As Assistant Deputy Minister, Self Government, Richard Van Loon is at the forefront of efforts by the Department of Indian Affairs and Northern Development to inject new life into the federal government's policy on comprehensive claims. In the following interview, conducted in January, he discusses the government's policy statement of 18 December 1986, and offers some insight into the direction and timing of future negotiations.
CARC: How important is the new policy statement?
Van Loon: It's important in two ways: first, it attempts to clear away what we acknowledge were impediments to arriving at claims settlements and, second, it is important for symbolic reasons, because it was also intended to say that the government was still interested in comprehensive claims policy-that it felt it was important to arrive at settlements.
CARC: The Coolican Report drew a fairly close analogy between the treaties of the historical period and modern comprehensive claims policy. The new policy statement doesn't make that connection as dramatically. What's the reason for that?
Van Loon: We just didn't happen to think about it in that framework. As you know, there is a federal government position that treaties confer rather limited rights, whereas a comprehensive claims settlement is a lot more detailed and will confer things, especially under the new policy, such as management board participation and compensation that were not provided in past treaties. None the less, I think Coolican and company were certainly right in drawing that parallel because the basic objective is the same, that is, to reduce uncertainties about rights and titles
CARC: In some ways, there's a mixed signal on the related issues of extinguishment and finality. The new policy says there will be more flexibility, but, on the other hand, it doesn't retain, as suggested by the Coolican Report, such things as periodic review of settlement results, phased implementation, or arbitration to overcome problems associated with the interpretation of agreements. In some ways, it seems to result in more flexibility, but the long term still emphasizes certainty. Perhaps you could explain.
Van Loon: I think it does imply flexibility; in fact, it says that some aspects of the settlements will not be considered final if both sides to the original settlement don't want them to be final. Things like management boards, for example-there is no reason to cast the details of those in stone. In 10 years we might find they don't work, and we hardly want to go through a constitutional amendment trying to change the procedures under which they operate. What is final, or what is viewed by the government as something that's going to be final, are the land and monetary compensation aspects. I think that it really could not be otherwise given the basic objective that the government had in setting forth the policy, that is, to deal with uncertainties by acknowledging certain rights and asking for the conveyance of other rights. If you convey rights for other than an unlimited length of time then you haven't really removed the uncertainties.
CARC: One of the criticisms raised in the past is that, if one starts negotiating management institutions through a claims settlement, then, given the constitutional guarantees that come with conclusion of settlement, we're going to have a system of public administration that will be locked in forever.
Van Loon: We'll see how we handle that as time develops, but the sort of thing we're thinking of doing now would be to put a reference to the management board in the agreement, including the right to membership by the aboriginal groups and maybe even defining its powers and the proportion of membership on the board. That would only require one or two clauses of the original settlement; then you would pass enabling legislation that would actually create the board. That might be provincial, territorial, or, conceivably, federal legislation. But it would still be amendable subject to the agreement of the parties, so you wouldn't be locked into a constitutional amendment. The right to have such a board and the right to participation would be protected, but the processes and procedures of the board would not be locked into the agreement.
CARC: As a consequence, there would be a fair amount of legislative activity in the period after a settlement. That was the situation with the James Bay agreement, but it wasn't the case with the Inuvialuit, so, to some extent, you'd see a return to some of the features of the James Bay model.
Van Loon: Quite possibly. While you hear a lot of noise about the James Bay and Northern Quebec Agreement, and while we often-in the press at least- seem to be at each other's throats, I think, deep down, everybody sees it as a fairly successful agreement. In spite of what I suspect the Cree-Naskapi Commission is going to say when they file their report, I think a lot of people feel that the Cree Naskapi Act is a fairly successful approach to self-government and one that would certainly not be ruled out by us.
CARC: One area where Quebec Inuit think there's unfinished business is in negotiation of their offshore rights. This new policy talks about the opportunity to negotiate in the offshore, but it doesn't refer specifically to the demands of Quebec Inuit for negotiations based on what was left over from the James Bay agreement. Do you see this policy statement giving you new momentum to negotiate the Quebec offshore?
Van Loon: First of all, I don't view that as directly related to the new comprehensive claims policy; indirectly, it may be, because the policy suggests we should be willing to talk about that sort of thing. The forum in which we would address that issue is not the comprehensive claims forum. The forum is mediated negotiations, to review and improve the implementation of the James Bay and Northern Quebec Agreement. But we're already in those discussions with Makivik Corporation, and if they want to bring the offshore issue to the table again then we're certainly willing to look at it.
CARC: There's clearly scope in the new policy statement for negotiation of aboriginal participation in the decision-making process with respect to renewable resources, land management, and planning. However, there doesn't appear to be the same opportunity with respect to non-renewable resources. How do you see that line being drawn? For example, let's assume that there's a programme proposed by Energy, Mines and Resources Canada for a drilling programme in a particular part of the Northwest Territories. Would a decision of that nature be something aboriginal people could expect to have some influence in, or would that influence have to be indirect. through a land-use planning process?
Van Loon: It certainly can be indirect, through a land-use planning process. The issue is at the point where you start defining terms and conditions for the operation of a lease. It is not foreseen that the policy would allow the beneficiaries of the claim, by right, to participate in an organization which actually issues the lease.
CARC: An organization like the Canada Oil and Gas Lands Administration?
Van Loon: Yes. They could not expect the new policy to provide for constitutionally protected participation in such an organization. But where you get into the murky areas is in impact review boards and the attachment of conditions to the lease, and I don't have an answer. The best way to answer that is going to be with a specific case-which calls for a lot of debate within government.
CARC: Then you would expect that question to be cleared up through the more particular mandates actually negotiated?
Van Loon: Yes¾ to be very specific, with the Nunavut Impact Review Board; that's where it will likely come up first. We will have to fight it out internally in government to try to resolve all the conflicting positions so that we can come up with a response to that proposal.
CARC: Much of that seems to be related to the issue of resource sharing, where, clearly, the principle is one that conceives the possibility of a long-term aboriginal share of resource revenues derived from development. However, the basis for calculating that share is left in considerable doubt.
Van Loon: Though the policy is fairly specific, there are a number of areas that are not so clear ... what share, for example, or what potential combination of settlement-wide resource revenue sharing and subsurface ownership might be a workable arrangement.
CARC: Was the intent of allowing resource revenue sharing to introduce more flexibility and to better serve the objective of economic self-sufficiency? Is that a reasonable assumption for people to make?
Van Loon: It's there for two reasons: most importantly, because they asked for it, and, probably most important in terms of selling it within the federal government, because it will give the beneficiaries an ongoing stake in the development of settlement lands. We hope there's something there . . . a flow of funds that will go on longer than the payment of the cash part of the claim compensation.
CARC: Would you expect that the duration of the revenue share or the capping of that revenue share would turn, in large measure, on the kind of economic and social conditions in which aboriginal peoples find themselves over time?
Van Loon: Well, first of all, it's important to say that there is not necessarily a cap and, if there is, there is more than one kind of cap possible. One is an absolute dollar amount-everybody understands that-and the second is a time cap, maybe 50 years from the start of payment of royalties, but subject to renegotiation at the end of the 50-year period. The third is a sliding scale: perhaps 8 per cent of the first $100 million in royalties, 7 per cent of the next $100 million, and 6 per cent of all the rest, which is not a terribly onerous type of cap when you come to think of it.
CARC: Conceivably, that could be tied to objective tests such as unemployment rates or income levels.
Van Loon: Yes, it could, and that's one possibility, but there are other ways in which there is a relationship between economic development and the amount of money transferred from the federal government to aboriginal people. One way is under resource revenue sharing, but another way-and maybe a more important one in the long run-is in the block transfers that have been made under self-government arrangements, the block transfer being based on a known base-year amount and escalating yearly by some kind of agreed-upon escalation factor. In federal-provincial fiscal relations those kinds of transfer arrangements are often subject to periodic renegotiation. As we have said in the Sechelt case, and as we propose to say in the Cree-Naskapi case and probably in other cases, we would propose eventually to consider some form of cost sharing between the federal government and the aboriginal people, the same as we would if we were making transfers to a provincial government. The second-largest transfer payment between the federal government and a provincial government is equalization, and equalization is automatically varied according to the fiscal capacity of the provincial government. If we're talking about government-to-government fiscal relations, as we are in self-government arrangements, then, from the federal government's point of view, it's logical to look at the fiscal capacity of the government to which we are transferring funds to determine how much money is needed. But that's not directly related to the comprehensive claim. It's indirectly related, because if the beneficiary groups have successfully used the claim to obtain money to create a base for economic development, then the transfer payments from the federal government under self-government arrangements might fall by some proportion of the increase in their fiscal capacity. However, we would hardly propose to go to aboriginal people and say, "Good, your fiscal capacity has increased by $6 million a year, so we're going to reduce our transfer payments by $6 million a year." That's just palpably unfair-there's no incentive to develop. We wouldn't do that.
CARC: From what you're saying, it's possible to imagine land claim negotiations which, when it comes to the calculation of compensation and resource revenue sharing, import the tests and vocabulary of intergovernmental financial transfers.
Van Loon: It's conceivable but not necessary. I can't predict what will happen 50 years in the future, but I think if it were five years from now, the position would more likely be this: Through resource revenue sharing, your fiscal capacity has increased; therefore, the transfer to you may be decreased by some amount, but it won't be anything like 100 per cent of what you got from the resource revenue sharing. It will be more like 20 per cent or 15 per cent or something like that. Something similar happens now with some of our programmes. For example, if a band's economic and employment situation improves, social assistance payments to it will automatically decline.
CARC: The new claims policy talks a lot about community self-government. What would you see happening in the future in the event that northern aboriginal groups bring to the negotiating table issues such as social programmes, issues which are outside the normal sphere of community government but involve something larger, something perhaps contingent on division? Do you see that the new claims policy is really going to require claims groups to focus more precisely on governmental matters related to community?
Van Loon: Well, first, I don't see the claims policy by itself dealing with things like social programmes. My interpretation of what the minister has in mind is that the policy is not intended to deal, except in the matter of renewable resource management, with issues that are normally public government issues. It would not create a constitutional protective right to participation in, for example, boards and delivery mechanisms that deal with what we normally define as public government functions, like health services or education services. To be very specific, as the policy stands now, you could not use the claims process to negotiate a constitutionally protected right to participate in the equivalent of a district health council. Those issues, we think, have to be dealt with in the public government forum. The territorial division forum is an appropriate place to deal with those, but the comprehensive claims policy is not.
CARC: Does that mean that the Northwest Territories claims may not progress much between now and 1991? The stated position of the Inuit for many years was that they had to have assurances on a lot of these governmental programmes before they'd sign a claims settlement on land matters.
Van Loon: In theory, that's certainly possible.
CARC: Is that desirable?
Van Loon: Well, in isolation, it's probably okay. If the Inuit of the eastern Arctic are happy to let things go on for another four years, and if there aren't developmental pressures, then, in theory, there's no reason that you shouldn't let things proceed this way. But this is the government of Canada, not the government of the North, and the government of Canada has 16 other accepted claims in front of it, most of which come from British Columbia, and many of which are subject to intense developmental pressures. You ask Kitamaat or the Haida whether they want to wait for four years while the eastern Arctic Inuit talk about, quite properly, the relationship between Nunavut and the Tungavik Federation of Nunavut claims settlement, and their view will certainly be "No", because they've got intense developmental pressures in their area right now. Let's be realistic-these are very big deals, and we can't handle 22 claims negotiations at the same time. At some point, the government is going to have to make a decision. If a claim is drifting along and some progress is being made, but it clearly can't be settled for four years and another group is under intense pressure, then we may have to stop negotiations in one place and start them in another.
CARC: Coolican recommended that a commissioner make that decision, an approach the government hasn't adopted. What was the reason for that?
Van Loon: Well, I guess the basic reason was that, in a way, the policy's too important. If you put a commissioner into the exercise then you add a buffer that can allow a government to hide-and it can allow the claimant, the beneficiary group, to hide too. We just thought the direct relationship between the claimant groups and the government was more likely to produce fast action. I think that the commissioner idea has merit-certainly, some other people in government felt that way as well-but, on balance, we felt it was better to handle it as a direct relationship. The kind of issue you just raised is one in which a commissioner would be a very useful thing, but that's such a hard job and such an important political decision, that it really should be left up to the minister.
CARC: To what extent does progress on the negotiation of claims require some kind of similar progress at the First Ministers Conference? Would failure at the First Ministers Conference deteat some of the optimism and some of the good faith that seems to have been developed between the government and aboriginal groups, especially the claims coalition?
Van Loon: Yes, but it would not stop us from trying to achieve progress on the claims front. We certainly don't think that the world ends on March 28 or the day after the First Ministers Conference. Whatever its outcome, there are an awful lot of issues that are dealt with in comprehensive claims that don't bear on self-government, and even those that do don't necessarily require that the right to self-government itself be constitutionally protected. So, as a pragmatic matter, I think we could still arrive at claims settlements regardless of the outcome of the First Ministers Conference. It doesn't create panic that things might not work. I think things will work a lot better in comprehensive claims policy if the First Ministers Conference is successful, and it will work better in my other area of responsibility-self-government-but it's not an absolute necessity for the federal government's claims policy.