Indigenous and Northern Affairs Committee on Dec. 6th, 2011

[The Chair, Conservative, Chris Warkentin]

We'll call this meeting to order. This is meeting number 18 of the Standing Committee on Aboriginal Affairs and Northern Development.

Today, colleagues, we have the Land Claims Agreements Coalition before us. They are going to bring us opening statements. Mr. McKay, I understand you have an opening statement as well as Mr. Kunuk. Is that correct? Wonderful.

If you would begin, either of you, and make introductions.... Usually we give approximately 10 minutes. We'll go overtime. We're happy to do that if it takes us beyond that. It just limits the amount of questioning that our colleagues can do.

We'll turn it over to you. Begin with your introductions and opening statements, and then we'll proceed. Thank you.

[Kevin McKay, Chair, Nisga'a Nation, and Coalition Co-chair, Land Claims Agreements Coalition]

Thank you, Mr. Chair. Good morning to the honourable members of the committee.

My name is Kevin McKay. I am the chairperson of Nisga'a Lisims Government. We are the government of the Nisga'a Nation, and we hail from beautiful northwestern British Columbia. I bring you greetings.

With me today representing the Nisga'a Nation are my colleagues: the chief executive officer of Nisga'a Lisims Government, Mr. Fred Tolmie; and our general counsel, Mr. Jim Aldridge. Also with me representing the Land Claims Agreements Coalition this morning is Grand Chief Ruth Massie from the Yukon, David Kunuk from NTI, and Alastair Campbell, who is also with NTI.

First of all, Mr. Chair, and to the members of the committee, I want to express our appreciation for the request to make a submission before the committee as the Land Claims Agreements Coalition. Unfortunately, in terms of logistics, we were not able to meet the timelines with respect to submitting copies of our written presentation for your reference. However, with that in mind, the presentation today will hopefully give you more insight into what the Land Claims Agreements Coalition represents. More specifically, Mr. Chair, we would like to address some of the issues that we deal with on an ongoing basis in implementing our respective land claims agreements and self-government agreements in our communities, in particular the way in which it pertains to the subject matter the committee is presently studying. That would be in the areas of land use and sustainable economic development.

First of all, I will give you a bit of background information on the Land Claims Agreements Coalition. We were formed in 2003 as a direct result of a national conference in 2003 entitled “Redefining Relationships”. It became very evident in that conference that all of the aboriginal and Inuit groups that had achieved either modern land claims agreements or self-government agreements were dealing on a regular basis with the challenges around implementing our respective land claims agreements. We've been together since 2003. We continue to have the common objective of pursuing a national policy on the effective and efficient implementation of our respective modern land claims agreements.

You will all recall, Mr. Chair, and through you, the committee, that in 1973 the landmark decision known as the Calder case had opened the door for modern land claims negotiations and subsequent modern land claims agreements in Canada. As a result of Calder, the first modern land claim agreement in Canada was reached in northern Quebec with the Cree in 1975. Since then, some 24 modern land claims agreements have been reached across Canada. For your information, Mr. Chair, all of the governments and aboriginal and Inuit groups that have achieved modern land claims agreements since 1975 in Canada are members of the Land Claims Agreements Coalition.

There are two co-chairs of the coalition, and it's been that way ever since we formed in 2003. The Land Claims Agreements Coalition is comprised of either first nations or Inuit. As a result of that, a decision was taken in 2003 that the co-chairs would represent the Inuit groups and the first nations groups. By way of further information, the co-chairs back then were—and continue to be at the present time—the Nisga'a Nation, representing the first nations groups in the coalition, and NTI, representing the Inuit groups. We remain as co-chairs.

The combined land mass and resources that are represented by the Land Claims Agreement Coalition represent approximately half of the land mass in Canada. I think that's a really significant point in terms of what the modern land claims agreements afford each of us in our respective situations to work with, in cooperation with Canada and, depending on our situation, either the provincial or the territorial governments, which are also parties to each of these respective agreements.

At this time, Mr. Chair, I invite my colleague, Mr. Kunuk, to provide further information. I am sensitive to the time issue here, and I want to give him an opportunity. Then hopefully during the exchange in questions and answers, we can bring up specific examples to help the committee better understand what we want to leave with you today.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. McKay.

Go ahead, Mr. Kunuk.

[David Kunuk, Director of Implementation, Nunavut Tunngavik Inc., Land Claims Agreements Coalition]

Thank you, Mr. Chair.

Thank you, Kevin.

As Kevin mentioned, there have been great strides and struggles that we've encountered through the last number of years, and I think he's done a good job of introducing who we are. There have definitely been great strides in making our agreements into reality, but there have been many fundamental flaws, and that's why we're here. Otherwise we wouldn't be here.

This could be contested through the Auditor General's report. She also recognized that there is a flaw in the implementation process. Implementation policy is a must from our end of the view. There have been many reviews and reports outlining issues that we have encountered as a group, and there has been litigation that has been started because of the issues of implementation.

I think we all want to avoid litigation, but in the case of NTI, we felt there was no other choice but to pursue that route. We've tried arbitration; we've had a conciliator come in because of lack of agreement to our funding agreement. We've also had two independent reviews showing the lack of implementation. This is not just in the case of NTI; this is very similar all across the board. Plus we turned to litigation, and that's where we are today.

Absence of proper funding in many areas creates inconsistency, and the very fundamental area where you want to see certainty is not there because of lack of implementation. When it comes to economic development and environment, those two are of major importance to land claims groups. With proper certainty of funding will come proper certainty, which would enhance what the Government of Canada is trying to do.

A lot of our objectives across land claims groups and treaties are very similar in nature. Self-reliance, wildlife, and environment are key areas of major importance. From our perspective, proper funding in all areas is a must for us to give you certainty in what you are pursuing.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We're going to begin our rounds of questioning.

Ms. Duncan, go ahead for seven minutes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Thank you very much for attending. I appreciate your presence here and the background materials you've provided both today and over the last several months.

I want to first congratulate you for the formation of your coalition and your continued work together. I think that's a way of working that deserves to be commended.

My first question would be to the chair. Mr. McKay, welcome.

As far back as 2009, concerns have been raised, including those you issued in a press release, Mr. McKay, with regard to frustrations with the government's failure to actually implement its obligations under the land claim. You'd expressed concerns that the government was neither fulfilling its obligations nor following the spirit and intent, and that it was very difficult to move forward with economic opportunities when you didn't get the basic funds promised under the agreement for basic infrastructure, education, and so forth.

Mr. McKay, do you feel the government has taken any action since the coalition expressed its concerns two years ago, or do you still hold the same concerns?

[Kevin McKay]

Thank you for the question.

Since we made those statements in the media, the situation has remained the same. It hasn't changed. We are continuously frustrated in our respective experiences in attempting to maximize the opportunities provided in our modern land claims agreements. This frustration comes back to the lack of a clear policy in the area of implementing our respective land claims agreements.

The coalition has continued to communicate four main points whenever and wherever necessary. First, we remind Canada that it is Canada and not the Department of Aboriginal Affairs and Northern Development that is a party to our modern land claims agreements. Second, if these modern land claims agreements are to be effective, they have to meet objectives, not just obligations. Third, we strongly believe that in order for the federal system to be more effective and efficient in how it meets its obligations to our respective land claims agreements, that implementation has to happen at a very senior official level that represents Canada. Fourth, we want everybody to understand that to objectively evaluate the performance of all parties, we strongly believe an independent body responsible for overseeing implementation of our modern land claims agreements needs to be set up by the Government of Canada.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you very much.

Mr. Kunuk, I understand you have raised the concern that you haven't had an implementation negotiator since 2004. The government has refused 17 formal requests for arbitration and has refused to endorse the 2006 conciliation report. You've mentioned the fact that you felt forced to litigate.

In what way have these failings of the government prevented you from achieving sustainable economic development?

[David Kunuk]

It's a very good question.

As I mentioned, certainty is a big issue, whether from the government side or in land claims agreements. Because of the lack of certainty, procedures that outline what is supposed to be there are also lacking or are not clear, all due to a lack of investment by the Government of Canada in these institutions of public government, as in the case of NTI. The institutions of public government have been struggling and haven't had the resources they need and have requested from the start, so they're always a step behind where they should be. They're stalled in trying to meet their objectives. They're under capacity.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So these are not additional funds you're asking for. These are the resources that, according to your understanding, were committed when you signed the land claims agreement. Is that correct? What would those funds be for? Would they be for education? Would they be for economic development? What would they be for?

[David Kunuk]

What I'm referring to are resource boards, environment, land. These amounts of money are less than what was requested. After Berger came and made a recommendation, they got bumped up a little bit, but it was still below what each institution of public government wanted. Thus they're always playing catch-up. So it may not be to the best standard at this point.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

We're trying to assess, in this review, what kinds of opportunities and constraints there are, so that our first nations and Inuit communities can participate more effectively in economic development, contribute to the economy, and benefit from it.

I would throw out a broad question to all the coalition members. What specific actions would you say are needed to enable you to move forward in economic development and the development of your lands and resources?

[The Chair, Conservative, Chris Warkentin]

There's just a short amount of time left. I'm not sure you'll get to the full answer. But if you could abbreviate an answer, and then if there's another chance, I'm sure Ms. Duncan's colleagues will ask for an elaboration.

Was that directed at anyone in particular, Ms. Duncan?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

It could be to the grand chief, but anybody we haven't heard from could answer.

[Grand Chief Ruth Massie, Grand Chief, Council of Yukon First Nations, Land Claims Agreements Coalition]

Good morning, committee members.

I'm Ruth Massie, grand chief of the Council for Yukon First Nations. For our region, one of the most important issues is the implementation of our land claims agreements. It is not adequate right now. We do not have adequate funding. The most important issue for us, in order to start addressing economic development in a sustainable way, is land use planning.

When we signed our agreements, there was a Yukon land use planning advisory council set up with three members. One member was appointed from Yukon first nations, one from the Yukon government, and one from the federal government. They decided there were eight regional land use planning processes to be engaged. At the time, there was approximately $10 million put forward, in today's dollars. They started the land use planning in north Yukon, where there isn't much of a population. They started that process in 2004. They completed it last year. There was considerable contribution from the first nation financially and in kind. That used most of the money from the land use planning. There was a second one started, the Peel River plan. Right now we have a heavy mining industry process happening in the Yukon for economic development opportunities. That plan is finalized, with recommendations for change. The plan is complete but has not been approved. There is a lot of opposition to the plan for the area. That leaves six regional plans left to do with just $2 million.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair, and my thanks to the witnesses for coming out today.

I had the pleasure of meeting with you and talking to you about some of your issues. As someone who's new to a lot of these issues, I want to fill in some of the gaps in my knowledge. I understand that comprehensive land agreements cover a wide variety of issues that would include land, water, natural resources, and various other things.

First of all, what issues does the land claims coalition represent with respect to the land claims agreements? Second, how is your mandate determined? I know you're made up of members who are signatories to modern treaties, but how is the land claims coalition's mandate determined?

That question is open to anybody who wants to take a stab at it.

[Kevin McKay]

Thank you, through you, Mr. Chair, for the question.

The Land Claims Agreements Coalition was formed in 2003, as I indicated in my opening remarks, and since then we have had an annual leadership meeting, which usually takes place in Ottawa. Our most recent leadership meeting was in February of 2011. At these annual leadership meetings, one of the priority agenda items deals with the ongoing mandate of the coalition. Obviously, as the coalition is still together, that mandate continues as it began, back in 2003.

Again, if I had to summarize it in one statement, what we are advocating for is a new national policy for the effective implementation of our respective modern land claims agreements.

[Kyle Seeback, Conservative, Brampton West, ON]

Do all 24 members come to these annual meetings? Is that how that is arranged and from what your mandate is determined?

[Kevin McKay]

Yes, that certainly is what we would like to happen. Obviously, from time to time, not all the leaders are able to make it, for whatever reasons. The way we reach decisions in the coalition is by consensus. All of the representatives at our meetings have an opportunity to express their perspective, and at the end of that time we find a common ground and we move forward on a basis of consensus.

[Kyle Seeback, Conservative, Brampton West, ON]

Ms. Duncan talked about a press release, and she talked about whether there's been any movement since 2009. In your response, you seem to have indicated you didn't think there was any.

I do know that the Auditor General's report in 2011 indicated there was certainly some progress being made in a number of areas, specifically when you deal with an implementation management framework, a guide to federal implementers, and a treaty obligation monitoring system. The Auditor General commented that these were steps in the right direction. I'm paraphrasing. Do you think there has been any progress on the issues you're talking about today?

[Kevin McKay]

No, there hasn't been, to our satisfaction, through you, Mr. Chair.

Just before I lose the point, in addition to the annual leadership meeting of the coalition, the representatives of the members of the coalition meet on a regular teleconference, usually three or four times throughout the year, to carry on the ongoing work as directed by our leadership.

No, sir, to answer your question succinctly, we are not satisfied that since 2009 there has been significant progress in Canada's efforts to meet its obligations in each of our respective modern land claims agreements.

[Kyle Seeback, Conservative, Brampton West, ON]

Do you take that from the points that you raise when you say you need a new arrangement? Is that what you're measuring your progress against? Are you suggesting that you don't consider the treaty obligation monitoring system, a guide for federal implementers, and the implementation management framework to be positive steps at all, or these are just things that are not addressing the issues you're bringing today?

[Kevin McKay]

The problem as we see it, Mr. Chair, is that all of these attempts by the aboriginal affairs and northern development department to fix the problem are internal to the aboriginal affairs and northern development department. We find it hard to gauge with any certainty to what extent they have been successful in addressing the problems.

I'm here to tell you that it comes up at every one of our coalition teleconferences, and indeed at the annual leadership meeting. There is a growing list of examples of the frustration we encounter on a regular basis because of the inability of Canada to effectively meet its obligations. Again, we go back to one of our four major points. It is Canada that is a party to our modern land claims agreements and not a specific department of the Government of Canada.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. McKay.

Mr. Andrews, for seven minutes.