Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 10 - Evidence - February 8, 2012
OTTAWA, Wednesday, February 8, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 6:50 p.m. to examine and report on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: additions to reserves).
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: 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, either on CPAC or the web. I am Gerry St. Germain, originally from Manitoba but now from British Columbia, and I have the honour of chairing this committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. Today we will be embarking on a new topic, additions to reserves. The phrase "additions to reserves" refers to the process of adding land to existing reserves or adding land to new reserves.
In June 2011, Canada, as represented by the Minister of Aboriginal Affairs and Northern Development, and First Nations, as represented by the Assembly of First Nations' National Chief, agreed to a joint action plan to improve the long-term prosperity for First Nations people and all Canadians.
The Canada-First Nations Joint Action Plan includes a commitment to explore concrete initiatives aimed at unlocking the economic potential of First Nations, including improvements to the additions to reserves.
Witnesses for this study will be asked to provide their views and observations on the current ATR policy and its associated processes and will be encouraged to offer their suggestions on how to overcome the various deficiencies with current policy and process.
This evening, honourable senators, we will hear from three organizations. I will introduce the first two at this time, the Chiefs of Ontario and the Long Plain First Nation of Manitoba.
[Translation]
Before we start, please allow me to introduce the members of the committee who are here today.
[English]
Present are Senator Nick Sibbeston from the Northwest Territories, Senator Lovelace Nicholas from New Brunswick, Senator Larry Campbell from British Columbia, Senator Dennis Patterson from Nunavut, Senator Ataullahjan from Ontario, Senator Greene Raine from British Columbia and, from the province of Quebec, Senator Demers.
Committee members, please help me in welcoming our witnesses. From the Chiefs of Ontario we have Ontario Regional Chief Angus Toulouse. From Long Plain First Nation we have Chief David Meeches; Vincent Perswain, Executive Director of Long Plain Trust; Tim Daniels, Special Projects Officer; and Ernie Daniels, Elder.
We hope that your presentations will be short enough that we will have time for questions. We will have many questions and want to explore your experiences in the field of additions to reserves.
Angus Toulouse, Ontario Regional Chief, Chiefs of Ontario:
[Mr. Toulouse spoke in his native language.]
Good evening, senators. I want to thank you for the opportunity to speak with you on this important issue. As you are aware, the Indian Act neither creates reserves nor provides for the expansion of existing reserve land. There is no statutory authority under the Indian Act to set apart lands as reserve. Lands are granted reserve status by a federal order-in-council on the recommendation of the Minister of Aboriginal Affairs and Northern Development Canada.
The only legislation available on this issue, the claims implementation acts, do not apply in Ontario. As a consequence, Ontario First Nations must rely entirely upon Aboriginal Affairs and Northern Development Canada's ATR policy and process.
Through this policy, Aboriginal Affairs and Northern Development categorizes the only allowable grounds by which it will allow our lands to expand. Practically speaking, this means that First Nations in Ontario must run the gauntlet of an unclear policy and process with much discretion resting in the hands of the federal employees as they interpret the policy on a case-by-case basis with reference to the department's lands management manual.
Chapter 10 of this manual, which deals with additions to reserves, was last updated in October 2003. Aboriginal Affairs and Northern Development estimates there are at least 40 active additions to reserves proposals in Ontario and that most of these proposals are considered as category 2 applications or proposals largely based upon the growth needs of communities.
The category 2 ATR proposals are not based upon legal obligations. Instead, much discretion is left to Aboriginal Affairs and Northern Development on whether to support a First Nations' Category 2 application.
It has been our experience that this discretion is highly restrictive. Deep within chapter 10 of the department's lands manual are the primary barriers to First Nations under a category 2. These issues are service area, contiguity, affordability, economic projects, urban selections, third-party encumbrances and capacity. I will briefly describe the difficulties with each of these areas.
With respect to the service area, proposals under category 2, community additions, must involve land that is within the service area of the existing reserve community. The problem arises because the definition of "service area" developed by Aboriginal Affairs and Northern Development means the geographic area generally contiguous to a reserve. This definition is interpreted very differently across the regions by Aboriginal Affairs and Northern Development and is often used to frustrate the processing of an ATR proposal under this category. First Nations, in negotiations with the Department of Indian Affairs under the specific and/or comprehensive claims policies, can negotiate the geographic area of the potential additions to reserves lands. First Nations not in negotiations must rely upon the addition to reserve policy. If the latter, a strict interpretation of "generally contiguous" may mean the First Nation has nowhere to grow either because there is no available land to annex to an existing reserve or land values are so high that the First Nation cannot afford to grow.
With respect to the issue of affordability, unless negotiated by settlement agreement, a First Nation must be willing to formally acknowledge that there is no funding entitlement associated with its community addition proposal. Practically speaking, First Nations must be prepared to find funding for community addition proposals through their normal funding allocation that has already been capped by AAND and/or by capital planning process to all ATR costs. These costs run from acquisition of land through to conversion of these lands. Without adequate service standards to provide all parties with some comfort as to how long the AAND process will take, the full cost to be budgeted by First Nations is unknown and cannot be forecasted with much confidence.
This creates a significant problem for First Nations holding lands in fee simple who must pay annual tax levies while they wait out the department's ATR process in addition to funding all the necessary ATR transaction costs required to advance their ATR proposals.
The last ATR policy clarification in 2003 resulted in community economic projects being enumerated as an example of a normal community growth addition. First Nations are equally as interested as non-First Nation communities across Canada in creating sustainable communities. Unfortunately, AAND does not currently interpret the ATR policy to support economic additions to reserves outside of those negotiated and implemented as category 1 proposals.
As First Nations, we struggle to reconcile this reality against Canada's other economic initiatives undertaken with First Nations. We believe that we should be supported not restricted in the ability to grow our land base like municipalities have done for decades in ways that further support our citizens' desire to live where we work. If we are supported in developing our economic capacity and participation in Canada's economy, all of Canada will benefit. Sadly for us, Canada will not support our linking these opportunities — growth beyond our current borders to meet economic needs — in any systemic way that is connected to an expanded land base. The Aboriginal Affairs and Northern Development ATR policy must recognize and support the fact that economic development is a legitimate community development purpose for adding land to reserve.
Besides costs, perhaps the single greatest barrier to the successful conversion of land to reserve status is resolving third-party encumbrances. The current policy puts the onus on First Nations to resolve these interests before the order- in-council is granted. In Ontario, we are further hindered by the lack of available legislative tools to assist us in our efforts. In this regard, we are not on equal footing with the province or the municipalities. While the policy states that neither the provinces nor the municipalities have a veto with respect to reserve proposals, in reality they do have one. First Nations are required to demonstrate a good neighbour principle when negotiating with third parties. However, if an impasse results, AAND does not intervene to assist in bringing forward a resolution. Where impasse results in delay, the delay is accepted by Canada.
We believe that AAND should create more formal arrangements with each province regarding the fulfillment of ATR commitments made by Canada. Furthermore, we believe the department should be more proactive in addressing negative provincial attitudes and positions that are relied upon to delay and frustrate the successful conversion of land to reserve.
The complex process of converting land to reserve requires sustained human and fiscal resources by both the First Nations and the department. Unfortunately in the current fiscal environment where everyone is competing for scare limited resources, the challenges are mounting. We know that the bulk of AAND's ATR processes take place within its regional offices, and yet we have no assurance that the regions have created any systematic prioritizing of the ATR budgetary needs, even on a case-by-case basis.
The 2003 ATR policy clarification of category 2 — community growth — was predicated on community land use planning as a basis for streamlining proposals. It was believed that if First Nations had solid community plans, they would proceed to the ATR process with the financial planning and land use authorities needed to resolve third-party issues. This had the potential to represent a positive step; however the substance did not follow the promise. To be effective, sustained capacity development within First Nations communities was needed. What we experienced was the launch of some pilots followed by languishing of efforts by the department until this initiative was all but forgotten.
In addressing municipalities, the policy requires First Nations to negotiate arrangements regarding such matters as joint land use planning, bylaw harmonization, tax loss compensation and municipal service agreements. Unfortunately again, First Nations often lack the necessary capacity to negotiate in all these areas. AAND is never a party to these arrangements and only offers to provide technical support during the negotiations. Unfortunately, even the regional Aboriginal Affairs offices are stretched to capacity.
Capacity challenges do not end once the land has been converted to reserve. Aboriginal Affairs and Northern development Canada provides insufficient training to First Nations in comparison to the land management responsibility it is transferring to them.
In conclusion, I want to mention that the 2005 observations and recommendations made by the Office of the Auditor General to the Department of Indian Affairs for improving the conversion of lands to reserve remain relevant across all categories of ATR. The department's response to the recommendations made in 2005 should be implemented.
There needs to be an introduction and implementation of time lines into the operations. There needs to be better strategic fiscal planning by the regional offices introduced in a way that assesses priorities in partnership with First Nations' ATR proposals. It will mean that transaction costs can be forecasted with the kind of confidence that is required. There need to be tools to address third-party encumbrances, including Aboriginal Affairs working with negative provincial positions.
I want to thank honourable senators for the opportunity to speak with you this evening on this very important matter.
The Chair: We will go to Chief Meeches, from Long Plains.
David Meeches, Chief, Long Plain First Nation: I would like to thank the honourable senators for giving me the opportunity to speak on this very complicated and interesting process called addition to reserve. I acknowledge the others in the room.
I would like to expand a bit on those with me here today: Tim Daniels not only works on our special projects but also on the treaty land entitlement process: Vincent Kelly Perswain has worked for the Aboriginal Affairs, specifically in the lands department; and our elder, Ernie Daniels, who represents our most recent past, is a former chief of our community, and is significant in a parcel of land that we own outside Portage la Prairie away from our community.
I want to explain a little bit about our history with respect to our dealings on the issue of land and the different conversions we have had with respect to the different policies that have been put in place.
In 1994, I had the opportunity as a council member to sign our treaty land entitlement. I have to add that our explanation of our situation is specific to our First Nation and the difficulties we have encountered. In 1994, we signed our treaty land entitlement. We received $16.5 million to reach our shortfall of a little over 5,000 acres.
In 1998, we began to purchase our first properties. Today, we are continuing to buy land. We have met our shortfall in terms of what we were supposed to have purchased, and to date, of the over 5,000 acres we purchased, 1,900 of that has been reverted to reserve status, and we, too, encounter a specific amount of problems with respect to third-party interests. That is probably the most cumbersome thing that we have had to deal with throughout this whole process.
About five years ago, we purchased 2.4 acres of land within the city of Winnipeg. The process that we have had to undergo with respect to that has been difficult, to say the least, primarily with third-party interests. The City of Winnipeg was very helpful with respect to the municipal services agreement that we had to undertake in order to achieve the agreement and approval in principle that we received.
The neighbouring buildings and the owners of those buildings were very difficult in terms of dealing with them. While not being critical of the department, I think my observation through it all is that it has been a learning process not only for the City of Winnipeg but also for the region of Manitoba as far as what is termed "urban reserve," and we do not appreciate that term. It has never been done within our province. Our preference is to call it an" "economic development zone." We refer to it as that. However, policy dictates that we call it an "urban reserve," and that is how I will refer to it tonight.
Throughout that process, one of the things that we were required to do was meet with the citizens of Winnipeg, specifically those citizens within the area where our land is, and we had to meet with them as a condition. We had to allow them the opportunity to question us in terms of what our activities were to be on the land currently and in the future.
We took questions and took criticism, and we were criticized. There were suggestions that there would be a perception of First Nation communities: There would be dogs running around; there would be cars parked in there and rundown housing. However, we had clearly indicated our plans right from the get-go. The zoning that is in place where our land is purchased would be consistent with what we were going to do. We had no intention of doing anything different. Our purposes were for economic development, and so we maintained that. However, having to sit before people that were not your own was something that we should never had to have done. We should never have had to ask permission from anybody around us what our intentions were. We should never have had to ask anybody, and we had no way of confirming that the people that were sitting in that room were even from the city of Winnipeg. However, it was a condition that we had to meet, and we did it.
We also had to go two blocks in either direction of our property and knock on doors to explain to the citizens in the area what our intentions were. For the most part, we were received warmly — very few negative responses — but we did it. We accommodated the process at every step. However, in my point of view, the application for the additions to reserve policy is inconsistent not only from region to region but also within the province of Manitoba as it relates to what I refer to as "urban" and "non-urban." My definition of "urban" and "non-urban" is that within the city of Winnipeg is urban, and everywhere else is not.
In 1984, when our elder Ernie Daniels was chief of our community, he had 45 acres transferred to our community adjacent to the city of Portage la Prairie that came with status. We have had no issues with respect to that land or our relationship with the citizens of Portage la Prairie.
When we purchase agricultural land adjacent to our community, we have to address the municipal taxes that we have been paying since and establishing municipal service agreements with those municipalities whose services we will never use. We pay education taxes. That is not taken into consideration when we take our children to school outside of our community, but we have to pay. Specifically, within the city of Winnipeg, we received approval in principle, and we are very grateful for this opportunity to get that much closer to reaching our objectives, but the difference between the 1,900 acres that we have had approved is the regional director-general of Indian Affairs Manitoba signed the approval in principle. However, on the land we purchased within the city of Winnipeg, the minister had to sign. That is what I mean by inconsistent application of policy.
The municipal services agreement alone for our community took a year, and getting the approval in principle for our land took two years — far too long. Back when Ernie Daniels was chief of our community, it did not take that long and it came with status.
At the end of the day, I think the ultimate objective would be to provide input into a process that can be fair and applicable on all levels and consistent in application. I had the opportunity to sit in the room at a historic meeting, the Crown-First Nations Gathering, and I am very hopeful that something significant will occur with respect to education, economic development and lands.
When I look at our land in Winnipeg, all three of those components are within our property in the heart of Winnipeg. A day after I attended this important gathering, I was given news that an environmental assessment was required on our land in Winnipeg, which further delayed it for another six months. That was very unfortunate, but these are the policies we have to live by, and I have never been one to pound my fist on the desk. I prefer communication; however, when it comes to a policy that hinders you, your leadership and prevents progress, it is becoming very difficult to do.
Again, I thank you for the opportunity to address you. Meegwetch.
The Chair: Thank you.
Colleagues, I had the privilege of being with Long Plains on their economic development zone in Winnipeg, the 2.4 acres. They opened the Yellowquill College, and what they are doing there is impressive. We were taken through the entire facility, and it is inspiring. You can see what we have been studying on education is reflected in what they are doing, and it is as the chief points out: education, economic development and lands. It is an impressive operation, and the young people that were in there were totally enthusiastic and participating in the learning process. So what the chief has told you, I am sure that you believed him, but I wanted to share this with you.
Senator Campbell, you can lead off, please.
Senator Campbell: I was impressed with the discussion about the Winnipeg property. I am a former Mayor of Vancouver, and so what you described to me is essentially what a developer has to go through, at least in the city of Vancouver — the public hearings, the having to go around the two blocks; but then I found it interesting when you said that there was no zoning change to that.
One question I had was whether there is a difference between rural and urban, and clearly there is. Within the urban sphere, the difference between being signed off on rural land and being signed off on urban is not the fact that a city is the child of the province and, therefore, the city cannot sign off on this but the province has to. Would that be the reasoning that goes to that difference in signing from federal to provincial?
Mr. Meeches: Our experience with respect to the Province of Manitoba is that no conditions were imposed upon us by them with respect to the conversion of that land. We need to undertake a process within that structure next to deal with the Province of Manitoba, but we have been shown nothing but support by the provincial government.
I have to say, when I do a comparison with Saskatchewan and Manitoba, I always believed that an educational process was needed first in order to get these done quicker. I was advised to go speak to Saskatchewan, but Saskatchewan is Saskatchewan and Manitoba is Manitoba — significantly different. We were always told that breaking ground in Manitoba was always going to benefit somebody else, and sometimes it is hard to be the leader in a process where everything else after becomes easy. I think it is because it is a new concept within the city of Winnipeg, and that is why we faced the difficulties we did.
Senator Campbell: This land, was it going to be reserve land?
Mr. Meeches: Yes.
Senator Campbell: Would you pay taxes on that?
Mr. Meeches: We paid taxes prior to conversion. We are paying taxes now to the tune of $50,000 a year. Upon conversion, the municipal service agreement that we agreed to clearly indicates that the fee would be the same. On development it would be assessed on a yearly basis and that fee would increase based on the development on the land.
Senator Campbell: It would seem to me that one of the difficulties in this whole process is this silo-like atmosphere that the minister has. The ministry does not seem to be learning from what is happening in Saskatchewan, the good things that are happening, what is happening in Manitoba, what is happening in Ontario; but it almost seems silo-like. There does not seem to be any communication back and forth. Is that a correct assessment?
Mr. Meeches: With all due respect to the minister, I believe that as long as the process allows for discretion, region by region, it would always be difficult. I was talking to another former chief where I was advised that within 30 days it occurred in another province. However, in Manitoba it has taken three years. One of the most complicated processes that we are undergoing right now is what is referred to as the designation process, and clearly on the outset of purchasing this land we said it would be consistent with what it is zoned for now. Within the municipal services agreement, the city asked us what we were going to do. We clearly set that out; however, when it came to the whole process, it became bungled within the system.
Senator Campbell: Was it bare land?
Mr. Meeches: No, there was a building on it that was targeted to be demolished, but we renovated it.
Senator Patterson: Thank you for those very informative presentations. I just had one question for Chief Meeches following on Senator Campbell's questions. I am curious as to who required this meeting with the public even though you are in compliance with the zoning?
Mr. Meeches: It was the councillor of the riding where our land is situated, city council, but in particular that councillor. I guess with things being the way they are in politics, whether it be First Nation, municipal or federal, the City of Winnipeg was facing an election, and I suppose he wanted to face his constituents ensuring that their concerns were heard, so he had requested that we address the citizens for him.
Senator Patterson: It sounds like an undignified process that you were subjected to.
If I could turn to Ontario, I thank the grand chief for the presentation.
I have some specific questions. We got kind of a different story from the department the other day about how things were going. You told us that really things have not moved much since the Auditor General's quite critical report in 2005 was made. You talked about a lands management manual that was last updated in 2003. We were told by witnesses for the department earlier this week that there is now an ATR — I think they called it a tool kit — but it is a manual that had been completed as a result of these criticisms. Do you know about that or have you been informed about that?
Mr. Toulouse: I talked to two chiefs that I ran into today, Chief Joe Miskokomon from the Chippewas of The Thames and also Chief JimBob Marsden from Alderville. I asked them about the work they were doing on additions to reserves for their communities, and Chief JimBob Marsden essentially said in 1996 they were ready to go. It is 2012 now and there has been no change. He said there seems to be an appetite at the regional office to give the First Nation communities the runaround in terms of how they interpret this 800-page manual in terms of the policy, in terms of how to properly move the issue from lands that they purchased to additions to reserves through an order-in-council, and that is not happening.
Even if there is a tool kit, the problem we have in Ontario is that a lot of our proposals are what is called category 2 proposals, and it is these category 1 proposals that seem to have the legal obligation for the federal government to move. When it is the discretion of the Department of Indian Affairs, the officials at the regional office are blocking any ability of the First Nation to move to get an order-in-council recognized so they can do the kind of development on the property. As an example, Chief Marsden talked about right now they have what is called a FIT contract in Ontario from the Ontario government. They have had this contract since 2009. They do have the agreement with the banks to proceed, to ensure economic development for the prosperity that the community needs in terms of investment. Again, the region is not allowing the First Nation to get the order-in-council so that they can complete the economic transaction. That is just one example. This is the third project they have had on the same property since 1996. This one is a real contract, 20 years with the provincial government, and they are not getting anywhere.
The other example is that Chief Joe Miskokomon was telling me that he has been going to court for 17 years, trying to get his additions to reserves recognized by the federal government. Again, it is the same thing. He has economic opportunities. Chippewas of the Thames is on the main highway, where there is economic activity. He is just a couple of kilometres outside of London, Ontario, and the whole transportation route is passing. He said that they recognize the manufacturing ability, certainly the location where they are and the potential they have. However, again, they are faced with the regional Department of Indian Affairs finding ways to continue to just set it aside. Again, they have been in court for quite some time. To me, if we are talking about long-term prosperity, having the First Nations expend what little they have in the court system is not the way to create prosperity, but it creates the kind of dependence we have seen with the Indian Act for too long.
Senator Patterson: Thank you very much. I was going to ask you for some examples, and you answered that question.
I have one other quick question. You mentioned the challenge of third-party encumbrances and delay being kind of condoned by Canada or accepted by Canada. I wonder if there might be a place for alternative dispute resolution in such a situation, where the parties are willing that there would be an attempt to mediate or to bring parties together. I threw that out to the officials the other day.
What are your thoughts on resolving those impasses, or do you have other suggestions?
Mr. Toulouse: I will use as an example the Alderville community chief, Jim Bob Marsden. He said they have gone through these barriers. As an example of third-party encumbrances, he said they have 100 per cent backing and support from the townships within his First Nations communities. He said there was an election that took place a couple of months back. One of the candidates ran on the need to come back to this issue. He said there were a number of times when they went through their projects with 100 per cent support. Again, they are having to go back. I would hope that the 100 per cent support is still there, but he is saying it is an added hoop they have to jump through.
I do not think there is anything wrong with an alternative dispute resolution mechanism that would alleviate these kinds of timelines, if there is a set timeline that the alternative process could ensure. As I said, 1996, and the other one is 17 years. If an arbitration process or something like that is there, I am sure the First Nation community would essentially support the notion of having to get through the third-party encumbrances.
I have not heard. It is not to say those issues are not out there, especially when there is a large number of third-party considerations that must be dealt with.
Senator Raine: Thank you for being here. It is obviously a very complicated issue, because it is so different in different parts of the country.
Chief David Meeches, you were able to buy your land because you had a settlement from some outstanding issues, I guess, but you started in 1995. Obviously, you have done different kinds of property over the years. You mentioned that you bought property contiguous to your community at Portage la Prairie and that you have to pay service fees for services you will never use. Why do you not need those services?
Mr. Meeches: With respect to our community, we have 4,000 people. It is small, but within our area it is one of the biggest, when you compare it to some of the bigger First Nations. We have a lot of services that we developed over the years, such as a fire department. We have a policing agreement right now with the city of Portage la Prairie. We do not fall under Aboriginal policing; we fall under the real municipality of Portage la Prairie. We have our own road equipment.
When you enter into a municipal services agreement, you enter into an agreement that the municipality will provide you with these services. Clearly, if we had the capability ourselves, we would not require their services, including the equivalent of provincial education tax.
Senator Raine: Would you not be able to negotiate with them to charge you for the services that you do require and opt out of the ones you do not require? That would make logical sense.
Mr. Meeches: If I may answer a couple of questions with respect to the third-party difficulties we have, and also in terms of a recommendation.
Prior to conversion, when the land is purchased under our treaty land entitlement, for all intents and purposes it is reserve land already, in our perspective, because we use our treaty land entitlement to purchase that land. For all intents and purposes, it is reserve land, in our eyes. The minute we pay for the land, it is for our use.
I see two problems with that. We were informed within the Manitoba region that that land, if it is adjacent to your community, would be cost neutral to the department, meaning that we will never get funding for it. There is no opportunity to develop that land if it is not in an area other than agriculture.
The recommendation I would suggest is that the minute you buy the land, it should be approved in principle as reserve land and the third-party interests should be dealt with afterwards. When a municipality knows that your intention is to convert it to reserve status, they will oppose you. If they oppose you, it will never become reserve status, like the city of Winnipeg and like the citizens around us. Any building owner adjacent to our property, they have to access our land in order to back up their trucks. The conditions imposed are that you have to strike with them a cross- access agreement.
A strange thing happened when I was on the phone trying to negotiate these deals. I live within the city of Winnipeg. I was standing in my driveway, talking to an individual and trying to tell him that we will give him access. Someone pulled into my driveway for the purposes of turning his vehicle around. There is no requirement for me, as a citizen of Winnipeg, to have to deal with that individual so he can turn around in my driveway. However, when he came to our land in Winnipeg, they require that. That is what complicates these things.
The citizens around our land got together and said: There is an opportunity here for us. We can make some money off these people. Let us get together and take one position all together. If we take that position, they will never get reserve status.
That is what happened to us.
For the purposes of conversion, approval in principle should be received right away. The message is then sent. No matter what happens, if all conditions are met, this land purchased by this First Nation will be reserve status eventually.
Senator Raine: I guess from the city's point of view, they are worried about losing their tax base.
Mr. Meeches: The city lawyers were pretty clear that they did not want that to happen. That is why the Municipal Development & Services Agreement is based on an escalating fee consistent with the taxes they would have received if it was not reserve status.
Senator Raine: Exactly. You said it was not very nice to be the first ones going and breaking a trail.
Mr. Meeches: No.
Senator Raine: Obviously, you will help other people do the same thing because everybody is interested in having economic development take place for First Nations. Therefore, this is going to continue and hopefully people will get a little more used to it and stop putting up roadblocks because it is really not a very good thing. Congratulations for what you are doing.
Mr. Meeches: Thank you.
Senator Dennis Glen Patterson (Acting Chair) in the chair.
The Acting Chair: Senator St. Germain has asked me to take the chair temporarily.
Senator Lovelace Nicholas: Thank you for being here. Does Ontario have Crown lands set aside for First Nations?
Mr. Toulouse: There are First Nation communities, especially in southern Ontario, that are challenged by that. In the north, it is not a problem. The Chippewas of the Thames is an example in the south where they had purchased some property and they are paying the tax on that property. They are saying there has to be time limitations. We do not get any services for that property, and we do not get representation at the municipal level for the property they have. Again, there are absolutely no services in lieu of the taxes they are paying.
They are saying there has to be some time limitation on the bureaucracy's unwillingness to deal with the matter and finding any and every opportunity through this 800-page manual to give their own interpretation of why these are still barriers from getting the additions to reserve.
Again, there are those First Nations that just do not have any Crown property, and you mostly find those in southern First Nations communities.
Senator Lovelace Nicholas: If the Crown land is set aside for First Nations, why can they not have access to it? If there are no services out there, maybe at some point First Nations people will get those services. Thank you for your answer.
Why do you think it takes so long for First Nations' issues to be settled? Is it the federal government, the provincial government or both?
Mr. Toulouse: To me, there is no real commitment to explore the economic opportunities, and there is no commitment for long-term prosperity. All we have seen and the First Nations leaders who are attempting to get additions to their reserves have seen is the regional offices who have this responsibility and authority to deal with it are finding ways where they do not have the capacity or they do not want to transfer any capacity to the community level. That is key, and it is important for the ability to get through some of the challenges like the Ontario municipal board and the harmonization of various bylaws. All that work will not take place without capacity at the community level. There is also insufficient capacity at the regional level to deal with it from the government's end.
There are many reasons and excuses, but it is primarily a lack of capacity of why there is not enough movement, not enough resolutions and not enough orders-in-council at the end of day.
Senator Lovelace Nicholas: Are you saying they are not willing to work with First Nations on these issues?
Mr. Toulouse: They are finding any reason to interpret policy so as to not want to allow additions to reserves through orders-in-council, which is fairly easy in terms of those barriers I mentioned. They will use any one of those. For example, as soon as there is economic development attached to it, it is a category 2 and we are not in any rush to add that to the reserve.
The Acting Chair: That was not what we heard from the officials earlier this week. Thank you for the question and answer.
Senator Meredith: Thank you for appearing here today. Mr. Meeches, thank you for your presentation. I also sense your frustration and the fact that you are cool under pressure. I commend you for that. I know these situations are not easily overcome, but you know the end goal and you have been determined to play the game to ensure you get what you need for your people. I commend you for that. It is not always easy.
As someone who has run a business for 21 years now, economic development is near and dear to my heart. When you do not have those opportunities and you see your people suffering, it has to be frustrating but, as I said, I commend you for you what you are doing. Keep doing it.
If there is a parcel of land adjacent to reserve and you want to add additional land to it in terms of rural land, do you go through the same process?
Mr. Meeches: No. From my point of view, the rural process is significantly easier. Why I say that is primarily due to the fact that everything with respect to that land is dealt with within the region. The regional director within the Indian Affairs department and the regional lands department handle the file from beginning to end up to the approval and principle process.
Also, the third-party interests are easier to deal with because you are dealing with a municipal government, whereas urban is significantly different. You are dealing with all different levels, provincial, federal and municipal. It is significantly easier when it comes to rural lands because it is agricultural.
Senator Meredith: How do you deal with a third-party interest? Have there been opportunities in the urban setting, as you call it — they have called it "urban reserve" but you prefer to call it economic development — in terms of some sort of partnership with the city to get a quicker process? Has that been considered?
Mr. Meeches: As long as there is the opportunity for a degree of politics to be entered into the process, it would never be easy.
As I indicated, we were required to hold a public meeting. I never asked anybody why, but our perception was because there was a municipal election coming up.
The interests of where you will do it are significantly different. For example, in the southern part of Manitoba, there is no Crown land. If there was, we would be dealing with the federal government, and it would be significantly easier to do. Transfer and conversion to reserve status would be very easy, but there is no Crown land, so we have no alternative but to buy privately owned land.
I will tell you a story, if I may. In our area, it is well-known that my name is David Meeches and I am the Chief of Long Plain. I approached someone to buy a business property, a golf course. They said, "You are from Long Plain, right?" I said, "Yes, $6 million." We had an appraisal done under our private company — over $6 million in value. That is one the biggest problems that we face. As soon as landowners around Long Plain know we are looking for land, property values go up. That is one of the biggest hindrances that we have. When we settle our TLEs, we settle for a specific amount per acre. All of a sudden, we are buying land that has increased in value and everyone around us is consistent in terms of capitalizing. All of a sudden, everybody's land around us goes up. If it were Crown land, the value would be for Crown land. That is the biggest hindrance we face.
Senator Meredith: How do you deal with that in terms of the process by which you can cry that this is discriminatory? This is capitalizing upon your needs and the needs of your First Nations to expand.
Mr. Meeches: The sad reality is — and this is my own opinion on this — that for individual farmers it is becoming very difficult. It is sad because we also know that the Long Plain First Nation and many First Nations, all of them, will be around forever. However, land and landowners will exchange hands. The need for individuals with respect to selling their land always changes. It is a waiting game. However, when there is a timeline on the treaty in terms of buying your quota of land, that time needs to be extended.
Senator Meredith: Mr. Toulouse, you talked about FIT and the program with this particular reserve outside of London.
Mr. Toulouse: It is closer to Whitby or Oshawa.
Senator Meredith: Right. I am familiar with the FIT and the microFIT programs for renewable energy, and so on. In terms of process here, what are the excuses that they are giving you and giving these individuals who want to see economic development take place? They are not moving forward quickly with these initiatives that will create jobs for First Nations people and then create a better quality of life. What are the excuses?
Mr. Toulouse: Initially, again, I will talk to the Alderville issue; the FIT contract that we spoke about.
In 1996, they had a feasibility study to develop a golf course. The Department of Indian Affairs' regional office essentially did not think that that was real. The First Nation went through quite the expense. They then had a second project, which was a huge health spa. Again, the Department of Indian Affairs rejected the notion. At this particular time, the regional office of the Department of Indian Affairs told the chief, "You have a $25-million project; you have to have a bank. Which bank will give you this kind of loan or long-term loan?" However, they already had that with the bank. You have a 20- or 25-year FIT contract with the Ontario Energy Board and it is real, yet the government official, because it was a category 2, was not saying that this is a priority. Again, he was not recognizing that this was a real opportunity for the community but was preventing the community from doing it because he felt that the contract plus the bank that was already there waiting ready to sign on and ready for them to move was not real.
Senator Meredith: Can you release the name of this individual, the government official?
Mr. Toulouse: It is a regional office person out of Ontario. Again, I do not know —
Senator Meredith: I would like to have a conversation with this individual as to why you are standing in the way of economic development here.
Mr. Toulouse: I can tell you that there is the regional director and there is a lands department. I do have a name here; I am not sure if I should say it.
Senator Meredith: Give it to me off the record. That is fine.
Senator Gerry St. Germain (Chair) in the chair.
The Chair: I would like you to have a private conversation about that.
Senator Meredith: Thank you, chair; I appreciate that.
From the point of those individuals who want to move forward and the roadblocks that have been thrown up through the bureaucracy, and so forth, I can appreciate where you are coming from on this. It is important that we get these obstacles out of the way as quickly as possible so that we can see the progress that needs to take place, especially for our youth and creating jobs.
Thank you, Mr. Toulouse, for that.
The Chair: I do not want to stifle debate, but on policy on more than individual cases, as much as individual case haves to be cited, give examples.
Senator Sibbeston: This is what this committee lacked all along. We need someone like Senator Meredith to get results.
The Chair: You have done a pretty good job up to now, sir.
Senator Ataullahjan: A lot of my questions were asked and answered.
Chief Meeches, I admire your dignity and I admire what you did. As you said, you did not bang your fist on the table but you got things done. I commend you for that.
There are a large number of ATR projects existing in Manitoba and Saskatchewan than elsewhere in Canada. According to our regional chief of Ontario, this is because they are category 1 legal obligation versus category 2 in Ontario, where the policy and process may be clearer. Am I correct in saying this? Can you comment on this?
Mr. Meeches: I will defer that question to Mr. Perswain.
Vincent Perswain, Executive Director, Long Plain Trust, Long Plain First Nation: The legal obligation has first priority over other ATR submissions and that is what will be concentrated on first, other than the other categories. The legal obligation is concentrated on first. It is as simple as that.
Senator Ataullahjan: The policies are clearer in those provinces as compared to Ontario, is that it?
Mr. Perswain: The ATR policy is Canada's policy so it is right across the board. In Manitoba, Ontario and B.C. it is all the same. If there is a legal obligation, this is what comes first. In my opinion, it is the same; the delays are the same.
Senator Ataullahjan: It is across Canada?
Mr. Perswain: Yes; legal and other.
Senator Sibbeston: I do not know whether you gentlemen are aware of the workings of the Aboriginal affairs department, but in September 2010 the department released a final report called "Impact Evaluation of Contributions to Indian Bands for Land Management on Reserve."
Apparently, one of the things that the report recommended is that the department work toward a national ATR legislation. Do you feel that the process of a band acquiring land would be made better if there was legislation governing the whole process of attaining lands and adding them to your reserve? Have you given that any thought? You say that you are subject to policies and manuals and the whim of government officials. Sometimes they are fast; sometimes they are slow. It is just not a consistent one. The question is if there was legislation covering this whole process, would that help First Nations in our country at all?
Mr. Meeches: Well, there is no specific process that identifies how land is purchased. It is purchased through the process that is in place for anyone, whether it is First Nation, private or corporate. The process, in terms of purchasing land is consistent right across.
However, I think as it relates to the additions to reserves, purchasing is not a problem. It is the conversion to reserve status and the processes for that which becomes the problem.
With respect to capacity, I would be the first to tell you that when it comes to conversion, I am generally called in when we run into difficulty. Whether it is provincial, municipal or city, I will deal directly with the leadership of those areas; but when it comes down to a technical area, I would not have the time to sit with departmental staff and talk specifics.
I think what needs to occur as it relates to funding is that the department would have people come before you, funding services officers specific to a First Nation, and deal with you with respect to your funding levels. I think if anything is going to improve at the department, they need to increase staff to have more lands people dealing directly with First Nations, as opposed to a handful dealing with applications.
I have no idea at this point how many applications there are within the province of Manitoba. However, if they tell me that they are fast-tracking Long Plain's process within the city of Winnipeg, three years is pretty slow fast-tracking.
Mr. Toulouse: Let me start by saying if there is any legislation, it has to be discretionary to the First Nation. I did comment that the only bit of legislation that is available is the Claims Implementation Act. Again, it does not apply to Ontario First Nations.
If legislation was going to be addressed, I mention in my notes that there has to be an introduction and implementation of timelines into the operations. There has to be better strategic fiscal planning by the regional offices, introducing a way that assesses priorities in partnership with First Nations additions to reserve proposals. That means that the transactions and the costs could be forecasted in terms of what it is going to take.
Finally, we need the tools to address some of the third-party incumbents, including the departments working with the negative provincial positions. Again, it should address those. To me, that would mean that it at least minimizes the discretionary aspect of what we see continuing to happen in terms of how the department administers the policy now. It is too much discretion for individuals that do not want to see the kind of economic opportunities happen at the First Nation level. I do not know why.
Senator Demers: Mr. Toulouse, you have been here before, and the more I spend time with you, the more I respect you tremendously. It is impossible not to mention that.
I am going to ask you a question that may be difficult to answer. From all I heard and the passion of Senator Meredith, who is a very passionate man who just does not say things because there is a camera, is there some kind of racism going on here, considering that everything is in place and there is total honesty in your project? Are you able to answer that?
To Mr. Daniels, the elder, you have been very quiet. You have been in this for a long time. Have you seen what we see in 2012 coming in, in your past history, however far we could go? I will not mention any time? Do you see any major change from where you started and where we are today in 2012?
Mr. Toulouse: Let me just say yes to the first question in terms of whether there is racism going on. It is systemic. It has been there for as long as I can remember.
I was a chief in my community prior to being the Ontario regional chief for six terms, and I felt it. Every time we tried to find ways to get ahead, there were always barriers and blocks. There was always something that prevented the First Nation from progressing.
One of the reasons I decided to run for the regional chief was to look at these larger policies. What can we do at this level — as the national chief puts it — to break down those doors, kick down those doors and allow the First Nations to step in with their answers? They all have answers; they all have solutions to the issues in the First Nation community.
It is not like they have not thought about this. They have been grappling with this, and they have proposals after proposals in terms of the kind of self-governance and self-determination, the need to build the kind of institutions that they need; but it has always been blocked and prevented by policy of government for some reason that does not want to see the First Nations get ahead.
Ernie Daniels, Elder, Long Plain First Nation: Thank you, chief, for introducing me earlier. Before I make a statement, I understand this is a public domain, a public forum. I understand the departmental officials came here and made a presentation. I would like to see their transcript — what they said. Is that available to us?
The Chair: Yes, it is. It will be made available to you. I do not know whether it is printed yet, but it may be available. It will be emailed to you, Elder Daniels.
Mr. Ernie Daniels: Through Long Plain?
The Chair: Yes.
Mr. Ernie Daniels: Thank you.
I do not know if it is the politicians or the legal community that coined the phrase "justice delayed is justice denied." This applies to us too, maybe not in the courts, but in terms of the delay that is happening. You have heard the grand chief talk and my chief talk about the delay that is happening in regard to the betterment of our people, capacity building.
I drew a line here when I was sitting here hearing what you people had to say and my chief. Back in the 1970s and 1980s, that is the era I come from, there was an era of goodwill, handshakes, cordial meetings where we solved our problems. We had grievances, and they gave us a remedy for some of the things that we were dealing with. One of the things was at that time people that were in power foresaw the town coming, so I approached them. We have this land in Portage la Prairie, 43 acres of surplus land. We negotiated over our dinner, and within six months we had that land.
However, something changed in the 1980s. I am not a card carrying member of any party, whether it is NDP, Liberal or Conservative. You people are all the same to me; but during the 1980s, something changed. I do not know what happened.
I remember the minister of Indian Affairs at the time touring Manitoba. He was promoting AFA, alternate financial agreements, whatever that is called — block funding. In one of those meetings, he stated that there would be no more reserves added in Canada. I guess that is where the ATR came to be.
The late Jim Gallo, a good friend of mine, worked for the department. He used to work for us as a researcher on lands. "You know, chief," he said, "ATR is a nightmare — a nightmare for First Nations and a nightmare for the bureaucracy."
Somebody asked about racism here. I am not a person that is very subtle diplomatically, like my chief in many ways. He says it is a systemic, institutionalized attitude toward us First Nations and our attempts to better our lives for our kids, our community.
I see the frustration of our chiefs trying to improve our lives, but there is a bureaucracy that is blocking us. There are barriers. I say that with emotion. CBC National News had a special two or three weeks ago about urban reserves, but the focus was on Saskatchewan. I believe 49 have now been negotiated; little parcels of land in urban settings in good faith, and 49 are pending to be negotiated. In Manitoba we are looking at about four or five First Nations that are negotiating reserves in urban areas. Why? My grand chief — or Grand Chief of Ontario — and each region has different interpretation of that policy. It is very frustrating, to say the least, in terms of this attitude that exists today and existed during the 1990s. We did not have that in the 1970s and 1980s, and got things done. We got the first Yellowquill College in those years and negotiated no problem. We got our first child and family services because our kids were being adopted out of state and out of country. We created our own family services.
Many things happened over those years when there was goodwill, but that goodwill is gone. I say that in respect of ATR. It is a very frustrating exercise. It is a frustrating policy. The way I look at things in regard to that policy is it almost borders on cultural genocide sometimes.
I thank the senator who asked the question and gave me the opportunity to speak. Meegwetch.
Senator Demers: Thank you very much. Coming from people who have lived difficult experiences — I do not know that but I am sure you have, and just to look at your face it has been hard — the answer was exactly what I thought you would say.
Chair and Senator St. Germain, I apologize for the question I asked Chief Toulouse. I did not want to embarrass, but it is a question I had to ask. I hope you understand. Thank you very much.
The Chair: You are more than welcome.
Colleagues, that completes our list. I had the privilege of working with Manitoba and Grand Chief Toulouse over the years on education and economic development, led off by Senator Sibbeston when he sat in this chair. I understand the frustrations, and that is what we were trying to ferret out, Elder Daniels. That is why we were holding the hearings on ATR right now.
We recognize the roadblocks that are out there — unnecessarily in a lot of cases — and hopefully we can come up with the recommendations. Our studies are non-partisan. I like to sit in this room and not even think that there is anyone but Canadian senators working on behalf of the constituency that we are serving; the Aboriginal peoples of Canada.
I think it is working because our recommendations are being taken seriously. Our educational study that we just came out with has received rave reviews. The people that are here are the ones that did it. It is not a conservative report, it is not a Liberal report, and it is not an NDP report. It is a report of concerned Canadians who have had the honour of being able to serve in the Senate. Hopefully we can provide you with some of the assistance and tools that will expedite economic development so your young people will be able to share in the Canadian dream.
I thank all of you for coming tonight.
Senator Meredith: Chair, I echo exactly what you just said, and I also had the privilege of attending the First Nation's Conference. Let me say that you have some stakeholders here that are sitting at this table. Do not lose hope. There are people that are fighting to see change in this country — particularly in our chair — to make sure that all people in this country are treated fairly and equally, have access to the best quality of life, education, health, and economic opportunities. Our Prime Minister is committing to that by this gathering.
Chief Meeches, you indicated that you were a little disheartened by six months of environmental assessments and so on. Keep moving forward, and know that you have some backers at this table. We are one family at this table with respect to the issues of the Aboriginal people. I concur with what the chair has indicated. Keep moving forward. You have got some supporters. Blessings.
Senator Demers: Hear, hear.
The Chair: The meeting is adjourned.
(The committee adjourned.)