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

[Joe Wild]

Pardon me?

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

Could it be a question of mandate in this case or a lack thereof?

[Joe Wild]

I think I would say that if you looked at what the Innu were looking for at the table and at what the scope of the mandate was that we had at the table, you would see that gap was significant and definitely part of the issue.

That's not just a money issue. I want to say that it's about more fundamental things, as well. Those are challenges to sort out sometimes, and I think we are working at trying to figure out ways to address some of those challenges.

Yes, I would say definitely it is at least partially a mandate issue. Some of it is policy approaches. In some cases, it goes to expectations around how decision-making is going to work in the community. We have had issues where the requirements we have around community ratifications have caused problems and issues.

There's a whole host of different things that I think contribute to it. I would say that what underlies most of that is a failure on our part to have appreciated that we need to approach these negotiations from the perspective that we're building an agreement to act as a bridge between that indigenous community system of governance and Canada's. Instead, we've kind of taken a view of everything being from our perspective, and we build agreements on that basis. I think that is part of a failure in how we've gone about the process, and I think that contributes to the length of the process.

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

Just to finish off, as my time is running out, I'm intrigued by your choice of words. You are talking about a rights-recognition approach that you now use. I think, personally, that's already a constitutional obligation on the part of the government with respect to indigenous rights in this country, and I would make a distinction between rights recognition and respect for the fundamental rights of indigenous people in this country. Recognizing the rights of indigenous people is already a constitutional obligation as determined by, in particular, the Supreme Court, the highest court of this country.

I want you to explain that distinction between rights recognition and respect for rights.

[Joe Wild]

The distinction, I guess, would be that the way the comprehensive claims policy and the inherent right policy were built was on the basis that the indigenous group had to prove the scope of the right they were seeking to have recognized in the treaty. The starting premise was that they had to prove what the rights were that we were actually going to be discussing as part of it.

I think a recognition approach is saying that we're not starting from an assumption that there is nothing there. We're starting from the assumption that there is a full box of rights, and we now need to talk about what they see as being the priority rights and how they see the implementation of those rights. That should be the nature of the discussion.

I think that gets to the respect part. It is about focusing the conversation on an implementation conversation around the right, as opposed to focusing it on defining the scope of the right for all time immemorial. I think that's been the failure of the prior process. It was focusing too much on that question.

[The Chair, Liberal, MaryAnn Mihychuk]

That ends our question period for you, MP Saganash.

We now have two more speakers, by agreement, to conclude the public session. They will be MP Anandasangaree and MP Viersen. Then we will have a short in camera session where we'll talk about committee business.

MP Anandasangaree.

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

Thank you, Madam Chair

Thank you for joining us this afternoon.

I have some very specific questions. The first is with respect to extinguishment of rights. As Mr. Waugh said, we have gone across the country, and one of the things that came up over and over again was the issue of extinguishment. Is that something that Canada is now insisting on, or from a policy perspective, is it something that's now off the table with regard to the negotiations that are currently coming to finality?

[Joe Wild]

I think from Canada's perspective, certainly in the modern treaty era—so post-1970—none of what we were doing was about extinguishment, but we understand that from certain perspectives some of what we were doing looked like extinguishment.

What we have tried to do in the approach we're taking with the recognition of rights of self-determination tables is to focus more on how to implement the right versus try to define the scope of the right. We think that helps to reduce the perception that this is really about extinguishment.

I want to be really clear that the government mandate I have, and the policy direction from the government, is that I am not in the business of extinguishing rights. I am not in the business of rights termination. That is not what we are trying to accomplish through the tables and the dialogue we are having. However, we are, I would say, sensitive that some perceive it in that way.

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

Mr. Wild, across the country I would say over a dozen negotiators and nations that have been in negotiations have confirmed that this is something which the Government of Canada has insisted on. Is that something you're no longer pursuing as a demand in terms of final agreement?

[Joe Wild]

If you're referring to the approach that was taken to what they call certainty provisions and the notion of full and final agreements, our policy has shifted. Certainly, we are open to a broad swath of agreement types, and we no longer insist that the agreement has to be full and final. As I say, we've moved away from the idea that the purpose of the agreement should be to define the full scope of the right in that way. We are trying to build agreements now that have built into them that concept of periodic review or an orderly process that allows the parties to revisit how we have described the implementation of the rights to ensure that these agreements are working for both parties and can evolve, as the governance of both parties will evolve over time.

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

One of the other major concerns that came across, and you've identified it in your statement, is with respect to changing negotiators and negotiating teams. I believe you said that seven years was the average. We've heard that, in a matter of 20 years, they've had seven different negotiators. I think there's a range there, obviously, and you're talking about the average, but some may have different experiences.

How do we change it to the point where we have consistency in negotiation and negotiators? Ultimately, the individual who is seized of the file is the one who brings it to conclusion, but if you keep changing the person every few years.... Obviously with career development and so on, that will naturally happen. How do we mitigate that, and how do we ensure that there's some consistency in our negotiating position? How do we ensure that we don't keep changing negotiators every few years? Even if it's seven years on a 20-year agreement, you're literally set back three years right off the top.

[Joe Wild]

We do not have any policy or practice of just randomly changing negotiators after a certain amount of time. If there's a change in negotiators, it's either because someone is taking a form of leave, have had a promotion, have decided to pursue employment elsewhere, or have retired.

I think there's a balance in this that one has to be careful of. We do have examples, I think, of negotiators who have been on files for too long, or they've had the same table for 20 years. That causes me concern about why we're not continuing to move things forward.

We don't rotate, and there is no planned rotation. The changes occur when people are basically making a personal decision in their own career planning about what they're doing. It's kind of hard to figure out, well, what is.... I get uncomfortable about what the right length of time is for negotiations to take, too. All of these take the time that they take, and it's going to vary considerably depending on the parties and the interests that you're trying to address.

Just to be clear about that, I think we try to maintain stability. The only time we make changes is when we're forced into that situation because there are things going on. Sometimes we get requests from our negotiating partners to change the negotiators because they don't like how something is going on in the room. Those are very difficult conversations, and we try to work our way through them, but we don't have any practice of just randomly switching people out.

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

I'll just come back to the issue of timelines.

You indicated that 20 years is a timeline for comprehensive claims, and obviously for specific claims, it's a set process. Twenty years is a generation. The vast majority of the people we heard from are well above the 20-year mark. We heard from a group that it's 20 years from the time of the agreement in principle. There is a need to have a window, maybe 15 years or something, that will have an impact on the people who are negotiating. We had a chief from Quebec who is around 40, and they've been negotiating for well above his time on earth. I think there is a need to have some timelines.

Is there a number that you would be comfortable saying would be reasonable and would come to some conclusion?

[The Chair, Liberal, MaryAnn Mihychuk]

You have five seconds.

[Joe Wild]

I think it's really hard to put a number on there. I think it's more about trying to talk about the forms of agreement we're trying to get to, and whether we can fix that to get to things faster, rather than requiring these fully comprehensive agreements.

[The Chair, Liberal, MaryAnn Mihychuk]

That's a good try. There's no number. That's short.

I don't want to cut any time from MP Viersen today.

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

Thank you, Madam Chair.

I know I give you a rough time. I'm sure my minutes are always smaller than everyone else's.

[An hon. member]

Oh, oh!

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

Thanks for being here today. I appreciate your taking a crack at describing nation to nation. That's probably the most articulate description we've had on nation to nation up until this point.

I'm going in a similar vein. We see the eight recommendations from the Auditor General. We just looked at some of our numbers. Back in 2008 there were over 800 specific claims. Where is that number now?

[Stephen Gagnon]

We have 230 in negotiation. We have about 130 to 140 in assessment, so we're determining whether or not we agree that there's an outstanding lawful obligation. I think you heard the Auditor General refer to closed files, and so a number could go to the tribunal, but haven't. That number we think is in the range of about 400, either because we've rejected the claim as a claim or the three-year period for negotiations has expired. I don't want to put words in anyone's mouth. I think some first nations groups would say you haven't really gotten rid of them, that you've just disguised them as something else.

One of the things we're trying to address in the working group is to say we should at least have a common understanding of what all these terms mean so we know what we're having issues about.

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

How many settlements have you come to, say, in the last year?

[Stephen Gagnon]

I think last year we had around 15.

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

Okay. Would that be on the 20-year timeline as well?

[Stephen Gagnon]

I think the Auditor General found that in the specific claims context the mean was five.

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

That's interesting.

We differentiate between specific claims and comprehensive claims, so the five-year versus the 20-year. Is that what I'm getting from you?