Former top public servant calls on western premiers to settle outstanding Indigenous land claims

Canada's former top federal public servant says uncertainty over Indigenous land title in the West is holding back the regional economy — and is calling on three regional premiers to commit to settling the issue within five years.

After more than 30 years working on Indigenous issues, former clerk offers lessons learned for next government

Michael Wernick, former clerk of the Privy Council and deputy minister of Aboriginal and northern affairs, worked on Indigenous issues for 34 years in the federal government. (Olivia Stefanovich/CBC)

Canada's former top federal public servant says uncertainty over Indigenous land title in the West is holding back the regional economy — and is calling on three regional premiers to commit to settling the issue within five years.

Michael Wernick, who retired in April as clerk of the Privy Council amid the SNC-Lavalin affair, recently delivered the frank advice during a Nov. 27 speech to the the progressive think tank Canada 2020 during a forum on Indigenous economic development, which he expanded on in an interview last week with CBC News.

"To premiers [Jason] Kenney, [Scott] Moe, [Brian] Pallister, uncertainty about Aboriginal title [is] pulling back economic growth in your provinces," Wernick said.

"Let's clarify who owns what across the West. Let's expand the Indigenous land base to its rightful dimensions."

Wernick said the premiers are pointing the finger at the federal government and stalling talks on settling outstanding claims over treaty lands that were promised to First Nations but never handed over.

Claims involving treaty lands are known as Treaty Land Entitlements and are generally resolved by providing First Nations with money to buy back land, or by turning over Crown land, which is mostly controlled by the provinces.

The land at stake amounts to hundreds of thousands of acres stretching from northwestern Ontario to Alberta.

Premiers reject Wernick's assessment

During his interview with CBC News, Wernick said the premiers he's dealt with were "very skillful" at directing attention — and sometimes blame — toward Ottawa.

Resource development projects depend on certainty about who has land title, he said. While there has been progress, Wernick said too much uncertainty still exists over lands under treaty title claim.

"There's still this hanging shadow of entitlements of First Nations Peoples to land under the treaties that were signed more than 100 years ago," Wernick said.

"These obligations have been kicked down the road from government to government, and premier to premier, and I think the current premiers are in a position to bear down and get these entitlements fulfilled."

Then-Clerk of the Privy Council Michael Wernick waits to appear before the Justice Committee meeting in Ottawa on Feb. 21 during the height of the SNC-Lavalin affair. (Adrian Wyld/Canadian Press)

The premiers of Saskatchewan and Alberta rebuffed Wernick's criticism. Both premiers said they were making headway in settling outstanding treaty claims.

Premier Moe of Saskatchewan said his province has settled title on just under one million acres with First Nations at a cost of about $600 million. He said 29 of 33 outstanding Treaty Land Entitlements have been settled so far.

"We've actually settled more land agreements than any other province," Moe said.

"We continue to work not only with the communities that have put their Treaty Land Entitlements forward, but also work with the federal government to deal with those applications as they come in."

Fourteen Treaty Land Entitlements have been settled in Alberta since 1986 and the province continues to negotiate outstanding claims, according to Christine Myatt, a spokesperson for Premier Jason Kenney.

"Through these negotiations, we strive to foster relationships with First Nation communities and create certainty for governments and First Nations in the spirit and intent of reconciliation," wrote Myatt in an email to CBC News.

Manitoba Premier Brian Pallister's office did not provide a response to CBC News.

'Behind by a century'

Wernick's comments come at a time of simmering resentment in Prairie provinces over slow economic growth, which the region's leaders have blamed on new federal environmental laws and a lack of significant movement on the Trans Mountain pipeline expansion project.

"Kenney spoke about a can do, get-it-done western spirit, so why not work with your two colleagues and sign a pledge right now to complete within the next five years the treaty land entitlements that were promised more than a century ago?" Wernick told the crowd gathered at Canada 2020.

"To paraphrase the late Gord Downie, we are behind by a century."

Wernick also called on the premiers to stop "stop hiding behind the courts" and stalling outstanding Métis claims. He suggested the provincial leaders commit to a summit in 2020 to kick-start settlements.

Wernick left his job as top bureaucrat after former justice minister and attorney general Jody Wilson-Raybould, who is Indigenous, released an audio recording of a conversation she had with him which she claimed demonstrated the then-clerk pressured her to give the Quebec engineering firm a pass on a trial on bribery charges.

Wernick was the longest serving deputy minister of the former Department of Indian and Northern Affairs in modern history. He was deputy minister from 2006 until 2014 before his appointment as clerk to the Privy Council.

Wernick did not mention the SNC controversy in his speech on Wednesday, which focused on a multi-point prescription plan for economic reconciliation with Indigenous Peoples. His instructions ranged from the creation of new institutions to adjusting small legal gears.

Saskatchewan Premier Scott Moe and a spokesperson for Alberta Premier Jason Kenney say they are working to address outstanding Indigenous land claims. (Bryan Eneas/CBC; Jeff McIntosh/The Canadian Press)

One of Wernick's recommendations was to create a Crown corporation to handle First Nation infrastructure projects that could access financial and capital markets to raise funds. He suggested First Nations be given ownership over band buildings to avoid insurance and financing issues triggered by confusion over who has liability.

Wernick said Ottawa should also create an arbitration panel to settle overlap issues between First Nations that lead to litigation over modern treaty agreements.

Pulling down the Indian Act like 'Jenga'

During his time as clerk, Trudeau assigned Wernick to handle plans to introduce Indigenous rights legislation to replace the Indian Act.

The Indian Act was enacted in 1876 and last went through significant amendments in 1951. It governs all affairs on reserve and provides First Nation bands the authority to pass local laws and govern.

Wernick said he doesn't think the Indian Act could ever be repealed in one fell swoop because he doubts consensus could ever be found in Parliament or between First Nations leaders on the issue.

"Every prime minister I worked for, every minister I worked for, would have loved to have gone down in history as the person whose name is on the bill getting rid of the Indian Act," Wernick told CBC News.

"There were attempts to use the constitutional route and add new constitutional language on elaborating and clarifying Indigenous rights, and they failed."

Wernick suggested the Act should instead be dismantled piece by piece through modern treaties and other measures to transfer authority over lands to First Nations.

"My own view has long been the best way to get rid of the Indian Act 1951 is the Jenga strategy," Wernick told Canada 2020. "Do you know the game? You have a pile of logs. You pull one out, then another, then another and eventually the whole structure collapses."

Prime Minister Justin Trudeau and Governor General Julie Payette look on as Joyce Murray is sworn in a Treasury Board President by Clerk of the Privy Council Michael Wernick during a cabinet shuffle at Rideau Hall in Ottawa on March 18, just before Wernick retired. (Sean Kilpatrick/Canadian Press)

But there are core elements of the Act that nobody seems know what to do with, he said.

"I don't think anyone who wants to repeal the Indian Act is actually arguing to get rid of communal property or shielding from provincial laws or tax exemptions," Wernick said.

"We're going to have to find new 21st century versions of those constructs."

First Nations leaders want to retain three essential features of the Indian Act: protection of communally-held land, exemption from provincial laws and maintenance of the ban on taxing on-reserve income, he said.

"If we pull out maybe a few more pieces of the Indian Act regime, we get closer to that day when it comes crashing down," Wernick told Canada 2020. "Perhaps we're closer than we think."

About the Author

Olivia Stefanovich

Senior reporter

Olivia Stefanovich is a senior reporter for CBC's Parliamentary Bureau based in Ottawa. She previously worked in Toronto, Saskatchewan and northern Ontario. Connect with her on Twitter at @CBCOlivia. Story tips welcome: olivia.stefanovich@cbc.ca.

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