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THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES

EVIDENCE

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OTTAWA, Wednesday, February 8, 2023

The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:46 p.m. [ET] to 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.

Senator Brian Francis (Chair) in the chair.

[English]

The Chair: I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.

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 like to begin by asking our committee members to introduce themselves and indicate what province or territory they come from.

Senator Arnot: Good evening. I’m David Arnot. I’m a senator from Saskatchewan. It’s nice to see everybody here today.

Senator LaBoucane-Benson: Good evening. Patti LaBoucane-Benson, Treaty 6 territory in Alberta.

Senator Hartling: Nancy Hartling, a senator from New Brunswick.

Senator Martin: Yonah Martin from British Columbia.

Senator Coyle: Mary Coyle from Antigonish, Nova Scotia.

Senator Greenwood: Margo Greenwood from British Columbia.

The Chair: On that note, a warm welcome to one of our newest committee members, Senator Greenwood. Welcome, Senator Greenwood.

Today we are continuing the series of briefings meant to inform and guide the future work of the committee. This meeting will consist of three panels broadly focused on treaties and Indigenous lands.

On this first panel, we will hear from Regional Chief for Nova Scotia and Newfoundland, Paul J. Prosper, and Kathleen Lickers, External Legal Adviser of the Assembly of First Nations.

Wela’lin, and thank you to both our witnesses for joining us tonight.

Regional Chief Prosper will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session of approximately five minutes per senator. Due to time constraints, I will ask everyone to please keep exchanges brief. To avoid interrupting or cutting anyone off, I will use this sign — sometimes it works, and sometimes it doesn’t — when you have one minute left on your allocated time.

With that, I will now invite Regional Chief Prosper to begin his opening remarks. [Indigenous language spoken]. It’s all yours.

Paul J. Prosper, Regional Chief (Nova Scotia/Newfoundland), Assembly of First Nations: Wela’lin, Chairperson Francis, honourable committee members.

Kwe Nituptup. Nin Teleusi Sagamaw Paul Prosper. Tele’awin, Paqtnkek Mi’kmaq Nation.

Hello, my name is Paul Prosper. I am the Assembly of First Nations Regional Chief for Newfoundland and Nova Scotia. As well, within the AFN, I am the portfolio holder for Lands, Territories and Resources. I am honoured to be here with Kathleen Lickers, who is External Adviser for the Assembly of First Nations.

I would like to begin by thanking the Standing Senate Committee on Indigenous Peoples for inviting me to provide remarks on the Specific Claims Co-Development Process between the Assembly of First Nations and the Government of Canada.

By way of background, the fair resolution of specific claims is key to reconciliation between First Nations and the Crown.

As you know, this committee carried out a special study into the resolution of specific claims and issued a 2006 report titled, Negotiation or Confrontation: It’s Canada’s Choice. This study informed the work of previous governments in reforming policy and shaped the creation of the Specific Claims Tribunal.

As this committee has noted, the failure to resolve claims in a fair and timely manner leads to greatly increased costs for both First Nations and the Crown. The primary roadblock to claims resolution is Canada’s ongoing conflict of interest in the process: it manages and accepts claims against itself based on its own legal advice; it directly funds the process as a program; it controls the pacing of negotiations; and it sets limits on who can access the tribunal.

For generations, First Nations have called for the creation of a fully independent specific claims process as the best way to ensure a fair process and successful negotiated settlement agreements. There have been over 50 separate calls for an independent process dating back to the early 20th century.

While considerable progress has been made, such as the establishment of the Specific Claims Tribunal, more must be done to ensure the fair and timely resolution of specific claims.

In particular, the specific claims process must reflect the four principles identified by First Nations-in-Assembly, that is, the honour of the Crown; no arbitrary limits on financial compensation; independence of all aspects of claims resolution; and the recognition of Indigenous laws.

The Government of Canada has committed to working with the AFN to ensure a fairer and more equitable specific claims process that accommodates the resolution of claims.

Specific Claims Co-Development: On November 3, 2022, I joined Minister Miller in a public ceremony in Halifax to launch the AFN-Canada Specific Claims Implementation Working Group. The launch of this working group marks a significant advancement in our collective efforts to improve the specific claims process.

The implementation working group brings together senior officials from the AFN and CIRNAC to direct the co-development of reforms to the specific claims process, including the creation of an independent centre. The working group will rely on a series of technical task groups to provide expert advice on required legislative amendments and policy reforms. The Specific Claims Implementation Working Group has met regularly since November 2022 and is scheduled to meet throughout 2023. We expect the co-development process to be based on the principles of co-development identified by the AFN. This includes a co-development process that must be transparent and principled, a process between equals and flexible.

The Specific Claims Implementation Working Group will seek to develop a consensus-based proposal for reform that is consistent with AFN mandates and the United Nations Declaration on the Rights of Indigenous Peoples. The Specific Claims Implementation Working Group plans to submit this consensus-based proposal to cabinet and First Nations-in-Assembly for consideration by winter 2024.

Once this proposal is accepted by the cabinet and approved by First Nations-in-Assembly, the AFN and CIRNAC anticipate drafting a bill regarding the establishment of an Independent Specific Claims Resolution Centre.

To conclude, the AFN and the Government of Canada have a shared commitment to improve the current process, including by creating an independent centre for the resolution of specific claims. We look forward to making progress with the Government of Canada to achieve what numerous studies, reports and international law requires — a fair and equitable process to facilitate the negotiation of First Nations claims.

I wish to thank the Senate committee once again for this invitation and its ongoing interest in improving the resolution of First Nations’ claims. We would now like to welcome any questions or comments from committee members. Wela’lioq.

The Chair: Wela’lioq, Chief Prosper. In your view, are there priority areas related to treaties and/or specific claims that could be studied by the Standing Senate Committee on Indigenous Peoples and, if so, could you please explain?

Mr. Prosper: Thank you for that question, Senator Francis.

There are a number of issues that I believe warrant further research. For example, one of the foundational documents for the need for a truly independent specific claims process is the United Nations Declaration on the Rights of Indigenous Peoples, which is not only an international instrument but is now domestic law with the adoption of the United Nations Declaration on the Rights of Indigenous Peoples Act.

There are a number of matters I believe require, and I believe warrant, further research. One is the incorporation and consideration of Indigenous laws. That’s the advantage of this partnership and this co-development process between First Nations and the Government of Canada. We are in the position to educate government representatives on what these Indigenous laws mean, because the overall focus of that would be for greater negotiated settlements based on customs and traditions of Indigenous peoples.

The Chair: Thank you very much. We will now go to our deputy chair, Senator David Arnot.

Senator Arnot: Thank you, Chief Prosper, for coming today and advising us how things are going.

I have a general overall question. What do you want the Senate committee to do to support your position vis-à-vis the Government of Canada? Is there anything specific?

I could make a couple of comments. I think the kind of independence the process needs is that of judicial independence, which would be the highest form of independence, so that none of the parties in the process could be importuned in any way.

I also think that if there is a dispute in the process, that the mechanism that everyone should go to is a mediation process as opposed to litigation, because I find that too often the Department of Justice loves to litigate, and they’re very good at it, but it is not a way to get to a good end result.

I’m really interested to know what your feeling is about the support for the kinds of resources you need or this whole process needs, because I think that’s critical. I also think that these resources should be such that there is a level playing field for all the parties in the process, and that should be acknowledged. I’m hoping that you’re going to tell me that you’re successful so far in discussing issues such as funding and those levels.

I certainly agree with you that the honour of the Crown is the fundamental principle that’s at stake in any of these issues. Too often, the honour of the Crown has not been met. In fact, the opposite, and there is lots of evidence of that.

What do you need us to know, and what do you want us to do to support your work, sir?

Mr. Prosper: Thank you for that question, senator.

I think the important thing that is coming to the forefront here is the recognition that there exists a fundamental conflict here where you have the federal government as not only the defendant in a claim but also having quite a bit of control over the process, not only with respect to negotiations but also to funding and accepting of claims against itself. There is a need to recognize that inherent conflict and to create a mechanism by which that conflict is removed.

With the creation of the specific claims independent resolution centre, it would have that ability to be truly independent. It would be funded independently, and it would allow for more of a consensus-based approach to resolving fundamental aspects related to specific claims. It will not seek to replace the Specific Claims Tribunal — the tribunal is there to render binding decisions — but it would provide a necessary mechanism to allow true independence through all aspects of claim submission, negotiation, validation, and things of that nature. One would imagine that it should have the sufficient funds to carry out that specific mandate.

I believe that will go a long way to, as you mentioned previously, levelling the playing field. I entrust and I hope that co-development of this process essentially means that, where we are equal partners within this process of developing a consensus-based model and we have the mechanisms in place to allow a certain level of flexibility to ensure that things can take place to provide innovative ways of reaching solutions that are both fair and efficient.

Senator Arnot: Thank you.

Senator LaBoucane-Benson: Thank you very much for that presentation. It’s really interesting, and I’m hoping to read a little bit more about the work that you’re doing.

I come from Alberta, and the relationship between many of the First Nations in Alberta and the AFN hasn’t been, shall we say, the greatest as of late. In your co-development process, are you doing any consultations with First Nations in general? Is there a way to bring some of the First Nations who are not necessarily as active in the AFN currently into the fold and do extra consultation? I’m thinking specifically of Billy Joe Laboucan up in northern Alberta, who has some specific experiences with their land claim and being quite a new reserve. I wonder if there’s space for them to inform this co-development process.

Mr. Prosper: Thank you for that question, senator.

I certainly agree with your mention of the need in the First Nations Indigenous people context to consult internally with as many Aboriginal groups, Indigenous groups and organizations throughout the country. Part of this co-development process for a specific claims independent resolution centre has been founded upon an extensive engagement throughout Canada amongst First Nations groups and organizations. A number of engagement sessions were held, and real input was provided by those First Nation groups and organizations to the AFN. Once the findings of that report were published, it was made available on the AFN website for further comment.

There are also mechanisms within this co-development process from the AFN’s perspective that allow for important feedback both on a technical and political level. We do have the chief’s committee on claims, which has representation throughout Canada from First Nation groups and organizations. Certainly, there are the chiefs in assembly who come together to provide further mandates and direction Part of the Specific Claims Implementation Working Group will also be comprised of technical experts. These are experts in various areas of Indigenous law and on Indigenous ways, and they would also be providing direction and support.

I do know that the AFN has been reaching out, and certainly our brothers and sisters in Alberta would be an important part of that, in addition to elsewhere throughout this country. I think that I’m confident we have those mechanisms to address those exact concerns you’re mentioning about consultation.

Senator Coyle: Hello, Chief Prosper. Are you in Nova Scotia?

Mr. Prosper: Yes, I’m in Antigonish. You’re familiar with that, senator.

Senator Coyle: Yes. It’s good to see you. Thank you very much for your testimony.

This is not an area of expertise that I have, but it sounds to me from what you’re saying that this is a promising direction to not only resolve some very serious process issues related to conflict of interest, related to, as you’ve said, levelling the playing field, but also to moving things forward to some quicker, more satisfying outcomes of this treaty negotiation process.

I’m not sure if it’s fair to be asking you this, but would you be able to give us a sense of the backlog and what some of the aspirations are once this centre is up and running, hopefully by the winter of 2024, which is just a year away? I know there is a big process, and there will be some benchmarks set through that process. Is there a sense right now of here we are today, and then we’re going to work really hard in the co-development of this centre, and then here is what we want to see happen once that’s up and running?

Mr. Prosper: Thank you for those comments, Senator Coyle.

There is a significant backlog that exists with respect to the amount of outstanding claims that exist and the number of claims that are in the process of being negotiated or dealt with through the tribunal.

There are many examples of limited resources or ineffective processes, and just calling into question the need for independence and removal of the conflict will take us a great distance towards dealing with the backlog.

As you know, there is an arbitrary limit set for claims that are under $150 million. That was an arbitrary limit set back in 2007. It has no consideration for the expense or inflation or indexing or things of that nature that question having a limit to begin with.

I believe that this process will provide that mechanism for parties to come together to seek consensus on matters in a way that respects the Indigenous perspectives, Indigenous laws and legal orders which are reflected within UNDRIP. Also, it would be quite nimble and flexible, I would imagine — I would hope — to address specific issues that are also related to claims negotiation. It can potentially reference issues to the tribunal as negotiations are ongoing. There’s a lot of flexibility that can occur within a consensus-based model that recognizes and respects an Indigenous perspective. It is a manner upon which the federal government can learn immensely from Indigenous legal traditions.

I believe this mechanism is much needed and will have that added benefit of seeking to address the backlog in claims as opposed to the existing processes that are available.

Senator Coyle: Thank you.

Senator Martin: Thank you, Chief Prosper.

I’m not in a position to really ask any of these questions because I’m just learning about this very specific claims process and what you’re attempting to do to create an independent centre, so please forgive me if my question sounds very basic. I was wondering about the makeup of the Specific Claims Implementation Working Group. You mentioned there are some technical experts. In the overall process, how will the diverse groups of First Nations be involved?

Mr. Prosper: Thank you for that question, Senator Martin.

Regarding the Specific Claims Implementation Working Group, it’s not a mystery to those who are involved within the development and negotiation of specific claims, but right from the research perspective to negotiation, key issues arise time and time again. They have a way of being approached differently, depending upon the negotiator and the situation.

A unique element of the Specific Claims Implementation Working Group is that it will seek to gain the expertise of experts throughout Canada. For example, there are Indigenous legal experts that can inform how Indigenous law and Indigenous legal orders can improve the claims resolution process. That is something we, as Indigenous people, can bring to the table. It is something that can educate our federal counterparts. We can use those methods, traditions and laws to develop a process that is truly unique. We can provide that mechanism as a precursor to the tribunal to come out with claims settlements that are consensus-based. Therein lies just one example, under the guise of co-development and in developing a consensus-based model, where we can rely on the expertise, knowledge and traditions of Indigenous peoples and also have the opportunity to hear from a federal perspective on some of the realities that they are facing as well as they relate to negotiating and settling specific land claims.

Senator Martin: Thank you. Just that one example illustrates how important the technical experts will be for the overall process. Thank you very much.

Mr. Prosper: Thank you.

The Chair: The floor is still open, and we still have a few more minutes for this panel.

Senator Hartling: What you’re saying is very interesting. It must have been a frustrating process to get to this place, but it sounds like a really unique way to resolve these claims. In getting here and going forward, do you see resistance or challenges that are still ahead for you and the groups to get to the next place? Is there any way we can help you on that?

Mr. Prosper: Thank you for sharing those comments, senator. You’re correct: It has been quite a road for many of us.

One thing I want to recognize is the role of this committee, which I believe cannot be understated. It was the report of this committee that I referenced earlier that laid the foundation for the specific claims tribunal. It was an important milestone to have an impartial body to make binding decisions outside of the framework of the traditional courts and to provide that space and mechanism for that. I recognize the efforts and the gains that have been made in the past.

To get to the future of where we need to go, under the guise of reconciliation and the United Nations Declaration on the Rights of Indigenous Peoples, we have to recognize some of the fundamental aspects that are related to an inherent conflict where you have the federal government negotiating, funding and guiding the process of claims against itself.

With that, there will be challenges with respect to the removal of the arbitrary limit, I would imagine. A consensus-based model offers a flexible mechanism to come to agreement on specific items that have been long plaguing the existing process. When you have that approach from an independent lens or through an independent institution that is a resolution centre, then you can attract various studies, you can address various questions and you can look into the related issues on claims settlement. You can reference those contentious items to a tribunal as negotiations take place.

Getting back to your question about further consideration as we move forward and maybe a role for this standing committee, I would imagine that we would be coming back, hopefully, through this process with a consensus-based model. Hopefully, with the support of cabinet and the support of the chiefs-in-assembly, to which we are accountable, there could be a draft bill that would seek to implement this independent specific claims resolution centre. That would be a fundamental aspect to creating a fair, equitable, open, transparent and accountable process that we can all feel proud of in its development. I look forward to that day, and I thank you for your question.

Senator Hartling: Well done. I appreciate that.

Senator Greenwood: Just to let you know, Mr. Prosper, this is my fifth day on the job here. I’m going to play that card as long as I can. This is not my area of expertise, but I’ll try my best.

I know there’s a lot of diversity in this country in First Nations, Inuit and Métis communities. My head always goes to implementation and operationalizing these things and ideas that we have. Will there be opportunities for multiple mechanisms for nations to approach specific claims? I think the body that you’re talking about — you know better than I; you’ve talked to everybody. I would imagine a lot of people are on board with that, but maybe some aren’t. Will the opportunity for bilateral arrangements and those sorts of things still exist for people who do not choose this mechanism?

Mr. Prosper: Thank you for sharing that question, senator.

I can only imagine — and, in fact, I would envision — that a fundamental part of this process, this consensus-based model, would have a high level of flexibility within it. It undoubtedly would offer a menu of innovative ways to reach claims settlement. But also, there are undoubtedly other mechanisms available to First Nations. Litigation, courts, are always a mechanism. The tribunal itself will always be there, which could certainly provide that mechanism.

With respect to this independent specific claims resolution centre, it will provide that mechanism to allow people to come together to discuss claim specifics and hopefully will be flexible enough to consider an Indigenous perspective within the context of that — and that is a big element — but also afford itself with the opportunities to address some of the core elements of claims negotiation and settlement. With that, it provides that opportunity and mechanism. It wouldn’t be binding on the parties unless they come to the stage where they find it’s just not going to work out. Then there are other options. But it does provide the mechanism that can provide a menu of services, opportunities and expertise to bring parties together and to at least attempt to come up with a resolution to long-outstanding issues — years, decades for some.

These are outstanding legal obligations owed by the Crown. An important aspect of claims resolution is that these liabilities against the Crown, with the passage of time, are increasing on a daily basis, so it’s for the benefit of all to try to resolve these claims in a more expeditious manner and in a manner that reflects not only international law but domestic law and reflects the history of the somewhat blatant conflict that exists within the existing process.

I hope that addresses your question, senator.

Senator Greenwood: Thank you.

The Chair: The time for this panel is now complete. I wish to thank Regional Chief Prosper for joining us today. We really appreciate his testimony.

I will mention to Chief Prosper and other witnesses to feel free to submit to the clerk, before February 24, any additional documents that you might want to submit.

Before we proceed to our next panel, I want to welcome our newest member, Senator Sorensen.

For our second panel, from the Treaty Relations Commission of Manitoba, we will hear from Elder Harry Bone; Treaty Commissioner Loretta Ross; and Operations Manager Angela McKay. Wela’lin. Thank you to our witnesses for being here tonight.

Treaty Commissioner Ross will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session of approximately five minutes per senator. Due to time constraints, I ask everyone to please keep exchanges brief. To avoid interrupting or cutting anyone off, I will hold up this sign when there’s one minute left on your allocated time. We’ll try to keep things moving rather smoothly.

I’ll now invite Treaty Commissioner Ross to give her opening remarks.

Loretta Ross, Treaty Commissioner, Treaty Relations Commission of Manitoba: Aanii, boozhoo, senators.

The Treaty Relations Commission of Manitoba, TRCM, is pleased to be here on the ancestral lands of the Algonquin and Anishinaabe peoples to respond to your request for a briefing and discussion on our plans and priorities at the Treaty Relations Commission. We are certainly proud of what has been accomplished to date and eager to proceed.

I am Loretta Ross, current and third commissioner in this ongoing undertaking. I am joined by elder, as you’ve heard, scholar, teacher, leader Dr. Harry Bone, and by Angela McKay, our operations manager, who are two of the pillars of this commission reflecting the wisdom and abilities of our First Peoples.

Senators, you represent another pillar in this joint undertaking, this treaty relationship we share in Canada. We are all treaty people here.

So let me brag about what we have been up to together and discuss how much more we must accomplish together.

Most recently, the commission established its Treaty Knowledge Centre, the Agowiidiwinan Centre, which opened on December 15, 2022. Agowiidiwinan is an Anishinaabemowin word that means “treaties” or “bringing things together.”

The centre is located in Treaty 1 territory in the heart of Winnipeg, Manitoba, at the junction of the Red and Assiniboine Rivers. These lands are the ancestral lands of the Dakota, Anishinaabe and Ininew peoples and has become the homeland of the Métis. The site is known as The Forks and is an historically significant location for First Peoples and Canadians. The Forks is Winnipeg’s main tourist destination and experiences over 4 million visitors annually.

The goal of the centre is to become a centre of excellence for learning about the treaties and the treaty relationships as well as a site for training sessions and special events. The project is a partnership between the Treaty Relations Commission of Manitoba and the Forks Renewal Corporation and is made possible through funding from PrairiesCan.

The development of the centre is built on our successes in education and partnerships. The TRCM worked with elders to create the vision for a space that will store and share oral, historical and archival information related to the treaties. The centre itself, as mentioned, is located just steps from where the Red and Assiniboine Rivers meet and where First Nations people camped, lived and traded for more than 6,000 years. We feel the spirit of our ancestors here and think that they are guiding us to move forward together.

One of the centre’s key messages is we are all treaty people, and the commission hopes that the centre will help Canadians increase their understanding and appreciation of treaties and our shared responsibilities as treaty partners. The commission has grown in relevance over time, and its priorities can be expected to evolve.

With respect to education, treaty education is a key success of the commission and remains a current and evolving priority. Since 2010, teacher resources have been developed and implemented into provincial, First Nations local-controlled schools and privately funded schools. A priority of the commission is to have treaty education as a mandatory part of the education curriculum in the province taught at all grades, beginning in kindergarten to Grade 12. We have developed and are also hoping to bring in as a mandatory part of that education a capstone Grade 12 course on treaties, separate and apart from Indigenous study courses, a standalone course on treaties itself. It is to serve as a requirement for graduation for all students within Manitoba.

In terms of the public, over the past few years, requests for public education have gone beyond just learning about the treaties. The public is seeking more engagement and looking for tools on how to take action to support reconciliation. A priority is to offer more treaty education opportunities to increase public engagement and learning. Various speaker series and special public events in the Agowiidiwinan Centre are part of these opportunities.

With respect to government, we also look to work and develop treaty training with governments and government agencies. Public officials and public servants have a significant role when it comes to treaties. Through treaty education, we hope that this will guide government policies and aid in the facilitation of treaty implementation.

Research is a key initiative of the commission and remains an ongoing priority. Oral history is an important component of understanding the treaty relationship, and one of the highlights of our research efforts is a four-volume treaty elders teaching series. This series covers who we are as treaty people, our relations with the land, our relations with newcomers and the idea that we are all treaty people.

Currently in progress, the commission will be publishing Miinigoowisiwin: Our Spiritual and Natural Teachings, authored by Dr. Elder Harry Bone, who is here with me today, and former Treaty Commissioner Elder Dennis White Bird. Miinigoowisiwin provides foundational Anishinaabe teachings that are at the heart of the treaties. The teachings in this publication focus on Anishinaabe sources and help to understand the wisdom and values of Anishinaabe people. We view this as a fundamental part of understanding the First Nation world view and therefore the First Nation understanding of the treaty relationship. This is a critical aspect of facilitating the implementation of treaties as well.

The commission has increasing relevance in the context of reconciliation, and from a treaty perspective, treaty implementation is reconciliation. This is where our future priorities lie and where the commission can take on an active role in its neutral capacity to facilitate treaty implementation research, discussions and much more.

In closing, I want to invite the senators to come to our new Treaty Knowledge Centre, the Agowiidiwinan Centre, in Treaty 1 territory in Winnipeg and experience the beauty of the place and learn from our elders and knowledge keepers.

Meegwetch, thank you very much.

The Chair: Thank you, Treaty Commissioner Ross.

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’m going to open up by asking the first question, Treaty Commissioner Ross, and you may have touched on it in your opening remarks, but I’ll ask it again. It is for clarity. In your view, are there priority areas related to treaties and/or specific claims that could be studied by the Standing Senate Committee on Indigenous Peoples? If so, please explain.

Ms. Ross: Thank you for your question.

The function and role of the Treaty Commissions and what role they can continue to play in the treaty implementation, the mandate of — and I’m speaking about our mandate in Manitoba, which has, of course, education, research and facilitation as part of it. Unlike our sister organization, the Treaty Commission in Saskatchewan, we don’t have a mandatory treaty table which requires the parties to come together. We have a facilitative role, which is a softer aspect to it. So with the roles of the commissions, how the commissions can certainly help to facilitate dialogue to bring the parties together to discuss the issues? What are the priorities of the government? What are the priorities related to treaty implementation? Are there impartial bodies that we can also look to that can help make decisions related to treaty? There are still a lot of outstanding treaty-related issues, talking about the relational aspect of treaties but also the specific Queen’s promises and other types of related issues stemming from the written text of the treaty. I think how we move forward on treaty implementation and what government needs to do to be able to move that forward in a meaningful way, certainly there could be a lot of research done in that area.

The Chair: Elder Bone, do you have anything you’d like to add?

Harry Bone, Elder, as an individual: No. I’ll just stay silent for now. Thank you very much.

The Chair: Okay. Thank you.

Senator Arnot: Thank you for coming here. It’s nice to see everybody.

Elder Bone reminded me that I met him quite some time ago. I don’t know how he recognized me because my hair was jet black at the time, and so was his. It is nice to see you, and congratulations to the Treaty Relations Commission of Manitoba for the good work you’re doing on education.

I’d like to find out more about how you build and expand the mandate. I know you have a role to facilitate. What’s your idea about expanding your mandate? Have you put forward other ideas? I’m thinking, for instance, of monitoring the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, monitoring reconciliation in treaty territories in Manitoba and seeing the treaties implemented in the modern context. I’m just wondering if there are any other priorities that you are hoping to expand.

Your role in education is phenomenal, and congratulations on opening the treaty knowledge centre. I want to accept your invitation. Sometime, we’ll get there, I’m sure.

Ms. Ross: Absolutely. Thank you for the question.

One of the issues that the Treaty Commission has in Manitoba is financial resources. Certainly, we have a limited budget in terms of the work we’re able to do. We spend a considerable amount of it on education and looking for partnerships to be able to expand beyond what we’ve been doing for the last 10-plus years related to education.

On reconciliation and UNDRIP, we talk about those, but we also spend our time focusing on the fact that UNDRIP has said the treaties are already there. Sometimes UNDRIP can be used as a bit of a distraction away from getting to the substantive issues related to treaty. We have the confirmation that the treaties are significant and that they are an important area that needs to be looked at, so we tend to focus on UNDRIP. I think that speaks to perhaps the lack of understanding and awareness of what the treaties are all about. That’s what’s been happening since the treaties were entered into. People don’t understand, so therefore, we tend to focus on other things. Now, we’re focusing on reconciliation. While those are all important aspects, we still sidestep the issue of talking about treaties and what treaty implementation really means. I don’t want to take away from those other issues, but I want to elevate the discussion and understanding about the treaties, and I think that’s what really needs to happen.

People are slowly coming forward — certainly at the knowledge centre, and it’s only been open for a month — and saying, “I don’t know.” The residential schools and what we’re finding out has opened people’s eyes, but people want action. People want to understand what that history is. We heard some discussion about Indigenous law. People want to know what that means. How do we change our society? How do we change the way we interact? I’m not talking about indigenizing, but if we look at that treaty nation-to-nation coexistence relationship, we have to talk about some of those big issues. The fact that we moved from the concept of land surrendered to land sharing changes the complete dynamic of how we relate to each other, and I think that’s where we need to start focusing the conversation and not shy away from it — not put other initiatives out there to detract and take away from really talking about treaties.

Senator Arnot: Are you funded on an annual basis? What is your funding, and when does that come up? When do you get a chance to expand the funding?

Ms. Ross: We are funded on a five-year basis. I know that certainly our oversight is the Assembly of Manitoba Chiefs and Crown-Indigenous Relations and Northern Affairs Canada. Even moving those to longer-term relationships — when you’re working in five-year segments, you have to worry about the funding, or you to worry about partnering so you can create other initiatives. It is a very small budget for the amount of work that the previous commissioners and I have been able to do so far. Going forward, I think there needs to be a more permanent commitment to the work of the Treaty Commissions.

Senator Arnot: Thank you.

Senator LaBoucane-Benson: Thank you so much for your presentations. I had ten questions, and every time you said something else, I wanted to ask about that. The work you’re doing is inspiring, and I think the lack of treaty education in our country is the foundation of the problems we have today. People don’t understand our history and where land ownership comes from.

I know you’re funded federally, and you’re working on treaty implementation, which is definitely a partnership with the federal government, but it sounds like you have an excellent relationship with the province if they’re willing to take your curriculum and embed it in provincial curriculum. I’m really interested in how you managed that, because that’s unique. It’s really unique. Coming from my province of Alberta, I am very interested in how you did that and in the nature of the relationship that allowed you to have a special course on treaties for high school students. Can we take your course? Do you offer it online? I would love to take your course.

Ms. Ross: Thank you for that. Thank you for acknowledging the hard work of the commission.

Each of the commissioners prior to myself did the foundational work. I know that certainly Dennis White Bird worked at developing the materials, and we started small with Grade 5 and then expanded and expanded. What we did purposefully was tie it into the educational outcomes that the province requires. So it’s an easy swap-out of certain issues, and it’s teachable in every subject matter for every grade from kindergarten to Grade 12. You can easily swap things out. We know teachers are super busy and don’t need any more work. It was meant to incorporate and make things easier for the teachers. It hasn’t been mandatory, and it’s still not mandatory. That is one of our priorities over the next couple of years.

We were able to build, and we were inclusive in bringing in those stakeholders like teacher societies and school boards. Everybody was brought in. It wasn’t something we did and pushed, but it was very inclusive of the province, the federal government and all those agencies that are involved in delivery of treaty education. Then we brought it to the teachers to teach in the classrooms and did in a way that, I think, was inclusive and provided a very open and welcoming way of teaching treaty education.

Manitoba has its own history with respect to relations between First Nations people and non-First Nations people, so I think a large part of it was also disarming the fear people have and helping people understand that. We are booked up to two years now in advance to do the training, and so the Province of Manitoba has now become one of our partners. It’s just a fantastic educational teaching system that we’ve been able to develop. We’ve been able to partner with them to provide some financial resources to support the training.

The schools want it. The schools have wanted this. We’ve been doing this since before 2015 when the Truth and Reconciliation Commission was going out and saying people have to understand treaty and Aboriginal rights. The schools were doing it, and I think it was a good acknowledgment of themselves as well that they understood the need for treaty education.

Senator LaBoucane-Benson: I have a little bit of experience working with teachers and developing curriculum around historic trauma. What was your strategy in helping teachers feel safe in that space so they would feel like they could teach the content?

Ms. Ross: We looked to our elders. The elders are a very important part of providing that understanding. They provide the contextual aspect. It’s a two-day training session, and the first part is just understanding and talking about the history of the First Nations people, and it’s done through the voices of our elders. They’re a big part of that teaching and training. I think if you sit with elders, you’re going to feel comfortable almost immediately. The pedagogy — the way they teach — is very welcoming and makes you feel safe and want to understand. Absolutely, having elders as part of that has been a huge reason why I think we’ve been so successful.

Senator LaBoucane-Benson: Thank you.

The Chair: Ms. Ross, what are the priorities of First Nations relating to treaty implementation, and how do these priorities differ between the First Nations in Manitoba?

Ms. Ross: In Manitoba, we have five different nations — linguistic groups — including the Dakota, who did not enter into the numbered treaties with the Crown. They certainly have different perspectives on that relationship with the Crown. For the First Nations people, I think the foundations are similar in terms of talking about Indigenous law and governance systems and what it was pre-treaty and how people related to each other. There are some commonalities in the relational aspect of treaties, whether it’s the numbered treaties or treaties amongst First Nations themselves. It is getting back to those principles and to having those systems of governance recognized so that they can move forward and cut through some of the Western legal systems that are preventing a lot of that right now.

Senator Coyle: Thank you to our guests this evening, and thank you for the work you’re doing. I, too, would love to take up your offer. The work that you’re doing sounds very interesting but also extremely important. Congratulations to all of you for that work, including our gentleman who is remaining silent tonight.

I’m curious about so many things. I know you were here for our first presentation, and one of the things that Chief Prosper mentioned in that presentation was the creation of the independent centre for the resolution of specific claims. You’re all in the treaty and claims business. He talked about wanting to incorporate Indigenous legal traditions and that expertise. Is that something that you have or you draw upon, the Indigenous legal traditional knowledge?

Ms. Ross: Yes, absolutely. We share an Elders Council, the Assembly of Manitoba Chiefs Elders Council. We also go to them for guidance and advice on how we do various things from our education, to research, to partnerships and such. We do rely a lot on our Elders Council, and our Elders Council represents the different linguistic groups within the province of Manitoba as well as the different treaty areas. They are all fluent speakers, they are all very aware of their culture and practices, and so they bring those to us. We ensure that we follow those protocols and those practices and that they’re reflected in the work that we do.

Senator Coyle: That also includes specific knowledge on Indigenous legal traditions as well as other traditions?

Ms. Ross: Absolutely.

Senator Coyle: I know it’s indigenous to the areas where you are, but is it something that could feed into this national effort that is going to have to draw on traditions from across the country?

Ms. Ross: We are reluctant to share our Elders, but absolutely. I think that if we’re going to move in that way, we certainly have to look at the Indigenous law and understand what that means. It’s not Canadian law as it applies to Indigenous peoples; it’s not a tinkering of the Canadian law; it’s Indigenous law separate and apart from those systems. And that’s treaty. That’s understanding those different systems, living and operating side-by-side and coexisting side-by-side. So, yes, absolutely, that’s integral.

The Chair: Ms. Ross, you spoke about a recent treaty elder’s publication. Could you please describe this publication and how this publication will contribute to public education on treaties?

Ms. Ross: Absolutely. I’ll speak for a few minutes; I don’t know if my friend wants to talk a little bit more about it.

Certainly, a big part of understanding the treaty relationship and what’s been missing from understanding treaties is the focus on the written texts. What’s been missing is that First Nations perspective. In Manitoba, former commissioner Dennis White Bird and Elder Bone went across the province of Manitoba to hear the voices of our elders, and they did that over a number of years. I’ll turn to our elder to elaborate, since he was there firsthand.

Mr. Bone: Thank you very much for giving me a chance to say a few words. Thank you, senators.

I think it’s important when we talk about the First Nations history that when the Treaty Commission was established in Manitoba some 20 years ago, we assembled some of the best academics in western Manitoba and professors who were dealing with land claims either on behalf of the government or on behalf of First Nations people. At the end of the day, they told us that our First Nations history has always been told from a different perspective, meaning the European, Western thought, and the English language. They simply told us that it’s our turn to provide our perspective, our side, our languages, our ceremonies and the ways we do things.

That’s what the academics were telling us, so we assembled some of the elders here in Manitoba and spoke in their five or six languages to make sure to understand the true sense of what our people’s history is all about, including the Indigenous law that you are talking about and our traditions. We went to them and spoke in their languages to make sure of that. As a result of that, we published four volumes, a summary of it. I think what is important is the message that they provide. We do have a source of our history. We do have a source of who we are. We were here a long time before the Europeans arrived. We had our own customs, values and laws. I think what’s important is to make sure that perspective is clear.

Thanks to the B.C. First Nations and the Delgamuukw case, the oral history part of it, the Federal Court of Appeal judgment came our way. The Chief Justice told us that the law in Canada is always interpreted from two sources, civil and common law. Now, Indigenous law is coming on the scene. That is what we heard from the previous panel discussions. What is Indigenous law? I think that’s the challenge that we all have and that’s the discussion that has to happen. This is part of what the commission has provided to you: that relationship, that dialogue to make sure that we have an opportunity to provide our source for who we are as people.

We did provide four volumes. Hopefully, most of you can get access to them, because we are quoted there in those passages. Thank you very much for that.

Ms. Ross: If you’re interested, we can provide you with a copy of the four volumes. I think they would certainly be worthwhile.

To add to what Elder Bone was talking about, one of the other initiatives that we had undertaken was a post-secondary course on treaties, and that course was a four-year course. We just finished it last year. It was designed and delivered and accredited by the First Nations Elders Council at the Treaty Relations Commission. We had done work prior to that working with our current post-secondary institutions in Manitoba and came up against typical institutional-type issues related to accreditation and course control and course content control, so we decided we would just do it and we would deliver our own and show that it could be done. We thought that was fantastic, so now we have done it for four years and we’re evaluating it now to see how we can move forward with a course such as that.

Senator Greenwood: I don’t really have a question for you, but I do have a couple of comments.

First of all, I just really want to commend you on the work that you’ve done. The documenting of oral stories, as you spoke about, is so important for those coming behind us. I can really understand why you would focus on education and research. We are all here on a journey to learn, but it’s preparing for those coming behind us that is so important, starting with our children and educating those generations. I know my son, who is 26, thinks very differently about residential schools than I do. It’s a very different reality for him. There are many things, I think, that we have to remember in doing this in this way.

It is also a strategy for addressing the kinds of interface — I always call it “interface of knowledge systems,” because we have our own systems of knowledge in all of its complexity, as do non-Indigenous peoples have their own systems of knowledge. When those come together, how do we find our pathway through that, and together, how do we find that pathway?

What you’re saying really resonates with me, and I really wanted to commend you on that work. I think we should just get a bus, and a whole bunch of us will come to Winnipeg.

An Hon. Senator: You’re close to the human rights museum also?

Ms. Ross: Yes.

Senator Martin: Thank you so much for your testimony this evening. Just from listening to Elder Bone’s words, I can tell that you have just scratched the surface and there is so much more to hear and learn.

Education is absolutely key, so I have a quick question. When you’re working with the teachers, is it through the Indigenous designated teachers in the school, or is it just any teacher? There is a wonderful group of teachers that are nationally organized. They teach social studies and history, and, perhaps, that might be a very interesting partner to get more teachers across Canada to do — in Manitoba, for one, but it could even go nationally. I think it is just a really great initiative. My question was regarding the teachers and how you work with them. It’s with whomever is interested in taking it into their classrooms?

Ms. Ross: Absolutely. We work with all teachers, because we are all treaty people. We are all beneficiaries of treaties, albeit, some more than others, when we think of the treaty partners. But it’s a shared history, and I think it’s important that everybody understand what that shared history is, regardless of your background, whether you’re of British descent — one of the original partners — or whether you’re a newcomer to the country. All of that, I think, needs to be understood to move forward and to have those better relations.

We work with all subject matters. One of the issues that we’ve had is people tend to stick it in Indigenous history, and I think that the caution that I’ve always said is it’s not Indigenous history but all of our history. The problem is that the Indigenous perspective has not been heard. The official history of Canada is that these are land surrender agreements, and so there’s a different perspective to that, and that’s why I said there’s a difference between land surrender and land sharing agreements and how we coexist and work together.

We are certainly open to partnering with different organizations. We’ve had a partnership in the last year — speaking of Indigenous law — with McGill law school. Professor Aaron Mills reached out to us once we taught it and he learned about our post-secondary course with elders, and he’s partnered with us to have an Indigenous law course with McGill. There are certainly opportunities to partner with different entities.

Senator Martin: Thank you.

Senator Sorensen: I am quite engaged in the tourism industry and Indigenous tourism in Alberta, and I’m hoping to get to the conference in Winnipeg, which might be my chance to come and see you. That being said, I am just really curious about the knowledge centre from a tourism perspective, because I do think it’s crucial for the truth part of reconciliation. How are you, for lack of a better term, marketing it?

Ms. Ross: One of our neighbours is Travel Manitoba, so we have left it to Travel Manitoba and The Forks to do that marketing piece. We just go along and keep doing our work and opening it up to others to come in. Travel Manitoba is our next-door neighbour, and they’ve come over a couple of times and brought different journalists from across the country and internationally, as well, to be able to showcase the centre.

Senator Sorensen: The Indigenous Tourism Association of Canada is doing a fantastic job, as well. I’m hoping to get there for part of that conference.

Ms. Ross: Absolutely.

The Chair: The time for this panel is now complete, and I wish to again thank Treaty Commissioner Ross, Ms. McKay and Elder Bone for joining us.

For our last panel, we will hear from the British Columbia Treaty Commission, Chief Commissioner Celeste Haldane; Commissioner Liseanne Forand; Sashia Leung, Director of Communications and Internal Relations; and Mark Smith, General Counsel and Director of Process. Wela’lin. Thank you to our witnesses for being here tonight.

Chief Commissioner Haldane will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session of approximately five minutes per senator. Due to time constraints, I ask everyone to please keep their exchanges brief. To avoid interrupting or cutting anyone off, I will hold this sign up when you have a minute left on your allocated time.

I now invite Chief Commissioner Haldane to give her opening remarks.

Celeste Haldane, Chief Commissioner, British Columbia Treaty Commission: Good day, everyone. [Indigenous language spoken], thank you, merci beaucoup, senators, for inviting us to testify and provide an update with regard to the treaty negotiation process in British Columbia. We are pleased to be testifying on the unceded lands of the Anishinaabe Algonquin territory.

The Treaty Commission is an independent body that oversees the treaty negotiations process in British Columbia. We facilitate the negotiations between First Nations, Canada and British Columbia, commonly referred to as “the parties.” We’re the only tripartite legal body to oversee reconciliation and are mandated to facilitate the modern treaty negotiations process between the parties, provide funding to First Nations in the negotiations process and provide public information and education.

In recent years, our mandate has been enhanced whereby, through the facilitation of modern treaties and modern treaty negotiations, we assist the parties to implement the United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission’s 94 Calls to Action and First Nations title and rights.

By way of a snapshot, there are 29 modern treaties across Canada, eight in British Columbia, seven of which were negotiated through the made-in-B.C. treaty negotiations process.

Maa-Nulth First Nations, which represents five, will celebrate their twelfth anniversary. That consists of Huu-ay-aht, Ka:’yu:’k’t’h’, Che:k’tles7et’h’, Toquaht, Uchucklesaht and Yuulu il ath. Tla’amin will celebrate their seventh anniversary. They were ratified in 2016. Tsawwassen First Nation will celebrate their fourteenth anniversary. They were ratified in 2009. Nisga’a Lisims government, ratified in 2000, will celebrate their twenty-third anniversary. That was the one negotiated outside of our made-in-B.C. treaty process.

With regard to innovations for reconciliation, we take this opportunity to recognize and applaud the federal government for the tremendous work undertaken to strengthen the relationship and shift the negotiations with First Nations in the B.C. treaty negotiations process. We are moving beyond the historic legacies of Crown denial and unilateralism to a new nation-to-nation relationship based on the recognition of rights, reconciliation, respect, cooperation and partnership.

I wanted to highlight some notable policy shifts that have transformed the negotiations process in British Columbia. For instance, there is the recognition and reconciliation of rights policy for treaty negotiations in British Columbia. We commonly refer to that as the RRR policy. It’s contained in the handbook that we have handed out to everyone today, and it’s the first policy that was co-developed between First Nations in the treaty negotiations process, British Columbia and Canada, and, of course, the Treaty Commission was involved to some extent. It also replaces the comprehensive claims policy as well as the inherent rights policy. It also has a provision for co-development of mandates among the three parties, which is a tremendous opportunity and a real advancement.

I also wanted to acknowledge the federal UN declaration legislation as well as the Province of British Columbia’s UN declaration legislation.

Canada’s collaborative self-government fiscal policy that was developed and brought to fruition in 2019 is, again, another significant policy shift when it comes to the renewed relationship between Indigenous peoples in our country and the federal government.

We also want to acknowledge the forgiving and reimbursing of loans in the comprehensive claims negotiation budget, which came out in 2019. This is a total $1.4 billion investment into First Nation communities. In 2018, through Budget 2018, we moved to contribution-only funding. Previous to that, we had loan funding — First Nations would have to take out loans — in the amount of 80%, and 20% was contribution-only funding. We are now at 100% contribution funding.

Also in your handbook, there are a couple of other policies, which are the Principals’ Accord on Transforming Treaty Negotiations, as well as our 94 Calls to Action.

We’re really here to talk about the conditions that are right for success and the opportunities that we have in front of us. Given the fact that there has been substantial policy shifts that have transformed the negotiations process and expedited negotiations, we have the opportunity to conclude treaties in B.C. There are four tables representing eight Indian Act bands that can reach a negotiator’s handshake in the next 12 months. They are Kitselas, Kitsumkalum, K’ómoks and Te’mexw Treaty Association, and Te’mexw is five nations negotiating together. They’re a multi-nation community.

First Nations in B.C. have been strengthening their governance and capacity for over 30 years and are some of the most capable First Nations ready to implement self-governance. However, from our vantage point, the lack of a whole-of-government approach has been a barrier to success. We have seen, though, positive signals that the investment and political and senior public servants’ attention required to conclude negotiations is a priority for the federal government. We also share the same insights with the province, so everyone knows that we continue to carry the message forward that there are tremendous opportunities to conclude treaties in British Columbia.

With the RRR policy supporting self-determination and self-government, it ensures modern treaties are adaptable living agreements and capable of renewal when necessary. The RRR policy explicitly states that negotiations are grounded in the recognition of Indigenous rights and title land and is a framework to implement the United Nations Declaration on the Rights of Indigenous Peoples.

These treaties will be the most innovative agreements to date, will reflect the new RRR policy and the other policies that I’ve noted and will demonstrate the success of all the policy innovations. Concluding the mentioned negotiations will provide for a concrete realization of investment in negotiations and a new path forward for a stronger future for all Canadians.

Concluding these four treaties will undoubtedly establish a nation-to-nation relationship grounded in recognition and reconciliation and will enable a faster and effective closing for the next set of advanced negotiation tables. I raise that because this is important, as the last agreement to come to Ottawa was Tla’amin Nation, concluded in 2012 but not ratified by Parliament until 2016. We cannot see a long delay like this again. It creates challenges within the treaty negotiations process and the First Nations community. For example, First Nations key leaders and negotiators are retiring or nearing retirement, which could lead to a loss of community support, potential opposition and shifting strategies, resulting in stalled negotiations or a loss of the opportunity to have a treaty in that community. Loss of momentum at this time could be permanent given the significant generational change. As well, a delay, such as what transpired with Tla-amin, of any of the four closing tables will have lasting ripple effects and impact the next set of First Nations negotiation tables. Our message is that the momentum needs to continue, especially when treaties and agreements reach Ottawa.

We will continue to urge the entire federal family to understand the role in reconciliation and the role including modern treaties in B.C., and to implement the RRR policy. Where they see the opportunity to innovate and update their authorities to reflect a new nation-to-nation relationship, we encourage the federal government to do so.

When agreement cannot be reached, carve-out solutions can be an interim step to conclude treaties, where some departments and agencies have mandate challenges while protecting section 35 rights. But this is only when a First Nation agrees, and it must not be a forced option. A cautious warning must be given. When departments and agencies follow this model, they risk falling behind in reconciliation and relationship building, and it represents a missed opportunity for innovation. No progress means status quo, which is uncertainty for Canada, British Columbia, as well as the First Nations that have been negotiating for 30 years in the B.C. treaty negotiations process.

[Indigenous language spoken]. That concludes the treaty commission’s testimony.

The Chair: Thank you, Chief Commissioner Haldane.

Before we go to questions, I’ll remind everyone in the room to please refrain from leaning in too close to your microphone, or remove your earpiece when doing so. We will start question with our deputy chair, Senator Arnot.

Senator Arnot: I have a lot of questions.

This is exciting news, and I see that you’re doing cutting-edge work, new and modern treaties. The one treaty that is modern that wasn’t in your process was the Nisga’a treaty. I know that was such a hallmark in Canada with Chief Gosnell. Tom Molloy from Saskatoon was the negotiator on that. I think it’s cutting-edge work. Did that treaty help set a template for other discussions? I’m wondering how that worked. None of these treaties are exactly the same, so I’m curious to know.

You’re implementing seven treaties, and you have 31 tabled. How easy is it, or what are the impediments for other First Nations to come to the table and start the treaty negotiations? How do you oversee 31 tables? It’s all about timelines. One would think that if there’s a template, a model, and it’s successful, and now you’re implementing seven, that you could speed up the timeline to implement.

Where does the Province of B.C. come in this process? How are they involved? Are there any shared jurisdictions, such as on education or anything?

You must have a huge budget. How do you cope with the demand that I’m sure is there? How do you manage that?

I commend you for the good work in setting this template. This kind of thing will allow First Nations people in Canada to come to play a rightful place in the Canadian state via this method. Congratulations.

Ms. Haldane: Thank you, senator. I appreciate the opportunity to be able to respond. I’m sure some of my colleagues will provide additional insights as well.

Nisga’a played an integral and important role for the treaty negotiations process. Of course, we never refer to anyone setting out a template, because every nation has unique needs, unique circumstances, sociopolitical circumstances, but they certainly set a high-water mark for British Columbia to advance a new relationship through a modern treaty negotiation process. I have deep respect for the work that Nisga’a have done in regard to not just negotiations but also the hard work of implementation. That’s also where the rubber hits the road when it comes to the negotiations process.

Yes, there’s a tremendous amount of demand. I’m very grateful that I have an excellent team that is able to provide that facilitation support.

We recognize and thank the federal government for the budget that we received to support the First Nations in the negotiations process, because most comes from the federal government. We appreciate that continued support.

Advancing those tables and looking at the fact that we have a diverse workload, we were able to manage internally with the skill sets of commissioners as well as staff, which makes my role somewhat easier, although there are certain things that keep me up at night, that’s for sure.

With regard to how we envision it, with all of the policy changes starting in 2016 onwards, it has really created and reinvigorated negotiations. For instance, for some of those tables that may not have been participating actively in the treaty negotiations process for whatever their reasons were, we’ve seen a bit of an uptick in nations wanting to reengage in the negotiations process because it’s become more flexible. It’s nimbler through the RRR policy. The forgiveness of loans that came out of the budget was extremely helpful for those nations wanting to move forward. For some of those nations that were looking at other opportunities, whether litigation or pursuing other economic development opportunities, they’ve really taken a look and noticed that there are substantive changes to the treaty negotiations process in B.C.

One of the big changes out of the RRR policy is this whole notion of extinguishment or cede, release, surrender that we see, which for some nations wasn’t really palatable, and rightly so, for their reasons. That has actually fallen away. That’s no longer part of our policy. That’s no longer part of the treaty relationship, because it should be based on mutual respect, cooperation, partnership — living, breathing relationships. That’s what the RRR policy has afforded. Again, nations have reinvigorated their negotiations, have ramped up their negotiations, but also we’ve had one or two new entrants into our process.

Mark Smith, General Counsel and Director of Process, British Columbia Treaty Commission: I would like to add something to the senator’s question, and it’s about impediments.

One that still exists is the length of time and the cumbersome processes, federal processes, mandating processes, here in Ottawa. I think things are being done to address that, but it’s still a very lengthy process. Commissioner Forand could speak to that, having worked here in Ottawa for many years.

I’ve heard the question about possible studies. One that we would suggest you consider would be one that takes a close look at the federal mandating processes, what is meant by “whole of government,” and what is being done in that regard to make sure there is a whole-of-government approach to the mandating process to support the negotiations.

Senator Coyle: You picked up on the question I was going to ask, but I’ll probe a little further.

Thank you all for being with us and for sharing your exciting experiences. It’s encouraging to hear the progress that you’ve described, these substantial shifts in policy and innovations with the RRR policy that you’ve described. The implications of that for progress and for relationship changes the whole game the way you’ve described it.

I think I did hear, just as Senator Arnot did, and now Mr. Smith has reinforced, the two big stumbling blocks — and they’re related — are the slow process, the delays and the stalled negotiations. I think that’s what you said in your testimony. Even though there is a lot of stuff around this, the forgiveness of loans, the new policy, the new relation, all of that is really positive, but we have still got things stuck and not moving the way you would like them to.

I believe that’s also related to the other comment you made, which Mr. Smith also reinforced, which is the concern that there’s talk of a whole-of-government approach, but there isn’t actually a whole-of-government approach. I’d like it if you could unpack a little bit more what that looks like in practical terms for you and what should it look like.

Mr. Smith: If I could, senator, I will give an example. There is a steering committee of federal departments that’s made up of ADMs. We have appeared in front of it before. Rarely is there an actual ADM there. The last time we appeared there was only one from CIRNAC who typically chairs these meetings, and he did a really good job of bringing us in as guests, as witnesses. At that meeting, there were several key departments not even represented, and there were few actual ADMs there. Here on paper is a committee that’s meant to help with the whole-of-government approach, but it was certainly not an enthusiastic committee and certainly not enthusiastic attendance.

Ms. Haldane: Department of Fisheries and Oceans would be a significant area that needs to have the whole-of-government approach reinforced. I understand that there has been some leadership changes, and we’re hopeful and actually have seen some changes at the tables and in negotiations, so there seems to be that commitment. But that has been an impediment to the negotiations process, particularly for those nations that are on the West Coast, which are most, that rely on marine resources for food, social and ceremonial purposes. We need to have them at the table, and they have been absent for a number of years.

Senator Coyle: I am from the East Coast. I get it.

Liseanne Forand, Commissioner, British Columbia Treaty Commission: As someone who has come to this table later than my colleagues here who have many years of experience behind them that I do not, it has really struck me that this process has been going on for 30 years. It’s very promising right now. We all do feel a good sense of momentum, but still it’s been going on for 30 years. At some of the tables I’ve participated, the same negotiator is there for the First Nation for 30 years. They have had children and grandchildren. Meanwhile, government negotiators have been changing annually. Every time there is an election, there is a six-month delay, or a new minister, a six-month delay. It gets to a point where these delays don’t seem to mean anything anymore. As the chief commissioner said in her remarks, there is a generational change happening. If it’s not possible to seize the opportunities that are before us, I think it will be more than a shame. It will be a disgrace, really.

As Mark was pointing out, the complexity of government is not the job of First Nations to solve. They’ve been at the table for 30 years. They have a continuing and ongoing and permanent commitment to the initiative that they’re involved in. If it’s complex on the other side, that is something for the other side to sort out and to get there. I don’t think there is any argument that can be made, and frankly government departments don’t make an argument to this, but 30 years, particularly where there are willing partners on the other side.

It’s true that some tables are more difficult of the 31. They’re not all on the cusp or on the threshold, but for the ones that are working hard at it — and we’re hopeful in the case of the four tables that the chief commissioner mentioned — there is going to be a lot of heavy lifting to be done in government offices between now and the signature of the treaty.

The Chair: Ms. Haldane, what barriers affect the drafting of legislation to ratify modern treaties at the federal level?

Ms. Haldane: Senator, on the barriers, we need to look at our recent example, which is Tla’amin, and that took four years to ratify. A lot of that was political in nature, but if you don’t have that political sign-off, it delays everything else. The issues that the community had faced with regard to the delay of the federal ratification — because that’s the last ratification to happen. It goes to the First Nations to ratify first, and then the province ratifies through theirs, and then the federal government does. When you see significant challenges like that, a lot of nations that were in the process were actually doing a double take as to should we really be committed in this process if our partners across the way are not?I think there are ways to expedite back to a whole-of-government approach and to ensure that there are faster and smoother ratification processes. If there are things that come up, given the fact that these are partners working in cooperation, those discussions should be had immediately and not wait for other processes to unfold.

Senator Hartling: I am very intrigued. You are so inspiring with what you’ve been doing, and you have a lot of courage and have been so positive about the federal government. I have to say that’s commendable.

I heard you say very clearly, and I think you touched on that with what you said, Senator Coyle, that the debt is detrimental when there are these long, slow processes, and you’re afraid of that. I can tell. You’re saying that here and in your point about the whole of government. For this committee, is there something else that you can recommend to us that we might do to help ensure that the processes are quickened or things we can study to look at it? Because probably it’s not just your community in B.C. but there are other provinces and territories that are having these same kinds of things. We have heard some of this before. Is there anything else you might recommend to us that we might take a look into?

Ms. Haldane: I will pick up on my colleague Mark’s point with regard to studies. Again, looking at and focusing on federal processes and a close look at the whole-of-government approach and is enough being done to ensure that these negotiations are moving forward, but also reinforcing how important the commitment is to making progress, the commitment from the top around reconciliation and advancing the relationship and repairing the relationship with Indigenous peoples is of utmost importance. I think that because of the whole of government, everyone has a responsibility in reconciliation. Everyone will have a responsibility ensuring that modern treaties are successfully negotiated and concluded, as well as implemented. There is still a role in implementation.

I think part of this could be looking at areas around the whole co-development of mandates, but more particularly looking at co-management, co-decision making, because I think some of the discussion around the fettering of discretion or ministerial discretion that we find in legislation for some departments is quite scary, and continuing to push them along that — they’re vacating jurisdiction not in a void but the fact that you have a self-governing nation that’s going to be taking up that jurisdiction. That’s what self-determination is. That’s what self-government is about.

If we have antiquated authorities that are not meeting the current needs of both the federal government and the implementing or the modern treaty First Nation, then that needs to be reviewed. I think there are some really good vantage points the committee would be able to look at with regard to, is this working? Is enough being done? Just continue to push forward that messaging that we require everyone to be, as we say, paddling in the canoe together, which is on our pins.

Ms. Forand: Just to add to what the chief commissioner said, the question of co-management of natural resources and shared decision making, as Chief Commissioner Haldane was suggesting, is really a key area in a lot of these for the federal government. The province has other interests that are in the same area but in their own way. It’s a key area in a lot of these treaties, and there is some innovative thinking that is going on at the tables. Personally, I believe it is one of the most innovative areas of public policy today. I encourage young public servants to get involved in this because it’s the way of the future. You can stall now, but eventually — It’s quite exciting, and it’s a really positive development to see communities getting engaged and involved, and these treaties can really make a huge difference over time. If the committee had a specific area that you were looking at, something like that in terms of what’s being done around the world in these areas, what are the possibilities and what do some academics say about how shared decision-making can be not scary but effective with willing partners.

Mr. Smith: I would like to add to what was just said. Indeed, it is a very exciting time, but most of the innovative stuff right now is coming from the province and from the First Nations. There is a key chapter that’s going to set the tone for the future of shared decision-making, and the committee should be aware that. Right now, the federal government is very slow to respond to that. It’s been in the works for a few years. Although the federal government has done a lot of really great things, it’s been very slow and almost silent on this front. We’re getting close to the end where we do need a response from the federal government — hopefully a supportive one — to be part of that treaty. Thank you.

The Chair: Thank you for that.

Senator Martin: First of all, congratulations on your thirtieth anniversary. It is a very impressive report.

In this report, it says that one of the challenges to concluding agreements is the slowness to implement change, particularly where departments require policy reviews of new proposals that have been struck in review for years. So even when there is political will by government, proposals get stuck in prolonged policy reviews. You’ve already articulated how slow and how frustrating it is to have the government come to the table prepared, but can you give an example of a proposal that has been stuck? And when we say “years,” how many years are we talking?

Ms. Haldane: I can give two examples.

One would be a chapter on migratory birds. It was in review for eight years, I think. Now they are finally coming to the table on closing tables. On that, from our vantage point as an independent body, we look at that and go, “Well, one, I don’t understand why that’s even happening, but two, just that inertia to innovate and make change is really a veto on reconciliation.” Departments need to be looking around to their other colleagues that have been innovative.

There is another one — and I’m not going to belabour this point too much — but it’s the Department of Fisheries and Oceans. For the longest time, they were in reviews and weren’t able to have any negotiation discussions. I think that was seven years. Then we’re still having challenges with bringing them to the table now. I mentioned one of the nations, K’ómoks, has actually moved forward with a carve-out, which isn’t great for the federal government because fish is probably one of the main reasons as to why the federal government would want to engage in treaty negotiations in British Columbia — fisheries and marine resources. It is challenging just seeing that inertia again, as well as the protracted reviews and lengthy policy reviews, which I don’t believe really serve that much of a purpose. It has slowed down the negotiation and progress, and it has allowed for the stalling of negotiations at particular tables. These are integral chapters and resources that need to be looked at.

Back to Liseanne’s point, as Indigenous nations that are moving toward being self-governing, they need to have the mechanisms to have those discussions and negotiations while again moving forward toward co-management and co-decision-making. If you’re seeing that kind of unwillingness to come to the table around policy reviews, I think there are going to be challenges as they move forward in their relationship and partnership around co-managing and co-decision-making.

The Chair: Thank you for that.

The time for this panel is now complete. I wish to again thank Chief Commissioner Haldane, Commissioner Forand, Ms. Leung and Mr. Smith for joining us today.

(The committee adjourned.)