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

[Ray Boughen, Conservative, Palliser, SK]

I'm just wondering what the dollars are spent on. There seems to have been a large number of dollars spent, and I'm wondering on what.

[Patrick Borbey]

The accumulated loans total right now for the B.C. treaty process is $424 million. That's across all the first nations. That's the current situation.

[Ray Boughen, Conservative, Palliser, SK]

And those dollars were spent in travel, meetings...?

[Patrick Borbey]

Every year there has to be a work plan presented at the table and approved by all three parties, and that work plan then determines the level of funding. So you're right: it will be driven by the travel that's required. In cases where there are isolated communities, for example, that might be a bit expensive.

You have legal counsel and negotiating teams that are funded for the first nation. You have the frequency of meetings. The intensity of the meetings will also drive some of those costs.

We try to review that to make sure it stays reasonable across the country and that there's a comparable level of funding. We try to match the funding as much as possible with performance of the tables. We're starting to try to do a better job of monitoring the tables on a regular basis and reporting to the minister on progress and the cost associated with that progress.

[Ray Boughen, Conservative, Palliser, SK]

What was Canada's response to the common table proposals?

[Patrick Borbey]

We have seen a number of responses. The first major response came in August 2009 when Minister Strahl reported on a number of issues, but since then, the current minister has also responded to some of the issues.

Maybe I could ask Mr. Barkwell to give you a sense of some of those items.

[Jim Barkwell]

Six issues were raised. I'm not sure if I have the list right in front of me. The six elements that were addressed in the common table were: certainty and recognition; constitutional status of lands, also known as section 91(24) lands; self-government; shared decision-making and resource revenue-sharing; own-source revenue and taxation; and fisheries.

As a result of the common table process, the two governments, both on the federal side and on the provincial side, made formal responses and agreed to participate in technical level working group discussions on two specific topics that were part of the common table: achieving certainty in treaties, and first nation interests regarding section 91(24) status of lands.

[Patrick Borbey]

We are now rolling out some of those new measures. There is a new recognition and reconciliation language that will now be offered to first nations. This is the first time in the context of the B.C. treaty process that we're rolling it out in one particular table first to make sure that it works well and responds well to the aspirations of the first nations.

We also have a certainty model that I think we would say is leaps and bounds beyond the old cede, surrender, and extinguish model that, unfortunately, some people still think is what the federal government is trying to achieve. The new model recognizes that aboriginal rights exist and that they continue to exist even in the context of a treaty. They are not extinguished by the treaty, and future rights, if they're claimed and found, can also be exercised.

I think we have some models that go further in meeting the aspirations of first nations, but it takes some time to roll them out at the various tables.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Borbey.

Mr. Genest-Jourdain.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good afternoon, Mr. Borbey.

To lead up to my question, I am going to go back to the words in your presentation. Among other things, you mentioned modern-day treaties between claimant groups. In your position, you probably well know that the concepts of band council and community management organizations are currently being questioned by first nation members. Based on that observation, does your department give consideration to claims from traditional family groups, acting as clans?

I would also like to ask another question about the representatives. I will be quick. When it comes to international law, we know that Canada focuses on the notion of democracy and the treatment of nationals and members of the population in diplomatic exchanges or economic and political exchanges. Will aboriginal groups be included as well? Is Canada going to make sure there is a community representative and that fundamental rights are upheld by those organizations before starting negotiations with any given group?

[Patrick Borbey]

I am going to ask my colleague Mr. Billingsley to answer that question.

[Perry Billingsley, Director General, Policy Development and Coordination, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development]

In answer to your first question, we currently have the band council system in place. But in order to move towards self-government, we are trying to find a government system that the council deems to be both legitimate and practical for the members of the community. All these issues are obviously to be taken into consideration in a 21^st century. So we have to look at bringing the traditional and the democratic systems together and find solutions. And that entails negotiations. We have been successful with a Yukon community where we found a way to tailor the clan system to the democratic system.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

You are telling me that the band council is currently the only representative recognized by your department. Is that correct?

[Perry Billingsley]

Yes, that’s the system we have to deal with. We have to comply with the legislation the way it is, but a big part of negotiations and consultations still includes consultations with the people of the community.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

We are talking about a government-to-government relationship and I would like to know whether those concerns will be brought forward. Are we going to make sure that we have the people's approval and that there is not going to be some sort of totalitarian regime imposed on community members, the way it is at the international level?

[Perry Billingsley]

In our discussions and negotiations, we need to have a system in order to ratify the agreement and make sure that people are consulted. Not only do people have to vote on the self-government agreement, but they also have to vote on the constitution of the community that will be created.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

So the ratification by community members takes precedence over the consent of the nine people in charge. Is that what you are saying?

[Patrick Borbey]

Yes. The Charter and the Constitution continue to apply regardless of whether a treaty is signed.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

We sometimes see acts of protest on the ground. The nine people in charge often ratify an agreement, but then the same agreement is rejected by the people. That is what is currently happening in the community I am from. Does this type of problem arise? Does your department take it into account?

[Perry Billingsley]

We take it into account when ratifications fall through, which we have seen in the past. When that happens, we stop the agreement and the constitution. The agreement does not come into force.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Mr. Wilks, you'll have five minutes.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Chair.

Thank you, gentlemen, for being here today.

I would like you to go back to page 12 of the notes you provided to the committee, specifically to this: “While the complexity of the issues often leads to extensive negotiation time and expense, we continue to look for ways to improve these processes and to expedite the conclusion of agreements...”.

That's where my question comes from. What is your department doing to improve implementation of the modern treaties? Can you expound, each of you, on what you're trying to do so that we understand it?

[Patrick Borbey]

Thank you.

This is really a two-part question, because we are looking at ways of improving the treaty-making process, but we're also actively working on ways of improving our implementation of modern treaties. I will turn in a second to my colleague, Mr. Gagnon, who is the king of implementation in our department.

In terms of improving the negotiations, one of the things we're looking at is whether we need to have closer accountability and reporting with respect to progress at the table—I alluded to this a little earlier—and better linking of financial commitment efforts with results and outcomes. That's certainly something we want to spend more time on. On an annual basis, the minister reviews the progress at each table. We are now looking at increasing that frequency so that there is even more accountability for progress.

That's one area.

Another area is that we think that our negotiators should perhaps be advancing the tough issues a little bit earlier in the process. The traditional approach is to start the negotiations, build trust, build credibility between the partners, and build the capacity in the community to be able to absorb the changes, but leave some of the tough issues until later on.

In some cases, this has worked. I think somebody told me that in the Nisga'a case, that kind of approach really did work: they built the trust, and it eventually led to a treaty.

I think we have achieved a level of sophistication now such that we should be able to put forward tougher issues earlier in the process, so that we find out right up front if there is going to be too much of a gap at the end of the day. Then, both parties or all three parties know where they stand, rather than leaving some of the tough issues to be dealt with later on.... That's one area we're exploring.

I'd like to ask Steve to comment now on implementation.

[Stephen Gagnon, Director General, Implementation Branch, Department of Indian Affairs and Northern Development]

Thank you, Patrick.

Thanks for the question.

By way of context, land claim implementation has been fairly heavily scrutinized over the last decade or so, I would say. The Auditor General has made a number of reports. Those reports have been picked up by various parliamentary committees. The public accounts committee of the House and the Senate committee on aboriginal affairs have looked at various aspects. The Land Claims Agreements Coalition, which is a group representing each one of the land claimant groups, has made representations.

I don't want to oversimplify, but the theme was that Canada needed to do a better job of implementing land claims. It was constructive criticism that we've taken to heart. We realized that we needed to organize ourselves better internally.

Among things we would look to improve was intergovernmental coordination. You may or may not know that in order to get a treaty, we need to go through a very robust intergovernmental approval system, whereby we need to go to cabinet a number of times and we need to consult with a number of departments.

There's a committee of senior ADM-level officials, which Patrick chairs, that looks at issues concerning negotiation. We've tried to adapt that existing committee to also now start looking at implementation issues, so that we can start getting the same kind of scrutiny for post-effective-date issues that we had before.... We've also piloted some regional caucuses to make sure that people in the NCR are communicating with the people in the departments at the community level, where they actually do the work, to make sure that the messages are consistent.

Another area in which we thought we needed to do a better job and which we have looked at improving is communicating roles and responsibilities to colleagues in other departments. Our department is responsible for managing the obligations, but many departments have direct responsibilities for fulfilling aspects of land claims, such as Fisheries and Oceans and Natural Resources Canada, for example.

We are trying to develop tools. In May, we published and put online a general guide for implementers to set out roles and responsibilities and to talk about where you can get information and that sort of thing. It talks about the federal process. We're pleased with the reception we're getting with that.

This has also given Patrick and me an opportunity to make presentations to departments that want to get a better sense of where they fit into the implementation scheme and where we do.

The other area in which we are looking to make improvements concerns how we report and monitor on land claim agreements. In 2008, I believe, Treasury Board issued a contracting notice that required all departments that do contracting in any land claim area to report on that contracting. Our deputy is responsible for posting those reports, but each department needs to now record when they spend money, even in some cases up to using credit cards, in land claims areas.

We have developed something web-based that we call CLCA.net. It includes a public report to which we post quarterly and annual reports.

[The Chair, Conservative, Chris Warkentin]

I apologize. I'm going to have to jump in. We've overrun the clock a bit, so I'm going to turn to Mr. Rafferty for five minutes.