Indigenous and Northern Affairs Committee on Sept. 19th, 2017

[Perry Billingsley]

The short answer is yes, there is work being done by the involved communities. Much of this is being facilitated by the British Columbia Treaty Commission. We are working with the treaty commission as well as with communities in negotiation to address the issue of overlapping claims.

We like to think that there are essentially two sorts. There are shared territories and there are overlapping claims. Shared territories are generally those in which communities themselves find a way to address their mutual interests in the given territory. The overlapping claims arise when the communities are having challenges in coming to an agreement.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Is the overlapping claim issue a current barrier to resolution? There are parties that have been at the table since 1993. How many would you say are right at the end, hopefully, of their process and ready to sign an agreement?

I see that we have a couple from 2009, 2011, and 2016. Again, it's a very small piece on the blue map. For example, are the In-SHUCK-ch almost ready to sign?

[Perry Billingsley]

I'm afraid I'll have to get back to you on where the In-SHUCK-ch are in terms of any overlap issues that are there. I do know, for example, that for Pacheedaht and Ditidaht, they're working on resolving their overlaps between the communities, and that they have interest in the park that's been created and in working with Parks Canada.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Way back when the process first started, there was significant community involvement and recognition that the people who lived in the valleys had lived and worked together for many years and that it was appropriate and important to keep everyone, both first nations and non-first nations, up to date. When the NStQ was ready for the next steps, all of a sudden there were land maps on the table and many of the people who lived in the community were caught unaware. I think everyone wants resolution, and certainly had the third parties been kept in the conversation, they would have been able to come up with something that would work for everyone, or at least feel that they were knowledgeable about what was happening. Have we completely drifted away from that piece of the process, in terms of ensuring that the people in the valley are working together and moving forward together?

[Perry Billingsley]

I don't think we've completely drifted away from that process. The consultations with the general public and anyone who may be affected continue. I think, however, we have moved away from what was a formal process. How we engage with the general public is certainly something we should look at when we're doing our policy reforms.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

I know you indicated that certainty was a barrier, but I think there's also some value to certainty. Maybe you can talk a little bit more on that particular concept, on the pros of certainty, because you want to have agreements, and you want to be able to move forward and not leave that unsettled nature of the agreement out there forever. I think there are probably some pros and cons. Maybe you could talk a little bit, because intuitively I think coming to an agreement knowing that the agreement is not going to keep reopening is probably important.

[Perry Billingsley]

I may not have been as clear as I wanted to be. I agree with you that certainty remains important, and there are certain elements of any agreement that are going to require certainty so that parties can depend on it. What has happened in the past is that we have probably overstressed certainty as the outcome of an agreement. Predictability is one of the things we're looking for. You can balance predictability and certainty in an agreement along with some of the other considerations.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Romeo Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair.

I want to say from the outset, welcome back to all of you. When we left, it was summer. Now we've come back, it's still summer. That's kind of fun for all of us.

First of all, I took great interest in the proposal to do the study, because I come from a region where the first modern treaty was signed back in 1975—the first treaty that involved a province as well. It was kind of interesting how development happened from there on.

I smiled when you said that negotiated agreements are only as good as their implementation. You're dead right when you say that, because it was a challenge for us to negotiate the James Bay and Northern Quebec Agreement from the outset. Little did we know that the greatest challenge was the implementation. I always use the example of chapter 28, on social and community development, where it is said that on an equal basis, Canada and Quebec will construct community centres in every Cree village. That took about 25 years to implement, because it was claimed by both governments that there was no definition of a community centre. It's true, but it's rather bad faith, if you ask me.

You used a lot of United Nations declaration language in your presentation. I noticed “respect”, “co-operation”, ”partnership”. The principles that we find in the preamble of the UN declaration are now put forth by this government as basic principles for this renewed nation-to-nation relationship. I agree with that approach.

You also talk about self-determination. I recall reading the mandate letters, both to the indigenous affairs minister and to the Minister of Justice. Both referred to the UN declaration as a basis of a new nation-to-nation relationship. The PM has used that as the basis for a renewed relationship with indigenous peoples.

My question, very simply, is this. Has there been thought put into using the UN Declaration on the Rights of Indigenous Peoples as the basis for a new policy? You agree that it needs to be updated. “Updated” is the word you used. Is that a feasible proposition?

[Perry Billingsley]

Certainly there are parts of the UN declaration that will be integrated into policy reforms. I see the impact of the UN declaration in respect of outcomes. In its last annual report, the B.C. Treaty Commission made a very interesting case for modern treaties being the expression of the UN declaration.

I would also add that James Bay Cree was also the first self-government agreement.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

One of the things that needs to be said here is the fact that, although the James Bay and Northern Quebec Agreement clarified the concept of certainty, very few people know that we've since signed more than a dozen complementary agreements. These agreements are evolving as well.

The other question I have, which I think is important, is this: there is a ministerial committee led by the Minister of Justice to review legislation and policy. Have they approached you on reviewing this land claims policy?

[Perry Billingsley]

Yes, they have. We are working with that committee in terms of reviewing the self-government policy, the comprehensive claims policy, and the specific claims policy.

That is a top-down exercise, and we're also at the same time pursuing a bit of a bottom-up exercise by working with different indigenous groups on what they see as the reforms necessary to the comprehensive claims policy.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Will that review be based on the UN Declaration on the Rights of Indigenous Peoples?

[Perry Billingsley]

I think that review will seek to find ways to implement the UN declaration.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Another question has been on my mind a lot. How much have the courts influenced the policy over the years? In other words, is the policy in any way informed by the legal principles articulated by the courts, and if so, how?

[Perry Billingsley]

Yes, the policies are informed by court decisions. Some of them are very directive. I would point to how reconciliation has been integrated into the policy as a result of court decisions over the past 10 years.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I have 45 seconds left.

My other question is similar to what Gary was pointing to, the length of negotiations with the Innu and Atikamekw nations. We'll be meeting with them in Quebec City next week. Their negotiations have gone on for 35 years now. How do you propose to deal with the fact that while negotiations take place, “development” continues to happen on those territories and over the resources of these people? How do we deal with that unjust, in my view, situation?

[Perry Billingsley]

While development is continuing, the court direction on duty to consult continues to apply to any development in the area, in the territories of those communities. Just because we are still negotiating, just because we haven't reached an agreement, that doesn't mean that the duty to consult does not apply—to the contrary.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Mike Bossio.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Well, where to start?

As Romeo said, welcome back, everyone. It's great to be back around the table to deal with this important, but, yes, very large issue around land claims.

I have the Mohawks of the Bay of Quinte in my riding, and they have been negotiating the Tyendinaga or Culbertson Tract land claim since 2003. I actually moderated a town hall discussion in 2007 on this issue, when it looked like the government was seized with doing negotiation. That lasted about a year, and then nothing. Everything is kind of pulled back now. I know that we are entering into negotiations with them again, and thankfully it looks like there is going to be some progress on some fronts.

In the south, the agreements are now in areas that have become developed, and this adds a much more complicated component to negotiating these agreements.

My question is, what can we change? We're going to the Mohawks of the Bay of Quinte as part of our travel plan a week Friday, so we'll be hearing from them, but I want to hear from you. What do we need to do? What do we need to change to speed up the process of negotiating these agreements?

The specific land claim agreements.... Yes, we say we're going to do three years, and then three years, and then the tribunal, but when you're dealing with an issue this complicated.... What can we change that will help resolve this?

[Perry Billingsley]

On that point, I will defer to my colleague from the specific claims branch.

[Stephen Gagnon]

We get this question all the time: How can we speed things up? You know, I'm going to sound overly bureaucratic. These are complex things, and you pointed to some of the complexities.

We are now dealing with a claim that started in the 18th century and is now in a developed area. I apologize, but there are certain issues with respect to confidentiality. I can't go into the details of the agreement, but the first nation in question holds strong views about the way the claim could be settled. It's always a delicate balance between the people who now hold land and the first nation and what it wants to do.

There is no easy answer to the question you're posing. I guess the answer is that there is a statutory time limit. If the first nation doesn't like the way the negotiations are going, they have an option to go to the tribunal or to go to a court at any time. I don't want that to happen, but it is really difficult to balance those interests. I think that's what we are struggling with a bit on the Mohawks of the Bay of Quinte file.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

There are restrictions as far as buying land and then turning that over to the communities, and restrictions around the title of the land. I mean, I realize that you can only go so far. Six Nations, as you know, they say is the trillion-dollar claim because of the property it sits on.

I want to generalize. I know you can't discuss a specific claim. Are there tools that we could add?

You said that we need to develop more tools and other avenues to try to find solutions. Are there any tools that the department is working towards or looking to recommend that we can get on the record to be part of this study that would benefit the department and the communities?

[Stephen Gagnon]

Right now we are working through the Assembly of First Nations, with first nations groups, to get ideas to try to co-develop some kind of policy. One of the things the focus would be on is improving our work at the assessment phase.

I think the issue you're raising is always going to be a very complicated one to deal with. The approach has been to try to provide cash in these cases so that the first nation can buy land on a willing-buyer, willing-seller basis, so that the rights of the people who are already there are also being protected, to the extent that we can.

Again, I'm not trying to avoid your question, it's just that there isn't an easy answer to that one. First nations don't always like that approach. I don't know that you can get into a situation where you're taking land from people who are already there, right? That's probably always going to be the most difficult part in settling some of these claims. Some of them are over 100 years old. Time has passed. People are there. People have rights.

How do you try to balance those? It's one of the most difficult things we have to deal with.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

At the same time, when you have a willing-seller, willing-buyer kind of approach, the finances aren't there because we don't do it. I know that the provinces will do it and we utilize that avenue, or the community itself can do it. The Mohawks can do it.

Of course, once again, these communities are financially strapped themselves. To go out and buy the land from a willing seller to then become reserve land, it's out of pocket for them when they already have programs that are in desperate need of funding in the first place.

Once again I go back to, are there—?