Indigenous and Northern Affairs Committee on Oct. 24th, 2017

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We are now moving to our second guest on this panel, the Government of Nunavut, with William MacKay and Susan Woodley.

I'll hand it over to you. You have up to 10 minutes, and then we'll have questions.

[William MacKay, Deputy Minister, Department of Justice, Government of Nunavut]

Thank you, Madam Chair.

Thank you, President Obed, for your remarks.

To begin my presentation, I would like to acknowledge that we are on unceded Algonquin lands.

I'd like to thank you for inviting the Government of Nunavut to speak to the standing committee today. As you mentioned, my name is Bill MacKay. I'm the deputy minister of justice for the Government of Nunavut. Susan Woodley is also with me. She's an aboriginal affairs adviser with the Department of Executive and Intergovernmental Affairs.

Both Ms. Woodley and I have been closely involved for several years in the negotiation and implantation of land claims in Nunavut. As this committee is aware, and as President Obed also mentioned, modern comprehensive land claim agreements are a well-established part of governance in Canada's north. The first modern land claim, as the committee knows, was concluded in northern Quebec, and then six years later the Inuvialuit agreement was concluded in the Northwest Territories. Since then there have been 11 land claim agreements concluded in the Yukon, five in the Northwest Territories, and three in Nunavut. There have also been several self-government agreements concluded in Yukon and Northwest Territories.

Nunavut is governed by a territorial government that, although closely modelled on the public territorial governments in the Yukon and Northwest Territories, is linked closely to a modern land claim agreement and, indeed, arose out of the Nunavut land claim agreement. As President Obed mentioned, this NLCA established the Nunavut settlement area, which is a massive area. It covers most of the territory of Nunavut. Like other comprehensive claims, it gives Inuit fee simple title to large portions of crown land. It also establishes a regulatory regime over development in the Nunavut settlement area and guarantees Inuit harvesting rights in the NSA.

The NLCA also requires governments, both federal and territorial, to ensure Inuit participation in social and cultural policies and to assist Inuit in obtaining government employment and in bidding for government contracts. The specific obligations falling to the Government of Nunavut under the NLCA, as well as the Nunavik Inuit Land Claims Agreement and the Eeyou Marine Region Land Claim Agreement, are outlined more specifically in a written brief that we've submitted to the committee.

Land claim agreements in the north are implemented by both the federal and territorial governments. The implementation is governed by implementation agreements that are not constitutionally protected. They detail outlines of implementation activities over specific time periods, and they're tripartite agreements, being the territorial government, the federal government, and the indigenous party.

The key point that we would like to raise here is that, at least initially, land claims in the north did not include the territorial government as a separate party to the agreements. The rationale for this was that the federal government was constitutionally responsible for treaty-making with indigenous people. Nevertheless, today most land claims in the north are three-party agreements. Some are also self-government agreements and therefore require full territorial participation. Others, such as land claim agreements in the Yukon, are three-party agreements simply because the territorial government is recognized as an equal partner in the land claim process, and the legitimacy of the agreement is dependent upon full recognition of the territorial government as a party to the agreement.

We would submit today, Madam Chair, that this is consistent with the evolving role of territorial governments as equal governing partners with the federal government in the territorial north.

In sum, territorial governments are democratically elected, legitimate governments. Although established through federal legislation, they are separate actors from the federal government. They participate fully in the federation on an equal basis to provincial governments. Northern residents elect these governments to represent their interests and pass legislation in areas of legislative competence that are more or less co-extensive with the jurisdiction conferred on provincial legislatures under the Constitution Act. Because of this reality, the territorial governments are responsible for implementing large portions of land claim agreements in the north. It is this reality that makes it proper and just that the territorial governments be equal partners and parties to land claim agreements.

This issue is the central focus of the written brief that we submitted, and we gave specific commentary on the territorial role in future land claim agreements in Nunavut involving groups with asserted rights within Nunavut's boundaries. Some of these groups have appeared before this committee. We would be happy to discuss further the matters raised by these groups as well as any matters outlined in our written brief.

I would also note as an aside that there is a territorial election period on now, and a new government may not have the same views as I'm espousing here, but I would say the position that territorial governments have equal standing to other governments in the federation is one that is long-standing and shared by all three territorial governments.

Madam Chair, I'd like to thank you again for the opportunity to address this committee. We would welcome any questions from the committee.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Very nice. Thank you for that.

Please remember to submit your briefs, which will be part of the official record, and we'll have an opportunity to review them.

We will open our question period. There are two rounds. The first round is seven minutes each and then we'll move into a five-minute round.

We will start with MP Bossio.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you, Chair.

Thank you to the witnesses for being here today.

President Obed, it's always a pleasure to have you here and to hear your testimony. The position of your people is always exceptionally well communicated, and I deeply respect that.

We've heard so much testimony across the country, but this is actually much more unique testimony in that you're one of the early groups to actually form self-government in Canada. I know that with regard to the Cree situation in northern Quebec, when I talked to MP Saganash about this, he said that it was 20 years of further negotiations after the original land claim was established.

You've now had a generation of this land claim. Has your experience been similar? Is it a constantly evolving agreement, or is that some of the difficulty with it, that it's not evolving as it really needs to be, as a living document rather than a static one?

[Natan Obed]

In very, very general terms, the challenge is that when provisions in the land claim agreement are put to a test and they perhaps are put into action, it seems as though there are more restrictive interpretations on the federal government side and more expansive interpretations on the indigenous proponents' side. I would imagine that is simply the way in which we have thought about land claim implementation, which still is adversarial in many ways and one of a business negotiation rather than a shared path towards a better future.

I've always thought about land claims unlocking the potential of Inuit in a way that all parties of the agreements could buy into. However, in many cases with implementation and the discussions around how to implement a particular provision of a particular land claim agreement, you instead get into a lowest common denominator approach, where legal precedence and the inability to think past the next budget often limits the way in which the provision is implemented. I can think of a few examples that I've worked on personally or that I've worked on in relation to the organizations that I've worked for. Time and time again, I think that we're missing the mark on intent and on what we're trying to achieve together.

I know that's a really large, ambiguous, well-intentioned statement in relation to the hard, cold facts of the way in which you make decisions, but that, I think, is where we're falling down more often than not. From day one on negotiations, we're just not in the same realm about what we're trying to achieve.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Instead of it being about the spirit of the agreement, it's about the letter of the law.

[Natan Obed]

Yes.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

As well, you mentioned the discrepancy, the $60,000 wage gap, between Inuit and non-Inuit in the territory. You and I were speaking about this actually just before the meeting, that this seems to be an ongoing theme: here we are, a generation later. Have you seen any kind of difference at all in indigenous people finally delivering on the services in government and economic development as was originally envisioned, I'm sure, when this was initially signed?

[Natan Obed]

We are a long way away from achieving the type of Inuit-specific workforce that we had all imagined would be ushered in by the land claim era. We do have a new level of pride about our identity, about our rights, and about who we are as indigenous peoples within Canada or the world. We do have great hopes that this next generation is the generation that we will provide for and get right—that we'll provide the early childhood development services, that we will get a better education, that we'll be able to educate our children in our language, Inuktitut, and that we will close the socio-economic gaps.

It is still a place where we have hope, but there are a lot of people who feel betrayed, in many ways, by the things they imagined would happen in the era of settled land claims versus the lack of action that's happened today.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

You're hopeful, and I'm glad to see that. I can feel it in your words and in your presence when we meet. But how do we get there? The biggest dilemma, to me, is the lack of human resources to fulfill the long-term goals of Inuit and indigenous people across the country. How do we get there?

[Natan Obed]

Well, first is an Inuit Nunangat fiscal policy space. Time and time again for Inuit, indigenous budgets, indigenous sections of budgets, or comprehensive allocations for all Canadians don't make it to Inuit Nunangat. There are a number of reasons for this that can be closed by creating a specific Inuit Nunangat policy space. Do away with the northern region or Atlantic or Quebec for Inuit. Create a homogeneous Inuit Nunangat policy space in which funds flow. Also, then, we have decision-making authority or participation in the way these funds are spent within Inuit Nunangat. Even without spending another dollar federally, you can change the way Inuit participate and have access to funding that is allocated for Canadians. That would be the first step that I think we would need to take.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

What was missing originally that didn't bring this about in the first place? You're saying that lack of participation, or that lack of decision-making capability...because I assume that was part of the intent of self-government in the first place, right?

[Natan Obed]

Having something on paper versus believing it: I think that is the main consideration on this point.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning now goes to MP Cathy McLeod.

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

My thanks to all our guests here today.

I listened to what you had to say here today, and we listened to panels yesterday in Yellowknife. I think in many ways the south needs to learn from the north. You still have your challenges, but I think many, many things have been done very well. I certainly look at the province of British Columbia and say that we have a lot longer way to go to get to where we need to be. I do want to acknowledge the work you've done over many years in getting to that place.

I also want to say that my perception was that once we worked through those difficult issues of specific comprehensive claims.... The degree to which there are challenges with the implementation is something that I know we as a committee have heard loud and clear. We've had some good recommendations on that particular issue.

There are a few areas I want to go here. First of all, there have been some pretty significant commitments by the current government in terms of what they're going to do and where they're going to go. I worry sometimes, because we have a moratorium that was announced on oil and gas. Down in Washington, I think, all of a sudden a lot of your land is being offered out as parks. We have a carbon tax that perhaps will impact the north more than any other place in this country.

My perception is this: given the kind of agreements that are in place, was it not your expectation that there should have been significant dialogue on all three of those items before they were arbitrarily...? I don't know if you had a few minutes' notice or an hour's notice, but I don't think you had what I would say is consultation.

I'll start with your thoughts, perhaps.

[William MacKay]

It was a source of frustration for our government that a moratorium was implemented with about 20 minutes' notice to the territorial governments. That to us revealed, I think, a lack of understanding, or a lack of knowledge, of the role territorial governments play in governing the north. The federal government implemented that moratorium and did the other things you mentioned without, I would say, recognizing the role the territorial governments should have had in making those decisions.

That was disappointing for us. We think there should be more recognition from the federal government of the tripartite nature of governance in the north, including the territorial government.

[Natan Obed]

The challenges of renewing a relationship start with not necessarily even knowing what relationship you are in. This is the case with Inuit. Sometimes the well-meaning rhetoric of reconciliation or a renewed relationship extends to the understanding that this government might have of indigenous policy or indigenous legislation or rights, not the full comprehensive scope. With Inuit, we have always been on the margins of the indigenous conversation, sometimes because we're late to the game in many ways—I know comprehensive agreements only started in the 1970s—but also because our population size is relatively small in relation to the indigenous peoples who live in this country.

It's not helpful when governments act in a way that is not in keeping with the promises they have made to indigenous peoples. Over the summer we saw the Government of Canada release 10 principles in relation to its relationship with indigenous peoples that didn't flow through representatives of indigenous peoples before it was put into practice. Those are the types of things that I think are just inconsistent. I do hope we can get beyond those places, but they do have negative outcomes in the relationship.

That being said, we still are optimistic that we can work through these challenges. But like anything else, and like the past 40 or 50 years, we remain at the table, willing to engage, and wanting respect for our rights.

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

Thank you.

The next issue I want to key in on is the transboundary issue. There was something that I think Premier McLeod said yesterday. I know that a lot of the traditional territories were pre the creation of territories, provinces, and these lines that we put on a map. That creates challenges within the resolution of some of these agreements. It sounds like to some degree it has worked well with the Inuit, but as Premier McLeod said, there is this willingness to talk about, let's say, Manitoba and Saskatchewan, and impacting the territories, but there's not a vice-versa relationship in terms of someone who perhaps lives in the territories, and thinking about their traditional areas.

Can you make some comments? I think this is an important issue to hear about. We did hear yesterday from the Gwich'in, I believe, in terms of some good resolution between the NWT and the Yukon. Can we talk about that a little bit?

[William MacKay]

I can tell you that, yes, the claims are long standing, and the traditional lands occupied by those indigenous groups have been occupied by them for way longer than there have been territorial governments.

Just to make this short, the territorial government supports the resolution of those claims, and we want to be involved in the resolution of those claims. We think in order for those eventual agreements to be successful, it has to involve both the territorial and federal governments. I understand there's frustration from transboundary groups at times, because there is this territorial government that maybe seems to be in their way, but we're not in their way, we're supportive of settling claims. The whole north is made up of land claims. We recognize the role they play in governance in the north, and support settlement of more land claims if it's necessary.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning moves to MP Saganash.

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

Thank you, Madam Chair.

Thank you to our guests.

Natan, I want to start to with you, because you said something important that I'd like you to elaborate on. You talked about land claims “changing the policy map” in this country. That's an important statement. I'd like you to expand on that. I agree when you say that more should done to implement these land claims agreements in the north, especially given the geopolitical importance that our regions will take in the future—even as we speak, I think. The necessity to recognize our peoples in the north as political actors, or the space that you're talking about, I think is important. The Supreme Court agrees with us on those issues. In the Quebec secession reference, the Supreme Court talks about the indigenous peoples, and presumably the Inuit are included, as political actors in this country, on the same level as provinces and territories, so I think it's important that we understand that now.

Can you please elaborate on what is the influence these land claims have on the policy map, as you call it, in this country?

[Natan Obed]

Very practically, the rights that we exercise as indigenous people in this country, or the rights that we have under land claim agreements, logically flow through all arrangements that we have with provinces, territories, and the federal government. Whether it is procurement policy—ensuring that, on our settlement areas, there are proper, Inuit-specific procurement measures within legislation, whether federal, provincial, or territorial—or whether it is social issues, the requirement for our participation in the development, design, and delivery of particular social programs or services within our communities and within our jurisdictions is that they happen with us instead of to us. This is some of the framework or reasoning behind a renewed policy. Imagination is necessary.

In terms of how money flows to our communities, the Inuit specificity, or the modern land claim policy space, is a very different one from that of first nations on reserve or Métis, yet often the governments are left to figure it out themselves. Often, it is a program officer within a line department who decides, based on their own ignorance or their own knowledge, whether Inuit fall inside or outside of particular programs or can benefit in the best possible way from services that are meant to be for all indigenous peoples in this country.

Those are the windows that we have to close. We have to stop making it something that is either a huge benefit for a community or a missed opportunity based on one individual within the public service who interprets it in a vastly different way. We can do better than that. Our land claim implementation depends upon it.

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

Mr. MacKay, I read the brief you sent before you came in here today. On page 9, you talk about the Denesuline negotiation agreements as constitutional documents: “As constitutional documents, these agreements will necessarily restrict the Nunavut Legislative Assembly's legislative jurisdiction.”

Can you point to any provisions in those negotiations and agreements that would restrict your legislative jurisdiction?

[William MacKay]

The agreements will be modelled somewhat on the agreements that already exist in the north. As we mentioned in the brief, there are several obligations that fall to the territorial government, specifically in the area of wildlife and natural resource development. By the very nature of the agreement as a constitutional document, it will restrict the legislative jurisdiction that the territorial government will have on those lands when the agreement is settled.

I'll give you a specific example. For instance, there will be access provisions for Denesuline-owned land within Nunavut. That would restrict what kind of development the territorial government can approve or regulate on those lands. It would restrict the access that government officials have on those lands, so there are some specific restrictions that will be placed on the territorial government.

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

Do you claim that there was no balancing between the jurisdiction of the Nunavut government and the rights that are recognized for the Denesuline? Is that what you are claiming?