Indigenous and Northern Affairs Committee on Feb. 8th, 2007

[The Chair, Conservative, Colin Mayes]

I open the Standing Committee on Aboriginal Affairs and Northern Development this Thursday, February 8, 2007. Committee members, you have the orders of the day before you.

The witnesses here this morning on the topic of the British Columbia treaty process are from the Office of the Auditor General of Canada, Mr. Ronnie Campbell, Assistant Auditor General, and Mr. Jerome Berthelette, principal; and from the Department of Indian Affairs and Northern Development, Mr. Michel Roy, assistant deputy minister, claims and Indian government, and Mr. Jeff Goldie, executive director, Federal Treaty Negotiation Office, British Columbia.

Welcome to our committee.

We'll begin with a presentation led by Mr. Campbell, then we'll have the presentation by Mr. Roy, and then we'll be asking questions.

Thank you for being here, and you can begin whenever you're ready.

[Ronnie Campbell, Assistant Auditor General, Office of the Auditor General of Canada]

Good day, Mr. Chair.

It is a pleasure to be here today to discuss our audit of the British Columbia treaty process. With me today is Mr. Jérôme Berthelette, Principal.

The objective of our audit was to assess the federal government's management of its participation in the BC treaty process.

The Auditor General of British Columbia tabled a separate audit report with the BC legislature on the same day as our report was tabled. He reported on the provincial involvement in the treaty process. The two audits were performed concurrently to present a broader perspective on the treaty process.

The BC treaty process began in 1992. Initially, the federal government expected that all claims in BC would be resolved by the year 2000. To date, three final agreements have been initialed but no treaties have been signed.

Mr. Chair, first nations involved in the process have borrowed close to $300 million to cover their negotiating costs, which must be paid back out of their settlements, while the federal government in turn has spent about $426 million. By March 31, 2009, the department estimates that the federal government will have spent approximately $580 million on the process and the first nations will have borrowed a total of approximately $375 million. Mr. Chair, it is unlikely that the federal government will achieve its policy objective of signing treaties with most first nations in British Columbia under the treaty process as presently constituted.

We found that fundamentally different views on the nature of the treaties being negotiated have contributed to the fact that most of the 47 negotiation tables are either inactive or not making any progress, and that 40% of the first nations eligible to participate in the process are not currently involved. Further, options available to first nations outside the treaty process to pursue their claims have made it challenging for the government to make offers to first nations that meet or exceed those available outside the process.

Mr. Chair, we found that Indian and Northern Affairs Canada complies with the authorities and policies that apply to federal participation in the B.C. treaty process and that an interdepartmental structure is in place to coordinate federal policy development. While INAC has been able to respond to some policy issues, the existing federal policy base and policy development process have not adequately addressed some important issues raised during the negotiations.

For instance, since the Supreme Court of Canada's 2004 Haida and Taku River decisions, the federal government has had a duty to consult and, where appropriate, accommodate first nations. This duty arises when the government has knowledge of the potential existence of an aboriginal right or title, and is considering taking actions that might adversely affect it. At the time we tabled our report, the federal government had not yet put in place a policy to fulfill this duty.

Finally, Mr. Chair, INAC has not conducted the necessary analyses to be able to estimate how much time and what resources will be needed to negotiate treaties with the first nations presently in the process. In addition, at the time of the audit there was no formal estimate of the results to be achieved in the short term.

Mr. Chairman, it is going to take more time than originally estimated to negotiate treaties with all the first nations currently participating in the process. The department needs to reconsider the way it currently manages the negotiations based on a more realistic timeline. The committee may wish to discuss this point further with the department.

Mr. Chair, notwithstanding the complexity and challenges involved in the B.C. treaty process, negotiations remain an effective means by which the parties can build the new relationship they are seeking and resolve the first nations claims. Treaties are important and can help first nations in British Columbia narrow the gap between their standard of living and that of other British Columbians. It is essential that all parties find a way to make the treaty process successful.

Thank you, Mr. Chair, for this opportunity to discuss this report with the committee. We would be happy to answer any questions that you may have.

[The Chair, Conservative, Colin Mayes]

Thank you, Mr. Campbell.

Mr. Roy.

[Michel Roy, Assistant Deputy Minister, Claims and Indian Government, Department of Indian Affairs and Northern Development]

Thank you, Mr. Chairman.

Good morning, everyone.

Thank you for the opportunity to speak to you today. I have with me Mr. Jeff Goldie, who is the Acting Executive Director of the Federal Treaty Negotiation Office in Vancouver. The Vancouver office is part of the Claims and Indian Government sector, based here in Ottawa, which I head at the Department of Indian Affairs and Northern Development.

Claims and Indian Government is responsible for developing and implementing key federal policies covering the negotiation and implementation of comprehensive land claims and self-government agreements, and for negotiating these claims with first nations across Canada. The FTNO executes that role in British Columbia and plays a key role in much of the policy work supporting those negotiations.

I would like to speak a little about the Auditor General's November 2006 report and what I see as its importance for the British Columbia treaty process. I will then address the report's four recommendations and our department's action plan to address them. Afterwards, Mr. Goldie and I would be pleased to answer any questions you may have.

First of all, I would like to thank Auditor General Fraser for her report. I find it to be thorough and timely. The report provides extensive context to treaty negotiations in British Columbia, in terms of both historical background and the current economic, political and legal environment. It conveys well the challenges of negotiating modern-day treaties, particularly in British Columbia where, unlike the rest of Canada, few historic treaties were signed and most of the province remains covered by unresolved land claims. And the report provides a good sense of the diversity of perspectives and expectations of the parties involved in treaty negotiations.

I also think that the Auditor General's report could not have come at a better time. Its November 2006 release, coupled with a similar report by British Columbia's auditor general, captured widespread attention, especially in British Columbia but also nationwide. This is a very good thing. Canadians who read the report will come away with a much better appreciation for both the complexity and the importance of negotiating treaties in British Columbia.

As citizens, they will be better able to assess the treaty process and, I hope, support it. Even if they have not read the report, they will have heard about it in the media. They will have heard that the negotiations have been going on for 13 years and have cost hundreds of millions of dollars without producing a single treaty. But they will also have heard the Auditor General's conclusion that, notwithstanding the difficulties and the high financial price tag, negotiations remain an effective means by which the parties, Canada and British Columbia and first nations, can build the new relationship we are all seeking and at last bring a resolution to first nations outstanding claims.

This endorsement of treaty negotiation in British Columbia is important now as we move into advanced and final stages of several final agreements and agreement-in-principle negotiations in different parts of the province. So the momentum is building right now, and we must not lose it.

In October 2006 Canada initialled the final agreement with the Lheidli T’enneh First Nations, the Government of Canada, and the Government of British Columbia. On December 8 we initialled a final agreement with Tsawwassen First Nation, and on December 9 we initialled one with the Maa-nulth First Nation on Vancouver Island.

This year these three first nations communities will be voting on whether or not to ratify those agreements. If they do so, the agreements would then go to British Columbia and Canada for ratification. At the same time, we anticipate concluding final agreement and agreement-in-principle negotiations with other first nations this year.

While the most obvious evidence of successful treaty negotiations is the conclusion of agreements, the truth is that less obvious, but perhaps equally important, success has been happening for some years now, in various parts of the province.

Since the British Columbia treaty process began, British Columbians' awareness of first nations issues has risen immensely. Polls show that the majority of people now think that first nations have been treated unfairly and that governments must do something about it. This view is a substantial change from common opinion just 15 years ago.

Businesses are recognizing the economic necessity of ending the existing uncertainty regarding the ownership, use and management of the province's lands and resources. They have awakened to the vast potential for partnering with first nations in joint ventures of all kinds.

Many local governments have much improved relationships with their first nations neighbours and are working with them on service delivery and joint planning. None of this would be possible, but for the growth of capacity and hope within first nations themselves. Slowly but surely, first nations people are becoming major players in British Columbia.

Of course, these developments cannot be attributed entirely to the British Columbia treaty process. Far from it. But the treaty process has been a major factor, and I mention it because I disagree with those who believe that the only measure of success is signed treaties.

Having given you some sense of what has been accomplished, I wish to acknowledge that we face many challenges. As the Auditor General's report noted, only 60% of British Columbia first nations have so far chosen to join the treaty process. Of the existing treaty tables, only a minority are currently making substantial progress in negotiations. This is not good enough and we will continue to seek, along with our provincial and first nations partners and with the facilitation of the British Columbia Treaty Commission, ways to make the British Columbia Treaty process more effective.

As one of the three parties in a voluntary process, the federal government cannot, by itself, determine outcomes at individual treaty tables nor can it control timeframes for completing treaties. Nevertheless, there is much room for improving federal participation in the treaty process. The department has accepted all four of the Auditor General's recommendations and has created an action plan to address each of them.

We are finalizing our action plan. Of course we will be consulting the Auditor General on its content. I can tell you, however, that the department is fully committed to making significant progress in all four areas addressed in the report.

First, working with our colleagues in other federal departments and agencies, we will improve existing internal processes with respect to policy development in order to respond more effectively to policy-related challenges and opportunities at the treaty table.

Second, in response to the Supreme Court of Canada decisions in Haida and Taku River, we will develop a federal approach to consultations and accommodation that will apply to all federal departments and agencies.

Third, we will explore opportunities to improve time and resource management, and place a greater emphasis on results-based negotiations.

Fourth, we will look for ways to keep Parliament more fully informed on the progress, cost, and timeframe.

Our action plan is ambitious, and much work needs to be done in order to achieve our objectives. However, I can report today on some initial steps that the department has taken regarding three of these commitments.

With respect to improving time and resource management the Federal Treaty Negotiation Office in Vancouver has just completed its annual assessments of progress at the 47 treaty tables. Implemented some years ago, table assessments help the department with its internal work planning and resource allocation for the coming year. This year we have adopted more rigour in assessing the productivity of the tables, and we will be taking appropriate steps to advise the parties.

With respect to keeping Parliament better informed about British Columbia treaty negotiations, just yesterday we held four information sessions on the Hill for members of Parliament and their staff to tell them about the treaty process. We talked about the economic, political and legal environment that makes treaty negotiations so challenging. We described the six-stage, non-rights-based nature of British Columbia treaty negotiations. We defined the key federal interests which Canada brings to the table and explained what the key components of a treaty are.

Mr. Goldie delivered presentations yesterday and would be happy to answer any questions you may have.

Lastly, outside of the British Columbia treaty process, but included in the Auditor General's report because of its relevance to the treaty negotiations, further progress has been made regarding the development of a consistent and efficient federal approach to consultation and accommodation that strengthens federal decision-making, supports sustainable economic growth and promotes reconciliation of aboriginal and treaty rights with other societal interests.

Further to preparatory discussions held last year with first nations, Native and Inuit groups across the country, representatives of provincial and territorial governments and federal officials regarding how best to work together to develop the federal approach, a report was sent in to all of the participants about what was heard during those discussions. A plan is being proposed for the next steps in the development of a federal approach to consultation and accommodation.

In closing, I would like to once again thank the Auditor General for her report and this committee for giving Indian and Northern Affairs the opportunity to present its perspective. Mr. Goldie and I look forward to your comments and questions.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Colin Mayes]

Thank you, Mr. Roy, and also thank you for the presentation that was made on the B.C. treaty process. I didn't attend, because I was on House duty yesterday, unfortunately, but my staff did, and they supplied me with the handout. It was very interesting, and I understand it was very interesting for the staff also.

We'll start with questioning, with the Liberal side.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Mr. Merasty will lead, and if there's time, I'll follow.

[The Chair, Conservative, Colin Mayes]

Okay. Mr. Merasty.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

Thank you to the witnesses. I have a couple of quick questions.

The Auditor General talks about the duty to consult and the impact this may have on negotiations. My question, maybe to both, is has the impact of the Haida and Taku River decisions, and for that matter, of the Mikisew Cree decision, been analysed against the comprehensive land claims agreement of 1986?

Some of the premise of the comprehensive claims policy of 1986 seems to be thrown out the window with recent court decisions, and if the 1986 comprehensive claims policy is the basis upon which land claims policy is proceeding, then I think we have a conflict. That's one point.

Second, has the department ever looked at all the case law in this country over the last 25 years, as has been done by John Burrows? The collective impact of the case law makes a very strong statement as to the rights of aboriginal people, as to land claims, as to many other things. It seems to me that INAC looks at the case law one case at a time as they come, but never as a collective. That to me contributes to the policy vacuum or lack of a quick response to case law, as pointed out by the Auditor General's office.

I think that's a significant barrier. Has any work been done by the department in this area to look at it as a collective? It seems to me there's a direct correlation. When I look at John Burrows' work and at what the Auditor General has identified as issues, there seem to be some connections that can overcome some of those challenges.

I have just those two questions.

[Ronnie Campbell]

Mr. Chairman, let me respond on behalf of the Auditor General on the issue of the duty to consult. That analysis at the time we conducted the audit had not been done, and certainly it's something that we felt should be done that would have an important impact going forward.

[Michel Roy]

Monsieur le président, if I think about the first question, on the duty to consult in relation to previous agreements signed, I have to say that those previous agreements put in place some initiative or some structure to make sure that first nations that signed those agreements are being consulted on any development in their territory. They are now part of the system. They are being consulted. They are real players.

I don't think that the decisions in Haida and Taku River will bring a new dimension in that context for those first nations that have signed agreements because they haven't faced those structural consultations and co-management, and they have a say on the development of what is going on, on their land and territory.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

The only backdrop to that would be when they talked about the Maori examples. Did they meet the test of what the Supreme Court put out in that case?

But we don't have time to answer that, so go on.

[Michel Roy]

Thank you.

On the case law for the last 25 years or whatever, the policy has evolved. We are following very closely all of those decisions coming out of the court because they are guiding us in our approach and negotiations.

We have to modify on a regular basis the approach and the policy to reflect those new decisions from the tribunal. The policy has been adapted over the years to accommodate those new decisions.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

My point is that there have been a few court cases that put an exclamation mark on some of the unknowns or the previously not-for-sure areas.

As you've said, it's been evolving one-by-one, but I think there has to be a reflection now on the cumulative impact, and because of those certain exclamation marks recently, I think that's key. That may help resolve some of the challenges.

[Michel Roy]

I have to say it's a good point. Following the report of the Auditor General and the work going on right now with first nations and provinces, that's one aspect we will be considering in the context of looking at the policy itself and the approach that Canada is taking on the negotiations.

That's a good suggestion, to make sure that we are looking at the case law, and not case-by-case but as a package.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

Thank you.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

How much time do I have, Mr. Chair?

[The Chair, Conservative, Colin Mayes]

You have just two minutes.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I don't know whether this is a two-minute question or not.

We had testimony before the committee, of which you are undoubtedly aware, from Robert Morales from British Columbia. He talked about the Auditor General's recommendation that government needs to develop a more expeditious and coordinated process for policy development and review. He also talked about the tables that have been formed.

He also went through the six areas that are up for discussion and the barriers that are there in terms of the government's mandate for dealing with them. I haven't got time to go through them, but he talks about aboriginal and treaty rights, the constitutional status of lands, issues of co-management of governments, fiscal relations, taxation, and fishery. He speaks well about the inflexible mandate that the federal government comes to the table with.

I wonder if you can speak to the mandate you bring to the process, how you arrive at them, whether there is flexibility, and how you see the progress of these negotiations continuing if there is not flexibility.

[The Chair, Conservative, Colin Mayes]

There's a good question. Okay.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

And we may need the next round to respond.

[The Chair, Conservative, Colin Mayes]

Briefly, please.

[Michel Roy]

Thank you for the question.

Of course you can understand, too, that Mr. Morales and the first nations he is representing are involved in the negotiation process. Of course we come to the table with our own mandate.

For the federal side, the mandate is obtained through a cabinet process, and we have some flexibility. For example, when they talk about Canada requiring extinguishment of rights, it's not the case any more. It was the case at the beginning of the process when we started to negotiate comprehensive claims. We do not require that any more. We are adjusting the rights and we are defining the rights, but we are not asking for extinguishment of rights.

There is some flexibility, too, in terms of the land compensation component and self-government aspects.

Of course on the federal side, too, we have to balance the interests of Canada and of Canadian citizens with the interests of the first nations, and we also have the provinces at the table. You will find at the table a mix of all those things.

There are some issues, of course, on which there is no flexibility on the federal side. They have issues on the first nations side on which they have no flexibility, and the same is true for the provinces, so we have to find a balance in all of that.

Of course our minister agreed with Mr. Morales about having some discussions to try to find out other ways of maybe addressing some of the concerns that first nations may have, to try to find out new ways of doing business that would hopefully be faster in terms of a conclusion.

We certainly want to work with other departments on that, and I am convinced that the B.C. Treaty Commission is a key player we should bring into the picture to work with us to try to define or design some new ways or new processes.

[The Chair, Conservative, Colin Mayes]

Thank you.

Who wishes to speak on behalf of the Bloc?

Go ahead, Mr. Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

First of, I want to tell you that I've read everything, and it's quite substantial. I think we're going to have to re-invite you here because this question is not strictly limited to B.C.

I am from Quebec. In Quebec we signed an agreement with the Cree, called the Paix des Braves. What was started in 2001 is now settled. Yesterday was the fifth anniversary of the signing of this treaty. Negotiations did not drag on for 20 years. Yet, we see that the federal government is unable to come to an agreement with the Cree.

Regardless of which party is in power money remains the sinews of war. At least that's my opinion. It may be that I'm mistaken, and Mr. Roy or someone from the Auditor General's Office could correct me if that is the case, but I think the federal government has a conflict of interest here. It sets the negotiation standards and advances the money which will be used. It is hard to believe that the first nations, which are going into serious debt, will have this amount deducted from a compensation they will be receiving.

I don't know if I am completely out in left field here, but it seems to me that this may take another 1,000 years or more. No one, neither me nor you—nor anyone else—will be around to see it. Despite the Auditor General's recommendations, things have slowed down in British Columbia. When I read all of this, I think, quite seriously, that it may take another 200 years.

What can we do, as electoral representatives, to speed things up? Let's not get into the politics of this. One is no better than the other. We all agree. We should not lose sight of the fact that this is a minority government.

How can we force people to pick up the pace?

[Michel Roy]

Mr. Lemay, I would like to clarify one thing with respect to the example you just gave. I would like to point out that we signed a treaty referred to as a modern treaty with the James Bay Cree and the Nunavut Inuit, 30 years ago. We did celebrate this treaty's 30th anniversary. The Paix des Braves is an out-of-court settlement between Quebec and the Cree. What we are now negotiating with the Cree is an out-of-court settlement related to the implementation of the treaty which was signed 30 years ago. So it is not exactly the same type of issue.

In British Columbia, there are 47 treaty tables and a very specific process for the province. The B.C. Treaty Commission manages loans to aboriginal groups. The first nations contacted this commission to join in the process and obtain funding.

Elsewhere throughout the country, there are 13 treaty tables on comprehensive land claims, treaties which are considered modern. We have already signed 20 treaties of this type throughout Canada, not including in British Columbia. We still have 13 left to negotiate; then, it will be complete. We will have covered all community groups which are not themselves covered by historic treaties.

In Quebec, for instance, we are negotiating with the Innu and the Attikamek. We still have some negotiations left to undertake in the Maritimes, Ontario and the northern part of the country. There are also 47 treaty tables in British Columbia.