Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 17 - Evidence
OTTAWA, Wednesday, May 30, 2007
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-6, to amend the First Nations Land Management Act, met this day at 6:15 p.m. to give consideration to the bill.
Senator Gerry St. Germain (Chairman) in the chair.
[English]
The Chairman: Good evening, ladies and gentlemen. It is my pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. I am Senator Gerry St. Germain from British Columbia, and I have the privilege the chairing this committee.
Today our committee is examining Bill S-6, to amend the First Nations Land Management Act. First let me introduce some of our very capable members of the committee. I will start on ;my right: Senator Larry Campbell from the province of British Columbia; Senator Robert Peterson from the province of Saskatchewan; Senator Charlie Watt from Northern Quebec; Senator Leonard Gustafson from the province of Saskatchewan. On my left we have Senator Sandra Lovelace Nicholas from the province of New Brunswick; and last, but certainly not least, the very capable Senator Elizabeth Hubley from Prince Edward Island.
Bill S-6 will amend the 1999 First Nations Land Management Act in order to incorporate civil law concepts specific to Quebec, with a view to enabling Quebec First Nations communities to participate in the act's alternative land management regime.
Today, honourable senators, from Indian and Northern Affairs Canada, we have with us Ms. Caroline Davis, Assistant Deputy Minister, Lands and Trust Services, and Mr. Paul Fauteux. Perhaps he could explain his capacity with the department after I have introduced everyone.
We also have with us Mr. Karl Jacques, Acting Senior Counsel, Justice Canada, Operations and Programs Section.
We are also pleased to welcome Chief Austin Bear from the First Nations Land Advisory Board. Chief Bear worked on Bill C-49 in 1999, which goes to show how long we have been around here.
From the Essipit Innu First Nations' Council, we would also like to welcome Chief Denis Ross; nice to see you again, Chief Ross.
Mr. Fauteux, perhaps you could explain your position within the system.
Paul Fauteux, Director General, Lands Branch, Indian and Northern Affairs Canada: With pleasure. I am Director General of the Lands Branch, which forms part of the Lands and Trust Services sector of the department. I had the pleasure of appearing before this committee in the last Parliament, seeking its support for the First Nations Oil and Gas Management Act and First Nations Commercial and Industrial Development Act.
The Chairman: The floor is yours, Ms. Davis.
Caroline Davis, Assistant Deputy Minister, Lands and Trust Services, Indian and Northern Affairs Canada: Good evening, senators. I would like to suggest that Chief Austin Bear go first, if that would be agreeable to you.
The Chairman: Certainly.
Chief Austin Bear, First Nations Land Advisory Board: First, I would like to say good evening to the honoured senators and distinguished guests gathered at this hearing.
I am very pleased to appear before the committee tonight on behalf of the First Nations Land Advisory Board representing the First Nations parties to the Framework Agreement on First Nations Land Management. I am the Chair of the Finance Committee of the First Nations Land Advisory Board, and I speak tonight on behalf of Chief Robert Louie, Chairperson of the First Nations Land Advisory Board, for the rest of the executive, as well as for the First Nations we represent.
I also speak to you this evening as the Chief of the Muskoday First Nation in Saskatchewan. We were one of the first three First Nations to ratify the framework agreement. In fact, we ratified the agreement before Parliament ratified it by enacting the First Nations Land Management Act in June 1999. Muskoday has been managing our reserve lands and resources under our own land laws since January 2000, more than seven years ago.
This evening the land advisory board speaks in support of Bill S-6, which incorporates into the legislation the bijural amendments we have made to the framework agreement.
Let me say a few words about why the land advisory board supports Bill S-6 and give you a bit of history.
When the 14 First Nations signed the framework agreement as a government-to-government agreement with Canada in 1996, the only First Nations that could take up this opportunity of land management under its terms were these original 14 First Nations. The framework agreement was not open to any other First Nation at that time, which is why the framework agreement was expressed only in common-law terms.
There were no First Nations parties from Quebec among the original 14. Until such time as the framework agreement was opened up beyond the original group, there could not be any First Nations from Quebec or any other province in Canada that was not an original signatory to the agreement.
The framework agreement has been an evolving process. Between 1996 and 1999, the chiefs amended the framework agreement twice and three First Nations — my own included — had ratified the framework agreement by giving community approval to their own land codes.
We could not become operational, however, until Canada fulfilled its commitment under the framework agreement to also ratify the agreement. That was done when the First Nations Land Management Act was enacted in June 1999. Honourable senators will note that the stated purpose of the First Nations Land Management Act and its expressed terms are to ratify the Framework Agreement on First Nations Land Management and to bring it into effect.
At Muskoday, now that we had ratification on both sides, were able to proclaim our land code into full force, and that is what we did at the turn of the new century. At that point, a review of the framework agreement was conducted and discussions began about opening it up to new First Nations.
In anticipation of that happening, the framework agreement was amended again in 2001 to facilitate the addition of new parties and to address the fact that we would have far more than 14 First Nations signatories within a few years' time. If you are keeping count that was amendment number three to the framework agreement.
As it turned out, the framework agreement was opened up to additional First Nations in 2002-03, bringing the total number of First Nation parties to 30; and it has grown since to 47, with 17 of them operational under their land codes. As of this date, 18 are operational; the Burrard First Nation in British Columbia has recently successfully ratified their land code. However, that is getting ahead of the history a bit.
It was also in 2003 that the land advisory board proposed a further amendment to the framework agreement to add bijural terminology so that the process would be more accessible to First Nations in Quebec. After much discussion, Canada agreed in 2006 to negotiate a bijural amendment; that was a successful negotiation.
Amendment number four is now in place, and in the meantime our friends and colleagues from Essipit have become signatories to the framework agreement as well. We welcome them here, as we have formally in our own sessions.
Bill S-6 brings the First Nations Land Management Act into harmony with the framework agreement. If you look, senators, to the text of the summary that is in the printed version of the bill, it reads:
This enactment amends the First Nations Land Management Act to incorporate, to the extent provided for by the Framework Agreement on First Nations Land Management, the concepts and terminology of the civil law of the Province of Quebec.
For the First Nations parties to the framework agreement, Bill S-6 represents another step in the harmonization of Canada's affirmation of and commitment to the framework agreement. It is truly a national agreement, equally accessible to the First Nations in all provinces who become signatories to it. This is all part and parcel of our vision for the framework agreement, and we encourage this committee and the Senate to vote in favour of Bill S-6.
We thank you at the same time for your vision and commitment.
[Translation]
Chief Denis Ross, Council of the Innu Essipit First Nation: Mr. Chairman, I am pleased to be here this evening. As you have said, I am the Chief of the Innu Essipit First Nation. It is a pleasure for me to join Chief Bear and Ms. Davis to discuss the bill to amend the First Nations Land Management Act with you.
First of all, the regime associated with the First Nations Land Management Act gives First Nations that want it the ability to withdraw from the provisions of the Indian Act relating to the management of reserve lands. At the same time, it allows them to acquire modern governance tools with which to manage their own lands and resources.
This regime, signed in 1996 by 14 First Nations as Chief Bear said just now, provided them with greater control over their lands and resources. By signing, they decided to establish a government-to-government relationship with Canada. To that point, no Quebec nation had expressed an interest in being part of that group. It was in 2004 that, for the first time, a Quebec First Nation, Essipit, expressed its interest in taking advantage of this initiative. On the recommendation of the advisory board in 2005, the minister agreed in 2006 that Essipit could join the regime. Since at the time no Quebec First Nation had expressed an interest in the regime, the 1999 act that gave effect to the 1996 framework agreement was developed using only common law terminology and legal concepts. The land advisory board and Canada came to an agreement in 2006 to amend the framework agreement in order to incorporate the terminology and concepts of civil law, in other words, to make it bijural. This made it more accessible to the First Nations of Quebec.
So amendment No. 4, signed in 2007, made the framework agreement bijural. The next step was to incorporate the same concepts into the act, and it is for this reason that we are before you this evening.
With the framework agreement, Canada is working in partnership with the First Nations, including Essipit, by supporting their transition from the Indian Act to community control of their own lands and resources.
This initiative is consistent with the government's commitment to change the current structures and, in partnership, to develop modern agreements that will give the First Nations governments the capacity to make positive and long- lasting changes within their communities.
In this context, it is also important to provide Quebec First Nations access to the framework agreement so that they too may manage their own lands and resources.
The resulting bill represents a significant step forward for the federal government as part of the follow-up to the First Nations of Quebec Socio-Economic Forum that was held in Mashteuiatsh in November 2006. It is important to note that a number of Quebec First Nations are watching the current process with great interest, and Essipit's joining the regime could encourage them to do likewise.
While, for more than a century, the Innu Essipit First Nation had the political, social and economic structures of the majority society imposed on it, it was able to recover, and to proclaim its own vision of its objectives and the future of its young people.
In the early 1980s, led by a council focused on sharing the collective heritage with a view to improving the lives of community members, Essipit set itself on the path of development.
This development occurred in areas conducive to the maintenance and development of traditional values, based on the following considerations: the affirmation of the culture and traditional activities, the recognition and defence of Aboriginal rights, the recognition and defence of the natural heritage and environment, the sharing of experiences and knowledge, the maintenance of the intrinsic link with the land, and finally, the use of natural resources in a climate of sustainable development.
Over the last 30 years, Essipit has acquired various buildings and facilities designed to provide services to the community and employment for its members.
Thus, the reserve land that we call Innu Assi contains, among other buildings, an administrative and health centre, an early childhood centre, a seniors' home, 32 rental units, a community centre and a host of public facilities, including a convenience store, outside pool and skating rink, several playgrounds, hiking trails and other amenities.
On the same territory, you can also find tourist facilities where many of our members work. These include a campground, 32 condo units, rental cabins, and a craft workshop and boutique.
In addition to these on-reserve facilities, there are others located off-reserve on the traditional territory of Nitassinan; there are six outfitters, two campgrounds, an auto repair shop, a fish market, rubber dinghies for whale- watching expeditions and two crab-fishing boats.
Most of Essipit's assets, however, are located within Innu Assi, that is, on the reserve that measures barely 0.8km2.
According to the edicts of the Indian Act, these assets cannot be used as collateral at a bank or financial institution, since they are only transferable among Aboriginal people.
Joining the First Nations land management regime will allow Essipit to shake off part of the yoke of the Indian Act. The land management provisions of that act will no longer apply to Essipit once it avails itself of the framework agreement.
For us, the benefit of such a regime is that it constitutes a major step on our path to autonomy.
In fact, Essipit has joined with two other Innu First Nations belonging to the Conseil tribal Mamuitun Mak Nutakuan to undertake tripartite negotiations with the governments of Canada and Quebec with a view to signing a comprehensive land claims treaty. The process began over 20 years ago and led, in March 2004, to the signing of an Agreement-in-Principle of General Nature that constitutes the basis for current negotiations.
The various economic development measures that Essipit has initiated in the past 30 years clearly show that exercising your jurisdiction gives you greater credibility with your partners and financial backers. The same is true of the framework agreement, which will allow Essipit to develop various administrative and managerial skills while managing its own reserve lands.
When a treaty is signed and Essipit acquires all the governance tools it needs to survive and flourish within the Canadian federation, the expertise acquired under the land management regime will be essential to ensuring that the measures for the government-to-government transition function properly.
This is why we support the bill to amend the First Nations Land Management Act and its framework agreement, based on the following principles:
The bijural nature of the framework agreement provides Essipit and the Quebec First Nations with access to the First Nations land management regime.
The First Nations Land Management Act and its framework agreement provide practical and factual recognition of First Nations' governance on their own territory.
On the slow march to autonomy that we have begun with the other Innu communities, this regime gives us an effective long-term planning tool.
Under this regime, no one will be able to challenge our right to manage an area subject to a land code produced by the community itself.
The acquisition of these new powers will have no effect on Aboriginal title and Aboriginal claims, and can in no way impede the tripartite negotiations currently underway.
The regime will reduce the legal and administrative irritants often fed by regional political interests wishing to impede the First Nations' legitimate desire for development and emancipation.
While previous generations had no say in their future, this regime will allow our young people to participate in the establishment of a decision-making and development process based on greater control of their destinies.
In a world where it will no longer be necessary to ask permission for every change and every addition to existing structures, projects will be completed more quickly and easily.
This regime will allow us to envisage faster and effective completion of certain structuring projects such as: repairs and additions to infrastructures, community facilities — seniors' home, youth centre, et cetera — and upgrades to existing tourist facilities in Innu Assi.
For all these reasons, and for our children's future, I am asking the Canadian Senate to support Bill S-6, which amends the First Nations Land Management Act, and to include the amendments already jointly agreed by the First Nations and Canada, in order to make the framework agreement accessible to all the Quebec First Nations that wish to make use of it.
[English]
Caroline Davis, Assistant Deputy Minister, Lands and Trust Services, Indian and Northern Affairs Canada: Thank you very much for inviting us here. It is a pleasure to appear before this committee to discuss Bill S-6.
With me is Mr. Paul Fauteux, Director General, Lands Branch, together with Mr. Paul Landry, Director of Legislative Projects, Mr. Garry Best, Director of First Nations Land Management — the program this is related to — and Mr. Karl Jacques from departmental legal services. We will attempt to answer your questions.
Perhaps in the interest of time, I could offer to table my remarks and allow us to move to your questions. The remarks really had to do with the potential we see in this initiative for economic development and its close relation to the very valuable work your committee has done on Sharing Canada's Prosperity — A Hand Up, Not A Handout. We see that this initiative supports that report.
As I say, perhaps in the interests of time I could offer to table the remarks.
The Chairman: Are senators ready to proceed with questions?
Hon. Senators: Agreed.
The Chairman: Thank you, Ms. Davis, for bringing your experts with you. If there are any detailed questions, you certainly have brought reinforcements, which is good.
Senator Peterson: First, to the land management department, I gather that all the amendments we are talking about are technical in nature.
Chief Ross, in your land use plan, you said that you have to get the majority of, I presume, the members of the reserve to approve what you want to do. Do you have to get any other approvals, or is that it? Is it just within the band itself, or do you have to get someone like Indian and Northern Affairs to approve what you are doing?
[Translation]
Mr. Ross: No. If the bill is passed, of course the approval of our people will be needed. We have already started talking about it with members of the community. Currently, things are under way, but I think that it is the members of the community who will decide if the land code is put into effect.
The Chairman: At the moment, you do not have the support of the reserve, is that right?
Mr. Ross: We certainly will have the people's support, but beforehand, we have to know if the amendment to the act will be passed. If not, there is no use in moving forward.
[English]
The Chairman: They do not have the approval.
Senator Peterson: I understand that, but is there any further approval? If they do get the approval of the band members, you do not have to approve it?
Ms. Davis: No.
Senator Peterson: Fine, that is what I was asking.
Chief Bear, in terms of this agreement moving forward, are there any First Nations on the waiting list now who trying to get into this program?
Mr. Bear: Yes, we have interest from numerous First Nations from across the country. There is a process for a First Nation having shown interest and putting that interest in writing, usually by means of a band council resolution, following which they are placed on a waiting list.
The land advisory board makes recommendations to the minister as to which First Nation, in which region, will sign on to the framework agreement and when they will enter into the process. We do have a First Nations waiting list, yes.
Senator Peterson: If you are the last one on the list, how long would it be, roughly, before you would get into the mix?
Mr. Bear: Right now, we have what we call a ``rolling 30,'' and they are in the process. As a First Nation votes, and they have a successful vote, they come off that list, which can open up another spot for a First Nation in a particular region.
If a First Nation, for whatever reason, decides they will not pursue this at this time, we use the term ``parked.'' They become parked, and then another First Nation can replace that First Nation in a particular region.
Senator Lovelace Nicholas: Has the Mohawk community of Kahnawake maintained its interest to support this bill?
Mr. Fauteux: No, the Mohawk community of Kahnawake had a detailed consideration of the framework agreement and had discussions about it with the land advisory board and the department. It concluded that it wanted to pursue its own land management negotiations with the department outside the context of the framework agreement.
Senator Lovelace Nicholas: In support of this bill, have all communities in Quebec participated? If not, why?
Ms. Davis: We are working with the Essipit Innu First Nation on this bill very closely because they have indicated a great interest. Once the bill is passed, if that is your wish, and comes into effect, all First Nations in Quebec would be eligible to use the process.
[Translation]
Mr. Ross: I have to say that we have already met with the Assembly of First Nations to inform them about the steps that we have taken with the advisory council and some communities have already shown interest.
[English]
Senator Campbell: I support this bill wholeheartedly. As a former Mayor of Vancouver, we had Burrard, Musqueam and Squamish, and then there was the Greater Vancouver Regional District. I was always concerned that we never seemed to be able to talk to each other because of the difficulties that they had. I am especially pleased to hear about Burrard, and I will be calling Chief Leonard George tomorrow to congratulate him.
My question has to do with Quebec. What is the nature and scope of the discussions that we have had with the Quebec secretariat with regard to this bill? Are they supportive and is everything copasetic with them?
Ms. Davis: I understand that yes, indeed, they have been consulted and are supportive.
Senator Campbell: What has been the nature of discussions concerning provincial ownership of reserve lands in Quebec?
Ms. Davis: Reserve lands are lands in right of Canada as opposed to the provinces.
Senator Campbell: There are none, then?
Ms. Davis: No. Certainly, provinces are involved when there is an addition to reserve lands. Lands coming from the province are transferred to the Crown usually by an Order-in-Council passed by the province, and there is a process that we undertake to add it to reserve, which is another Order-in-Council.
Senator Campbell: That process would be between the federal and provincial governments and then the land would go to the First Nation.
Ms. Davis: Yes.
Senator Hubley: Ms. Davis, you mentioned that you have been working closely with the Essipit Innu communities in establishing a framework. Will that framework be broad enough and flexible enough to encompass the needs of other communities in Quebec?
Ms. Davis: Definitely. The amendments we are making to the act are, as has been mentioned, quite technical in nature and really have to do with the difference between common law the civil code in Quebec. Any First Nation in Quebec with a reserve that would like to join the initiative and work with Chief Bear and his advisers would certainly be able to do so.
The Chairman: Senator Gill first introduced me to this concern. At the time, Chief Ross made an excellent presentation, as he has done tonight. He provided a video display on the development that has taken place, and it is really encouraging. This development will help his community to further take control of their destiny and economic development, which hopefully will enhance that community.
Chief Bear, we started with 14 groups in 1999, as I am sure you will recall vividly. Have there been any problems with various First Nations who have opted into the First Nations Land Management Act? Is there anything you would do differently now, or has it worked well from your perspective?
Mr. Bear: For the most part it has worked well. The land advisory board has worked on issues and concerns with its partners at Indian and Northern Affairs Canada. We had to address and overcome legacy issues, issues on boundary surveys and environmental site assessments. Those exist and would have to be addressed regardless.
We found that for most First Nations the process has been relatively smooth. The time frames and requirements set out in the budgets that were allocated for the developmental process have been met. That part has worked relatively well. As with anything new, issues arose that we have had to consider.
With respect to a First Nation that becomes operational and is no longer involved with the developmental phase, there is not a First Nation in Canada, I believe, that would say today or tomorrow, ``We will give up our land code, the Framework Agreement on First Nations Land Management, and we are prepared tomorrow to return to the Indian Act.'' I do not think you will find a single one, Mr Chairman.
The Chairman: Chief, you have answered the question. Please pass on our best regards to Chief Robert Louie. What is his official title?
Mr. Bear: He is Chairperson of the First Nations Land Advisory Board.
The Chairman: Thank you to everyone for the excellent work you are doing. It was encouraging to be part of that process under the former government. It seems to have worked extremely well and I congratulate you.
This is a fairly technical bill, a specialty for lawyers and constitutional experts. I think you have answered the questions of the senators.
If there are no other questions, I want to thank the panel for presenting here tonight. I would like to deal with the bill immediately so that we can get Chief Ross on the road to progress for his community.
Is it agreed that the committee move to clause-by-clause consideration of Bill S-6, to amend the First Nations Land Management Act?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 1 through 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 7 through 13 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 14 through 19 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that I should report this bill at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Carried.
I want to thank all of you for expediting this important bill. In many ways it is a housekeeping bill, but it was important that we do this so that all First Nations across the country can participate in the First Nations Land Management Act. This is a positive move that will lead to prosperity, one that has shown real leadership on the part of our First Nations.
The committee adjourned.