Indigenous and Northern Affairs Committee on Feb. 5th, 2009

[Michael Wernick]

Yes, the field people. We do about half of housing and CMHC does the other half at this point.

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

This is a long-term care facility for Oneida, so it wasn't....

[Michael Wernick]

I'll have to get back to you on the very specific thing.

To answer the question you're probably going to ask next, we do on-reserve and inside self-governing communities. We don't do off reserve. That sometimes comes up as an issue where there's an aboriginal institution, but it's not on a reserve or self-governing first nation.

The issue of operating dollars is a legitimate ongoing one. We try to provide transfers to first nations governments and the other recipients through the ongoing programs related to education, Health Canada for health, and so on. I'm not sure what to comment on that. That's true for all levels of government. Operating cost of infrastructure is an issue. I'm quite sure that all the municipalities that are going to get infrastructure out of this stimulus package will start asking about operating costs before very long. It's an issue.

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

Is there coordination with the operating funds when an infrastructure project is approved? A facility has been constructed and could be used.

[Michael Wernick]

The lists come from the communities out of their own planning processes and what they think they need. We're dealing in this budget with the so-called shovel-ready projects, which are pretty well advanced. That means the community wants them, they've done feasibility studies, the design and engineering work is pretty advanced, and they know they have to build that into their future costs. In many cases the new facilities are going to save them money because they'll be more energy efficient or they may save them from busing kids off the reserve and so on. The impact on the operating costs could be positive or it could be a burden for them.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Crowder, and Mr. Wernick.

Now we'll proceed to Mr. Duncan.

Mr. Duncan, we'll give you a little extra time here just to make up for the last shortchange. We have a few minutes left over, so if you'd like to indulge in an extra minute or so, that would be fine.

[John Duncan, Conservative, Vancouver Island North, BC]

Thank you very much.

Thank you for coming to our committee meeting.

I have two questions. They are rather broad in nature.

The first is this. We've now tabled the bill to amend the Indian Oil and Gas Act. I'm wondering if you can describe some of the benefits that would flow to first nations from passage of this bill—which has been kicking around for a long time. And maybe describe briefly the centre for excellence that is empowered by the bill, not directly but very indirectly.

Also, we just had the United Nations periodic review of human rights, with Canada firmly as a target nation. We were reviewed. A lot of the subject of that review, of course, involved first nations and our aboriginal population. I wonder if you could briefly describe the status of that and what the departmental response at this point might be.

[Michael Wernick]

Sure. Thank you, Mr. Duncan.

On the Indian oil and gas bill, I guess it will be before you shortly if the House refers it to you.

In broad-brush, this is a regulatory bill. It deals with how oil and gas activity—drilling, exploration, production and so on—would be regulated when it's on Indian lands. We always have the issue of what are the rules of the game on Indian reserves. Sometimes it's fairly clear that provincial law applies. Sometimes there is a clear federal statute that applies. Sometimes there is a gap, as in matrimonial property, or water standards.

I would describe the Indian oil and gas bill as a massive upgrade of the “software”. They've been operating with rules that date from practices in the 1970s. This will allow them to move to the state of the art, the way it's regulated in Alberta, Saskatchewan, B.C., and other provinces, and allow them to update rules more quickly in the future.

The centre of excellence, as I understand it, is an initiative similar to other ones we have, which is to have some people who are really, really good at oil and gas issues help first nations governments deal with the companies, the industry, and the issues that come up.

On the periodic review, that's fresh off the press. My understanding is that it's of course a review of Canada's performance as a country. It's part of an accountability cycle that all countries go through. Canada being keeners, we're early in the process; all countries eventually will be reviewed over a cycle. They just finished the cross-examination. The report I think is coming out of the process this week, and then Canada has until June to respond.

I don't want to get ahead of myself. The Government of Canada and I think the Minister of Justice will be tabling a response to the findings of the rapporteur.

I guess the only comment I'd offer is that of course aboriginal issues came up prominently in the cross-examination and I'm sure they'll figure prominently in the report. This committee has been working on a number of those issues. You dealt with amendments to the Human Rights Act last year. You're dealing with matrimonial property this year, and I'm sure it will be an ongoing issue.

[John Duncan, Conservative, Vancouver Island North, BC]

Thank you very much.

I've probably used less time, but I'm happy.

[The Chair, Conservative, Bruce Stanton]

Okay.

Now, committee, that essentially finishes our second round. We currently have two members on the speaking list at this point. I'm at your discretion here; if you wish to proceed with the remaining two speakers who are on the list, we can do that. We have a third now. We can go through the next round.

We probably should leave a few minutes at the end, so that we can consider how we will proceed in wrapping up our subject today.

So if it is your wish, then we will go to a five-minute round and do the best we can.

Is that the wish of the committee?

Seeing no dissent, we'll proceed then with Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Thank you for being here this morning.

I want to follow up on my earlier comments to the minister. What activities or analysis have you undertaken with specific reference to the Indian governance support programs? Some of the documents I have looked at present sort of a scathing picture of the current status of these particular programs and their inability in the 21st century to meet the challenges that first nations or tribal councils have to meet. The information I have points to the fact that you guys have been considering revamping the program without consultation, choosing an option that will be without consultation, and that would provide some increases in funding, but on the cheap, so to speak.

Can you comment on what you've been doing as a department to address this particular issue?

[Michael Wernick]

Certainly, Mr. Russell.

It's actually a set of five programs that provide basic support for first nations governments and different facets of their basic operations as a government. It's an old program; it's been around for as long as there have been first nations governments in the sort of modern sense of the word.

It's one of the programs that sunset. Most of our programs pop up—they're approved for three, four, five years, there's an expiry date, we have to go back and re-argue the terms and conditions of the program, go back to cabinet and Treasury Board, and get them renewed. We do probably a dozen renewals a year, at least. The first year I was here, we did more than 40. So we knew this was coming; the program expires next year and we'll have to go back and re-argue the case. So we are precisely going to consult the people affected by it before making any recommendations to cabinet, which has not looked at this and hasn't taken any decisions on it.

[Todd Russell, Liberal, Labrador, NL]

Just to follow up, in some of the documentation it appears you want to use the word “engagement” with first nations, as opposed to “consultation”. Is it accurate that that's what some of the discussion has been about? And what would the difference be between “engagement” and “consultation”?

[Michael Wernick]

The lawyers' definition of “consultation”, in the context of section 35 rights, is a pretty narrow one. I'm not going to debate that; I'm not a lawyer. You can ask the department. So there are obligations to consult aboriginal people on issues that may affect their aboriginal and treaty rights. We understand that. The government and all governments, including provincial and territorial governments, have to meet those obligations. It's debatable whether that extends to changes to programs and policies. You'd have to make a case that they affect section 35 rights.

Now, we consult, in the more general sense of the word, on just about everything we do. We wouldn't even contemplate advising the minister to change a policy or a program or a law without talking to people who are going to be affected. So we're out there talking to people about a number of issues, as you know, and happy to provide details on that.

On the Indian government support programs, I've had representations, letters, delegations, people coming in to see me saying, “You should do this, you should do that, you should change it this way”, and so on. I'm quite happy to provide to the committee with everything we've got on the programs, and I encourage you to take a look at them, if that's the committee's desire.

[The Vice-Chair, NDP, Jean Crowder]

You've still got about a minute.

[Todd Russell, Liberal, Labrador, NL]

Thank you.

Yes, we would love that information.

Are there rough estimates of the underfunding or the underresourcing of the Indian support program to date?

[Michael Wernick]

You'd have to ask. I mean, I don't know how you would come up with that number. Everybody would like to have more money. You could pick almost any number for it. We've done evaluations of it and I think people who run first nations governments have a pretty good sense of what they think the basic costs are. These programs aren't for sort of extra program initiatives, and this is basically to keep those governments going, often in small communities and so on. I think we have some work done on that. We've done a study on these things as a program evaluation.

Some of the larger communities in Ontario feel that the program is too much of an average, that it doesn't reflect the costs of the larger first nations governments. It's fairly controversial, in terms of what the right formula is. It kind of reminds me of federal-provincial transfers.

[Todd Russell, Liberal, Labrador, NL]

And we know about that very well. Thank you for reminding us all.

Thank you.

[The Chair, Conservative, Bruce Stanton]

That will wrap us up, Mr. Russell.

Mr. Wernick, thank you.

And now we'll proceed to Mr. Albrecht for five minutes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

I just want to follow up briefly on the $200 million in Budget 2009 for the construction of new schools. The minister responded to Mr. Clarke's question earlier, and near the end of his response he indicated that the needs are probably much greater, in fact, than the $200 million. Now, the question I'm trying to get to the bottom of is what criteria are in place to determine which projects are highest priority? It's probable with the long list that many of these are shovel ready, as we say, but how will your department determine which community will have these huge renovations or new construction done?

[Michael Wernick]

I can provide detail on that.

Essentially what happens is we have a capital planning process. We have many needs in many communities, as Ms. Crowder pointed out. We do schools, water, waste water, electrification, roads, and so on--everything inside the boundaries of reserves. We run a set of regional waiting lists. We fund what we can each year based on priorities. The priorities in water are driven very much off that risk methodology that came up earlier. It's the same for schools; there are criteria. There's a lot of work done on what's the right size for how many kids; what kinds of facilities, and so on. We manage those lists as best we can with the money we get each year. We've had several exchanges with this committee about the rankings and the communities.

The budget came along as a bit of an opportunity to do more things over the next two years than we were expecting to do, so being shovel ready was not really a problem for us because there are a lot of communities and a lot of needs out there.

There will probably be a little push back on whether we've landed in the right places in terms of the needs that are out there, but these had to be ones where the design work was ready, the feasibility, the engineering. We weren't going to spend two years in community consultations about what kind of school and so on. The community, obviously, will make the final decision on what they want, and they will actually build the things. We provide the financing and they will do the tendering.

The minister will be in a position to meet the requirements of the budget to report in March, June, September, and December on the progress we've made.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Could I have another half-minute?

You may not be able to answer this, but are there concerns, with an injection of this amount of money, about whether there would be sufficient contractors able to expedite these projects if and when they are given the go-ahead, or will that be a challenge as well?

[Michael Wernick]

On the ones that were identified--we were a little on the conservative side--we're confident that those 10 schools and 18 water projects can be done. There is a risk that when they actually go out for tender, either the bids that will come in will be outrageously expensive or there will be nobody around to do the work. These are sometimes in remote parts of various places. But we're confident that these projects can go ahead, and if we can squeeze a few more out of our A base over the coming couple of years, we'll do those as well.

It is an issue. We can't guarantee the results of a particular tendering process.

[The Chair, Conservative, Bruce Stanton]

We still have a minute and a half.

Mr. Duncan.

[John Duncan, Conservative, Vancouver Island North, BC]

Further on that infrastructure question, we are involved in an exercise with the broader community for infrastructure proposals and so on. In some cases they're adjacent to first nations or reserve communities. Is there any merger of interests here? It just occurred to me that I may be making an announcement on something that's adjacent to a first nations community, and I hadn't really considered that maybe they have the same...or that we could piggyback the two things and achieve some economies here.