Indigenous and Northern Affairs Committee on June 1st, 2017

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning now goes to MP Romeo Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair.

Thank you to all present here this morning, in particular Mr. Thoppil. I think he should be given an honorary membership to this committee from now on, given his regular presence.

I went through the numbers. In principle I agree with the majority of what has been asked here, but I want to start with something that's been troubling me over the last year and a half. It's with regard to the decisions from the Canadian Human Rights Tribunal and the impacts on your department's budget.

Let me start with this very simple question: does your department recognize the authority of the tribunal to order the government to do something or to stop doing something?

[Paul Thoppil]

Thank you for the question, Mr. Saganash. We do respect the decisions of the tribunal. I think what the minister has said is that we have gone beyond already what the tribunal has actually requested to date.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

That's not the interpretation of the tribunal.

I want to go back to what your department officials said under oath to the tribunal after the first decision, and then the compliance order. The officials said:

Canada has no system in place to ensure INAC administrators and staff responsible for the First Nations Child and Family Services program have read the Tribunal’s decisions and understand them....Canada admits that Budget 2016 was prepared in the fall of 2015 and was not adjusted after any of the Tribunal’s decisions.

Given the fact that we have no new numbers, even after Friday's decision, I get a sense that is becoming déjà vu. Let me read paragraph 74 from the tribunal's decision:

Canada’s narrow interpretation of Jordan’s Principle, coupled with a lack of coordination amongst its programs to First Nations children and families...along with an emphasis on existing policies and avoiding the potential high costs of services, is not the approach that is required to remedy discrimination. Rather, decisions must be made in the best interest of the children. While the Ministers of Health and Indigenous Affairs have expressed their support for the best interest of children, the information emanating from Health Canada and INAC, as highlighted in this ruling, does not follow through on what the Ministers have expressed.

Who's leading the show here? Is it the department or the ministers with respect to the first ruling and the three compliance orders that followed the initial ruling? What is going on? Obviously the tribunal does not agree with what you just said.

[Paul Thoppil]

From our standpoint, the tribunal has called for immediate funding relief based on need, expansion of Jordan's principle, and reform of the child welfare system. Beyond the statement you quoted from that official, $200 million of additional funding has been made available to implement the decision from last year, with another $254 million this year. That is our response on immediate relief.

We have approved more than 4,900 requests for supports and services for first nations children related to Jordan's principle. We are also working, led by our minister, with first nations, provinces, and territories at tripartite and technical tables on comprehensive reform that puts the well-being of children first, which is the other element.

We believe we are moving forward and addressing what the tribunal is requesting us to do.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Obviously I heard the talking points in the House yesterday and the day before. A lot of people who have intervened in this case do not agree with what you just said either.

You talked about an expanded definition of Jordan's principle. Can you provide this committee with that expanded definition of Jordan's principle?

[Paul Thoppil]

I believe the minister has made it abundantly clear, at this committee and at other places, that it's about kids first and then about sorting out later the administration aspects at the jurisdictional level between the province and the federal government. That's why we've gone from zero to 4,900 service requests. We're responding right away to their needs, and then we are, back office, trying to work with the province on how we pay that out. So it's a “kids first” definition.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Yes, but again, the tribunal does not agree with what you've just said. In fact, the tribunal confirms that you did not even act on expanding that definition and giving it a broad and generous definition. That has not happened, according to the tribunal. Who's telling the truth here? Is it the department or the tribunal?

[Paul Thoppil]

I can't comment on different bodies' interpretations. All I can comment on are track records since this program has come into place, on what we've accomplished that we continue to move forward on. I believe the number of service requests that we have done from a zero start base, combined with the amount of significant investments we have put in, is a testament to our willingness to do better.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I think I have 30 seconds, so finally, I want to ask a specific question with respect to specific claims. The amount asked for, $446 million, refers to anticipated specific claims settlements, and there's a forecast of 60 specific claims related to that amount. What are the criteria to determine which claims will be settled in this fiscal year?

[Stephen Gagnon]

There are no criteria. We just try to do our best to estimate what could possibly, in the most optimistic sense, come in this year. That depends on the state of the negotiations and how close we are to a settlement agreement, whether or not first nations have accepted offers, voted on offers, and approved things. Sixty would be a very large number. It just happens that we're getting close on a couple of negotiations where we've clustered a couple of big things together. It's very optimistic, and it would be a historic year.

It's just to make sure that if everything goes our way, we'll have the money available to make those payments to first nations.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning now goes to MP Rémi Massé.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Madam Chair.

My thanks to the witnesses for joining us and for participating in the committee's work on the review of Supplementary Estimates (A).

To prepare for our meeting this morning, I consulted the department's 2014-15 and 2016-17 budgets. I must admit that I was surprised to see that, in 2014-15, a little over $1 billion had not been used. In 2015-16, unused funds amounted to $900 million. That's a lot of money.

We are now in June. I am not telling you anything new when I say that the fiscal year starts on April 1 and ends on March 31. You are asking for additional funds this morning to the tune of about $719 million—actually just over $719,650,000.

Could you tell me what processes are in place to ensure that the department is able to adequately manage the funds being requested so that there is not a huge amount of money left unused at the end of the fiscal year?

[Paul Thoppil]

Thank you for the question.

This one is really popular. You mentioned our

track record of lapsing.

One must understand that the lapse usually is primarily made up of a couple of amounts. Those are specific claims envelopes, comprehensive claims envelopes, or items related to residential schools settlement agreements. As my colleague Stephen Gagnon mentioned, the timing of payouts related to a claim is.... We make what I would call a “highly educated forecast” of what we think is going to be a payout, but we know that due to community negotiations, timing of negotiations, community voting, and so on, it will slip. Therefore, what you've seen as a lapse is essentially the movement.

Those funds always have been not lost but have been re-profiled into future years in order to make them available for when those settlements close. There have been, through that record of lapses you've mentioned, no monies lost to first nation communities. In fact, all of those monies have been “future re-profiled” into future years' budgets in order to make available the monies.

To give you an example of what's at play, for example, these supplementary estimates (A) have an amount of $446 million extra. This money is actually being re-profiled from future years back into this year because of the significant historic year—potentially—of settlements. You can see how monies from the past that are lapsing are being re-profiled into this year, and now, based on this year's forecast, monies for future years are being profiled. It's a moving game, but the objective remains the same year over year, which is that once a settlement is achieved, Canada must have the money available to honour its obligation.

It's difficult to explain to the public, that's for sure, but I hope you understand that it's the movement of the budget envelope year over year, through supplementary estimates and through re-profiling, in order to make sure that Canada can honour its obligations to indigenous peoples.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

That process is difficult to explain, so imagine how obscure it can be for the average person. When we look at the details of the budgets—again, 2014-15 and 2016-17—we see that Vote 1 is $259 million, and the one for grants and contributions is $737 million. So there are significant amounts of money in various votes. Can you explain, with concrete examples, the process underlying all of that to help us fully understand?

The amounts of money are striking. However, given the considerable needs of indigenous communities, why are those amounts available? I understand part of what you're saying, but there are significant amounts of money available that could be carried over and used to help indigenous communities more. Can you give us some concrete examples to explain why those amounts are available?

[Paul Thoppil]

I would agree with you that one of the challenges we have at INAC is the complexity of the reporting of government budgetary cycles and the public accounts to indigenous peoples for their understanding of the monies that Parliament is voting on, and how those are transformed.

I think Ms. McLeod raised a question at the pointy end, but I think when they look at the government technical papers, those are not very helpful for them either, right?

An example of what the public accounts committee is working on with the President of the Treasury Board is improved note disclosure. What you may have seen in the main estimates and supplementary estimates (C) from last fiscal year is essentially some note disclosure for the first time, which actually evidences the amounts that have been late re-profiled so that you can make the linkage for the first time between amounts that have lapsed in the public accounts and amounts after the fact that the Minister of Finance and the Treasury Board have agreed to re-profile in future years.

The linkages have not been made directly as of yet, but at least it's a first attempt by the government to provide a bit more information to start tracking these lapses and whether the lapse is truly lost or whether it's actually still available in future years.

Evidence of the complexity of it is the example I've just cited in today's supplementary estimates (A). That $446 million is actually being re-profiled from future years' budgeting into this year, for which there is no disclosure, but which I am providing to you orally.

I can understand, from an MP's perspective but also from the public's perspective, how people can get clarity of transparency regarding where the money is at any one point in time.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

You have less than five seconds. It's a complicated topic. We actually need a whole day on supplementary estimates and budgets.

The questioning now goes to MP Viersen.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Madam Chair.

Thank you to our guests for being here today.

My questioning will be particularly on the supplementary estimates dealing with specific claims.

I think you mentioned earlier that you anticipate 60 claims being settled this year. What does that mean when you say that 60 will be settled this year? Does that mean if a particular band is looking for its land claim, it will get that land at the end of this year, or does that mean we will now start the process of negotiating with all the other stakeholders that are in that area?

[Stephen Gagnon]

It's an “up to” amount and this is a very optimistic estimate, because we want to be sure that if we do get all the things flowing the way they are, that the money is available. We currently have over 220 active negotiations.

Typically the negotiations start off with the acceptance of a claim. We make a determination as to whether there has been a potential breach. We start negotiating, and then we work with the first nation on what the value of the claim would be in terms of the loss of use, for example, of the land value that was there and the benefits that should have accrued through the treaty.

We will come back and we will get a financial mandate through whatever level. Sometimes we have to go to Treasury Board, and sometimes our minister has the authority depending on the amount we're asking for. We make an offer. The first nation can then decide whether to accept it, and then we negotiate the terms of the release in the settlement. Typically the first nations will vote on this.

That's when we get a settlement. When a first nation has agreed, and has voted if it needed to—on anything over $3 million, I think, we require a vote—then it can sign, and our minister will execute the agreement when she has all her authorities in place, and that's a settlement. That's what we're talking about.

I'm not sure if that answers your question, or....

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

To some degree....

Here's what I'm dealing with in my riding, where I have the Lubicon Lake Nation and the Peerless Trout First Nation. Both are trying to get a reserve. They were missed when the Indian Act came in, so they don't have reserves. Both of them have been working on it for over 20 years. Peerless Trout has their first section. They call it phase one and then they work into phase two.

I'm wondering how those two particular cases are proceeding.

[Stephen Gagnon]

I'm sorry—I'm not trying to be overly bureaucratic—but those are not my files. I know that the Lubicon one is currently in negotiation.

I believe Peerless is trying to create the reserve, are they not, Paul? I don't know.

[Paul Thoppil]

I don't have visibility on those—

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

They already have stage one, so they already have 10 square acres, I think, and they're working to.... In the end, there will be 92 square kilometres of land. They're coming to me and asking why this is taking so long. They're saying, “Hey, it took 20 years, and we finally have lines on a map.” They're dealing with some third party interests in the area that they either have to buy out or sign contracts for lease with. I imagine that this money is going to help with that. Is that the case?

[Stephen Gagnon]

I don't know the particulars, so I have to be careful. Part of the balance is that there are always going to be other interests that need to be looked at, so there will be a consultation process when there are lands involved and other people who may have an interest. I can't speak to what might be—

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Is that what this money is for? Is this money for—