THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Thursday, May 16, 2019
The Standing Senate Committee on Aboriginal Peoples met this day at 1 p.m. to study the subject matter of those elements contained in Division 25 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019, and other measures; and, in camera, for the consideration of a draft report.
Senator Scott Tannas (Deputy Chair) in the chair.
The Deputy Chair: Good afternoon. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, on television, or listening via the Web.
I’d like to acknowledge for the sake of reconciliation that we are meeting on the traditional unceded lands of the Algonquin peoples.
I’m Scott Tannas, from Alberta, and I have the privilege of beginning the meeting as the chairperson, and Senator Dyck will join us as quickly as she can. She’s detained at another committee meeting. So I will be the chair today for part of the meeting of the Standing Senate Committee on Aboriginal Peoples.
Today we are continuing our examination of the subject matter of those elements contained in Division 25 of Part 4 of Bill C-97, an Act to Implement certain provisions of the budget tabled in Parliament on March 19, 2019, and other measures.
Before we begin, I invite my fellow senators to introduce themselves.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Lovelace Nicholas: Senator Lovelace, New Brunswick.
Senator Francis: Brian Francis, P.E.I.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitoba.
The Deputy Chair: Thank you, senators.
We have with us this afternoon, from the Ermineskin Cree Nation, Chief Craig Makinaw, and from Onion Lake Cree Nation, Chief Okimaw Henry Lewis.
We’ll begin with the opening remarks of Chief Makinaw followed by Chief Lewis.
Chief Makinaw, the floor is now yours.
Craig Makinaw, Chief, Ermineskin Cree Nation: I’m Chief Makinaw of Ermineskin Cree Nation. Our nation entered into Treaty 6 with the British Crown in 1877. We appreciate the opportunity to address the members of the standing committee on a number of issues as it relates to our rights.
Obviously we can’t address the whole of the proposed bill. Ermineskin will confine our concerns on the matters that could directly impact our rights and the rights of our future generations.
Bill C-97 does not only include the budget, the bill is full of amendments on a variety of legislation cutting across many areas of laws. Bill C-97, as it relates to our rights as treaty Indigenous peoples, has a number of flaws.
The legislation was drafted without our consent. As a matter of fact, our nation was not engaged at any time during the drafting process to determine our views on the main issues.
Ermineskin Cree Nation has a long history of working with the Department of Indian Affairs and Northern Development, and the Department of First Nations and Inuit Health Branch in making substantive amendments to funding agreements.
Our involvement in changing language goes back more than 15 years, so our nation is used to reviewing, editing and suggesting proposed wording changes.
In light of our involvement, it came as a shock to learn that the two new departments have been designed and included in the omnibus legislation, Bill C-97, without a word from the government to our offices. We consider this oversight to be a major violation of our treaty rights.
Ermineskin had considered that the days that the government unilaterally made decisions and tried to impose them on our peoples was in the past. Obviously, we are mistaken.
Ermineskin Cree Nation has always considered our rights to be collective rights. The proposed amendments to Bill C-97 to create two new departments only makes references to the Indigenous individuals. What is going to happen with our collective rights? What are Canada’s intentions? We have heard nothing.
The use of the terminology “of individuals” moves us toward the Charter of Rights and Freedoms that was not to apply to our nations because of our collective rights. Now Parliament is proposing to override the Constitution and impose legislation that promotes the individual. Our nation has created many laws to protect our collective rights. Is Canada going to impose the legislation using the funding process encoded in the draft bills?
We see no acknowledgment of our treaty relationship. In the creation of these two departments, there is no reference to treaty peoples. We see references to Inuit and Metis, but not treaty peoples. Yet, it is due to the treaty making that allows the state of Canada to exist. There is no such thing as terra nullius, doctrine of discovery or conquest as it relates to our peoples. It was treaty making that allowed for the peaceful settlement in our territories. It is very simple. So we ask: What is the intention of the state in relation to our treaties?
Canada is a constitutional monarchy. Ermineskin Cree Nation asks: Is Canada attempting to make a constitutional amendment by enacting these two departments without consulting our peoples?
The new bills are also going to have implications for provinces. Has anyone asked the provinces?
Is it possible for the federal government to unilaterally amend the Constitution by orders-in-council? Those orders-in-council were made nearly two years ago, in August 2017, but only brought before Parliament through this omnibus bill.
Ermineskin asks these questions because that is precisely what is taking place in the process. Where was the authority to create two departments and shift monies voted for Indians into the two entities? It was all done in a closed central decision-making body — the cabinet — without parliamentary oversight.
The result of the orders-in-council are using monies voted for Indians for two years. Is this legal? Is it constitutional? Is this last-minute insertion into the budget bill designed to cover the operations of two departments working outside of the parliamentary process? These are very serious issues and have grave implications for treaty peoples.
The anticipated formation of the two departments does not appear to envision a role for the treaty peoples.
Prime Minister Justin Trudeau has said on numerous public occasions that no relationship is more important to Canadians than the relationship between Canada and Indigenous peoples. Was he referring to everyone except treaty peoples?
In order for Canada to be established, treaties needed to be made. This is the fundamental law set out by the Crown in the Royal Proclamation of 1763. The United Nations knows the significance and role of treaties in the creation of successor states like Canada.
The courts in Canada have stated on numerous decisions that treaty peoples must be treated fairly and to have no sharp dealings so that the honour of the Crown is upheld. Yet Canada has drafted legislation on this fundamental relationship without discussion with our nations. The question to be asked: Is this process bringing honour to the Crown or an example of sharp dealings?
When the state decided to keep their activities in relation to the drafting of this legislation away from our eyes, they are reverting to the old colonial times.
Unilateral actions from residential schools to the pass system, permit system and many other decisions taken in Ottawa and imposed on our peoples, this is another example of such decision-making. We are not far away from the colonial decision-making.
There is a need to question the goal of the Government of Canada. A hundred years ago, the aims of Canada were clearly stated by Deputy Minister of Indian Affairs, Duncan Campbell Scott:
The happiest future for the Indian race is absorption into the general population, and this is the object and policy of our government.
He also said:
Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian department . . . .
Nothing has changed. Bill C-97 continues Canada’s colonial legacy. Ermineskin Cree Nation makes the following suggestion as a way forward.
The clauses in the proposed bill related to Indigenous peoples should be removed and considered in a separate and fair process that respects the decision-making processes of our nations.
The Government of Canada cannot depend on organizations to manufacture consent. Organizations did not make treaties. At one time we worked within an organization to support ourselves in a collective manner. Now these organizations are being used against our nations.
We want the record to show that the Ermineskin Cree Nation does not consent to the proposed language of Bill C-97. We call for the removal of the following sections from the bill:
Subdivision A of Division 25 of Part 4 enacts the Department of Indigenous Services Act, establishing a Department of Indigenous Services and confers on the Minister of Indigenous Services.
Subdivision B of Division 25 of Part 4 enacts the Department of Crown-Indigenous Relations and Northern Affairs Act, which establishes the Department of Crown-Indigenous Relations and Northern Affairs.
Subdivision C of Division 25 of Part 4 makes amendments to other acts and repeals the Department of Indian Affairs and Northern Development Act.
We call for the removal of these sections from the bill prior to its passage from this house. Treaty peoples want to work on the implementation of our treaties. We want to see a proper recognition of treaties, not the present unilateral and secretive process that was used to present the present draft.
On behalf of the members of the Ermineskin Cree Nation and our future generations, including those who cannot speak for themselves, we thank you for hearing our concerns.
The Deputy Chair: Thank you, Chief Makinaw.
We’ll now go to Chief Lewis.
Okimaw Henry Lewis, Chief, Onion Lake Cree Nation: [Indigenous language spoken].Without any further ado, I have very deep gratitude for the Senate today. Deep gratitude from the bottom of my heart. It took a long time to get to the table where we might be heard.
Tansi, and good morning chair and members of the committee. On behalf of Cree Nation, we want to make our views on Bill C-97, an omnibus bill, that covers everything from monies to amendments to various pieces of legislation. It is obvious that we cannot comment on all the provisions. We will confine our comments to the major issues buried in the bill that concerns my nation — the splitting of the Department of Indian Affairs and Northern Development.
On August 28, 2017, Prime Minister Justin Trudeau unilaterally announced the creation of two new entities: Minister of Indigenous Services and Minister of Crown-Indigenous Relations out of the Department of Indian and Northern Development. The two entities were empowered through orders-in-council. Twenty-one months later, Bill C-21 contains language to create the two departments.
In the 21 months, ministers of the Crown, Bennett and Philpott, have not engaged Onion Lake in any discussions on the draft legislation. We were not engaged in the process despite the words of the Prime Minister on August 28, 2017, when he said:
. . . we will be establishing two new departments: a Department of Crown-Indigenous Relations and Northern Affairs, and a Department of Indigenous Services. These changes were modelled on the recommendations of the royal commission and will be finalized in cooperation with Indigenous Peoples.
Where is the cooperation? How was the cooperation supposed to take place? If this bill passes without any amendments, the creation of these two departments will be finalized. We were not involved.
As Okimaw of Onion Lake, along with my council, we are responsible for the future generations and are the rights holders, including our descendants.
In 21 months we have not received one piece of correspondence inviting our chief and council from our treaty nation to a meeting to discuss the reorganization of the government, or have been asked how such a reorganization will have an effect on our rights and our lands.
There was complete silence from the government. This is not the actions of the Prime Minister who has publicly stated on numerous occasions that the relationship with our nations is most important. What does that mean in light of the proposed amendments?
In the same statement, the Prime Minister said:
What we are doing here today is also the next step toward ending the Indian Act, but the pace of transition will also require the leadership of Indigenous nations, communities themselves.
While the Prime Minister talks about the leadership being involved, there is no process. It is lip service to the treaty peoples that brings dishonour onto the Crown. As rights holders, you cannot engage organizations that are not part of treaty making to give consent on our behalf.
Onion Lake does not allow any organization to make decisions for us. No organization entered into treaty with the Crown, unlike our nation.
In fact, there’s a section within the bill that calls for a gradual transfer of department responsibilities to Indigenous organizations, a complete erasure of our nation in language contained within the 1969 White Paper.
These are major constitutional issues involved in the proposed amendments in the creation of these new departments. What is the future operation of section 91(24)? We remind the members that 91(24) refers to “Indians and lands reserved for Indians.”
In 1969, Prime Minister Pierre Trudeau and Minister Jean Chrétien proposed in the infamous White Paper that section 91(24) would be rendered null and void within the British North American Act as Canada moved to incorporate our people and the nations into the fabric of Canada.
Our response to Canada: Our treaties cannot be unilaterally terminated by the federal government. In 50 years, Canada has continued to create the policies and programs that are attempting to terminate the treaty relationship and thereby creating one service delivery system through the provinces.
As the Prime Minister said in 2017, “Our provincial and territorial partners” to make a new relationship. That new relationship does not include our treaties. The same objective in 1867, 1969 and 2019: terminate the Indians.
Our treaties with the Crown are the foundation of the state of Canada. Without treaties, the state would not exist in our territories. We remind the members that the Royal Proclamation of 1763 set out the provisions for accessing our territories.
Our ancestors agreed to a peace and friendship treaty with the Crown to follow for a peaceful settlement within our territories. We did not give up our territories or our resources. Our nations entered into treaties in our own right using our own laws and our own governmental structure. We do not need to negotiate a “self-government” agreement under a policy directive that has been unilaterally drafted and imposed by officials of the government.
In 152 years, the face of colonization remains the same: get rid of the Indians and impose the colonial rule in our territories. The tactics are the same.
We are always trying to find willing partners — the fur traders, the churches and the whisky traders. Now we have organizations paid and created by the state to service the purposes of the state, like the Land Management Board, the Indian Taxation Advisory Board, Financial Management Board and many others, all designed to bring our people and our lands within the state.
All these entities are created without our consent. In the legislation, members of Parliament are funding and cooperating in the destruction of our nations.
In July 2017, Onion Lake communicated with Minister Bennett on a way to implement our treaties that would bring honour to the Crown. She was not interested. Instead, the government has chosen to draft legislation in secret for 21 months. Embedded deep inside an omnibus bill on the budget is the creation of the two departments to bring legitimacy to the order-in-council.
If the government was committed to the implementation of a real relationship with our people, the bills should have been tabled in the House of Commons after extensive consultation with our people. Separate bills would have allowed us to make comments or suggested amendments if necessary.
In place of a new relationship with Indigenous peoples, the state has chosen to bury the bills deep within a 400-page-plus bill. No minister of the Crown sent our nation a letter or any communication that these changes were going to be in the budget bill. Treaty people had to discover the provisions by reading the legislation. It’s not an easy read at almost 400 pages.
In this regard, we have requested to the honourable members of the Senate that these provisions be removed from the budget bill prior to its passage. The members of the Senate have the authority and right as the chamber of second thought to bring honour back to the Crown. Treaty people have our rights violated on a daily basis. This needs to change. Remove these provisions and set in place an honourable and respectful process to implement the spirit and intent of treaties as envisioned by our ancestors. We want it removed from the bill. Hai hai.
The Deputy Chair: We’ll now go to questions, beginning with Senator Patterson.
Senator Patterson: Thank you, chiefs, for your presentations and the challenge you’ve presented to us. About this move, this major reorganization of the Department of Indian and Northern Affairs, we were told by the government that this was about decolonization, moving away from the Indian Act. The AFN National Chief Perry Bellegarde, said of this measure when it was announced that the changes were welcome and necessary and that the changes could advance reconciliation.
I’d like to ask: Has this reorganization, which has actually been in place for a couple of years now, because it was initially done by order-in-council, has it led to new Indigenous-led institutions? Is it about decolonization?
Mr. Lewis: I appreciate the question, senator. Where I’m coming from, maybe for clarity, I’m coming from a more spiritual perspective. I’m a leader of my nation of 600 to 500-plus people, but I’m also a ceremonial lodge keeper, and that’s where I’m coming from. This is something that’s very hard to be understood, including our AFN, Chief Perry Bellegarde.
Although we seem to be talking the same language, but the process, we don’t agree with the process, for one thing. Also, our chief is not listening to us in regards to the spiritual realm, where I’m coming from.
Senator Patterson: Thank you. You have collaborated with some other chiefs, other First Nations, and announced a national day of action against Canada’s termination agenda, as it was described in your press release on May 7, 2019. You also referred in that press release to a request that you have made to the committee on elimination of racial discrimination against all the unilateral actions of Canada, I guess, like this one.
Can you tell me if you’ve had a response to — if there have been some developments on your petition, your action with the UN committee on elimination of racial discrimination?
Mr. Lewis: For that part, there are certain things I cannot answer at this time. We had certainly reached out to the UN level because we were not being heard in Canada. There are two sides to the story. When Canada reports to the UN, they paint a rosy picture of how we are being treated in Canada, and this is not the case. That’s why we had to intervene.
Another thing, when we submitted, we asked for the framework to be stopped. Another problem we have is manufactured consent. That’s a big problem that we had through the AFN. It’s been reiterated over and over again. We are stating that nobody can talk on our behalf, on behalf of the treaty people, except us, the grassroots chiefs. That’s a big problem that we’re having.
By the same token, your honourable senator, I am not professing to speak on behalf of other nations. I’m appearing before the Senate on behalf of my own nation, because I have respect for my fellow chief, too, and that’s his responsibility. But if we work in unity to try to make our voices heard, that’s our attempt here today.
The Deputy Chair: Thank you.
Senator McCallum: Thank you for your presentations. I’m glad you’ve had the opportunity to come here and to present your deeply troubling issues.
You feel this is a deeply flawed bill, and do you feel that a superficial tinkering of this bill could fix it? The reason I say this is that Chief Craig Makinaw stated that we are regressing to colonial times through colonial decision-making, which is a continuation of assimilation.
The bills don’t address the root cause, which is a lack of meaningful consultation, lack of consent, which are part of the path to self-determination. And there’s a lack of a relationship.
Do you feel that if the Senate were to tinker with this bill, that it could be fixed, or you just want the bills removed?
Mr. Makinaw: Speaking for myself, I want the bills removed.
Senator McCallum: Chief Lewis?
Mr. Lewis: Same thing. That was our mandate, to have the total bill rejected.
Senator McCallum: Okay. Thank you.
Mr. Lewis: It would work, if I may, if the grassroots treaty people would be involved in the process right from the beginning. That we may be heard from the other side.
By the same token, under the Constitution of Canada, we’re lumped into one. We’re not
Metis; we’re not Inuit; we’re treaty people. So we want that right to be heard as treaty peoples. Thank you.
Senator Lovelace Nicholas: Welcome here this morning.
First, I would like to let Canadians know that we live on unceded lands, we are a nation, and we were never captured.
My question is: In what ways, if any, has the creation of two departments affected the funding your community or organizations receives for programs and service delivery?
Mr. Lewis: For our nation, Onion Lake Cree Nation, we established a working table under the blessing of the former Minister of Health, Jane Philpott. For two years, we spent a lot of time and resources on that new fiscal arrangement, as we understood from the Prime Minister, first of its kind.
The reorganization of these departments is sure to have an impact because of the way the monies are being transferred. The transfers of monies from the original INAC, Department of Indian Affairs, being transferred to Indigenous Services Canada, and that would have an impact on the work that we’re having right now. The legislation will have an impact on us.
Mr. Makinaw: Over the last 15 years, we have been in negotiations with INAC on our CFAs and we have never come to a long-term agreement because we don’t like the wording. That is one thing.
Over the years, they’ve proposed to give us 3-year, 5-year and 10-year agreements, and we never accepted because we don’t like the wording in those agreements.
Until we get proper wording that protects our inherent treaty rights, we will not agree to any new 5- or 10-year grants proposed by the government. That doesn’t work with us and I don’t think it will.
Once these two departments were split, it made it worse because now we’re arguing on our CFA wording with two departments. It would make more sense having just one department and having the programs there. It doesn’t make sense that we’re scrambling, talking to this or that department. Even INAC staff don’t know who to talk to. It is causing a lot of confusion. For myself, I would rather leave it as it is, as INAC. I don’t like calling it by another name. I don’t go by that.
Mr. Lewis: In terms of that funding, the dollars are going to be just as I read in my statement. There is a gradual movement of our dollars to the provinces or even organizations. These are classified as Indian monies as we speak, but once they are transferred, they wouldn’t be recognized as Indian monies, and that’s a big problem with us.
Further to that, we maintain our stand in the Governor General’s role, as the honour of the Crown. Canada operates under the Governor General, and in our process, we wanted the Governor General included in our process because of her handling of our treaty monies. That’s the importance, and that’s where I’m coming from.
As we speak, on the work that we had done on the treaty-based arrangements, we want your support, if we may, to push our treaty-based agreements to be signed off before they break in June.
Senator Lovelace Nicholas: My next question is that since they’re developing two new identities, Indian Affairs and whatnot, does the funding come from part of the funding that Indigenous people get? Does it take away from our funding that goes into our communities?
Mr. Lewis: First of all, I’m not sure I understand the question, but we need to clarify. The dollars we’re asking for through the treaty-based funding is aside from the funding supposed by the framework. These are treaty monies that we’re asking for.
I’d like to go back to the court challenge that we did against Canada on Bill C-27. For the record, when the main person of INAC was asked, in terms of those dollars, “Are these taxpayers’ dollars,” the answer that he gave is on record: “No, these are Indian monies, not taxpayers’ dollars,” and that’s on the public record.
These are the dollars that we are seeking, the treaty dollars that we are entitled to for the use of our lands and resources.
Senator Lovelace Nicholas: Thank you very much.
The Deputy Chair: We have come to the end of the list. I have a couple of questions. Maybe we can refill the list.
My understanding is that with the splitting of INAC into two entities and the addition of the Health Canada people into the mix, we’ve gone from 5,000 employees to 8,000 employees now working with these two departments.
The only number I’m not aware of, and I’m going to find out about it today, but I wanted your information, is: How many employees paid by Health Canada do you have in your communities?
Mr. Lewis: If I may have that right to refer that question to my technician, it’s a coincidence that she’s sitting in the back here. She can answer that. She works in the health field.
The Deputy Chair: Funded by?
Mr. Lewis: Health Canada.
The Deputy Chair: They would be included, because they are employed by Health Canada, in the 3,000 that came out of Health Canada. So they are actually in the field, delivering services, great.
And you, Chief Makinaw, any idea?
Mr. Makinaw: I will make a rough estimate. It’s probably close to Chief Lewis’s, 86 to 100 staff.
The Deputy Chair: What’s the population?
Mr. Makinaw: Ours is 4,500.
Senator McCallum: When you look at what’s being addressed in this bill, besides the budget, it says: Subdivision A proposes to enact the Department of indigenous services act; Subdivision B, to enact the department of Crown-Indigenous affairs; Subdivision C proposes amendments to other acts and repeals the Department of Indian Affairs; and Subdivision D proposes to amend the First Nations Land Management Act and the First Nations Oil and Gas and Moneys Management Act, and the Addition of Lands to Reserves and Reserve Creation Act.
That’s a lot to understand and to be able to negotiate through. To me, when I read this, it’s overwhelming. I don’t know how you can do all this and expect the First Nations to continue to do your governance. All this will have an impact on everything that you do. Can you comment on that?
Mr. Makinaw: I can make some general statements. One of the problems I see in all these bills is some of our authorities are given to the provinces, whether it’s in lands, and there is child welfare. All these acts are pretty well similar in their writing giving authority to the province. How can we exercise our treaty and inherent rights if we are giving our authority to the provinces? If we’re going to have a successful relationship with the federal government, it should be bilateral between the federal government and ourselves. Once we get to that stage and happens, things will work better for us. The way things are right now, with what’s going on with all these bills and the government trying to force the 10-year grants on us, I don’t think is right, because you’re cherry-picking which bands have money and which bands don’t; and the ones that don’t have enough money will take those grants, unfortunately. It’s not an even playing field, because you’re looking at the bands that don’t have enough funding dollars. Other bands that have resources can do that.
I see that as a problem. Until we can sit down at the table and better discuss these issues and our relationship, things aren’t going to change. If all these bills get passed, I see us going to court. It’s as simple as that. We have to protect our rights. We can’t just sit back and let this manufactured consent happen and stuff like that go on the table. We have to come back to the table and form a true bilateral relationship with the government. Once that happens, things will work.
Mr. Lewis: If I may add in terms of the First Nations Land Management Act amendments that are coming down. For the record, Onion Lake has refused to get into the process. I knew where it was taking us, so I put the brakes on that one.
Let me put a scenario. After 10 years — I’m also talking about the 10-year grants — the funding is not even guaranteed. I know, as a leader, and after reviewing 69 white papers, I know the implications because I did research on that. That’s exactly where we’re heading in terms of land management.
Our reserves are being created into municipalities. We will be forced to tax our own people to create our own revenue. But I ask the Senate: Where are we going to get the dollars? Our people are in poverty enough. To add that burden, they wouldn’t be able to pay taxes. In essence, if we cannot pay taxes, that means we will lose our reserves. It’s as simple as that.
Senator McCallum: When we look at this bill, it will become an issue of inequity. There’s no clarity in combining all this and trying to understand how each act will impact — including the language bill, the child welfare bill, and other bills that are coming in. As you said, we’re regressing back to colonial times.
Mr. Makinaw: Years ago, when the Progressive Conservatives were in government, similar to Bill C-27 years ago, there was a chart. I don’t know which group created it, but at that time they were looking at all the funding for INAC. I recall that close to 50 per cent or a little over 50 per cent of the INAC budget went to INAC staff across Canada, before the money ever came to the bands. I don’t know if that figure is still the same.
Over the years, being a chief and councillor for my band, I have brought up the suggestion at INAC meetings: Why can’t we do electronic transfers? We’re at the stage where everyone has electronics in their offices. What’s so hard about doing electronic transfers? Maybe we can cut down on INAC staff, save money and give more money back to us. We have to be more creative instead of staying where we are, and unfortunately save some government staff jobs. If you look at the overall process, maybe for these two departments you can scale downward the number of employees and give us back the dollars.
It’s something we need to look at because we can’t stay the way we are. Our populations are getting bigger, and probably in the next five to ten years we will hit 2 million. We have a young population, up to 18 years old, in every band. We’re the next highest group that will be up there, so we have to look to the future of our people. As our elders say, we have to look generations ahead. We have to look at that seriously.
There are other things we have to look at. One of the issues I think we have to look at is how we can deal with reducing our INAC staff and bringing more dollars back to the bands. Unfortunately, it’s not working right now. I know the 2 per cent cap was lifted, but that is not enough because we still need more dollars to keep our bands servicing our members.
Mr. Lewis: Can I supplement? I will be brief.
In terms of the dollars that come from the treasury, I will talk a little about the split. From the almost 100 per cent of the funding that comes from the treasury on our behalf, about 60 per cent actually reaches the First Nations. Out of that 40 per cent, about 19 per cent is retained by INAC to operate their administration and 21 per cent for “other.” I need clarity on the other 21 per cent. Maybe the organizations — AFN, FSIN — are getting those dollars. If we can get those dollars first-hand, that would certainly help a lot. That would certainly help with the poverty we’re dealing with in our First Nations. Hai hai.
The Deputy Chair: On behalf of the committee, Chief Makinaw and Chief Lewis, we thank you for coming the distance you did to be here with us. You’ve given us great pause for thought and some — to me personally — interesting closing comments.
Thank you again, colleagues.
We’re continuing our work on the pre-study of Division 25, Part 4 of Bill C-97.
The committee is pleased to welcome Scott Serson, former Deputy Minister, Aboriginal Affairs and Northern Development Canada, and Veldon Coburn, Faculty member, School of Indigenous and Canadian Studies, Carleton University.
Scott Serson, former Deputy Minister, Aboriginal Affairs and Northern Development Canada, as an individual: Thanks to the committee for inviting me to appear today. I would like to begin by acknowledging that we are meeting this afternoon on unceded and unsurrendered Algonquin territory.
I believe the last time I appeared before the committee was October 18, 2017, when you were beginning your work on the relationship between Indigenous peoples and Canada.
At that time, I expressed some concern about this decision to create the two new departments. I was and am concerned that the government is implementing one small segment of the Royal Commission on Aboriginal Peoples seven-point plan for restructuring the relationship. The creation of the two departments will not have its full impact outside of the context of that plan.
I believe the RCAP plan was to have several pieces of legislation through Parliament that would have clearly indicated the direction of that restructured relationship so that public servants and, indeed, First Nations leaders, like the ones we just heard from, would have a clear understanding of the direction of that restructured relationship.
I would still like to see the government establish, with representatives of First Nations, a plan for moving to a nation-to-nation relationship.
During my last appearance, I also commented that this government might need to give greater thought, along with Indigenous peoples, to the challenges related to working in partnership. That would appear to continue to be necessary, because notwithstanding all the commitments this government has made to working in partnership with Indigenous peoples, my understanding is that the Assembly of First Nations was never engaged on the legislation until a meeting on April 5, 2019, and as you know, first reading of the bill was on April 8, 2019.
I am simply echoing the concerns that we just heard from the two chiefs.
I will turn now to specific issues related to Division 25 of the bill. First, I have to commend the current government for the progress they’ve made in moving to fair funding for First Nations programs and services, but the fact is that First Nations lived for 20 years under an unfair federal funding cap.
I would urge the committee to consider adding some commitment to fair funding to the Department of Indigenous Services Act. An additional clause could be added to the preamble committing the Government of Canada to funding levels reasonably comparable to funding provided by the province or territory in a similar region, taking into account the commitment to close socio-economic gaps that persist between Indigenous peoples and other Canadians.
In the same vein, I note that the Minister of Indigenous Services continues to have responsibilities toward First Nation governments. These include band support funding and support for tribal councils, and yet in clause 6(2) on ministerial duty, there is no reference to these. I would argue that they should be referenced, if only to reassure First Nations that their absence does not signal some attempt to offload them.
In the Indigenous Services Act and reflecting the commitment to partnership, it might be wise to signal in clause 7, on collaboration and transfer of responsibilities, that transfers of services will only take place at the request of and with the agreement of Indigenous governing bodies.
I think that’s one reassurance that the chiefs were just looking for.
Finally, in the same spirit of partnership, clause 15, on the annual report to Parliament, could signal that the annual report would be co-developed with First Nations. Here, I understand the guiding principle in First Nations country to be, “nothing about us without us.”
Turning briefly to the Department of Crown-Indigenous Relations and Northern Affairs Act, I have just one suggestion. In the first bullet of the preamble and clause 7(a) on responsibilities, the committee might wish to consider the use of the term, “affirmation of rights,” rather than recognition. My understanding is that there is a growing concern in First Nations country that “recognition” implies that the government sees these rights as contingent and not inherent.
Of course, the committee will want to hear directly from First Nations on this.
The Chair: Thank you, Mr. Serson.
Veldon Coburn, Faculty member, School of Indigenous and Canadian Studies, Carleton University, as an individual: Good afternoon, senators. Thank you for the invitation to speak to the budget implementation bill, which entails the statutory provisions to split the Department of Indian Affairs and Northern Development Canada.
This is something that I have studied more formally in an academic pursuit but, perhaps more importantly, the matter is one that touches my own life, community and nation as an Algonquin person, and which I have spent a great deal of time discussing with other Indigenous people.
I will limit my opening remarks to some general observations with the hopes they can frame part of today’s conversation. I may restate in other terms and words what Mr. Serson has stated, since he seems to have encapsulated quite a few of the issues I hope we can address today.
As I have said and written elsewhere, the proposal to split INAC is dated. We are talking about a proposal that was developed at a much different time, a time that is as close to the federal white paper as it is to today and is arriving near the mid-point of the last 50 years.
While some of the research submissions that inform this proposal are cited in RCAP, with dates from the early 1990s, they draw on material and publications from a much earlier time with many entries cited as far back as the 1970s and early 1980s.
Thinking has changed considerably in public administration, and so has the federal machinery of government. These are very general observations, but they have deep implications for how a proposal developed nearly 25 years ago is suitable to the policy environment and Indigenous realities of today.
I would be remiss if I did not reflect some of the views of Indigenous peoples, nations and groups that I’ve had the occasion to speak with on this matter.
It is important to note that you are hearing from individuals who will be directly affected by this change. On the one hand, you are receiving a carefully crafted bureaucratic communication line about the work that has been done to make this split feasible, and you are hearing parts of past recommendations, including the need to do away with the Indian Act, and selective readings from past studies, inquiries and commissions like the Royal Commission on Aboriginal People.
I think Mr. Serson touched very briefly upon the fact that this is a very superficial implementation of the RCAP recommendation.
But what you are not hearing is the over 1 million Indigenous voices who must be consulted on changes that affect their constitutionally protected inherent or treaty rights.
The rights of Indigenous peoples in Canada currently do not operate with clear lines of authority. Indigenous rights are complex and require greater consultation time, actual grassroots communication, and legislation that is no longer paternalistic or “in the Indigenous peoples’ best interests,” as determined by those with competing interests.
If there is one voice of dissent on this split that one voice must be given proper weight because one voice of the Indigenous peoples speaks for a clan, a band, or a nation.
Government legislation that impacts Indigenous peoples and nations must be reviewed in the proper context. Therefore, more time, consultation and information must be directed to the million-strong Indigenous peoples to garner free, prior and informed consent about legislation that purports to make changes that will benefit the original people.
Juxtaposing these broad implications of the legislation and the proposal contemplated, I think we should ask ourselves who benefits, and how.
The federal machinery of government concerning Indigenous affairs has undergone numerous transformations over the years. Have any of these costly manœuvres provided any noticeable improvement in the material conditions of Indigenous peoples in relation to the wider society that administers much of their lives? One question that I hope we can frame and underwrite in much of today’s discussion.
And I hope we can use the occasion today to explore these themes and the concerns that Indigenous peoples may have with the planned split of INAC. Thank you.
The Chair: Thank you. The floor is now open to questions from senators.
Senator Tannas: Thank you very much for your comments. We are almost four years into the government and precious little to show for it beyond, sadly, a number of things that are very similar to this — a bunch of symbolism with not much thought about the execution behind it. And I say that disappointed, even though I am a partisan Conservative. I thought we had a government with energy, full mandate, rare support of Canadians for this. I thought they did a great job of building support amongst the 95 per cent of Canadians who are not Indigenous, for getting this done, who will be making significant strides, and here we are at the end of their mandate, with their next mandate in question. It’s disappointing.
I want to go back to — Mr. Serson mentioned our study, and it’s come up a number of times amongst us as we think about how to break this logjam. It was interesting. Chief Makinaw got me thinking about it when he talked about direct transfers to Indigenous governments. I wonder if either of you have given much thought to that.
We have a funnel with a sieve in it. I know Mr. Serson’s may be difficult to defend, but we pour the money in at the top and a whole bunch of it just stays within 50 kilometres of this place before the rest of it goes. I know it’s not anything like 50 per cent, even though that may be the perception out there. But the control of it and the doling out of it, all of that does stay here, rest here. I would like to get your thoughts on transfers direct to Indigenous governments as a means by which we can get out of this logjam.
Number two, transfers to individuals, transfers to people who can then decide what institutions they want to support, what schools they want to go to, what health care they want to pursue, in particular, in light of the fact that we now know that in 2016, I think it’s 56 per cent of First Nations don’t live on reserve; they don’t live in their communities; they’re off somewhere else.
Could you give us some thoughts on that?
Mr. Serson: My thoughts on that are these: I can envision — and do strongly envision — I mean, I want to see, hopefully in my lifetime, a situation where we have fiscal transfers legislated just the way the provinces do.
But the issue, senator, is we need the bills, the legislation, the agreements, to come first. Because right now, whatever we call these departments, they have fiduciary responsibilities. If you’re carrying a heavy fiduciary responsibility, having lived it, you want the people out there making sure you’re living up to it.
When we get to self-government, then the possibility of direct transfers — I haven’t compared what’s happening in terms of those First Nations, nations that have completed self-government agreements, but I assume a lot of that is now direct transfers.
This is why I go back to this question about the department. I don’t care whether you take the RCAP plan or some other plan. At least RCAP said start with the principles. When you’ve got the principles, then get some fundamental legislation through the house. Then you can move on from there with the organizational changes.
But you can see earlier these chiefs talking, without getting those principles and that legislation in place — and even that’s going to be a challenge — there’s no trust. I don’t blame these people for not trusting. Why would they trust? Let’s get those fundamentals first, before we’re down into the weeds. I’m not saying don’t do this, but we have to be conscious of it. Does that help?
Senator Tannas: I think it does.
Mr. Serson: Transfers to individuals, I do want to say: You heard the chiefs. They have a strong belief in a collective society, consensus. So, maybe transfers to individuals someday, but not in a “colonialistic” decision-making situation. They have the inherent right to self-government, I believe. Let them operationalize that right and make those decisions.
Senator Tannas: Thank you.
Mr. Coburn: I would add that, just to walk back through your introductory comments, senator, that, yes, one, first, if we start off, is that this government, and I say this with great respect to the partisan Liberals whom I admire as individuals here, however, yes, a lot of Indigenous people have a great deal of buyer’s remorse.
Four years into this, a great deal of support shored up behind this government and very little to show for it, but perhaps a little bit better than most — every other government prior to it, still falling very short.
Nevertheless, you mentioned something which underwrites the concerns of a lot of Indigenous people at the grassroots — that I spoke to in one of my paragraphs here — is giving control to individual Indigenous peoples and communities to decide what institutions they want to support. One of the things this evokes here is that INAC, and whatever the federal government is doing with it, is not an institution they want to support, nor how they shuffle and rearrange the furniture within their home. It doesn’t make them better neighbours.
Again, I don’t understand, but other than superficial branding when it was touted back in late August as reconciliation, has it really done anything for the material conditions of the lives of Indigenous peoples? Or even despite the United Nations decisions that have come out since January and the recommendations from the UN Committee Against Torture, has it changed the lives of Indigenous peoples and their human rights? No. This is a lot of Ottawa navel-gazing.
This is something that is very Ottawa-centric. Bureaucrats love to “reorg.” I spent 10 years in the combined department of INAC, as it was, and at Health Canada it was First Nations and Inuit Health Branch, which has now moved over and shifted into Indigenous Services Canada.
In retrospect, I’ve spent all my federal career, with the exception of some time at the Canadian Human Rights Commission, in this particular department and whatever clones it is. It’s not split into two now — it is split into three — with Northern Affairs being hived off. Outside of Ottawa, outside of these rooms and bureaucrats who want to build their empires and continue to administer the lives of Indigenous peoples, it should be of deep concern.
Mr. Serson: The only thing is, though, we have to acknowledge there’s been significant investment in programs and services, and that’s making a material difference out there.
Mr. Coburn: There are socio-economic gaps that are still growing. One of my studies I published last summer, based on 2016 census data, is that the post-secondary education gap is actually growing. It’s not closing.
My point, last year in particular, was when RCAP came out in 1996 — again, this was a five-year study lead-up — is that children born at that point, in 1996, should be graduating from university. They wanted to close the gap, and instead it’s grown much wider. In absolute terms, certainly, it has grown. It’s been greater, but not to keep up.
Senator Tannas: Thank you.
Senator LaBoucane-Benson: Mr. Serson, I was frantically writing down the points as you were talking, and I will look at the transcript, but you had mentioned a change to clause 6(2) — I believe it’s in the Indigenous Services Act — in your statement. I didn’t catch it. It was of interest to me, but I didn’t understand. I think it was 6(2).
Mr. Serson: The issue is that some First Nations have noticed that the Minister of Indigenous Services, he has responsibility for services that flow down to individuals. Currently he is responsible for a number of programs that support governance.
I noted a couple — there are more than this — but one is band support funding — so your basic governance of the First Nation — and the other is tribal councils. They’re often very helpful in the delivery of services. I’m concerned that when you look at his duties, there is no reference to this.
You heard the chiefs this morning. Without reference to those two programs, there will be concerns that the plan is to devolve them, dump them, off load them, as they’re looking to see First Nations leaders reassured that those would be acknowledged.
Senator LaBoucane-Benson: One of the things I heard the chiefs say — and they said it a few times, and I’m paraphrasing — there’s a lack of distinctions-based approach in this. It references Indigenous people; it doesn’t reference treaty people. It says Indigenous people based on the understanding in section 35. It doesn’t feel, I think, to many of the people we’ve heard from, that they can see themselves in this bill. Could you both comment on how this could be remedied? Is that in the definition of Indigenous people at the beginning? Is it a special section for treaty peoples?
Mr. Serson: For my part, it’s not something that I undertook in the brief time I had to review this, but I suspect what the chiefs are talking about is something more fundamental than that.
This government has done a pretty good job of continuous reference back to First Nations, Inuit and Metis, but they’re looking for that appreciation of distinctions to flow through legislation like this. That would take a little analysis.
A further point that these two treaty chiefs mentioned — and I admit I didn’t look through it as I went through the bill — is some reflection of the treaty reality in the bill. I agree with them that it isn’t there right now.
Mr. Coburn: We do have a federal department that manages relations with nearly 170 other nations within the world of diplomacy, and for a department that bills itself as Crown-Indigenous relations, why can’t it do the same functions for diplomatic relations between the 60 to 80 Indigenous nations and not homogenize us within one colonial rubric?
Senator Lovelace Nicholas: Welcome. As you know, the First Nations people live in Third World conditions. My question is that with Minister of Indigenous Services, Minister of Crown-Indigenous Relations, Minister of Northern Affairs, will this improve the conditions that First Nations people are living in now?
Mr. Coburn: Absolutely not.
Senator Lovelace Nicholas: It will make it difficult for the First Nations to get these services is what you’re saying?
Mr. Serson: There is a period, senator, where there will be confusion — I’ve experienced it myself — about who is doing what.
Senator Lovelace Nicholas: Exactly.
Mr. Serson: At this stage in the relationship, that’s unfortunate, as I’ve indicated. The increased flow of funds, subject to my colleague’s provisos about areas that have not grown fast enough, but a difference is being made there. I worry about the reorganization detracting from the ability to get on and get those funds out there and put them to work.
Mr. Coburn: There will be a great deal of confusion. You’re taking one centralized — and it’s not actually very centralized because Indigenous policy is spread out amongst almost 30 departments and agencies already, as it is, some more minor than others. Some of the stipulated provisions here are that the minister can delegate to other ministers. This would be the delegation section, section 14, that the minister may delegate any of his or her powers, duties or functions under this act to the Minister of Crown-Indigenous Relations, Minister of Northern Affairs.
When we talk about services, Senator Lovelace Nicholas, there’s the agreement section, section 9, that the minister may enter into agreements with Indigenous organizations and other entities. What are these other entities? Will they devolve to the provinces what they proposed in the White Paper? What kind of accountability do they have to Indigenous nations and communities? Is that the unilateral agreements made between some bureaucrat here in Ottawa, who can just and farm out to some sort of organization or other entity that can phone it in?
How do Indigenous people manœuvre that in terms of health services? Citizens of provinces and territories deal with one bureaucratic institution. They get their OHIP card and deal with their physician of choice. Here, I don’t know what kind of health services, what sort of pop-up, predatory or exploitative entities will come in to see these dollars and again take their cut.
Senator Lovelace Nicholas: Yes. I see pointing fingers. Thank you.
Senator McCallum: Thank you for your presentations. It seems that many bills have been passed with known and unknown gaps. People keep saying no law is perfect, and these laws now need new laws to correct deficiencies.
This bill has 37 bills, and the thirty-eighth one is on the other side, which is the transparency act. There are 38 bills. All of these laws have different segments of self-determination, and self-government attached to them.
In the midst of all this, if these were to pass, plus the existing laws that are imperfect, First Nations are trying to achieve self-government, and they have to deal with these laws and acts.
Is this a good process?
Mr. Serson: No, I don’t think it is a good process.
Senator McCallum: I find it overwhelming to look and say, “Oh, my goodness, look at all those.”
Mr. Serson: This is why, senator, I keep going back to the RCAP plan. I’m not selling the RCAP plan, but at least there was a plan there. At least there were steps and levels of agreement.
I feel there’s a lot of dialogue out there right now, but it’s not in any context. I, as a caring Canadian, would like to get behind some of these ideas, but if you tell me there are interesting things happening at 75 tables, what interesting things? What do I sell? What can I speak to my fellow Canadians about? We need a planned approach.
Mr. Coburn: I would add that the RCAP plan really never did originate with Indigenous people, though. These particular machinations of how to organize the machinery of government now — in my own research, it was put to me: Where did this come from? Going through the transcripts of consultations — there are thousands of them, because Library and Archives Canada now has a database of all RCAP, including the research submissions — it’s interesting to note that there were two documents that were cited in this particular section. I think it was 4.3, in volume 2, and it points to a research document by Bruce Doern, one of the pre-eminent public administration academics in Canadian history from the School of Public Policy and Administration at Carleton.
There was an interesting document. It was a literature review, and I can give you the title of it. It was Literature Review of Alternatives to the Indian Act and the Department of Indian Affairs (Governance). It’s a research project submitted February 28, 1992.
This actually came from an employee, at the time, of the Privy Council Office, the sort of highly secretive office of the machinery of government, because they were putting together plans for a great upheaval in the public service that would follow in 1993. The very next day when Kim Campbell assumed the prime ministership, there was a determination and significant reorganizations, mergers and divisions of departments and the creation of others, probably the greatest in Canadian public administration history.
This report that seems to underwrite this particular recommendation comes from an individual named Cyrus Reporter. For those who are familiar with the Liberal Party, he went on to become a chief of staff to Allan Rock through the 1990s and early 2000s, and then chief of staff to Justin Trudeau, 2011 to 2015, and then the Prime Minister’s Office up until a few months prior to the announcement in August 2017. I guess he left in early summer.
So I don’t know. I think it’s a bit ironic that 25 years, 20 years ago prior that someone very close to the Prime Minister constructed part of this particular recommendation.
Did it ever originate through consultations with Indigenous peoples? I don’t think so. We should put RCAP into —
Mr. Serson: Wait.
Mr. Coburn: I will give you time to respond if you can respect me here.
RCAP, to put into its proper political context, was driven a lot by settler academics and researchers, with a lot of input from a non-Indigenous bureaucracy. As much as we like to point to it, it’s not entirely our own. It’s a dated concept from that particular time.
Mr. Serson: First of all, as I said, I wasn’t selling the RCAP plan; I was arguing for a planned approach.
Second, to say that Indigenous peoples did not participate and input, it’s mind-boggling.
Mr. Coburn: If you have any evidence to corroborate that, otherwise it’s just casting aspersions. Again, I’m pointing to a non-Indigenous person who had tight ties with the Liberal Party and who constructed this —
The Chair: I think we’re getting off topic here. Let’s go back to the bill.
Senator McCallum, did you have any other questions?
Senator McCallum: No. I wanted to make a comment that it seems that First Nations have no ownership in the process of this bill. Without ownership, people don’t get behind it; they don’t drive the process, and it seems that it’s set up to fail not only First Nations but government as well. Can you comment on that?
Mr. Serson: If I’ve learned one thing in my career, it is that in our relationships with Indigenous peoples, process is almost as important as substance. This is why I’ve been so concerned about the use of this term “partnership,” because to me that word is almost a sacred word, since the RCAP reported and suggested that that was the kind of relationship that should exist with Indigenous peoples. I’ve tried to respect that.
I don’t want to be critical of this government, but the words started to flow without any sitting down with Indigenous peoples and saying, “What are the principles that are going to guide our relationships? What are our protocols?”
You come to a piece of legislation like this, and unless there’s some widespread dialogue within government about what those protocols and principles are, I can see Department of Finance officials saying, “This is a finance bill. Why would we discuss it with Indigenous peoples?” That kind of education within the public service has to take place. Those are my thoughts.
Mr. Coburn: It is, after all, modifying a fairly colonial Constitution of the colonial apparatus itself. It modifies the Indian Act, and it does so fairly unilaterally. I don’t think there was any widespread communication.
Back in August 2017 — it was announced, I believe, August 28 — Carolyn Bennett said, “Indigenous people told us to go back to volume 2.” She was fairly specific about where it was. I went through committee transcripts of the house, and there was nowhere in there where someone said — there was one point where Chief Isadore Day, at the time, the Ontario AFN chief, had pointed to RCAP, but nothing of the sort. I couldn’t recall any Indigenous peoples clamouring for INAC to be split in this particular way. If we did point to the RCAP plan, then this very superficial branding and reorganization of disparate silos means little and we have had no input on it at all.
Senator Klyne: With regard to this bill, I’d like to come back to the RCAP. I was wondering if you had any perspective on how it is inclusive of non-status. I know the Nisga’a treaty came in 2000 I believe, if that draws in reflection of those things, non-status, Nisga’a’s treaty. And if you think about Inuit, their treaty goes back a number of years but might have been with the British, not even with Canada.
On the Metis side, there is much discussion and focus with regard to treaty and First Nations, and Indigenous has taken on the constitutional definition of Aboriginal which is First Nations, Inuit and Metis. Does this bill capture representation on the terms of that definition of Indigenous and I guess particularly non-status? Are they lost?
Mr. Coburn: I would think that since this RCAP plan came out, there have been a lot of developments. We had Delgamuukw and a lot of Supreme Court decisions Daniels for non-status Metis, the inclusion of fiduciary duty toward them, so this predates significant developments. Is it capable? Does this department have the capacity and operational function to address those particular differences? I don’t think so.
There was the office of the interlocutor to address Metis established. Again, this is part of the machinery of government change back in the early 2000s in the Privy Council Office and eventually moved over to INAC. I don’t know what they are doing to differentiate between these people except just call us Indigenous Affairs and Indigenous Services and lump us together within that particular ambit.
Mr. Serson: I think that’s a better question to ask the officials that follow us.
Senator Klyne: It does take us back to RCAP. It has been awhile since I looked at that. I made a contribution to that. There were a number of people that were consulted or contributed to that, me being one of them. Did I hear you say things like the Daniels case because it goes back to RCAP it predates?
Mr. Coburn: It’s significant changes, yes. You were talking about the North, so there were northern treaties; Inuvik was 1984 which we saw Nunavik come after, in 1999 it was finalized. There were other agreements, but devolution is much more complex now.
Senator Klyne: The bill may have missed some of the new devolution?
Mr. Coburn: I can’t be certain.
Senator Klyne: Back to RCAP, and missteps or the shortcomings of a planned approach, are there some key pieces that you might refer to, that could improve the bill if they were adopted, some of those key steps if they were part of a planned approach?
Mr. Serson: I spoke to the amendments that I thought were worth considering, senator. My concern was more in the context of the previous witnesses who were expressing a lot of concern in relationship to the bigger picture. I just wished that this whole process had started with agreement on a set of principles and then possibly moved to other levels of legislation that reflected where the country, Indigenous peoples and Parliament want to go on the basis of those principles.
Then finally, when we have that clear, so that chiefs like the ones we have just heard from, are fairly convinced that this is not assimilationist, not colonial, that we are genuinely moving forward on the inherent right to self-government, then if we’re all agreed on that, let’s change the machinery of government. That’s all I was trying to get at.
Mr. Coburn: The unilateral movement here is to just modify. This flies in the face of what should be one of the first principles, which is fundamental is self-determination. I think this was what Senator Tannas was getting at: What institutions do Indigenous people support? What can we give them to determine for themselves? Is this an institution I don’t think they would support and for all these changes? No.
Senator Klyne: The advance consultation could have been more thorough and find its way into these things.
Mr. Coburn: Absolutely, yes.
The Chair: We’ve come to the end of the session. On behalf of the members of the committee, I would like to thank our witnesses for providing expert testimony.
We are continuing our work on the pre-study of Division 25 of Part 4 of Bill C-97. The committee is pleased to welcome from Crown-Indigenous Relations and Northern Affairs Canada, Daniel Watson, Deputy Minister and Jean-Pierre Morin, Departmental Historian, Strategic Policy Directorate; and from Indigenous Services Canada, Jean-François Tremblay, Deputy Minister and François Masse, Director General, Strategic Policy, Cabinet and Parliamentary Affairs.
Before we begin, I just wanted to alert senators that we have a vote at 3:41 p.m. on the motion to refer the message on Bill C-55 to committee. We will have to suspend a few minutes before then.
Daniel Watson, Deputy Minister, Crown-Indigenous Relations and Northern Affairs Canada: It is an honour to appear before the committee today to speak about Division 25 of Bill C-97, an Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019, and other measures.
Before I begin I would like to acknowledge that we are on the unceded territory of the Algonquin people.
The Government of Canada is committed to building a true nation-to-nation, Inuit-Crown, and government-to-government relationship with First Nations, Inuit and Metis peoples.
In order to move forward with reconciliation, the government, with Indigenous partners, is working to dismantle the colonial structures of the past. Division 25 of Bill C-97, the budget implementation act 2019 is a key step in this transformative process.
On August 28, 2017, the Prime Minister announced that Indigenous and Northern Affairs Canada would be dissolved and, in its place, two new departments would be created: Crown-Indigenous Relations and Northern Affairs Canada, and Indigenous Services Canada.
Division 25 of Bill C-97 is a process that formally establishes the Department of Crown-Indigenous Relations and Northern Affairs and the Department of Indigenous Services. The proposed legislation also outlines each minister’s authorities and responsibilities bringing more certainty and clarity to the departments’ Indigenous partners.
Moving forward, the Crown-Indigenous Relations and Northern Affairs Canada department will accelerate the work already begun on a renewed relationship between Canada and Indigenous peoples. Equally as important, the department will continue to promote the self-reliance, prosperity and well-being of the residents and communities of the North.
It will continue to work in partnership to support the creation of First Nations, Inuit and Metis institutions to build the capacity they need to implement their vision of self-determination.
The Minister of Crown-Indigenous Relations guides the government’s forward-looking and transformative work to create a new relationship with Indigenous peoples. The minister has been tasked by the Prime Minister with better whole-of-government coordination, the acceleration of self-government and self-determination agreements based on new policies, laws and operational practices, and the development of a framework to advance the recognition of rights.
As the needs of the North and northerners are unique and distinct from those in the South, this bill would provide a legal foundation to establish the position of minister of northern affairs.
The Minister of Northern Affairs guides the government’s work in the North, including a new Arctic policy for Canada. In collaboration with the Minister of Crown-Indigenous Relations, the Minister of Northern Affairs will continue to advance work on a shared Arctic leadership model and support northern programming, governing institutions and scientific initiatives.
Through the creation of these two new departments, the government is changing how we work, how we think, how we listen and how we partner in a way that enables us to properly support the rights and self-determination of Indigenous peoples.
This work is ongoing, and together, we will build a stronger future for Indigenous and non-Indigenous people in Canada.
My friend and colleague the Deputy Minister of Indigenous Services will now speak further on Bill C-97. Thank you.
Jean-François Tremblay, Deputy Minister, Indigenous Services Canada: Good afternoon. First, I want to express my appreciation to you for inviting me to speak here today. Let me also acknowledge that we are on the traditional territory of the Algonquin people.
I would like to follow my distinguished colleague the Deputy Minister of Crown-Indigenous Relations and Northern Affairs Canada and discuss impacts of Division 25 of Bill C-97, Budget Implementation Act 2019 on my department.
The mandate for Indigenous Services Canada is to work collaboratively with partners to improve access to high-quality services for Indigenous peoples.
The department’s vision is to support and empower Indigenous people to independently deliver services and address socio-economic conditions in their communities as they move forward on the path of self-determination. The Minister of Indigenous Services is continuing the important work of improving the quality of services delivered to First Nations, Inuit and Metis.
This includes ensuring a consistent, high-quality and distinction-based approach to the delivery of those services. A rigorous result and delivery approach is being adopted, focused on improving outcomes for Indigenous people. Over time, one fundamental objective of success would be that the appropriate programs and services be increasingly delivered by Indigenous peoples, for Indigenous peoples.
If passed, this proposed legislative initiative would allow for improved collaboration in assisting Indigenous peoples in defining their vision of self-determination. It would help advance our work in closing the socio-economic gap between Indigenous peoples and non-Indigenous people in Canada.
I will now take any questions that committee members may have.
The Chair: Thank you very much. We will start with questions.
Senator LaBoucane-Benson: In principle, I really like the idea of having a minister focused on the North. I like, in principle, the idea of a minister focused on service delivery and the affirmation of self-determination of service delivery, and the idea of a minister focused on relationships.
From all of the witnesses we heard, the treaty chiefs said there was no consultation. There’s no co-development, no consultation. In the actual bill it seems there is a lack of a distinctions-based approach in the way the bill is written. Certainly, the treaty chiefs said they don’t see treaty people being distinct and having a treaty-based relationship. They wonder what happens to their treaty relationship inside the bill.
I hear you say that this is a key step in decolonization. I want to believe that. I understand the intent, but in a practical sense, this bill is tucked into a budget bill. There is very little we will be able to do to amend it. The budget has to pass. I would like to hear how with no — and we are already operating on this model. I talked to the bill’s sponsor and Senator Boehm said this happened three years ago and there has already been an incredible amount of investment into the creation of these departments. I get that.
What is the plan to deal with the fundamental lack of trust that already exists with many Indigenous leaders, and is maybe exacerbated by the lack of consultation in creating these three departments or these three ministries? That is to anybody who wants to answer.
Mr. Watson: Thank you very much for the question. At the end of the day, it will be the results that we produce that will be the thing that creates the trust you’re talking about, and it’s certainly trust we wish to ensure is there. In the language of the bill is the expectation that we will manage these relationships and that we will manage them in a different way than we have in the long-term, past.
I think that for modern treaty groups that are rightly questioning if we will do the right thing, I can say we have undertaken a number of steps in the last few years. We have set up, for the first time ever, a deputy minister’s oversight committee that brings together deputy ministers from across all the government who have relationships with Indigenous groups, and particularly modern treaty groups, and we make sure that we are aware of the issues that are arising. We have invited many modern treaty holders to that table to speak to them. At one point or another we have spoken to all of them. We try to identify issues there long before they get to the world of dispute resolution, litigation or other things. Not from the perspective of avoiding litigation but making sure we live up to the relationship that those agreements set out in the first place.
That is one piece of the cultural change we have been trying to put into place and will certainly continue to put into place. Quite rightly, they will judge us, those modern treaty groups, on whether or not we succeed on that front. We intend to engage with them differently than we have in the long-term, past. We intend to move forward with them and to do that in partnership. They will and should hold us to account for that.
Senator Tannas: I have a couple of quick questions, one for Mr. Tremblay.
As part of this, you had a number of employees from Health Canada transfer into your department for your oversight.
How many employees was that?
Mr. Tremblay: How many are from Health Canada in general?
Senator Tannas: Yes.
Mr. Tremblay: I just want to make sure I have the right numbers here: 2,690 employees. That’s all First Nations Inuit Health Branch, including some of the internal services.
Senator Tannas: How many of those people would be within 25 kilometres of this building?
Mr. Tremblay: The majority are in the regions.
Senator Tannas: Good, that’s right.
Mr. Tremblay: The Ontario region is in Ottawa, which is different than, for example, on the former INAC side, where the office is in Toronto. If you look at my footprint as a department, we now have 5,200 employees. I suspect the majority is in the regions, and on FNIHB it is the same thing, on the health side.
Senator Tannas: Mr. Watson, midway through you talked about how the proposed legislation outlines each minister’s authorities and responsibilities, bringing more certainty and clarity to the department’s Indigenous partners.
If I’m an Indigenous partner and I had one place to go, now I have two places to go. How does that give me more certainty and clarity?
Mr. Watson: Excellent question. The answer is you don’t have two places to go. It’s our job and we work closely together to make sure there’s no wrong door. You would come to whomever you talked to before, the same people. You would ask whatever question you had. If we had work to do behind the scenes, we would do that and we would make sure you get that answer.
The very important point that you raise is that there are not two places to go to; there is one place.
Mr. Tremblay: You mentioned health — it actually facilitates a single-window approach for us, because that means all the determinants of health are now together. When we address issues like Catholics in the North and we talk about housing, we can also talk about mental health issues and other socio-economic factors. It’s actually very helpful for us on the service side.
Senator Tannas: Excellent point. I don’t know if this would surprise you to know, but you’re the only folks who have come before us who think this is a good idea. What would you say to that? We have no evidence other than yours that this is a good idea, and evidence to the contrary is all we have. Better lay it on, because you’re it.
Mr. Tremblay: The idea of splitting the two departments was a good idea when the Royal Commission on Aboriginal Peoples published its report. It’s been discussed since that time. It’s not a new theory that just emerged three years ago.
When the government made the decision in 2017, Minister Bennett engaged a lot on this and we haven’t, of course, engaged on our side with our partners because we’re working with our partners on files. I must say, in our discussion there are not a lot of people who came to me to say it was a bad idea to divide those departments. There must be a lot of people thinking it’s a good solution.
We think it’s a good solution because it allows self-determination to happen at the pace that First Nations, Inuit and Metis want. It’s not all First Nations, Inuit and Metis who want a treaty to be signed or fully implemented before they take control of their services. We allow them to do both. If they want to come to us and say, “I want to take the services together and I want to have only one contribution agreement and one agreement for all the services,” we can do it on our side. That’s something that is really helpful.
I would add to this that if you look at the province, there’s no province where the department would include health, education, social assistance, infrastructure and all those files. However, it is the case in the federal government. Having one minister speaking on behalf of all those issues, including the treaty rights and the rights issue, it’s a lot. Having two ministers who can focus their attention on this is more powerful, to be honest, for actually making changes. It’s the same thing to have two deputy ministers.
I have worked at INAC and FNIHB. I really believe, as a public servant, it’s helpful to have the capacity to dedicate all my attention to the service side and to count on a partnership with Mr. Watson on how we work together.
Mr. Watson: If I could pick up on that last point, I spent a decade of my career working for provincial governments. The two deputy ministers there that invariably had the biggest budgets were health and social services. They had entire departments and entire management teams behind them. In the past, all of those things were together with the people who were thinking about the brave new world that we wanted to create, the people that, in the first question, were skeptical about whether we were actually going to have the right type of relationship, and often we didn’t because we didn’t have enough management time to pay attention to it.
This actually brings those two things into separate camps, exactly as the Royal Commission on Aboriginal Peoples suggested in 1996. Like my colleague, I’m convinced that if you’re going to run a budget almost the size of the Province of Manitoba’s provincial budget, it deserves its own management team at least.
Senator Coyle: Yes, everybody is torn here. I see the logic. It’s easy to see the logic. As you explain it, we get it.
Yet we hear from the Indigenous communities and their leadership that they have some concerns. I’m imagining that some of that may be related to this underlying lack of trust in relationships that’s been there for decades, long before this past three-year period. So there may be some of that there, and also this concern, which is not just about this, but about everything else we study here at this committee, which is a lack of or inadequate or inappropriate consultation, engagement, et cetera. It’s hard to know where to go with this.
I have a couple of specific questions, and then I have a couple of others.
On that line, what are you doing in each of your divisions and your departments to actually improve? I think it was Mr. Watson who said:
Through the creation of these two new departments, the government is changing how we work, how we think, how we listen and how we partner . . . .
Can you talk to us a little bit about what exactly you are doing with that, how you’re seeing any impact from that and when you think that impact will come?
Mr. Watson: Thank you for that excellent question.
One example of that is that up until 1973, the question of whether Aboriginal rights existed in Canada’s Constitution wasn’t settled, and that came up in the Calder case. Shortly thereafter, the federal government had to decide how to do its land claim business. For a long time what we said is we will do it one way. We will do it in a comprehensive way. You have to come to talk to us about everything and when we’re done, we’re done.
Except that First Nations across the country said, “But we don’t want to do that.” But we held on to the view that that is the way we will do our business for 20 or 30 years.
We’ve changed that in the last few years because we heard what First Nations said for that period of time. We said, “If you only want to talk about a certain range of things, we will talk about that range of things because of who we listen to and because of what they were saying.”
We’ve also said that rather than doing what we did in the past, which was simply sit in, and the question was asked about where people are sitting, people sitting at Terrasses de la Chaudière would write down what they thought was a good thing and they would go out across the country and say, “This is what we’re prepared to do.” There wasn’t much movement around that.
We said now we will actually sit down at the beginning and talk to you about what’s important to you and how best to solve that before we come to any bottom lines.
Those are two examples to me of how we would think very differently and how we work very differently.
A third and final one, before perhaps turning to my colleague, is that within the past we’ve only really thought about Indian Act bands. That has been our default position when we decide who we will talk to. But, of course, the accident of what Indian Act bands are today is, often, who was hunting or fishing where when the Indian Agent first found them in the 1870s.
In that world, that’s not really the best way to talk about communities, family groupings and people trying to build a future as a collective. So we’ve been willing to talk very differently and not use Indian Act bands as the only default, as we have for so long in the past.
Mr. Tremblay: Look at the way we have developed different initiatives over the last year and a half, like the 10-year grants. We now have more than 85 First Nations communities that receive all core funding from our department through one single grant over 10 years, which means they have all the flexibility. We don’t transfer programs to them. We transfer the funds in the areas of the sectors. They do what they think is best to actually use it in a way that is consistent with their ambitions. It’s never happened before. We only had one in the country. It was under a grant.
The work we’ve been doing on education, co-development a funding formula, trying to agree on what is the formula, not the system but a funding formula that makes sense, you can take it and work on what is the system you want to develop for your people, not imposing a way to do that. I think those are good examples.
The third one is child and family services. On child and family services, we didn’t develop a new program nationally imposing the terms of the program on everybody. We’re developing legislation saying we recognize that you have jurisdiction. We put some principles in, but they are temporary. They can remove them. They can change those principles by adopting their own principles through their law, but it’s more about simple principles for people to be protected.
This is a new way of doing business. This is a way to approach First Nations, Inuit and Metis issues completely differently. We’re working on the culture of the department. Structures are good, but you need to work on the culture of the department. We just saw a draft on the on-boarding approach, how employees coming would emerge in the First Nations, Inuit and Metis culture.
We’re also quite aggressive in hiring more, especially at the executive level. Probably 26 to 28 per cent of my employees self-identify as First Nations, Inuit and Metis. We want to get more at the executive level, and we’re taking actions to make it happen. We’re trying to open the door for having First Nations, Inuit and Metis organizations at the national and local levels to participate in the decision-making process so that we have on a regular basis, every three months, meetings of the executive table, if you want, where we look at what’s going on in the department and what we’re doing.
Senator Coyle: Thank you for that. Second round.
Senator Francis: I think some of my questions might have been answered. I notice Mr. Tremblay, in your opening remarks you say the Government of Canada is committed to strengthening our relationship with Indigenous peoples.
Mr. Watson, you say the Government of Canada is committed to building a true nation-to-nation, Inuit-Crown and government-to-government relationship with the First Nations, Inuit and Metis people.
I’m wondering, we’ve heard a lot of testimony over the last number of days, and one of the things that always came out was the lack of meaningful consultation.
Some Hon. Senators: Hear, hear.
Senator Francis: I would suggest we’re kind off to a bad start if you don’t get that one. I’m a former chief of the Mi’kmaq nation of P.E.I., and that’s always been an issue, lack of meaningful consultation. It’s always been, “We’re going to come and tell you how to do it.”
How do you rectify that in a true, meaningful way going forward to include all Indigenous groups and First Nations and so on in Canada?
Mr. Watson: Again, thank you very much for that question. I think some of the things I’ve referred to in my previous answer, how we come to mandates, for example, if anybody from the old INAC came to negotiate with you in your days as a chief, no doubt they came with a prefabricated mandate, and it certainly wasn’t discussed before you started your conversations.
We are in a world now where we’ve committed publicly that we will have conversations in the development of our mandates before they are set in concrete. How we talk about what’s going to be on the agenda I think is another key part of this, because in the past we would have lists of things, and we would say we can talk about it if it’s on the list and we won’t if it’s not on that list.
Again, the issue of comprehensiveness, where we said unless you’re prepared to talk about all of these things, we won’t talk about any of them, we’ve changed that approach too.
I think those are some of the key hallmarks. It involves listening, paying respect to what it is we’re hearing and to acting on what we’re hearing. Again, I think that will be the standard we will quite properly be held to as we go forward fulfilling the mandate that we have.
Mr. Tremblay: On many issues and on everything, actually, on a day-to-day basis, we work, consult and engage with First Nations, Inuit and Metis partners. Are we doing enough? You know as much as I do and even more that true things will happen at the local level. Every time you come up with a national legislation, it should never pretend that it will fix all the issues across the country, because there’s no single-window approach.
First Nations is a concept. There’s the Cree, Mohawk and Algonquin nations. They are nations. That’s where the discussion between the Crown and the nation needs to happen. De facto, when we come up with legislation and national programs, it’s really hard to meet a standard that will say that all the nations have been involved and engaged.
What we’re trying to do at the national level is an approach where we unlock the capacity and the possibility of those discussions to happen at the appropriate level.
If you look at education, a funding formula needs to be consistent across the country. The way you manage the system can be different. We open that door for that discussion to happen at the regional level. We’re not imposing a school board approach across the country. We’re not saying to treaty nations they cannot come with a treaty approach. We’re just saying this is the funding. We agree on the objective. Tell me how you want to manage it.
We’re doing the same thing on CFS. We’re not saying this is the system you should take and embrace. We’re saying this is actually an opportunity for you to take the jurisdiction, and we will be a partner if you come to the table.
It’s the same on the 10-year grants. We’re not imposing programs. We’re trying to use those initiatives to unlock and limit as much as possible what is the national intervention. When you have to do that for CFS and this legislation, for example, there’s always somebody from a First Nation who will say they were not — but we’ve done engagement like we never did in the past.
Just to give you an example, on the CFS draft legislation, a lot of elements that were in the legislation were shared in advance like we never did before. If you look at education, the proposal that was presented was shared with First Nations groups. They knew that their proposal would be presented, and we guaranteed that. So this is way more than what I have experienced in previous lives, if I could say.
Senator Francis: Good point. It’s critical in terms of moving forward. Thank you.
Senator McCallum: Mr. Watson, I’m actually very concerned about this bill, terribly concerned. I think it’s unfair that all of these have been placed in an omnibus bill and that no one knows what the gaps will be.
Before I came to the Senate, I worked in the dental field for 44 years. I worked on the reserves, so I knew the policies of the government. Then I became a regional dental officer for four years for the Province of Manitoba, so I understood the policies. The Assembly of Manitoba Chiefs had placed me there. I still work today with First Nations across Manitoba.
You said the government is changing how we work, how we think, how we listen and how we partner in a way that enables us to properly support rights and self-determination.
When I worked, I had the most problem with street-level bureaucrats. These are the people who are determining and interpreting the policies, and they’re not qualified for their jobs. When I worked as a dental officer, I had my degree, so if anyone was unhappy with me, they could report me to my association. Now mental health, dental, they’re not qualified, so if the service providers have a problem, they have nowhere to go.
They interpret the policies their own way, and I’ve seen it. They still do that today. They don’t work with First Nations, because I’ve helped First Nations try to correct some of the services. I believe that superficial tinkering of departments will not address the root causes of oppressive policies because a lot of these employers have been taught to look at cost containment before they look at how patients can access more health care.
When I hear that things are moving ahead — I’m still working today with these same people, same attitude, including their supervisors and the regional directors — I think how will these people across Canada make that change in this huge group that actually determines the policies, not your offices?
Mr. Tremblay: We haven’t done that everywhere. We succeeded in some areas and places in this country to achieve that. We did it in B.C. on First Nation health, where we transfer First Nation health services to a First Nation authority. That’s exactly the model we want to take. When I speak with my employees across the country, I tell them you’re a species at risk looking for its own extinction. At some point, the department should disappear.
It is not about applying the program we develop, but do they have the capacity to implement the vision that they have. That’s the discussion we are pushing.
If you look at work on education and CFS, that is the kind of discussion now that we’re trying to have, which we hope will eliminate that approach, the old approach of “I come with and I’m telling you what and how it’s supposed to be done.”
Co-development is good, but in many aspects it should not be co-developed and has to be developed by First Nations, Inuit and Metis. We can be a partner, as we are in partnership with the First Nation health authorities in B.C. and with the province. For us, that’s a solution and self-determination on Mr. Watson’s side.
Senator McCallum: The B.C. situation is very different from the rest of Canada. They haven’t had to deal with this shift. I met with the group that is delivering it, and they started immediately on cultural humility, and we went over that, but they started like that immediately.
Mr. Tremblay: There has been a solution with the Mi’kmaq in the Atlantic on education. There are solutions everywhere.
Senator McCallum: I hope so.
Mr. Tremblay: There are, for example, First Nations in Quebec who are looking for a model that will be theirs. Maybe not all First Nations will see what will emerge, but it’s on health and social services, in their case, and that’s the kind of discussion we are pushing and want to have.
The Chair: We have one or two minutes before we suspend.
Mr. Watson: I agree completely with the statement you make, senator, that superficial tinkering will not solve the issues. What’s critical about what we have as a possibility in this bill are two important points. The Interpretation Act says that an act is always speaking, so the Department of Indian and Northern Affairs Act today is, in a sense, intended to continue forever. What these bills say, or what the articles of this bill says, is in the first instance in relation to Indigenous Services Canada that it is to gradually transfer these powers out of its control and into others. That goes very much to the point that you’re making. This is a piece of legislation that puts an obligation on my colleague and me to make that happen. I think it relates to point 2 in the preamble to the part relating to CIRNAC.
The Chair: I think we’ll have to suspend here for the vote. I would like to invite you to stay. Will you be able to stay when we come back? We will suspend and then come back.
(The committee suspended.)
(The committee resumed.)
The Chair: Welcome back to the meeting of the Standing Senate Committee on Aboriginal Peoples. We had to suspend briefly.
Mr. Watson, we interrupted you. You have the floor again.
Mr. Watson: Thank you very much, Madam Chair. I will be brief in concluding.
One of the other things the proposed bill does is it sets out very clearly the expectation — in the department that I’m currently the deputy minister — of collaborating and cooperating in very different ways. It sets out an explicit expectation that has never been done before to promote self-reliance, prosperity and well-being for the residents of communities of Canada’s North. It does all of these things.
In relation to the question that you asked and pointed out, quite rightly, some of the criticisms levelled at the ways we have delivered services, not just in the distant past but sometimes, sadly, in the more recent past. This sets an expectation that we will deliberately move away from the models that far too often have been experienced by people. To have a statute that makes that clear — not only to me, not only to my staff today but to all staff going forward — while this bill would be in effect, is important.
The Chair: Do you have any other questions, senator?
Senator McCallum: I did. I have to look for it.
It was in regard to Senator LaBoucane-Benson’s question about the omnibus bill. Mr. Tremblay, you say the Government of Canada is committed to strengthening our relationship with Indigenous people, yet we have this bill before us with these acts attached to a budget bill. One example is I’m on the Energy Committee and we just finished the impact assessment bill. CEAA was attached to an omnibus bill, and it created a mess. There were all these adverse impacts from resource extraction that were not dealt with across Canada. No one wanted to clean up the mess, especially Alberta.
It puts Indigenous people in a vulnerable situation. You want to pass the bill, because it’s a budget bill, but you don’t want to pass that other half. At some point, I think senators need to say this is enough. We’re not going to pass this bill if it keeps on. That’s my thinking.
Incorporating all of this into this bill, how do you see that as strengthening the relationship of Indigenous people?
Mr. Tremblay: I mentioned before the discussion about splitting the department started before the bill. I evoked the royal commission, and it was pointed out that started before the royal commissions in the 1980s, even with the panel report.
It was created by the government in 2017. That’s when I was appointed the deputy minister of that department, so it existed already and CIRNAC existed. Minister Bennett has been engaging for months with partners. The governments could have decided to go ahead with the legislation at that time. They postponed the tabling of the legislation to allow Minister Bennett the opportunity to have discussions with partners across the country.
In our case, we have been engaging on what it concretely means. The bill is just a bill. The reality is, as was mentioned before, how do you change the way we work on this and become different? It is not the bill that does that; it’s also the work, the initiative that we’re undertaking.
Most of our discussions with First Nations, Inuit and Metis over the last two years — and I’m saying this honestly — were not necessarily about the bill but about are we going to transform education, are we going to transform CFS, and how we are going to do that. I think the reality of the two departments is already there.
The bill comes to confirm and give us legal authorities that are needed because we have legislation in place that is INAC, and we said we wanted to eliminate the old INAC. So the reason we need this bill is to give us the authority we need under the law and we can report to Parliament more — It’s not the transformation itself that started way before and will continue after the bill. If the bill is a necessary condition, it’s not a sufficient one if we want to achieve everything we want to achieve.
Senator Patterson: To the representative of Northern Affairs, and I believe Mr. Watson, you’re the deputy minister, I have about three questions.
First of all, you referred to the Arctic Policy Framework. It was put in the mandate of the Minister of Northern Affairs over three years ago. We’re very near the end of the government’s mandate. Where is the much-promised and much consulted on Arctic Policy Framework?
Number two, if I may continue, the bill, clause 19(2), calls for the establishment of committees. You’ve had several years to think about what committees will be established, I would presume. I’d like to know what you see of these committees and if they will include rights holders? Specifically — something I think the Land Claims Coalition has been calling for — are you prepared to establish a modern treaty implementation review committee to work with the land claims coalition on the serious implementation problems that have led to litigation and other challenges?
Mr. Watson: On the Arctic Policy Framework, I expect to see something in the short future. I can’t promise exactly when, but I do expect to see some announcements on that before too long. So the work has progressed well on it, and a lot of conversations, as you have mentioned, and we are drawing toward the conclusion of the work on that and would expect to see something before too long on that.
Senator Patterson: We’ve been hearing that “not too long,” “near future.” I remember being told it was going to come out last spring. A year ago.
Mr. Watson: I’m unable to provide a specific date, but I can say before too long. Consistent with the mandate letter that you referred to, it’s being worked on in that context.
Senator Patterson: Committees?
Mr. Watson: Committees. In that section it talks about special representatives that have been used many times to address many different issues. One the tools that have proven useful over time is the ability to establish committees that may help the minister at different points in time. Remembering that this legislation may last for 50 years, it creates the authority for the minister, if the minister so chooses, to set up a committee to advise on different issues and so it’s an enabling provision.
On the question of modern land claims, we have set up bodies. I mentioned earlier a deputy ministers committee where we meet with them regularly. We have other processes by which ministers and sometimes the Prime Minister and others meet with leaders from modern treaty land claims groups, from First Nations, Metis, Inuit, and those are some of the ways in which we engage. Over time I expect there could be any number of committees established.
But certainly on the question of modern land claims, as you mention, we have in place some bodies. I don’t know that they would fall specifically under 19(2), because they meet with officials as often as they meet with ministers, but it would be the type of work we would do.
Senator Patterson: The Northern Affairs, the new position, “Legal foundation to establish the position of minister of Northern Affairs,” you said, in your opening remarks.
But on closer examination, buried in this omnibus budget bill, and I have to say, this wasn’t in the budget, so I really wonder why it’s buried in the omnibus budget bill. Maybe it’s a great idea but the appointment of the minister, under section 11(1), is optional. A minister of Northern Affairs may be appointed. You’ve told us you’re establishing the legal foundation to create this ministry, but it’s only a “may.” It’s only optional. If it’s such a great idea, why is it optional? Why is it a “may?” Should we not change that if it’s such a great idea?
Mr. Watson: That would be the decision of a Prime Minister at that point in time to exercise the authority that’s there in the way that the Prime Minister saw fit at the time. That would be a question to which the Prime Minister would have to answer at that moment when the decision was made.
Senator Patterson: But the other two ministries, ISC and CIRNAC are not optional. Why is this one optional? Does that indicate a lesser priority for Northern Affairs?
Mr. Watson: Certainly all of the responsibilities must be carried out one way or the other regardless of whether or not that particular provision is actioned in a particular way. Every single one of the responsibilities must be carried out. So the priority, I think, again, is in the action. Having lived in the Northwest Territories myself, northerners would say what they would rely upon is the action the government takes or not. Every single one of the actions must be taken regardless of how the minister is or is not appointed.
Senator Patterson: I have a point of order here, or advice to the steering committee. As I understand it, we have to report on this budget, on the chapter of the omnibus bill by June 6. I also understand we have no other business on our agenda as of now. I’m concerned that we have time to hear northern voices on this issue. I know that ITK and NTI, who are represented in the room here today, would very much like to have the opportunity to present on this important bill which affects the Arctic.
I’d like to plead with the steering committee to consider allowing us the time before June 6 to hear from some northern voices about this issue. And there may be others who may well want to appear as well. I think we may have at least one more meeting and I’d like to respectfully suggest that to the steering committee. I will leave that with you in your good hands.
NTI will be asking to appear.
The Chair: We did invite ITK and they weren’t available, and they will submit a written document. That’s just a point of information. So your suggestion would have to be discussed amongst steering.
Senator Patterson: I’ll leave it in your good hands. Thank you for allowing me to make the suggestion.
Senator Klyne: I could have had one big question, but I will break it up into three small questions.
The Chair: It would probably be the best. We have limited time, so if you can make your question clearer that way, then that’s the way to go.
Senator Klyne: With this bill, and it is a bill, and I assume there is to come policy and regulations, but I think in this case there might be more policy and regulations already crafted to fit into the bill because you’re operating under something.
This bill, as I understand it, has a foundation or platform that’s largely supported by RCAP, the Truth and Reconciliation findings, recommendations from the commission, but also from your understandings of UNDRIP.
With that, tell me about these two new departments. And when you answer if you can open your lens up beyond the First Nations and Treaties to also include the Metis and the Inuit. And I know one of you has an MOU with the CAP, you can talk about non-status, urban, off reserve. When you answer try to have a fulsome perspective.
With the two new departments, what’s being done to move closer to self-determination, the alternative to delivery services, and also to address socio-economic conditions? How will this enable you to move closer to those three things?
Mr. Watson: Maybe I’ll start, because many of the things we will do out of CIRNAC will launch some processes, and in some cases it will change the foundations, and in other cases it will be my colleagues at Indigenous Services Canada who will deliver programs and change the way in which those programs are delivered.
We will work very closely with Inuit, Metis, First Nations. We will also have to find ways of working with groups that have been challenging to engage in the right ways before, particularly from a program perspective or a negotiation perspective, namely people in urban environments.
What will we do on that front is to have the right conversations, both with those living in the open areas, who will tell us how they wish to be engaged, what their challenges are, how they wish to participate in processes with us to solve some of those issues. We’ll also have conversations with the Métis Nation of Canada and the regional Metis groups. We will have conversations with the Inuit. We will have conversations with the First Nations, both at the Assembly of First Nations level down to individual First Nations and bands.
The way we will approach those conversations is to talk about what the right governance is to bring resolution to those issues. From a CIRNAC perspective, that’s where we will focus our efforts. It’s the efforts to take the decision-making out of federal hands, in many cases, and to move it to an agreement, to the Indigenous people, be they Metis, Inuit or First Nations.
The service delivery angle of it will be critically important and perhaps I can talk to my colleague, who can talk to those pieces.
Mr. Tremblay: We’re aiming for the same result and objective, as I mentioned before. We all are looking at and working on self-determination. Having a department that focuses essentially on the service side allows us to do that, which is focus on the service side. It’s not about developing programs. It’s about saying: Okay, if it’s about service, how do you do that?
I was in a meeting in British Columbia a few months after the creation of the departments, and we mentioned Indigenous services. The elder was there and he said, “The department said services. I’ve never heard that word before.” It needs to mean something. They’re there to serve. That’s, for us, an important aspect. How do we shift to an approach that is not implementing the Indian Act, not being seen as the old Indian agent, if I can say, but being there to serve and help and support without presuming? And that’s the second aspect for us.
First, focus on the services: How do we make them better? How do we get results and not necessarily about how much do they cost but how much do they produce at the end? The second aspect for us is how do we do that without pretending that we have the solution?
I’m a policy wonk. It’s sometimes tempting to think that you know what should be done. There has been a lot of people who thought they knew what should be done for First Nations, Inuit and Metis in the past and we have seen the result. How do we get out of that approach? It’s related to services in a department that actually tried to help the people who meet those challenges to actually address those challenges. How do you give them the capacity, the funding and the relationship they need to make it happen?
Finally, for us, how do you regionalize and localize? I mentioned the First Nations Health Authority. It’s done at the regional level. In some cases it could be done at the subregional level. I cannot decide and I should not pretend that I know at what level the solutions will emerge. They may take a different form. They can sometimes be a partnership between many nations, sometimes it is one nation. For us, it’s trying to work with First Nations, Inuit and Metis on this aspect of governance. How they want to deliver services, which will end up with, how do you deliver your public service? That’s the kind of discussion we want to have, not how to comply with the program. It’s more of a discussion of how things are going on developing your public service. What kind of accountability relationships do we have? What are the data we collect? How can we help you to actually improve the situation?
It’s a very different shift in the culture of the department, or what it was before. The legislation and the split of the departments support that. As I said before, it needs more. It’s going to need a lot of attention in changing the culture.
Senator Klyne: The second question is around all those things: self-determination, socio-economic issues, alternatives to delivery service. Up until 2006, there was an economic issues table, a social issues table, and then in 2006 the economic issues got thrown into the social issues table.
Now you have a social issues table dealing with economic issues and probably having no sense of the engine of that. I’m not sure how you deal with that now, so this is a question more around education and health.
Again, you’re probably quick to answer that with regard to First Nations and treaty rights, but there’s the whole other kettle out there, including non-status, which was not addressed in the previous question, but non-status urban. Former Deputy Minister Kevin Lynch, prior to moving from Industry Canada where a lot of the economic issues were and then moving over to Finance as deputy minister, toured the country and did this advance consultation, actually talking with the people we were hoping would be consulted and looking toward economic issues and what we need to do to find self-determination and address socio-economic issues.
The underlying answer, because he heard it time and time again, was education. Education has to be the key.
I’m wondering how you’re going to deliver on that, or support that and work with your provincial colleagues in both of these cases, now that this is getting split or now that it is split. How are the economic issues and education getting addressed?
Mr. Tremblay: On our side, as I mentioned, we’ve been working on development of a financial formula for education and now we’re working on the implementation of this financial formula, which led to significant investment in education. The importance was to make sure that, as much as possible, the funding responds to the demands. Now the question is how do you shape the system? That’s a discussion we’re looking forward to having with First Nations, but we’re trying not to impose what it would be at the end. That continues to be a priority.
Other priorities are there too. Housing continues to be as important, to be honest. Economic development is important. There are a lot of First Nations, Inuit and Metis entrepreneurs; you know as much as I do. They’re really innovative, they have good organizations. The question becomes more about how do we help them to actually support First Nations, Inuit and Metis economy? It is not necessarily the classic approach we have been using for years, which is more contribution agreement approach and EcDev. It’s not necessarily the way to encourage EcDev. That’s the next step. The last budget included money, for example, for Metis corporations. There is a desire to look at how the First Nations, Inuit and Metis can develop their own organizations to support their economy. That’s probably the way forward.
On the non-status, we’re not stopping having programs for all Indigenous people. The response of the federal government, the role of the federal government, has been different, depending on who we talk to and what we talked about. If you look at some of our programs that are more for urban Indigenous, they would include First Nation, Inuit and Metis. Sometimes, they would include services that are offered by organizations for non-status. For us, it’s not to come with a one-size-fits-all off reserve. There are provinces that work there too. In the North and in some areas it’s with treaties and land claims; it’s not the same thing. We have to recognize that. The importance for my department is to make sure we have an approach that best fits the situation we’re dealing with.
Senator Klyne: I should comment that I’m pleased to hear there’s finally a regional agency for the North. I don’t know when that came about.
Mr. Tremblay: The Arctic. You have the CanNor, for example.
Senator Klyne: You mentioned money, and it was a dozen or so years ago that the money within INAC was some $9 billion. It’s probably approaching $12 million. The disappointing thing — and this really came home with the separation on the tables there — is that probably 4 to 6 per cent of that $9 billion a dozen years ago was being spent on economic issues, economic development. Today, that’s probably only 4 per cent, but the pie is bigger; it’s $12 billion. It’s almost instituting a sense of status quo and no change in economic reliance or socio-economic reliance on the social safety net there. We have to get out of that. We have to break that. I’m looking for how the split of these two departments fulfills that on self-determination.
Mr. Tremblay: It is hard when you have a budget and you have so much need. When you have to choose between housing, health, social issues and EcDev, it makes for a difficult choice. Those are also elements, as you mentioned, on education that will support economic development.
But you’re right, it’s a discussion that we have with Indigenous groups, especially the ones involved in economic development. How do you make sure there’s a better space for discussion on EcDev? That’s for sure.
Senator Klyne: Granted it’s hard, but hard or easy really has nothing to do with it. We have to find that made-in-Canada solution. I think that economic development and investments would have served a lot of the social needs, and you could probably have used one to lever the other. Thank you for your answers.
Mr. Tremblay: You’re right.
Senator Lovelace Nicholas: Are the provinces going to have any involvement in these discussions?
Mr. Watson: Yes. In fact, the vast majority of instances where we negotiate section 35 protected agreements, the provinces or territories are direct partners in that. We spend a lot of time talking to them. They obviously bring their own perspectives and levels of priority to these conversations, but we do work with them closely on a regular basis.
Senator Lovelace Nicholas: I thought you were going to be working with the Indigenous peoples discussing these services. Why is the province even involved?
Mr. Watson: In a number of instances where we negotiate agreements, it’s important that it work for all of the systems involved. For example, the claims I’ve negotiated over time, what the province brings to the table is important to the First Nations group, and what the federal government brings is important. There are other instances where we do agreements just bilaterally because that’s what makes sense.
But if you’re looking for better engagement with the provincial education system, which sometimes people do, you have to have them at the table. It really depends. We don’t sort of get into situations where we absolutely require people to accept that a province or territory be there if they don’t wish to have them involved, but in many instances we find that the ability to conclude the matters that the Indigenous group itself tells us they want to resolve requires the engagement of the province. Where we all agree that makes sense, then we all participate.
Senator Lovelace Nicholas: The reason I asked this question is the federal government has a fiduciary responsibility to Indigenous peoples, not the province. So why would Indigenous people want the province involved? I just don’t see it. Maybe I would have to do some research on it.
Mr. Tremblay: On the service side, I was mentioning the success of the First Nations Health Authority. Part of the success of the First Nations Health Authority is also because it’s a tripartite agreement and they do work with the province.
It would be hard for First Nations to totally develop a separate health system that doesn’t take into account the provincial one because people go to hospitals. Doctors are part of the same association. Even if the fiduciary is there, we’re basically condemned to succeed or fail together. There’s a need to have provincial governments for some of the expertise.
It doesn’t stop us from working with First Nations, Inuit and Metis when provinces are not at the table. But in many areas where First Nations themselves, when they establish their structure, for example, they want to include all of their members, including off reserve and in cities, so having the province at the table makes it easier. It’s not for us to choose. I have First Nations telling me that they want to use the provincial education system just to improve it. They don’t want to create their own schools and so on. It depends on the choice that the First Nations make.
Senator Lovelace Nicholas: One more comment, please.
The Chair: I think Mr. Watson wants to respond.
Mr. Watson: I have two very specific examples. In order for the Nisga’a to be able to get the ability to have mortgages for the first time on Nisga’a lands, which they were not able to do easily under the old Indian Act, they needed a land title system. The Nisga’a themselves chose, not because the federal government insisted on it, but the Nisga’a government chose to use the provincial land titles system. So they would not have been able to organize that if they hadn’t talked to the province.
That made the difference between being able to walk into a bank and get a mortgage and not being able to. That was the Nisga’a’s choice to use that system, and that’s why they had to talk to the province, as one example.
Senator Lovelace Nicholas: As you know, for each Indigenous person to go to school in a provincial area or school, they pay double the price. How do you explain that? Is it good for the Indigenous person or for the province?
Mr. Tremblay: We don’t pay double the price. We pay the price of tuition at the provincial level, and we have significantly increased the funding formula on education, which addresses largely that perceived gap, for sure.
Senator Klyne: It’s more of a comment just to play on Senator Lovelace Nicholas’s last comment. We need to have provinces at the table. It’s time they came to the table. They need to understand what happens if they don’t come to the table, because they somewhat feel that the federal government will look after education and health, and it’s not our problem. Except 60 or 70 per cent of our peoples leave the reserve and now it’s an urban situation.
They can be productive in the mainstream economy and the provinces can be that much stronger economically if we all work together on this, but they all need to be at the table. They don’t think it’s their problem, but it’s their issues. They stand to gain by increased productivity and contributions to their economies. They should get on board.
The Chair: I think we’ve come to the end of our time. Before we adjourn the meeting, I wanted to put on the record some clarification with regards to the comments made by our colleague Senator Patterson.
We did have on our witness list quite a number of witnesses from the North. Overall, we’ve had a lot of people who have not responded to our request. This could be a symptom of witness burnout. It could also be a symptom of the reality that they know it’s in a budget implementation bill and there’s very little that can be done.
We contacted ITK. They were unavailable and are submitting a brief. We contacted Inuvialuit Regional Corporation. They did not respond. We contacted the Nunatsiavut government. They did not respond. We also contacted Makivik Corporation, who are submitting a brief. There will be two briefs that will represent the northern concerns.
With that, I want to thank our witnesses this afternoon for their valiant efforts in answering all questions and putting forth their positions. I should say we will have an in camera meeting later for drafting instructions on this pre-study. We’ve run out of time today in order to do that.