Indigenous and Northern Affairs Committee on May 12th, 2009

[The Chair, Conservative, Bruce Stanton]

Good morning, my dear colleagues and invited guests.

This is the 19 ^th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. On our agenda today, we have the Land Claims Agreements Coalition, on the subject of land claims agreements.

This morning we welcome two representatives of the Land Claims Agreements Coalition. They are Mr. Kevin McKay, chairperson, Nisga'a Lisims Government; and Paul Kaludjak, president, Nunavut Tunngavik Inc.

Gentlemen, we provide essentially ten minutes for your opening presentation. We are going to be meeting today until about 10:30 a.m., so after your opening presentation we'll go to questions from members. We'll try to get through two rounds of questioning from each of the members. If there are some things that you don't cover off in your opening presentation, I'm sure there will be opportunities to get those comments on the record in the course of questioning from members.

Mr. Kaludjak, go ahead, for ten minutes.

[Paul Kaludjak, President, Nunavut Tunngavik Inc., Land Claims Agreements Coalition]

Thank you.

[Witness speaks in his native language]

Do you have interpretation with that?

[The Chair, Conservative, Bruce Stanton]

Pas encore.

[Paul Kaludjak]

I'm not surprised, for some reason.

Good morning. I'm glad to be here in the wonderful summer out here, because we're deeply frozen still in Nunavut, in Iqaluit. So it's great to be here, along with my colleagues from Nunavut.

We have staff over here, as you said, Mr. Chairman.

My name is Paul Kaludjak. I'm from Nunavut, Iqaluit, representing Nunavut Tunngavik, and I have staff here along with me. They are Alastair Campbell, our senior policy adviser; Udluriak Hanson, our senior policy liaison officer here in Ottawa; and Joanasie Akumalik, who is my EA.

Also, we brought the heavyweights. We have our legal counsel, Art Yuan. That's the guy you have to watch out for.

Regardless, thank you. I'm very pleased to be here this morning. As I said, I'm from Nunavut Tunngavik. For those needing this information, “Nunavut” means our land, and “Tunngavik” means foundation. We're an Inuit organization. Our land claim was signed in 1993 in Nunavut.

As you know, I'm here with our co-chair from the Land Claims Agreements Coalition. With me is Kevin McKay, from the Nisga'a Nation.

We are pleased to have the opportunity to make our views known to you. We have submitted a brief, and I trust that you've had an opportunity to read it.

It was in 1973, as a result of the Supreme Court decision in the Calder case, the famous Nisga'a aboriginal title case, that the Government of Canada started to negotiate the modern treaties with aboriginal people. Many saw this new era of treaty-making as the basis of a new relationship between the crown and the aboriginal people. In Nunavut, we certainly saw it that way.

We signed our claim agreement with the Government of Canada in 1993, as I said. It's the largest land claim agreement in the history of Canada, and we spent two decades establishing our claim and negotiating it. At present, with the coming into force of the Tursani agreement--if I say that wrong, [Witness speaks in his native language], I apologize--in British Columbia, there are 22 modern treaties in Canada.

The Land Claims Agreements Coalition is an association of aboriginal people who have signed modern treaties. It is treaty signatories working together for a common goal and end. The coalition was formed in 2003. When we held our first national conference here in Ottawa to discuss the implementation of our agreements, we called it Refining Relationships: Learning from a Decade of Land Claims Implementation. We found, as signatories to modern treaties, that we shared many implementation problems. Upon its conclusion, we urged the Government of Canada to develop a land claims agreement implementation policy in association with aboriginal treaty signatories to get all the agencies of the Government of Canada to play their part in implementing modern treaties.

We worked with the Government of Canada to develop such a policy. We began working with DIAND officials, and in 2005 with the aboriginal secretariat in the Privy Council Office, PCO. The process was slow, but there was some receptiveness to our proposals. However, in 2006 the aboriginal affairs secretariat in PCO was disbanded and there were no further meetings to jointly develop an implementation policy.

Minister Strahl was reported on CBC on March 31, 2009, as saying that he is not certain that an implementation policy is needed. Before the minister's statement, DIAND officials had made similar statements of policy that they have pointed out do not ensure effective implementation, and in any event, the government wants practical solutions. We are all for that. We all want practical solutions.

We want timely, coordinated, political, and practical solutions. That is what we need. It is the lack of them that led us to get into a coalition and NTI launched its lawsuit against the Government of Canada, which details 16 instances in which our agreement had been breached, in 2006. We tried many other avenues over many years to resolve it and we have come to this head.

First, towards the end of 2007 the Senate Standing Committee on Aboriginal Peoples, acting on a non-partisan basis, agreed to look at problems of treaty implementation. We would like to thank Senator St. Germain and Senator Sibbeston, the chair and deputy chair of the committee, for their support on that review. The Senate committee heard from coalition members, the Department of Indian Affairs and Northern Development, the Office of the Auditor General, and a number of independent witnesses. We were informed that the Privy Council declined to appear.

The Senate committee considered the evidence it heard and in May of last year tabled a report called “Honouring the Spirit of Modern Treaties: Closing the Loopholes”. It is a forthright and well-argued report, and the coalition agrees with its key recommendations. We await the government response, which is due at the end of July.

Second, in the apparent absence of any interest in developing a policy jointly, the coalition developed its own model implementation policy. It is entitled “Honour, Spirit and Intent: A Model Canadian Policy on the Full Implementation of Modern Treaties Between Aboriginal Peoples and the Crown”. We met with Minister Strahl to discuss this proposed policy with him and released it publicly on March 3. It is attached as appendix B to your brief.

We are approaching you as a committee to ask for your support. Implementation initiatives need to be politically driven. Officials operate in separate compartments within the limits of existing regulations, policies, and funding levels. Their focus is on parts of the whole, not on the overall implementation of the treaties. We need political commitment to make these meanings of the land claims objectives and obligations a priority. Policies, regulations, decision-making processes, and funding allocations must fit that priority.

We need your help to make the implementation of the modern day treaties a political priority and we ask you to work with us to bring this about. Economic times are tough; we know that too well. It makes this especially important for us, for our treaties are critical to economic development in our communities. We must ensure that our treaties are not swept under the carpet yet again.

Mr. Chairman, I will now pass it on to Kevin McKay, chairperson of the Nisga'a Lisims Government. As part of his presentation, Kevin will outline more specifically how we think this committee might help.

Matna, thank you, merci beaucoup.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Kaludjak.

Mr. McKay, in fact we're over our 10 minutes there. By all means, make an opening presentation, but if you can somewhat summarize it in a shortened--

[Kevin McKay, Chairperson, Nisga'a Lisims Government, Land Claims Agreements Coalition]

Concise, succinct, and to the point.

[The Chair, Conservative, Bruce Stanton]

That would be wonderful, and then we'll go to questions. Thank you.

[Kevin McKay]

From one chair to another, I appreciate what you're up against.

Good morning, Mr. Chair. Thank you very much. And good morning, honourable committee members. I'm very pleased to finally have an opportunity to speak directly to each of you. You are probably all aware that the Land Claims Agreements Coalition has had a standing request to appear before this committee for quite some time, so we really appreciate this opportunity.

As my colleague Mr. Kaludjak has indicated, my name is Kevin McKay. I am the chairperson of the Nisga'a Lisims Government. This morning I am speaking on behalf of our president, Mr. Nelson Leeson, who sends his regrets. He could not be here due to other commitments. I trust you will be satisfied with the sample of weather we brought with us from northwestern British Columbia. It sets the tone for a positive morning.

I am pleased, obviously, to appear before you today with my colleague Mr. Paul Kaludjak. Today we speak to you on behalf of the Land Claims Agreements Coalition with respect to the implementation of land claims agreements. That is really what we're here about, first and foremost. The Land Claims Agreements Coalition is a coalition of aboriginal organizations in Canada that have entered into modern treaties. We are all treaty organizations in pursuit of an improved quality of life for our people, achievable only through proper implementation of our treaties.

Through modern treaties, the first nations, Inuit, and the crown agreed on aboriginal title to lands and resources and recognized a range of government responsibilities. This provided certainty within these territories. The coalition's member organizations and governments have experienced much frustration and disappointment with the way in which their land claims agreements are being implemented by the Government of Canada. Simply put, Mr. Chairperson, the experiences of our members indicate that these agreements are not being properly implemented, period, full stop.

The Government of Canada has not been sufficiently concerned, in our opinion, with working to achieve the overall broad objectives of the entire agreements. By and large, the Government of Canada's approach to treaty implementation has unfortunately been to fulfill the narrow legal obligations that are set out in the treaties. Mr. Chairperson, if you will, in our opinion, they are much too concerned with operating within the letter of the law as opposed to the spirit of the law. Even then, the government has often failed to sufficiently implement these specific obligations.

Speaking on behalf of the Nisga'a Nation, I will say that a primary example of the frustrations that we have experienced in the implementation of our treaty obligations has been in respect to the renewal of our fiscal financing agreement. Under the Nisga'a treaty, there is a treaty obligation on the part of all parties to negotiate and seek to reach agreement every five years on a fiscal financing agreement. We are now in year nine of our five-year fiscal financing agreement. It was only last month that we finally received a response to our detailed five-year funding proposal, which we provided to Canada in December 2005. Moreover, the response we have received from the federal government has not been favourable. We were informed last week that Canada is not willing to provide us with any increases in funding for fundamental programs and services. This really concerns us, Mr. Chair.

As a result, our government remains undercapitalized, and it has been since day one. We remain in a position of lacking sufficient funds to provide the ever-evolving array of programs and services that our citizens require and that we fought so hard to be able to provide under our agreement.

We are not alone in these particular frustrations. Mr. Kaludjak has commented on the experience of NTI. We are also aware that seven of the Yukon first nations continue to be delayed in their attempts to negotiate new financial transfer agreements. They have entered into year ten of what were to be five-year agreements--a concerning trend indeed, Mr. Chair. As well, our friends in the Yukon were recently informed by Canada that they would not be receiving any increases in funding for their important programs and services.

Our treaty relationships are not with any single federal department or agency, but they are with the crown, represented by the Government of Canada. In practical terms, this requires all federal departments and agencies whose mandates and activities intersect with modern treaties to do their part to implement them. Every department and agency of the Government of Canada has an equal responsibility to ensure that their duties and activities are carried out in a manner consistent with the obligations of modern treaties and to contribute to the achievement of the objectives of the agreements. Unfortunately, to date, our efforts to engage the Government of Canada in a meaningful policy development process have not been successful.

As the crown has often refused to engage meaningfully with the coalition and/or the leaders of aboriginal treaty organizations, we believe that the relationship between Canada and aboriginal treaty organizations will continue to deteriorate as long as the Government of Canada refuses to fully implement modern treaties according to their spirit and intent and according to the fundamental objectives they embody. We believe that a new national policy on treaty implementation is urgently required to ensure that all agencies of the federal government participate in the implementation of modern treaties.

In conclusion, I want to re-emphasize, Mr. Chair, that we are all governments in pursuit of an improved quality of life for our people through results-oriented government. We believe this is achievable only through the proper implementation of our treaties.

In conclusion, on behalf of the coalition, we respectfully call on this committee to recommend to the Government of Canada the adoption of a new land claims implementation policy.

Thank you, Mr. Chair.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. McKay.

Now we move to questions from members. Let us start with Mr. Bagnell.

Mr. Bagnell, you have seven minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Mr. Chair, and thank you to both of you for coming. We're delighted to have you here.

I'm not sure if a new policy is going to help when we actually have laws that aren't even being followed. If you want to give any more details about this, both Kevin and Paul, forget about what the Auditor General said about the spirit of the claims; they're not even following the letter of the claims, but are actually breaking the agreements we have.

Before you do that, though, I want to welcome three Yukon chiefs—Ruth Massie, Peter Johnston, and Mark Wedge—to the room. They're half of this big conference you're having. Thank you for mentioning that, Kevin.

The problems are the same there, as you said. The review of their land claims has been going on for years now. The Carcross/Tagish First Nation the Teslin Tlingits have been working for 10 years on a justice agreement. We signed these agreements, and these are laws. They're stronger than normal laws, as they're constitutionally protected, and we should follow them.

And what's most embarrassing is that the deputy minister wrote recently to Carcross/Tagish, not following the agreement to let them take down a law that we've already signed in law; they're offering concerns regarding financial efficiencies and sustainability of small stand-alone service agencies. Well, maybe there are concerns, but we signed an agreement, we signed a law, so why would we have the deputy minister writing and basically saying that he's going to break the law and not follow these constitutionally protected land claim agreements we've signed? We should get on with them, whether or not we agree with them. This is the law of the land; let's be efficient and let's support the honour of the crown and deal with them.

Maybe each of you could provide us with examples of the federal government not following the letter of the law.

Paul, you might also comment on the recommendations in the Berger report as well.

[Paul Kaludjak]

Thank you, Mr. Bagnell. I think we're on the same level of latitude in the north. Larry might be closest to us in terms of our backyards. It's good to see you this morning.

As to the implementation difficulties, that's why we're challenging in court, because nothing was fulfilled. We already knew that when we signed the claim in 1993 in Nunavut. We have a policy before us. It became a policy. It is the rule of the land. Halfway through the process—it has been 16 years now—somebody forgot to undertake the responsibility to implement it appropriately. Somebody forgot that along the line. Many times we come to Ottawa and are forced to make a wake-up call. You signed the agreement in 1993. We're supposed to be working at it and not falling asleep on it along the way.

We Inuit of Nunavut committed to the claim 100%. It is the law of the land. That's what we believe. To see that somebody is forgetting to implement it along the way is a breach. It's breaking the rules of the land. I don't know how else you can interpret it in English. In Nunavut we would say aitaa—pity. We're really sorry it's come to this.

We made attempts to help INAC to help us implement the claim, but it has never happened during the past five to seven years. That's why we're where we are today, trying to kickstart it. We really hate to do the court process. That was our last resort. We had to take that step because the government was not being fair to us.

Secondly, with respect to the implementation and the process of our work, it has been a long haul. We need people like you. That's why we're here today, and why we're having this conference this week—to engage ourselves on what next steps to take. They'll give us a mandate, once again, for the next one, two, or three years down the road on what we will do. That's where we are today.

Thank you.

[The Chair, Conservative, Bruce Stanton]

Mr. McKay.

[Kevin McKay]

More than anything for the Nisga'a Nation, the treaty represents an array of opportunities to become self-reliant and to be able to provide for our citizens without having to come hat in hand to senior governments.

The emphasis that I made in my comments with respect to the undercapitalization of the Nisga'a treaty shows that Canada's approach to implementing this treaty is not very effective. If the Government of Canada can't even recognize that it is necessary to properly and adequately capitalize this venture with respect to the opportunities in our treaty, then we're falling short right from the get-go. That groundswell will eventually overwhelm any attempts by the Nisga'a Nation to meet these very legitimate needs of our citizens.

The treaty represents the reality of the Nisga'a Nation's place in Canada and in British Columbia. What hasn't happened yet is for that to trickle down to all the departments within the Government of Canada. Our call for a new policy on effective implementation means that there's a need for an institutional change. The Indian Act and the Department of Indian and Northern Affairs did not contemplate implementing modern treaties. That's what it's all about.

[The Chair, Conservative, Bruce Stanton]

Thank you. Unfortunately, your time is up.

Now we will continue with Mr. Lemay, from the Bloc.

Mr. Lemay, you have seven minutes.

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

I listened to you very carefully.

Last week, we had representatives here talking to us about the implementation of Treaty One and Treaty Two. We agreed that they should come back to see us probably once a year. Believe it or not, it was only a week before they appeared before us that they received documentation that they had been asking for since 2005. It is strange. You run into obstacles like that in life sometimes.

It seems that you are in much the same situation. You come before us, but you finally received your information only a short time beforehand. I have read all the documents that you sent to us.

There is something you should know: the federal government is in a conflict of interest. It makes little difference whether the government is liberal or conservative, the same applies.

Let me explain why it has a conflict of interest. It is because the government signs the treaties; the government decides when it is going to sign them, the government decides how the discussions on implementation will be paid for, and the government decides when those discussions on implementation will take place.

We passed the Specific Claims Resolution Act that is going to give the courts an important role in specific claims. Of course, I know that does not apply to you.

I am looking for a practical solution; I heard you clearly, and I would like you to tell us if you have one. I am a very practical man. We have settled with the Naskapi, with the Cree-Naskapi and with the Inuit of Nunavik in Quebec. Now, we are going to settle with you.

I am looking to you to propose a practical solution to us. What do we do to get this out of the government's hands? Otherwise, it will take you 30 years. You will no longer be here, but your grandchildren will be.

That is the question I ask myself: how to get this out of the government's hands so that we can make sure that the treaties are implemented?

[The Chair, Conservative, Bruce Stanton]

I won't take your time away, Mr. Lemay.

Just so we understand these rounds, we have seven minutes, or five minutes in the second round, for questions and responses. If you could try to keep your responses within that timeline, I'll try to motion to you when we're getting close to the end.

Please proceed.

[Paul Kaludjak]

Thank you, Mr. Chairman.

Thank you, Mr. Lemay, for your comments. We're used to working with timeframes, so we'll do the best we can.

[The Chair, Conservative, Bruce Stanton]

I appreciate that.

[Paul Kaludjak]

I want to go back to Mr. Bagnell's second comment about the Berger report.

We agree wholeheartedly with the arguments he proposed in the report he produced two or three years ago. It was endorsed at that time by the Nunavut government. We never got a firm indicator from the federal side at that time. We were not sure if they would support the report publicly. There was no firm indication from the federal side at the time, but at least it confirmed our argument about lack of implementation. It was heavy on article 23, the training component, employment within the government provisions. It was heavy on the education side, because we've had critical problems with the education system over the last 10 to 15 years in Nunavut. So that's just to respond to that.

Mr. Lemay, thank you. We worked on practical solutions for over seven years. We laid them out to the federal government on implementation difficulties. We laid them out to whoever we could talk to--MPs, senators, committees, and INAC, which was foremost in charge of implementation for us. We put everything on the table. We set out practical solutions and ran out of them. That's why we're in court today, sad to say. That's our practical solution today, because there were no practical solutions.

But we're not going away. We're going to keep pressure on this and take it to whatever level is needed until a commitment is made, implementation happens, and you keep your end of the bargain. That's what it's all about. At the coalition level, we need to discuss taking it out of the government's hands to find out where that can lead us. But before we go there, we need an indication of implementation policy from the government side. We need a commitment; it's simple as that.

Is that so hard to take? We need a direction, a policy, a mandate. You already have a mandate as the federal government, because you signed our claim in Nunavut. That was a mandate and it's been broken.

Thank you.

[The Chair, Conservative, Bruce Stanton]

We have a short time for comments from Mr. McKay on that point.

[Kevin McKay]

In the Nisga'a experience, the Nisga'a government provisions were a hard-fought compromise, and they're constitutionally protected. Through that process, we believe the treaty contemplated a government-to-government relationship with Canada, as well as B.C.

I'm going to interpret your question, Mr. Lemay, about Canada not absolving itself of the obligations under our treaty. But maybe in practical terms--at least not having a hands-on kind of situation on a day-to-day basis--we accept that interpretation.

As for a practical solution, we ask that you seriously consider our suggestion that the Government of Canada see the value of working with the coalition to develop a new national policy for implementing claims.

[The Chair, Conservative, Bruce Stanton]

Very good. Thank you very much, Mr. McKay.

Thank you, Mr. Lemay.

Ms. Crowder.

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

Thank you, Mr. Chair.

Thank you very much for coming before us today. This is an important issue, because as we find more treaties coming forward, there isn't a lot of faith that they will actually be implemented.

I want to touch on a couple of comments in the Senate report. They say they were troubled by the narrow approach to treaty implementation adopted by the federal government. They also say there are deep structural reasons for the government's failure to make measurable and meaningful progress on issues affecting aboriginal Canadians. They talked about the Department of Indian and Northern Affairs being steeped in the legacy of colonialism and paternalism, and they make a recommendation about replacing INAC with a direct institutional role between the federal crown and the aboriginal people.

In a letter the Auditor General sent to the committee on March 4, 2009, she outlined all the various reports she had made that touch on issues affecting first nations, Métis, and Inuit. Specifically, she talks about settling claims, implementing agreements, and resolving outstanding legal matters, and she cites numerous reports. It's not just one. Then she also talks about meeting treaty land entitlements. She talks about the B.C. treaty process. She talks about the Inuvialuit Final Agreement.

In here she says: Failure to settle comprehensive land claims and modern-day treaties or to implement agreements increases the legal costs for settling issues in court and results in lost opportunities. These lost opportunities include the sustainable development of land, resources, and capacity; potential investors; and meaningful socio-economic partnerships between First Nations and governments, the private sector, and other Canadian citizens. Several of our audits address problems we found in the government's management of land claims.

I know that in your presentation you talk about the fact that once these treaties are signed, the Canadian government has some certainty in terms of its access to land and resources, but first nations and Inuit still are left with a great deal of uncertainty because of the failure of government to actually work with the nations to implement.

In your presentation you actually laid out four recommendations, and I'm going to paragraph these: adopt and promptly implement the new policy; establish a land claims agreement implementation commission; establish a cabinet committee on aboriginal affairs because of the lack of coordination among departments; and appoint a chief federal negotiator jointly with the coalition. In your view, are these the four key critical items that need to be in place in order to meaningfully implement the agreements?

[Paul Kaludjak]

Thank you, Mr. Chairman and Madam Crowder.

I must say that over the years, Jean, you've helped us out a lot on the Nunavut side to put forward our arguments in terms of implementation, and we thank you for that initiative you've taken over the years.

In terms of the four specific recommendations that we made, the last time we met here as the coalition—Kevin and I and the minister—it was to point out these four specific recommendations. This was to guide, I suppose, the federal government on what appropriate steps to take, to take a focus on certain issues, because we knew they were not sure of how they could approach and develop the policy itself if it was supposed to become a reality. So we put forward those recommendations, just trying to help the federal government, to guide them on what process would work, what possible solutions and recommendations would work, because as we said, there was no specific department that we knew of that was directly mandated to implement any of the treaties specifically, directed or otherwise.

We felt the federal departments were all over the place on this. There had to be a coordinated effort somewhere. That's why we put those four recommendations forward, so that they could work on something and maybe develop one of them—the commission, for example. We were throwing out those kinds of avenues so we could help guide the government to develop some sort of workable tool, so that they could start implementing the respective treaties that were outstanding across the country, not just for us.

[The Chair, Conservative, Bruce Stanton]

Thank you.

Mr. McKay.