Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 27 - Evidence - November 20, 2012
OTTAWA, Tuesday, November 20, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 9:30 a.m. to examine the subject matter of those elements contained in Division 8 of Part 4 of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012, and other measures.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or the Web. My name is Vernon White, from Ontario, and I am the chair of the committee.
The mandate of this committee is to examine legislation and matters relating to Aboriginal peoples of Canada, generally. Under this mandate, we have been given an order of reference to study the subject matter of those elements contained in Division 8 of Part 4 of Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.
We began our study of this subject matter by hearing from the minister and officials from Aboriginal Affairs and Northern Development Canada and the Department of Justice Canada. Today, we continue by hearing from the Assembly of First Nations.
Before hearing from our witness, however, I would like to take this opportunity to introduce the members of the committee who are present this morning. I will start with Senator John Wallace, from New Brunswick, who is filling in for Senator Ataullahjan, from Ontario. We also have Senator Dennis Patterson, from Nunavut; Senator Jacques Demers, from Quebec; Senator Sandra Lovelace Nicholas, from New Brunswick; and Senator Jim Munson, who is replacing Senator Larry Campbell, from British Columbia, but who was born in New Brunswick. I should mention that.
Members of the committee, please help me in welcoming from the Assembly of First Nations Kathleen Lickers, Legal and Technical Advisor. We look forward to your presentation, which will be followed by questions from the senators. Please proceed.
Kathleen Lickers, Legal and Technical Advisor, Assembly of First Nations: Good morning, Mr. Chair and honourable senators. It is an honour to be back before you. I was last here on April 3 of this year when you were examining the Additions to Reserve policy. I have had the honour of reading through the report you issued earlier this month and your recommendation in that regard. Some of my remarks today will touch on that examination, because the issue of designating reserve lands does impact that study, as well as work on an ongoing basis.
I am an external technical legal adviser to the Assembly of First Nations on the matter of additions to reserve and specific claims reform. It is in that capacity that I was asked to appear before you to speak to the amendments that are being introduced through Bill C-45. We have a number of thoughts to share with you on the amendments and the technical nature of the amendments themselves. However, our view is tempered by the process and the manner in which the amendments have been introduced.
First, let me get to our view of the elements of the bill. When the Minister of Aboriginal Affairs and Northern Development appeared before you on November 7, he spoke to the amendments and the significance of designating lands by First Nations communities. There are those First Nations who manage their lands under the Indian Act, and that certainly does not encompass all First Nations communities; outside of managing lands under the Indian Act are those communities that manage their lands through self-governing agreements as well as First Nations who operate under the First Nations Land Management Act, and there is a long line of communities wanting to use that instrument, which gives them much more flexibility and freedom than the Indian Act does in the management of lands.
Regardless, for those First Nations that operate under the Indian Act, the process of designating lands is entirely governed by that legislation, and it is a complex, costly, time- and labour-intensive process. The amendments that are introduced through Bill C-45 speak to one very discrete element in an otherwise lengthy, complex process.
The act of designating lands was first introduced in 1988. It is commonly referred to as the Kamloops Amendment, in recognition of the community that advocated for its introduction back in 1988.
By way of background to my remarks on the actual amendment itself, there are three distinct phases to designating lands. The first is the preparation phase, for which the onus is entirely on the First Nation. It is a process that is initiated by the First Nation in making a decision to allow development within their reserve land base for third parties that are non-band members. That preparation phase is an exhaustive, time-intensive process, but it is one that is initiated by the First Nation. Any long-term change to the community's land base that involves non-band members requires a decision by the community as to that use.
That represents the second phase of the designation process, which is the referendum phase. That is the phase that these amendments speak to. They relate directly not only to these provisions but also to the Indian Referendum Regulations that are a companion piece to these provisions. That designation phase or referendum phase represents the substance of the amendments introduced through Bill C-45.
The final phase of the designation process involves the approvals that have, up until now, typically been granted by Governor-in-Council, with the exception of approvals that occur under the Claims Settlements Implementation Act. I will speak to that later in my remarks because it relates directly to the Additions to Reserve process and the report that you issued earlier this month.
Now, as for the actual technical nature of the amendments in Bill C-45, the first significant change is the distinction and the separation of the act of voting to surrender land from the act of voting to designate land. When they were introduced in 1988, the act of surrender and the act of designation required the same voting threshold for a community under the Indian Act, even though surrendering land is significantly different from designating land. The act of designating land is not a surrender of the reserve land base. It is a decision to make available reserve lands to non-band members for leasing purposes, but the reserve land base remains reserve land. Yet, in 1988, the threshold for that community's decision was the same.
These amendments now separate surrender from designation, and there are no changes to the surrender provisions in these amendments. Those remain unaffected.
The change that is being made in distinguishing designation from surrender relates directly to the voting threshold. The voting threshold that is being introduced by this amendment is to introduce what we would look to as a simple majority. On the face of it, it presents us with the potential for this to be a streamlined, efficient process. Obviously, the results have yet to be seen, but, on the face of it, that seems to be the intention. We know from experience that First Nations who are designating lands under the current regime need, in 90 per cent of the cases, to proceed to a second vote. That requires more time and more money. It is, based on that same experience, difficult to achieve a majority approval by the majority of the electorate on the first ballot. Typically, without that majority of a majority, a second vote is required. The current Indian Act provisions — not the amendments of Bill C-45 but the current provisions — introduce a second vote with a simple majority threshold. It is typically the case that, on that second vote by simple majority, there is an approval of the designation.
What we see in the amendments is the elimination of the majority of the majority threshold and the proceeding through to a simple majority vote, so there is a lower threshold on one ballot.
The second technical change that is being introduced in unpacking this box is the fact that the voting referendum phase of designating lands must be, if they are proceeding under the Indian Act, in compliance with the referendum regulations. Those regulations prescribe the whole of the referendum procedure, namely the appointment of an electoral officer who oversees the entire process, notice periods and a number of other referendum details. At the end of the vote, a statement by the electoral officer is required to verify the actual results. That statement is signed not only by the electoral officer but also by a representative of chief and council. That statement is then provided to the assistant deputy minister, the regional office of the department and to the chief of the band itself.
The amendments in Bill C-45 introduce a new requirement, following a referendum to designate lands, that is not in the current Indian Act at all. When Kris Johnson, the Senior Director of Land Modernization for the department, appeared before you on November 7, he spoke to this component of the bill and clarified for the committee that this provision is being introduced in the event that the community has doubts as to the results being representative of the informed consent of the community. The band could then choose to recommend that the minister not accept the results of the vote.
What is curious about that component of the amendment is that, without the full consultation that I will speak to in my remarks, it is not clear as to the necessity of that further stopgap measure when the minister, through final ministerial order, will always have the authority not to approve a vote. No change has been introduced in this bill to the referendum regulations in and of themselves. The review procedures of a referendum, therefore, are not changing either, and those review procedures allow any community member to challenge the result of a referendum within seven days of the actual vote. The procedure for review is outlined in the regulation. It is curious that this particular provision, as benign as it is in the bill itself, is considered necessary.
The final technical element in unpacking the provisions that are being introduced through this bill is the removal of the approval by Governor-in-Council and the introduction of the approval by ministerial order. We have seen this type of tool — proceeding by ministerial order over Governor-in-Council — introduced through the Claim Settlements Implementation Act, about which we spoke to the committee in April, as it relates specifically to those First Nations who are adding lands to their reserves. We have seen it applied only in those acts that have been introduced in the Prairie provinces of Saskatchewan, Alberta and Manitoba. It has not been used very frequently, but, where we have seen it used, it typically shaves off a period of about six months at the very end of the process, so there may be some efficiency in terms of processing time.
I want to conclude my remarks by speaking to the scope of the amendments themselves. I opened by saying that the changes that are being contemplated within this bill do have implications for the Additions to Reserve and Claim Settlements Implementation Act by that legislation referring to these same provisions. They incorporate, by reference, the designation procedures outlined in the act.
Under that legislation, the power to designate before land becomes reserve is seen to be a viable and valuable tool. In your report earlier this month on the Additions to Reserve policy, in your recommendation you clearly asked for options being advanced regarding pre-reserve designations. Well, these two things go hand in hand. The introduction of the changes in Bill C-45 will, by incorporation, impact on that pre-reserve designation process as well.
I will conclude my opening remarks by speaking to the process by which the amendments have been introduced. It runs completely at odds with the joint process that the Assembly of First Nations has been engaged in on the additions to reserve process in particular. When we appeared before you in April, we spoke about the joint nature of that work. The introduction of further amendments to the Indian Act through this bill lacked any engagement at that table or anywhere else with First Nations in this country. It is completely at odds with not only that process but also the spirit by which this year began with the Crown-First Nations gathering and the expectation that there would be a commitment of joint relationship building.
While the destination set out in these amendments, on its face, appears to be improvements to the process, the journey that gets us there is difficult. It is certainly out of step with what the expectation was when we began this year and certainly out of step with the anniversary that is soon upon us in marking that event.
I will leave my remarks there. Perhaps you have questions.
The Chair: Thank you very much for your presentation. I do want to acknowledge Senator Raine from British Columbia, who has arrived, as well as Senator Watt from Quebec. I will take questions starting with Senator Demers.
Senator Demers: Good morning. It was a very good presentation. Thank you very much. What is the overall purpose of the land designation provision under the Indian Act?
Ms. Lickers: The purpose is for the use of reserve land managed under the Indian Act to be opened to outside third parties, primarily through the instrument of leasing. They do not lose their reserve land status. There is no surrender of lands back to the Crown. The community is making a decision to designate a certain portion of its land base for leasing purposes and thus bringing them into some economic development opportunity.
Senator Demers: Thank you.
Senator Lovelace Nicholas: I am a little bit concerned about the section on page 2 about a general meeting called by the band council. As I have seen it, the chief and council tend to act on their own without consulting the people, so I would recommend that it be mandatory to consult with the people on the referendum. As I said, they act on their own without consulting the people, so I think that is an important matter.
The Chair: What was your question?
Senator Lovelace Nicholas: That is fine. I just wanted to make sure that was on the record.
Senator Patterson: I believe that the gist of your presentation was that while these amendments may be helpful, although they may have some implications for the ATR process, you were more concerned about the lack of engagement with AFN on these amendments because the department has been engaged with AFN on additions to reserve. These amendments affect ATR, and therefore they should have been discussed in the joint process that is under way, if I understand you correctly.
When the minister appeared before us, he said that this is an economic development measure under the budget implementation act as opposed to creating a whole new piece of legislation to deal with this simple, universally acceptable change. Since we never contemplated taking it through a full legislative process, there was never a consultation engagement process either. I think the minister is acknowledging what you said.
My question is very simple. I hope I am not putting you on the spot. Yes, the way we got here was not desirable, but I think you said the destination is okay. The journey that got us there was not in the spirit of collaboration. Should we go ahead with these amendments nonetheless, perhaps expressing our regrets that the process was not as respectful as you might have hoped or expected? The minister said this is something he has heard about wherever he has gone. It is a common refrain, so he just wanted to put it in the budget implementation act as progress. I guess I am asking you, notwithstanding your concerns about the process, and they could be noted by our committee and certainly will be noted in these minutes, should we nonetheless approve the bill?
The Chair: Not putting you on the spot.
Ms. Lickers: The Assembly of First Nations as an organization opposes the bill for the lack of integrity in the process by which we get here. When I spoke before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development last evening, one of the members characterized it as rewarding bad behaviour. I thought that was an appropriate characterization. That is the difficulty with the manner by which we are examining these changes. While they represent improvement, how we get there together foreclosed any options or any examination of options that might have been advanced by First Nations.
Let me give you some examples of what I am speaking about. The very term "designation" when it was introduced in 1988 adopted the language of surrender. Part of the confusion that lies with us even today is to continuously explain and clarify that the act of designating lands is not a surrender of land. It is a use for a specific purpose and for a certain period of time, but it is not a surrender of land. We are foreclosed from exploring options about what improvements could have been made and what further options could have been developed to deviate from that language.
What options could have been developed in honouring a community's view of representative, free and informed consent that is not guided by the referendum but may more aptly reflect their treaty processes and the honouring of their treaty relationship? We are foreclosed from exploring options by the manner in which these amendments are being introduced, and that is completely at odds with how we began the year. At the end of the day, it is a difficult position to be in to be looking at these amendments for technical improvements. Does that outweigh the manner in which we get here? The Assembly of First Nations would say no.
Senator Patterson: Thank you for the clear response.
Is the engagement process you talked about vis-à-vis ATR, with which I assume you are involved on behalf of the AFN, still going on despite this initiative?
Ms. Lickers: It is still ongoing. Our next joint table meeting will be next week, and that will be our first opportunity post-introduction of this amendment and the appearance of the witnesses here to speak to the full impact, but therein lies the irony. The very representatives who appeared before the house committee to speak to the amendments are some of the very individuals with whom we sit at this table. We learned of the proposed amendments as every other Canadian did. There was no engagement with those representatives, and so we are unpacking the box at the same time as every other Canadian.
Senator Munson: Thank you for being here this morning.
You used the term "adopt the language of surrender." What kind of language are you looking for? You also mentioned the integrity processes. Could you elaborate on your phrase about rewarding bad behaviour? Whose bad behaviour are you speaking of?
Ms. Lickers: We would say it is the behaviour of the Crown, which is completely at odds with how we began 2012 with the Crown gathering and the creation of an atmosphere in which there would be a process of direct engagement.
The Indian Act is one of the most paternalistic legislative regimes in this country. It regulates every aspect of an Indian, as they are defined in that legislation, from birth to death. Therefore, any amendment, even ones as technical as those in Bill C-45, should involve the very communities and individuals who are impacted. Including them in an omnibus bill without any engagement whatsoever will reward bad behaviour, should this bill pass in its entirety. That is the behaviour I am speaking of.
Senator Munson: You said "without any engagement whatsoever." Are you saying that individual First Nations bands did not participate in a face-to-face discussion to come up with these technical amendments, that they did not have a role? I thought they did, but I am not sure.
Ms. Lickers: It is my understanding that there was no formal engagement with any First Nations regarding provisions 206 through 209 of Division 8 of Bill C-45.
Senator Munson: Even though it is technical, is it still a good thing that this may happen?
Ms. Lickers: That is the difficulty. On their face, these provisions appear to streamline what will remain a complex process, that of designating lands. Eliminating the first threshold of a two-tier process and streamlining it to a simple majority may, on its face, represent improvement. Eliminating the approval by Governor-in-Council to ministerial order may, on its face, look like an improvement.
Your previous question was what language would be more appropriate. It may be trite to say, but it would be to state the obvious, which is that this is about leasing land rather than the language of surrendering land, which invites confusion about what is being undertaken. We are talking about a specific use. We are not changing the nature of the land base at all, so to call the process what it is, which is leasing land, would be a more apt description.
Senator Watt: Thank you for your presentation. I apologize for my late arrival.
As I was walking in you were saying that in 1988 an amendment was made specifically for the people of British Columbia. I have always understood that any amendment to the Indian Act applies to everyone. This bill seems to be making additional amendments to those that have already been made. Do you really need the amendment in order to lease land in your community?
Ms. Lickers: It does not change the leasing of land. The amendments that were introduced in 1988 introduced the leasing of lands to third parties for economic development purposes. If these amendments were to be extracted from Bill C-45, the act of designating and leasing lands would still survive. Those provisions still remain in the act, and so it would not alter the ability of a First Nation to go forward and continue to lease lands.
What is different in terms of these provisions is that these provisions speak to a very discrete part of that process. It is regarding the referendum — the community's vote — to lease those lands that the bill speaks to introducing a simple majority and the removal of the Governor-in-Council as the final authority. It replaces the Governor-in-Council's authority with the ministerial order, which is the minister's authority to approve the referendum vote.
However, the actual acts of designating and leasing lands would still be there if these provisions were to be extracted. Those would remain in the act.
Senator Watt: If I understand you correctly, I think your answer sort of comes in two parts. It is not really necessary to expedite the business aspects of it to move forward because that avenue is already available to you. The changes that you are describing here are that the minister still has the last say. Am I correct?
Ms. Lickers: Yes.
Senator Watt: On top of that, it is very strange to me to see the word "surrender" used in regard to the designation of land for leasing purposes. If I understand what I am dealing with here, that goes beyond what would normally be accepted by the Aboriginal groups within this country.
Ms. Lickers: When the introduction of designation was made in 1988, it invited that very confusion; namely that the act of leasing lands was not to change the reserve land base. They were not surrendering lands. However, the provisions were drafted such as to describe designation as some kind of conditional surrender. In other words, the First Nation was surrendering lands to the Crown but on the condition that they would be surrendered for the use of leasing purposes. When the lease expired, they would revert back to reserve land base. Even today, that invites an enormous difficulty —
Senator Watt: — in interpretation.
Ms. Lickers: Very much so.
Senator Watt: Subject to interpretation.
Ms. Lickers: Very much so.
Senator Watt: I will stop there for now.
Senator Raine: Thank you very much. It is truly unfortunate that we have come to this place where the journey was not done properly.
I have two questions. You talk about not having had the opportunity to correct the wording and the description of what is happening in a way that would be clear for everyone. In most municipalities, we are talking about what is commonly referred to as zoning. It does not really matter who owns the land. The land is zoned for certain kinds of uses. I know many First Nations are moving towards changing the way land use is done on their reserves and they are putting regimes in place.
Does the AFN have a desire to have the word "designated" or "designation" come more into alignment with what is actually happening in terms of land use zoning?
Ms. Lickers: Therein lies the challenge that we have at the additions to reserve table. It seems kind of contradictory to be speaking to one very small segment of a very large and larger context of relationship, and to be looking at the processes that are involved with community planning and community development when a First Nation is adding lands to reserve, and that there be an openness as to the joint search for solutions when we are talking about adding new land. However, when we talk about use of existing land, there is no joint dialogue. It is somewhat contradictory.
We can all examine the utility of community planning principles, best practices, lessons learned and decision making that is keeping pace with the speed of business. "Speed of business" is a phrase that is often used in the description of designation, because First Nations that are making decisions to designate land are often doing so because there is an opportunity available to them that involves an outside third party that might have an interest in doing business with that community. Thus they are carving out a certain parcel of their reserve land to allow that opportunity to go forward.
However, there seems to be a greater spirit of joint solutions only when we are talking about land that is not yet reserve but has the potential to become reserve. Looking at the experiences of municipal planning principles, and as the Senate committee reported earlier this month with its recommendations towards additions to reserve, the very first bullet of the recommendation is to call upon the development of a strategy and options that speak to that very issue of pre-designating reserve lands.
Senator Raine: I have to think that the intent in putting this particular amendment into the omnibus bill was to move it along a little faster. I honestly think that the parties involved, while not being respectful of the process, which is a bad mistake, were doing it with a good intent.
Being as you have an upcoming meeting of the table on ATR, would it be possible to bring this up and give us a "proceed" or "not-proceed" indication, notwithstanding that the process was disrespectful? Two wrongs do not necessarily make a right, so maybe it would be good if that could happen. Is there a possibility that it could be discussed?
Ms. Lickers: I can certainly take that back. I will be present at that meeting and I can take that back.
Senator Raine: When votes do go to a second vote in terms of these issues, what percentage passes as a simple majority?
Ms. Lickers: They almost all do by a simple majority. There are a number of factors that go into a community's decision to designate lands, and some of those factors very much involve the third party itself. One of the greatest challenges that First Nations experience, not only in the voting threshold but in the complexity of time, is the department's process. Even though we are talking about a very discrete part of the referendum process and the voting threshold in these amendments, there is its larger picture: the complexity of the location of the lands, the environmental integrity of the land, the interest of the third party, the use that is intended, the terms of the lease, the length of the lease, what that use is in relation not only to the other reserve lands but neighbouring municipalities, and the licences under which they all operate. These all frame the picture.
There is a lot of information shared and required in order for a community to come to a place of giving informed consent. All of that work leads up to both votes, first and second. The primary criticism is that that process is a lengthy bureaucratic process, and it has typically taken a minimum of two years for lands to be designated. The question First Nations often have is whether the third party patient enough to wait and wade through all of these various other elements that have nothing to do with the vote in and of itself.
Senator Raine: Thank you very much for your presentation. You make it clear and understandable. I think everyone would like to see progress made, so if there is a way the ATR table can help us with this, it would be good.
Senator Munson: A brief follow up on some specific questions: Here in the Senate we can take a look at these things, but this is probably all said and done at the end of the day. What are your views on inserting these sorts of technical amendments into a massive omnibus budget bill?
Ms. Lickers: As I said, the Indian Act is a very paternalistic document. When we start tinkering at the margins of that kind of legislation, even for the benign sort of thing that we are talking about — lowering voting thresholds and changing Governor-in-Council to ministerial order — it is still, in its larger context, such a significant piece of legislation. For it to find itself in an omnibus bill is a bit of a head scratcher.
Senator Munson: You are dealing with people. It seems to me that it is hardly technical at the end of the day.
Thank you.
Senator Patterson: I just want to go further on this consultation issue, which I think you have identified as critical, notwithstanding your comments about the substance of the bill. In reviewing Minister Duncan's presentation to the committee at our last meeting, he said that there is a clear admission "we did not have an official consultation." However, he also said, "We sent an official letter to every chief and council explaining what we were doing and we have had no push back. We have only had supportive responses." Later on, he said, "So far, everyone is happy with the changes; they are most welcome."
Have you seen that letter, and what would you say to the assertion that there has been nothing but positive responses? No chiefs have responded negatively. Does that temper your concerns about its having not been discussed at the engagement process you are part of?
Ms. Lickers: I am certainly aware of recent correspondence that would say otherwise. In fact, before the house committee last evening, correspondence was shared from two First Nations vehemently opposed to this bill and the amendments that are being introduced in it. While I certainly respect the minister sharing a general description or a flavour that these are welcome changes, I do not believe that that is a shared view in light of the correspondence that was brought forward last evening. No, I have not seen the correspondence.
The Chair: I have correspondence — and I will share it with the rest of the committee — from the Matachewan First Nation and the Onion Lake Cree Nation that supports what you are saying, Ms. Lickers. They are concerned about the process more than the substance, I believe. I will share that with the other committee members. Thank you.
Senator Lovelace Nicholas: With all of the legislation that is coming out of the woodwork, do you think it is part of the white paper policy but formed into legislation?
Ms. Lickers: That is hard to give a yes or no answer to. The Indian Act, in and of itself, is a very colonial, paternalistic bill. The whole of the tenure of designating lands does not displace the same legislative scheme that puts the minister always in a position to be the one to decide on behalf of the community. Nothing about these changes displaces the role of the minister. He or she ultimately maintains the authority to approve even a decision reached by simple majority referendum. The minister maintains, through these provisions, that same spirit of knowing or acting on behalf of a community and, in that regard, carries forward the same sentiment expressed in 1969.
Senator Lovelace Nicholas: Should we be worried, as Aboriginal people, that there is no consultation, as has been mentioned? There never was, I do not think, nor ever will be, true consultation, but should we be worried?
Ms. Lickers: I am worried about a process that would see the end justify the means. While there may be parts of the country that view these provisions as positive changes, you cannot look at them devoid of the larger relationship and of the expectation that was created at the first Crown-First Nation Gathering that there would be a different relationship. The fact that we are ending this year in a very different place than the expectation that was created at the beginning is cause for some concern.
Senator Lovelace Nicholas: Thank you.
Senator Watt: The business communities right across the country, especially the ones that are more equipped to get the business sides moving quickly, would like to find better solutions to get to the point where they want to go, especially in the British Columbia area.
Have you heard or witnessed any dialogue between the Assembly of First Nations and the provincial types of organizations communicating between the two as to how they would like to see this matter rectified in terms of being able to mortgage part of their land and not wanting to have anything to do with the surrendering aspects of it? Can you enlighten me as to whether there is communication between the national organizations and the provincial organizations with regard to improving the Indian Act for business purposes?
Ms. Lickers: I am aware that there is a frequent meeting of provincial ministers of Aboriginal affairs, at least on an annual basis, but as to the extent to which they have examined this bill or the amendments contemplated in this bill, I am not aware of that dialogue. It has certainly been, through the joint dialogue at the additions to reserve table, that the role of the provinces is a significant barrier. That is not in all cases, but it is a significant enough challenge for First Nations when they are adding lands to reserve that the role of the provinces is fundamental to resolving those interests because First Nations are in a position to have to resolve all of the existing encumbrances on lands before Canada will consider converting them to reserve. As to the role of the provinces and municipalities or other third parties in the designation of land, I am not aware if there has been any dialogue on Bill C-45.
Senator Watt: I guess this is one of the reasons why you are highlighting the importance of consultation with the First Nations and that they have to be part of the decision making. By saying that, do you already have a draft? Have you come up with an improved draft that is supported by First Nations? Do you have one, or would you be prepared to produce one at some point?
Ms. Lickers: I am not aware that there is one or that one is being developed, but I can certainly take that back and inquire as to that work being undertaken or not.
Senator Watt: If I understood correctly from the government side, they need to pass the bill in order for the budget to go through. If that is the case, I do not know how much time you have left to come up with an improved draft that would be to the liking of First Nations. That might be one area that maybe should be looked at. Bring the two of them together and sit down through that mechanism you have in place and have a face-to-face dialogue, trying to work something out. Thank you.
The Chair: I have one question. In the discussions in additions to reserve, and I know you sit in that room, have the issues that are in some way being attempted to be rectified through these amendments come up regularly around the process and the length of process and the double majority, for example? Have those issues been discussed for the past number of years? I am not suggesting there was consultation, by the way. I am just asking if those issues had been raised.
Ms. Lickers: Fair enough, Mr. Chair. Therein lies the irony because, in some respects, yes. When we appeared before the committee in April of this year to speak to the study that was being undertaken on additions to reserve, the Assembly of First Nations shared with the committee a summary of the dialogue that we had undertaken over 2011. We summarized the perspectives that were shared through that year. Some of those perspectives reflected the great challenge that First Nations have with the language of "surrendering" lands, even if it was for the purposes of leasing lands. Those remarks are reflected in that regional report.
The fact that there is a lack of reflection in any process that is reflective of the community's own decision making, outside of the Indian Act, that they may have their own method of arriving at consensus on land use that is an honouring and a reflection of their communities' tradition, the spirit and intent of the treaty relationship as it is reflected in their community, none of that is reflective in terms of a joint discussion. This is what I say. We have a joint discussion when we talk about the adding of land, but, in the context of existing land, there has been no joint dialogue. The very officials that would express openness in one context would foreclose a dialogue in another context, and yet we are still talking about leasing of land and use of land. It seems a little contradictory and certainly runs at odds with the process.
The Chair: Thank you for being clear throughout your presentation. If there are no other questions and no other comments from the witness, we will adjourn.
(The committee adjourned.)