INAN Committee Report
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Study of Specific Claims and Comprehensive Land Claims Agreements: The Conservative Party of Canada’s Dissenting Report _______________________________ Cathy McLeod, Member of Parliament for Kamloops – Thompson – Cariboo Kevin Waugh, Member of Parliament for Saskatoon – Grasswood Arnold Viersen, Member of Parliament for Peace River – Westlock _______________________________ As the Conservative members of the Standing Committee on Indigenous and Northern Affairs (INAN), we recognize the need to resolve long-standing issues related to specific claims and comprehensive land agreements. Conservatives believe in reconciliation with Indigenous peoples, that economic opportunity and poverty reduction for Indigenous peoples should be key priorities for the federal government, and that Indigenous peoples should have the right to expect responsible and transparent governance. Moreover, we know that agreements have significant positive impacts on Indigenous communities. Aluki Kotierk, President of Nunavut Tunngavik Inc., stated on October 19, “…it gave us a sense of hope. Now we have the structure in the agreement that outlines how that needs to be achieved.” However, Canada’s processes for comprehensive and specific claims are in need of revision. The Committee heard repeatedly that the procedure can be archaically slow. This has left some communities straining to reach an agreement with the Crown for decades, even multiple generations. Further, the federal government has failed – far too many times – to follow through on its commitments to Indigenous people. As stated in the House of Commons by MP McLeod on February 14, 2018, “The rights of Indigenous peoples in Canada for too long were ignored, maligned, or bent in the pursuit of other interests, and it is incumbent on all of us to continue moving forward in the spirit of reconciliation.” It is for these reasons that we called for the Committee to study “comprehensive land claims agreements, also known as ‘modern treaties,’ and self-government throughout Canada; the current processes being used across Canada and how they are currently being executed; the comparative benefits and challenges of different approaches to negotiations; the outcomes and impacts for Indigenous communities who have signed comprehensive land claims agreements; and that the Committee report its findings to the House of Commons.” Our constituents are looking forward to the government’s response to important recommendations in the Committee’s final report, and in the Official Opposition’s dissenting report. The Committee’s final report contains several parts with which we agree, but it also neglects to include some of the serious concerns that were raised. We wholeheartedly agree with the Committee’s eighth recommendation, which is stated as follows: That Indigenous and Northern Affairs Canada develop a tracking system to ensure commitments made by the Government of Canada in comprehensive land claim or specific claim agreements are clearly documented, the progress regularly reviewed, and promptly implemented; and that an independent office be created to monitor implementation. The Committee heard that the federal government had often failed to follow through on commitments. Agreements must not be allowed to be shelved for years without regular, deliberate action to advance the commitments. We believe that the newly-created Departments of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) and Indigenous Services Canada (ISC) must enact a system of consistent checks to ensure the government is following through on its promises. This is vital, not only for Canada’s relationship with Indigenous peoples and to the honour of the Crown, but also to the community members that worked for many years to see those promises implemented. Further, we agree with Recommendation 7, regarding the need to ensure various dispute resolution mechanisms are readily available to First Nations, Metis and Inuit, including binding arbitration and mediation. This step has the potential to expedite the far-too lengthy process and reduce court-incurred costs. We agree with Recommendation 15: That Indigenous and Northern Affairs Canada develop an improved process for educating and engaging third parties and local community members at every stage of a comprehensive or specific claim. We have each heard from Canadians all across the country on this issue. The resolution of comprehensive and specific land claims, while necessary, should not create adverse impacts on private land and small business owners. Conservatives believe that those who may be impacted by agreements should be kept informed throughout negotiations, and have multiple opportunities for their concerns to be heard and addressed. We note the agreement of Perry Bellegarde, National Chief of the Assembly of First Nations. He stated before INAN on February 23, 2016: You’d look at everything you can to make peace in the valley… as long as things are done in a respectful way, rights aren’t trampled on, aren’t put to the side, that people are looked after… Thus, we advise the addition of a further recommendation: That, as the Government of Canada resolves claims, they mitigate the effect on third parties when possible, and compensate those affected when necessary. In addition, we are glad to see the Committee’s acknowledgement of the economic benefits of self-governing agreements. As stated in the report: Many witnesses said there are significant benefits to self-government agreements, including giving Indigenous self-governments more latitude than is possible under the Indian Act, and ensuring self-sufficiency and the application of systems of governance and education specific to different nations. One band, in fact, was even “able to reduce its reliance on federal transfers”. These are positive steps that we hope to see advanced for other communities. Finally, we agree with Recommendation 12, regarding the importance of the United Nations Declaration on the Rights of Indigenous Peoples as a guide for implementing the Committee’s recommendations. We know that Canada is one of only a few countries in the world where Indigenous and treaty rights are entrenched in our Constitution. It was the former Conservative government that, in 2010, made important first steps for Canada to endorse the aspirations of the UN Declaration on the Rights of Indigenous Peoples in a manner fully consistent with Canada’s Constitution and laws. However, the Conservative members of the Committee have serious concerns with some areas of the final report. First, we are profoundly disappointed that the report primarily contains lofty words and few actionable items. Members heard the plea from Joseph Kochon of Behdzi Ahda First Nation when he testified on October 23, 2017: We want your committee to produce an action plan, not a report. Our community has a motto: don't talk, just do it. We'd be pleased to lend this motto to your committee. Jean-Guy Whiteduck, Chief of the Kitigan Zibi Anishinabeg, echoed these remarks the next day on October 24: We've been hearing a lot of fine speeches and comments made by the Prime Minister and this government, but we need to see some action. We think if there's a will, there's a way, but sometimes the political will is not there. The final report does not meet this standard. For instance, we are disappointed that it failed to include passionate testimony provided by the Ghotelnene K'odtineh Dene and Athabasca Dene. As witnesses stated, these communities had negotiated in good faith with the Government of Canada for eighteen years to complete two modern treaty agreements, which cover settlement areas in the Northwest Territories and Nunavut. Through hard work and extensive negotiations, the Denesuline and Inuit are close to reaching final agreements with the governments of Canada and Manitoba. This has been achieved through close cooperation with both Liberal and Conservative administrations, and bringing this to resolution would be in no way paternalistic. We believe that after 18 years and at great financial cost, it is time to finish these land claims and bring forward appropriate legislation for approval by the House of Commons. As Mr.Wysocki testified to the Committee on September 27, 2017: Canada's moral obligation to move forward cannot be overlooked… Patience is running out and cynicism is gaining momentum. Disregarding these obligations to move forward is a form of contemporary colonialism. We are asking this committee to advise Parliament that any further delay in concluding the treaty is wrong on legal, political, and moral grounds. Concluding the treaty is simply the right thing to do. We are also asking each and every one of you, as parliamentarians, to take this message back to your party caucuses. Further, Benji Denechezhe, Chief Negotiator of the Northlands Denesuline First Nation, stated: I hope you can help us. If we have to beg, so be it. Please, we are asking you to help us get what is rightfully ours, because we've been waiting for justice for a long time. Our people are dying. The people who started this negotiation have both passed on, and we buried one three days ago who was my partner and colleague. As you can see, it is heavy for us at times. Therefore, in light of the need for practical improvements, we recommend: That the Government of Canada expedite the resolution of modern treaties with the Athabasca Denesuline and the Ghotelnene K’odtineh Dene, including resolving territorial and provincial issues. These bands have negotiated in good faith with the Government of Canada for 18 years. Another excluded recommendation focusses on the Treasury Board’s Divestiture Process. Robert Janes, Legal Counsel for the Te'mexw Treaty Association, spoke to the Committee on September 24, 2017: … even with things like the Treasury Board directives, which speak to how federal crown lands should be disposed of, you have to look at it and ask if just a custodial agency should be running that part of the process… To have a process that is just devoid of any meaningful mention of the treaty process is, frankly, insane. We simply do not understand why the final report failed to include something as practical as the Divestiture Process. We recommend: That the Government of Canada review and revise the Treasury Board’s Divestiture Process to consider how best to include consultation with, and accommodation for, Indigenous peoples, as upheld by the Supreme Court of Canada. Another practical recommendation not included in the Committee’s final report was a request for INAC to biannually update Parliament on the progress of improving the specific claims process. The Auditor General’s fall 2016 report, First Nations Specific Claims, contains a repeated-promise by Indigenous and Northern Affairs Canada to, “work with the Assembly of First Nations to establish a process in which Canada will work collaboratively with First Nations to identify fair and practical measures to improve the specific claims process.” In his appearance to INAN on October 17, Michael Ferguson stated, “all the departments that we audited presented an action plan to the standing committee on public accounts to address our recommendations. Your committee may wish to ask them for an update on the implementation of their commitments.” Thus, we recommend: That Indigenous and Northern Affairs Canada update Canadians biannually on the progress of improving the specific claims process, as promised in the Department’s response to Report 6: First Nations Specific Claims in the Auditor General’s fall 2016 reports. Testimony to the Committee indicated that little or no change has been implemented thus far. Third, given the need to improve the comprehensive and specific claims processes, we are concerned that the Committee’s study was not as robust as it could have been. There were serious gaps, including that not all witnesses who the Committee wanted to hear from were afforded the opportunity. We recommend that INAN ensure the deadline and process for submitting complementary reports are more easily accessible to potential witnesses. Land claims are of such fundamental significance to First Nations; if many do not feel their voices were heard, the recommendations to the government will lack credibility. Another gap was the lack of a focus on third party interests, and the absence of witnesses to speak to these matters. While concluding agreements is vital for reconciliation, the interests of private land owners, business operators, farmers, ranchers, hunters and anglers should be heard and protected. We note the BC Cattlemen’s Association recommendation that federal, provincial and territorial governments adopt a policy of avoiding and mitigating adverse impacts on third parties, and the provision of compensation if avoidance and mitigation are not possible. Fourth, we are disappointed that the Liberal majority did not include references to the government’s arbitrary and paternalistic five-year moratorium on off-shore oil and gas development in the Arctic. Despite oft-repeated promises to engage in a nation-to-nation relationship in a respectful manner, witnesses informed the Committee that the Liberals only told them of the moratorium moments before it was announced. When the Premier of the Northwest Territories, Bob McLeod, was asked what consultation had taken place, his reply was clear: “The chair of the Inuvialuit Regional Corporation and I both found out about it two hours before the moratorium was announced. That was the extent of it.” Further, Nunavut’s Deputy Minister for Justice told the Committee on October 24: It was a source of frustration for our government that a moratorium was implemented with about 20 minutes' notice to the territorial governments. That to us revealed, I think, a lack of understanding, or a lack of knowledge, of the role territorial governments play in governing the north. The federal government implemented that moratorium and did the other things you mentioned without, I would say, recognizing the role the territorial governments should have had in making those decisions. That was disappointing for us. We think there should be more recognition from the federal government of the tripartite nature of governance in the north, including the territorial government. The Committee heard that these actions had swift economic repercussions: the door was closed on $2.6 billion of work that was committed for the Beaufort Sea. This prompted Premier McLeod to issue a “red alert” for economic development in the north. In the same vein, the Liberal government evoked a top-down approach to cancel the Northern Gateway pipeline proposal – without consulting First Nations who stood to benefit from more than $2 billion directly from the project. As quoted in the final report from the Committee, “Mr. Derickson said it would be beneficial to develop a new fiscal relationship, including revenue-sharing agreements.” Northern Gateway was one such project, where thirty-one First Nations had signed on to be equity partners. They were profoundly disappointed by the decision from the Liberal Cabinet, which they see as a lost opportunity for jobs, education and long-term benefits for band members. Therefore, we recommend: That the Government of Canada reverse paternalistic decisions to remove economic opportunity for Indigenous communities until such time as proper consultations have been held with impacted Indigenous communities and the territorial governments. This includes the cancellation of the Northern Gateway project and the five-year moratorium on off-shore oil and gas development in Canada’s Arctic. Fifth, the Conservative Members of INAN have concerns with the Committee’s call for the complete forgiveness of outstanding loans. This is contained in the following recommendations from the final report: Recommendation 4: That the Government of Canada work in partnership with First Nations to reform the funding model for the specific claims process to convert the current structure of repayable loans to one of non-repayable grants. As part of this funding reform, all existing outstanding loans should be forgiven. Recommendation 5: That the Government of Canada work in partnership with Indigenous peoples to reform the funding model for the comprehensive claims process to convert the current structure of repayable loans to one of non-repayable grants. As part of this funding reform, all existing outstanding loans should be forgiven. Recommendation 6: That the Government of Canada work in partnership with Indigenous peoples to reform the funding model for the Treaty Land Entitlement and Additions to Reserve processes to convert the current structure of repayable loans to one of non-repayable grants. As part of this funding reform, all existing outstanding loans should be forgiven. We agree that loans have often “proved to be a political and economic hardship”; however, we continue to believe that a combination of loans and grants best incentivizes negotiators to advance and complete negotiations. The alternative would deny First Nations the benefits they would receive from a comprehensive agreement. Other questions remain: would the federal government make the final decision on a loans limit, thus further impeding the process toward self-governance? Would loan forgiveness be applied retroactively, to outstanding loans, or strictly to future agreements? We are in agreement with the Committee’s report that the current system is in need of improvement, and that government should consider a degree of loan forgiveness; however, the complete forgiveness of loans for the purpose of negotiations is not the best path forward. Rather, consideration should be given to Douglas Eyford’s suggestion for a series of loans to be provided at defined stages in the negotiations. When he testified to the Committee on October 26, 2017, Mr. Eyford stated: The recommendation I made was that Canada should identify a process to fund negotiations going forward. What I recommended was something that is similar to the tariff process in civil litigation. The government says it will provide them with up to x number of dollars to get through various stages of the process, instead of having an open chequebook saying that it will underwrite whatever costs they take. It's up to the First Nations communities in those circumstances to reconcile what kinds of experts, or lawyers, or accountants, or other third party service providers they are going to retain, and how they're going to pay those persons if the cost exceeds the amount of the tariff. On his suggestion, we recommend: That Indigenous and Northern Affairs Canada revise the funding formula for Comprehensive Land Claims to incentivize progress; and consider a combination of grants and loans at defined stages of the process. In closing, Conservative Members of the Standing Committee on Indigenous and Northern Affairs recognize the immense benefits for Indigenous communities in concluding specific claims and comprehensive agreements. There are serious issues with the current processes that require deliberate attention, especially the repeated failure of the federal government to follow through on its commitments. Only the rare witness called for the end to these procedures; rather, the vast majority urged their immediate revision. We are concerned that the Committee’s final report contains many lofty words and few actionable items; that important testimony and practical recommendations were not included; and that the Committee’s call for complete loan forgiveness lacks sufficient consideration. We urge the federal government to heed these recommendations as all Canadians pursue long-term reconciliation with Indigenous peoples. List of Recommendations:
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