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

12:25 p.m.

Conservative

The Chair Chris Warkentin

Thank you very much.

Mr. Wilks, you'll have five minutes.

12:25 p.m.

Conservative

David Wilks Kootenay—Columbia, BC

Thank you, Chair.

Thank you, gentlemen, for being here today.

I would like you to go back to page 12 of the notes you provided to the committee, specifically to this: “While the complexity of the issues often leads to extensive negotiation time and expense, we continue to look for ways to improve these processes and to expedite the conclusion of agreements...”.

That's where my question comes from. What is your department doing to improve implementation of the modern treaties? Can you expound, each of you, on what you're trying to do so that we understand it?

12:25 p.m.

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

Patrick Borbey

Thank you.

This is really a two-part question, because we are looking at ways of improving the treaty-making process, but we're also actively working on ways of improving our implementation of modern treaties. I will turn in a second to my colleague, Mr. Gagnon, who is the king of implementation in our department.

In terms of improving the negotiations, one of the things we're looking at is whether we need to have closer accountability and reporting with respect to progress at the table—I alluded to this a little earlier—and better linking of financial commitment efforts with results and outcomes. That's certainly something we want to spend more time on. On an annual basis, the minister reviews the progress at each table. We are now looking at increasing that frequency so that there is even more accountability for progress.

That's one area.

Another area is that we think that our negotiators should perhaps be advancing the tough issues a little bit earlier in the process. The traditional approach is to start the negotiations, build trust, build credibility between the partners, and build the capacity in the community to be able to absorb the changes, but leave some of the tough issues until later on.

In some cases, this has worked. I think somebody told me that in the Nisga'a case, that kind of approach really did work: they built the trust, and it eventually led to a treaty.

I think we have achieved a level of sophistication now such that we should be able to put forward tougher issues earlier in the process, so that we find out right up front if there is going to be too much of a gap at the end of the day. Then, both parties or all three parties know where they stand, rather than leaving some of the tough issues to be dealt with later on.... That's one area we're exploring.

I'd like to ask Steve to comment now on implementation.

12:30 p.m.

Stephen Gagnon Director General, Implementation Branch, Department of Indian Affairs and Northern Development

Thank you, Patrick.

Thanks for the question.

By way of context, land claim implementation has been fairly heavily scrutinized over the last decade or so, I would say. The Auditor General has made a number of reports. Those reports have been picked up by various parliamentary committees. The public accounts committee of the House and the Senate committee on aboriginal affairs have looked at various aspects. The Land Claims Agreements Coalition, which is a group representing each one of the land claimant groups, has made representations.

I don't want to oversimplify, but the theme was that Canada needed to do a better job of implementing land claims. It was constructive criticism that we've taken to heart. We realized that we needed to organize ourselves better internally.

Among things we would look to improve was intergovernmental coordination. You may or may not know that in order to get a treaty, we need to go through a very robust intergovernmental approval system, whereby we need to go to cabinet a number of times and we need to consult with a number of departments.

There's a committee of senior ADM-level officials, which Patrick chairs, that looks at issues concerning negotiation. We've tried to adapt that existing committee to also now start looking at implementation issues, so that we can start getting the same kind of scrutiny for post-effective-date issues that we had before.... We've also piloted some regional caucuses to make sure that people in the NCR are communicating with the people in the departments at the community level, where they actually do the work, to make sure that the messages are consistent.

Another area in which we thought we needed to do a better job and which we have looked at improving is communicating roles and responsibilities to colleagues in other departments. Our department is responsible for managing the obligations, but many departments have direct responsibilities for fulfilling aspects of land claims, such as Fisheries and Oceans and Natural Resources Canada, for example.

We are trying to develop tools. In May, we published and put online a general guide for implementers to set out roles and responsibilities and to talk about where you can get information and that sort of thing. It talks about the federal process. We're pleased with the reception we're getting with that.

This has also given Patrick and me an opportunity to make presentations to departments that want to get a better sense of where they fit into the implementation scheme and where we do.

The other area in which we are looking to make improvements concerns how we report and monitor on land claim agreements. In 2008, I believe, Treasury Board issued a contracting notice that required all departments that do contracting in any land claim area to report on that contracting. Our deputy is responsible for posting those reports, but each department needs to now record when they spend money, even in some cases up to using credit cards, in land claims areas.

We have developed something web-based that we call CLCA.net. It includes a public report to which we post quarterly and annual reports.

12:30 p.m.

Conservative

The Chair Chris Warkentin

I apologize. I'm going to have to jump in. We've overrun the clock a bit, so I'm going to turn to Mr. Rafferty for five minutes.

October 27th, 2011 / 12:35 p.m.

NDP

John Rafferty Thunder Bay—Rainy River, ON

Thank you very much. I have a very quick question.

Thank you, Chair.

Thank you, witnesses, for being here.

This is probably a question for Mr. Gagnon.

You talk about the certainty of rights for all parties as one of the things you do in transferring title and in dealing with relationships with other governments. You said an interesting thing just one moment ago, Mr. Gagnon, about managing the obligations and, I guess, the outcomes.

Just to help me understand whether it involves a treaty or a specific claim, for example, from a numbered treaty or a numbered reserve, what is the ATR system, the attached to reserve system? Can you explain what it is and the process by which it works, if you're the right person to do that? Or Mr. Barkwell, or anybody...?

12:35 p.m.

Director General, Implementation Branch, Department of Indian Affairs and Northern Development

Stephen Gagnon

I could take a stab at it. It's another part of our department, but I don't want to give you the bureaucratic answer. The ATR is the additions to reserve process. It is really a process that applies--often in the specific claims in the treaty areas--because there was unfinished business in terms of making sure that the lands were transferred, but it's also a process by which you can add reserves that aren't laying specific claims.

I don't know whether that helps to answer your question, but it is the means by which we add lands to reserve, and there's a specific context, as you said, in the numbered—

12:35 p.m.

NDP

John Rafferty Thunder Bay—Rainy River, ON

In the treaties you are talking about and dealing with, does that same process happen? When you make a settlement, is there a possibility, as part of any cash outcomes that they might receive, for example, for them to increase the size of their treaty lands or...?

12:35 p.m.

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

Patrick Borbey

I can address that, because at the end of the day, our objective in signing treaties is to get people out of the Indian Act. The ATR process is an Indian Act process. When a treaty comes into effect, for the lands that are provided, whether they're previously reserve lands or new settlement lands as part of the treaty, the lands that the first nation owns will be completely outside of the Indian Act. They will own it in fee simple and then it's up to them to decide how they want to manage it. They no longer are under any responsibility for the Indian Act.

So in addition to reserve process, it's really related to decisions that are made, and quite often specific claims: land that was not provided in the past or was improperly taken away and that's returned, or that the first nation can buy on the open market. Therefore, it has to meet all the Indian Act requirements. There are environmental requirements. There's a requirement for agreements with neighbouring municipalities for servicing. There are tax issues. A number of issues that have to be resolved before that land can be formally added to the reserve.

It's a process that takes a long time--too long--and it is something that is under the responsibility of one of my colleagues, Sarah Filbee. You may want to consider a question in the future on this issue.

12:35 p.m.

NDP

John Rafferty Thunder Bay—Rainy River, ON

Thank you very much.

If I have some time left--

12:35 p.m.

Conservative

The Chair Chris Warkentin

You have two minutes.

12:35 p.m.

NDP

John Rafferty Thunder Bay—Rainy River, ON

--I think Mr. Bevington has something to add.

12:35 p.m.

Conservative

The Chair Chris Warkentin

Sure.

Mr. Bevington.

12:35 p.m.

NDP

Dennis Bevington Western Arctic, NT

Thank you for joining us today.

In the Northwest Territories, certainly, we have a lot of things going on within your department. One of the problems that people from the claimants groups come to me with is the lack of continuity with the negotiators from the federal side.

We're dealing with processes where the claimants groups are borrowing from their likely cash settlement at the end. We see the negotiators change. We see the progress of their claims slow down. Is there a fair way of dealing with the people in terms of who is responsible for the pace and cost of these negotiations? There's a question of the--

12:35 p.m.

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

Patrick Borbey

Yes, you have a number of elements there.

In terms of the negotiators, it's a mix. We have full-time public servants who are hired as negotiators and work on specific files. Sometimes they leave the negotiations at tables. In other cases, the minister names a chief federal negotiator--somebody under contract--and quite often it's for the higher-profile, more difficult tables. Sometimes it's towards the later part of the process, when we need a closer, in some cases, somebody with a lot of private sector experience.

We have a mix of the two and we provide direction to both. They work under our direction. They work under the same kind of mandate that's approved by cabinet. So that's a little bit of the mix.

In the case of the north, yes, it is a bit of a challenge to find qualified negotiators. We had a negotiator on the Dehcho process for many years; you know who he is. We were sorry to see him leave for personal reasons--nothing to do with frustration over the process--but we've picked up with staff negotiators since then. Actually, I'm quite surprised at the progress that we've been able to make, because I was worried also about that table.

So yes, that is an issue in terms of continuity when we're using contracted negotiators.

On the issue of the overall cost, yes, we do insist on seeing work plans--and realistic work plans--on what can be achieved: how many meetings; what can be done between meetings by technical working groups; and how we can reduce costs associated with travel by doing more video conferencing--which is a little bit difficult, sometimes, to accept, but sometimes the logical thing to do is to quickly touch base.

We are looking at ways to reduce that cost for us, as well as for our partners, first nations, or territorial and provincial governments.