Evidence of meeting #45 for Public Accounts in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offenders.
A video is available from Parliament.
Liberal
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
I have a minute left, don't I? You said three minutes. I'm self-timing over here.
Auditor General of Canada, Office of the Auditor General of Canada
Thank you, Madam Chair.
I can't comment on what they've done. We haven't gone back and audited that.
We were very concerned with what we found on a number of these things, but we were also encouraged by some things in the course of the audit. One was that the department did a very good job of consulting with first nations on some of these issues about what type of programming they should put in place. Another was that the response from the commissioner at the end of the audit clearly showed their recognition that they needed to do better.
That's not taking away from the issues we've seen here and the seriousness of what needs to be done. I can't comment specifically on whether they've done it and to what degree they've done it, but I'm glad that the committee is going to consider having them back. I am encouraged by what I believe is the sincerity of the organization in dealing with the issues.
February 15th, 2017 / 4:30 p.m.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
Thank you very much. Thank you all for your presence.
We have to change groups now, so we will suspend for two minutes while we do so.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
We now resume the session.
Good afternoon.
Welcome again to Mr. Michael Ferguson, our Auditor General, and Mr. Berthelette, who is the principal in this study.
From the Department of Indian Affairs and Northern Development, we have Mr. Joe Wild, senior assistant deputy minister, and Mr. Stephen Gagnon, director general, specific claims branch.
We are going to be looking at report 6, on first nations specific claims, of the fall 2016 reports of the Auditor General of Canada.
Liberal
NDP
David Christopherson NDP Hamilton Centre, ON
Thank you, Madam Chair.
My point of order is to determine whether we have a big issue or not. If you will allow me just a moment's indulgence, I have a question for the Auditor General.
On page 12 of your report in paragraph 6.44, two-thirds of the way through, you say, regarding some information and study you're doing, “The department did not respond to requests to provide evidence of further collaboration” and so on.
My concern, Madam Chair, is the “did not respond to requests”. Entities not responding to requests from the Auditor General when they are in the midst of doing an audit we take very seriously.
Was this a big issue, sir? Was it a matter of “If they don't respond, it's their loss, because they don't get a chance to make their case”, or was this an actual case in which you asked for information and they just bald-facedly ignored you?
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
If I may, Mr. Christopherson, it's about the relationship between the department and the Assembly of First Nations. I don't think it has anything to do with the Auditor General.
NDP
David Christopherson NDP Hamilton Centre, ON
Okay, well, let me hear that clarification, because I read it differently. It looked to me as though it was not like that to the Auditor General.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
On this point of order, Madam Chair, I don't believe that you can ask witnesses to clarify a point of order. I might be wrong, but I think a point of order is not an engagement with the witness.
NDP
David Christopherson NDP Hamilton Centre, ON
The question is about their report. I can do it in my questioning, but it seemed to be macro enough that I could ask it at the beginning.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
The clerk is telling me that you have to reserve that for a question.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
I'm sorry. I'm not experienced enough in this seat to impose those rulings.
NDP
David Christopherson NDP Hamilton Centre, ON
No, that's fine. If that's your ruling, I'll abide by it.
Liberal
NDP
David Christopherson NDP Hamilton Centre, ON
Fair enough. They know it's coming now. I can tweet the short form. Thank you.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
Thank you very much.
Mr. Ferguson, the floor is yours. Thank you very much for your introductory statement.
Auditor General of Canada, Office of the Auditor General of Canada
Madam Chair, thank you for this opportunity to present the results of our audit on first nations specific claims. Joining me at the table is Jerome Berthelette, Assistant Auditor General, who was responsible for the audit.
The federal government has long acknowledged that it has not always met its obligations to first nations under historic treaties or properly managed first nations' funds or other assets. In 2007, the government committed to a new process, called Justice at Last, which was aimed at resolving long-standing grievances more quickly, fairly, and transparently—preferably through negotiations. Resolving specific claims would provide justice for first nations and certainty for government, industry, and all Canadians.
Our audit examined whether Indigenous and Northern Affairs Canada, the department primarily responsible for implementing the new process, adequately managed the resolution of first nations specific claims. The audit focused on whether first nations had adequate access to the specific claims process, whether claims were resolved and documented in line with selected aims of Justice at Last, and whether results of the specific claims process were reported publicly and completely.
We interviewed officials in the Department of Justice Canada, the Specific Claims Tribunal, several first nations, and organizations representing first nations to get their perspectives on how well the new process was working. However, we did not audit the performance of these organizations.
Overall, we found that Indigenous and Northern Affairs Canada did not adequately manage the resolution of first nations specific claims as envisioned under the new process. For example, more claims were to be resolved than received each year. We found that the department achieved this objective in only two of the eight years since Justice at Last came into force.
Furthermore, the department had stated that every reasonable effort would be made to achieve negotiated settlements and that the vast majority of claims that entered negotiation would likely be resolved by a settlement agreement. However, we found that among the claims entering the negotiation process, more claims were either closed by the department or ended up in litigation than were resolved through negotiation.
We also found that the department's reforms of the specific claims process were not developed in consultation with first nations and that the reforms introduced barriers that hindered first nations' access to the process and impeded the resolution of claims. These barriers included certain practices that did not encourage negotiations— such as “take it or leave it” offers for claims that the department deemed to be valued at under $3 million, significant unilateral cuts in funding to first nations claimants for claims preparation and negotiation, and very limited use of mediation services and information sharing between the department and first nations.
Moreover, the department did not use available information and feedback to improve implementation of the specific claims process. This information included concerns raised by first nations and organizations representing first nations about how the department was implementing the new process. It also included information and feedback from the Specific Claims Tribunal decisions, most of which were in favour of first nations.
With respect to public reporting, we found that the department's public reports were incomplete and did not contain the information needed to understand the actual results of the specific claims process. For example, the department publicly reported that the 2007 reforms were a success. However, we found that most of the settled claims used to support this assertion were already either resolved or almost resolved before Justice at Last was implemented.
According to the 2015-16 public accounts, the government has acknowledged a liability totalling at least $4.5 billion for approximately 500 specific claims where the department has assessed an outstanding lawful obligation for the crown.
We are pleased that the department has agreed with all 10 of our recommendations and is preparing an implementation action plan.
Madam Chair, this concludes my opening statement. We would be pleased to answer any questions the committee may have.
Thank you.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
Thank you very much, Mr. Ferguson.
Mr. Wild, I invite you to present.
Joe Wild Representative, Department of Indian Affairs and Northern Development
Thank you, Madam Chair. I appreciate the invitation to appear today.
I'm the senior assistant deputy minister for treaties and aboriginal government. I'm responsible for the specific claims process. With me is Stephen Gagnon, the director general of the branch in my sector responsible for specific claims.
I would like to tell you briefly what specific claims are, and why they are important to first nations and to Canadians more broadly.
Specific claims are grievances of first nations against the federal government arising from the way Canada administered lands and other first nations assets. Specific claims also relate to how some of the provisions of pre-1975 treaties have been implemented.
Canada is committed to resolving these historic wrongs, whenever possible, through negotiated settlement agreements rather than in the courts. Doing so is one of the many ways Canada is building trust and reconciliation between the crown and first nations. The specific claims process is a non-litigious, alternative dispute resolution process in which first nations may choose to participate.
Continuing to participate in a voluntary and transparent process to resolve specific claims is beneficial to all Canadians. It allows for settlements that are mutually agreed upon, provides clarity of land ownership, and is faster and less expensive than litigation. The government is committed to working with first nations to find practical and fair ways to improve the specific claims process. We will continue to work with first nations to find ways to improve the time taken to resolve claims, to reduce the cost associated with the process, and to ensure that first nations have fair and reasonable access to the process. Our objective is to negotiate fair and reasonable settlements.
The audit findings and recommendations have reinforced the need to find ways to improve the process. The Auditor General tabled his findings on first nations specific claims on November 29, 2016. The report found that the process reforms initiated in 2007 unintentionally created barriers to first nations access to the specific claims process, which, in turn, are impeding the resolution of claims.
The 10 recommendations made by the Auditor General focus on better communication with first nations in order to jointly identify ways to improve the specific claims process.
Indigenous and Northern Affairs Canada agrees with the recommendations made by the Auditor General.
In fact, the audit is not the only recent report to identify aspects of the specific claims process that can be improved.
A majority of the findings of the Auditor General were previously raised during the course of INAC's review of the Specific Claims Tribunal Act and are noted in the minister's report tabled in Parliament last November.
Indeed, in June 2016, before the audit was concluded, INAC had started working with the Assembly of First Nations, first nations organizations, and others to identify fair and practical measures to make the specific claims process more responsive and effective. INAC has re-engaged with the Assembly of First Nations, which was provided $400,000 in funding this fiscal year to facilitate discussions on the four key priority issues the AFN identified.
A joint technical working group co-chaired by INAC and the Assembly of First Nations is currently overseeing work being done collaboratively to address four priority issues: funding to support the research and development of specific claims, the process for resolving claims with a value greater than $150 million, better use of mediation in negotiation processes, and clear public reporting. Each of these issues features in the report of the Auditor General, and the recommendations resulting from the collaborative efforts of the joint technical working group will inform the department's reporting on the detailed action plan to implement those recommendations.
Indigenous and Northern Affairs Canada has been mandated to renew the relationship between the Crown and first nations people in Canada based on recognition of rights, respect, co-operation and partnership.
Addressing the Auditor General's recommendations will be a significant example of how Canada will implement this renewal.
Indigenous and Northern Affairs Canada is committed to improving the specific claims process by working with first nations and first nation organizations as an integral part of fulfilling our mandate
I'd be pleased to answer any questions you may have.
Thank you.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
Thank you very much, Mr. Wild.
Now we go to you, Mr. Lefebvre, for seven minutes. Thank you.
Liberal
Paul Lefebvre Liberal Sudbury, ON
Thank you, Madam Chair.
Mr. Wild, I notice you're the senior assistant deputy minister. Can you tell us why the deputy minister is not here?
Representative, Department of Indian Affairs and Northern Development
No, I can't. I don't know.