Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 6 - Evidence
OTTAWA, Thursday, April 24, 1997
The Standing Senate Committee on Aboriginal Peoples , to which was referred Bill C-39, respecting the York Factory First Nation and the settlement of matters arising from an agreement relating to the flooding of land, and Bill C-40, respecting the Nelson House First Nation and the settlement of matters arising from an agreement relating to the flooding of land, met this day at 7:24 pm(null) to give consideration to the bills.
Senator Landon Pearson (Chair) in the Chair.
[English]
The Chair: We are a quorum. We would like to thank you very much for waiting so long.
Senator Johnson and Senator Taylor spoke very comprehensively on these bills in the chamber this afternoon, but would you please make a couple of introductory comments for the record.
Mr. Terry Henderson, Director General, Claims Implementation Branch, Claims and Indian Government, Indian and Northern Affairs Canada: Madam Chair, as members of the committee are no doubt already aware, Bill C-39 and Bill C-40 are required to facilitate the implementation of certain provisions of the York Factory and the Nelson House Implementation Agreements which were signed in late 1995 and early 1996. Those implementation agreements comprehensively address the 1977 Manitoba Northern Flood Agreement as it applied to the York Factory and the Nelson House First Nations, enabling a much improved fulfilment by all four parties to those agreements of their respective obligations under the Northern Flood Agreement.
To be clear, Bills C-39 and C-40 are not intended to give effect to those implementation agreements. The signings of those agreements by all parties in 1995 and 1996 respectively have already done that. They have been given effect. The implementation agreements already have full force and effect under law, as does a similar implementation agreement signed with the Split Lake Cree First Nation in 1992.
The two bills, once enacted, will simply ensure that certain provisions of the agreement can be fulfilled as contemplated. There are four particular provisions. The first is that moneys paid under the agreements will not be treated as Indian moneys under the Indian Act but will rather be administered as a trust on behalf of First Nation members pursuant to certain terms of the agreement and the trust indenture. The second is that certain lands to be provided to the First Nations will be treated as fee simple lands rather than as reserves under the Indian Act. The third is that claims under the Northern Flood Agreement will be handled according to provisions of the implementation agreements. The fourth is that Canada is able to use or to access the Manitoba Arbitration Act when dealing with any dispute among the parties which is submitted to arbitration.
These bills are designed explicitly for York Factory and Nelson House First Nations. They will affect no other First Nation within Manitoba or the country. They have been drafted almost identically to a similar bill for the Split Lake Cree First Nation which created the Split Lake Cree First Nation Flooded Land Act that was proclaimed in December of 1994.
The three implementation agreements which have already been signed with three of the five northern flood First Nations have been implemented and there are two other agreements which are at various stages of negotiations with the remaining two First Nations.
Senator Watt: You said that it is not reserve land. I would imagine that reserve land was affected by the flood. Is it correct to assume that the land was flooded?
Ms Sandy Jackson, Manager, Claims, Manitoba, Indian and Northern Affairs Canada: In all the northern flood communities there was land that was flooded as a result of the hydro project.
Senator Watt: That was reserve land?
Ms Jackson: Yes, it was reserve land. Under these agreements, the province has agreed to provide the First Nations with fee simple land in addition to compensation land which will be designated as reserve. So we are dealing here with the fee simple parcels of land.
Senator Watt: This in no way affects the size of the reserve lands?
Mr. C. Kenningham Marchant, Legal Counsel, Indian and Northern Affairs Canada: The reserve lands that were flooded remain reserve lands. It will now be regularized by Manitoba Hydro getting an easement with very defined and limited rights. The bands will get about 20 acres of land in new reserve land for each acre that was affected by the project. That is the main compensation. This legislation does not deal with the new reserve land which is the main part of this agreement. It only deals with one parcel of land in each of the York Factory and Nelson House cases, which will be fee simple.
In the case of York Factory, it is one parcel that they have selected in the town of Churchill. It is quite a distance from their reserve. In the case of Nelson House, it is a parcel which has a gas station and restaurant on it which might become reserve or might become fee simple. This is simply to provide for that option. The main compensation is these hundreds of thousands of acres of land.
Senator Andreychuk: All legislation that comes before us is to be subject to scrutiny in the Department of Justice to ensure that it complies with the Charter of Rights. Has that been done with these two bills? You need a certificate.
Mr. Marchant: I am not authorized by the Department of Justice to supply the certificate. This legislation was drafted by the Department of Justice and was presented through the normal channels. I would assume that that has all been done. It was not independently drafted. I did not draft it. I did advise on the agreements, but the legislation was prepared in the normal course and submitted through the regular channels by legislative drafting counsel.
Senator Andreychuk: Perhaps that has fallen through the cracks. Usually we want to be assured that legislation is in compliance with the Charter provisions, particularly in areas of new territory. I fully appreciate that there were other acts before that, but I think we should have that.
Did any opposition surface to the final product? Obviously there were discussions and negotiations and the bands would have some process of getting agreement with the settlement.
Are you satisfied that the processes which the bands should have gone through were in fact followed and that there is no dissent on these agreements?
Mr. Henderson: Ms Jackson can speak to the consultation, negotiation and ratification processes that were followed.
Ms Jackson: In all of our negotiations for these implementation agreements we ask the First Nation to ensure that there is community consultation on an ongoing basis throughout our negotiation process. We also ask, as part of the agreement, for a community consultation report, which records the activities that have taken place at the community level.
All of this leads up to the ratification vote. In order for the membership at the community level to be able to cast their vote and be aware of what is going on, the consultation process is extremely important. We know from the reports and from discussing at the regional level with members of the community that the community consultation process has taken place. Community members are very well informed about what is in the implementation agreements and they have had an opportunity to feed into discussions at the negotiating table.
Senator Andreychuk: Has any group come forward from either York Factory or Nelson House expressing dissatisfaction or opposition to this?
Ms Jackson: There are always people and groups who come forward expressing dissatisfaction, but both ratification votes were overwhelmingly in support of going forward with this agreement.
Senator Andreychuk: My first question was with regard to whether there was a process which the bands utilized. You were satisfied, on behalf of Indian and Northern Affairs Canada, that they had not deviated from their own rules in any way and, therefore, are reasonably certain that these agreements are acceptable according to the practices, procedures or laws within the band?
Mr. Henderson: I believe that is true.
Senator Andreychuk: We need that on the record.
This has been a very long process. Is this now a precedent for those band in any further expropriations, et cetera, or does it just bind that incident and the results of the Manitoba Hydro project? Does it set a precedent for them or anyone else in any way?
Mr. Marchant: These agreements are with the First Nations which are concerned with them and do not bind anyone else. Obviously, the presence of such agreements is something at which others will look when other similar agreements are implemented.
There is a hydro project which has been partially built in Northern Manitoba and which may in the future include some other dams and control structures. Both these agreements and the Split Lake Cree Agreement will put in place flooding easements which will stipulate to what level flooding is allowed. That will apply for the whole project, including future developments, so long as they do not exceed those levels. So it is a final settlement by agreement for that.
If, however, they have a future development which were to require a change, they would have to negotiate with the First Nations and with Canada at that time.
Senator Andreychuk: So that when the ratification process came, the First Nations involved would have been aware that it binds the future expected project?
Mr. Marchant: Yes. The First Nations were independently advised in both of the cases before you, not only by legal counsel but by experts in hydrology. There is a particular part of the agreement that deals not only with future development but with the limited water regime within which Manitoba Hydro will operate and outside of which it will pay further compensation. That is set forth in detail in these agreements.
Senator Andreychuk: Should the government of Manitoba or the federal government, by implication, want to change the project substantially, it would necessitate a new negotiation, would it not?
Mr. Marchant: That is correct, and that is a Manitoba Hydro obligation, not a federal obligation. Both agreements contain a specific article on what is called "future development" which impose on Manitoba Hydro obligations to notify the First Nation at the earliest possible stages, to consult with them, to provide funding for the necessary expertise they will require, to enter into compensation negotiations, to take it to arbitration if required, to go to Canada and ask the consent of the First Nation if they need a new easement or amended easements, and so on. It is all laid out. There is a specific process.
Senator Andreychuk: I understand because I have read all the documentation, but I am concerned that projects sometimes get changed. Sometimes the change is substantial in the eyes of some people while others think they are still on the same track.
The point of dispute could be that if the Manitoba Hydro project changed substantially it would negate this agreement and we would be into a new ball game.
Mr. Marchant: I think there was an attempt in the negotiations to deal with this issue directly in the following way: A "future development" is defined as something which will have a material, non-trivial effect on that First Nation or on its resource area. If the First Nations felt a future development had a large impact and Manitoba Hydro thought it did not, we have an arbitration article to resolve that dispute. So I do not think it negates the agreement at all. It would simply be a category of dispute which this agreement has already foreseen and it would be dealt with pursuant to it, initially through consultation and, if that did not resolve it, through arbitration.
Senator Andreychuk: Conceivably, if the arbitration determined that it was so substantially different that it did not comply with the terms and objectives originally contemplated, it would reopen the issue?
Mr. Marchant: Yes, but I think it would invoke enforceable obligations against Manitoba Hydro to consult and to compensate. If necessary, they could apply to a court to get an injunction to stop Manitoba Hydro because there is an explicit statement in both these agreement that Hydro will not start building a new dam until compensation is in place and, if necessary, easements or amended easements are in place.
At the table we certainly all understood and expressed the view that an injunction could be applied for against Hydro if they did not comply with that.
Senator Andreychuk: So that formed a part of your negotiations and discussions?
Mr. Marchant: Yes.
Senator Watt: On the point that Senator Andreychuk is raising, does the extinguishment provision apply, extinguishing the rights of the aboriginal people in exchange for this?
Ms Jackson: No.
Senator Watt: It does not apply at all?
Ms Jackson: No. There is no extinguishment involved.
Senator Johnson: Are there any other cases of flooded lands in the province right now specifically relating to the First Nations?
Ms Jackson: We currently have two other negotiations ongoing; Norway House and Cross Lake. There were five First Nations involved in the signing of the Northern Flood Agreement. We have now done implementation agreements with three of those five and there are two sets of negotiations ongoing.
Senator Johnson: When will those be resolved?
Ms Jackson: With Norway House we have finalized the document and we are waiting for the call for community ratification. That is in the court of the First Nation. They are the ones who call the community ratification.
We are still in negotiations with Cross Lake. We are trying to complete this by September of this year.
The Chair: Will you please explain to me what fee simple is.
Mr. Marchant: Fee simple is the ordinary form of ownership in common law jurisdictions. If you own a house or land, that is probably the form in which you own it. In this context it is different from reserve land, which is held by the Crown in right of Canada for the use and benefit of a particular First Nation.
A fee simple parcel of land is land that they would own through a band corporation or First Nation corporation and deal with in the normal course.
Senator Milne: They would hold it outright?
Mr. Marchant: Yes. And it is potentially subject to taxation, provincial laws and so on. It is ordinary land ownership.
The Chair: Thank you. That is helpful.
Senator Milne: I move that we dispense with clause-by-clause consideration and report Bill C-39 without amendment.
The Chair: Is that agreed?
Hon. Senators: Agreed.
Senator Milne: I move that we report Bill C-40 without amendment.
The Chair: Is that agree?
Hon. Senators: Agreed.
The Chair: Thank you very much.
Mr. Henderson: It was our pleasure.
Senator Andreychuk: Before we adjourn, I should like to correct something for the record. Senator Taylor's remarks in the chamber need to be dealt with. Unless there were meetings of which I was not aware, I certainly support the Chair's contention that we never discussed the content of the bills. We talked about the procedure and a plan of action. I hope that that will be pointed out to Senator Taylor.
We have always worked in this committee cordially and rather informally. When we say that we have read the material, we are speaking on our own behalf, not binding the leadership.
There was an unfortunate series of statements made, particularly for this committee which has struggled for so long to get its place among all the other committees. I hope that Senator Taylor is advised of the process in order that Senator Anderson will not be the subject of further discussion in the chamber when it is Senator Andreychuk who should be referred to.
The Chair: The Chair will act as requested.
Senator Andreychuk: I will support you.
The committee adjourned.