Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 3 - Evidence - Meeting of February 12, 2008
OTTAWA, Tuesday, February 12, 2008
The Standing Senate Committee on Aboriginal Peoples met this day at 9:37 a.m. to examine and report upon the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples and on other matters generally relating to the Aboriginal Peoples of Canada.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Today, in the Standing Senate Committee on Aboriginal Peoples, we are studying implementation of comprehensive land claim agreements regarding First Nations people. We have with us from the Department of Indian and Northern Affairs Michael Wernick, Deputy Minister; Terry Sewell, Director General, Implementation Branch, Claims and Indian Government; and Michel Roy, Assistant Deputy Minister, Claims and Indian Government.
I understand you have a short presentation, deputy minister, and I am sure we will have some questions for you and your departmental officials.
I will next introduce the senators here this morning. From the Northwest Territories, we have our deputy chairman, Senator Sibbeston, and from the Province of Manitoba, Senator Zimmer. To my right is Senator Peterson from Saskatchewan; also on my right, from the Province of Nova Scotia, is Senator Oliver. With that, Mr. Wernick, the floor is yours.
Michael Wernick, Deputy Minister, Department of Indian and Northern Affairs: Before I begin my remarks, which are brief because I am sure you really want a question-and-answer dialogue, let me say how pleased I am for the opportunity to engage with this committee. I have been the deputy of the department since May 2006 and have noticed your work. In some ways, your work on specific claims, on water, on economic development and the study you are embarked on now really are the engine room of policy development in this area over the last couple of years. It is a pleasure to talk to you about this particular issue and I look forward to future encounters.
Thank you for the opportunity to speak on a subject that is relevant to all Canadians — comprehensive land claims agreements.
I will begin my remarks by acknowledging what I believe is the core of implementing comprehensive land claims agreements, and that is the relationship between the Crown and Aboriginal peoples. The truth is that modern land claim agreements constitute an enormous step forward for Aboriginal peoples in that relationship. They represent a fundamental increase in opportunity and potential. These agreements open the door to self-governance, to increased capacity, and to greater participation in the economic life of our country.
Communities with agreements in place have undergone transformative changes. I could quote many examples but I will pick one from the Cree-Naskapi agreement and the 2006 report from the Indian and Northern Affairs Canada commission. If one looks back to 1986 and before, and compares the life of the Cree and Naskapi communities then with the life of those communities today, the changes are obvious and dramatic. The overall standard of living has improved, levels of education have risen dramatically, and many successful new economic enterprises are in operation. In spite of some serious challenges, the past 20 years have seen a significant improvement in the standard of living.
[Translation]
As the Commission emphasizes, with change come both challenges and opportunities. I think it is important to recognize that with these agreements the Government of Canada is continuing our historic relationship with Aboriginal peoples. But we are also collectively establishing a more mature and complex relationship among the parties. And making this new relationship successful takes time, patience and open-mindedness.
While land claim agreements are a transformative opportunity for Aboriginal peoples, all parties' understanding of how to make these relationships work in a long-term, sustainable fashion is still evolving.
Nonetheless, our department recognizes how important it is to make these relationships functional and productive. Since the first modern day treaty — the James Bay and Northern Quebec Agreement in 1975 — there have been 21 comprehensive claims agreements affecting Aboriginal people across the country. As I have said, the agreements have a significant positive impact on Aboriginal communities and we as a department take the implementation of them very seriously.
[English]
The treaty-making process continues. The land claims settlement in Northern Quebec, in Nunavik, passed the House of Commons yesterday concurring with your amendments and is on its way to Royal Assent. The Tsawwassen modern treaty in British Columbia is in the House and is also headed your way. We hope to be tabling legislation for another treaty later this year. Treaty making continues and, therefore, treaty implementation is a very important issue for us to be talking about.
The Government of Canada has demonstrated considerable success in completing one-time obligations in the treaties. We have fulfilled almost all of the one-time obligations in the Inuvialuit Final Agreement, for instance, which was the subject of a chapter in the Auditor General's report. Nevertheless, two of these obligations are overdue, as were identified in the Auditor General's report. I have agreed with her and have instructed officials in the department to vigorously pursue the completion of the negotiation of these land exchanges that were brought to attention by that report. I will be pleased to report back to this committee regularly on progress towards the completion of those land exchanges.
I do want to emphasize that a significant proportion of implementation obligations in these agreements are ongoing, by their very nature. Therefore, they will never be brought to an end, as they involve ongoing efforts by all the parties and a new relationship between the Crown and the First Nations or Aboriginal groups in question.
For example, the establishment and support of regulatory structures and bodies creates an ongoing implementation obligation for all parties, and has implications for economic development in the Canadian economy as a whole. The regulatory mechanisms created by the treaties allow for more effective and inclusive management regimes, facilitating economic development of these regions of Canada.
The mutually agreed-upon objectives embedded in each agreement, whether they are very focused or more general in nature, are fundamental to that relationship. Frequently, however, the achievement of these objectives is subject to factors that are outside the scope and power of the agreement itself. I am sure we will want to talk about that shortly.
A challenge facing our department, which previous witnesses at the committee have raised, is that at the Department of Indian and Northern Affairs, we are not solely responsible for implementation or in possession of all the levers and tools related to implementation. As are you well aware, it is the Government of Canada that is the signatory to these treaties and agreements and their fulfillment often involves a range of government departments. To be candid, we have had difficulty in the past fully engaging other government departments in the implementation of these agreements. More often than not, these agreements are presumed by our colleagues to be the responsibility of our department. As a department, there is only so much we can unilaterally accomplish in fulfillment of the terms of implementation without the full participation of our colleagues right across the government.
We accept fully the responsibility to try to work with other departments and I am sure we can talk a bit about how to make that more effective in the future. Indian and Northern Affairs Canada is contending with significant challenges and implementation of the agreements but we do have a strong accountability mechanism in place. We are moving to strengthen the implementation process.
[Translation]
These mechanisms include multi-party implementation bodies, annual reports, regular meetings, and periodic audits to evaluate the impact of our work.
More recently, Indian and Northern Affairs Canada has developed an Implementation Handbook and conducted results-based management workshops with land claim beneficiary groups. We are also modifying tracking processes, all in support of addressing audit recommendations.
Our department's Implementation Branch has also recently completed a series of discussions across Canada with all our implementing partners focused on a better understanding of current implementation issues. This activity will lead to further work with our partners to develop new approaches to several of our shared challenges.
[English]
To try to be helpful to your deliberations as I see it, to effect, maintain and continue significant process in implementation of modern claims, there are success factors that must be in place.
First, we need to address awareness across federal departments — that is, an engagement by them in land claims implementation. We are trying different experiments and tools to increase that engagement of other departments, one of which pertains to the Yukon First Nations who will be appearing at the committee later this week.
Second, we need ``nimble'' financial mechanisms to support ongoing operational aspects by ensuring that funding for implementation initiatives and responsibilities is available. A lot of the funding requires renewal and going through approval processes within the Government of Canada. I think the financial mechanisms have been too sticky, too slow and too cumbersome.
Third, there is the capacity of all parties, especially people on the ground in the regions affected by the agreements. One of the key things will be far more transparency in the implementation and progress on land claims agreements. This was a big focus of the Auditor General's advice. We probably need a more effective and creative array of options and mechanisms for dispute resolution than going to court. We need to explore, as the Land Claims Agreements Coalition has suggested, some kind of external mechanism to hold the federal government's executive branch to account for progress on implementation.
Of this list, the department is actively working on the first two items today to improve them. They directly relate to how we are structured to manage the new relationships created by the treaties. The latter ones will involve further collaboration with their partners and will need their partnership to make these approaches effective.
I want to conclude by noting that the department welcomes and appreciates the advice and the input of the Auditor General and this committee regarding the implementation of comprehensive claims. We accept the challenge of making them a higher priority and raising our game in this area.
[Translation]
There is no doubt that the Government of Canada continues to face key challenges in the implementation of comprehensive land claim agreements. But I firmly believe that where there are challenges, there are also solutions. Both as a department, and as a government, we are determined to find those solutions internally as well as with our implementing partners.
The Auditor General's 2007 Annual Report will continue to inform my department's policies and processes regarding comprehensive land claim implementation. I am very appreciative for the efforts of everyone who participated in the development of that report, as well as for this committee's interest and involvement in the matter.
[English]
I welcome any questions and comments committee members want to pursue on this or on any other subject of interest to the committee.
The Chair: Honourable senators, if I may be so presumptuous, I would like to ask a question to lead off.
Mr. Wernick, I listened with great interest to your remarks. I believe the listening public would like to know how land, and the Aboriginal peoples who occupied the land, changed from being theirs to being the Crown's land. The Crown did not actually purchase the land, notwithstanding a skirmish that may have taken place many years ago. The Crown did not conquer the land either. Some call this situation the big lie. Perhaps you can comment on this confusing scenario as to how the Crown actually came into control of lands that were traditionally occupied by First Nations.
I have a basic question to ask and I am sure other senators will have additional questions for you and your colleagues.
First, I understand the government wishes to settle their claims or to quantify and qualify in words its relationship with specific groups of Aboriginal peoples. You seek to create the so-called modern-day treaties. I understand treaties to be a type of covenant between the two parties, and I am counting the federal and provincial Crown as one party. In negotiating the terms of these treaties, they are specific and the parties agree to honour these specific terms of agreement. In making treaties, Canada seems to be acting out that it will take land from the Aboriginal peoples in exchange for monetary compensation, and the Aboriginal peoples will lose a percentage of their independence and sovereign human rights in exchange for monetary compensation, as well as the protection of the Crown from any additional foreign intrusion into their internal affairs as a free people.
The commonly used word is ``compensation.'' There is compensation for the land, the diminishment and the qualification of the rights Aboriginal people once held, and a governance structure determining how the relationship between the two parties will work in the future.
I am possibly being oversimplistic in describing this and I know the two parties — the Aboriginal peoples and the Government of Canada — ratify these treaties. Why are the terms of the agreements the government agreed to not honoured? Why does the government not fulfill its end of the bargain? Is it that these agreements are treated just like some kind of program? Are they treated as a program or is there a budget established for the long-term settlement of these particular agreements that were entered into so that, when funding runs out, the process does not stop until the government gets more money?
Alternatively, is it because the structure of compensation payments and objectives are over a period of time that does not line up with the reality of implementing the treaty terms? In short, why does the government and its agent, the department, not comply with the terms of the agreements it makes with Aboriginal peoples? What is preventing government from honouring the covenants you made that are legally binding?
This is something we hear from various groups; it is not something that is heard in isolation. I believe there are over 20 treaties that have been signed. I have been on this committee for about 10 years. From the very beginning — Senator Sibbeston, you were there — I recall the Cree-Naskapi speaking of lack of honour on the part of the Crown in implementing the terms of the agreement that were agreed upon. That agreement was signed in 1975, if I recall. I stand to be corrected on when that particular agreement was signed.
The one thing that scared me in your presentation is when you deflected some of the responsibility on to other departments, because I think the fiduciary responsibility to the Crown lies directly through your department. Could you clarify that?
Mr. Wernick: I detected about five questions there, so forgive me if I take a bit of time to pick my way through them.
May I begin where you began, which is the treaty-making process. I am not a lawyer, and you should probably talk to my colleague, the Deputy Minister of Justice, or the Minister of Justice, in terms of the fundamentals.
The fundamentals are that this country recognized and affirmed in its Constitution Aboriginal and treaty rights. Not many countries have done that. In 1982, Aboriginal and treaty rights were entrenched in the Canadian Constitution, so Aboriginal groups across the country are sitting on those rights. The rights are not well defined. There was an attempt to clarify what that meant through a series of constitutional meetings in the 1980s, but they failed to achieve necessary consensus.
One way to get interpretation of constitutional rights is to go to the courts, and some groups have availed themselves of that. The modern treaty proposition, which is available to Aboriginal groups, is that you can keep those rights. No one is forced to sign a modern treaty; no one is coerced or compelled. There are Aboriginal groups that have chosen not to enter into treaty processes and will continue to take their chances sitting on their legal rights and trying to exercise them as best they can, and to forge a relationship with other levels of government and partners.
Other Aboriginal groups have chosen on their own to enter into a modern treaty relationship, which is basically exchanging those undefined rights for certainty of a treaty relationship which sets out the proposals and responsibilities of each partner and creates enforceable obligations. You would have to ask the Aboriginal groups whether it was a good idea or not, or why some of them chose to enter a treaty relationship and others did not.
I will jump to your question about the James Bay Cree. They were the first group to do this in the modern era. The old treaties from the 1800s and the early part of the 19th century are the historic treaties, the numbered treaties from 1 to 11, and so on. Then 50 years went by without a modern treaty. The James Bay Cree, for many reasons — and I was in high school at the time — decided to enter a modern treaty relationship with the Government of Canada and the Government of Quebec. That was the first time it had been done in 50 years and there was very little in that agreement — which was done in a fair bit of haste in the mid-1970s — about implementation. There was no implementation chapter or panel and no clear dispute settlement mechanism. Therefore, if there was any disagreement in the years following about whether the two parties were on track and whether people were fulfilling their obligations, there was only one place to go — the courts. That is why there was a lot of litigation, and that litigation has been a long and painful process. However, as honourable senators will know, there has been a settlement on that litigation. It has been ratified by the Cree communities and it will be announced with some ceremony later this month. So that chapter is behind us.
Previous governments learned from that lesson and said they had better not do that again in modern treaties. In the wave of agreements that were signed in the late 1980s and 1990s and so on, we said, or my predecessor said, that we had better have an implementation chapter and dispute settlement mechanisms. Therefore, all of the subsequent agreements have some version of an implementation panel, a dispute settlement mechanism, possibilities of arbitration and so on, and there is an attempt to be very clear about what the obligations are, who is obliged to do what, and when.
There is a lot of accountability around those agreements. There are 10 or 11 federal statutes. Each one has an implementation act, and we are sending you a couple more, on Tsawwassen and Maa-Nulth. They set out the obligations of the federal Crown and of other parties. In large part, the relatively easy parts — such as receiving a certain amount of money and land, cash transfers and the creation of regulatory bodies — have been fulfilled. The glass is more than half full on these modern treaties.
I hear the frustration, as you do. I think there was an analogy at this committee about whether the modern treaty is a renewal of marriage vows or a divorce. What the agreements would create, in my view, is a new relationship and a new place in Canadian federalism. You will have governments or government-like bodies attached to the agreements — and they vary across the country — who now have a new relationship with their neighbouring provincial government and with the federal government. Those relationships will go on and on and on for generations to come. They often involve fiscal relationships: how much money, tax powers, transfers and so on.
I do not actually see that as being all that different from federal-provincial relations. There is an ongoing fiscal relationship between the Government of Canada and the Government of Saskatchewan about fiscal transfers and equalization.
Senator Peterson will know it is a matter of some controversy as to whether that is adequate or not and about the right way of dividing up federal-provincial transfers. It should not surprise anyone that there is friction about financing. The agreements involve renewing of the money needed. Because you could not know with absolute certainty in 1997 how much a regulatory body would need 15 years later, they typically have financial terms of five years and another five years, and a periodic renegotiation is involved. That is much like federal-provincial transfers, and there is a certain amount of bargaining and give and take.
I do not think we do a great job at the renewal of those fiscal transfers because we take a long time to negotiate small amounts of money, but that is where some of the misunderstanding is. We do not have those kinds of monies in the departmental budget. The easy parts, like the initial capital transfer where you get $100 million over 10 years, flow easily because they are usually in the federal statute. For the ongoing funding of something like the water board in Nunavut or a regulatory thing in the Gwich'in area, we have to go back and get that money out of the normal appropriation processes of Parliament and through Treasury Board, and that has been a slow and ponderous process, frustrating to us and to the Aboriginal groups.
I am losing the thread of your questions. These relationships will go on and be subject to periodic renewal and renegotiation on parts of them. The world will change. The economy will go up and down with the price of gas, mineral activity and global warming. Any number of things will change the environment. I do not think the right way to look at these, and this is embedded in your question, is the lawyers' view, with all respect to lawyers in the room, that these are fundamental texts to be interpreted like scripture and any deviation from them is something then to go to the courts.
You have essentially a new contract and a new relationship between the Crown and the Aboriginal group in question, and it is an agreement for a new relationship which we accept. We have to conduct ourselves honourably and fairly, no sharp dealing, with respect, and negotiation is always the best way to resolve things. That is the advice of the courts and the Auditor General, and it is our policy to try to negotiate agreements wherever possible. If negotiating an agreement is not possible, then people have the right, going back to where I started, to seek enforcement in the courts. We are accountable to the courts and to you and to Treasury Board for performance.
I do not know if that is helpful, but you had many questions embedded there. We are not trying to duck the responsibility to other departments. My point is that the Crown signed the agreement. I have no ability to compel Parks Canada to move a piece of land. I do not have that power. I can work with my colleagues at Parks Canada to ensure that they are aware of their responsibilities and obligations and try to herd the cats in the federal system. That is a responsibility I accept.
The Chair: Do you agree that you have financial commitments coming down the road in all these agreements?
Mr. Wernick: Yes.
The Chair: Those that have signed treaties where implementation has not taken place have formed an organization among themselves. I do not think the gravity of the situation can be minimized. There is an urgency there, in their minds at least. We are hearing that it is hindering their ability to be self-sufficient through economic development. As a result, has any thought been given to establishing a fund rather than having to go to Treasury Board when funds are required? It comes down to something like specific claims. Specific claims hung out there for years, and hopefully this new legislation will pass Parliament and set up a contingency fund or a reserve fund for future claims settlements. Has any thought gone into doing this for these treaty implementations which do require funding down the road?
Mr. Wernick: You are talking about the overall process for appropriating and flowing money to the departments. Parts of it flow relatively easily. If the treaty contemplated a capital transfer of $200 million over 10 years, that money flows easily. You will see it in the estimates. In the estimates for next year, you will see money moving on those payment schedules. We have a bunch of payment schedules overlapping.
The hard part in your question is — what will the Nunavut regulatory bodies need five years from now? There is no thought given to a fund or a pot. Money is appropriated by Parliament through the conventional estimates process, and we will have to seek agreement from Treasury Board on a number to go into the estimates that Parliament will approve. That can be a laborious process. Mr. Sewell spent the best part of a year haggling with the centre about the appropriate funding level for the Nunavut regulatory bodies. We spent the good part of a year arguing about the implementation of the next cycle of Nisga'a agreements. I do not see any alternatives. That is how money is appropriated in our system. All we can do is work hard with our central agency colleagues in other departments to ensure they understand that these are ongoing relationships between the Crown and the other partner in the treaty.
The Chair: Is it correct that Nunavut has a lawsuit presently in the courts?
Mr. Wernick: Yes, there is an implementation process in the Nunavut agreement. There is an implementation panel. This was before my time. There is a lot of discussion about the ongoing funding. It has mostly to do with the education system in Nunavut, and some had to do with the regulatory bodies in Nunavut. There are other issues about employment and training.
As I said at the beginning, the NTI, Nunavut Tunngavik Inc., people decided that they had rights as they saw it and would try to get the courts to exercise them. That is their choice. Anyone can go to the courts to exercise their rights. We have consistently offered to try to negotiate an appropriate settlement of those issues, and that offer is still open.
Senator Sibbeston: In listening to you, Mr. Wernick, I do not get the impression that you come before us apologetic or recognizing that the department is amiss or weak in terms of the implementation of land claims. You say the federal government signed that agreement, and there are departments other than yours that have to deal with the implementation matter.
In the Northwest Territories, it is primarily your department, the Department of Indian and Northern Affairs, that is responsible. That is the biggest federal agency in the North. The Auditor General specifically blamed your department for the lack of implementation and the problems that existed with the Inuvialuit claim and the Gwich'in claim.
While I can understand your position, and while I can appreciate that is a strong attitude and approach you take on behalf of the department, I do not sense you are apologetic or remorseful or anything of that sort with respect to how your department has handled the implementation of land claims in the North. If there are to be any changes, the first step is to recognize that there is a wrongdoing or an absence or a lack. If we are to have proper change in government and departments, it seems to me you have to recognize there is a problem. I do not sense that. The stance you take is more of justifying yourself than anything. Am I right?
Mr. Wernick: I am sorry that is the way you interpret it. My watch in the department began in May 2006, and I do not know the circumstances and all the factors that would have happened before under other ministers and deputies. All I can do is be accountable for what I have done on my watch, which is to take this issue as seriously as I can. We make implementation of these agreements and other undertakings very important. I have done what I can to hold people's feet to the fire. We are going to take the advice. We will put in place clearer tracking and reporting — what are the obligations, and what milestones have been reached. This is bureaucratic stuff, but it matters. We have quarterly reporting exercises in the department. We will be transparent with this committee and others as to progress we have and have not made. I have people in the field in the Inuvialuit area trying to finish those land transfers before the summer.
I hope to have something to report on in a couple of months. That is all I can do, senator. I do not see it as productive to go back before my watch. I have said — and I think the transcript will bear this out — that the department has not done a great job on implementation, nor has the Government of Canada. I cannot go much further than that without my lawyers saying I will blow our case in the courts.
We have to do better because I do not know how we will get other First Nations groups out of the Indian Act if they look at the modern treaty First Nations and say: You will have a difficult and arduous time dealing with the Government of Canada in a modern treaty. It is fundamentally important to the relationship with First Nations peoples in particular to get the modern treaties right, and I hope we will do a better job with Tsawwassen and Maa- Nulth than we did with agreements in the 1970s. I hope I am a bit clearer for you, senator. I have a watch of so many years at the department, and I will try to raise our game on implementation.
Senator Sibbeston: A lot of the problems we see in Canada with respect to federal relations with First Nations have to do with not fulfilling terms of treaties and so forth, and that is where the Oka dispute and others have sprung up.
In the modern era, there is a whole new initiative coming in to play with modern land claims agreements that have not been implemented properly. There is a land claims coalition, a grouping of all the First Nations in our country that have had modern land claims but are experiencing difficulties, so we are into a second round of problems and a second round of bad relations with the federal government. We have had meetings with the land claims coalition. All the land claimants in the past 20 or 30 years are beginning to gather and deal with that issue.
In our meeting with them, they suggested that there be a formal implementation policy and an independent body to oversee and report on implementation. Our committee is studying this whole issue.
Recently, the Senate amended Bill C-11 to include a mandatory review by the minister of the implementation of the Nunavik agreement. Is this the answer? Will this help both parties, the federal government and the land claimants, if there is a 10-year review with respect to implementation? It has suddenly come to light that maybe we have the answer on this whole issue, if there is a mandatory review of implementation. This has been put into the act now. If you think it is a good thing, could all future land claims agreements then have such an implementation review of 10 years? This would put the onus and public focus on the issue of implementation.
With this 10-year mandatory review, I wonder if we have the answer to avoid all future problems with lack of implementation by the government.
Mr. Wernick: That is a very important question.
Let me start at the back of your question and move to the beginning. It is an important tool, but it is not a magic bullet, if that is not a tortured analogy. It would be helpful. There is no lack of accountabilities in this area. The problem is there are too many accountabilities and it is confusing who is reporting to whom for what.
There are lots of reports tabled in Parliament on these agreements, and we will try to catch up, and they are available for the public, media, senators and members of the House of Commons to study and keep us on track.
It is useful to have the Auditor General come in every once in a while and hold the mirror up to see how you are doing. It is useful that these statutory review provisions are put in federal statutes. Whether it should be five, seven or 10 years is for you as parliamentarians to decide. I have no trouble with it, and I encourage you to amend all of it. If we have not put them in, then do so as we send you Tsawwassen and Maa-Nulth and others. They will at least hold people to account every once in a while.
I met with the land claims coalition, and Mr. Sewell spends a lot of time with them. They are an important group and partner for us. I accept we should have an implementation policy, whatever that means. The problem is — and I said this bluntly to them and will to you — having an implementation policy that we do not implement will not move us anywhere.
The really interesting issues have to do with feedback and accountability mechanisms that keep people on track. Those can be audits, the Auditor General's reports, reporting to Parliament or any number of tools. The tendency is that, once the announcement of something is finished and the cameras have been shut off and we are on to implementation, people do not spend as much time on implementation issues. That is something that happens in government. Anything that reminds you of your undertakings and holds you to account is a good idea.
The land claims coalition suggested four points to you, and I agree with them, but the fourth one about an external review mechanism, which I referred to in my remarks, is beyond my power to create.
We have several. We have the courts, parliamentary committees, the Auditor General. We could create an independent body. That is not something I can do. The machinery of government is for the Prime Minister to decide, but the idea of having somebody on the outside hold up the mirror is a good one. That can be either in the legislative branch of government, which means it has to be somewhere around the Auditor General, or it has to be in the executive part of government, which means it must be around Treasury Board. Those are the only two options I can see.
I would not recommend an ombudsperson mechanism; you just add one more person bopping around reporting to Parliament.
Having an external mechanism to state the obligations, check on progress and issue report cards and hold people to account is a welcome idea.
Senator Peterson: I will concentrate on specific land claims. I understand 19 have been settled but there has been no implementation, and some of these date back eight or nine years.
Whose responsibility is it to deal with that? They come to us. Why is there a land claims coalition? What is the necessity of that? Do we have to deal with that? Is there a template you need that we can help you with? Why are we in this situation? It is tough enough with issues that are unresolved, but these are resolved issues that have been outstanding for years and years and going nowhere, and they do not know where to go. What do we tell them? Whose responsibility is it?
Mr. Wernick: If I can spend a minute clarifying, there are two kinds of claims. Comprehensive claims are the sort of thing I was talking about a while ago where there never was a treaty. In large parts of Quebec, British Columbia and the North, there are undefined Aboriginal rights and no treaty relationships. There are significant parts of British Columbia and elsewhere where we are still trying to negotiate modern treaties to close that gap.
There are the historic treaties, the ones signed as the West was settled, that go from the Ontario border up through the Mackenzie Valley, treaties 1 to 11, and there are many issues to do with lack of fulfillment of these treaties. Many have to do with money that was not transferred adequately or deal with land promises. Perhaps a First Nations was promised 28 or 124 acres per head, or whatever the numbers are, and there are still — and it pains me to say it — unfulfilled obligations related to those treaties.
We have a separate process underway to fulfill the treaty land entitlements, and much of that is in Saskatchewan and Manitoba, as you probably know. The largest shortfalls in treaty land entitlements are in those two provinces, and we are trying to move that land forward.
We can go into that in more detail but basically that is provincial Crown land, and I cannot decree that provincial Crown land be added to an Indian reserve. We need cooperation. First of all, the First Nation has to agree on the piece of land it wants; it has to be surveyed and go through environmental assessments, and then the province has to move it to us and we have to move it to the reserve. It is a slow process and we are trying to speed it up. We made an enormous amount of progress in Manitoba last summer. That is the source of a lot of frustration for First Nations groups.
Specific claims are breaches of lawful obligation of the Crown. They have mostly to do with how monies were managed — trust fund accounting. Compensation may have been paid to a First Nations band 150 years ago and there are allegations that, somehow, we breached a lawful obligation. There are over 800 of those around the country, as you know, and this committee spent time exploring that.
Their main recommendation was that the out-of-court settlement model was not working and we needed an independent tribunal to arbitrate. That was the action plan announced by the Prime Minister last June and is the substance of Bill C-30, which is currently in the House and, hopefully, will be coming to you. The best thing I can advise you, without getting political, is that Bill C-30 and the creation of an independent tribunal will make an enormous difference on specific claims.
Terry Sewell, Director General, Implementation Branch, Claims and Indian Government, Department of Indian and Northern Affairs: I wish to add some perspective in responding to Senator Sibbeston's questions as well as to yours. The Auditor General's task is to find out where we are not doing so well and to bring that to light and make a point of it. In coming before you, she shines a bright spotlight on weaknesses, the things she is not happy with, and what we can work better on. She does not shine the light on the whole agreement. The impression can be left that no implementation is happening because she has found these weaknesses.
The Inuvialuit Final Agreement may have in the order of about 90 obligations inside that document. Of the 90, roughly 15 will be one time. Of those 15, the Auditor General has correctly pointed out that we have not done two of them. They are land exchanges involving negotiations among parties. Twenty-three years is too long for that to have been outstanding. She has been rightly critical of us, as the deputy said, and he has instructed us to resolve that.
About 50-plus obligations of the 90 I referred to in the Inuvialuit Final Agreement are ongoing. The agreement calls on us to put in place regulatory bodies and to support them. Those bodies exist and are doing their work. There is a strong array of ongoing tasks.
Among the ongoing tasks are two that the Auditor General pointed out are not ongoing as well as they should be. One would be economic measures and whether we can do more in that area. The Auditor General has said we should do so and we are working together with the Inuvialuit and other partners.
Another ongoing obligation that we are not doing well on is government procurement. Our massive government procurement system is not responsive. We are focusing on that and trying to fix it.
I wanted to provide perspective on the Nunavut agreement. Yes, there are areas where we have not done well. However, that does not mean we are not implementing across the board. Implementation is underway and is ongoing.
Concerning the Land Claims Agreement Coalition, I agree it is a strong message when all the holders of modern treaties come to together as a group because they have significant concerns with the federal system. We need to listen to their advice. In coming together, their advice provides a powerful voice for the holders of modern treaties. They are clear in the messaging and we need to pay great attention to that. That is why we have undertaken a major review. We value the advice of the coalition. I am concerned that there needs to be a coalition, but let us listen to them and try to find ways to move ahead in modern treaties.
Senator Peterson: Is INAC, Indian and Northern Affairs Canada, responsible for the implementation?
Mr. Wernick: Are you talking about the treaties?
Senator Peterson: I am talking about specific claims that have been approved but are still outstanding.
Mr. Wernick: Yes.
Senator Peterson: Is there a particular department? They have been coming to us for years. We send them to INAC.
Mr. Wernick: A claim is submitted through a specific claims process. I would be happy to provide briefing on that. It involves a legal assessment of whether or not there was a lawful breach and advice from the Department of Justice. If they are accepted for negotiation, they go into a negotiation process. That unit reports to my colleague, Mr. Roy, and we have been negotiating specific claims settlements.
The policy shift that we are trying to attempt is to move a lot of the claims from that negotiation process to an independent tribunal.
Senator Peterson: I am talking about the ones that have been settled. They do not have to go to a tribunal; they have been done. Everyone agrees. That is the injustice that has been done but nothing happens. Yet, five or six years later, nothing is happening. You do not need to have more meetings and tribunals because everyone has agreed. Why is it that cannot be done?
Mr. Wernick: If everyone is agreed, then they have been settled. We have settled many of them.
Senator Peterson: Why, then, are 19 outstanding?
Mr. Wernick: It is not 19. Those are the treaties, not the specific claims.
Senator Peterson: I have been told there are 19 specific claims agreed upon, but then there is this land coalition agreement.
Mr. Wernick: I am sorry, senator, but you are mixing specific claims and treaties.
Senator Peterson: No, I do not think so.
Mr. Wernick: There are not a great number on specific claims. There are 800 or 900 outstanding claims in Canada.
Senator Peterson: What are we doing about that?
Mr. Wernick: We are trying to implement an independent tribunal.
Senator Peterson: This is where the backlog seems to arise. We have been told that the Department of Justice cannot provide enough people to assist. Is that correct?
Mr. Wernick: On the specific claims, if you want to take a minute on that, senator, because someone has made a claim does not mean it is valid or right. There are claims where someone has asked for $750 million. Our obligation and that of the Department of Justice is a certain amount of due diligence before a cheque is written. There is often back- and-forth negotiation. You are dealing with historical facts that may go back 50 or 100 years. The documentary evidence of what happened is not always that easy to sort out. It is a slow process and this committee gave advice on how to improve it.
Senator Peterson: On the agreements that have been agreed upon, I understand there may be one or two items that need to be resolved in some of them; others are more complex. Do we put them in a scale and go down and try to get them out of the way?
Mr. Wernick: My colleague was trying to get at that. Obviously, I am not getting it across. We will try to be more transparent on what are the obligations embedded in each agreement. There may be 50, 60 or 100 obligations; some of them are one-time and some are ongoing. The auditors tend to pick on the ones that have not been fulfilled. That is not a criticism. That is what auditors do. You lose perspective that many were fulfilled. If you had read the press coverage the day after the Auditor General's report on Inuvialuit, you would have gotten the impression nothing had happened in 23 years. However, they got the land, they got the money, they got the regulatory boards up and running, and they are successful in running a number of businesses in Northern Canada, as Senator Sibbeston would know. However, there are deficiencies and gaps. We acknowledge them and are trying to close them.
If you took any of the First Nations or Inuit groups and their life before treaty and their life today, they have made a quantum leap in development, in capacity, and in their relationship with the rest of Canada.
We should be celebrating that success while acknowledging there is still work to be done. That relationship between the Government of Canada and those Aboriginal groups will continue for another 100 or 200 years.
Senator Oliver: I am not a regular member of this committee but I read the briefing materials for today's meeting last night.
Mr. Wernick, you have a reputation in the bureaucracy of being able and doing good work. Your presentation today demonstrated that.
I am interested in how public administration works. The first comment you made today is that you have been deputy minister since May of 2006. By my count, that is 21 months.
In June of 2006, the issue of deputy ministers and how long they are around was discussed in the House of Commons. The House of Commons found that, while deputy ministers serve an average of 3.5 years on an assignment to departments, Indian and Northern Affairs has had five different deputy ministers over the past seven years. They found that this pattern is also true for senior officials within the department.
I would like to quote from a report of the Standing Committee on Public Accounts and then ask you to comment on it. The report said the following:
The Committee is deeply concerned by the constant rotation of deputy ministers and other senior officials in INAC, which seems to be a pattern for this Department and partly explains why so little progress has been made on First Nations issues and implementing recommendations of the Auditor General. This high turnover rate makes it difficult to achieve policy continuity and coherence or to deliver on promises made by previous deputy ministers. Moreover, it takes considerable time for a new deputy minister to understand First Nations' concerns, as well as build a relationship of trust and a climate of confidence with them.
Could you comment on that, please?
I know that a deputy minister is appointed on the recommendation of the clerk of the Privy Council and the Prime Minister, so you do not have a personal say on how long you will remain a deputy minister of a department. Nonetheless, this comes as a concern and I would like your comments on it.
Mr. Wernick: Thank you, senator, for the compliment.
If I take off my hat from this particular department, I think the turnover of ministers combined with the turnover of deputy ministers really is an obstacle to implementation and follow-through. It means there is a natural tendency to focus on the new things and it takes time to get a handle on the ongoing parts of your department.
I think that is a generic problem, and the House of Commons Standing Committee on Public Accounts is quite right to seize on it. It is a complicating factor.
I do not have any answer for you. I can be yanked out of the job tomorrow by the Prime Minister and there is nothing I can do about that. It is not my intention to go anywhere. I would like to see through a lot of things in the department, but it is beyond my control. That is a machinery-of-government issue, which is for higher powers than me to do something about. It is an issue.
This particular area is a bit of an exception. Mr. Roy has actually been in the job for more than six years and Mr. Sewell has been in the implementation area for some time. There actually has been a fair bit of stability in this area, which will invite you to ask why we have not done a better job. The issue here is not turnover; it is the problems we were talking about earlier. It is a complication.
I do not know what it is about INAC. There are other departments, such as foreign affairs, trade, and social development, which have gone through periods of turnover. It does not help. It really does complicate implementation and follow-through.
One complication, if I can put in a commercial, is that if you can do the job at INAC as an assistant deputy minister, you can pretty much handle anything in town, because it is one of the most difficult, challenging and complex departments in government to run. Since I have been deputy minister, I have lost three assistant deputy ministers through promotions to other departments because they are seen as good and talented properties. I have to chase succession and recruitment all the time.
Today, deputy ministers spend more and more of their time on people issues: finding, recruiting and convincing people to stay. There are opportunities in bringing in new blood, but there is also a price to be paid in terms of corporate knowledge and continuity. The people who were around when the treaty was signed are not there to talk to about the implementation and so on.
It is a challenge, senator. That is not a very helpful comment on my part, but I do think it is a complicating factor on issues like implementation.
Senator Oliver: The other part of the same question is about something you raised in your presentation. You talked about engaging other government departments. You basically said that, when it comes to land claims issues, it is not just one department but a group of departments. You commented on the difficulty at times of getting senior officials in other departments to do what is required to get the job done, and that perhaps is one of the reasons for delays and the concern that has been expressed around the table today.
It is our understanding that the department chairs an interdepartmental federal steering committee and federal caucus group with representation from various government departments about activities relating to ongoing treaty negotiations. It has everyone around the table, and they work towards negotiation and many other things.
Could you tell us about this committee and its responsibilities, its roles, how it works, and how often it meets? Are senior-level officials represented at these committees? In other words, how does it function?
Mr. Wernick: I will ask Mr. Roy to answer because he is the chair and our representative on that matter. My only comment is that, to date, the committee's focus has been mostly on negotiating mandates for new agreements and it has not spent a lot of time on implementation. One of the things we are trying to figure out is whether the committee could be a useful body to pay attention to implementation issues as well.
Senator Oliver: I am interested to know as well whether the committee is able to engage other government departments, if they come to the meetings and participate.
Michel Roy, Assistant Deputy Minister, Claims and Indian Government, Department of Indian and Northern Affairs: The other departments are involved in managing the negotiation process, so we have all of the central agencies involved in that committee, as well as other departments. We meet on a regular basis, at least four times a year, and have what we call virtual meetings throughout the year, depending on the pace of the negotiations.
Senator Oliver: How does a virtual meeting work?
Mr. Roy: It is more through exchange of paper in terms of arriving at a mandate for negotiations. When I have a specific issue on the table for which I really need a mandate from my colleagues, when we have an emergency to address, I will turn to this process of exchange of paper and letters instead of just having a meeting, but it is mainly managing the negotiations and not the implementation issues. This committee is mandated to review all of the memoranda to cabinet before they are submitted. I need the approval of that committee so I know the minister will have the support of his colleagues moving forward with the memorandum to cabinet.
Senator Oliver: Mr. Wernick, have you had difficulty engaging other departments when you need decisions made to move the yardsticks forward?
Mr. Wernick: I am glad you asked the question. There is no lack of cooperation and goodwill, and I in no way wish to be interpreted as criticizing colleagues. When an issue is brought to the attention of my colleagues, they tend to call in to the department and ask if they can do something to move it along. There actually is a great deal of goodwill. I think it is not that; it is just a public administration challenge.
Mr. Roy spends 100 per cent of his time in the area of treaties and Indian government. He eats, breathes, sleeps and works entirely in that area. His counterpart at the Department of Finance has a whole range of social policy issues and spends maybe 10 per cent of her time on our issues. That is the problem in dealing with the central agencies. They have a lot to juggle. I have worked in the central agencies and I respect the role they have to play as well.
If you are at the Department of Fisheries and Oceans or if you are the airports person at the Department of Transport, this is one of their files and they do tend to come to the table and engage. The trick is how to make this higher on their list of things to worry about, because they all have other responsibilities and tasks that they are being asked to do.
If I call the head of Parks Canada, for example, I tend to get cooperation, but frankly, that should not be the mechanism; it should not come to that. We should have an ongoing way of getting issues and problems resolved, and having interventions, minister to minister, deputy to deputy.
Senator Zimmer: I want to continue on that line of questioning. That is what happens when your name starts with a ``Z'' and you ask your questions last; usually you get trumped and scooped. I do not mean to give you a pain where you should have pleasure and I do not want to beat this issue to death, which was addressed by Senators Sibbeston and Peterson and really articulated by Senator Oliver.
You said that you have had difficulty engaging other government departments. What concerned me was when you said that you cannot force Parks Canada to do something, and you talked about herding cats.
My question really is: Who is the cat herder? Who holds their feet to the fire? We have come so far to say: Here are the problems. We meet on a regular basis. However, in the end, if things are not happening, who is ultimately responsible to pick up that bar and make it happen, to move it along, because the panacea comes into play, which is: After you, Alphonse. To finalize it, to ensure that these agreements progress appropriately, who can force the issue to make it happen?
Mr. Wernick: You have got to the absolute heart of the issue that the committee is studying. It will have to be a combination of inside and outside. On the inside of the executive part of government, it is our responsibility to be aware of what the obligations are, to be an advocate for those obligations, and to push other departments to be aware of them and move on their action. We at least have to play that role of switchboard, clearing house, telling the airports person that he has work to do and so on.
As the land claims coalition suggested, it may require some outside pressure as well, and that is where I think your report and recommendations will be important. It could be the Auditor General, it could be a different kind of mechanism, it could be an ombudsperson, or it could be an obligation of Treasury Board. Having the Auditor General come in and report every three years on the state of all the treaties would be one possibility. I am not trying to pass the buck, but your advice would be helpful on some combination of our responsibility.
I am saying that, if I am aware we need to transfer land at such-and-such an airstrip in such-and-such a region, there is no piece of paper I can sign to make that land transfer happen. Other people have those levers, and we have to do our best to make the rest of the system aware of them. We are trying different things.
I referred to the Yukon example. I will not put words in the mouths of representatives who are not here, and you will be speaking to them tomorrow. We tried to get everyone in town who has a piece of the Yukon implementation around the table yesterday and give them a chance to talk directly to the people in the Yukon First Nations and make people more aware of the issues and the relationship. It is an experiment. We will see if it is productive. I will let the Yukon First Nations speak for themselves on that. It is an ongoing struggle because it might be priority number 42 at the other place, whereas for us it is obviously much higher on the list.
Senator Zimmer: I have one more question in the area of litigation and negotiation. Modern treaties were negotiated. All parties would rather come to an agreement than go to court, but it seems that Aboriginal peoples have to go to court anyway to get the Crown to implement its obligations and duties as defined in the comprehensive land claims agreements. The Cree have launched many lawsuits, and the NTI has initiated a major suit that lists 16 grievances. I do not want to comment on any individual suit but, in your view, what needs to happen to decrease the likelihood of more litigation by Aboriginal peoples to get the Crown to remain true to the provisions in modern treaties?
Mr. Wernick: That is a good question. As I said earlier, people with entrenched, affirmed and recognized Aboriginal and treaty rights can go to the courts, as anyone in Canada can, to seek enforcement of their rights. It is not for me to state whether that is a good thing to do. That is a choice to be made by the Aboriginal group in question. They think long and hard about the costs and expense. All I can say is I agree with the advice from the courts and from the Auditor General that negotiation usually leads to a more satisfactory outcome because both people have agreed that it is a fair compromise and a fair bargain. I referred to that in my four or five bullet success factors.
We have to be more effective in using the implementation panels or dispute settlement bodies that are in the agreements, at least the more recent ones. They have implementation panels and dispute mechanisms. We have made little use of arbitration, and we could probably make more effective use of that in the future. Any number of mechanisms might contribute. This will sound a bit evasive, but there is not any one tool that will solve all of this. Concerted and sustained attention and follow-through will be the way to do that.
Litigation is always there as a right for First Nations and Aboriginal groups, and the courts often do clarify issues. That is fine, and we will try to abide by the results of the court decisions, but we try hard to negotiate as well. Part of Mr. Roy's other responsibilities is overseeing more than 200 negotiating tables trying to reach land claims settlements and self-government agreements.
The Chair: Something disturbs me, deputy minister, about the right to seek redress through the courts. This is a horror story in this country. When you look at the treaties when they are first negotiated, often over 50 per cent of the settlement of compensation is advanced to First Nations, and then the rest goes to legal fees. Look at how the legal fees impacted the residential schools issue. I think we have to get out of this thought process that the courts are a solution for items like this that have been negotiated and are basically in black and white. This is not for an interpretation of inherent rights or something like that. This is scary. Think of the millions of dollars being spent on legal fees. It is horrific. It is sad because it is taking money away from the mouths of children, it is taking away from the ability to educate our First Nations people, and it is going to the biggest law firms in this country. There is a rightful place for the legal profession, but once you have an agreement, I do not think you can legislate honour. We can have 10-year reviews and all that, but once an agreement is arrived at, you can have all the reviews you want, if the honour of the Crown does not live up to its fiduciary responsibility, we are in deep trouble. This scares me and many of the First Nations people I have talked to, especially on comprehensive land claims. Specific claims are another kettle of fish totally. This is a different situation totally.
In the implementation branch, as far as comprehensive treaties are concerned, how many people work in that actual department, Mr. Sewell? Do you have adequate staff to meet the responsibilities of the job? I have information, which I do not wish to disclose publicly, that education has very few people in the department, and they are responsible for all educational responsibilities on reserves right across Canada, which covers thousands of children. Please respond in reference to the implementation branch.
Mr. Sewell: I have about 55 positions in my branch. Of that, there is a unit that is involved with negotiating the implementation plans. The deputy mentioned in his opening remarks that the early agreements did not come with implementation plans, and we learned quickly that that was a bad recipe, so part of my branch comes to the table at about the agreement-in-principle stage and starts to work with the other parties to put together the actual plan for who will do what and when.
Do we have adequate resources? I find there are cycles in the business. We are finding that the more mature agreements have a different set of demands than the young agreements. In the case of the Labrador Inuit agreement, for instance, we are busy getting the early cheques out, setting up the structures of the committees and boards, and making appointments. We have a schedule of activities to do, and we are frenetic at that phase. As the agreements become more mature, we move into review phases. The Yukon folks represented here today have been part of both a Yukon government and Yukon First Nations review process that has gone on for three to four years now. It is a complicated business, and there is a lot going on. I believe we have adequate resources to do the job. We go through cycles when the demands are pretty high. Right now, we just completed the arrangements with the James Bay Cree, and we now move into the implementation phase of that new relationship. Both Yukon and Nunavik are at renewal stages and offer their challenges.
If I may shed light on one element, once the treaty is reached, there are words on the page, and then there can be interpretation differences. There can be different points of view. Let me use an example from the Nunavut Land Claims Agreement. Article 23 has, as an objective, that the government workforce in Nunavut should be representative of the population. That is not an unusual clause. It is what we pursue everywhere in Canada because it is how we believe business should be done in the public service, which is that the public service should be representative of its population. In Nunavut, I am told, the Inuit population is about 85 per cent. That would mean then that the federal and territorial workforce in Nunavut should be peopled with about 85 per cent of the employees being Inuit. That is not the case today. When Thomas Berger looked into it further to give us a hand with the renewal process, it is not a job availability issue. The jobs are there. The issue is the availability of trained Inuit to move into these jobs.
Now, if the article in the land claim agreement has as an objective a representative workforce, how far does the land claim responsibility extend before it butts up against other issues such as quality of the educational system, social factors around success for students, and housing accommodation? The success rate of Inuit students, which then leads to employment opportunities, depends on an array of factors, some inside the claim and some outside. If the parties have a different point of view of what the responsibility is under the claim to get the workforce up to the representative level, then you have a disagreement. I wanted to use that an as example of having the words on paper but where it can lead to very strong and big differences of opinion about how to implement.
The Chair: How far up the ladder do you have to go for a decision?
Can you make decisions at your level, Mr. Sewell, or do you have to go through the entire process right to the Privy Council Office?
Mr. Sewell: It depends on the decision. Quite often it comes down to money. That is frequently a disagreeing factor, and to increase the budget, the department requires approval from Treasury Board. Sometimes, if it is a change in the land claim agreement, we may have to go all the way to cabinet. However, by and large our relationship on funding matters is with Treasury Board. We are in the process of taking steps with cabinet to clarify the rules with Treasury Board of how we can access funding for ongoing implementation responsibilities.
We are trying to take some steps to improve the system the deputy has described to you. I would in my heart love to have a much more nimble, accessible system, but I have the system I have, and our task is to make it work the best it can for us.
There are matters I can make decisions on with my colleagues at implementation tables, and we act on those jointly and cooperatively whenever we can. There are some things we can handle and there are some things bigger than us.
Senator Sibbeston: Mr. Wernick, we as a Senate committee on Aboriginal peoples have just come back from a trip in the United States to visit the Navaho, the Apache and the Pueblos. We saw some amazing things Aboriginals down there have accomplished, mostly in the area of economic development. We did a study on the economic situation of Aboriginal people in our country. That area of economic development is, to me, one of the most important things.
The information we got from government is that, while economic development money from government to help Aboriginal people get into business is needed, there seems to have been a decrease in the monies available. Recognizing the importance of this area of economic development, are you able under your watch, as it were, to do anything in that regard? Recognizing it is so important and you knowing it, can you as deputy minister get more money and do more things so that Aboriginal people in Canada can get on their economic feet?
Mr. Wernick: Thank you for the question, senator. It gives me an opportunity to say that it is a personal priority of mine to strengthen our role in economic development. That will require a number of decisions beyond my control, but the ones in my control are to put more sustained attention to the area.
A couple of things have happened in the area, as you probably heard when you were studying economic development earlier in the session. We have moved the Aboriginal Business Canada program from Industry Canada into our department. Those people now report to me through a new economic development branch. I took all of the people who work in economic development, put them into one organization and hired an assistant deputy minister who does nothing but work on economic development.
Previous ministers and Minister Strahl have replenished and named some very distinguished Canadians to the Native Economic Development Advisory Board. There are some interesting people there. I encourage you to meet with that board and talk about economic development. Looking at all of the work that has been done on economic development, they have said we should focus on a couple of issues, one of which is access to capital for entrepreneurs. We put proposals together and we will see. I am waiting for the budget in anticipation as much as you are, but I cannot create resources I do not have.
We are doing as much as we can to give the minister arguments as to why this would be an area to work on. The reason is one that this committee identified. There will not be an improvement in the social conditions of First Nations communities, or others, where there is no functional economy, where there are no jobs, hope or opportunity. There are some peculiarities and challenges in a reserve environment of doing that, and we will try as best we can to overcome them. The senator knows these issues well.
We will start working on access to capital and then perhaps on our community development programs, and I will be a nag about those issues across town. There is recognition that there is real opportunity.
What encourages me is that the next five years are a truly historic opportunity to make a difference for two reasons. One is the resource boom. We are seeing development in minerals, energy, pipelines, LNG — liquefied natural gas — terminals, infrastructure and so on. Economic activity is not just happening in Mississauga and Montreal and Vancouver; it is happening right across the country where Aboriginal peoples live.
The second is the demographics of Canada's labour force. Starting next year, the absolute supply of available labour in this country will shrink for the next 10 years, and there is no amount of immigration and fooling around with the retirement ages that will reverse that. You will have heard, senator, from sector after sector, industry after industry, their biggest problem will be labour shortage, and they are looking for foreign workers and skilled immigrants and all these things.
Our job is to say I know where you can find young workers, in our First Nations and Aboriginal communities. The demographics are tens of thousands of young people who will be potentially entering the labour force over the next five or 10 years. Our job is to get them through high school and to work with HRSDC, Human Resources and Social Development Canada, to get them the skills, training and opportunity. The studies show that any Aboriginal person who finishes high school or gets into the post-secondary system tends to do reasonably well in comparison with the mainstream. The biggest hemorrhage in this country is the high school dropout rate in First Nations communities, which the senator alluded to earlier.
Senator Zimmer: Mr. Sewell, you raised the issue about Nunavut land claims. I have a question about that. Neither the United States nor the European Union accepts Canada's full sovereignty over the Northwest Passage, and I recently read an article in Policy Options that suggests Canada's argument can be bolstered by full and complete implementation of the Nunavut agreement. Do you agree, and what clauses of the agreement are of the greatest importance in supporting Canada's assertion of Arctic sovereignty?
Mr. Sewell: Can I phone a friend on this one, sir?
Mr. Wernick: I do not recall the exact text of the article, but it is something the Prime Minister said that sovereignty is basically a use-it-or-lose-it proposition. The most important things, other than defence and awareness of who is up there and what they are doing, which is more of a defence and security matter, are about exercising the functions of government out there. Are you regulating economic activity? Is there stuff going on up there? From Mr. Sewell's point of view, it is the regulatory bodies in Nunavut — our mining, prospecting and water board licencing and all that stuff, which appears to be mundane administrative work. It is the exercise of public government in that part of the world and therefore reinforces Canadian sovereignty.
The Chair: I have another question related to what Senator Sibbeston has been talking about — economic development. How much of a roadblock is lack of implementation creating to economic development? Economic development is the road to self-sufficiency and it leads to so many aspects. Specific claims are one thing out there and will be resolved hopefully through Bill C-30. However, we have entered into these comprehensive land claims, and yet we are asking today why there is such a nightmare in front of us.
Could you tell us succinctly in a nutshell whether the lack of implementation is a roadblock, because obviously having to spend money on lawyers to get implementation to become a reality within a First Nation will have to take away from something.
Mr. Sewell: I would like to make a few points on that question. One is I disagree with the sense that implementation is not happening and there is a mess and to get anything done under an agreement you have to hire a lawyer. That is not the case across the board.
If I can use the example of Inuvialuit again, there were financial arrangements when that agreement was signed that flowed to allow the establishment of the Inuvialuit Regional Corporation, which set up a number of subsidiary companies. Money has been wisely invested under gifted leadership there, and Senator Sibbeston will know this up close and personal that they have done very well on their business ventures, whether it is airlines or a variety of other investments. A lot of employment is caused by the Inuvialuit companies and their wise investment.
In the main, implementation supports economic development. Across the North, the regulatory structures are the direct result of the land claim agreements. You will recall when Mr. Berger went there in the early 1970s to look into the pipeline notion, his advice to the Canadian government was to resolve the land claim deals before looking at major development. Many land claim deals have been resolved and we have economic goings on and a regulatory regime which can handle applications for resource development. We have diamond mines. The land claim agreements robustly support economic initiative.
The challenges are that some of these locations are remote. These locations depend on other factors than the land claim agreement in order to have a robust economy. I read a quote from someone who said that land claim agreements, the modern treaties, are not a book of guarantees but a book of opportunities. Land claim agreements set the certainty of ownership and access in place, for example, how you go about getting to a diamond mine, but they do not put the diamonds in the ground. There are limitations outside the agreements. Having an agreement does not equal robust economy.
In many ways, the land claim agreements have been supportive of economic development. We have an economic measures agreement in the Inuvialuit Land Claim Agreement. The Auditor General has been critical that we have not done as much as we could with that chapter. In the last year, we have begun to embark with the Inuvialuit players and the other governments involved in doing some assessment of what is possible in the six communities.
This is a remote part of Canada. What are the economic opportunities for Sacks Harbour, given its location? We will have to approach that practically and deal with it on a what-makes-sense basis.
This is an important area and I want to highlight how land claims agreements play an important role in the North in the fact that there is economic activity going on.
The Chair: Are there any other questions or comments? If not, I want to thank you, Mr. Wernick, as Deputy Minister, for coming with Mr. Sewell and Mr. Roy. I think you have answered some of our questions.
It concerns me that the process possibly inhibits your ability to fulfill obligations that you, as a department, would like to fulfill. What scares me about the Department of Indian and Northern Affairs is that it has so many responsibilities that it is next to impossible to deal with all of them — for example, health, housing and welfare, the list goes on. I do not know if any particular department can be a complete government, which is really the scope and depth of the responsibilities you have as a department.
However, if we do not accomplish anything else this morning, I would like us to leave with the thought that the less lawyers and the less legal costs that are imposed on First Nations, the better.
If there are no other comments, I wish to thank you again, gentlemen, for being straightforward and candid in your responses. We appreciate the integrity you brought to the table.
Mr. Wernick: Thank you, senators. We look forward to your advice.
The Chair: We will go in camera for one short motion.
The committee continued in camera.