Indigenous and Northern Affairs Committee on May 5th, 2009

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

I'll come back to one of the other issues you raised in your 2008 report when you were talking about the Corbiere decision. You're indicating that:

The Cree and Naskapi local governments should review their respective by-laws respecting band elections to ensure compliance with the requirement resulting from the Corbiere decision.

Has any work at all been done on that?

[Richard Saunders]

We'll be following up on that in our discussions with the Crees. That's a recommendation that affects them directly, rather than the House, but we certainly follow up on that in the same way we do with you.

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

It's an outstanding issue for the bands. I know that in some other territories it has come down to a matter of funding as well, because there's a need to track people down and include them and all those kinds of things, but it sounds like it's a bigger issue.

[Richard Saunders]

Yes, there is a funding issue around that too.

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

Policing has been raised in other reports as well. Has there been any change in the last couple of years, or are there still largely the same issues around policing?

[Richard Saunders]

Can we reply by way of a follow-up? We need to do a little homework to make sure we're accurate in our answer.

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

That would be fine.

Thank you, Mr. Chair.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Crowder.

Mr. Rickford, you have five minutes.

[Greg Rickford, Conservative, Kenora, ON]

Quelle surprise!

Thank you, Mr. Chair.

I'll take this opportunity, Richard, to develop the line of questioning I was onto earlier.

In one of my questions about listing specific concerns, I think I mentioned Kawawachikamach and their concerns about being excluded from the Nunavik agreement. I was wondering if you could expand on that a little bit more, with an eye toward looking in a broader context.

What other first nations could be affected by this self-government process who are perhaps not currently in the agreement or what have you? Can you talk a little bit more about that? I think our time ran out there, and there was more to be said.

[Richard Saunders]

No other first nation or aboriginal groups has raised concerns with us, nor have we heard of any concerns being raised about that agreement. If there are some, I'm sure the Crees especially, and certainly we and others, would like to hear about it, but we haven't. The kind of issue that the Kawawachikamach and Naskapi had with Nunavik has not been replicated with other groups vis-à-vis this Canada-Cree agreement.

So to the best of our knowledge, we're not aware of any.

[Greg Rickford, Conservative, Kenora, ON]

Philip, Robert, do you have any additional comments on that?

[Robert Kanatewat]

Not specifically. The only other aboriginals in the territory would be the Montagnais, and we haven't had any comment concerning the effects that they would presume to have. I don't think they're affected by any of that.

[Greg Rickford, Conservative, Kenora, ON]

Have there been any discussions, be they general, just by convenience, at broader forums where nations from around the province would meet? Have there been any issues identified there--for example, by folks from Kahnawake who may be interested, or concerns about any accommodations for hunting on land contemplated by this agreement?

[Robert Kanatewat]

Not to our knowledge. Some of the other first nations in Canada have tried in some ways to come up into the territory, but as they found out, it's an exclusive use for the Cree, and they have sort of dropped out of pursuing the hunting purposes in the areas.

[Greg Rickford, Conservative, Kenora, ON]

Is there now, to your knowledge, any mechanism for individuals of those communities to accommodate or to host members of other nations from the province to do traditional activities?

[Robert Kanatewat]

Not to my knowledge.

[Philip Awashish]

There are some ongoing discussions between Canada, Quebec, and first nations in Quebec. Discussions generally at the moment concern overlap claims. There are first nation claims within the territory covered by the James Bay and Northern Quebec Agreement, and the Cree have claims outside of the territory of the James Bay and Northern Quebec Agreement, so there are discussions going on between the parties concerned there.

Those are the only discussions I know of going on between the governments and first nations, but there are ongoing discussions amongst first nations themselves about other matters.

[Greg Rickford, Conservative, Kenora, ON]

That's fine. Thanks.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Rickford, for your questions, and commissioners.

I will now go to Mr. Bagnell for five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

I just want to ask a couple of questions about process.

First of all, I'm glad you're going to give us a list of the minor amendments in a package.

In following up on Todd's giving notice to the government, I think it would be good that we accede to your request and try to get these on the agenda within the next year. If it came from the government, it would be win-win for everybody, but I'm sure you'll have the support of all the opposition parties to bring these forward quickly to try to deal with them.

Given your experience, I want to talk about generalities and process a bit. You raised a very good point. This department is a huge department. It has thousands of staff and hundreds if not thousands of issues, so it's impossible or very hard to get everything done.

I wonder whether you have any suggestions. Some of the areas that have been problematic, for instance, are implementation of land claims; modification of agreements, obviously, which you're talking about here; making the workload more realistic. I understand what you're saying about the gap between the bureaucracy and the politicians; that's another issue for all departments.

In this particular department, if we, for instance, hived off northern affairs to focus the minister more on aboriginal issues, and if we had a separate organization related to land claim implementation, would that also take some pressure off the minister to give a more realistic workload and move some of these files forward faster, sooner than 19 years?

[Richard Saunders]

We talked a little bit about that before, some years ago. There have been recommendations from all kinds of sources—the Ipperwash commission and so on—dealing with land claims.

The central problem around the land claims business is that a standard government department is part of the Political Science 101 definition of government. You make decisions. Where there are differences of opinion, somebody has the authority ultimately to make a decision. Governments are elected. They have a mandate to make decisions—within the law, certainly—and if you don't like it, you can vote for the other guy, you can write a letter to the editor, you can protest on Parliament Hill, you can do all kinds of things. But it's a legitimate function of government, in general, to make decisions within the law about contentious matters. We all know that, and that's fine.

Indian Affairs is a government department that does that. They may decide that times are tough and that the housing budget is going down a little, and people may not like it. Fine, there are all those ways to address it--come here and give you guys trouble.

When it comes to a treaty that has a treaty land entitlement, or to an aboriginal and treaty right, or to the implementation of the James Bay and Northern Quebec Agreement, those are not suitable things for making discretionary decisions. The Supreme Court has said that treaties and land claims agreements create enforceable obligations. Carrying out your duties under a contract is a different matter. It requires a different mindset from that used when exercising discretion on behalf of an elected government with a mandate to make discretionary decisions.

It seems to me that dealing with the treaties, dealing with land claims agreements—those kinds of issues—could be handled by a bureaucracy, accountable obviously to elected people but nonetheless separate, whose mindset was not administering discretionary programs but carrying out obligations--carrying them out properly, but carrying them out. It's a different thing.

The land claims are based upon claims of aboriginal title, or treaty land entitlement, or aboriginal rights more generally to use traditional territory. They're not based on thinking that unemployment insurance rates should go up, or that the benefits should be adjusted up or down, or those kinds of tough political decision that are legitimately within the discretion of government to make. They are things you can go to court to fight about and win.

[Larry Bagnell, Liberal, Yukon, YT]

But just on that, isn't that the process that we just put through Parliament last year, to which all parties agreed, to improve the specific claims resolution process to deal faster with those abrogations of treaty provisions?

[Richard Saunders]

Yes, hopefully; we'll all be optimistic and say that some progress has been made on that. I hope it has. I suspect it has.

[Larry Bagnell, Liberal, Yukon, YT]

Is my time up, Mr. Chair?

[The Chair, Conservative, Bruce Stanton]

Yes, it is. Just be brief.