained management attention; effective coordination of government programs; meaningful consultation with First Nations; capacity development within First Nations; establishment of First Nations institutions; establishment of an appropriate legislative base for programs; and lastly, addressing the conflicting roles of INAC. We believe that progress in improving and streamlining the specific claims process will depend in part on how well INAC incorporates these critical factors into its program design.
Mr. Chairman, this concludes my opening statement. My colleagues and I would be pleased to answer your committee's questions.
The Chairman: Thank you very much, Ms. Fraser.
[English]
Senator Peterson: Previous witnesses have commented on the issues or problems that they believed caused the contingent liability. There are three areas: comprehensive claims, specific claims and treaty land entitlement. Do we have a number on those three areas?
Ms. Fraser: For purposes of the public accounts of Canada, the government estimates a liability for specific claims using the methodology that I explained earlier. For the comprehensive land agreements, there is not an estimation of the liability until such time as there is more of an agreement because it is so dependent on approvals from various levels of government, and the amounts can be large. Therefore, the government tends to wait almost until there is a final agreement before it books a liability. On the specific claims, an estimation is done that is reviewed each year, and an amount is recorded in the Public Accounts of Canada.
Senator Peterson: Do we know that amount?
Ms. Fraser: We do know it but I would ask that you ask officials at Indian and Northern Affairs Canada. I am hesitant to disclose that figure because I am not sure if the government wants those numbers disclosed. I do not believe that they are presented separately on the balance sheet. We can appreciate that there might be some sensitivity about the numbers, but I feel that is information that the department should be able to provide to you.
Senator Peterson: Therein lies the problem. First Nations people are saying that because it has not been quantified, or it is not given out, or it is too low, that there is not proper allowance made for this. I guess it could be a rather large contingent liability; therefore, nothing really happens.
Ms. Fraser: There is a disclosure in the financial statements, and unfortunately, I do not have them with me. I can indicate to you, and we can write back to the committee, that there is disclosure in the notes to the financial statements of the quantum of contingent liabilities in various suits, et cetera, that have been made against the government. We have to also appreciate that in any process of being sued, the person being sued will not indicate to those suing them how much money they will settle for. It could obviously distort the whole process. I can understand that the government would be reluctant to give a lot of detail, but the total amount would probably be disclosable.
Senator Peterson: The other issue that the presenters have raised is the process of defining a contingent liability and getting a claim identified. Some of them are 10 to 12 years. We have been told that even just the outstanding claims, the 500 or 600 that have been identified, could take 80 to 90 years. We are really not making progress, and we will continue not to if we keep going around in circles with numbers like that and people saying they cannot do anything until they know.
They have indicated that possibly an independent tribunal could be useful. I do not know where it would fit in. However, you have the Indian and Northern Affairs Canada, INAC, Justice Canada and the government. Matters get caught up, and they stop because there seems to be no will or desire to move forward with a file. I believe you have indicated in your report that it just goes so far and then stalls. Everybody sits on it, a few years pass, and then it is brought up again. The First Nations have been inordinately patient in all these matters, but I am not sure how long we can count on that.
I would certainly appreciate your comments on the process. How can we streamline it? How can we make it work? How can we place targets? How can you do performance audits? I know it is all time and money and people, but I feel we have to do them sooner than every three or four years.
Ms. Fraser: Thank you, senator, for your comments. Unfortunately, we have not done any specific work on the process. Our audits, to date at least, tended to be, once there is an agreement, how it is being implemented. On the treaty land entitlement, there was a clear agreement on an amount of land that was to be given over, and we looked at why it was taking so long when there was no dispute about the amount of land that was to be turned into reserve. It was taking an inordinate amount of time to complete that. We have tended to start our audits when there is agreement. We are currently doing an audit of the management of Justice Canada. I do not know that this is part of it, but I can certainly go back to see if there is anything we can do in that area. I suspect we are looking more at the overall management of files. However, I can ask the team to consider it, and we will certainly consider that in our future audit work.
Senator Peterson: If we had some direction even to move this forward, your recommendations would help a lot as we try to deal with this whole matter. Thank you very much.
[Translation]
Senator Gill: You have identified a number of important factors, including development, meaningful consultation, the establishment of institutions and of an appropriate legislative base for First Nations programs and the conflicting roles of INAC. You have touched on critically important areas. First Nations have been demanding these changes since Confederation.
You claim that there have not been any results and that is the sticking point in the claims process. What is the status of the claims process?
Ms. Fraser: We have examined all successful land claims to ascertain the reason why they were successful. Further to our discussions with INAC and First Nations representatives, we were able to identify factors that contribute to the success of certain land claims. While several other factors are also very important, follow-up and sustained management attention is a major contributing factor to success.
One problem frequently identified is staff turnover. Too often, new personnel are put in charge of files, which means that trust must always be rebuilt and time is wasted.
[English]
Senator Gill: Besides what you just said, you mention something that is very fundamental, addressing conflicting roles of INAC. What do you mean by that?
[Translation]
Ms. Fraser: The department acknowledges the conflicting roles that it is called upon to play. On the one hand, it provides services to First Nations and funds their programs, while on the other hand, First Nations institute legal proceedings against the department for failing to uphold it obligations. One example of this is the fiduciary role of the department. Many of these roles are inherently conflicting.
The government can organize itself as it sees fit, but it cannot lose sight of the fact that under these conditions, it is difficult to maintain a relationship with First Nations based on trust.
Senator Gill: First Nations deplore this state of affairs which you claim has long existed. If you are the one saying it, perhaps INAC will be more attentive to your concerns.
Is there any chance the department will rectify the situation? Establishing a legislative base for programs is critically important to First Nations. I imagine that you will follow up on your recommendations.
Ms. Fraser: Regarding the department's conflicting roles, our office is always hesitant about commenting on matters involving government procedure. The government decides on how it wants to structure itself, but the AG can always point out a particular problem and ask that it be taken into account. We are extremely reluctant to dictate operating rules.
Ten years or so have passed since we first mentioned the lack of a legislative base for the First Nations drug program. This shortcoming creates major problems when we want to get the consent of First Nations in order to obtain analyses, prevent abuse cases and the prescribing of inappropriate drugs.
I believe my office has audited this program four times in succession. Each time, the matter of a legislative based was raised. The department claims to disagree with our recommendations. Perhaps this is something the committee would like to take up with the department.
Senator Gill: Is there a connection between your recommendation for appropriate legislation to prevent conflicts that the government or the department may have, and the amount of money spent on claims? The claims process has been ongoing for 25 or 30 years. I imagine someone is in charge. Do First Nations or the government have responsibility for the expenses incurred, in the absence of appropriate legislation or a clearly defined role?
Ms. Fraser: Obviously, it is important to establish clear roles and responsibilities. Legislation can help with that, but I'm reluctant to say that it will solve every single problem.
Even when a commitment has been made or an agreement reached in respect of certain claims, and there is clearly an obligation on the part of the federal government to transfer lands to reserves, the transfer is not taking place within a reasonable period of time.
Legislation may serve a useful purpose, but follow-up and implementation procedures must be improved upon and made more stringent.
Senator Gill: Often, First Nations are blamed for mismanaging their affairs, when in reality the lack of appropriate government mechanisms is to blame for the situation. People maintain that there are no solutions, that it takes too long, or that First Nations spend too much money.
Ms. Fraser: Our role is to audit federal government departments. We do not audit the operations of First Nations and Aboriginal communities, although we received excellent cooperation while we carried out our audit work.
However, considerable improvement has been noted within the federal government in terms of processes and meeting the commitments made.
[English]
The Chairman: I have a quick question of you, Ms. Fraser. From your experience or your department's experience, if an independent commission was set up to deal with these specific claims, is there any way that a system of accountability could be set up, so that the government would feel comfortable that this particular body will not blow taxpayers' dollars out the window, but could come up with solutions? As Senator Peterson says, until we get an independent body, we are being told, they are underfunded. Unless we move it out of the realm in which it is currently operating and into an independent body to deal with the specific claims, which are a liability of ours, something we owe our Aboriginal people. It is not as if we are trying to negotiate a comprehensive claim. These are definite frauds and mismanagements by Indian agents and what have you.
Is there a way that we could set up a budget and a system that you would feel comfortable with as the Auditor General, and we could accomplish what has to be done in a much more rapid and efficient manner?
Ms. Fraser: I would like to believe it would be possible. I feel there are principles of good accountability and good governance that can be applied in any situation. I found it interesting that you indicated one of reasons being given for the delay is inadequate funding. I am not sure how setting up a separate organization resolves that. If there currently is not enough funding given to it, the same problems will be transposed into a new body.
It is important to look at why; what are the root causes for the delay. I know from some of the work we have done that some of these files are very long and complex, and they do take a long time. That is not necessarily excusing the delays, and some of the delays are probably not acceptable, but many of these files do take time to complete. It is the process around it that has to be looked at too, and not just the shell or the box in which it is done.
Senator Sibbeston: I would pose my question as follows: As the Auditor General for Canada you obviously have a responsibility to audit government. Do you feel any compulsion or urgent responsibility to zero in on an area, the whole area of specific claims that is so important and critical to Canadians and the First Nations of our country? If there is any area of government that could lead to disruption and civil disobedience as we have seen in crises such as Oka and now Caledonia, this is the area; the matter of unsettled claims between the First Nations and the federal government.
Do you feel any compulsion or special responsibility to focus and zero in to see what the problem is, why it takes so long to settle any claim and what could be done to speed up the process? Then as a country and government, we can get on with dealing with these issues and get on with our lives, in a sense.
Ms. Fraser: I recognize very clearly that the whole question of claims is a very important one; obviously for First Nations people, but also for the country as a whole. We have begun to tentatively move into the area but, given its complexity, have started with actual claims that have been settled and looked at their implementation. I believe over time we will probably move into that area, but we need to develop our own skills to be able to audit this effectively.
If the committee were to view this as being particularly important and ask us to conduct an audit in that area, we generally try to accommodate parliamentary committee requests. If there are any other areas in your study that you feel would warrant an examination on our part, we would certainly be very responsive to that.
Senator Sibbeston: I can see where you have done some work in this area. You examined the treaty entitlement area, both in Manitoba and Saskatchewan, and you have uncovered many inefficiencies and administrative deficiencies, and so this perhaps gives you an idea. Land entitlements, where they are complex, are perhaps not even as complex as the specific claims. I am sure that claims often relate to treaties, agreements or settlements.
As to whether there was a complete understanding, I suspect there are some claims that want to go beyond the written terms of any agreements. This has been the case in the Northwest Territories where I am from, where there was a treaty made with the native people in the North in 1921. However, when the court looked at the treaty itself, they were able to see that really the agreement was not set out. As far as the native people were concerned, it was not as written.
The treaty was not a full indication of what had been said way back in 1921. I suspect that some of the claims are like this. I can see that the claims are very difficult, and the process that Indian and Northern Affairs Canada, INAC, has in place relies in part on the Department of Justice to give them legal advice. We are told that this is where some of the bottleneck resides, where the Department of Justice is given claims to look at and it takes upwards of 10 years to provide a legal opinion on the claims.
If you were to conduct a review of this whole matter in INAC, would you then also look at the Department of Justice to see why they take so long, whether they have the required number of people or the competency to deal with all the claims that they are faced with?
Ms. Fraser: I could perhaps mention, cautiously, the work that we have coming in our report at the end of November. As I mentioned in my opening statement, we have an audit coming on the B.C. treaty process, and we have tried to identify factors that have perhaps made that process a little slower than some people would deem reasonable.
I feel the whole question of legalities and court cases comes into that. I hesitate to go much further than that because we have to wait until the report is tabled, but I would assume the committee might be interested in that particular report, which will be coming at the end of November.
The Chairman: Is this on comprehensive land claims?
Ms. Fraser: It is the B.C. treaty process.
The Chairman: Which involves mostly comprehensive lands claims?
Ms. Fraser: Yes.
The Chairman: Thank you.
Senator Hubley: Thank you for your presentation, and welcome to you all.
Many of our questions will be surrounding issues of funding and finances and matters of that nature. In your role as an auditor, when you audit a department and it is falling short, for whatever reason, of your expectations of how it should function, is it within your job description, shall we say, to make a recommendation that this department is underfunded and that funding would be needed in order to rectify these seven factors, which you have outlined, that are crucial to the successful completion of a claim?
Ms. Fraser: As the Office of the Auditor General, we are very reluctant to say that a department would need more money. In our audits, we do point out that there is a gap between the expectation that the department sets for itself — because they are the ones who set their objectives — and the funding that is provided to them in order to achieve their objectives.
For example, for a number of years, the Department of National Defence had expectations for which the funding was not in line. When the Office of the Auditor General pointed this out, some people interpreted it as saying that the Auditor General is calling for more money for national defence. We said no, that expectations could be redefined to be in line with the funding. However, it is not fair for either the public servants or the people who are affected by this department to have that gap in place and to be trying to attain something when they do not have the proper resource base.
This is an area that we look at in many of the programs, and we ask: Do you have proper funding in order to achieve the objectives that you have set out for yourself?
Senator Hubley: This is an issue that we hear about from the different organizations. Claims are going up, but the settlements are stagnant or going down, so that obviously creates problems right away.
Certainly, your first recommendation is key, namely, sustained management attention. New staff starting over again, presents a major delay for any kind of' settlement. Some important claims were not being addressed and there was no mechanism to resolve that, and that was a frustration.
The delay is of great cost to the First Nations, so there is a moral issue here for Canadians to take this very seriously. In our study, we see one side and the other. Everything you are doing is correct, but there is still a problem, so we must try to fill that gap somehow and pull the two parts together to make the processes start to work.
When I read your recommendations, some probably would come under an independent claims tribunal, which we have heard several times from several witnesses. Generally, I believe there has to be a determination on behalf of government and, more importantly, Canadians. The moral dilemma here for me is that this has gone on for so long and we are not even catching up.
Ms. Fraser: In one of our reports, we addressed the funding just as a matter of fact. We noted that funding for First Nations programs has increased in recent years, but not at a rate equal to population growth. We pointed out that Indian and Northern Affairs Canada's funding had increased by 1.6 per cent, excluding inflation, in the five years from 1999 to 2004, while Canada's status Indian population, according to the department, had increased by 11.2 per cent.
I would suggest that the committee might want to invite the Department of Finance to come and talk about the fiscal framework and how they portray the funding for claims settlements and others going forward when they do their allocations.
Senator Hubley: That is a very good suggestion.
I apologize if you have already answered my following question: Can you or can you not give us a figure for the contingent liabilities on the 729 specific claims?
Ms. Fraser: I cannot. It really should be government that gives that figure.
Senator Hubley: Perhaps we can pursue that with another department.
Ms. Fraser: Absolutely.
Senator Dyck: Thank you for your presentation. It was very clear and succinct.
We have heard a variety of perspectives from people sitting on the other side, waiting for their claims to be settled. Your report on treaty land entitlements indicates that for the cases in Saskatchewan, in particular, and in Manitoba less so, there is a greater success rate in terms of actual agreements being made and lands being transferred and converted into reserves, such that in Saskatchewan nearly 60 per cent of the land has been converted to reserve status.
You also mentioned that with these agreements, there was no dispute in the amount of land that was to be turned over to the particular First Nation. Do you consider that factor to be a critical one in terms of speeding up the process, compared to some of the outstanding specific lands claims? Would lack of dispute be a key factor?
Ms. Fraser: Absolutely. When we looked at treaty land entitlement in this particular audit, to us, the fact that there was no dispute about the amount of land to be transferred was obviously a critical factor. There had been years of negotiation that had gone on to arrive at a resolution and agreement, and now it is to consider how that agreement is being implemented. When we saw, as you mentioned, that in Manitoba only 12 per cent had been converted since 1994; that is 12 years after having a clear agreement on the number of acres of land to be transferred, and yet only 12 per cent had been finalized. It points to a real problem in the implementation of agreements. We did not go back in these particular audits to look at the process leading up to that. One would assume, once there is an agreement, that it should move ahead expeditiously and take much less time.
Senator Dyck: I was curious as to why the situation in Manitoba would be that much different and whether it was basically a matter of timing. The Saskatchewan agreements were first in line and perhaps for some reason were dealt with more quickly. The others could have piled up in between, much like we have now with the specific claims process wherein almost one half of them are waiting for legal opinion.
Ms. Fraser: We examined the audit to see if we could identify any particularities between the two regions. We note in our report that while the terms of the agreements might differ somewhat and might explain some of the difference, we believe the major reason is the way in which the respective regions are managing the files. It comes down to management process within the department that is causing such a big difference.
Senator Dyck: Point 15 of your written presentation speaks to improving and streamlining the specific claims process. In your opinion, if more resources were forthcoming and if the process were made more efficient, would that be a better approach than if we were to scrap what we are doing now — as Senator St. Germain indicated — to start an independent commission? It seems like the existing process simply does not work. Can we continue to tinker with it? Can we pour enough money into it and streamline it enough so that it will work, or do we need to start afresh?
Ms. Fraser: I am sorry, senator, but I am not sure I have the knowledge to be able to respond to what is a very good question. Perhaps INAC and Justice Canada could respond. It is important to understand the problems in the system and then to see if there are ways to improve upon it.
Senator Dyck: In terms of accountability, you mentioned that one of the difficulties might be that the claims are processed, but there is no mechanism to ensure that INAC actually sets out a strategic plan. Someone should be setting goals and holding them accountable, so they cannot delay proceedings forever. Is that doable?
Ms. Fraser: We looked at that and found they had no strategic plan overall as to how they would accomplish the commitments that they had undertaken. There should be a plan and the plan should be tracked. I go back again to the sustained management attention, such that someone should ensure that they are meeting the targets set out and taking corrective action if they are not doing so.
Senator Dyck: Who or what committee would make them accountable?
Ms. Fraser: This committee does a very good job of that.
The Chairman: You are gracious and cautious, Ms. Fraser. You have been in Ottawa at least six months.
Senator Watt: It is nice to see you again, Ms. Fraser. I will start off where we left off the last time we talked about whether there was a possibility for your organization to undertake an examination of the money transferred from the federal government to the provincial government. I believe you know what I am referring to: the James Bay and Northern Quebec Agreement.
We have a funding agreement with the Government of Canada and with the Province of Quebec. For anything under provincial jurisdiction, the provincial government has an obligation to provide 75 per cent of our funding needs and the federal government kicks in 25 per cent. If it is under federal jurisdiction, the federal government has an obligation to kick in 75 per cent and the provincial government kicks in 25 per cent.
As you know, certain parts of the agreement are enshrined in the Constitution but we still have problems despite the fact that we have gone through the comprehensive claims process, et cetera. I always like to know whether we are receiving value for the dollar transferred from the federal government to the provincial government, and all the machinations. Are we getting our dollar's worth? Have you looked into that yet?
Ms. Fraser: We have not looked into that, senator, as our mandate is strictly to audit the federal government. As I am sure you are aware, each province has its own auditor general and we do not have access to provincial governments or any level of government other than the federal government.
However, we have a very good relationship with provincial auditors general. At times, we work with them concurrently. For example, in our B.C. treaty process audit, the Auditor General of British Columbia is looking at the participation of British Columbia. He will table a report on the same day as I will table one on the federal participation. We have worked closely together.
Certainly, we can give consideration to your suggestion going forward. We are planning an audit on child welfare programs for First Nations. Of course, that has to involve our provincial colleagues because so much of it is delivered through the provinces. Several provinces are indicating an interest in working with us on that. We are trying to do more collaborative work with the provinces.
Senator Watt: I will have to wait longer to see if we are getting our dollar's worth.
Ms. Fraser: It could take a while.
The Chairman: Let us stay on specific claims.
Senator Watt: I am on specific claims because I have already gone through the comprehensive claims process. That is what I am talking about.
I wish now to turn to another area highlighted by you and Senator Gill to emphasize the importance of the instruments under point 14. I have an understanding of what you mean when you talk about effective coordination of government programs. We have many problems in that area. As you know, INAC is becoming a "jungle,'' such that it is difficult for ordinary people to go to the department and have a meeting with the minister. The minister discharges the information but it is up to the people to sort through it. It is like putting a puzzle together, because there are so many pieces and parts to the many programs that are located all over the place. Some programs even overlap one another.
Do I understand your highlighted reference correctly?
Ms. Fraser: Yes, senator, very much so, although in part. I would give another example of that. We did an audit of housing; we found there were programs under INAC and programs under CMHC, and there was not good coordination between the two programs to address a serious issue.
Senator Watt: On that precise issue, we always look at one department — INAC — which is one pie that has to be sliced into many, many pieces. Indian and Northern Affairs Canada should not really have a role in developing and meeting housing needs, other than to provide funding. Perhaps INAC could be made aware, through your recommendations, that the responsibility for housing should be with the Central Mortgage and Housing Corporation.
We are starting to have some Aboriginal people designing the programs and deciding what the department should do. They might be better able to deliver those programs than INAC. I am simply making a comment; I am not saying that is the way it should be done, but just raising the issue. I was talking with my good friend from British Columbia, who is a chartered accountant and a member of a First Nation. He came to Ottawa today to have a meeting with the Minister of Indian Affairs and Northern Development on that precise issue, because he sits on the board of directors of the CMHC.
As Aboriginal people, we are given the land. Once, all the land was ours, but now we are given parts of the land, and the only way we can obtain that is by negotiating, even though it was ours at one time. That is the way the system works.
As for meaningful consultations with the First Nations, we still have problems off and on, but perhaps we are starting to get to the point where we realize they have to be consulted. There is still a problem, and I realize that.
You talked about the capacity development within the First Nations. One of our biggest problems as a government is that we have a tendency toward the attitude: We will do it for you instead of you doing it for yourself. I feel that is where the big problem lies. You also recommended establishment of First Nations institutions. Here we are starting to bite into the meat of it. That could be materialized, because the Aboriginal people across the country, whether First Nations, Inuit or Metis, need instruments. Without instruments, they can go nowhere. The only meaningful instrument that they have at their disposal at the community level is the band council or community council. In my area, in Inuit society, it is slightly different. We have various institutions: We have governing institutions, a justice system and we control our own education system. Until you start to move in that direction, you will not be able to do what you suggest should be happening as set out in your presentation. Do I understand that you recognize that institutions are required to be run, controlled and owned by the Aboriginal people? Is that what you are saying?
Ms. Fraser: Essentially, yes. The department recognizes that many programs and services were transferred or devolved to First Nations people without the necessary base or institutions in place. The education system is one example of that. There is recognition of that and that that capacity has to be developed.
Senator Watt: With regard to establishment of a legislative base for programs, again, you cannot have that without institutions. Are you talking about Aboriginal people being able to legislate certain programs, setting policies and directions for their future?
Ms. Fraser: In part, yes. It was also, as I mentioned earlier, when we looked at prescription drug programs. Another good example was when we did an audit of water quality on reserves and found there were no standards for water quality, whereas all of us live in cities that have standards for water quality. The proper legislative base is needed for many of those programs and for the standards, et cetera to be in place. Obviously, it will require the very active participation of First Nations people to develop those regulatory programs.
Senator Watt: You are not really focusing on Indian and Northern Affairs Canada as the one who does not have the appropriate legislative base. You are not saying that?
Ms. Fraser: No. It is within the programs of Indian and Northern Affairs Canada and the responsibilities.
Senator Watt: With regards to addressing the conflict role, this is a straightforward matter that could be rectified quickly. I do not understand why we have not set up a simple dispute resolution mechanism where a non-native could go if they had grievances with the Aboriginal people, and where the native people can go if they had grievances with the non-native people or the government. Unless we go to court, we have no instrument to resolve matters. That is one of the reasons why issues get bigger and bigger, to the point that they cannot be managed any longer. Somehow, we have to break away from this cycle.
During the 23 years that I have been here, I have not seen one single movement toward improving or solving all the problems that we are facing as Aboriginal people. It is not only the Aboriginal people who are facing the costs. The country as a whole is being dragged down by the fact that it cannot make decisions; we have to get away from this. When my time comes to leave here at age 75 and I look at what I have done, how influential a person I have been as a parliamentarian here for a number of years, I will probably be very ashamed.
Senator Gustafson: Thank you for appearing this evening, Ms. Fraser.
The question I have comes from an experience I had as a member of Parliament for 14 years in Souris—Moose Mountain areas. Land claims were settled within that area. We found one of the biggest problems was that the provincial government and the federal government could not decide who was responsible for what. Are you finding that in your research? I am now talking about roads, administration, rural municipalities and so on. As far as stalling for time, it was the biggest problem there was.
Ms. Fraser: We found some evidence of that when we did the audit for the treaty land entitlement. Part of the delay was because of negotiations that had to go on with third parties, be it municipalities or whatever. We said that the federal government needed to do more to help resolve those issues and to make the files move faster.
The Chairman: In the 1991 report, the Auditor General said the government and Indian and Northern Affairs Canada should reassess the fundamental concepts and practices for settling claims. Essentially, they came up with these recommendations: amending the specific claims policy — and here we are 15 years later and no further ahead; establishing a fast-track process for claims under $500,000; increasing ministerial authority to approve settlements up to $7 million; establishing the Indian Claims Commission to review rejected specific claims, which is in place; and establishing the joint Indian-Canada working group to review claims policy and process issues. These recommendations came from your department. I do not believe you were the Auditor General at that time.
Ms. Fraser: No.
The Chairman: The more things change, the more they seem to stay the same, Ms. Fraser. You gave the comparison or the analogy of National Defence, and I believe that Justice Canada has the same dilemma facing it in assessing these claims. It is taking nine years. We have had witnesses before us saying, "We just do not have the resources. We have two or three lawyers working on a litany of claims.''
Did I hear you correctly when you said it is an area where you could possibly make a recommendation?
Ms. Fraser: The whole question of the management of specific claims is an area we could audit. Given its importance, I suspect it would be in our plans in the coming years.
As I said, we are doing an audit now of the management within Justice Canada. We will not be looking at specific files or areas, but their overall administration. As I suggested, you might want to call in the Department of Finance because it is not only the monies that are allocated to the departments to manage the files, but also the money for the settlements. How do they forecast those and how do they take that into account in the fiscal framework? That might be an area that the committee might want to pursue.
The Chairman: In view of the frustration, litigation and confrontation out there, where do you get your mandate from? Are you directed by anybody? Can we ask you in a nice way to please do it?
Ms. Fraser: I always try to accommodate requests from parliamentary committees. If, in your study, you see other areas as well — even specific, smaller areas — where you believe it would be useful for us to do some work, we will certainly take that under consideration.
[Translation]
Senator Gill: As Senator St. Germain mentioned, First Nations and Inuit have high expectations when it comes to government audits.
Perhaps you could assign yourself a mandate, without necessarily waiting to receive one from the government. You pointed to a 1.6 per cent increase in INAC's budget, whereas the population is demanding an increase of 11.2 per cent per year. That is a significant discrepancy.
Of course, settling land claims is a costly process. Would it be possible to find out how much money is paid out in the form of compensation and to verify if, after all is said and done, there is money left over?
Ms. Fraser: Yes, we can look into that. Please remember that the Office of the Auditor General decides which audits to carry out. However, we generally take into account recommendations received from parliamentary committees.
[English]
Senator Sibbeston: If it will help the work of our committee and somehow encourage the Auditor General to audit the specific claims section of Indian and Northern Affairs Canada, I have a motion that the committee request the Auditor General to audit the specific claims component of Indian and Northern Affairs Canada with a view to speeding up the settlement of claims.
The Chairman: We have a motion on the floor.
Senator Hubley: Can we put time frames on that at all?
The Chairman: Perhaps this is something we could discuss at the report stage rather than now and put the Auditor General in an uncomfortable position. We should discuss this because there are time frames and matters to be put in place.
We will deal with this immediately; we will not study an issue that is already bogged down. We will get our report out quickly. The moment we feel we have the necessary ammunition to proceed, we will draft a report. At that time, we would be glad to deal with this issue in a manner that gives fairly clear direction in the request. It is not a direction as much as it is a request.
Ms. Fraser: I very much appreciate that, and we will certainly consider it.
I would like to advise senators that we obviously have a program of work that has already begun on other audits. It generally takes us anywhere from 12 to 18 months to do an audit. We would not be as timely, perhaps, as your report will be.
The Chairman: Ms. Fraser, I realize the burden of work that you have. I can only say that the frustrations of Senator Watt and many others in so many areas are indicative. It is an indication that my vice chair, Senator Sibbeston, wants to get on with this, and I do not blame him.
Unfortunately, we are running tight for time. It is a worthwhile cause to run over the clock in your case, Ms. Fraser.
Mr. Campbell and Mr. Berthelette, along with Ms. Fraser, we thank you for your presentation and the candid, straight-forward answers that you gave to the questions asked of you.
You have a tough job, but you are doing it well. Keep up the good work.
Would you mind withdrawing your motion, Senator Sibbeston?
Senator Sibbeston: Of course not. I withdraw.
The Chairman: Honourable senators, our next witnesses are Chief Elaine Chicoose, Mr. Jayme Benson, Chief Morris Shannacappo and Mr. Ralph Abramson.
Welcome to the committee.
Chief Elaine Chicoose, Pasqua First Nation, Federation of Saskatchewan Indian Nations: Thank you. This is my second time in Ottawa. The specific claims policy is very slow and frustrating. My First Nation, Pasqua, has had our 1906 specific surrender claim in the department for about 20 years. It is very frustrating for everyone concerned.
I am a fifth generation chief. Chief Pasqua was a signatory to Treaty No. 4. I am proud of my First Nation and our treaties. We are very frustrated with what is going on and the time it has taken for our specific claim to go through the system; we have been through it with three chiefs already.
The Chairman: Thank you, Chief. We share your frustrations, which is why we are doing this study.
Jayme Benson, Director of Specific Claims, Federation of Saskatchewan Indian Nations: Good evening. Thank you for inviting us to appear. It is an honour.
The federation represents the First Nations in Saskatchewan. Saskatchewan has been one of the more successful regions in the country in settling claims. You heard a little about that from the Auditor General on treaty land entitlement. That also applies to specific claims. Despite that, we now have over 90 specific claims that are unresolved in the specific claims process.
I believe you have all been provided a copy of the written brief we prepared. We do not have a lot of time, so I will only touch on a few highlights.
I know that you have heard from many other witnesses, and I have read some of the transcripts of those proceedings in which they talked about the problems in the specific claims process.
Those problems include delay, unfairness, an ineffective and inefficient system, a lack of resources and a system that does not bring finality to claims. Chief Chicoose mentioned their 1906 surrender claim which has been in the system since 1985, with no resolution.
Litigation is not a good option for settling claims. When I was preparing this presentation, I did some research on the costs of the Sampson Cree case. The CBC reported — after making an access to information request — that the federal side spent $45 million, not including Justice Canada and Indian and Northern Affairs Canada employees' salaries. The lawyers on the First Nations side reported that they spent $75 million on that court case. The case is still under appeal so costs will continue to increase. Besides all the other disadvantages of litigation, the cost of it is astronomical. That is money that should be spent settling claims.
The Federation of Saskatchewan Indian Nations, FSIN, agrees with recent statements of Minister Prentice with respect to the need to negotiate claims rather than deal with them in other forms. It is easy to talk about the problems in the claims process, and I am sure you have heard many witnesses go through them again and again, but the real question is about solutions. We tried to focus on that in our brief. Clearly, lack of resources is a problem. We would certainly recommend improvement to the ineffective and inefficient process.
If you are trying to make the process more effective, we advise that it not be just government people talking about how they can improve their own system, but that they work with First Nations organizations, like the FSIN, and organizations in Manitoba with experience in claims in order to make their efforts more efficient. It was timely on your part because one of the recommendations in our brief was to have the Auditor General review the specific claims process. You beat us to the ball on that one.
I heard the question earlier of whether they will deal with the problems of resources and inefficiency in the process. Quite frankly, I do not believe you will ever get hold of the backlog unless you can bring finality to claims. The only way to do that, when Canada does not agree to negotiate a claim, is with a system to adjudicate it. Currently, if you submit a claim, finality occurs only when that claim is accepted for negotiation and settled. Even the government's rejected claims are still in the system, where they can languish for years or even decades without any mechanism to say yes or no to that claim. In order to do that, there must be an independent claims process in place.
It should not be a difficult road, because most of the work on such a claims process has been done. Certainly, there is Bill C-6 on the specific claims resolution. When we appeared before this committee in the Senate, we proposed concrete amendments to the bill to address its most serious shortcomings, which would produce a better system than the one we have now. The shortcomings we tried to deal with were accessibility of claims, the criteria, the issue of delay and the issue of independence. In our brief — as part of the appendix — I included our proposed amendments to Bill C-6, which were endorsed by our chiefs in Saskatchewan before their assembly. That is the way to go in terms of a realistic fix that could be implemented fairly soon to establish an independent claims process that would bring finality not only for First Nations, but also for governments and all Canadians. No one wants to see these issues remain unresolved for decades.
The Chairman: Thank you, Mr. Benson, for being so succinct. Chief Shannacappo, please proceed.
Chief Morris Shannacappo, Chairman, Treaty & Aboriginal Rights Research Centre of Manitoba Inc.:
[Witness speaks in native tongue.]
I would like to thank the Senate committee for having us here to allow us to do a presentation. I am from the Treaty No. 4 Indian reservation of the Rolling River community. I am the ninth chief in Rolling River since the time of the signing of the treaty and a fifth-term chief. I am not going to get into too much of a redundant speech because I echo the same frustrations as the previous presenters, including the Auditor General. I also sit on the international committee for the Assembly of Manitoba Chiefs and have made interventions to the United Nations over the past five years. Next year, I will make an intervention again, which will be on lands and resources.
I was somewhat offended this evening when we talked about taxpayers using their money in an inadequate way. What we have been living on is the natural resources, especially when it comes to Indian monies. I do not like to refer to it as taxpayers' dollars. Maybe that is another matter the Auditor General could consider besides a treaty audit.
Accountability, as it was spoken to here, is a two-way street. I would also like to see the Auditor General do a good accounting of funds that come from our natural resources, which we did not give up under treaty, to see how those monies are being spent and whether they are being shared properly. With that, I will turn the floor over to Mr. Abramson, who has been working with our people since the inception of the Treaty and Aboriginal Rights Research Centre of Manitoba Inc.
Ralph Abramson, Director, Treaty & Aboriginal Rights Research Centre of Manitoba Inc.: I would like to thank the committee for allowing us to present. I have been involved in the process for over 30 years now. I would echo the comments that Mr. Benson made. At the root of this issue are claims against the federal government made by First Nations that, in some cases, go back 100 years. Any reasonable person looking at the documentation of these claims can see that there are damages, and they need to be resolved. With the backlog, there are some 700 or more claims. The key problem with the process all along has been that the government is in conflict of interest, because it is the judge of claims against itself. The object in judging claims seems to be not to determine whether there is a claim, but to try to minimize government liability as much as possible.
Ever since the claims process was put in place, First Nations in Manitoba have recognized the fact that there was a conflict of interest, yet have tried to participate in the process to see what could be done. We have had a fair degree of success in terms of land entitlements and clearance of claims, but that is in spite of the process rather than because of it.
There are two recommendations to improve the system. As Mr. Benson said, much of the work has been done over the years on ways to improve the process. The key point in all of that work is to involve the First Nations in developing a process that will deal with claims effectively. The process should not be under the influence of either side — government or First Nations. First Nations in Manitoba have always said that they want a fair judgment of claims, not the upper hand. They want only to see these matters dealt with fairly and settled fairly.
There have been a number of efforts in the past, the last one being the joint task force that outlined a number of recommendations, which, if implemented, could have put a workable process in place. Using today's available resources, we need a joint process to develop a model that would work, but it would have to be adequately resourced. It could be the best process in the world, but if it is not adequately resourced it will not work.
We saw that happen in the early 1990s just after the Oka crisis when many additional resources were devoted to specific claims. Initially, there was a flurry of settlements but, eventually, we went right back to where we were before — where government was no longer scared and took back the upper hand in the process. Thus, claims were not being validated, and some claims have been languishing in the system for 20 years. Additional resources are part of the problem, but they are not the only matter. Additional resources put into the current process would help to a certain extent, but eventually the process would go back to the same point it is at now.
Our recommendation in the written brief is that the First Nations have to be involved in developing a new process to deal with specific claims. It has to be independent, without any undue influence by the federal government or First Nations, and it has to be adequately resourced. That recommendation is based on our experiences in Manitoba with the claims system.
I welcome your questions.
The Chairman: Chief Shannacappo, what area are you from?
Mr. Shannacappo: Rolling River First Nation.
The Chairman: Is that west of Winnipeg?
Mr. Shannacappo: Yes, it is about two and a half hours west of Winnipeg just below Riding Mountain National Park, which is my traditional territory.
The Chairman: I am from Manitoba, so I am trying to locate your area. Chief Chicoose, where are you from in Saskatchewan?
Ms. Chicoose: Pasqua First Nation is about 45 minutes northwest of Regina, Saskatchewan.
The Chairman: Is that toward Davidson?
Ms. Chicoose: You are thinking of Saskatoon. It is near Regina, in the beautiful Qu'Appelle Valley.
Senator Hubley: Welcome this evening. Thank you for your presentations and comments.
I do not believe this is a difficult question, but when we are talking about the independent claims commission or tribunal, I believe the Auditor General mentioned that perhaps we were just transferring the problems from one area to another. Have you given any thought to the structure of an independent claims tribunal? Who should be on it? Should it work within a department, or should it be a separate body that would govern the claims? Would be it accountable and would goals be set, et cetera? You have mentioned certainly the First Nations have to be involved, but who else should be involved in that?
Mr. Benson: That is a fairly extensive question. In terms of transferring the problem, I believe an independent body would solve some of the problems. One of the problems we have in the current system is delay, but part of the reason we have delay is because there is no one to ride herd over either side, particularly the government, and to say, "Enough is enough. This claim has to move to the next stage. This has to be done.''
In a litigation setting, the court would set the time frame. Part of the amendments that we proposed to Bill C-6 was to deal with that very issue. An independent body would take control of the process and timing. In terms of independence and conflict of interest, you would no longer have Canada judging claims against itself, because you would have an independent body to adjudicate.
Most important, in terms of finality, there is a huge backlog in the current system because these claims languish forever. An Indian claims commission can recommend a particular course of action, but the government can ignore it. If you have a body that says, "Here is the evidence, and this claim is valid. Here is what it is worth,'' or, "This claim is not valid,'' then that is binding and that claim is done through the system, so you are not simply transferring the problems, if that makes sense.
As far as who the independent body would be accountable to, I believe, even in the joint task force report and in Bill C-6, it is still reported to Parliament. Just because it is independent does not mean it can do anything; it is still governed by the legislation and whatever other acts apply to it. I believe that some of those fears would not necessarily come to fruition.
Mr. Abramson: As Mr. Benson mentioned, that specific question could be answered by looking at the report and recommendations of the joint task force. That particular issue was something that was considered, and considered in some detail. There were models of different ways to approach establishing such a body. The key point is that if that body has power to enforce their decisions, it has to be quicker than the government. The government has no deadlines now, and, as Mr. Benson said, there is no way of getting the government to move on these issues. That is the problem. It is not in their interest to move. If they delay, there is no consequence. There are many consequences to First Nations, but none to government.
Mr. Shannacappo: I would like to add to that. Where would you find a neutral body? We are presenting here to this committee, and I admire the work you are doing and how you are representing the country, but where would you go? That is a wonderful question. Do we go to someone outside the country to make judgments as a neutral body? Do we ask the creator to toss a coin and ask who is right? It is a beautiful question, and I feel the only way we will come to an agreement is if we continue to sit at the table with both sides without having the judge, the jury and the hangman from the Canadian government saying, "This is who we select.'' If we were to select our Indian lawyers to sit at the table, I want to remind you they take an oath after they are given their law degree that they will speak on behalf of the Canadian law system. Again, they are sitting on the side of the judge, jury and hangman. Where do we go for a neutral body? Who do we ask to sit and be the next judge?
The Chairman: Have you a recommendation, sir?
Mr. Shannacappo: I do.
The Chairman: Do not be bashful here. If we continue to do what we have always done, nothing will change.
Mr. Shannacappo: I believe there is a lot of talk at the United Nations where representatives come in. I believe at some point in time, we will have to look at a different system that might bring international representatives in to take heed and listen to exactly what is happening in the country, and how the Aboriginal people, the original people of land, are being treated, especially in the area of land and resources.
Senator Sibbeston: I get the impression that our witnesses are pretty experienced and knowledgeable in terms of this whole area of specific claims. It is interesting that you have had some success within the system, yet you see that there still needs to be some major improvements, basically having an independent body in order for the process to succeed.
I take it that, in the end, you feel, with the present system where Indian and Northern Affairs Canada is presently the judge, jury and prosecutor with so much say and control that you can never have a solution that would be suitable for all of the claims. Despite all that is said and all that we do, we need to have an independent body that adjudicates the cases and has the power to make a decision one way or the other.
Obviously, if that is the case, we will have to, as our committee, work in that direction and see what we can do to convince, to make a report and take that approach. It is a challenge.
Do you see any hope? Do you see where the political system could eventually come to an agreement to the effect of having an independent body? Do you see the present government, or any future government, coming to a decision where some form of independent judicial body is formed to deal with all the claims?
Mr. Abramson: Yes, if the people making the decisions took the time asses all the evidence and the costs, not of settling claims, but the cost of not settling claims. There was talk earlier about the contingent liability; that will only grow. If they laid aside all the prejudices in place regarding claims and examined the evidence, they would see that the most economical, the most reasonable course of action would be to put in place an adequately resourced, independent system developed jointly by First Nations and government. That is the only way it will happen. If it continues the way it is, the backlog will only grow — it is over 700 now. I am sure they have done forecasts on how that will grow. Unless the issue is addressed soon, it will get bigger and bigger. The problem will also get bigger and bigger. It is in the interests of government to deal with the issue now.
The Chairman: I tried to ask a question about this and in so doing I mentioned taxpayers, chief. I apologize if I offended you. If we were to make a recommendation for an independent body, how would we deal with the mentality of the open chequebook not being there? That is what I was trying to ask the Auditor General. If we make a recommendation and it has to have proper resources, how do we have a check and balance so the system does not get out of control? We have to have the confidence of all Canadians — First Nations and everybody involved. The accountability factors have to be built in. Can you make a recommendation as to how we would do that?
Let us say we went to Rudolph Stavenhagen, or someone from the UN — I use that name only because it comes to mind — as an adjudicator on an independent body. How do we deal with the open chequebook type of process that would allow for the accountability and credibility that it would need to face the test of scrutiny?
Mr. Benson: I can partly answer that question, because it is answered in the joint task force report. I was part of the joint task force, as was Mr. Abramson. The question came up from both Finance Canada and Treasury Board: Is this an open chequebook? The draft bill within the joint task force report had in it, what we called, a five-year fiscal framework. There was a maximum amount, to be decided by government and First Nations, which the tribunals could award in five years. There was a guarantee to give the government certainty of the amount that would be spent in terms of awards by that body in five years.
There was no cap on individual claims. All claims could access the tribunal, but there was a maximum cap on how much the body could spend. To change that would require a decision by cabinet.
The joint task force report, which was accepted by the Assembly of First Nations and most First Nations organizations, ensured there was no sort of blank chequebook.
Going back to Senator Sibbeston's question, right now there is an opportunity because one of the strongest advocates we have had for claims reform is the Minister of Indian and Northern Affairs, Jim Prentice. He was with the Indian Claims Commission. He is a man who spoke out again and again for the need of an independent claims process.
It is not a question of the political parties not accepting it. The block has always been in the bureaucracy about the idea of giving up control, whether it is Justice Canada, Finance Canada or Treasury Board.
Senator Sibbeston: I am aware of the joint task force. When we were dealing with Bill C-6, the fact that there was a joint task force was very prominent. I come from an area of the country where there is a fair amount of cooperation between Aboriginal people and government. I saw that joint task force as a positive move. The only problem was that, in the end, the government did not follow it up. I could not understand how government committed such a treacherous act; the government was involved and agreed to a joint process, yet in the end it did not agree with it. I was surprised and a bit ashamed of the fact that the federal government reneged and did not follow through with the recommendations of the task force.
Eventually, Bill C-6 was passed. There were some amendments moved, which tried, incrementally, to improve the bill. I notice that it has not been proclaimed.
We had a Liberal majority government that could have done it. Now that we have a minority government in place, what are the chances of getting these changes? What is the likelihood of ever achieving the independent tribunal or body that is so much needed in dealing with all these claims?
It makes me wonder. There is some hope knowing someone like Jim Prentice, who is knowledgeable, has been involved in the claims process and the commission. Therein lies our hope that we can provide such a good report and such strong recommendations that, if he is still minister six months or a year from now, he will be knowledgeable enough and strong enough in government to bring forward the needed changes. There is hope for the future in that.
Are there any comments on that? Am I right in thinking that way?
Mr. Shannacappo: There has to be more treaty education. If I am holding a cup of coffee and I want to share it with the senators, but I am the holder of the cup, and I give you a sip now and again to keep you awake at the table, I am still the holder of the cup. I will drink whenever I want to drink. However, I will give you a drink when I feel you need a drink, just to keep you at the table. When the cup is empty, do I want this cup any more? No. I will move on.
I refer you to an excellent book entitled, Confessions of an Economic Hitman. Basically, that is what I see going on in my territories with First Nations people. They have been savagely beaten. They were savagely taken away from their culture and put into residential schools. I could never see my people being able to do this to any culture.
I do not see a minister of German affairs or a minister of Ukrainian affairs. Yet we have to ask this minister for permission to do these things for God's sake.
There was a time, not long ago, when people in my community were getting whipped by the Minister of Indian Affairs because they would not stay within those boundaries.
Today, I want to build an entertainment centre in my territory that will provide world-class entertainment. I am not allowed to do it because I need someone else's permission, yet it is on my territory and my land. All I want to do is make $10 million instead of having my people fight over the measly $5 million that we get from federal funding.
I admire and respect Mr. Prentice. We have people who put us in these positions too, and who tell us, "You must have answers. You are a speaker, go speak on our behalf. Not only that, but also bring some solutions. Do not go to Ottawa and just complain, offer solutions. Do not sit back and say we need more funding.'' I am sick and tired of begging. We do have solutions.
The Chairman: Some of us are trying to work toward that end.
I have a piece of self-government legislation before the Senate right now. It is bogged down for partisan reasons. It does not make sense. What you are saying is what many of us here believe. Senator Sibbeston and I have travelled together a lot. We do not belong to the same party but we sure think the same on the files concerning Aboriginal peoples. Your words are not falling on deaf ears.
I know others, like Senators Peterson, Dyck, Hubley, Watt and Gustafson, are fully aware of your needs. Whether or not we can effect them, sir, may the Creator help us.
Senator Peterson: Thank you to the presenters. You have given us some good material. You have certainly identified and confirmed the issues with which we have to deal. They include the length of time the claims are outstanding, the conflict of interest and the fact that First Nations must be involved. We have to set up that fiscal framework to which you referred earlier, in a three to five-year time frame. We have to put a number on it, so the government will know what we are dealing with. That would take the fear out of it. Then they would know exactly where it is at.
With regard to this third party tribunal, perhaps that is not the correct word. We need a third party facilitator who can keep the process moving. We find that these things start, they bog down and they sit for two or three years. The people involved leave and it starts over again.
We will try to find the perfect solution; we will probably not find it, but we will find something that will get this process moving. This is an unconscionable length of time that some of these issues have been outstanding. We will do our best. We appreciate the information you have given us.
In Saskatchewan, Chief Chicoose, they seem to be doing well and settling a lot of claims. Then you say they came to yours and it just stopped; it is going nowhere. What happens to a claim? Some go well and others stop. What could be so difficult that it would stop dead for that long?
Ms. Chicoose: The land was surrendered back in 1906. That is 100 years ago. It only entered the system back in 1985. It went through one preliminary rejection. We had to do supplementary submissions, which we did. Then we completed a supplementary legal submission.
They had been asking us to complete many different things, which we did. Finally, we said we will submit it to the Indian Claims Commission. That was two years ago, and it is still there. We were finally rejected. We received a letter back in May of 2005. All this time they gave us hope that there would be a positive outcome. They asked for time, so we gave it to them. It is frustrating with different people, different analysts, different personnel and the change of personnel within the department.
During the time our claim was waiting, there were so many things we could have been doing with the money, realizing the economic benefit within our First Nation. We have no revenue right now, as the Chief has said. We want to be able to do something for our people. We need the resources.
We have our land. Our land is safe, but we do not get enough money with which to carry out the programs needed in our communities. That is why we would like our claims to go through the system quicker. Every year we are losing money on it.
Our claim followed behind the Kahkewistahaw claim, which was validated a couple of years ago. Our same people were involved in the mismanagement of their claim, Kahkewistahaw. That occurred in 1907 and ours occurred in 1906, yet that one has been validated and ours has not. What is the difference? The same people are involved with the same issues; it is very unfair.
Senator Peterson: We will try to do our best to identify some of those matters and, hopefully, get them moving.
Senator Dyck: Thank you for your presentations. It is quite clear from the details you both provided that you believe an independent commission is the way to proceed.
In terms of logistics, let us imagine that became possible. What do you believe would happen to the process we have now with claims that are already in the works through the specific claims process when there is another body that is going to initiate? What is the transition period? How do you envision managing the changeover?
Mr. Benson: First, they would not start from scratch. The type of independent claims process that is being envisioned consists of two parts. One part is a commission that facilitates negotiation, and then there is a tribunal to adjudicate claims if they cannot be resolved.
Claims in the process now, if Canada has them under consideration and agrees to negotiate those claims, could be just as easily negotiated with that new commission overseeing the process.
With most of the negotiations we have in Saskatchewan, the current Indian Claims Commission is already involved and is providing a facilitation role. They would not have to start from scratch. The justice lawyer reviewing that claim would negotiate it, whether it is in the current system or in another system.
A decision would have to be made regarding what to do with the claims before the current Indian Claims Commission, because a lot of them are along in the process. When we talked about that, both in the joint task force report and with government officials after Bill C-6, the idea was that it would have to be one or two years of transition, so the Indian Claims Commission could finish up all of its inquiries on those.
At the end, or in the midst of that process, a First Nation may decide they do not want to continue with the ICC process but wait for the new one. Everything that has already been completed will not have to be scrapped.
Mr. Abramson: You have the joint task force report and recommendations, but what you also have are a lot of discussions that went on with respect to issues like this. We recognize that if a new body was in place, you would have claims in backlog, claims at the ICC and new claims coming in.
Toward the end part of the joint task force process, we looked at the issue of those three streams coming in. As Mr. Benson stated, there would have to be a period of transition. We recognized that that sort of issue would have to be addressed.
Senator Dyck: In your submission, Mr. Benson, you have a series of amendments that would improve Bill C-6. Would those amendments be acceptable to First Nations across Canada or would they be universally accepted?
Mr. Benson: They were developed by the Federation of Saskatchewan Indian Nations, so they are our amendments. Probably, the best process would be to resurrect a process similar to the joint task force where there were representatives from First Nations' organizations — us, Manitoba, AFN, whoever — and the Justice Canada and Indian and Northern Affairs Canada. Those amendments could be a basis for changing Bill C-6, but I believe you would want to have those discussions. We did them in line with what our concerns were; there may be concerns in other parts of the country that our amendments would not necessarily address.
Practically speaking, there should be more discussion than just the amendments. However, we feel they are a good basis.
The Chairman: Were the biggest obstacles not the cap and the appointment of adjudicators or commissioners? I feel these were the two stumbling blocks. Is that right?
Mr. Benson: Delay was also a stumbling block. There was a big concern over delay because under Bill C-6, essentially the government could still delay as long as they wanted.
We proposed three options to deal with that in terms of our amendments. First, at any time, just as in litigation, the claimant or First Nation can say they have had enough and want to move to adjudication.
Second, have the commission set time frames right in the legislation. For example, if a claim came in, the government would have two or three years to consider that claim. If they did not, it would be considered enough time and the First Nation could then move on to asking for a binding ruling.
Third, if a First Nation felt it was taking too long, without applying specific time frames, they could appeal to the commission to make a ruling and it then gets moved on.
On the stumbling blocks you mentioned, the important one is delay.
Senator Watt: I will try to stick to what we consider to be a problem area, one in which we have not been able to move forward as Aboriginal people in terms of dealing with the government.
I agree that an independent body would answer some problems but not all of the problems that we have. At the same time, this independent body would be under some ministry, probably Indian and Northern Affairs Canada. It would still have a role to play even though it is an independent body. As you mentioned, we have to be connected to a department in order for certain decisions to be made on behalf of the Government of Canada.
We know from our own experience over quite a number of years that Indian and Northern Affairs Canada, regardless of who it is and which party is in power, does not meet, and has never met, our needs from the beginning. That department was not necessarily set up for us, to help us. It was set up to defend the government. That is the predicament we are dealing with today.
At times, we are quick to say we have our own instruments. We should admit to ourselves that we do not have our own instruments. We need to create such instruments and the ability to obtain financing for our institutions, so we can talk government to government. We are pretty good in terms of when we talk about government to government, but it is not really the case.
The point I am getting at here, Mr. Chairman, is perhaps the Minister of Indian and Northern Affairs Canada is overwhelmed with too much responsibility, dealing with the delivery of programs and being an instrument that is supposed to fight and defend the Aboriginal people, according to the Constitution.
Is it not time for us to begin to consider promoting the idea of creating another ministry, which would deal not with programs but with a new initiative? That would expedite the problems that we are having now. It does not necessarily have to become a permanent minister, but a minister given a clear assignment coming from the Aboriginal people right across the country saying, "This is what we need to expedite the resolution to this problem.'' It is dragging the economy of this country down.
We can be persuasive if we learn to talk amongst ourselves in a way that could be understood by the other side.
I am raising this issue for us to chew on. I do not believe we will get anywhere dealing with the same Minister of Indian and Northern Affairs Canada, regardless of who it is and their party affiliation. What is behind that political person, the minister, is bureaucracy. That is what we are dealing with here; that is where the problem is.
I believe we have to create a new ministry with a bureaucracy built around it, because it will not be permanent. That might be the only way for us to advance what we have been dealing with, at least in my case, for 23 years. I do not believe that creating an independent body is the key. Am I wet behind the ears on this?
Mr. Shannacappo: When we put the problem in front of us to decipher, to look at, to tear apart, to try to put it together, how many times have we done that and brought it to the table? It has been mentioned time and time again. The joint task force was supposed to address all those problems. Perhaps that is the case, that we need to create a new ministry to be able to take on this one problem on its own, which will deal with the land issue.
Senator Watt: Even if it comes down to the point of dealing with them one at a time. If we are having a problem with specific claims — which is not the only problem we are having, we are having a problem with all claims — we might want to eliminate all those instruments that have been set up by the government over time and create one instrument, not a specific claims or a comprehensive claims instrument. If we are talking government to government, if we are developing government to government relations, why do we need all those instruments that are already in place? They are not helping us today; they will not help us in the future.
The Chairman: Thank you, Senator Watt.
I believe the public are not aware of what specific claims really are: fraud, misappropriation, misuse of our First Nations peoples' lands. This is not strictly a negotiation of trying to establish this, that or the other thing. This is fraudulent action taken on the part of government officials and where governments allowed lands to be used for railways and highways. The public should understand that our First Nations people are only asking for fairness to deal with the injustices that took place in the past with regard to property and, in most cases, land that was allocated to them.
Senator Watt has been here for a long time and he is very knowledgeable on many of these issues, as is the panel.
Chief Chicoose, did you want to add something?
Ms. Chicoose: Yes. As First Nations people, all we want is to be treated as fairly and equally as anyone else. Those are our lands. Those are all the resources we have left. The lands, as you said, were taken without any consideration of us at the time. Those obligations have to be fulfilled. As we sit around the table, I hear it. People must understand and be aware that we want fairness and to be treated equally.
There are so many negative images out there about First Nations people. People are saying how many millions of dollars are coming to the First Nations people. It does not reach us; it does not reach us at the grassroots level. I have heard them talk about housing in CMHC and Indian and Northern Affairs Canada. All of them are given a lot of dollars on our behalf and what do we get at our level? Peanuts.
Symmetry is not an answer to our problems at the First Nations level. They are putting a lot of bands into third parties because there are unpaid rents and their houses are not done right. There must be different solutions. They need the involvement of First Nations leaders and our communities. We know what we have to deal with. We are there every day.
How many of you have ever set a foot on a First Nations reserve to see what is going on there? You did not even know where Pasqua or Rolling River was. It is sad. This is our country. We need something to expedite the process. I know there is a lot of frustration out there amongst Indian people in the territorial lands, et cetera.
We must start trying to work together, and this is a good way of trying to listen to one another and to understand where we are coming from and what we want, and we need to be involved in finding solutions for our problems.
The Chairman: Thank you very much, chief. We certainly do not have all the answers, but I can tell you that, as a committee, we are attempting to better understand. We have travelled; we have been on the land with some people. We have not covered them all by any stretch of the imagination. I will not live long enough to cover them all, even though I have been on this committee for many years. We believe we understand, but we have never walked in your moccasins. Until we do, I do not feel we will fully understand. Hopefully, we understand enough to make a difference and to help your people, and to help Aboriginal peoples in this country.
I know that the committee that I am working with here — and there are six members here tonight with me — I know their commitment and heart is in the right place, and hopefully we will be guided in the right direction and provide the results that you so justly deserve.
With that, I thank you for coming and making your presentation.
The committee adjourned.