Jean questions Michael Wernick on the BC Treaty Commission - December 3, 2009

Ms. Jean Crowder (Nanaimo—Cowichan, NDP): Thanks, Mr. Chair.

Also, my thanks to Mr. Wernick and Mr. Quinn for coming before us again. As noted, you have been here many times.

I have two areas I want to focus on. If I have time, I'll go on to something else. My first question has to do with the B.C. Treaty Commission process. I looked at the supplementary estimates and saw no change in the budget that I could identify.

I think you're probably aware of two reports. One was a PricewaterhouseCoopers report commissioned by the B.C. Treaty Commission. It said that settling the treaties would boost the B.C. economy by $10 billion.

The second thing, of course, is that the international human rights commission has determined that the Hul’qumi’num Treaty Group's case is admissible. The decision says that “the BCTC process has demonstrated that it is not an effective mechanism to protect the right...alleged by the alleged victims” and that “there is no due process of law to protect the property rights of the HTG to its ancestral lands”. It goes on to say that the treaty negotiation process “is not an effective mechanism” to protect the rights claimed by petitioners. There's much more.

So I guess my question around the estimates process is this: will you be considering reaffirming the federal mandate around the BCTC process? Because many of the complaints I hear from first nations there are simply that the negotiators at the table don't have the mandate to negotiate. It's forcing international human rights complaints as a result. Could you comment on that?

Mr. Michael Wernick: I appreciate the question. One thing I can assure you of is that the department certainly is committed to and is following the direction of many successive governments in that we believed negotiations were the best way to deal with unresolved aboriginal rights in B.C. We prefer that to the courts, although sometimes these things end up in the courts.

We have made some progress, as I noted, with Maa-nulth. I am hopeful and guardedly optimistic that we'll actually have a few more final agreements early in 2010.

On the complaint you mentioned, I probably should not get too far into it because it's going to be discussed by lawyers. But it's an illustration of how you cannot force an agreement with people who disagree on some of the fundamentals.

My understanding of the complaint is that they're not happy that the treaty process doesn't allow for expropriation of private lands and third party interests. But that has been the position of the federal government since the beginning of the process: that only crown lands could be made available, or lands that are acquired from willing sellers. That's my understanding of it. I stand to be corrected.

There are other first nations that don't like the treaty process because they don't like the own source revenue and the expectation that you have to start generating your own source revenues.

First nations that don't want to join the process are under no compulsion to do so. As you know, there's a division in B.C. between those that want to participate and those that don't.

I entirely accept that the current process hasn't been working as well as it could. There's advice from the Auditor General and from the treaty commissioners themselves, and we've had a long engagement with B.C. first nations. We are working particularly with our colleagues at Fisheries and Oceans to resolve this, because those are the issues that seem to have a number of things stuck.

I'm hoping we'll have some cabinet decisions on that very shortly and that we'll be able to re-energize the process early in 2010. We share a commitment with the Government of British Columbia and a large number of the first nations to get to treaties where we can. But we are not going to get to treaties with everybody.

Ms. Jean Crowder: I don't want you to respond to this, but I have just a quick comment. I mean, the issue with HTG is the fact there is virtually no crown land. At the heart of this complaint is the E&N railroad. They're not asking you to go out and expropriate; there's a much larger issue there.

I want to turn to the PSSSP. The reason I wanted to raise this program in the context of the supplementary estimates is that I don't see any additional funds for consultation here. I just want to lay out a timeline here.

Back in 2005, the public accounts considered education more broadly than PSSSP but that was part of the review. At that time, the Auditor General talked about the fact she was disappointed to see that the department's proposed action on our observations and recommendations are not necessarily linked, and that there was no regular reporting out on those action plans.

I'll fast-forward to 2009, when we had the internal audit of the department with recommendations from the PSSSP as well as the ISSP. We saw that report come forward and then had testimony at the committee back on February 26 when I raised the question with Mr. Yeates about what the process would look like around the review. He indicated, “We are determining with the minister an appropriate, more formal, and fulsome engagement and consultation process”.

Then, of course, in November 2009, we had the release of “The Post-Secondary Student Support Program: An Examination of Alternative Delivery Mechanisms”, which was not on the INAC website. It was on a private company's website, so yes, it was released publicly but it wasn't released through INAC.

What we are hearing consistently from first nations from across Canada is that a letter to chief and council or to their regional representatives does not constitute consultation. They don't feel they've been included in the process to date in a “fulsome” way, to go back to what we were talking about.

So since no funds are earmarked and this process seems to be moving along, albeit very slowly, because Mr. Yeates also said there would be some proposals and presumably some action in the fall, what is the plan to include first nations in the solutions to the challenges the audit identified?

The Chair: We're down to about 30 seconds, so go ahead, but with a short response if possible.

Mr. Michael Wernick: That's a big topic.

The first thing I should get on the record is that the government has taken no decisions on the future of the post-secondary program. Those will be made, if at all, in the new year. So the program is chugging along in its current design.

The audit, the other studies, the advice of this committee, and all kinds of input tells us that the program design from the 1970s isn't necessarily the best way to get assistance into the hands of first nations learners and their families. That's why we've been doing the kind of work you referred to--looking at whether there are other ways to do it. It's our job to see if there are other delivery models and other forms of assistance, and we hope to pull that together into some decisions that can be made by the government early in the new year.

There has been an effort to reach out to people who are affected by this. We'd like to have more input from students and their families, frankly, and that's been difficult. But we have a working-group relationship with the Assembly of First Nations. There has been regional outreach and so on.

My people have been out and have met with Mi'kmaq groups in the Atlantic region. We've met with the First Nations Education Council in Quebec. Ontario chiefs have delegated the Union of Ontario Indians to represent them on this. We have met them on several occasions. I could give you a list of the number of people we've met.

We have no intention of pushing out changes to the program without having listened to people who are affected by them.