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

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

How many years should this take?

[Michel Roy]

In the case of the three agreements we've just finalized with British Columbia, the negotiations took 13 years.

The 20 agreements which were signed in the past required on average 20 or so years of negotiations.

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

Why does it take so long?

[Michel Roy]

Because of how complex the discussions are. When treaties are signed they are protected under the Constitution. Reference is made to the distribution of jurisdictions, to self-government and to land sharing. It is a very complex area involving several partners including the province, third parties and municipal governments, when municipalities are involved. In short, many people are involved, and these issues are tremendously complex.

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

Take for instance what the good minister wants to do. Are the negotiations on the Mackenzie pipeline, going from north to south, included?

[Michel Roy]

The pipeline actually goes over land which is still the subject of claims or was the subject of claims by aboriginal groups. First nations groups have an agreement, a modern treaty, that covers some lands. That facilitates the pipeline's passage, because there is already a consultative process provided and the community is involved. When there is no treaty, it is a bit more difficult. So, we are currently negotiating a modern treaty with the Dehcho. It makes the issue of the pipeline a bit more complex. You have to negotiate accommodations.

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

Are fishing rights included?

[Michel Roy]

Yes, they are considered in the context of modern treaties. There are two aspects of that which are reflected in the treaties we have finalized in British Columbia.

Mr. Lemay, Nunavut was created as the result of a land claim and negotiations. It shows how complex these types of agreements are and in a way it explains why the process takes time. I am not saying we cannot improve the situation; that is why we are prepared to work in that direction and to try to see how we can get things moving.

[The Chair, Conservative, Colin Mayes]

Madam Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

I want to thank you all for your presentations today.

I have a two-part question, one for Mr. Campbell and one for Mr. Roy, and I'm going to ask them both.

In the Auditor General's report, on page 3, you talk about the fact that based on the treaty process as it currently exists, it will be difficult to get more treaties signed. In the report you also talked about, on page 19, the fact that as many of the events and negotiations today are with smaller first nations, implementation issues must be addressed. You'll see why I'm asking that with the next part of my question.

I think there are real problems with the process, so even though I think the recommendations are very good, I don't see them substantially improving the treaty process. For Mr. Roy, the fact that three agreements have been initialled and are with small first nations and in meetings with the chief negotiators in British Columbia they have indicated they have some major concerns that in their view these three small treaties.... I heard Mr. Goldie say yesterday it's not a cookie-cutter approach, but that's not the feeling of the chief negotiators. They've done an analysis of the language in those treaties and compared it to what's been on the table.

In their view, a cookie-cutter approach is being taken. These small treaties are being used for much more substantial treaty negotiations, and they feel that resources are being withdrawn from tables for nations that are not prepared to accept that cookie-cutter approach. In addition, they feel that, and you can refer to page 20 in the English version.... It talks about court decisions may now interpret treaty negotiations as a reconciliation process in which rights of first nations are implicitly recognized, since negotiations on those rights are taking place, and this may be inconsistent with the federal government position, and so on. In your presentation you talked about the non-rights-based nature of British treaties. This seems to be consistent with the fact that the Auditor General has identified that nations come at it with a rights-based approach and the government comes at it as a non-rights-based approach.

I know that's convoluted, but Mr. Campbell, would you comment on the small treaties and the lack of progress, and Mr. Roy, would you comment on those two issues?

[Ronnie Campbell]

Thank you very much, Mr. Chairman.

I want to ask Mr. Berthelette to comment on the issue of the small nations, the negotiations thereof.

In response to the comment about the recommendations, I would agree that the recommendations we have are recommendations to the government on the process. What we did in paragraph 7.27 is set out some of the important background, and that's the issue of those fundamentally differing views. I accept that we don't have recommendations to make and have those resolved, but I think that people need to appreciate and understand that those differing views are there, and clearly they will colour how things go.

The other comment I would make is that, yes, in relation to the federal government's slow pace in developing policy as a result of cases like the Haida and Taku River case and, as we mentioned earlier, other court cases, that in itself can create a sense of uncertainty in terms of what that policy will be.

So I recognize that those things cast a shadow, if you like, over the rest of the negotiations.

Perhaps Mr. Berthelette would have comments on the smaller first nations.

[Jerome Berthelette, Principal, Office of the Auditor General of Canada]

Mr. Chair, I'm not sure how to respond to the honourable member's question with respect to small first nations. I think the point the member is making is that small first nations' treaties that have reached the point of being initialled are going to be the basis upon which the other treaties with the larger first nations are going to be negotiated. It becomes sort of the template for other negotiations.

When we looked at the issue of small first nations in our audit, we were looking at the issue of the relationship between the federal government and the small first nations after treaty and the amount of infrastructure you will have to have in place to maintain treaty relationships once treaties have been signed. When the small first nations enter into these treaty negotiations, the amount of loan they have to borrow as a proportion of the amount of money they're going to receive under treaties can take up a substantial amount of the payment that comes out of treaties.

So I'm not quite sure how I can help the honourable member with the question related to how it's used for the larger treaties, because we did not examine that particular part of your question.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

It's probably outside the scope, so maybe Mr. Roy could address that from the department's perspective.

[Michel Roy]

Yes, I'll talk about the small first nations.

First of all, I would just like to say that the treaties we initialled in B.C. recently are, of course, with small first nations, but there are three different types. If we talk about the first one, Lheidli T'enneh, it's really in the interior. It's a small community. It's one community, essentially, close to non-native communities.

When we talk about Maa-Nulth, it's five communities, which are regrouped, and they're on Victoria Island--

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Vancouver Island.

[Michel Roy]

--Vancouver Island, sorry, and the fishery industry is very important to them. I mean, it's a component of their lives.

Tsawwassen is really in an urban area.

So there are three different realities. When we talk about cookie cutters, it cannot be a cookie cutter for the treaties because we have to recognize those different realities. They have something specific to each of them. Of course, there is common ground for everybody, but I think we try to recognize the reality of those three different communities.

I think the challenge for Canada and for first nations and the province will be the implementation of agreements in the context of small communities. I don't think anybody would support the idea of implementing, for example, a board of education for all communities, community by community. It does not make sense.

It's one thing to recognize the rights; the implementation will be the challenge. The treaties are done in the way that will help the aggregate of first nations when it is time to implement. That's a bit of the approach Canada is developing to deal with the small first nations.

[The Chair, Conservative, Colin Mayes]

Thank you.

Who would like to speak on the government side? We'll go to Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

Thank you for your presentation so far. Perhaps I could start with a few questions for Mr. Campbell.

I just wanted to get more specific on the timeframe the audit covered. I know it was presented last year, but is there a specific timeframe it covered?

[Ronnie Campbell]

Yes. I think Mr. Berthelette will have that information.

[Jerome Berthelette]

The audit work for this chapter was substantially completed on June 9, 2006.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay.

Do you believe that the three agreements that have been signed--I know Ms. Crowder made reference to them--represent somewhat of an improvement, recently? And what would you indicate as being the reasons for these recent signings?

[Ronnie Campbell]

Mr. Chair, we haven't analyzed those cases to assess lessons learned or what the good practices might have been, but I think a point worth making, and I know that the department made this, too, during the course of the audit, is that there's a lot of work in progress, if you like. Obviously the objective is to sign treaties, and at the time we did the audit none had been signed. Nonetheless, there were many that had significant progress, and I think those three represent three of those that were close at the time.

So I would just sort of add that comment. The progress is a result of work already done. There are various things that could get in the way of signing agreements at the last minute, but the work would still have been done.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

The biggest obstacles that you've seen in this process have been laid out in a few spots, but I find section 7.27 somewhat interesting.

Could you please give your analysis of what you feel is the disconnect that might exist between the first nations groups and the federal government? Also, what are the various perceptions as to the bottom lines or the criteria for negotiation? Could you perhaps speak a bit from the negotiator's point of view about first nations' perception?

[Jerome Berthelette]

Mr. Chair, as we set out in paragraph 7.27, it seemed that there was a fundamental difference in the point of view that the parties bring to these negotiations. On the part of first nations, they come to the negotiating table with the view that they have aboriginal rights and title. They come to the table wanting these aboriginal rights and title to be recognized, and a treaty put in place that will allow them and Canada to have these aboriginal rights and title evolve over time.

From the first nations' point of view, when they sit across from the federal government at the treaty negotiation tables they feel that the federal government comes to the table wanting to limit aboriginal rights and title, and by virtue of the need for a full and final settlement limit the ability of this treaty and relationship to evolve over time. As we pointed out, Mr. Chair, this seems to us to be the fundamental difference in the bigger picture of the relationship between the first nations and the federal government.

Of course there were the six points Mr. Morales raised when he appeared before the committee members, which are more specific to the negotiations when the two parties are seated at the table. They somewhat reflected the fundamental difference between the two parties as well, in terms of the question of full and final settlement for certainty, access to fish—salmon in particular—and having the commercial right to harvest salmon constitutionally protected.

Those flow from that fundamental difference that exists between the two parties as they approach these negotiations.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Would you suggest that the degree to which this perception exists within the first nations negotiators correlates to the likelihood of negotiations coming to a fruitful conclusion in the short term?

For instance, in the case of the three first nations that signed off, would you suggest that those that didn't hold this viewpoint to the same degree are on the other end of the scale—perhaps the ones that you view as being the least likely to sign in the short term?