Indigenous and Northern Affairs Committee on Oct. 27th, 2011

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Thank you very much. I have a very quick question.

Thank you, Chair.

Thank you, witnesses, for being here.

This is probably a question for Mr. Gagnon.

You talk about the certainty of rights for all parties as one of the things you do in transferring title and in dealing with relationships with other governments. You said an interesting thing just one moment ago, Mr. Gagnon, about managing the obligations and, I guess, the outcomes.

Just to help me understand whether it involves a treaty or a specific claim, for example, from a numbered treaty or a numbered reserve, what is the ATR system, the attached to reserve system? Can you explain what it is and the process by which it works, if you're the right person to do that? Or Mr. Barkwell, or anybody...?

[Stephen Gagnon]

I could take a stab at it. It's another part of our department, but I don't want to give you the bureaucratic answer. The ATR is the additions to reserve process. It is really a process that applies--often in the specific claims in the treaty areas--because there was unfinished business in terms of making sure that the lands were transferred, but it's also a process by which you can add reserves that aren't laying specific claims.

I don't know whether that helps to answer your question, but it is the means by which we add lands to reserve, and there's a specific context, as you said, in the numbered—

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

In the treaties you are talking about and dealing with, does that same process happen? When you make a settlement, is there a possibility, as part of any cash outcomes that they might receive, for example, for them to increase the size of their treaty lands or...?

[Patrick Borbey]

I can address that, because at the end of the day, our objective in signing treaties is to get people out of the Indian Act. The ATR process is an Indian Act process. When a treaty comes into effect, for the lands that are provided, whether they're previously reserve lands or new settlement lands as part of the treaty, the lands that the first nation owns will be completely outside of the Indian Act. They will own it in fee simple and then it's up to them to decide how they want to manage it. They no longer are under any responsibility for the Indian Act.

So in addition to reserve process, it's really related to decisions that are made, and quite often specific claims: land that was not provided in the past or was improperly taken away and that's returned, or that the first nation can buy on the open market. Therefore, it has to meet all the Indian Act requirements. There are environmental requirements. There's a requirement for agreements with neighbouring municipalities for servicing. There are tax issues. A number of issues that have to be resolved before that land can be formally added to the reserve.

It's a process that takes a long time--too long--and it is something that is under the responsibility of one of my colleagues, Sarah Filbee. You may want to consider a question in the future on this issue.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Thank you very much.

If I have some time left--

[The Chair, Conservative, Chris Warkentin]

You have two minutes.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

--I think Mr. Bevington has something to add.

[The Chair, Conservative, Chris Warkentin]

Sure.

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you for joining us today.

In the Northwest Territories, certainly, we have a lot of things going on within your department. One of the problems that people from the claimants groups come to me with is the lack of continuity with the negotiators from the federal side.

We're dealing with processes where the claimants groups are borrowing from their likely cash settlement at the end. We see the negotiators change. We see the progress of their claims slow down. Is there a fair way of dealing with the people in terms of who is responsible for the pace and cost of these negotiations? There's a question of the--

[Patrick Borbey]

Yes, you have a number of elements there.

In terms of the negotiators, it's a mix. We have full-time public servants who are hired as negotiators and work on specific files. Sometimes they leave the negotiations at tables. In other cases, the minister names a chief federal negotiator--somebody under contract--and quite often it's for the higher-profile, more difficult tables. Sometimes it's towards the later part of the process, when we need a closer, in some cases, somebody with a lot of private sector experience.

We have a mix of the two and we provide direction to both. They work under our direction. They work under the same kind of mandate that's approved by cabinet. So that's a little bit of the mix.

In the case of the north, yes, it is a bit of a challenge to find qualified negotiators. We had a negotiator on the Dehcho process for many years; you know who he is. We were sorry to see him leave for personal reasons--nothing to do with frustration over the process--but we've picked up with staff negotiators since then. Actually, I'm quite surprised at the progress that we've been able to make, because I was worried also about that table.

So yes, that is an issue in terms of continuity when we're using contracted negotiators.

On the issue of the overall cost, yes, we do insist on seeing work plans--and realistic work plans--on what can be achieved: how many meetings; what can be done between meetings by technical working groups; and how we can reduce costs associated with travel by doing more video conferencing--which is a little bit difficult, sometimes, to accept, but sometimes the logical thing to do is to quickly touch base.

We are looking at ways to reduce that cost for us, as well as for our partners, first nations, or territorial and provincial governments.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Mr. Payne, for five minutes.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chair, for my questions and comments through you to the witnesses.

First of all, I'd like to welcome all of you here today.

It's nice to see you again, Patrick.

I was quite interested in page 10 of your presentation to us. You talked about emerging evidence on aboriginal groups and self-government, and particularly the outcomes, more so in terms of the impact assessment on aboriginal self-government. You talked about first nations having better education and better employment and labour force outcomes, and certainly that's all part of the economic piece that I think most of our committee is very interested in moving forward with.

Could you give us a little more detail on how you see the differences in education, labour, and those kinds of outcomes?

[Patrick Borbey]

Thank you for that question. It's certainly exciting for us to see this kind of emerging evidence, because it does take some time. We're starting to see it through the combination of evaluation work done by the department and work done in Perry's shop on the impact assessment. I'm going to turn to him in a second.

I'll just let you know that we need a few more months to be able to ensure that all of that work is finalized and translated. Our intention, really, is to share it as broadly as possible and make it available to the committee and to the public at large, because I think it's important evidence to put out there. It's not yet conclusive evidence but it certainly gives you those kinds of key indicators.

I'll turn to Perry.

[Perry Billingsley]

What we try to do with the impact assessment is look at something that is similar to the United Nations human development index. We looked at education and a number of indicators on labour force participation rates, on unemployment and employment, because those two differ, and we did find and have found on a couple of occasions significant improvements and significant differences between self-governing first nations and, essentially, status Indians residing on reserve.

We used Statistics Canada data. Our objective is to have this as publicly available as possible. In fact, we would like a university to pick up this exercise so that we can get more solid understanding of what's going on.

So these are the indicators, but I'm always very cautious. What's the old expression? Correlation isn't causation.

But one of the things, if we think about what's going on, is that it has to do with communities making decisions for themselves, combined with.... Communities that have self-government agreements have a greater voice in terms of cooperation with the communities that surround them and in their relationships with provincial and territorial governments and the federal government.

It's not always easy. It doesn't always go well. We've had some pretty tough negotiations with self-governing communities, but they get to make decisions at their own pace in respect to their own priorities, building on and aiming towards their own goals. We think that's what makes the difference. It's not our policy: it's the communities making the decisions.

[Patrick Borbey]

Some of it is also qualitative. I was talking to Chief Kim Baird earlier this week and I asked her about post-secondary education. She was very proud to report that they had 15 or 16 applicants this year for funding for post-secondary and they could fund almost all of them. I asked her what the situation was before the treaty and she said they were lucky if they ever had three on an annual basis. It doesn't sound like a lot, but for a community like that to have three times the number of people going through post-secondary education and hopefully coming back to their community to contribute and build capacity, it's huge for her. She's very proud of that ,and we're proud of it as well.

[LaVar Payne, Conservative, Medicine Hat, AB]

It sounds very positive. Do you have any data that you could share with us about the economic outputs? That would certainly be beneficial for me and for the other members of the committee.

[Perry Billingsley]

We're in the process of translating our latest impact assessment, so once that's accomplished, we'd be happy to share it with as many people as possible. We'll be posting it on our website as well.

[Patrick Borbey]

In fact, we'd like to see if we could have a symposium of some sort to bring people from various universities, first nations, and aboriginal groups together to talk about it and interpret and debate it, to have not just us as public servants, who are probably a little bit biased, debate it, but to have other people debate it, come to certain conclusions, and do further work and further research.

[LaVar Payne, Conservative, Medicine Hat, AB]

I think those are very important steps you're taking. They will certainly be beneficial to all those who are intending to go into that process.

Do I have any time left?

[The Chair, Conservative, Chris Warkentin]

No. I was just going to cut you off.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

[The Chair, Conservative, Chris Warkentin]

That's great. These questions are always longer than we expect. It's problematic when the member spends half their time asking the question. We understand that this is our own problem. This is not a dig at any member. I know it's a challenge to keep the question short so the answer can fit into the time allotted.

Mr. Bevington, for five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thanks, Mr. Chair.

Another issue that keeps coming back to me from land claims groups is this issue of mandate with regard to the negotiators. People are sitting around a table trying to come up with some answers to these particular issues at the table, and they do, and then somebody doesn't have the mandate to complete that answer. Is there some work being done to ensure that we get a little more orderly progress in terms of those mandates?

[Patrick Borbey]

It's a good question and it does come up a lot. Sophie Pierre's report certainly does allude to this.

It's important to understand that our overall mandates are guided by the policies. The comprehensive claims policy, the B.C. treaty process, which has its own legislation, and the inherent right policy. That's the overall framework we have to operate in. We have to ensure a certain amount of consistency across the country in the application of that framework.

But the actual mandates are approved by cabinet. These are provided by cabinet to the negotiator. These are cabinet confidence documents. I know that people have suggested that we should be transparent in sharing our mandates. It's not a good recipe for negotiations when your cards are on the table, so we can't do that. Our negotiators have their mandate, they know what their marching orders are, and they know they can go this far but not beyond that.

That does create that kind of dynamic at the negotiating table, but the first nations in the province or territory also have their mandates provided by their authorities, and they also have to stay within them. So finding that right point of fulcrum between our mandates is not always easy. In some cases, what comes back to the table is slightly different, and we need to have some interpretations and adjustments. I agree that sometimes this takes too long in terms of our consultations.

[Dennis Bevington, NDP, Western Arctic, NT]

Is it a practice of the department to reduce the land and money quantum after an offer has been made?