Indigenous and Northern Affairs Committee on Sept. 19th, 2017

[The Chair, Liberal, MaryAnn Mihychuk]

I wish to welcome everybody. The MPs have been away in their ridings, and I know that they are thrilled to be back in our nation's capital.

Before we start, I want to recognize that we're on the unceded territory of the Algonquin people.

We have a little bit of committee business to do before we hear from the department, and that is to elect the vice-chair. I'll turn this over to our new clerk, Mike, and we will proceed from there.

It's all yours.

[The Clerk of the Committee, Mr. Michael MacPherson]

Pursuant to Standing Order 106(2), the first vice-chair must be a member of the official opposition. I am now prepared to receive motions for the first vice-chair.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

I'd like to move that Cathy McLeod be our first vice-chair.

[The Clerk]

It has been moved by Mr. Arnold Viersen that Cathy McLeod be the first vice-chair.

Are there any further motions?

Is it the pleasure of the committee to adopt the motion?

(Motion agreed to)

[The Chair, Liberal, MaryAnn Mihychuk]

Perfect.

Now, pursuant to Standing Order 108(2), we are resuming our study on specific claims and comprehensive land claims agreements. We're very pleased to welcome the Department of Indian Affairs and Northern Development. We have three representatives, who are going to be talking about the technicalities of land claims.

We have a procedure that provides 10 minutes combined for all three of you for opening statements.

[Perry Billingsley, Associate Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development]

It's 10 minutes for all three of us? I'm hoping it's not quite that long.

[The Chair, Liberal, MaryAnn Mihychuk]

Do you all get along?

All right, good.

We'll go over to you for your presentation, and then we'll have questions and answers.

[Perry Billingsley]

Good morning, Madam Chair and committee members. Thank you for having us here today to talk to you about comprehensive claims, specific claims, self-government, and some of the related negotiation and implementation processes that we have.

I would also like to acknowledge that we are on unceded Algonquin territory.

My name is Perry Billingsley. I'm the associate assistant deputy minister with the treaties and aboriginal government sector in the department. With me today I have Stephen Gagnon, who is the director general of the specific claims branch in treaties and aboriginal government, as well as Julie Mugford, who is the senior director of modern treaty implementation.

Today my goal is to provide an overview of federal negotiation processes to address indigenous rights and interests, as a bit of background for the questions that will follow. I will also speak to some of what we have learned from our indigenous partners and to our vision for moving forward with policy and policy reform.

What I hope to demonstrate is that to truly renew relationships with indigenous peoples based on the recognition of rights, respect, co-operation, and partnership, we need to acknowledge that different contexts and priorities require differing approaches to resolving rights issues. While we've had some successes with our policies to date, they need to be updated to better reflect the interests and priorities of indigenous peoples in negotiations. We need to expand our tool kit if we are to address the rights and interests of first nations, Inuit, and Métis across Canada.

We have tabled a number of handouts to facilitate further discussion and questions.

When we enter into negotiations with indigenous groups, we are coming to the table as partners, with the shared goal of advancing self-determination and self-government.

Currently, the department is negotiating several different types of agreements with indigenous groups. These agreements are related to the aboriginal and treaty rights set out in section 35 of the Constitution.

Through these various negotiation processes, we are working collaboratively with indigenous communities to advance their rights and interests, to build and renew relationships, to advance self-determination and reconciliation, and to close socio-economic gaps.

The department also negotiates specific claims settlements. Specific claims are made by first nations against the federal government that relate to issues with respect to the administration of land and other first nations assets and to the fulfillment of the pre-1975 treaties.

Canada's comprehensive land claims negotiation policy was first adopted in 1973 to address unresolved land claims and assertions of aboriginal rights not dealt with by treaty or other legal means. It has evolved over time, but the general purpose is to negotiate agreements to provide greater certainty over the ownership, use, and management of lands and natural resources.

In 1995, Canada released the inherent right policy, which recognizes the inherent right of self-government as a right under section 35. It advocates implementing self-government through practical and negotiated agreements.

In terms of outcomes and impacts of the kinds of agreements we negotiate, we look to census and national household survey data to point to better socio-economic outcomes for indigenous groups that have completed modern treaties and self-government agreements.

To use education outcomes as an example, census data from 1991 to 2011 show that as a group, self-governing first nations outperform the census category of registered Indians on reserve in terms of absolute educational outcomes as well as rates of change in improvements. Self-governing first nations have consistently lower high school non-completion and consistently higher post-secondary completion rates than the category of registered Indians on reserve.

The sectoral self-government agreement on education with the Mi'kmaq of Nova Scotia illustrates this effect.

The Mi'kmaq in Nova Scotia have seen improvements such as an 89% graduation rate in 2014-15, more than twice the average of all first nations schools in Canada, as well as improvements in literacy, numeracy, school attendance, and student retention.

Canada and the Anishinabek in Ontario hope to replicate the success with the sectoral agreement on education and the companion agreement with the Province of Ontario that was signed this summer with the Anishinabek Nation in Ontario.

I do want to say that negotiated agreements are only as good as their implementation. Federal departments in the past have found themselves challenged in meeting their legal obligations under modern treaties, which has been costly to Canada in terms of litigation.

More recently we have worked with the Land Claims Agreement Coalition, a group of representatives from different indigenous groups that have settled their land claims, and strengthened federal internal governance through the whole-of-government approach to modern treaty implementation, which was released in July 2015 along with a statement of principles on the federal approach to modern treaty implementation.

We've made positive inroads, but much remains to be done. We're continuing to work to improve our implementation efforts.

Canada also engages in negotiations, as noted earlier, to resolve historic grievances that first nations have against the crown. Since 1982, first nations have been able to make specific claims against Canada regarding the administration of land and other first nations assets, as well as the fulfillment of the terms of pre-1975 treaties.

The specific claims policy seeks to discharge the crown's outstanding legal obligations through negotiated settlements and achieve resolution of long-standing claims. Resolving specific claims is critical to rebuilding relationships with first nations. To date, Canada has settled almost 450 claims through negotiation. However, in recent years, we have heard concerns that first nations have with the specific claims process.

During a review of the Specific Claims Tribunal Act in 2015, first nations expressed concerns with the operation of the process, particularly with information sharing, the use of mediation, and funding.

Several recent reports, including reports from the Auditor General and the Standing Committee on Public Accounts, have concluded that Indigenous and Northern Affairs Canada isn't managing the resolution of specific claims in an appropriate or timely manner.

In response to these concerns, since June 2016 we have been engaged in a collaborative process with first nations, first nations organizations including the Assembly of First Nations, and other interested groups, to identify fair and practical measures to improve the process.

Since 2015, we've taken steps to address key concerns through a new approach in negotiations.

The new approach is called the “recognition of indigenous rights and self-determination discussion”. These interest-based discussions are about furthering self-determination through dialogue and partnership on the issues and interests that indigenous groups bring forward.

In conclusion, we know that a new section 35 policy suite is needed to replace and update our existing policy framework. Our rights recognition discussions are a starting point for this change, but we've been working with groups across the country to look at how we approach negotiations, how we negotiate, and the kinds of agreements that we're reaching. We continue to work with indigenous partners to guide our policy reforms.

Thank you very much.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much.

We're going to open now a series of questions. We'll give you an opportunity to respond and continue the discussion.

First up we have from the Liberal side, MP Gary Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Madam Chair. Thank you to Mr. Billingsley for joining us.

I would just take a moment to welcome the new members, new colleagues from all sides, to the committee, and also to congratulate our outgoing member on the Liberal side, Don Rusnak, who is now the parliamentary secretary to Minister Philpott.

Mr. Billingsley, I'm looking at your comments with respect to outcomes and impacts. I notice that the cohort you look at is that self-governing first nations outperform the census category of registered Indians on reserve in terms of absolute educational outcomes and in rates of change and improvement. I'd like to get a sense as to what those numbers would be if you were to supplement those with the non-indigenous populations.

When we're looking at claims and outcomes, I think it's important to look at what the overall population cohort's achievements are, as opposed to within reserve and non-reserve outcomes. Ultimately, our objective is to ensure that we have equality of outcomes for all people.

[Perry Billingsley]

Compared to the all-Canadians category in the census—because we made a conscious choice to use census data so that other researchers could look at the same data and validate or not our conclusions—there are still gaps between self-governing indigenous groups and the all-Canadians category.

Right now what we're doing is working with indigenous governments, from all of those groups that have self-government, to look at the gaps, how we measure gaps, and what we can do to work better towards closing those gaps.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Do you have a sense as to how big that gap would be at this point?

[Perry Billingsley]

If I hesitate it's because I can see the graph in my head. I believe it's online, and that's information we can follow up with. The best way to describe it is it's non-trivial. It is something that we really need to work with indigenous governments on, in the self-governing communities.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

One issue we've heard is that while we have comprehensive agreements, implementing the agreements themselves has become quite a bit of a challenge. Could that be one reason these gaps would continue, or are there other reasons you can think of that could contribute to the overall gaps that we see now?

[Perry Billingsley]

In terms of the overall socioeconomic gaps, I think the main contributing factor has been where these communities have come from. They've climbed a pretty steep curve in terms of addressing the particular priorities in their communities that relate to the socioeconomic gaps.

I'll use the Mi'kmaq education agreement. It's not because we have an agreement with the Mi'kmaq that they're doing well in education. It's because now they have control over the education. In doing so, they've undertaken special programs that assist students with different approaches to teaching that reflect traditional learning approaches.

This all takes me back to a lot of work that has been going on. We're trying to work with the indigenous governments to understand what the gaps are because the gaps are not the same in every community. And how do we address those gaps?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to the timeline it takes for specific claims and comprehensive claims, we're basically looking at almost a generation passing before a community can enter into some form of a sub-government regime. With respect to the comprehensive land claims, we're looking at upwards of 20 to 25 years for an actual agreement to come into place. Similarly with specific claims, I think we're looking at upwards of 15 years for specific claims to be addressed. What can be done to reduce those timelines, and in the interim what kinds of measures can be put in to assist, so that we're not waiting a full generation before we can pass on some of the self-governing tools that are necessary for the levels of achievement that we're looking at?

[Perry Billingsley]

This is a question with some pretty complex roots. I think the average for comprehensive claims is still around 13 to 15 years. Part of that is because it is a huge change and a management challenge for both the federal government and the indigenous group.

I would also say that Canada's approach to comprehensive claims in particular, which is to say full and final and certainty, has not helped us, because when you tell people you're negotiating full and final and certainty, they want to make sure that every i is dotted and every t is crossed.

[The Chair, Liberal, MaryAnn Mihychuk]

You have thirty seconds.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to specific claims, what are the numbers in terms of timelines?

[Perry Billingsley]

I'm going to turn to my colleague.

[Stephen Gagnon, Director General, Specific Claims Branch, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development]

In the recent Auditor General's report, I believe the Auditor General said that the mean average for us was five years to settle a claim. I need to be careful about the context. We're settling claims in five years but some of these claims date back to the 19th century. We're constantly trying to focus on improving that. What came into place in 2007, though, was a statute that said if we're in negotiations for more than three years and a first nation is not happy with that, they can go to the Specific Claims Tribunal to have their claim viewed by the tribunal.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questions are now moving over to the Conservative side, and MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair, and thank you to the witnesses.

Before I get into my line of questions, I want to put forward a notice of motion pursuant to our standing order. As people may be aware, there have been huge and significant wildfires in British Columbia, Manitoba, and Saskatchewan that have had very significant effects on indigenous communities, whether those of the Ashcroft Indian Band, who lost half their homes, or communities in Manitoba from which, in the dead of night, people were moved to an evacuation centre for many weeks.

I don't want to take up a lot of committee time with this, but I think it might be important to have a meeting or two that looked at this particular issue. I'll just read out the notice of motion. I know we'll have time, but I wanted to get it on the record, because I think it is a very urgent and emergent situation concerning which we should make sure things are running smoothly.

The motion is:

That pursuant to Standing Order 108(2), the Committee immediately undertake a study on the long term impacts of this summer's wildfires on First Nations communities; that this study be comprised of no less than two meetings; and that witnesses include, but are not limited to, the Minister of Indigenous services and the Chair of the Ad Hoc Cabinet Committee on Federal Recovery Efforts for 2017 Wildfires; and that the Committee report its findings to the House.

Because it was such an emergency—it impacted so many communities, and even with such things as hunting there are issues—I hope that when we get to discuss this motion people will have had time to reflect on it and we can deal with it.

Thank you, Madam Chair, for indulging me on this.

Turning now to the witnesses, first of all thank you. We have talked about this particular study for a long time. I think we've bitten off a very large topic. Unfortunately, our colleague Mr. McLeod isn't with us. I know he was particularly interested in ensuring that it was a very comprehensive....

I'm going to come at it from a bit of a self-interest perspective, because I'm from British Columbia. Would it be accurate to say that out of all of the provinces and territories, the outstanding issues are perhaps largest in British Columbia? Would that be accurate, in terms of not having anything in place?

Could you speak to that for me?

[Perry Billingsley]

I think so, yes.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

That was a yes, then? Okay.

I think we started the comprehensive land claim process in British Columbia way back in 1993. When you talk about 15 years, I look at the map, and of course the resolved issue is this tiny little piece of blue and a little bit larger. I guess there are a number of questions around this. We're hitting a significant number of years since 1993.

Do overlapping claims still create a barrier, and if so, is work towards resolution of that particular issue being done by the involved communities?