Indigenous and Northern Affairs Committee on Oct. 17th, 2017

[Michael Ferguson]

I'll start by saying that when we make recommendations, you'll notice in any of our audits that we tend not to make many; we try to make just a few. In this case, I believe you mentioned, there were eight recommendations. When we make a recommendation, it's because we feel it's an important thing to put in place, and so we don't really try to rank the recommendations.

I think the issue is balancing off whether they can fix the issues we identified by implementing our recommendations or whether there is a need to go back to square one on what the relationship is going to be, but if they go back to square one, does that put everything behind again?

Fundamentally, I think it's important for the department to act on the recommendations, showing that they put together an action plan, presented an action plan to the public accounts committee on how they would deal with all of the recommendations, and said by what time they were going to deal with them.

I wouldn't try to identify any one particular recommendation as being important. I think what's important at this stage is for the department to demonstrate that they have implemented their action plan.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Romeo Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair.

I am still disturbed by what occurred earlier.

I said to Mr. Ferguson, earlier, that his French had greatly improved since the beginning of his mandate.

I congratulate you, Mr. Ferguson for the efforts you have made in this regard.

First, I will ask a very general question. I have been working on indigenous files for over 35 years, and I note that there have not been many improvements, and that is true at several levels. Despite the fact that Canada is one of the richest countries on the planet, the the living conditions of indigenous peoples are still at the very least deplorable, in my opinion.

Subsection 8(1) of the Auditor General Act gives you the power to study pressing or urgent issues and to report on them. In your recollection, has that provision ever been invoked regarding the living conditions of indigenous peoples in Canada?

[Michael Ferguson]

We have done many audits on many topics related to indigenous peoples. We conducted audits regarding

policing services, emergency management services, education, health on reserves.

We have done a lot of work.

This file comprises a lot of risk for the government, and we have often pointed out that it was not applying its own policy. We have pointed out that this is a special issue.

We allocated a lot of resources and did a lot of work on this file, because it is important to examine these programs and ensure that they work as expected.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Several witnesses who have come before us during the study have pointed to the necessity of having a human rights framework for aboriginal issues in this country. I remember that in the Tsilhqot'in Nation case, the Supreme Court said that the provisions of part I of the charter, and some provisions on indigenous rights in part II, were related, or sister provisions.

Do you think we should seriously consider the possibility of adopting the United Nations Declaration on the Rights of Indigenous Peoples as a framework in this country, in light of all the outstanding issues regarding the rights of indigenous peoples, treaty rights, as well as all of these processes, including the Comprehensive Land Claims Policy? Should we in future have a human rights framework, a human rights approach in our country, in your opinion?

I believe human rights are part of your mandate as Auditor General?

[Michael Ferguson]

Thank you.

Once again, our role is to conduct audits. And so I do not wish to, nor can I, comment on government policy. Our role is to examine the programs and determine if the departments implement them as planned, and if they respect their policies and the way they are supposed to deliver those programs.

I think it is up to the committee to choose the framework needed to study those matters. What is important to us is that the departments make commitments and determine how to deliver these programs. It's important that they respect their own policies so that the programs work as expected.

I think that generally speaking, our role is to determine whether departments respect their own procedures and policies in those programs, and to make sure that they do.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

One of the things that has always troubled me as a parliamentarian is the fact that every year, we don't know exactly how much money the federal government spends to fight with aboriginal peoples in court. I believe you and I had a meeting about this.

Do you not think that in the current era of reconciliation, this is one of the issues we should examine now?

[Michael Ferguson]

I think it is important to examine all apsects of a program and assess the results, but also to assess the costs incurred to obtain those results. I think that when a program is assessed and audited, it is important to identify the results and costs, but it is also important to determine if resources were optimized and if it is reasonable to spend a certain amount of money to attain the desired results.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP T.J. Harvey.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Mr. Ferguson, it's always good to see you.

My questions are around paragraph 5 of your opening remarks, to start with. At the end of the paragraph, it says, “Furthermore, the Department stated that every reasonable effort would be made to achieve settlements through negotiations. However, we found that more claims were either closed by the Department, or ended up in litigation, than were resolved through negotiation.”

Did you receive a response from the department as to why they felt it was their prerogative? How does that look? How does the department just close claims? Wouldn't all claims have to go to litigation or to some form of mediation?

[Michael Ferguson]

We did provide a definition of “closed claim”, which is:

A claim that is closed during negotiations because a First Nation does not accept or respond to a settlement offer, or decides to withdraw its claim. When a claim is closed, negotiations cease, but the government's outstanding lawful obligation remains, and the claim is unresolved.

That was what happened, for example, again in the cases of the small value claims that I referred to, where the government provided an offer, but without an additional offer of negotiating the amount that was offered. Many times the first nation just didn't accept or didn't respond to that, so the department determined those to be closed, and we felt it wasn't reasonable to refer to closed cases as essentially something that was a success. To us, a case needed to be resolved so that parties said, “Yes, we have come to the end of this and we have reached an actual settlement”, rather than, “We've closed the case”, which means that it's still out there; the first nation wasn't happy, perhaps, and hasn't responded. That's not really a good measure of success.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

The department, I believe, did issue an action plan to your recommendations. Is that correct?

[Michael Ferguson]

They presented an action plan to the public accounts committee after the audit, yes.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Great.

Has there been any follow-up as to how their progress has been since then in implementing some of the actionable items they laid out in their action plan?

[Michael Ferguson]

We haven't gone back to do a follow-up audit. Again, we tend to give departments a few years to actually put in place the changes they've said. I think that in the department's action plan a number of the actions have dates that go into 2018 before they say they will be done. Again, I think it would be a reasonable role for this committee to see whether the department is on track to meet what it said it was going to do under the action plan.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

In both paragraphs 7 and 8 you alluded to a lack of information, and also in paragraph 14, it states, “Lastly, we found that Indigenous and Northern Affairs Canada did not have an effective system to track the status of the federal government's obligations under the Agreement.”

I think Salma would agree with me, coming from the public accounts committee, that it is something we've seen as an ongoing trend, a lack of credible information and the ability of government to gather that information and put it into a form that's usable.

Do you think that contributes to the problems within the department as it pertains to this issue?

[Michael Ferguson]

In terms of the obligations the department has under various treaties, obviously, for them to know whether the federal government is living up to its side of the treaties, they need to know what the obligations are. Having an inventory of those obligations and knowing who is responsible for them and whether they are being done, and whether they are achieving what they are supposed to be achieving I think is very critical to the department's management of the federal government's obligations under these treaties. I think that is very important.

In terms of the specific claims process, the issues we raised there, I believe what we were concerned with was that the specific claims tribunal, which is at the end of the process, had rendered 14 decisions on specific claims that had gotten all the way to the tribunal and I believe in 12 of those, they found in favour of the first nations. Our concern was that we didn't see any real evidence that the department was, for example, looking at why the Specific Claims Tribunal was so often finding in favour of the first nations, and whether that is something they should be going back and considering in their process of negotiation and making offers.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

I have one more question for you and then I think that will be it for me.

I want to ask a question in regard to this entire situation. I've had the opportunity to speak with you on several occasions about other contentious files in other departments. Do you feel that this is a good example of perhaps a department or a portion of a department that could require more frequent audits?

Within the public accounts committee we do a lot of talking about follow-ups and how the cycle lends itself to being so onerous that by the time you get through an audit and then you get to a follow-up audit it's so far down the road that committee members have changed and perhaps.... We work in large six-year and eight-year cycles. Do you think that more frequent audits by your department are something that could be or should be seen as a benefit?

[Michael Ferguson]

As I said earlier, we're in this department a lot. We do a lot of audits that touch on the indigenous files.

To be able to keep doing audits and go back and do follow-up audits on everything we've done, that would take a lot of resources. I think there need to be multiple ways of getting at this so that.... Yes, we will go back and do follow-up audits from time to time. The department has issued an action plan for what it intends to do on both of these audits, on the specific claims and on the Labrador Inuit land claims.

I think if this committee or the public accounts committee or whatever used part of their time to hold the departments accountable to explain whether they are doing what they said they were going to do and how they can demonstrate that, perhaps that could help add as much value as an additional audit.

[The Chair, Liberal, MaryAnn Mihychuk]

That ends the time for you, T.J.

We have one minute for MP Arnold Viersen.

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

I'd like to acknowledge that I negotiated for this one minute.

Thank you for being here today. I have a quick question.

This committee has heard from past representatives of the Specific Claims Tribunal and they told us that one of the challenges they have in advancing and resolving claims is a lack of judges.

Did you touch on that at all in your report? If you didn't touch on it in your report, you probably brushed up against it. Could you give us a little feedback on that?

[Michael Ferguson]

Madam Chair, we didn't touch on it in either of these audits, though we did come across that issue in another audit we had done, which was on Governor in Council appointments. I have forgotten the date of that. It would have been somewhere in the 2015 or 2016 time period when we did an audit on Governor in Council appointments.

It was in the spring of 2016, I'm being told.

Certainly in that we did identify the problem that there were not enough judges being appointed to the Specific Claims Tribunal.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much. That concludes this session of the hearings. I want to thank you for your attendance and your patience.

The meeting is suspended for a short time until it reconvenes with the Department of Indian Affairs and Northern Development.

[The Chair, Liberal, MaryAnn Mihychuk]

I call the meeting back to order.

This is the second panel for today. We are very pleased to have with us the Department of Indian Affairs and Northern Development: Joe Wild, Stephen Gagnon, and Heather McLean. Welcome.

We have a few questions for you, but before that, you have 10 minutes to do your presentation on the topic of comprehensive and specific land claims.

Joe, I understand you're going to lead. It's your turn for 10 minutes.

[Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development]

Thank you. I'll try to be very brief.

Good morning, Madam Chair and members of the committee, and thank you for inviting me.

I am accompanied by Heather McLean, who is the director general of the policy development and coordination branch, and Stephen Gagnon, who is the director general of the specific claims branch. I am the senior assistant deputy minister responsible for treaties and aboriginal government. Both of my colleagues report to me.

I want to acknowledge that we are meeting on traditional Algonquin territory.

I am here today to provide some clarity and information about our federal negotiation processes, the roles and responsibilities of federal negotiators, and how we are working with our indigenous partners to make our processes more efficient and responsive to priorities.

As I'm sure you are all aware, modern treaty negotiations are very complex undertakings. They address a broad spectrum of subject matter, such as the formation of new governments, ownership of lands and resources, and new fiscal relationships with the federal government.

The average negotiation process from framework agreement to final agreement takes approximately 18 years to complete; close to two years of that is spent seeking federal approvals.

For several years now, our indigenous partners have called on us to streamline the federal approvals process to expedite progress in negotiations, and Canada has recently taken steps to create efficiencies in the federal mandating and approval process for section 35-related negotiations.

The Minister of Crown-Indigenous Relations can now sign preliminary agreements, such as framework agreements and memoranda of understanding, as well as agreements in principle that are within the federal policy framework, on the recommendation of the federal steering committee. The federal steering committee is a group of assistant deputy ministers from the departments that are most implicated in treaty negotiations.

In addition, the minister can, with the support of the negotiating parties and the recommendation of the federal steering committee, expedite negotiations to the final agreement stage by skipping the agreement-in-principle stage or converting a substantively complete agreement in principle into a final agreement. These steps will help maintain momentum at negotiating tables and serve to truncate the federal role in the negotiation process, which should help indigenous groups benefit from agreements sooner.

With respect to the role of federal negotiators in the negotiation process, we know that positive negotiated outcomes are best achieved when the parties at the table can build a relationship founded on trust and respect. We recognize that we need to ensure consistency in federal negotiation teams, and we do make best efforts to keep the same negotiators at the same tables for as many years as possible.

Based on our records, we try to estimate the time a negotiator spends at a table, and the average is around seven years. We do realize that when we take into account that the actual negotiation process for a modern treaty and a self-government agreement can take somewhere between 15 and 20 years, that does mean there is some turnover of negotiators. We want to minimize the number of times we have turnover, because it can mean lost momentum at the table, as well as significant time spent to bring a new negotiator up to speed.

Ultimately, we know that we have to find ways to do agreements more quickly and more efficiently. In an effort to do so, we began establishing recognition of indigenous rights and self-determination discussion tables in 2015. These negotiations are founded on an interest-based, recognition-of-rights approach, and they allow Canada and indigenous groups to co-develop negotiation mandates for cabinet approval. It's a completely different way of having the conversation. The discussions aim to produce results much more quickly by homing in on key shared priorities and finding ways to accelerate, or presenting alternatives to, the process requirements that come with predetermined federal mandates.

I would also say that we are looking at a variety of instruments now, and we don't have a narrow definition of “treaty”. Agreements can be on specific subject matter; they don't have to be all-encompassing, on everything.

We have signed 15 preliminary agreements with indigenous groups through the rights recognition discussions.

We remain committed to working with our indigenous negotiation partners toward more collaborative, flexible mandates and processes to address key issues in negotiations and to help all parties realize the benefit of these agreements more quickly.

That concludes my brief remarks. We are pleased to take your questions.