THE STANDING SENATE COMMITTEE ON NATIONAL FINANCE
OTTAWA, Wednesday, June 13, 2012
The Standing Senate Committee on National Finance met this day at 2:00 p.m. to study the subject-matter of all of Bill C-38, an Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, introduced in the House of Commons on April 26, 2012.
Senator Joseph A. Day (Chair) in the chair.
The Chair: Honourable senators, today we are continuing our study of the subject-matter of Bill C-38, an Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.
Honourable senators, this is our sixteenth meeting on the subject matter of Bill C-38. This afternoon, we will be looking at Division 46 of Part 4, clauses 627 to 652, amendments to the First Nations Land Management Act. This can be found at page 380 of the bill and onward.
We welcome Chief Robert Louie, Chair of the Lands Advisory Board; and Chief Austin Bear, Chair of the Lands Advisory Board's Finance Committee and Chair of the Lands Advisory Board's Resource Centre. We also welcome Stephen Aronson, Legal Counsel for the Lands Advisory Board. From the Congress of Aboriginal Peoples, we welcome National Vice-Chief Dwight Dorey.
Chief Louie, I understand you have opening comments. We will begin with you and then move to Vice-Chief Dorey.
Chief Robert Louie, Chair, Lands Advisory Board: Good afternoon, honourable senators. It is a pleasure to be here. My traditional name is Seemoo. In our Okanagan language it means "connected to the lands." I am Chief of the Westbank First Nation in British Columbia. I also have the privilege to serve as Chair of the Lands Advisory Board, which represents the signatory First Nations to the Framework Agreement on First Nations Land Management, which Canada ratified by passing the First Nations Land Management Act.
As the chair indicated, presenting with me today is my colleague Chief Austin Bear of the Muskoday First Nation in Saskatchewan. Chief Bear is the Chair of the Lands Advisory Board's Finance Committee and Chair of the Lands Advisory Board's Resource Centre. He will assist me in answering any questions you may have.
We are also assisted by Stephen Aronson, Legal Counsel to the Lands Advisory Board. He worked closely with Minister Duncan's senior officials to introduce the proposed amendments to the First Nations Land Management Act to correctly reflect the amendments to the framework agreement.
We would like to speak to these proposed amendments and provide the committee with the background circumstances that prompted the Lands Advisory Board to approach Minister Duncan with these changes.
I would like to start by commenting on the uniqueness of this amendment process. The Framework Agreement on First Nation Land Management is historic. This initiative has been led from the beginning by a group of chiefs seeking an opportunity for their members to leave behind the paternalistic constraints of the Indian Act. We approached Canada with the concept of signing a government-to-government arrangement that would enable First Nations to opt out of the 34 land administration sections of the Indian Act and assume governance over their reserve lands and resources under a community-designed land code.
Canada supported our initiative, and the framework agreement was signed in 1996. The framework agreement next required ratification by both parties, Canada and the signatory First Nations.
Canada ratified the framework agreement by passing the First Nations Land Management Act in 1999. The First Nations each ratify the framework agreement by holding a community vote to approve the land code and an individual agreement with Canada. This individual agreement identifies the details of the transfer of control over the reserve lands and resources from Canada to the First Nation.
When amendments are required, we follow a similar process. The chiefs of the First Nations operating under their land codes and the Lands Advisory Board identify changes that are required to the framework agreement. The board then approaches the minister with these proposed amendments, and the technical details are completed. The operational chiefs then vote to officially approve these changes to the framework agreement. With the official approval of the chiefs, the Lands Advisory Board then finalizes the amendments with the minister. We accomplished this with Minister Duncan in October 2011.
Minister Duncan committed to have his officials promptly work on the draft legislation. The proposed amendments are contained in Bill C-38. Canada now is in a position to make the necessary changes to the First Nations Land Management Act, which is Parliament's method of ratifying the changes to the framework agreement.
This current series of changes will be the fifth amendment process. Each time the chiefs and Canada make changes, we are seeking to improve efficiency and simplify the transition process from the Indian Act to the community land code.
I have reviewed the comments made earlier by Andrew Beynon, Director General of the Community Opportunities Branch of Aboriginal Affairs and Northern Development Canada, to this Senate committee on the various amendments. Mr Beynon answered your questions very well, so I will focus my comments on two very important changes.
Since January 1, 2000, when three framework agreement First Nations implemented their land codes to begin the new millennium, two issues have restricted the efficient implementation of the framework agreement. The chiefs and the Lands Advisory Board are pleased that these two problems will finally be corrected under the proposed amendments in Bill C-38.
Our first concern has been the problem of how to describe reserve lands, which unfortunately have uncertain boundaries. Clauses 627 to 631 in Bill C-38 will provide the solution.
Currently, a First Nation and the minister cannot exclude land from a community's land code when the land's reserve status is uncertain. The framework agreement and the First Nations Land Management Act only contemplate excluding a "portion of a reserve." As a result of this uncertainty, many community votes have been delayed, some for years, until boundary issues are resolved.
In order to avoid similar delays in the future, the proposed amendments are to change the framework agreement and the First Nations Land Management Act to enable a First Nation and the minister to exclude land from a community land code when it is uncertain whether or not the parcel of land forms part of the reserve.
The proposed amendment includes a provision that states that exclusion is without prejudice to the right of the First Nation or the Crown to assert that the land forms part of the reserve.
In addition, the proposed amendment provides that a "legal description" will be any description the Surveyor General of Canada considers sufficient to describe the land.
Our second concern was to eliminate the need for an environmental management agreement. Clause 635 of Bill C-38 will provide the solution.
The proposed amendment to the framework agreement and the First Nations Land Management Act will remove the requirement for an environmental management agreement. However, a First Nation with a land code in effect still will be required to develop an environmental protection regime.
First Nations ratifying the framework agreement have the power to enact environmental management and also environmental assessment laws. In the case of environmental management laws, it was anticipated in 1996, when the framework agreement was signed, that certain areas of laws could be immediately addressed in the context of an environmental management agreement between a First Nation, the Minister of Indian Affairs and the Minister of the Environment. Provision was also made for the provinces to have the opportunity to participate. The stated goal was to complete the environmental management agreement within one year of a First Nations land code coming into effect.
When the First Nations Land Management Act was passed in 1999 to ratify the framework agreement, the act was worded such that a First Nation could not pass any environmental management laws unless and until the environmental management agreement was concluded.
The environmental management agreement, although originally a well-intentioned device, has proven to be one of the greatest frustrations in implementing the framework agreement. Thirteen years after the First Nations Land Management Act was passed, there are no environmental management agreements in place, due mainly to a lack of funding. As a result, First Nations who wished or needed to enact environmental laws have been unable to proceed.
The proposed amendments will enable the framework agreement First Nations to enact environmental laws immediately after their land codes come into effect. It is worth noting that the proposed amendments will not affect the provisions that require certain environmental standards to be maintained under First Nations laws.
The opportunity for the framework agreement First Nations to partner with provinces and other potential benefactors in matters relating to environmental management and environmental assessment will also be preserved. First Nations are required to harmonize their environmental laws with those of the province in which the First Nation is situated and also ensure compliance with federal standards, where appropriate.
I will close my comments by referencing the housekeeping amendments described to you by Andrew Beynon, which are also part of the proposed changes. These are clauses 632 to 634 and 636 to 652. The chiefs have approved these proposed amendments as well.
Again, I would like to thank you, senators, for providing the Lands Advisory Board with this opportunity to speak in support of the proposed amendments. The board approached Minister Duncan with these changes on behalf of the signatory First Nations to the framework agreement, and we certainly are anxious that they receive approval by Parliament as quickly as possible.
Thank you very much, Mr. Chair and honourable senators, for allowing me to present to you this afternoon.
The Chair: Thank you very much, Mr. Louie. We will now go to the National Vice-Chief of the Congress of Aboriginal Peoples, Mr. Dwight Dorey.
Dwight Dorey, National Vice-Chief, Congress of Aboriginal Peoples: Good afternoon, Chairman Day and committee members. It is an honour and a privilege to speak to you today on the traditional territory of the Algonquin peoples. It is also a privilege to be here today with Chief Robert Louie, Chair of the Lands Advisory Board, and Chief Austin Bear, Chair of the Lands Advisory Board Resource Centre.
I am National Vice-Chief of the Congress of Aboriginal Peoples, formerly known as the Native Council of Canada, which is one of Canada's five national Aboriginal organizations. For 41 years the congress has represented the rights and interests of non-status and status Indians and Metis Aboriginal peoples living in urban, rural, remote and isolated areas throughout Canada.
I would first like to begin by commending the government and the First Nations Lands Advisory Board on the progress that it has made on the First Nations Land Management Act. I understand that there has and continues to be evidence of success with the framework agreement. It is clear communities have taken the opportunity to opt out of the land provisions under the Indian Act and have chosen to control their own land, resources and environment.
Although I live off-reserve, I happen to be a member of the Millbrook First Nation band, where economic development initiatives are of primary importance to the community. In fact, we have a land-use plan in place. Millbrook is a progressive community in Nova Scotia that is committed to trying new undertakings. Our communities' retail park, the Truro Power Centre, is a business enterprise established in 2001. Both Aboriginal and non-Aboriginal take advantage of that. The model for the enterprise is to partner with outside companies.
At that time, it was certainly not a common phenomenon for Aboriginal communities to enter into business partnerships with outside non-Aboriginal companies; yet we did it. Today, our retail park advances our community and the surrounding area with employment opportunities. As a result, the Millbrook band has been successful in generating and sustaining wealth for our community. The band has partnered with General Dynamics Canada on the new helicopter contract for Canada's military. This project allows for Aboriginal peoples to gain employment in skilled technology. Our community has also built apartment complexes worth over $11 million on our land. As well, we have recently been approved for a six-megawatt wind project to contract for renewable energy. This illustrates that greater community planning assists Aboriginal peoples in advancing their communities.
We at the congress view the First Nations Land Management Act as an economic driver. Land use makes sense in creating employment and building a local economy. It all translates into real benefits for community members. I have first-hand knowledge myself of Chief Robert Louie's progress at Westbank and Chief Clarence Louie in Osoyoos.
As I stated earlier, the Congress of Aboriginal Peoples represents the interests of Aboriginal people who have status but do not live in their communities. For many reasons, the migration off-reserve continues to grow. One primary reason for a young person to leave their community is the prospect of employment.
We at the congress identify with our community and want to be part of it, but so often because of a lack of employment opportunities, community members have no choice but to move elsewhere.
I commend the minister and progressive First Nation leaders seeking out other viable options to advance Aboriginal communities, as opposed to holding on to the very limited land provisions under the Indian Act.
It is fair to say I am supportive of Aboriginal communities being given the opportunity to manage their own lands and create more sustainable economic development opportunities. In principle, the congress supports the Framework Agreement on the First Nations Land Management. The questions we would ask are: How will it be a fair process and how will we be informed of our right to vote on the land code and the individual transfer agreement?
The Congress of Aboriginal Peoples' fundamental concern with this act relates to inclusion and that all voices are heard. We are pleased that under this act all band members will have the right to vote, although we need to be assured that an unbiased party will administer the voting procedures in order to guarantee fairness and transparency under this act.
I sincerely hope that my presentation here will assist you in clarifying the issues relating to Aboriginal peoples living off-reserve throughout Canada.
I wish continued success to Chief Bear and Chief Louis and other bands who wants to progress under the First Nations Land Management Act and subsequent amendments.
Thank you, wela’lin and merci.
The Chair: Thank you very much. I have some senators who have indicated an interest in engaging in discussion with you to gain a better understanding of what is in this legislation.
Mr. Dorey, living off-reserve, this does not have a direct impact on you or your place of residence; is that correct?
Mr. Dorey: I would say it does to those members of the band who reside away from the reserve community, yes.
The Chair: But you personally?
Mr. Dorey: As an organization, no.
The Chair: Thank you. Can you tell us how many bands have opted for this particular framework?
Mr. Louie: If I may answer that question, we have 37 operational First Nations today that have passed land codes. We have 25 First Nations that are active in the developmental phase. We have 14 First Nations who have signed as a signatory but are not currently active for one reason or another; and we have an additional 67 First Nations on the wait list, that is, those First Nations who have passed band council resolutions requesting their involvement. If I may add, that represents approximately just better than 20 per cent of all First Nations in Canada who are involved or want to be actively involved in this land management initiative.
The Chair: That is very impressive. When a First Nation or band opts for inclusion in the framework and passing a First Nations land management agreement, could you tell us, then, does that exclude the Indian Act for all purposes or only with respect to land aspects?
Mr. Louie: That only excludes 25 per cent of the Indian Act, the sections dealing with land management. It is an incremental self-government that is taken, and the inherent right of the First Nation then is recognized in their law-making capacity by having a land code in place. The remainder of the Indian Act, the other 75 per cent, will remain until such time as that First Nation goes into another regime like self-government or treaty self-government process.
The Chair: Thank you very much for that background.
Senator Eaton: Thank you very much, chiefs. I am not sure I understand. Currently a First Nation and the minister cannot exclude land from a community's land code when the land's reserve status is uncertain. In other words, if you have a community and there is part of that community that is in dispute, does that mean now, with this amendment, you can go ahead and that dispute can be dealt with later? What does that mean?
Mr. Louie: What is being referred to here is really a First Nation being able to vote once it goes through its process and the community wants to vote and get a land code in place. Currently our problem is fettered. There is no process if you have uncertain boundaries. If you have erosion or accretion on the outskirts of a boundary, for example, where exactly is that boundary? The way it is worded now, the Surveyor General of Canada has to have an accurate description. In these proposed amendments, we are saying that the Surveyor General can put in another method to accurately describe it without having the exact boundaries. That boundary will be an issue that will be and can be resolved at a later date. That is what we are trying to do. Right now, we have had First Nations excluded from going to a vote and having that process so that they can complete it and get on with the business.
Senator Eaton: You talked a minute ago about 20 per cent of First Nations. Do you see that growing in participation where most First Nation communities eventually will opt into this self-government or self-management of the land?
Mr. Louie: I do. I have been involved in this initiative since its inception, and we continually see interested First Nations who want to participate. In this last month, we have had at least two First Nations who have been added to the list and who have passed band council resolutions, have looked at it and heard about it. The success stories that we see across Canada are very overwhelming. It is huge inasmuch as the investment by Canada to assist in First Nations opting into this process, we have calculated through various professional organizations, has about a tenfold increase in economic activity once a First Nation becomes self-regulating and starts passing its laws and getting on with the speed of business that this process will allow.
Senator Eaton: In other words, it almost feels like your private property?
Mr. Louie: I will use my own community as an example, Westbank First Nation. We have gone heavy into economic development, and we are at the point where soon where we will not need to receive any federal monies at all. There are certain conditions, but we are close to that process. We self-generate about 82 per cent of our funding, and only about 18 per cent comes under a self-government agreement today.
Senator Eaton: Why is there a wait list? Why can we not just do this a bit faster?
Mr. Louie: I am sure my colleagues would like to also comment on this. It has been frustrating from the Lands Advisory Board position. We have sought to include the First Nations immediately. There is a problem with Canada providing the funding. That has its consequences. Amendments such as this have frustrated the process simply because the mechanics have not been there, but we know the will is there. The minister has recently supported 18 new First Nations in the last couple of months to be added to this process. We are hopeful that, later this year or later this fiscal year, additional First Nations will also be allowed to participate. With little moneys in the scheme of things that can be inserted into this initiative, we know that the tenfold of returns will be there simply by the work that has been done by these professional organizations who have analyzed carefully the returns that can happen with land management.
Senator Eaton: That sounds very exciting. Thank you very much.
Senator Peterson: Thank you, gentlemen, for your presentation. We had officials from INAC before us a couple of weeks ago indicating that these amendments have been well received and everything is going very well. Do you share that sentiment?
Mr. Louie: Yes, I do. With regard to these amendments, we have certainly lobbied the minister over the past many months to say that we need some improvement to allow for greater efficiency, and the minister has agreed with us. We went to our chiefs who are signatories to the framework agreement, and we had the approval of the chiefs last October to move ahead with these amendments. The minister and the chiefs and I think everyone is on the same wavelength. We need to have these changes so that we can get better efficiency. It will save Canada monies, and we can get more First Nations involved in the land management business.
Senator Peterson: I take it going under this section of the Indian Act has no impact on treaty rights?
Mr. Louie: No. Right now, probably more than two thirds of the First Nations in Canada are under treaty. One of the fundamental principles contained in the framework agreement to this whole land management initiative is that those treaty rights are not to be prejudiced or impacted in a negative sense. We have First Nations who do have treaties that are certainly active and part of this process today.
Senator Peterson: I presume that to initiate this process you must have to hire consultants to provide your land conception map. How long is this process? What are the costs? Do you get any assistance on the costs?
Mr. Louie: The process was initiated in the early 1990s. The framework agreement was signed in 1996, and legislation was finally passed in 1998. My good friend Chief Austin Bear, from Muscoday, was one of the three at the turn of the millennium who implemented their land codes and took over that jurisdiction. We have seen tremendous success since then as a result.
Senator Peterson: I would presume that there would be a number of bands and reserves that would never be able to utilize this opportunity. Would this be a true statement?
Mr. Louie: It depends on the First Nation. It does not necessarily mean that to enter this process the First Nation has to be in an urban setting, for example, or have all of the economic development around it. Some communities in more remote regions, for example the northern part of British Columbia, have opted to go into this land management process to look after timber in the forestry sector. Those are big issues for them because the resources are included with the land. To manage those resources in a better way, First Nations that may not be urban-oriented can have that opportunity. We see the demand.
Other First Nations are simply not ready for various reasons, such as they may not have all of their administration together. We found from experience that we do not need to have a First Nation fully knowledgeable in lands and fully experienced with all the training at hand to be able to participate. For many it is a learning process. It is better to move ahead with that learning process because, first, it accelerates the pace; and second, it brings the community more in tune with how to look after and manage its lands. First Nations, for the most part, want to manage their lands properly; and having the guidelines and law-making capacity accelerates the process.
Senator Callbeck: I want to be clear: Under the current law, First Nations enter into an environmental management agreement with the Government of Canada. This proposed legislation means that that will no longer be required to do that but the environmental law considered by First Nations must be equivalent to the environmental law in place in the province.
Who makes the determination that it is equivalent?
Mr. Louie: Perhaps that question could be answered by the three of us here; and maybe I could take the first attempt at answering the question.
When you have the right to put environmental laws in place, that right should exist now. However, to do so, you must follow certain standards. All of our chiefs in all of the communities accept that we must follow certain standards. The standard accepted by the chiefs is that we would follow, at minimum, the federal standards.
The framework agreement and the legislation provide what is called "harmonization." It must meet or beat the existing standards. We look first to the federal government; and each province across the country has the opportunity to say, "We have these certain standards as well. Can you harmonize your laws?" That process takes place.
The problem that we have had is that when the framework agreement was signed and the whole process initiated, it was felt that we needed to have an environmental management agreement in place between the First Nation, the Minister of Indian Affairs and the Minister of the Environment to work through all the solutions. We found that it was really not needed; and it has never been done. To date, our First Nations who are signatories who have land codes passed have not been able to put forward their environmental laws. There is a flaw because the agreement does not exist.
Under the proposed legislation, we will be able to bypass that process. By bypassing it, we are not saying that environmental management regimes are not needed, because they are needed. We are not saying that standards are not needed; they are needed. Certainly, the framework agreement is clear: We will abide by those changes and at least meet or beat the existing environmental standards, both federally and provincially.
Senator Callbeck: Does the province have to agree that these standards are equivalent to the provincial standards?
Mr. Louie: The way it is worded in this whole land management process is that there is an option for the province to participate; so they can choose to do so or not. For the most part, the provinces will probably choose to participate and be involved.
Certainly, Mr. Aronson has had a lot of input into the wording of this. Perhaps Mr. Aronson can shed more light on this.
Stephen Aronson, Legal Counsel, Lands Advisory Board: I will present a more practical illustration of the issue: Currently, the federal government does not have standards for potable water on Indian reserves. The environmental law authority of First Nations with land codes provides that First Nations could establish the standard for potable water on Indian reserves, provided that those standards are equivalent to the standards in the province. To further illustrate, the province allows so many parts per million of lead in water — I do not know the standards. Similarly, First Nations would have the same standard. They could have fewer parts per million of lead in water, but they could not have more PPP than the provincial standard. Each province sets its own standards for water. The federal government has no standards. When it comes to Indian reserves, the department applies the provincial standard. If the First Nation decides they want to install their own water filtration system to be available throughout the community, the standards they adopt would have to be at least the same as those of the province.
In many situations, as Chief Louie and others around this table are aware, First Nations water systems are connected to local municipal systems, so it is not necessary to adopt specific standard because the standard is already there. You are just connecting your system onto a municipal water system. That provides a practical example of what we are speaking of.
Senator Callbeck: Yes, it does. Who makes the decision that the environmental law passed by the First Nation equates or betters the provincial law?
Mr. Aronson: The First Nation.
Senator Callbeck: Okay.
You mentioned "ensure compliance with federal standards where appropriate." Give me an example of a situation where both federal and provincial standards would have to be met.
Mr. Aronson: It is unlikely that you would see both where the provincial standard is different from the federal standard. With respect to environmental protection, there is a significant amount of cooperation between the provinces and the federal government in terms of who is doing what. The provinces tend to legislate in certain areas of environmental protection, such as potable water and waste management.
The federal government's environmental protection laws often deal with more complicated areas, such as discharges from smelters or pulp and paper plants or effluents allowed in water and so on, which are national standards.
Generally speaking, First Nations would tend to deal with environmental protection laws that are currently dealt with by the provincial legislation because this is where the gap is, where there is no current regulation on Indian reserves, water being the best example and waste management as another example. These are areas legislated currently by provinces, not by the federal government. As a consequence, this was intended to fill that gap where there was no standard, no legislation and no regulation.
Senator Callbeck: Chief Dorey, I was interested to hear your comments on the retail park near Truro because I have driven by that many times and I have watched it grow and develop through the years. I certainly congratulate you on what has been accomplished there. How many people are employed there now, roughly?
Mr. Dorey: The numbers vary because there are a lot of indirect jobs created as a result of that. With the ongoing progress — there are facilities under construction right now — it is several hundred, but I could not tell you the exact number employed at the moment.
Senator Callbeck: What are your projections for five years down the road?
Mr. Dorey: I am sorry; I do not have that information.
Senator Callbeck: How many acres are there?
Mr. Dorey: There are roughly 700 to 800 acres.
Senator Callbeck: Again, my congratulations.
Mr. Dorey: Thank you.
The Chair: To clarify the point that was just made, initially there was, under the old regime, before these amendments were proposed, a requirement for environmental protection legislation. That was never done with any of the First Nations, but it was a requirement.
Now these amendments are doing away with that requirement, being substituted by an obligation put on the First Nation to pass environmental legislation and have an environmental plan, at least to the national and provincial standard. Do I understand that correctly?
Mr. Louie: That is basically correct, Mr. Chair.
The Chair: How do we know that will take place? What sanction will be in place for that?
Mr. Louie: The framework agreement and the legislation are still very clear that certain standards have to be met. Because those standards have to be met and there must be an environmental land management regime in place to ensure that those standards are met, that is a comfort that you see there.
In my own community, for example, we are now a self-governing nation. We have gone one step beyond what this land management initiative can do for a First Nation. We are very careful as a First Nation to address environmental issues of concern, and as a matter of course we will always have experts involved in each lease and each development that takes place.
Looking across the country and seeing all the developments, whether they are shopping centre developments or housing or gas stations or whatever, I see all First Nations very much concerned about environmental standards. I am very comforted from being around the chiefs, knowing the communities and knowing how land development occurs on reserves that these are very fundamental issues that will be met. I would not suspect or suggest that any standards will be lower than what is needed.
The Chair: Thank you.
Senator Ringuette: Thank you. In your statement, Mr. Louie, you said that in addition, the proposed amendment provides that a legal description will be any description the Surveyor General of Canada considers sufficient to describe the land.
You are saying that automatically you will agree, or any band will agree, with whatever description is provided by the Surveyor General of Canada. Am I correct?
Therefore, you will no longer have any say with respect to any kind of previous dispute in relation to those boundaries; it will be at the legal description of the Surveyor General. Is that right?
Mr. Louie: If I may, let me be very clear on this. A First Nation certainly will not agree that because the Surveyor General says these are how the lands are going to be described that the First Nation is going to lose that particular land. Lands, we know, have been in dispute in some cases, and in some cases through erosion and accretion and matters of that sort there is uncertainty, yes. There is a very clear mechanism in the legislation and in the framework agreement that these are matters that will be resolved down the road.
Senator Ringuette: Yes, but how?
Mr. Louie: In some cases, through negotiations.
Senator Ringuette: There is no dispute resolution mechanism?
Mr. Louie: There is a dispute mechanism in the event that one cannot agree. That is contained in the process.
Senator Ringuette: What is it, if you cannot agree?
Mr. Louie: That it will go to arbitration.
Senator Ringuette: Arbitration at what level?
Mr. Louie: I will see if I can find a section in the framework agreement that I can refer to. Perhaps Mr. Aronson can assist me.
We have had some discussion with some of the First Nations where there are problems and there has not been resolution. There have been historical issues that have happened with First Nations that have remained for close to 100 years; they are still not resolved.
Senator Ringuette: I know, and that is what I am trying to determine, how these proposed amendments will provide you with an efficient and concise boundary dispute mechanism so that you can move forward with the framework agreement.
If the only thing we are doing is changing words here, that will not provide for an efficient dispute mechanism with regard to land boundaries and we are not accomplishing anything here.
Mr. Aronson: If I could add to that, part of the objective of this particular amendment is that there have been disputes between the Surveyor General of Canada and First Nations over, for example, a specific boundary of the reserve. This amendment says that on an interim basis, in order to allow the First Nations to move ahead with the land code, we can put a dotted line instead of a straight bold line as the boundary in dispute. The dispute can continue, for example, if it is a specific claim, it can go either to the Specific Claims Tribunal or it can be dealt with through a specific claim.
Similarly, in the individual transfer agreement, it may be a question of taking a long time to get all of the survey work done. Sometimes it can take several years to get all of the survey work done, depending on the location. On an interim basis, this will be the boundary, and when the survey work is completed, then the boundary will be finalized and the First Nation will be able to assume its authority over the full area of land.
The purpose of this is to use as appropriate, whereas currently, the Surveyor General is bound by the Canada Lands Surveys Act, which requires specific criteria in order for a survey to be approved.
Now the surveyor general is not bound by those criteria. A good illustration is that many reserves are centuries old, and the boundaries when they were originally established were established from a rock over by a lake to a tree 50 chains away. The tree may no longer be there, so there may be some dispute because a third party has had land grants issued to them that may overlap that boundary. This can take some considerable amount of time to resolve. On an interim basis, the parties can agree, without prejudice to a final boundary, that the First Nation can assume authority under its land code and approve a land code with an interim legal description. Essentially, this allows things to move ahead more quickly, and if the boundary cannot be resolved over the long term, the parties are still free to litigate or do as they would do in other situations where there is a boundary dispute.
Senator Ringuette: I understand what you are saying. I still have a lot of doubt, especially if a band decides to undertake a certain economic project on a disputed area of the land. You are only quadrupling the current problems. I certainly have concerns, because I think that if there were some amendments to bring forward, this would have been an efficient speedy process in relation to disputed land claims, not to say, "Well, we will create this fuzzy grey area, and the band can do something." Unfortunately, if the band does something on one of the greyest areas, it can invest millions of dollars and have a partner invest another million dollars, and that area continues to be in dispute and we are only aggravating the current problem. That is my concern. It might not be a concern for the legal community, but it is certainly, from my perspective, a concern that I see.
Mr. Louie, do you want to add something?
Mr. Louie: There are hundreds of disputed claims throughout Canada with First Nations, maybe into the thousands. First Nations have been waiting years — many, many years — to have some of these disputes resolved. In some cases, it will require litigation, and that will be the only way. In fact, it has occurred in various forums. It may only be one corner of one piece of the property. If you have several thousand acres and you have five or ten acres in dispute in a corner somewhere, there is a river or there is a dispute there, why stop the process so that you cannot even pass a land code in place by the community? That is what we have right now. Without the accurate description, without those solid line boundaries in place, the community cannot go ahead. All we are saying in this is very simple: Allow us to move ahead. We will agree to what the Surveyor General's description will be because it will have to be in a general format.
By the way, there is clear language in the legislation and in this whole process that protects the right both from the First Nation and the Crown to resolve it or to finalize that. In some cases, it is will be by dispute resolution or mediation or arbitration. We have the clauses in our framework agreement. For example, Part 9 contains a whole section on dispute resolution that we can go through that will involve arbitration and mediation, and of course the courts are the final decision.
Given the frustration of waiting a long time to move, we just cannot move, and the First Nations cannot progress. We know in some cases that it will be maybe hundreds of thousands of dollars of costs, maybe million or multimillions of dollars. Certainly by looking at how land claims are being settled, both specific and in general resolution of those issues, it has taken years. If there can be a way to speed up that process, yes, I would agree to it, but in this case, the First Nations are looking forward to allowing us to move with a land code so that we can get on with the business with the rest of our reserves, and we will do that. In time, we will have this other disputed section resolved.
Senator Ringuette: Do not get me wrong, I understand what you want to accomplish. My only hope is that this in-between process is not adding to the problem on a medium and longer term for the resolution of the different disputes that you may have. That is my concern.
You also indicated that there was no environmental management agreement in place due mainly to a lack of funding. Funding from whom? From Aboriginal and Northern Affairs or funding from the band?
Mr. Louie: Funding from Canada to allow a First Nation to get into the developmental phase and to proceed with development of its land code.
It is always a difficult situation, and we have experienced it from the beginning, that Canada only has a budget of X amount of dollars, and there are more First Nations that want to enter the process than Canada can provide for in those dollars. That has been a problem. Hopefully it is now being remedied and, with these last 18 First Nations that have been allowed to enter and are now being supported financially by Canada, it is moving ahead in the right direction. If there were more dollars allocated by Parliament for land management initiatives and developments of land code, I can assure the honourable senators here that the returns would far outweigh any costs by Canada at this particular point in time.
Senator Ringuette: You are saying to us that with the current transfer of land that will be able to happen through these amendments, the bands have the funding to do the environmental management and the legislative or bylaw requested for the environmental land plan?
Mr. Louie: What I am saying and what is actual fact is that there is a budget that Canada has provided that allows for land management to occur, both at the developmental phase and in the operational phase. From that budget, it is being supplemented by the First Nations as well. We have 37 that have passed land codes and, in all of those instances, those communities operating with land codes in place and doing their own jurisdiction have all supplemented in various amounts, and in some cases far more than double the dollars that Canada has been providing to allow land management to proceed. I see that process carrying forward.
Senator Ringuette: You are saying that you are comfortable that with the lands that will be transferred under the framework agreement, the local band has the funds to define land management and an environmental land management plan and the bylaws that are necessary?
Mr. Louie: Well, let me put it this way, if I may: We operate with what is provided and what we can each put forward. It is a choice of the First Nation to make that decision. Can it afford land management? In my opinion, the only answer is to take control of lands and resource management to be able to afford it. To do otherwise, I think, it will not go anywhere. I have seen First Nations, and I know you have heard of First Nations, that have serious problems, economic and otherwise, with land management and the jurisdiction afforded to a First Nation.
When one First Nation takes charge of its own lands and resources, experience has shown — and the proof is there — that the First Nation will far exceed economic and educational endeavours in moving the communities ahead than had it not been involved in land management or in any form of self-government jurisdiction.
Senator Ringuette: I certainly want to believe you. I hope that will be the story and the history in the next few years.
Senator Buth: Thank you very much for being here today, chiefs. We appreciate it. I want to applaud your leadership in this area. It is a new issue for me. I have really appreciated learning about this whole process.
How many individual signatories are there to the First Nations land management regime?
Mr. Louie: Offhand, I believe there are between 57 and 60 signatories today.
Senator Buth: You might have done this partially in your introductory comments, but can you review how all of these individual signatories were consulted in this process?
Mr. Louie: The process is such that the Minister of Aboriginal Affairs, or the representative of the minister, has to approve the entry of the First Nation as a signatory. What has happened in the past year is a questionnaire form that goes out, which the Department of Aboriginal Affairs will require to be answered. The First Nation must provide those answers.
Up to that point in time we had a list of First Nations — waiting for more than 10 or 15 years in some cases — wanting to be added. With this new process it is clear there are certain requirements that must absolutely be met. It is filled out in a questionnaire and must be done such that it convinces the minister and the department that this First Nation is, indeed, capable of managing its own land management affairs and is ready to move ahead with the process.
Senator Buth: Areas close to urban centres have the ability to do much more in terms of economic development. You mentioned forestry and the use of natural resources. Are any First Nations bands taking a look at more economic development in the area of agriculture?
Mr. Louie: Yes, there are. Perhaps Chief Austin Bear can help answer that question.
Chief Austin Bear, Lands Advisory Board Resource Centre: Thank you and good afternoon, senators. I am from the great province of Saskatchewan, perhaps still the breadbasket of Canada. Much of our land is based on agricultural usages. My own First Nation is agricultural lands.
About 80 per cent of our lands are cultivated lands and in seed or oil crops. Much of our land is also leased to neighbouring farmers that surround our community. Our community has actually been an agricultural community and had an agricultural livelihood for over 100 years.
Senator Buth: Thank you very much.
Senator Ringuette: I have a short question for Mr. Dorey.
You brought up the issue of fairness in voting and inclusiveness. That is puzzling. First, I do not know if band members living off-reserve are currently entitled to vote in band elections. Are you?
Mr. Dorey: In some situations they are; in others they are not. It depends on the band and what part of the elections regime it comes under.
Senator Ringuette: Who decides that?
Mr. Dorey: The band decides that.
Senator Ringuette: Your concern is basically that some bands will allow members living off-reserve to vote on these issues of land management and some will not.
Mr. Dorey: Yes. It is in this piece of legislation under the requirements; it includes off-reserve. My concern is that it is done in a fair, open and transparent way. My suggestion was that maybe it could be an independent type, Elections Canada for example, or some other body to conduct the vote.
Senator Ringuette: The vote on the band election or the vote with regard to this particular issue of land management?
Mr. Dorey: Yes. I am not here to talk about band elections; I am here to talk about this code.
Senator Ringuette: Good. I wanted to clear that up.
You are saying that within the framework there are provisions for this particular issue of band members living off-reserve, and that they will vote on this issue?
Mr. Dorey: That is correct. Basically I am saying that every band member has the right to a say in how the business is conducted on their land. It is their land as much as it is the residents’, regardless of where they live. That has nothing to do with elections because I know there are cases where some bands do not provide opportunities for residents off the land to vote in elections. In the case of land management, I believe they should have everyone involved.
Senator Ringuette: Good.
The Chair: Chief Austin Bear had a comment to make in relation to your question as well.
Mr. Bear: Mr. Dorey is correct. The framework agreement is absolutely clear that on the ratification vote, approving the land code and the individual agreement, both band members living on-reserve and off-reserve must vote. There are procedures to do that.
On the independence of the vote, there are also provisions — there is an independent verifier — that the land code is in accordance with the framework agreement and that the procedures for vote are followed as prescribed. There is also a ratification officer applied by the First Nation so that the vote is in accordance with the provisions. It is not the First Nation that appoints the independent verifier. We at the Lands Advisory Board Resource Centre make recommendations on trained and accomplished verifiers, but it is actually the Minister of Aboriginal Affairs that makes the appointment.
Senator Ringuette: Okay. There is actually no concern with regard to voting because it is already taken care of within the framework?
Mr. Dorey: Yes, as it is proposed. However, we are into a process of adopting this. Amendments can be made. I am just throwing out caution here.
Senator Ringuette: Okay. Thank you.
The Chair: I just have one final question, and maybe it is a legal question for Mr. Aronson. The introductory remarks indicated that these amendments to the framework agreement had been agreed to in October 2011. Can you tell us what has happened to these amendments up until now when we find them in this piece omnibus legislation that is supposed to have flowed from a budget this spring?
Mr. Aronson: You would probably have better knowledge of how it came into a omnibus bill than I would.
I should point out that these particular amendments took close to two years to negotiate with the Department of Aboriginal Affairs because we had the Surveyor General of Canada and Natural Resources Canada involved in the negotiations of part of it. It then goes to drafting, where lawyers from both the Lands Advisory Board as well as the Department of Justice are involved in drafting the language so that it meets the objectives of the parties. We then have to prepare appropriate documents at times when those First Nations who are signatories to the framework agreement can sign the amendments to the framework agreement. We also have to schedule the minister to sign those amendments on behalf of the Government of Canada. It is only once the framework agreement and the amendments are actually signed that the drafting process can begin.
When we were initially in discussions on drafting the amendments to the legislation you have before you, it was on the basis of a stand-alone bill. As a consequence of government policy, it is now part of an omnibus bill. To give you an illustration, one of the main issues that we were discussing was the title of the amending bill, which, obviously, now has no title. Therefore, we had no need to discuss it. That, in itself, was several months in the making, coming to nothing in the end.
I hope that answers your question.
The Chair: It does. I was asking you to comment, from a legal point of view, on Mr. Louie's comment that everything was finalized back in October of last year. Did you have anything to add to that, Mr. Louie, since it was your comment?
Mr. Louie: Let me try to explain that. We have two processes of ratification. First, we have the First Nations ratification, and, second, we have the minister's and Canada's ratification process.
The legislation itself is Canada's ratification process. The First Nations have ratification by passing a land code. To get the support of the First Nations, we needed to have a vote and to have all of the chiefs operating in the process — those who have land codes — to say, "How will we be affected by this? How will it affect our colleagues who will come into the process and who are in the developmental phase?" We had input from both the operational and developmental First Nations. It was clear for us that we had to understand, as leaders, that this would be something that we could support rather than something forced upon us. That is the process that has been entered into.
The legislation itself contains explicit reference to the Framework Agreement on First Nation Land Management. As chiefs and as leaders of our communities, we always refer to the work pertaining to the Framework Agreement on First Nation Land Management. The Lands Advisory Board itself has a membership consisting of those operational First Nations. We must support any changes that might have an impact upon us or upon the process. It is that process that the chiefs agreed to last fall and that was given to the minister's representatives. Finally, it went to a meeting with the minister, who had agreed to say, "Yes, I accept your recommendations. I will see what I can do to now get Canada to ratify what you wish to have ratified." It is that particular process of ratification that I was referring to that was essentially agreed to. We had the minister's support that he would proceed and do what he could to make these amendments. The result is Bill C-38.
The Chair: Thank you. There was no discussion as to where it was going to come out or whether it was going to be a stand-alone bill or part of something else? There was no discussion since it was agreed to in October of last year?
Mr. Louie: No, not really. Our understanding, I think, was that it was going to be a stand-alone piece of legislation. We thought that that was the process. We were not concerned about the process so much as amendments taking place that will allow us to move forward in a more efficient and cost-effective way.
The Chair: I understand that. We are pleased that you were able to be with us here today to explain the importance of this to your various First Nations. I would like to thank, on behalf of the Standing Senate Committee on National Finance, each of you — Chief Robert Louie, Chief Austin Bear, Mr. Aronson and Mr. Dorey — for being here. Thank you for being here and for helping the Senate to understand the importance of this piece of legislation to you.
(The committee adjourned.)