Evidence of meeting #69 for Indigenous and Northern Affairs in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
We've heard a lot about land claims and fish. We haven't heard about culture. Talk to us a bit about the culture. Is it like it was when you moved to the modern treaties?
President, First Nations of the Maa-nulth Treaty Society
What the treaty made us able to do was to make our own decisions and act on them immediately. We made a decision to build an administration office. All our nations are doing something economically right now that's huge for them and that would not have been possible prior to the treaty. We built a self-sustaining building that is perfect for us, and we wouldn't have been able to do that before the treaty. It's our big cultural centre, our rental units, and all of that. You don't have to worry about mortgage payments, because we designed it to pay for itself. We had the ability to negotiate arrangements with the bank that they had never done before, with favourable interest rates over a 25-year period. Things like that we've been able to do.
One thing we haven't been able to do is get a satisfactory arrangement where we could be involved in pools borrowing, because we have to give up some government jurisdiction to the agency. In case of default, you let another organization come in and take over your financial affairs. That's unacceptable to us as a treaty nation, so we don't do that. We're not participating in pool borrowing. We go and devise and negotiate our own deals as opposed to coming under a first nations finance authority or something like that. These are some of the positive things for Maa-nulth that are happening.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you, Madam Chair, and thank you to our panel.
I want to start with you, Morgan. The Nisga'a proposed an independent review body for implementation of treaties. You also mentioned it in your recommendation. Their suggestion on this review of the implementation of modern treaties is for an impartial independent body, which could be within the Office of the Auditor General. Are you on the same page in that respect?
Research Associate, Havlik Metcs Ltd.
I won't speak for all the communities in that, because I'm sure that each individual community that we work on behalf of may have a vastly different idea of how that would look.
Based on our work with the Office of the Auditor General during the report last year, I will say that their level of independence and their ability to look at an issue very objectively were very welcome. The report was very favourable for first nations.
If that is a proposed option, I think it would be one to consider, yes.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Chief Cootes, you talked about your treaty as a living document or a living expression of our relationship with Canada. I didn't quite get what you said about the 10-year review that's supposed to come up. Is it provided for under your treaty that in 10 years a review is supposed to take place?
President, First Nations of the Maa-nulth Treaty Society
Yes. It's every 15 years.
President, First Nations of the Maa-nulth Treaty Society
That's right. That's what's in the treaty at this point.
We have issues that have come up from day one and have continued to this year. It was 2012 or 2013 when we started preparing for the 15-year review. We have a set of criteria that was developed, and it tracks all the relevant things that we should be tracking in regard to the treaty. It's a very good process if we implement it properly and do it on an ongoing basis.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
It's basically locked in that the review is going to take place in 15 years and there's nothing in between. Does the treaty provide for situations where a court, for instance, makes a decision or a ruling on something about the treaty that would require a change? Would that be possible?
Legal Counsel, Ratcliff and Co, First Nations of the Maa-nulth Treaty Society
I think there are two parts to that. The 15-year review in fact is an ongoing 15-year review. Every 15 years there is a review. That review in and of itself does not prohibit any of the parties in the treaty from asserting in a court or politically that there has been a breach of the treaty—in our case, saying that governments have not lived up to the obligations they've made in the treaty. Both exist, either as a matter of what is in the general provisions chapter of the treaty or as a matter of the right to go to court.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
In northern Quebec, as you know, there's a Quebec forestry act that is of general application throughout. We argued for a long time that, given the specific provisions in the James Bay and Northern Quebec Agreement, ,there should be a separate forestry regime in northern Quebec, in the part of the territory that's covered by the James Bay and Northern Quebec Agreement.
That happened after a ruling from the Superior Court of Quebec, whereby the Superior Court of Quebec confirmed that the provisions of the Quebec forestry act were incompatible with the terms of the James Bay and Northern Quebec Agreement, in particular because there are hunting, fishing, and trapping rights of the Cree that are contained in the agreement, but you cannot exercise what are constitutional rights if there's no forest. That brought about the change in 2002.
I want to be clear about what you're saying. If a situation similar to what I've just described happens in your area, the treaty allows for that change or review or amendment to take place?
Legal Counsel, Ratcliff and Co, First Nations of the Maa-nulth Treaty Society
If in fact what you're asking is whether in a similar situation one or all of the Maa-nulth first nations could institute a court case saying that the province had not lived up to an obligation it made in relation to forestry, or that what the province was doing by way of legislation or policy violated the rights that Maa-nulth had been assured in the treaty, then the Maa-nulth first nations could do exactly that. They could go to court and say, “B.C., you have not lived up to your constitutional obligations.”
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
On that point I think, in general, one of the main problems with treaties throughout the history of treaties has been their implementation.
Chief Cootes, can you talk a bit more about that, about what are the specific implementation problems that you have encountered since 2011. You said that from day one you guys had problems. Can you elaborate further on that?
President, First Nations of the Maa-nulth Treaty Society
I mentioned one of them and it had to do with the pooled borrowing. As well, we were having problems accessing certain categories of capital that Canada made available to other nations.
I think one of the things that we need to have in place is a relationship with Canada where if we have issues with Canada, then we should have a government-to-government process that circumvents the long lineup of waiting time or the expense of.... It's so expensive to travel from the west coast to Ottawa to have 15 minutes to half an hour with a minister.
I'll wrap up there and keep it simple.
Liberal
The Chair Liberal MaryAnn Mihychuk
All right, I understand the questioning is going to be split, but we'll start with MP Anandasangaree.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Thank you very much for joining us this afternoon.
Chief Cootes, you had mentioned a number of times the importance of data collection. I'm wondering if you're able to share with us any relevant data that speaks to the success of the self-governing model that you've undertaken, especially with respect to social indicators, education and health care. I don't know if you've had enough time—it's only been six years—so it may not be fully available, but at least to the extent that you can share, can you provide some information to us?
Legal Counsel, Ratcliff and Co, First Nations of the Maa-nulth Treaty Society
I think it's still a little too early for that kind of data. It's difficult. It's since 2011 and you wouldn't be collecting the data probably until 2012 or 2013 and then you're into what would now be a three-year period and it's hard to define trends.
Maa-nulth has identified through its internal work a whole range of criteria that it's starting to do, but it does not have the resources to adequately do, given either the governance or the economic or the cultural indicators that we alluded to. My best guess would be that you're probably looking at a five- to10-year period to be able to respond to that question knowingly.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Ms. Chapman, I believe you were the second speaker today to discuss the impartiality and the fact that the government and the adjudication are all one and the same. Do you have specific information that suggests the level of adjudication is not impartial or is it just the appearance given that the funding is coming from the government? There are the parties, the government.... The adjudicative bodies also to some extent are an arm's-length body of the government.
Research Associate, Havlik Metcs Ltd.
I think you're getting into very complicated territory and I might not be in the best position to answer that question fully, but I think there are two parts to it. There is the issue of optics, so you have the judge, jury, executioner idea that's a perception, both from the inside and the outside, but then you also have things like the Specific Claims Tribunal and their recent findings and the fact that they're largely finding in favour of first nations claims, which Canada has itself rejected already.
That, to me, is the biggest indicator that it's not being as objective in its analysis and assessment of claims. Some have definitely gone to judicial review, which, again, is another process that I don't believe any of our communities have been involved in at this point. I think some other communities that have spoken today would probably be in a better position to address that specific aspect, but that alone to me indicates that there is a problem.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Thank you.
I will yield the rest of my time to my colleague.
Liberal
TJ Harvey Liberal Tobique—Mactaquac, NB
Thank you. I appreciate that.
I just wanted to touch on something, Ms. Chapman. At the beginning of your speech, you talked about the value of the claim and the ability of the community or the first nation to pursue that claim depending upon what its value is, the threshold. Could you elaborate on that a little, because I am fairly ignorant on the subject?
Research Associate, Havlik Metcs Ltd.
Sure. If a claim is valued by Canada at less than $3 million, I don't believe they receive any negotiation loan funding. Historically, I believe those have been given as “take it or leave it” offers by the government. They are usually very nominal sums.
I don't believe any of our communities have been faced with that yet. Actually, I take that back. We have had some partial acceptances that were definitely nominal values, which, had they landed on the negotiation table, might have had a very different outcome. A lot of those “take it or leave it” offers are what you are now seeing as “closed claims” on the specific claims report. In a lot of cases, first nations opt not to respond to them because they are quite insulting offers, to be frank, when you're talking about a historical loss dating from as far back as 1899 to modern day and you're getting pennies on the dollar, if even that.
Liberal
TJ Harvey Liberal Tobique—Mactaquac, NB
Is there an ability to appeal that amount on behalf of the first nation, if they just say, “It's under $3 million, so we're going to offer you this much”?