Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 15 - Evidence - April 3, 2012
OTTAWA, Tuesday, April 3, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 9:31 a.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: 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 either on CPAC or on the web.
I am Senator Gerry St. Germain 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 continuing our study of 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 of First Nations peoples 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 Policy.
Witnesses for this study are asked to provide their views and observations on the current ATR policy and its associated processes and are encouraged to offer their suggestions on how to overcome the various deficiencies within the current policy and process.
This morning, we will hear from two organizations, the First Nations Tax Commission and the Assembly of First Nations.
[Translation]
Before we hear from our witnesses, I would like to introduce the members of the committee here this morning.
[English]
The deputy chair of the committee is Senator Lillian Dyck, from the province of Saskatchewan. Next to her is Senator Jane Cordy, from the province of Nova Scotia. On my right are: Senator Nancy Greene Raine, from British Columbia; Senator Vernon White, from Ontario; and Senator Jacques Demers, from Quebec.
Members of the committee, would you please help me in greeting our first witness? From the First Nations Tax Commission, we welcome Manny Jules, Chief Commissioner and Chief Executive Officer.
We look forward to your presentation, which will be followed by questions from senators. My good friend, Manny, you have the floor.
C.T. (Manny) Jules, Chief Commissioner and Chief Executive Officer, First Nations Tax Commission: Thank you. First, I want to congratulate you on your recent national achievement award for all of your work and dedication.
Hon. Senators: Hear, hear.
Mr. Jules: I did not get a chance to watch it, but I was intrigued that the other senator, Brazeau, did not float like a butterfly or sting like a bee. I also have to mention that I am a huge — I do not know what happened, Jacques — Habs fan.
Senator Demers: We all know what happened — I left!
Mr. Jules: You left! I liked you until then.
The Chair: The cause was great. They raised a lot of money for cancer research.
Mr. Jules: $250,000 is fantastic.
There is no way I would enter into that kind of a situation and cut my hair.
It is a privilege to address the Senate about realizing the economic potential of Additions to Reserves. I have a great deal of respect for the Senate. You perform excellent research and suggest solutions that shape a better Canada for all of us.
Your recent studies and recommendations on education, health care, an aging population, and national security have informed debate and led to legislation and fiscal changes that have helped make Canada what I believe is the best governed nation on earth. The Senate's report on Aboriginal economic development, a few years ago, made my father proud because it recognized that we will always be disadvantaged until we have sufficient local powers to operate at the speed of business.
I have worked closely with the Senate before on previous First Nation legislation such as the first Indian-led amendment to the Indian Act in 1988 and the First Nations Fiscal and Statistical Management Act in 2005.
It gives me hope that the Senate has decided to study the Additions to Reserves process. I am sure that the committee is by now very familiar with the problems of ATR.
First, it is too slow and cumbersome to complete. It is my understanding that it takes, on average, three to four times long than a municipal boundary expansion. There are examples where it has taken over 20 years.
Second, it has mostly been an economic failure. Even when ATRs are completed, they fail economically because they convert valuable fee simple interests into a less valuable Indian reserve. Estimates vary, but, in many cases, 90 per cent of the fee simple value is lost because Indian reserves have much less tenure and investor certainty and often have restricted markets.
The problem with ATRs is that they make formerly productive lands unproductive by converting valuable fee simple land into Indian reserves. Reserve lands are generally about one tenth as productive as other lands in Canada. They are subject to systems of governance and land tenure that make it very difficult to do business or attract investment. People who grow up on unproductive lands are going to be less productive themselves. The current ATR process spends enormous government resources that, at the end of the day, make us less productive.
For many First Nations, this loss of value presents them with a dilemma: maintain value through fee simple ownership and lose jurisdiction, or gain jurisdiction through an ATR and lose value.
Here are a couple of examples that I am familiar with: There is a Treaty Land Entitlement First Nations in Manitoba that was able to purchase valuable land just outside Winnipeg. They would like to attract commercial and residential investment to this land and have been approached by several developers. Unfortunately, they have to wait until their ATR process has been completed. They have had to develop the legal and administrative framework necessary to give investors enough certainty. This could take a decade. Think of how much investment they will lose. Think of how many employment opportunities they will lose. Think of how much public revenue they will lose to provide quality local services. There is another First Nations that I am aware of in Alberta that would like to pursue a resource development opportunity. They fear that by creating more reserve land governed under the Indian Act, they will destroy this economic opportunity. They are not sure whether to forego their jurisdiction so they can build their economy. It is tragic that the ATR system creates this stark choice between jurisdiction and economic value.
It is clear that the status quo is not working. I have been working with a number of First Nations to develop the concept of the proposed First Nations property ownership legislation that can resolve this issue. The proposed legislation will transfer title to our lands from Canada to the First Nation. Then the First Nation, if it chooses, can grant title to individuals. The legislation will confirm our permanent jurisdiction over the lands and taxation. In this way, First Nations can use this legislation to preserve the market value of their ATR and maintain their jurisdiction over these lands in perpetuity.
The ATR process should be adapted to allow First Nations property ownership lands, FNPO as we call it, as an option. This would have immediate benefits in Saskatchewan and Manitoba. In Saskatchewan, 25 First Nations are spending $440 million to purchase land as part of the Saskatchewan Treaty Land Entitlement Framework Agreement. Over 1 million acres of land are being added in Manitoba through the Manitoba TLE Framework Agreement. These lands could provide locations nearer to markets for these First Nations. FNPO status would allow these lands to become more productive. They would be able to provide home ownership, home equity and business investment opportunities.
It is no coincidence that the government made a commitment to developing the FNPO legislation in the budget on March 29. Like me, the government recognized that FNPO will help bring us into the economy. This budget accurately frames our policy challenge for the next 30 years. In 20 years, two workers will have to be as productive as seven workers were in the 1970s. If we cannot make these two workers as productive, then we must accept some combination of cutbacks in government, reductions in personal disposable income and longer working hours or delayed retirements. If we become poorer, politics will become more divisive because it will be a fight over who bears the most pain. None of us want that.
We must create the conditions that lead to long-term economic growth in Canada. First Nations must be a part of the productivity strategy. We are a younger population. Over the next 20 years, 1 in 10 new workers will be a First Nations person. Currently, we are the most under employed component of the workforce. If we remain under employed, Canada's productivity challenge will become even more difficult.
FNPO will make First Nations lands and individuals more productive. The legislation will reduce tenure uncertainty and investor certainty. It will reduce the costs associated with business transactions, such as issuing a mortgage, transferring title and securing financing. It will confirm and help implement First Nation jurisdiction, thus enabling an open market on ATRs.
The titles of reserves are held by Canada. The titles of FNPO lands will be held by First Nations. Individual ownership will be limited to certificates of possession and leases on reserves. FNPO land will allow fee simple ownership. FNPO will have the same tenure certainty as other lands in Canada. It will mean that we can obtain mortgages, build equity, finance businesses and transfer wealth to our children just like other Canadians do. This is an opportunity to free the imaginations of our entrepreneurs, raise our productivity, escape dependency and begin to restore our culture of independence.
The Indian Act has frozen the development of the legal and administrative framework on First Nations lands in the 19th century. The proposed First Nations property ownership legislation will create a 21st century legal and administrative framework that will utilize the best practices in provincial, federal and local systems across Canada. It will create default standardization laws so that First Nations do not have to spend years developing their legal framework. We will utilize the highly successful training techniques at the Tulo Centre of Indigenous Economics. We will build local capacity and implement investment-oriented administrative systems. This will reduce investor costs and will mean that First Nations governments can finally move at the speed of business. Markets on reserves are often limited to band members only or those interested in purchasing a lease. The band member market is small. The leasehold market is larger, but at best represents 65 per cent of the fee simple market. That is a local estimate from Sun Rivers.
The proposed FNPO legislation will create the opportunity for fee simple tenure and a Torrens land title registry system. It should enable an open market and property values that are the same as they would be in the neighbouring jurisdiction.
The First Nations Tax Commission contracted research to estimate the benefits of applying the property ownership legislation to ATR lands. Despite using very conservative estimates, the results are impressive. It is estimated that during the next 15 years, a combination of FNPO, ATR and more open markets could generate $3.7 billion in investment, create 30,000 employment opportunities and lead to $48 million in annual property tax revenues to provide local services and build infrastructure. These are conservative estimates because we assumed that only 1 per cent of the TLE lands in Saskatchewan and Manitoba will become FNPO lands. No other province was considered. We assumed that only 40 per cent of the 1 per cent will be developed over the next 15 years. We also assumed that the values will approach the current values of smaller communities and rural areas over time. Saskatoon, Regina and Winnipeg values were not included.
Finally, we did not include resource development opportunities, only commercial and residential. An investment of $3.7 billion represents much less than 1 per cent of the anticipated total investment in these provinces over the next 15 years. The benefits will likely be much higher. In addition to providing significant economic benefits, FNPO will better protect First Nations lands than the current system because participating First Nations will set aside First Nations community lands.
This initiative has often been criticized because there is a fear that First Nations will sell all their lands. This is ridiculous. Over 90 per cent of land in Canada is held by the Crown. First Nations will likely be similar. This is why we assumed that less than one half of 1 per cent of TLE lands will be developed as a result of FNPO over the next 15 years. Moreover, as we say at the tax commission, "investors are taxpayers." Many First Nations have already pursued a great deal of investment on their lands, and under FNPO they can facilitate more. We are not afraid of investment. FNPO will mean that First Nations will always have tax and land management jurisdiction over their lands, regardless of who lives there. First Nations will have the power of expropriation, and these lands will revert back to the First Nations government in certain situations. FNPO lands will be like those in rest of Canada. If I buy land in Ottawa from a senator it remains in Ottawa; it does not become Tk'emlups. Similarly, if a senator bought lands in Tk'emlups it would always remain and be Tk'emlups land.
Making FNPO an option for ATRs will create incentives for resolving issues surrounding ATRs. The current process is difficult because it makes productive lands non-productive. This creates tax losses and it reduces the value of interests in that land. FNPO will provide resources to the First Nation government to contribute to and improve local services and regional infrastructure. FNPO lands will remain productive. It will be easier to reach agreement with other governments and interests on the land regarding the transformation.
Improving the productivity of First Nation lands will make other First Nations initiatives more effective. Investments in First Nations education will work better when the people receiving that education are living on productive land. People need to be exposed to workplace opportunities and business success stories early in life so they can see the value of education.
It will be easier to reach agreement on resource developments when First Nations have productive land. At present, First Nations are only able to receive a tiny part of the benefit from resource development in their current land and traditional territories. They miss out on most of the benefits of investment because it is so difficult to do business on their land. Consequently, they focus on receiving a large share of a relatively tiny part of the benefit stream and it is much harder to reach agreement. When First Nations are able to fully share in benefits, agreements will be easier to reach.
Social problems follow from a lack of opportunity. The platform of addressing social problems must be an economic one that starts from making our lands more productive.
In closing, we are looking forward to working with Parliament and the Senate over the coming months to develop and implement the proposed First Nations Property Ownership Act. On March 29, the federal government committed to work with the tax commission and proponent First Nations towards optional FNPO legislation. We are accepting this challenge and opportunity, and hope to be discussing FNPO legislation with the Senate before Christmas. This is an historic opportunity for Canada to reduce First Nation economic disadvantage and realize the great promise of ATRs.
In 1910, my ancestors issued a statement to Prime Minister Wilfrid Laurier. We call it the "Shuswap memorial" because it has guided every one of our leaders since then. In that statement we speak about how we find ourselves without any real home in our own country. We speak to our loss of our houses and ranches. We remind the Prime Minister that we expect much of him as the head of this great Canadian nation, and feel confident he will see and that we will receive fair and honourable treatment.
It has been over 100 years since we made our case to Canada, but I believe that with the passage of the proposed Firsts Nation Property Ownership Act that, in the words of my ancestors, we will make each other great and good.
The Chair: Thank you. I will ask the first question.
I have heard a criticism about the FNPO. How will you establish what land on a reserve is communal as opposed to that being set up under the First Nations property ownership? How will the present CPs, the certificates of possession, be dealt with equitably on reserve? That is the issue that has been brought up to me by others. As you know, I have been around and I like the concept, but how do you bring fairness to the formula as you go forward in regard to CPs and also establishing what will be kept as communal lands for the band?
Mr. Jules: All of the communities in which we are working on this initiative at present have gone through their own community consultation process and have lain out in broad terms their comprehensive community development plan. Within that concept they have set aside lands for public uses, i.e. graveyards, churches, community centres and educational facilities like schools. Other lands will be set aside for residential development, commercial development and lands that will remain communal lands. As I mentioned in my presentation, we anticipate that the majority of lands will be and continue to be held as communal lands.
As far as the certificate of possession issue goes, this has been a concern by individual certificate of possession holders. There is not a lot of trust between the CP holders and the band councils, if you will, and one process that we have designed as part of the transition from the Indian reserve to FNPO lands is that certificates of possession lands would be automatically rolled into that process if it is the wish of the community.
As I envision it, the vote would be a vote from the community after consultation and discussion about the concepts. We must ensure that lands will be preserved are part of the equation, that certificates of possession processes and indeed conflicts in the past will be part of the process so that they can be resolved. We will need to have a fair and equitable transition between Indian reserves to individual fee simple ownership.
The Chair: Has any of this taken place to date?
Mr. Jules: No. As you know, the announcement was made just last Thursday in the federal budget. Of course, we have to develop legislation, et cetera, so it will be some time before we get to the stage where we have actually got legislation before the Senate.
The Chair: We now have with us Senator Patterson from Nunavut, Senator Meredith from Ontario and Senator Sibbeston from the Northwest Territories.
Senator White: We had a presentation from the Auditor General about the challenges around movement of land to this process. Is there something you would know would stop the federal government from expropriating at value instead of purchasing at price, which seems to be a variance between the real value and the price value?
Second, why would they not then take it and move it into lands set aside pending the transfer to the First Nation rather than the manner in which they are doing it now? Perhaps it was Senator Dyck who talked about the price being twice or three times higher by the time it is actually purchased. Is there something you know that would stop the federal government from doing that rather than the process being followed?
Mr. Jules: I was involved in a situation where we were trying to resolve issues surrounding lands that were taken away from us in the 1800s, called the Douglas Reserve trench cut-offs. For many decades we tried to purchase land from an adjoining ranch to be added ultimately to the reserve. One thing we found, as soon as they realized the federal government was potentially behind this, the land value surprisingly went up 10-fold. In finalizing the negotiations between ourselves and the rancher, we had independent advice from our own appraisers. I told Raymond Kerr to get an appraiser and we will get one. If there is a conflict we will bring someone in to finalize the agreement. At the end of the day, because we were able to structure the agreements, both parties benefited. As part of the settlement we agreed to spread the payments over a couple of years. That benefited him in terms of the capital gains tax and it was finalized.
I remember the process in Saskatchewan where the municipalities came forward and Minister McKnight at the time had to put an additional $35 million on the table to placate the municipal governments of Saskatchewan because they were afraid of losing tax revenues. That is why I feel that through the development of FNPO lands we would have a more even playing field. The land values would be similar.
My experience is you have to begin to deal with these issues early on. If there are areas where there are municipal governments involved, let us start doing that process right now.
To that end, we are undertaking a process between the First Nations Tax Commission and the Union of British Columbia Municipalities to do a second study in British Columbia looking at the economic benefits of having treaty land settlements as well as what I call the "orderly expansion of our land base."
Senator White: I certainly would not question the value in that. Given the point you made about how long it takes, is there an opportunity to roll it into land set aside, which means that it is under the authority of the First Nation, if not under its control?
Mr. Jules: The dilemma that the government has is that, when they look at lands or real estate, it is a liability. Any time you are adding land to an Indian reserve, it is a federal liability because, ultimately, they will have to spend more money, whether it be in services, infrastructure, education, social development, or all of those areas. That is one of the reasons I feel that it takes so long and the process is so convoluted to deal with outstanding issues that have been with us in excess of, in many cases, a hundred years.
I think that we have to have a new approach. The land values that have to be brought to bear are ones of the twenty- first century, not ones of the nineteenth.
Senator Demers: Chief Jules, thank you for a really solid presentation. You talked about long-term growth in Canada, underemployment and all that. With the land, how could you use the land more effectively for better education, better growth, stronger values, and means of building and preparing for the future? Every time we have sat here, that seems to be a major problem. When you talk about growth, land is so precious for you. How do you see this in the future, chief?
Mr. Jules: One thing that is critically important about education is that it is an investment into the future. Again, I have to restate the support that the Senate gave to the budget announcement of in excess of $200 million plus infrastructure for schools and education.
The problem with the approach, though, is that it is really putting water into sand. In the next few years there will have to be another investment — probably very similar — for education. There is not the mechanism available to us to educate ourselves any more. There is such a culture of dependence within our communities that we cannot send our own children to college or university or to a technical school because we have no home equity, so you end up having a vicious cycle. We have to begin to create an entrepreneurial middle class so that individual First Nations can have home equity, pass on wealth, and educate their children at their own speed, as opposed to having a complete dependence on the federal government.
This, of course, will take some time to accomplish, but if you make the investment in what I am proposing, which is the optional legislation to create First Nations private property rights, I think that, over the coming generations, you will see a marked decrease in the social policy issues that the federal government is presently having to deal with and will continue to deal with in the foreseeable future.
Senator Demers: Good answer, chief. Thank you, Mr. Chair.
Senator Dyck: Thank you for your presentations, Chief Jules. I am from Saskatchewan, and you did mention Saskatchewan. I believe Saskatchewan has had Additions to Reserves — probably one of the first, over 25 years ago. Muskeg Lake Cree Nation has property in Sutherland, which is part of Saskatoon. I think we have about six parcels of land in Saskatoon that are owned by different First Nations. I have two questions. One is with regard to Saskatchewan. What is it that facilitated the process in Saskatchewan? I think you alluded to that a little bit when you mentioned Bill McKnight.
The other question would be: In that process, did it also take decades to accomplish? Could we not use the information that was learned there to help speed up the process in other provinces such as Manitoba?
Mr. Jules: As you know, with the Treaty Land Entitlement, a lot of the numbered treaties were entered into in the nineteenth century. It took many decades for the federal and provincial governments to recognize that there was a lawful obligation. That led to an agreement between the federal and First Nations governments, which put them in a position to begin to deal with the provincial interests. The way I view the country is that, really, the two Crowns are indefeasible when you deal with First Nations issues. You have to deal not only with the federal government but also with the provincial interests. In this particular case, the provincial government had to come to the table and agree that there would be land transferred and then turned into a reserve. That process, in and of itself, took a considerable amount of time. At the same time, there had to be an agreement between the federal and municipal governments, really a buyout for the long-term taxable interests that the municipalities purported to lose as a result of the TLEs.
Looking at the experience that happened in Saskatchewan, I believe that there are lessons to be learned. However, at the same time, we are creating a situation where we just simply turned them into Indian reserves again, so we are faced with the dilemma of having the loss of jurisdiction or retaining land value.
What I am proposing, through the FNPO, is that we turn those lands not into Indian reserves whose title is vested in Her Majesty but into title vested in the First Nations so that we can retain the land value as well as have jurisdiction, in perpetuity, over those lands.
Senator Dyck: If I could, I have a follow-up question. As I understood it, too, in those cases the land would have been reserve land. However, there are a number of examples in Saskatchewan where those reserve lands have become very productive, so could you have a particular First Nations who may choose to have land that is reserve status and also have land that is fee simple? Is that possible?
Mr. Jules: That is one of the things I am proposing, that First Nations have the ability to make those informed decisions themselves.
Senator Dyck: They could have fee simple land in Saskatoon, let us say, and reserve land in Prince Albert for the same First Nations?
Mr. Jules: That is a definite possibility, yes. Of course, the dilemma you have in retaining reserve lands is that you never own them. They are owned by the federal government. Those are the kinds of questions, ultimately, that the First Nation community has to address. My view is that you could still have them as First Nations lands and retain them wherever they happen to be and have fee simple ownership.
Senator Dyck: Could I ask another short question? There must be an advantage, then, to retaining it as reserve land? What would that advantage be?
Mr. Jules: I really do not see that advantage. I am not here to advocate the retention of Indian reserve lands. That is the dilemma that we have with the Indian Act. How do you begin to hive off areas that should not exist any longer? My view is that the Indian Act should not exist, and that includes the lands being vested in Her Majesty.
The Chair: For clarification, part of the reserve would remain federal Crown land, whereas, under the new act that you are proposing, those that would be fee simple would be owned by the band?
Mr. Jules: The title of the existing land, in my case Tk'emlups, is vested in Her Majesty. An Indian reserve means attractive land the title of which is vested in Her Majesty. I am suggesting that those lands be transferred to my community. My community would have jurisdiction and title to those lands in perpetuity and be in a position to issue fee simple ownership to individual First Nations.
The Chair: That would mean all the lands of Tk'emlups.
Senator Meredith: We have had other witnesses appear before us and we have talked about the lengthy process of ATRs. My questions to you are: First, why is there such a huge gap between the municipal boundaries and the ATRs? Second, what would it take for the legislation to expedite this process to ensure that First Nations get access to these lands — you talked about economic empowerment?
Mr. Jules: We looked at the areas in terms of having orderly municipal expansion and at the processes provincially. One of the places we looked at was in the United States where the City of Houston has an ability to expand its municipal boundaries on a yearly basis to keep up with the growth. First Nations basically have been frozen in time with no ability to have an orderly expansion of their land base; and that has to change. Underlying our dilemma is how best to expand the current land base in an orderly fashion to facilitate economic development and growth, given the lawful obligations that Canada and the provincial governments have over that. If it is done under the existing regime, you will still be faced with the dilemma that you are trying to study. It will take anywhere from one to two decades or maybe even 100 hundred years to resolve, which will lead to further conflict.
The reason for the underlying problem is Crown liability. That attitude has to change, which would be in the best interests of Canada. We have to be able to transfer land that retains its value and becomes just as productive as it was formerly. When you transfer lands from provincial fee simple ownership, if you will, to Indian reserves, it becomes underproductive. The studies we have done show that it has one tenth of its former productivity.
In terms of the legislation, I am proposing an orderly expansion of those lands with the agreement of all parties. To achieve that, the federal government has to pass legislation. Ultimately, there has to be parallel provincial legislation to facilitate it, because you are dealing with situations where there will be Crown provincial lands. Those two have to go hand-in-glove, if you will. Then, you need to have an orderly process to facilitate First Nations municipal, county and regional district agreements. The situation at Muskeg Lake was mentioned. There are agreements between Muskeg Lake and Saskatoon for the provision of services, i.e. water, fire protection, police and those kinds of things.
It really comes down to a formula between the municipality and the First Nations to come to an agreement. Getting there, as we found in British Columbia when moving from a no-tax jurisdiction to a tax jurisdiction, can bring out heated feelings, which have built up over a long period of time between the two parties.
Senator Meredith: You mentioned that social problem is an economic one and one believes in the engagement, encouragement and empowerment of people. Elaborate for me a little on the positive effects once First Nations people are economically empowered. How will that affect the social issues you face currently?
Mr. Jules: I view many of the social issues that we face in our communities as a direct result of the social policy that we find ourselves in. It is akin to what happened with the early settlements of reserve lands — lots of tribute, lots of social welfare, free coffee, free tobacco — the kind of stuff that happened early on. It created a culture of dependence because we cannot make the decisions economically for ourselves. That is why the B.C. treaty process has been critically important. Look at what the Nisga'a have been able to achieve. It places the responsibility of economic development and growth in their hands as opposed to the hands of someone else.
Senator Sibbeston: Mr. Jules, it is laudable that you are involved in such an undertaking with respect to getting band ownership of lands. What provisions or restrictions would you have for alienating those lands and burdening them excessively so that they become subject to the government having to sell the land and so forth — the sort of thing that normally happens in foreclosures? Have you thought of that?
Mr. Jules: Yes, obviously. One of the dilemmas on Indian reserves is that they are not mortgageable. In order to build a home on an Indian reserve, you first have to go to the band council and to a minister of Indian Affairs to obtain a ministerial guarantee for the construction of the home. According to the statistics available to us now, we will have either 200 years to wait or 850 years to wait, depending on those statistics. Therefore, we will never break the cycle of dependence when it comes to housing without thinking outside the Indian Act box. When you think about creating mortgageable interests on our lands, you have to think of it in terms of being able to operate within a free market system — being able to go to a Bank of Montreal or a Royal Bank or a Caisse Populaire. When you do that, you are no longer dealing with a program but with someone who is employable and has a track record. The best candidates will go forward and get a mortgage. That does not lessen any government's responsibility over the construction of social homes.
You have to be cognizant of us moving toward a free market system while at the same time allowing First Nations governments to put in the kinds of foreclosure requirements that are necessary and to balance all of those interests.
Senator Raine: Mr. Jules, it is always good to have your perspective because you and your father have worked on this issue for so many years. When we look at what is happening in other provinces with treaties and additions to reserves, which they are entitled to, taking so long, do you see any way that FNPO legislation would be able to quicken that process by becoming a vehicle that is more comfortable? For instance, are municipalities slowing the process?
Mr. Jules: Indeed, the federal and provincial governments are part of that equation also. I believe that the passage of FNPO legislation will facilitate greater ease of having an orderly expansion of our land base simply because we would not need to contend with the federal notion of liability over those lands. That in and of itself will quicken the process.
I also believe that in dealing with the provincial governments, because of the whole nature of the conflicts as we have witnessed here in Ontario, every provincial government I have talked to recognizes the need of having urban reserves or urban land bases for economic development, providing an economic future and having an orderly expansion of the land base to ease the conflicts that are happening all over the country.
Yes, it will facilitate a greater and easier expansion of the ATR question related to the FNPO lands.
Senator Raine: Do you see, you call them urban reserves, being taxed by the municipality or by the First Nations?
Mr. Jules: Obviously, they have to be taxed by the First Nations. When you have FNPO lands, the jurisdiction has to go with those lands. You will not get into a situation where you will have a land base and then allow another government to assume jurisdiction over it.
Senator Raine: When you have that situation, the logical thing would be for the First Nation to enter into a service agreement more or less equal to the existing taxes, so the service costs for that area . . .
Mr. Jules: What we found in our analysis of local service agreements is it comes down to a formula. It is getting both parties to agree to that formula, based on the jurisdiction that both parties bring to bear. If the First Nation has the jurisdiction, that makes it easier to facilitate.
I have been involved in some very controversial situations, such as Musqueam and the City of Vancouver, and that took a couple of years to settle. At the end of the day, it is about bringing people together and recognizing that it is in their long-term economic interests to have a regional approach to economic development.
Senator Patterson: First, I would like to congratulate Chief Commissioner Jules. With respect to the announcement in the federal budget, which you obviously welcomed, I think you deserve some credit for having promoted that approach. Thank you for the very compelling case you made in favour and for dealing with some of the criticisms anticipated against.
I have two questions. One, did I understand that the First Nations Tax Commission is expected to have a role in recommending legislation?
Mr. Jules: We are working with a number of First Nations that are proponents of the legislation, so we are facilitating the discussions. I advocate this because of the practical experience I have gained over 38 years, first as a council member, then as a chief of my community, as well as being active in local, regional, provincial and federal spheres of politics.
Senator Patterson: You said you might be targeting the fall to have something to presumably recommend to the government. Did I understand that right?
Mr. Jules: Obviously, I am an optimist.
Senator Patterson: Maybe you said December.
Mr. Jules: If all the stars line up, I would love to have this here later on this year for the Senate's consideration and having Royal Assent on December 21 before the end of the world, but we will see.
Senator Patterson: This concern that First Nations lands will be alienated and lost to future generations, which you touched on, we saw maybe a bad experience in Alaska that we want to avoid here in Canada. You talked about there still being room for ATR and that the FNPO would be optional.
Does ATR have a place for those lands, of which First Nations will want to preserve forever, for schools, public spaces and parks and recreation? Do I understand you were recommending a balance there as we go forward?
Mr. Jules: Additions to reserve contemplates a number of situations across the country. In the Prairies, you have a situation with the treaty land entitlement. These are lawful obligations in which the federal government must ensure the commitment they entered into with the First Nations is adhered to, and that means you will have to deal with the so-called additions to reserve policy.
Then you have a situation where individual communities are purchasing land and wanting to turn it into reserve so that even though they lose land value, they will retain the purported jurisdiction over it under the Indian Act.
I am proposing another way, that we would have the title to those lands vested in the First Nation community for all time, not a corporate structure like in Alaska. Therefore, we would have ongoing title and jurisdiction to those lands as First Nations governments. I do not believe in an assimilationist approach, that one day we will disappear. I think that we have to be able to create institutions that are of our own making, something that suits us in the 21st century, not something that came out of someone else's imagination in the 19th century.
The Chair: Thank you very much, senators. Thank you, commissioner, for appearing before us this morning. It has been very informative and interesting. We wish you well in your pursuits.
Our second witness is a familiar face, having appeared recently before us on another matter. She is Jody Wilson- Raybould, British Columbia Regional Chief of the Assembly of First Nations.
Ms. Wilson-Raybould, we look forward to your presentation. Please introduce the people that are with you for us and their respective positions, if you would be so kind. With that, you have the floor.
Jody Wilson-Raybould, British Columbia Regional Chief, Assembly of First Nations: Thank you. It is of course my pleasure to be here with you once again today to present on some of the challenges we are facing in terms of the additions to reserve policy.
I am here with a couple of people. Tonio Sadik is Senior Advisor to the Assembly of First Nations, and Kathleen Lickers is External Legal Advisor to the Assembly of First Nations, and both participate on the joint working group on additions to reserves. I am pleased they can be here to answer some of the more technical questions in terms of the work of the joint working group and what activities we have been engaged in since 2009.
You have heard from many witnesses with respect to the additions to reserve policy and witnesses have characterized the policy and the process as complex and lengthy. No question, the Assembly of First Nations agrees. I want to start by locating this conversation around additions to reserves into a broader context of our efforts of nation building and rebuilding.
As you have heard me say before to this committee, our nations are in an incredible period of transition, rebuilding our lives from the individual up; from the family through to extended family, to clans, to communities and ultimately nations of tribal peoples that are historically self-governing and powerful, but whose history has been interrupted by a period of colonial control. Thankfully, as a country, we are overcoming this legacy. With your cooperation and hard work, together we are finding solutions to end the colonial period and to ensure that our peoples can re-establish their rightful place within an evolving Canada.
As our territories were settled by the newcomers our land base shrunk. Part of any process of nation building or rebuilding must, therefore, be to ensure that our nations once again have an adequate land base. I would like to reframe the focus of how we look at additions to reserve and any of the mechanisms that exist to address the quantum of the land our nations control, be it through the treaty land entitlement, comprehensive claim or the B.C. treaty process and ask this question: To support sustainable First Nations, how can we ensure First Nations have adequate land base, with sufficient jurisdiction over that land base, to safeguard a place for our peoples to live together as communities and create an economy?
In answering this question we must critique and hopefully reform the additions to reserve policy so that it is consistent with the policy objective of creating the geographical and political space within Canada to ensure our nations can ultimately and once again be self-determining.
The current approach to additions to reserves and the underlying policy objective, unfortunately, runs counter to this vision. The policy was written in and for a different time. The current policy is about limiting Crown liability, limiting the perceived cost of government, and addressing third party concerns as a priority, instead of proactively trying to add land to the First Nations land base as fast and as efficiently as possible. It is no wonder the process of additions to reserve takes so long, if at all. The Auditor General has reported this delay is having a negative effect on First Nations' ability to generate an economy and move forward. This policy is actually operating to prevent and restrict the amount of land that can be added to an already inadequate land base.
The ATR policy is very much a reflection of the Indian Act mentality, with negative notions that lands once added to reserve and governed under the Indian Act will somehow be removed from productive use in a modern economy. This is why I submit there is so much emphasis, in the policy on consultation with municipalities, on compensation payable and all sorts of questions about how much it will cost Canada to support these lands in the future and the people who might acquire or reacquire them. In short, the assumption is that the lands will be added to a dependency model of First Nations' land administration.
While it is true that many of our reserves are in fact underproductive today given the Indian Act system and the lack of self-government, it is still very short-sighted to think that because lands are being added back to our land base somehow they will be less productive in the future. Given the period of transition, this will not always be the case, particularly given our intentions to move beyond the Indian Act. However, we cannot wait until that point to add land or else all the best land that we want added to our land base, will surely be gone if it is not already, particularly in urban and semi-urban areas. We need to add the land now.
In the 2010 report, AANDC described the objectives of the ATR policy as recognizing third party interests, recognizing and addressing environmental concerns and promoting good, ongoing relationships and balancing the interests of third parties and other governments. I would say the primary and overriding objective of ATR is missing — adding land to the First Nations land base to support sustainable First Nation economies.
The policy needs to be revised from the premise that we actually want to add land to the First Nations' land base with eventual concomitant powers of self-government, rather than keep in place bureaucratic and administrative barriers that continue to hamper the ability of our nations to become politically and economically self-governing with a viable land base.
The question we have to ask ourselves is this: Do I support having more of Canada's land base under the control of First Nations peoples with increased powers of self-government or do I not? If the answer is that you do, then you need to use your political power to support a complete revision of the additions to reserve policy. I would add other policies, such as comprehensive claims policy, that are concerned with increasing the quantum of land under our nation's control. As a start, this could mean removing the ATR policy from the Indian Act Land Management Manual and place this process within the broader context of the nation building or rebuilding exercise. This may require federal legislation, as was the case with creating the specific claims tribunal.
Following the creation of the specific claims tribunal, the AFN did in fact join Canada in fulfilling the ATR component of the political agreements. This commitment mandated an amendment to the ATR policy to include ATR land proposals that a First Nation might advance, following a successful cash settlement of its specific claim by the tribunal.
We, the AFN, have jointly undertaken this work with Canada in a joint working group to create a new category for these proposals under the existing ATR policy. At the joint table we began to talk about and explore other challenges experienced by First Nations when they seek to add land through the three existing ATR categories, and to jointly develop recommendations to reform and address those challenges.
The AFN has been supported by the National Aboriginal Land Managers Association. NALMA has delivered ATR training across Canada. The AFN attended each of these sessions to hear firsthand the challenges First Nations are encountering with ATR and with respect to the challenges and the three categories. Within the ATR policy, legal obligations, community additions and other, we have summarized the issues and the challenges identified by the participants at these forums in our roll-up report, which has been provided to the honourable senators in advance of this session. In addition to the roll-up report and the obstacles, it summarizes some of the key challenges unique to each category of ATR, but there are also some shared challenges that should be highlighted. These relate to resolving third party issues and the lack of timelines.
Canada has created its ATR policy based upon critical pillars. Proposals must be advanced under a defined category. No funding will be associated with any ATR proposal and the First Nation bears the onus of responsibility for resolving all third party encumbrances on selected lands. These may include parties who hold legal interests, rights, permits, leases and owners of subsurface mineral rights to the selected lands. When selected lands are within a municipality, First Nations must also resolve issues such as loss of municipal property tax revenues, service provision and bylaw compatibility.
Canada is not a party to any concluded First Nation municipal agreement; however, many First Nations identify the lack of support by Canada as conduct not reflective of Canada's fiduciary relationship with First Nations. While the current policy clearly does not give a municipality a veto over ATR, they can often stall the advancement of ATR, giving municipalities, in a sense, de facto veto.
Again, borrowing from the precedent established by the Saskatchewan TLE framework agreement, the parties foresaw challenges and introduced timelines directly into the framework itself. The agreement provides that should an agreement not be concluded with a municipality within five months following a request to negotiate by a First Nation, Canada may set apart the reserve where it has been determined that the First Nation is prepared to enter into reasonable and adequate agreement with the municipality but the other party has been unwilling to respond to the request reasonably or in good faith. We like that.
In addition, borrowing from precedents established from Saskatchewan and Manitoba TLE framework agreements, First Nations in Canada undertook a concerted education and information outreach with municipalities following the signing of these historic agreements. Further, specific timelines could be introduced into the policy to require Canada to intervene after good faith negotiations have failed with any third party. As I said before, Canada needs to be on our side.
Regarding the provinces, many First Nations believe that the bulk of the problems surrounding ATR and TLE in general lie with the reluctance of the provincial government to successfully cooperate. Again, we need Canada to be more proactive in our efforts to get the provinces on side with proposals. We believe the ATR process would benefit from improved communications among all parties and all levels of governments. We also believe that timelines and greater oversight are required to revise the ATR policy. The finding for environmental site assessments, environmental impacts and surveying comes from annualized budgets of the regional offices of AANDC. We believe the regional offices should be directed to review the activities of ATR proposals annually to strategically forecast budgetary need.
In her 2009 report, the Auditor General of Canada recommended strategic planning. While AANDC responded to the commitment to implement this recommendation, we are not aware of such coordinated strategic planning with First Nations.
As we proceed to speed up additions to our land base, we also need to speed up the process leading to self- government. Our nations are moving along a continuum of governance reform and, at their own pace, moving away from the Indian Act and strengthening governance over our lands.
However, we still do not have a mechanism to facilitate the orderly transition from Indian Act governance to self- government, based upon the principles of recognition which do not require protracted negotiations with the Crown, negotiations which may or may not be successful.
First Nations leaders that share a common vision of post-Indian Act governance are looking at developing optional self-government recognition legislation. Many of the issues, perceived or real, with respect to additions to reserve would be less significant if First Nations were self-governing and, indeed, many would resolve themselves.
In conclusion, we have highlighted both specific and general challenges experienced by First Nations under the current ATR process and policy. We also provided you with a copy of our rollup report as well as my more detailed presentation here that more fully explores the issues we have touched on today with recommendations that our staff has also shared with our colleagues from Canada.
Finally, please always keep in the back of your mind our ultimate objective, which is to ensure that our nations have an adequate land base to support our peoples living in our communities where the land base supports a local economy. Notwithstanding where a nation might be on the continuum of governance reform, we need to ensure each of our nations has a suitable land base and, where necessary, find and transfer land now.
Thank you for your time. I look forward to your questions.
The Chair: Thank you. I have Senator Meredith.
Senator Meredith: Thank you, Chief Wilson-Raybould. It is also a pleasure to see you. Thank you for your wonderful presentation. I like the fact that you started out by talking about nation building and rebuilding. You also talked about the Crown liability.
I want you to elaborate on some of the perceived liabilities to the Crown, how we overcome these hurdles in terms of ATRs and the process of empowering the First Nations with their own land. You heard from the previous witness about the proposals to change that process. What are these challenges and how do we overcome them? We have been going around here, and we want to get to the meat of the matter as to how we resolve these issues.
Ms. Wilson-Raybould: Thank you for the question. I will seek to address some of the issues that you raised and look to my colleagues to chime in if necessary.
The process that First Nations are engaged in, in my province in British Columbia and across the country, is this amazing period of transition and nation building. Fundamental to nation building are having an adequate land base and having the necessary jurisdiction and governance authority over that land base to ensure that our communities are moving forward in an appropriate way, to reflect our cultural beliefs and values, and move forward along the continuum of governance to the point where our First Nations are self-determining.
In terms of the efforts and continuum of governance reform that I referenced, our First Nations are addressing land issues, the challenges on reserves and the challenge of additions to reserves in many ways. It is significant, and we need to highlight the efforts that First Nations have undertaken in this regard in terms of creating economic potential in reserve lands.
I reference the First Nations land management work and the First Nations who have entered the framework agreement on First Nations land management to move down the continuum of governance reform and take over jurisdiction over our reserve lands and the resources. They have been able to, in a concrete way, create an economy on our reserve lands right now that creates interest in lands that benefit our communities and that are mortgageable in our communities.
In addition, we have the jurisdiction to make the decisions over our reserve lands and our resources from the perspective of those First Nations that have been involved in land management, have also entered into self-government arrangements, whether as part of a treaty or a stand-alone self-government arrangement and have significantly empowered their communities to make decisions for themselves and move down that continuum.
Tonio Sadik, Senior Advisor, Assembly of First Nations: I would make one point. The premise that land can be transferred to a First Nation without there being some degree of an economic component is unrealistic. One issue that has been raised at our table, although not one we are discussing jointly, is the reality that when land is transferred to a First Nation that there is not a commensurate reduction to the province in transfers. The context within which this occurs is simply one that says there can be no extra cost, at least not up front, and therefore, if a reserve cannot be created on that basis, it will not be reserved. That strikes us as fundamentally unjust.
Senator Dyck: Thank you for your presentation. It was, as always, very informative and also brings forth a point of view that is different than normal.
I was particularly struck by your statement that the ATR process is based on assumptions that leave out the primary objective of ATR, and that is that it should be adding land to the First Nation land base to support sustainable First Nation communities. I was thinking that it is ironic that the numbered treaties — coming from Saskatchewan, that is where most of my perspective comes from — were signed almost 150 years ago and the assumption from the department is that we have to pay back to municipalities. We have to pay back to the government, but originally, that land was not theirs. In a sense you could say that the land was taken under false pretenses.
The First Nations should actually be saying the provinces and the municipalities owe the First Nation. All the resource development that has happened on that land was land that was not theirs in the first place. It was taken by the provinces, under maybe necessarily false assumptions, or sometimes lands in northern Saskatchewan were actually taken illegally. First Nations are swindled out of their land.
Do you agree with any of those statements or am I right out to lunch?
Ms. Wilson-Raybould: Senator, I do not believe you are out to lunch. The reality of the period that we are in is that we need to transform the dialogue and have a discussion about how we can collectively support First Nations in this period of nation building. How can we ensure, whether we are looking at the ATR process, comprehensive claims treaty land entitlement, that the primary objective we are talking about is supporting the increase in a First Nations land base wherein the First Nation will have the ability to govern and have the appropriate jurisdiction? How can we support the increase of the land base and support First Nations in terms of nation building and governance?
Certainly unleashing the economic potential for First Nations goes beyond providing them with title to that land but is, in addition, a question about the governance over that land and governance in terms of supporting where communities are at. Communities are entirely different places, but supporting them moving down the continuum of governance reform.
Senator Dyck: The additions to reserve policy certainly, to some extent, is based on the assumption, which may not be true, that land has to be fee simple in order for there to be economic development and successful businesses. Again, coming from Saskatchewan, I see where there has been successful economic development by a number of reserves that are very well off, yet their lands are not fee simple.
What are your comments with regard to the assumption that we need to convert the land to fee simple in order for the nation to proceed into economic development?
Ms. Wilson-Raybould: I would point to numerous First Nations right across this country, including many of those involved in First Nations land management, which essentially accomplish exactly what you are talking about and unleash the economic opportunities or potential within First Nations communities and creating interests in land. Over the last 20 to 30 years First Nations leaders from across the country have been considering the question of creating legal interest or value in reserve communities.
Looking at an example within my own province, and Chief Robert Louie was here, in terms of Westbank, there is huge investment and an economy that has been developed in his community. There is interest in lands that have been created, mortgageable interest in lands. One of the complements to the success at Westbank is most certainly the fact that Westbank has been supported and has signed a self-government agreement, wherein they have jurisdiction over their lands and have created their institutions of core governance to be able to make decisions that are appropriate for their communities.
In looking at the question about whether or not you are off base in terms of viewing the history of colonization and our peoples and thinking about the ATR policy, which we are here to talk about today, the focus of the ATR policy on third-party interests in municipalities and the impacts for those governments and people needs to be flipped on its head. The reality is that support is needed for First Nations to provide them with a land base. Ultimately, the investment that we make in First Nations communities will come back, as has been proven, tenfold in terms of the initial investment and what will exist down the road in terms of strong First Nation communities that have a land base that supports their governments.
Senator Cordy: Thank you, your presentation was excellent. For a non-member of the committee, you laid out the challenges extremely well. You spoke about the challenges that you are facing with the additions to reserve, and part of it was the public perception, the negative notion, those kinds of things. You talked about the bureaucratic and administrative barriers. Certainly Commissioner Jules spoke about the same things earlier, like the cumbersome process. He made reference to some of them taking as long as 20 years before the transfer takes place. That certainly is not an indicator of good economic development if you have to wait 10 or 20 years to have the land in place to do it.
One of the recommendations you made this morning was the removal of the additions to reserves policy from the Indian Act. Would you tell us how this would or could make the process easier for having additions to reserve? Also, what challenges would you see in terms of making this change? It likely would mean federal legislation.
Ms. Wilson-Raybould: Thank you for the question. The statements I made in terms of removing the ATR policy from the lands manual is essentially getting at the overarching recharacterization of the discussion in terms of how we approach supporting First Nations during this period of nation building. Of course it addresses and looks to the additions to reserve policy contained within the manual, but it speaks also to how we approach resolving outstanding Aboriginal title and rights, including treaty rights.
Whether we are looking at the comprehensive claims process, the B.C. treaty process or additions to reserve, how can we support, outside of an Indian Act framework, of which the ATR process is contained, and the administrative framework or the instructions provided to bureaucrats, to look to add lands to reserve or to the First Nations land base? How can we recharacterize that discussion between and among ourselves in terms of how we support First Nations rebuilding?
Senator Cordy: Do you think it will be an easy process to do that? What would be the challenges to removing it?
Ms. Wilson-Raybould: It is definitely not an easy process, and First Nations are undertaking individual efforts in their own communities.
I think we are at a place in time right now where, working together, we can reset the relationship and how we look upon one another in terms of our contributions. Also, in terms of the additions to reserve policy, as we have said and as we have in our rollup paper, there are challenges within it that can be remedied through and support of the joint working group that we are currently undertaking.
Senator Raine: Thank you. We have looked at the addition to reserve, and the process is just so long and cumbersome. It is hard to imagine that you would even start the process because it does not seem to ever have an end.
In your rollup paper you talk about, for instance, the expensive surveying requirement, that they be taken at a very certain point in time in the process. This is only after the third-party issues have been resolved, yet how can you go to talk about the third-party issues if you have not done a survey? There are all these complications.
Do you see in the manual that you have created that this will actually improve the process? Is it recognized by the different regional offices that are involved?
Ms. Wilson-Raybould: Are you referring to the NALMA tool kit?
Senator Raine: Yes.
Kathleen Lickers, External Legal Advisor, Assembly of First Nations: The aspects of surveying, along with environmental impact assessment and environment site assessment, are critical to a First Nation assessing the viability of converting or making a particular land selection for what its intended purposes are. All of this needs to be known with some confidence in being able to submit their proposal, regardless of the category in which a First Nation may be advancing that proposal.
The challenge becomes knowing at what critical point in time that information is necessary to their proposal, where is it affordable in their proposal, and perhaps more importantly, at what point does it inform the Government of Canada in their assessment of the proposal? Those were some of the critical elements of the Auditor General's report, particularly looking at the volume of acres that were considered for conversion in the provinces of Saskatchewan and Manitoba. While the onus rests with the First Nation in advancing its proposal, some of those critical costs rested with the regional offices. The inability to coordinate the timing and decision-making with the budgetary needs strategically, within the region, leaves everyone with this continuous uncertainty. A lot of her recommendations were directed at building the kinds of systemic management structures that would allow that kind of strategic planning to be much more efficient for everyone. As you say, those are certain critical points of information that everyone needs. It is about ensuring that the processes that are created, as a result of a policy, actually help to implement a sustainable policy. Right now, they do not align.
Senator Raine: We understand from the presentations we have had that there is a big difference between how things are moving along in Saskatchewan versus how they are moving in Manitoba. If we think that Saskatchewan has a better system for doing it or that the office is functioning better, is there a way to transfer that knowledge to the other region?
Ms. Wilson-Raybould: Absolutely. The impetus behind going out and doing regional sessions, and more importantly, engaging with the First Nations having challenges is to look at what those challenges are, how they have been addressed appropriately, and where they have had success. It is also to be able to ensure that, if we are looking towards having consideration around legislation and streamlining the processes around the country, we benefit from the success stories that other regions have had in terms of a getting framework agreement and potentially moving that and streamlining the process for First Nations right across the country.
One of the things — and my colleagues will be able to attest to this — that we have heard is that it is implemented or administered differently depending on the regional offices and on the different situations in regions throughout the country.
Senator Raine: We all know that "one size fits all" does not generally get the best result because the First Nations themselves are so different in terms of their geographic location, their economic opportunities, their capacity for self governance, and their place on the continuum. I guess the desire is to remove roadblocks that prevent logical, rapid progress.
Ms. Wilson-Raybould: Absolutely. You referenced the toolkit, and I certainly support the development of toolkits that will be able to highlight the experiences that First Nations have and share that information, on the ground in communities, so that we do not necessarily have to do the same thing twice but will benefit and be able to build upon the efforts made among our First Nations brothers and sisters across the country.
Ms. Lickers: If I can add to that, one of the things that both the Saskatchewan and Manitoba TLE Framework Agreements provide is very concrete examples of the benefit of the First Nations in a negotitation being able to foresee what it is that they are working toward and to actually negotiate a lot of those issues at the front end of the process. That is the success of the Saskatchewan framework agreement — the extent to which they turned their minds, with all parties being at the table, to the kinds of challenges in negotiating municipal net tax loss and third party challenges and included the broad framework of that in the negotiated agreements.
For them, the ATR policy and process should be one that actually facilitates the implementation of the terms that they have already negotiated instead of requiring them to navigate through new barriers and new challenges. It is about negotiating what is entirely foreseeable at the point in time in which you are negotiating. That is the precedent set, in my view, by Saskatchewan and Manitoba.
Senator Raine: That would work with the number treaties, but that format does not really work in British Columbia, where there are not the treaties, and in places where there are a lot of different nations without one number treaty to deal inside of.
Ms. Wilson-Raybould: In British Columbia, we have processes, whether they be the ATR or comprehensive claims process through the B.C. treaty process, that contain practical realities and challenges that our First Nations face at every stage of negotiations. If there is a way that we can tackle and have substantive discussions and resolutions of the challenges we face through this process, rather than waiting for a certain point of time, then we address this. This is specifically referenced in British Columbia negotiations. We address these challenges incrementally, with the recognition that, ultimately, 12 steps or however long it is down the line when we come to an agreement, the challenges have been addressed as the nations move forward in coming to a final agreement. However, we would have the ability to build on and move down the continuum all the time, as opposed to waiting until a certain point in time when substantive discussions can start.
That is happening in British Columbia right now in terms of looking at where First Nations are in having access to land early, in advance of the final settlement, and in terms of supporting access to resources and assisting in supporting First Nations in the necessary requirements of developing governance capacity.
The Chair: Were you, Ms. Lickers, able to assess the effectiveness? How influential was the Saskatchewan Treaty Commissioner and his office in the process of expediting things? I realize that you cannot really compare apples to oranges. B.C. is different from Saskatchewan. However, were you able to assess the effectiveness of the Saskatchewan Treaty Commission Office?
Ms. Lickers: The creation of the Office of the Treaty Commissioner in Saskatchewan was one of the most concerted public education efforts undertaken, post-negotiated settlement agreement. There was a very directed joint effort to have that office continue to inform and educate the public on what it means to the First Nations within that province to be involved in treaty and to have lands restored to them under treaty. It was a very directed public education office. It remains so. "We are all treaty people" is one of their banner education tools. There was a very concerted effort. There has been some discussion, throughout the NALMA training sessions, that that kind of public education needs to continue. The provinces of Saskatchewan and Manitoba involve the conversion of millions of acres of land, and other provinces may not be on the same scale as that.
However, the public education function of that office cannot be understated.
The Chair: Thank you. We have to go in camera, honourable senators, at no later than quarter after 11.
Senator Patterson: I will try to be concise.
The Chair: You always are.
Senator Patterson: I have two questions. Thank you for the very helpful recommendations on improving the ATR policy, which is of course why we are studying it in this committee, and the roll-up report that you presented.
Looking at page 6 of your presentation, I was pleased to see there is a joint working group. You talked about the need to undertake a comprehensive review of the ATR policy in all ATR categories. You say that has, in practice, already started. Do I understand that you are recommending to us that the joint working group continue to do a comprehensive review of the ATR policy?
Ms. Wilson-Raybould: Correct. Through formation of the joint working group in 2009, and the discussions that have ensued since that time, there has been much discussion around the challenges that exist within the three categories. There has been discussion about the potential creation of an additional category — which has been represented before this committee — in terms of economic development, having discussions at the joint working group, most importantly with First Nations in communities, that the reality and the challenges contained in the ATR policy in terms of the objectives. It needs to be looked at comprehensively, and under essentially a reframing that would potentially have as its main objective, creating viable land base for First Nations communities with the recognition of the need for self-government powers over that.
Senator Patterson: You have made some recommendations about legislative change that we will take close note of. I know you have had the opportunity to hear chief commissioner Jules' remarks to us, in the context of the recent budget, to develop FNPO legislation. I would be interested in your views. This option was presented as an option for First Nations. I know it is just in the early stages, but that concept would enhance the movement towards self- government and greater control of First Nations of their land and their destiny. Is that something that you would recommend we should move forward with, along with reforming the ATR policies and system?
Ms. Wilson-Raybould: Thank you for the question. I appreciated being able to hear chief commissioner Jules' presentation earlier on the proposed FNPO act. Our chiefs in assembly have passed a resolution that does not support the property ownership legislation proposal. That said, I would caution this committee and those that are considering it not to discount the solid initiatives and efforts made by First Nations over the last 20 or 25 years. Specifically, I am speaking about the First Nations led initiative, the First Nations Land Management Act and the First Nations that have developed their own land codes under the FNLMA, and have considered these questions about land and land interest through their efforts.
Obviously as you indicated, senator, this is in the early stages and would be interested in further discussion in this regard, but the difference there is that one speaks to fee simple interests and translating reserves into fee simple. Coming from a community that has a land code and that has benefited from the provisions of the FNLMA, and being on the land management board, recognize that the only difference with us is that there is no fee simple. However, we have had the ability to unleash the economic potential in our communities through the provisions of the framework agreement on First Nations Land Management. I recognize that in addition to FNLMA, there have been First Nations that have looked at these questions as well — whether it is the Tsawwassen First Nation or the Nisga'a First Nation or other communities — that have signed comprehensive treaties, have ensured that their lands will not be able to be alienated, but that they have created the environment for creation of an economy and land interests that have benefited their individuals.
There is property ownership on reserve. For example in, my own community, I own the house that I live in. I have mortgageable interest in the house and that is because of the land code that my First Nation has passed. Like all of the other members in my community, I have been issued certificates of occupation in that regard.
I would say in terms of the consideration of any options that First Nations are looking towards, that we need to support First Nations and what they want to do, what they believe is priority in their community that will ensure viability and the appropriateness and the cultural sustainability. However, we proceed in terms of First Nations property ownership or otherwise with the knowledge of what has happened, what currently exists today, and not to mislead the public that there are not any property interests on reserve right now; in fact, there most certainly are.
The Chair: Honourable senators, I have to go in camera but do you have a very brief question, Senator Meredith?
Senator Meredith: It was regarding municipalities and maybe both Ms. Lickers and Ms. Wilson-Raybould can answer this. With respect to the hurdles municipal governments face when transferring land, adding land to their municipalities from the provinces, do they face those same hurdles? There is a fear that municipalities are losing and so they are reluctant to support ATRs. How do we find that balance?
Ms. Wilson-Raybould: I know there has been analysis around municipal boundary extensions and First Nations boundary or additions to reserve, but I want to be clear that First Nations are very different from municipalities. To equate the two does a disservice to First Nations and wanting to support First Nations in their rebuilding efforts and providing them with the land base in order to do so. Any loss, tax loss or otherwise that a municipality would incur as a result of an ATR or a settlement of a land question, in my respectful view, pales in comparison to the benefits that will accrue by supporting First Nations and establishing a viable land base for them, they can build an economy and most certainly, providing and looking to reframing the discussion to support building a First Nations governance capacity and supporting First Nations and moving down that continuum of governance reform.
The Chair: I would like to thank the regional chief and her support people for an excellent presentation and great answers to the questions placed by the senators.
I hate to expedite this but we have to do this for future business within the committee.
(The committee continued in camera.)