Evidence of meeting #9 for Aboriginal Affairs and Northern Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was first.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Patrick Borbey  Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development
  • Jim Barkwell  Associate Director General, Negotiations - West, Department of Indian Affairs and Northern Development
  • Perry Billingsley  Director General, Policy Development and Coordination, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development
  • Stephen Gagnon  Director General, Implementation Branch, Department of Indian Affairs and Northern Development

12:05 p.m.

Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development

Patrick Borbey

Yes, everybody had envisaged that we would be further along in the B.C. treaty process than where we are right now with two agreements, plus Nisga'a, which was reached before under different terms.

However, we have a fair number of agreements that are well advanced. There are about five at the final agreement stage. There are good prospects for further treaties to move forward. The minister just signed the Sliammon final agreement last week, and we have made a lot of progress towards the Yale first nation treaty, which we hope we'll be able to put before you at some point. The government will decide what the timing is in terms of bringing that forward.

The vast majority of the other negotiations are at the agreement-in-principle stage, and some of them are at the very advanced agreement-in-principle stage. So we think there's kind of a wave making its way through the system, and we're hopeful that we'll be able to have a lot of progress over the next two years.

We're also hopeful that Mr. Lornie will be able to report based on his consultations with all first nations--“common table” first nations, first nations that are in treaty, first nations that are not in treaty--and he'll be able to give advice to the minister and to the government on ways we could further improve and further accelerate the process.

12:05 p.m.

Conservative

Rob Clarke Desnethé—Missinippi—Churchill River, SK

Could I get further clarification? Overall, why do treaties take so long?

12:05 p.m.

Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development

Patrick Borbey

Well, they are pretty fundamental changes in status for the first nation. They're fundamental for Canada, they're fundamental for the province, and they also are extremely important for the first nation. Basically, there's a huge amount of work that needs to be done by all parties to achieve success on a treaty.

There are some capacity challenges that have to be met. A lot of the first nations in B.C. that we're negotiating with are fairly small. That's the way the structure is in B.C. We also have to be realistic as to what can be achieved within those communities.

Those of you who've heard or met Chief Kim Baird from Tsawwassen First Nation would be very impressed with the work they've taken on over the last few years to make that treaty a reality. This is a community of 400 people, and it's a huge amount for them to take on.

It does take time. I've heard first nations or aboriginal groups say that it takes too long and that we should move more quickly. I've heard others say that we shouldn't go so quickly, because this is a fundamental shift for them and they want to be able to work in step with us and be ready to take on all this new responsibility.

That's a bit of an answer, I guess.

12:05 p.m.

Conservative

The Chair Chris Warkentin

Thank you so much.

We'll go to Ms. Bennett, for seven minutes.

12:05 p.m.

Liberal

Carolyn Bennett St. Paul's, ON

Thank you very much.

Thanks to all of you for coming today. You have to bear with us: it's a steep learning curve for some of us. I may know a little bit more about the social determinants of health, but this is new.

However, I was very impressed with the briefing on the EU marine region, mainly because of the agreement on the shared territory in terms of traditional hunting and fishing and the fact that it was actually carved out and designated as such with a co-management plan, and it seems to be a pretty straightforward agreement.

Therefore, I was concerned about the Yale treaty. It is sort of what you were saying at the end, Patrick, in terms of the Goldilocks of your job: too hot, too cold, too fast, too slow. It is rarely just right for people on all sides. I was concerned to hear that the Stó:lo people are feeling that their traditional hunting and fishing rights have not been honoured, that there hasn't been a carve-out, and that they're worried they would need to have permits from one band to carry out what they've been doing for 10,000 years.

I would like to know the process for these areas that are contentious. What does it take for you to green-light a treaty when there's such objection? It sounds as if there are probably one or two or three amendments to the Yale agreement that could make it work. It's not about stopping it; it's a matter of actually finding those accommodations.

12:10 p.m.

Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development

Patrick Borbey

Thanks.

It's an excellent question, because I think the overlaps create a lot of issues as we move forward in treaties. I don't think we'll ever find a situation in which every single person will be in agreement that all of the rights have been properly dealt with. That's the nature of traditional occupancy of the land, especially in British Columbia: if you've seen it, it's not even a puzzle picture, because all of the pieces are overlapping.

It's a huge endeavour. We do have some approaches and mechanisms. Some of them are legalistic in terms of how the agreement is structured. There is a non-derogation clause to ensure that the future rights that may be asserted by neighbouring first nations are not forgotten. There are some ways of dealing with it within the agreement. In coming together, in terms of the agreement, we've had a number of initiatives to deal with the Stó:lo claims and others.

I would like to ask Mr. Barkwell to explain, very briefly, what we've done in the case of Yale.

12:10 p.m.

Jim Barkwell Associate Director General, Negotiations - West, Department of Indian Affairs and Northern Development

Thank you. I will try to be brief, but there was a very extensive consultation process and three years of work to address the question the member raises.

We started in 2008 and involved over 60 first nations that are in the Yale area. We mailed out information to them and offered them an opportunity to meet with us and provide their views. A year later, we provided the final agreement to them so they would have that as detailed information, and we did the same thing.

As a result of that process, which was a joint one between me—I'm the senior federal representative on this particular file—and the provincial senior representative, we offered to have consultation meetings with those who were interested in providing detailed input to us.

We had 11 such meetings. As a result of that, we made several adjustments to the actual Yale treaty agreement, in addition to the things that are already built into our treaty model to protect the interests of other first nations, such as the non-derogation clause that Mr. Borbey references.

We are very careful in terms of land selection. We chose lands that we added to the Yale Indian reserves that were near the reserves and, as much as possible, away from areas where other first nations have interests. We specifically excluded one area known as the Yale beach, which is a public access area that allows fishermen to enter onto the water to exercise their fishing rights. We did that early on.

As a result of the consultation process and the input we received from Chief Joe Hall, whom you may have met, and other Stó:lo representatives, we made several other adjustments. We reduced the harvesting area—that's where they can hunt, fish, gather plants, and so on—to exclude Harrison Lake, because one first nation indicated an interest in that area. Chief Hope of the Yale agreed with that. We designated one area of new treaty settlement land known as Frozen Lakes as public. In the treaty, that's identified for public access so that other first nations and the public are able to go onto those lands. Some of those lands are culturally significant to first nations.

The third measure we undertook as a result of the consultation is an access protocol, which is an actual treaty provision we put in to indicate that access may be requested by any individual and that Yale may not unreasonably refuse to grant that access. This was done—and it applies to all people—particularly bearing in mind the interests of the Stó:lo representatives who had given us input. The standard backstop we have is the non-derogation language, which essentially asserts that no impact on other first nations is intended as a result of the treaty provisions. Essentially, if in the future a court determines there has been an adverse effect on a treaty provision, that provision will operate, or will be amended, so that it does not adversely affect that right.

I will just mention a couple of other things very quickly. The dispute or issue between Yale and some of the Stó:lo groups exists today. It isn't just a treaty-related issue, because it pertains to the Indian reserves themselves and a different view that the Stó:lo have in terms of how those reserves should be handled, even though they are currently held by the crown on behalf of Yale.

There is a reasonable point to be made that, through this treaty provision that I mentioned, the access protocol provision, the Stó:lo in a post-treaty world will have a higher level of access to some of the lands that are in contention than they do currently under the Indian Act.

Secondly, Chief Hope has made some public comments. He has indicated that--and I will tell you how he was quoted in some newspaper articles--the process of permitting, which is not currently accepted by the Stó:lo groups, may not “be imposed right away, if at all”. He said, “It may be better to put that aside”. Essentially he is saying that another option would be to have direct talks with families who have traditional fishing sites in the canyon. He is quoted as saying, “I'm hoping between then and now to sit down with [Chief] Joe Hall and others to talk in a reasonable manner and plan things out for Stó:lo people to come up to Yale.” Those are the chief's own remarks about how he is open to having an outside protocol or some other arrangement that would be suitable.

In that regard, the last point I will make is that we do have funding available through a process called treaty-related measures. We are providing funding to Yale in order to develop some work on the fisheries protocol.

12:15 p.m.

Conservative

The Chair Chris Warkentin

Thank you very much. I extended the time a little bit because it's an issue that I think many of us around the table are quite interested in.

Mr. Ray Boughen for seven minutes, please.

12:15 p.m.

Conservative

Ray Boughen Palliser, SK

Thank you, Mr. Chair.

Let me add my voice to my colleagues' in welcoming you here and thanking you for taking time to spend part of your day with us.

When we look over what happens with some of the treaties, and how they are devised and put together, some of the questions that come to mind are things like how much debt the first nations will accumulate through the B.C. treaty process, the loan-handling process. We know there are costs involved here. What are those costs like? Can you share with us what the costs are and how the money is spent?

12:15 p.m.

Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development

Patrick Borbey

Thank you.

Yes, through the special circumstances in the B.C. treaty process, the BC Treaty Commission makes the decisions, on an annual basis, on the amount of loans that are to be issued to each of the first nations. The federal government is responsible for those loans, but the BCTC is delegated or empowered to do that.

So it is an issue that's of concern in terms of the growth and size of the loans, and whether this information is always as transparent as it should be for first nation members who may not realize what kind of obligations they may be accumulating for future years.

The loans, as you probably know, are paid off at the signing of a treaty against the capital transfer. We're quite concerned when the capital transfer-to-loan ratio starts getting a little bit high to make sure that, at the end of the day, there is going to be some significant net benefit--funds out of the treaty that can be invested by the first nation in economic development, for example. In some cases, I think we're reaching a fairly high level, and we're monitoring that very closely. In a lot of cases, it's fairly low. It's still manageable, although that doesn't mean that it's not a concern.

One of the things the federal government has done is suspend the accumulation of interest for the loans up until 2014, so that there's not an added burden on the first nations while we continue negotiations. We've taken some measures there and the department is absorbing the loss in terms of the forgone interest.

In regard to the implications of the impacts, it's an issue that we're going to need to look at very closely. We are also going to need to renew our authorities in this area within the next couple of years. So we'll be coming to the government with advice on how this should be handled in the future. That's certainly a big issue and, if there are some specific questions related to the B.C. process, I can ask Mr. Barkwell to add to that, if you need more.

12:15 p.m.

Conservative

Ray Boughen Palliser, SK

I'm just wondering what the dollars are spent on. There seems to have been a large number of dollars spent, and I'm wondering on what.

12:15 p.m.

Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development

Patrick Borbey

The accumulated loans total right now for the B.C. treaty process is $424 million. That's across all the first nations. That's the current situation.

12:15 p.m.

Conservative

Ray Boughen Palliser, SK

And those dollars were spent in travel, meetings...?

12:15 p.m.

Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development

Patrick Borbey

Every year there has to be a work plan presented at the table and approved by all three parties, and that work plan then determines the level of funding. So you're right: it will be driven by the travel that's required. In cases where there are isolated communities, for example, that might be a bit expensive.

You have legal counsel and negotiating teams that are funded for the first nation. You have the frequency of meetings. The intensity of the meetings will also drive some of those costs.

We try to review that to make sure it stays reasonable across the country and that there's a comparable level of funding. We try to match the funding as much as possible with performance of the tables. We're starting to try to do a better job of monitoring the tables on a regular basis and reporting to the minister on progress and the cost associated with that progress.

12:20 p.m.

Conservative

Ray Boughen Palliser, SK

What was Canada's response to the common table proposals?