2006 November Report of the Auditor General of Canada

Policy Framework

7.52 Indian and Northern Affairs Canada, in collaboration with other relevant federal departments and agencies, should, without delay, develop a more expeditious and coordinated process for ongoing policy development and review related to its participation in B.C. treaty negotiations. This ongoing federal policy review process should take into account

• lessons learned from its participation in the B.C. treaty process,
• case law on Aboriginal rights and title,
• the existence of other options available to First Nations, and
• the federal government's objectives and priorities.
  (7.36–7.51)

Indian and Northern Affairs Canada will work with its federal partners to improve existing internal federal processes with respect to policy development, in order to respond more effectively to policy-related challenges and opportunities at the treaty tables. Policy development will continue to be informed by individual treaty negotiations and evolving case law. The federal government will explore with B.C. and the First Nations Summit how the tripartite "principals' process," created for political and working-group level discussion about policy and process issues affecting the B.C. treaty process, might be made more effective.

7.53 Indian and Northern Affairs Canada, in cooperation with other relevant federal departments and agencies, and in consultation with First Nations, should develop a policy to fulfill the federal government's duty to consult and, where appropriate, accommodate First Nations, as set out in Supreme Court of Canada decisions. (7.50)

Indian and Northern Affairs Canada will continue work already underway with respect to consultation. In response to the Supreme Court of Canada's 2004 Haida and Taku River decisions, INAC and other federal departments are developing a federal approach on consultation and accommodation that could be applied consistently across regions and increase the level of interdepartmental coordination. Preparatory discussions have been held with representatives of First Nations, Inuit, and Métis groups and with provincial/territorial officials regarding the scope and content of the approach and how these groups wish to be engaged.

Negotiation Process

7.75 Indian and Northern Affairs Canada should improve its management of treaty negotiations by better defining the results to be achieved at each table, and the time and resources required, including those of First Nations, to achieve these results.
(7.54–7.74)

Indian and Northern Affairs Canada will explore opportunities to improve its time and resource management, with particular attention to targeted deadlines and results. The Department will place greater emphasis on results-based negotiations, focusing its efforts on negotiation tables where progress is demonstrably possible.

INAC's success in meeting some of these commitments requires the involvement of the other participants in the B.C. treaty process. A more effectively managed treaty process is in all the parties' best interests, enabling First Nations and governments to achieve their objectives more quickly and economically.

Reporting to Parliament

7.80 Indian and Northern Affairs Canada should report to Parliament clearer information on the results expected by the federal government with time frames, the results achieved, the extent of First Nations' participation, and the costs involved. When results are lower than expected, explanations should be provided along with any adjustments to expectations, where relevant.
(7.76–7.79)

Although current reporting systems comply with existing federal government statutory requirements and the BCTC's Annual Reports, which are tabled each fall in Parliament, are a good source of information, the Department agrees that the importance and cost of the B.C. treaty process warrant more accessible and comprehensive reporting to Parliament, and will explore ways to make improvements.

Indian and Northern Affairs Canada accepts and will act on all four of the Auditor General's recommendations related to policy, consultation and accommodation, process management, and reporting structures. In so doing, the Department anticipates making the British Columbia treaty process better—a process that, despite the challenges, has made tangible progress and is likely to produce, in the near future, a number of final agreements. To quote the Auditor General's report, "Settling the uncertainty associated with unresolved land claims in British Columbia is important for all Canadians."

The negotiations have turned out to be more complex and time-consuming, and to involve more individual treaty tables and difficult issues, than was predicted by any of the parties when negotiations began. Nonetheless, as the Supreme Court has repeatedly stated, governments are obligated to reconcile Crown sovereignty with pre-existing Aboriginal title. The Court has endorsed treaty negotiations as a means of achieving this reconciliation.

Litigation can only partially resolve outstanding issues regarding Aboriginal rights and title. Sectoral agreements with First Nations are positive developments, but not a substitute for comprehensive treaties analogous to those that have been successfully reached in other parts of Canada. Treaties are more difficult to achieve, but the negotiation process in British Columbia has itself already accomplished a great deal in terms of capacity building, reducing conflict and potential litigation, increasing British Columbians' understanding of First Nations' issues, and forging new relationships and partnerships.

As one of three parties in a voluntary process of negotiation, the federal government cannot guarantee the outcomes at individual treaty tables. However, several final agreements and agreements-in-principle are within reach in the near future. This prospect of success is also creating momentum at other tables.