Proceedings of the Standing Senate Committee on
Issue 47 - Evidence - November 27, 2018
OTTAWA, Tuesday, November 27, 2018
The Standing Senate Committee on Aboriginal Peoples met this day at 9:02 a.m. to study of the subject matter of those elements contained in Divisions 11, 12 and 19 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures; and in camera, for the consideration of a draft report.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning, tansi. 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 here in the room or listening via the web.
I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional unceded lands of the Algonquin peoples.
My name is Lillian Dyck, from Saskatchewan, and I have the honour and privilege of chairing this committee.
Today we continue our meetings on the subject matter on those elements contained in Divisions 11, 12 and 19 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018, and other measures.
I’m sure some people know exactly what that means. Sorry, but I couldn’t help but start with a little joke this morning.
I now invite my fellow senators to introduce themselves, starting with the deputy chair.
Senator Tannas: Scott Tannas, from Alberta.
Senator Patterson: Good morning. Dennis Patterson from Nunavut.
Senator McInnis: Tom McInnis, Nova Scotia.
Senator Francis: Brian Francis from P.E.I.
Senator Coyle: Mary Coyle from Nova Scotia.
Senator McCallum: Mary Jane McCallum from Manitoba.
Senator Pate: Kim Pate, Ontario.
Senator Christmas: Dan Christmas, Nova Scotia.
The Chair: Thank you, senators. As you are aware, our committee has been restructured, and we have new senators on the committee. Present today are Senator McInnis and Senator Francis. Welcome to this committee.
I would now like to introduce the witnesses who are here with us this morning: from the First Nations Tax Commission, Manny Jules, Chief Commissioner; and Marie Potvin, Legal Counsel; and from the First Nations Financial Management Board, Harold Calla, Executive Chair.
Mr. Jules, you will do the first presentation, to be followed by Mr. Calla, and then the floor will be open to questions from the senators.
C.T. (Manny) Jules, Chief Commissioner, First Nations Tax Commission: Thank you, senator.
Good morning. I am Manny Jules, Chief Commissioner of the First Nations Tax Commission.
Thank you for this opportunity to appear before this committee to discuss the proposed legislative amendments to the First Nations Fiscal Management Act in the Budget Implementation Act. The Standing Senate Committee on Aboriginal Peoples has always supported the FMA and our proposals to expand and improve this legislative framework. As you know, it has become the most successful First Nation-led enabling legislative framework in Canadian history. The Senate was an early supporter, and your efforts to advance this innovation has served First Nations and Canada well.
Simply stated, the FMA works. Almost 300 First Nations are now part of the FMA. It has helped generate over $2 billion in investment, $1 billion in First Nation tax revenues and over $600 million in debentures. Over 200 students have taken accredited training on how to use it, and over 100 First Nations have been financially certified.
The secret to our success is threefold. First, we provide a First Nation-led and institutionally supported bridge for interested First Nations to move from the Indian Act to their own jurisdiction. Less Indian Act, less Department of Indigenous Services and more First Nation government is a goal we all share.
Second, we use innovation to creatively destroy the old system and provide a path to a better, faster and more cost-effective system. The FMA institutions have created and implemented better standards, effective sample laws, accredited university training, administrative systems, software and the First Nations Gazette, the intercept clause and service agreements. These innovations have increased the benefit to participating First Nations and have made it easier and cheaper to switch to a better system.
Third, the reason I am here today is our system is enshrined in legislation. This provides an orderly process to implement First Nation jurisdiction. It represents what the Supreme Court keeps telling all governments: figure out a legislative solution to implement First Nation government in Canada. Legislation provides our institutions with a mandate and long-term stability. Legislation and First Nation institutions give confidence to investors and lenders and, most importantly, to our participating communities.
The FMA amendments in the Budget Implementation Act are an incremental step towards improving our framework. Our sister institutions have advanced important amendments to their sections. The tax commission has advanced some technical and some substantive amendments. All amendments are important to strengthen the FMA; all are supported by the fiscal institutions. I urge you to support all of these amendments. I assure you they will increase the fiscal and economic benefits for participating First Nations.
Although our proposed amendments are important, I want to focus in on one area in this brief presentation. I am referring to the amendments in section 35 and the new section 141.2. The amendments in section 35 give the commission critical new standard-making powers to support First Nations who wish to exercise their taxation powers on joint reserves, including through delegations. Proposed section 141.2 will enable the creation of a comprehensive regulatory framework so that First Nations with joint reserves can benefit from the FMA more effectively.
Twelve days ago, I was in Winnipeg to meet with senior representatives of the provincial government. Later, I met with a group of mayors and chiefs from the Winnipeg area. The major issue for them is the proposed development of a 160-acre former military barracks in the middle of Winnipeg. The site is called Kapyong. Seven First Nations have signed an agreement in principle to create an urban reserve. This would be the largest urban reserve in Canadian history.
Based on preliminary estimates, the potential economic and fiscal impact from developing Kapyong includes almost a half a billion dollars of investment, over 30,000 person years of employment, an annual expenditure increase of over $100 million, over $10 million in annual local taxes and over $30 million annually in other taxes. This would represent one of the biggest economic development projects in Manitoba, which, as the Parliamentary Budget Office has reported, faces a fiscal sustainability challenge and could use this economic growth.
As I learned, however, Kapyong faces a barrier. First Nations need to establish a tax system on their proposed joint reserve. They need to negotiate service agreements to provide services and infrastructure to their residential and commercial investors. They need to develop a joint development plan with the city, with possible provincial involvement.
Solving these practical problems is what the tax commission and I have been doing for the past 30 years. We know First Nation taxation. We understand business grade infrastructure. We know how to facilitate service agreements and joint land-use plans. The province, the mayors and the chiefs ask for our help. With this amendment, we believe we can help these First Nations, Winnipeg and Manitoba, realize more benefits from Kapyong sooner.
All of the amendments before you are important, but I want to tell you about two that I wish were here but aren’t. First, I want to include the Chinook work for taksis in our legislation because that is our word for taxation.
Second, we ask that the FNTC mandate be officially expanded so that the FNTC can continue to help implement more First Nation fiscal powers.
As you know, we have been advocating for the First Nation fiscal and regulatory powers for cannabis. We have been seeking improvements to the First Nations goods and services tax system and have advanced specific amendments to achieve this.
We have also been working with interested First Nations and Ontario provincial government officials to advance tobacco taxation powers. We have been advancing a proposal to create a system of First Nation charges on resource projects and to compensate businesses that pay it with a federal tax credit to improve the Canadian investment tax climate.
We have been advancing proposals for a First Nation infrastructure institute, a First Nations statistical organization and a First Nations land title registry, and we have proposed to expand the accredited training system for all these new jurisdictions at the Tulo Centre of Indigenous Economics.
We have been advancing these initiatives as part of a new jurisdiction based on a fiscal relationship option so interested First Nations have a clear and institutionally supported path to leave the Indian Act and implement these jurisdictions.
The FMA works and it should be expanded. We will be working with Indigenous Services and we hope the Departments of Finance and Health to refine and advance this mandate amendment in the spring. As you know, the ministers of Health and Indigenous Services committed to this committee that, at the very least, they would correct the mistake of not considering First Nation governments in the cannabis fiscal and regulatory framework. Your continued support to ensure that this commitment be realized is vital.
As I said, we are ready to go with a number of amendments in these areas. Ideally, they could be advanced in the Budget Implementation Act next spring. In May, we expect to meet with the FMA First Nations who are supporting and expecting these changes. They all expect us to deliver.
We have long enjoyed an excellent working relationship with this committee. Together we have made legislative changes that have helped First Nations and all Canadians, together, we have made progress, and together we have created an algorithm to eliminate the Indian Act and the Department of Indigenous Affairs for First Nations who are interested. We can and must do more.
I ask you to support these amendments before you. I ask you to help us advance more amendments next spring. As my ancestors said 118 years ago to Prime Minister Wilfrid Laurier: “We will help each other to be great and good.”
Thank you very much.
The Chair: Thank you, Mr. Jules.
Harold Calla, Executive Chair, First Nations Financial Management Board: Thanks to the committee for inviting me here.
I’m going to be more detailed in terms of the amendments. What this committee needs to realize is we’ve now got years of experience, and many of the things we have proposed have come about as a result of our engagement with First Nation communities who are asking us as institutions to make certain changes to the legislation in order that they may benefit from it. That is an important piece to understand. These amendments are driven by these institutions and our client base.
The first thing that we’re going to want to address is expanding the scope of FMB’s jurisdiction to include non-scheduled First Nations; tribal councils; an Aboriginal group that is a party to a treaty or land claims or self-government agreement; an entity owned or controlled by a First Nation or an entity referred to above if its mandate is primarily to promote the well-being or advancement of Aboriginal people; a not-for-profit organization established to provide public services, including social welfare, housing, recreational, cultural, health and educational services to Aboriginal groups or people. Those organizations are all First Nation organizations, and the representatives in those organizations come from communities, many of whom are our clients. They see the benefit and the opportunity that could possibly apply to them as well.
The intention here is for FMB to have the authority to establish standards and procedures, and we would issue a compliance report of its findings similar to what is currently provided under section 50 for scheduled First Nations. However, this new section does not authorize the approval of bylaw or the issuance of a financial performance or a financial management certificate to these entities. That is still going to be reserved for those who are scheduled to the First Nation. A regulation is not required to be developed in order to exercise this expanded scope.
The new section 56.1 gives authority to make a regulation that would permit FMB to provide services under Part 3 of the FNFMA to the non-scheduled First Nations and entities listed above. At the present time, FMB is restricted to providing its services under Part 3 to only scheduled First Nations. Many communities and organizations want to come before us, but technically we’re not supposed to be providing them with any services, and this will clarify that. Again, it’s going to be in the areas of financial administration or structures within those organizations that provide governance, financial performance and financial management systems. The regulation-making authority could not be used to give FMB the authority to exercise its intervention authority in respect of these First Nations or entities.
Similarly, under new section 141.1, we will have the authority to make regulations that would permit not-for-profit organizations to be established to provide public services, including social welfare, housing, recreation, cultural, health and educational services. An example of this would be the First Nations Health Authority in British Columbia, who have an interest in monetizing their transfers from the federal government to be able to provide nursing stations much more quickly than they would otherwise under the FMA. Again, these requests have come to us from these kinds of organizations.
The same applies to tribal councils. About six or seven years ago, when I was in Saskatchewan, the Meadow Lake Tribal Council asked about getting services and having access to pooled borrowing, and again we’re seeing that. As the Government of Canada begins to talk about aggregation of First Nations, this particular provision will become critical, as is joint reserves, which Manny was speaking about.
We want to package all these things together, and we want to be in a position where we have the ability for First Nations to come together, avail themselves to the services of the Fiscal Management Act for joint reserves, taxation, fiscal management, access to capital and building capacity, which is a big thing for First Nation communities.
We need some clarification on the intervention authorities. I’m not going to get into the legal details, but it’s important to understand that we are not expanding the scope of our intervention authority in these amendments. We are clarifying, for the purposes of avoiding future legal challenges, the existing authorities.
Civil liability protection: as we continue to expand our services as a board to First Nations and currently to the Government of Canada Indigenous Services around ten-year grants, we need to find ourselves in a position where those who give of themselves to serve on their board would be in a position where they’re not doing so at their peril.
Pool borrowing for treaty and self-governing First Nations is a big issue. It has been for years. We’re hopeful that there will be a regulation that comes forward soon, but, again, these organizations are in a position where they’re not Indian Act bands any longer. We need to be able to provide them services and give them access to the same opportunities that Indian Act bands currently have under the Indian Act, and these amendments will help with that.
Access to First Nation monies held in trust in Ottawa is a big thing for us, and it’s another matter that’s been brought to us by communities. They are saying they want to be in a position where they have access to that and that the FMA can support that. What we’re talking about is ensuring that, on an optional basis — and all of this is optional. That’s another important thing. First Nations opt into this. They choose or their organizations choose. We want them to be in a position where, as they choose to get access and pledge their monies that are held in trust, they have the opportunity do so, and they could do so under a framework that would see them establish a financial administration law and look at financial performance and financial management systems so we have the kind of due diligence that’s required.
The success of the FMA is there for everyone to see, and Manny gave a good explanation of many of those achievements. What we’re seeing in the Financial Management Board with the discussion around ten year grants is the tremendous uptake by First Nation communities in looking at and considering that. One of the most striking facts that has come out of that exercise is that between 85 and 90 per cent of the First Nations in this country are meeting financial performance criteria, based upon our analysis of their financial statements, that would allow them access to the capital markets at an A-plus investment grade rating. I think that says a lot for the improvement in the capacity and the management of finances in First Nation communities and continues to demonstrate why a jurisdictional-based approached at increasing our ability to exercise our jurisdiction to raise revenues can be done in a way that is accountable, transparent and at minimal risk to the Crown.
The Chair: Thank you, Mr. Calla. We will now open the floor to questions from the senators.
Senator Coyle: Welcome back to all three of you. As you know, you’re here to help guide us in our decision-making around the Budget Implementation Act. From what I’m gathering, you’ve been guiding these aspects of the act and you are, for this moment, content because they are a reflection of the various things that you have just mentioned to us, so you do not at this moment have any contention with what is in it. I understand from Mr. Jules that, of course, between December and budget time, you’re hoping to make a little more progress on some other matters, but that is not what we’re here to talk about today. I just wanted to lay that out. I’m seeing the heads nod, so I think you’re confirming what I’m understanding. You laid it out very clearly, so it wasn’t difficult to understand, even for me.
I do have just a simple question because I’m trying to understand some of the nuance of what you’re talking about. Mr. Jules, you spoke about the example of Winnipeg, which is a very exciting opportunity and one that, as I understand, could unlock all kinds of possibilities for those First Nations who are proponents and also for the City of Winnipeg and the Province of Manitoba.
You mentioned that clause 35, with the new section 141.2, gives the commission crucial standard-making powers to support First Nations who wish to exercise their taxation powers on joint reserves, including through delegations. Could you give us an understanding of what “through delegations” means? I’d like to understand that. I know there are precedents, so I’d also like other examples so that we understand what’s being moved forward here.
Mr. Jules: In a nutshell, it means that a First Nation would be able to delegate its legislative power to a joint body. Right now, the legislation contemplates an individual First Nation power over taxation. What this means is that if seven communities get together, as in the case of Winnipeg, those seven would be able to delegate a central organization to manage the tax power for all of the communities. We see this repeated in every joint reserve right across the country, so it isn’t just isolated to Manitoba. It’s a national issue.
Just to give a little bit of a background about the discussions there, as I mentioned in my presentation, I guess the last time I was here I mentioned that the Parliamentary Budget Officer was saying that Manitoba, followed by Prince Edward Island, is on the verge of declaring bankruptcy within a generation. That is because of the fiscal constraints that are placed on the communities and the fact that First Nations aren’t actively involved to the fullest extent they could be in those provinces’ jurisdiction economically.
I met with the provincial government representative at the deputy minister level, and we will be working with them, not only on this development but also the remainder of the treaty land entitlements, the TLEs, as well as the fiscal components that are necessary for First Nations to participate in the provincial, national and, therefore, global economy. Also, we followed that up with a meeting with the mayors.
An interesting situation happened. We’ve been active in Manitoba for quite a number of years, but it wasn’t until we met with both the mayors and the chiefs together that both communities came forward and said, “We want to work with you to resolve this issue. We know we’ve been trying to deal with it for the last five or six years, but let’s get it resolved.” So there’s a new willingness, not only amongst the First Nations but the mayors and the councils and the provincial government, to grapple with these issues, and that’s critically important for the overall well-being for the country. If you can imagine one province having difficulties, that deals with all of the equalization formula that Canada operates, and we’re a fundamental part of it. I view our job as making sure that First Nations are a part of the economy.
In a nutshell, that’s the answer.
Senator Coyle: Thank you, Mr. Jules. I have a supplementary question. Here at this table, we have been concerned with — and I’m sure you would be as well — the issue of participation in decision-making. My understanding, which I ask you to correct, is that in the case that you’re presenting here today, it’s the Government of Canada responding to your lead on these issues. I’d like to hear a little bit about how that actually has worked. As you explain that, could we then hear a little bit about the participation of those behind you, the communities themselves? Thank you.
Mr. Jules: Fundamentally, all of the amendments that are being put forward were put forward by the institutions themselves. These are on-the-ground issues that we have to deal with on a regular basis with all of our member communities. How the community decides to join the optional legislation is relatively straightforward. They have discussions at the community level and at the council level. They pass a band council resolution to be scheduled. That indicates to us that they want to be part of the optional legislation and part of the real underlying philosophy or the underpinnings of the institutions, which hopefully will lead to greater autonomy.
That was one of the key messages to the province and the mayors: once they recognize First Nation jurisdiction, that makes all of their jobs easier. The story I told the mayors is that when I originally first started to deal with taxation powers, I had a tremendous amount of resistance from the municipalities in British Columbia, but once they understood they weren’t in a position to collect taxes that would be in arrears and that it would be the First Nation who could do it because of the legislation, that fundamentally changed the working relationship between mayors and the local chief and council. That’s going to hold true in Manitoba as well.
The mandate comes up from what we would consider the local level and the grassroots level to the national level. There’s an appetite, as far as I’m concerned, and we’ve witnessed it through the tremendous amount of growth. In order to achieve this, you need a statutory or a legislative basis. Having contracts isn’t good enough.
Senator Coyle: You did mention the word “optional.”
Mr. Jules: That’s right.
Senator Coyle: Could you underline that for us?
Mr. Jules: Optional means that communities have a choice. They can either go on their own, which we support, or they band together, and that gives us strength as First Nations right across the country.
It also follows with the concept that I introduced at our last committee hearing, which is looking at First Nations ultimately as an eleventh province. That doesn’t mean that individual First Nation communities have a lesser amount of sovereignty or jurisdiction; it means that the easiest way to approach it is through creating national institutions to facilitate it, giving institutional support at the local level, making sure that community members are trained to be able to take advantage of it and, again, to understand the underpinnings or the philosophy that underlies the legislative approach.
Senator Coyle: Thank you.
Mr. Calla: It’s important to appreciate that our efforts of outreach to communities is ongoing. We’re engaged with these communities all the time. The world has changed substantially from 2005 when this legislation was passed. Many communities now have economic opportunities they never had before. Our engagement with those communities is bringing about an awareness that wasn’t necessarily there, as well as a support mechanism to build the capacity that they need. It’s a two-way street. We go and share our experience, and they tell us theirs. In many cases, that’s how this engagement works. We understand what challenges they face.
The other thing that’s happening — and Manny referred to it, and we’re having another meeting in May, again supported by the department — is bringing all the communities under the FMA and Land Management Act together, having them speak to us and us speak to them to advance these kinds of positions. We had one last May. The things that Manny speaks about in terms of an agenda and future amendments are things that these communities approved last May. We will continue to use that framework to give ourselves the social licence to come here and speak to you.
Mr. Jules: I just have a final point. One of the things that is critically important about legislation is that it’s really a live organism. Once you have a legislative mandate, you can move and make necessary changes as situations evolve or change. One of the things I’ve noticed with a lot of the communities that have a legislative self-government agreement or a legislative treaty is that it becomes frozen in time. It’s frozen to that particular time and place in history, whereas we advocate a mechanism that will ultimately change and evolve as time requires it and as jurisdictions need to be expanded. For me, it’s an incredible, exciting opportunity for all of us to be able to participate in this.
Senator Coyle: Thank you. That’s a very important distinction for us to understand.
Senator Tannas: Thank you for being here. It’s always a pleasure to hear from you.
We just had a good discussion about some of the things I wanted to ask about. As you say, the amendments before us have been put forward, essentially, by the institutions themselves, and that’s great. That’s the way it should be.
I have a few questions. Did you get everything you asked for in terms of this round and what you, as institutions, had represented you needed, or was there any amount of cherry-picking, for lack of a better word?
Second, it is important that the dialogue and the development cycle faster. Do you have a sense that you’re on some kind of a track where maybe it will cycle faster and that you can get the improvements and embellishments you need faster than you have over the last 13 years?
Mr. Calla: We didn’t get everything we wanted. We got administrative matters that were characterized as administrative matters, and we were happy with that. There is more. As Manny said, this is a living organism. We’re going to be looking at amendments into the future. The efforts of Canada and the Assembly of First Nations on a new nation-to-nation relationship and a new fiscal relationship are going to result in our consideration of further amendments to support that process. I’m not sure anyone ever gets everything they want, particularly in Ottawa, but we got enough to make us feel comfortable that we can respond to the communities that have come before us and asked, “Can you help us in this area?”
There are some structural things that we need to do that are based upon a jurisdictional-based fiscal relationship and the institutions and supports that will be required to do that. As the Indigenous Services Canada sunsets — and that was the minister’s term — then we’re going to need to look at our legislation and see how we can support that process. There is lots coming in the future, and again, your continued support will be essential to achieve those things.
Senator Tannas: Speaking of that, I’ll ask Mr. Jules: Why don’t you shell the beach with what’s next? You mentioned a mandate expansion. Could you elaborate on that?
Mr. Jules: As you know, two ministers wrote a letter to your committee, committing to looking at fundamental changes to the cannabis legislation and the Excise Tax Act amendments. One of the things we’ve had difficulty with is wondering what kind of a mandate you have to deal with these issues.
The precedent can’t be understated here. What we’ve endeavoured to do for many years is to work with the Department of Finance, through the Budget Implementation Act, because it’s a money bill. We’ve elevated the work we’re doing to that level. It’s taken us a number of years to get here. We have to compliment the government on that initiative, because that alone sends a positive signal that we’re not just a social policy issue; we’re fundamentally an economic issue. That’s a sea change on how we have to be viewed.
In order to achieve a true fiscal relationship, we have to get the legislative mandate to be able to do that. I’m often asked the question: What kind of mandate do you have? I simply state: a legislative mandate. When you have legislation buttressing the jurisdiction, that speaks louder than a lot of promises.
Senator McCallum: Thank you for your presentations. It’s good to see you again. You’re doing amazing work.
Mr. Jules and Mr. Calla, since 2005, when the federal government founded the First Nations Tax Commission and the First Nations Financial Management Board and appointed you and the other members to the boards of those agencies, there has been a strong move toward self-government and self-determination. What do you see as the role of your board and commission in this era of change? Will they also shift from being government agencies to being under the control of First Nations, appointing your members, et cetera? How do you see yourselves changing as self-government comes into effect?
Mr. Jules: We will be using the gathered communities in May to begin that dialogue. We need to be able to establish an institutional framework to make the appointments. Ultimately, though, because you’re dealing with the taxation of citizens beyond your own members, probably the chief commissioner and the deputy commissioner of the tax commission would have to continue to be appointed by the Governor-in-Council, because we need federal legislation to do that.
When we look at the other areas of appointments, what we’re looking at and will be discussing with the member communities is what kind of a process would be eligible to do that. Up until this point, we’ve used the Native Law Centre of Canada in Saskatchewan to make one appointment. We work with them. They make one appointment to one of the commissioners.
This is a shared jurisdiction between First Nations and the federal government, and so I would ultimately like to see the majority of commissioners being appointed by a First Nation authority or institution, if you will. But we also have to keep in mind that we represent a little bit more than that. When you’re dealing with tax, you’re dealing with not only corporate citizens but also residents of communities. We’ve got a representative who deals with the residential issues, and we have thorough consultations with the Canadian Taxpayers Association, as well as the Canadian Pipeline Association, to make sure that we hear their words in terms of who would be appointed. It’s critically important that we maintain that relationship with them.
Fundamentally, as we move toward more self-government, we view ourselves as supporting that. One of the things that’s clear — and we’ve been trying to grapple with this issue since the development of it Tsawwassen, Maa-nulth and even Nisga’a, for that matter — once they got into the B.C. treaty process, it was viewed from the federal and provincial government that their tax jurisdiction then came from provincial jurisdiction, not from the federal tax jurisdiction. That has led to a lot of problems with those member communities. They want to be part of the FMA. However, because of legislative restrictions, particularly from the provincial government, which doesn’t want them to move from their jurisdiction back to First Nation jurisdiction, that’s left them not being able to access the First Nations Finance Authority or to lever their jurisdiction to be on the international bond market.
Part of the problem there is that their development happened at pretty much the same time as the FMA. We were both proceeding through the legislative process at the same time, so it wasn’t available to them at that time. But it is now available, and the party that’s giving us the most resistance is the provincial government.
As we begin to move towards more and greater self-government for more First Nations communities, that’s one of the things that I would recommend to the Senate, namely, that you make sure, as senators, that the options available for First Nations to use national institutions are still at their disposal.
Mr. Calla: Senator, that’s a great question because that is the big issue, namely, how do we continue to support this progress towards self-government? I think these institutions are centres of expertise, of knowledge. Many of the people who work in our institutions are Indigenous people themselves. I think our greatest contribution over the next little while will be going to those communities and creating awareness, building capacity, educating in some cases, working with other organizations like AFOA Canada to bring knowledge and expertise into those communities, to take over some of the responsibilities that are currently being managed by the department.
The question we all have to ask is, if Indigenous Services is going to sunset, what is it going to sunset into? It has to be First Nations institutions. We have to advance the kinds of conversations that are needed to be able to create economies of scale through aggregation and shared services to support these communities. We can’t create 634 systems in this country. It’s just not financially feasible, and there isn’t the human resource to be able to support it.
What we bring to the table to support the process is a capacity, awareness and knowledge based upon our many years of experience in this area. That can be of great benefit to First Nation communities. The government has been supporting and will need to continue to support, in an ever-increasing way, that activity of these institutions.
Through the FMA, we’ve shown that First Nation-led initiatives succeed — not political ones. We need to be in a position where we can continue to support those communities in developing that capacity and give them the confidence to make some of the decisions that they’re going to be faced with. What is free, prior and informed consent if you don’t have capacity or confidence?
Senator McCallum: You said you needed to abolish the Indian Act. With some of the self-government, they want to keep the Indian Act as a basis and then just make amendments on various sections that they’re having problems with. I’m wondering which one is the better of the two.
Mr. Jules: When I was first elected as a council member in 1974, we occupied the Department of Indian Affairs offices in Kamloops and in Vernon. We shut them down. Those bureaucrats just moved to Vancouver and then to Ottawa, because they operate under a legislative mandate. At that point, I realized that with the rejection of government funds, we had no economy. We had no mechanism ourselves to be able to take over all of those responsibilities.
I’ve listened with interest particularly with the Nisga’a. They were the first of the modern treaties in British Columbia. It wasn’t the first modern treaty, of course; that was the Cree-Naskapi in Quebec. When they first looked at the Indian Act, it’s a system that I always say was invented at the time of the telegraph and we have to change it. The problem is there’s no consensus nationally to get rid of it. That piece of legislation is one of the five oldest pieces of legislation in Canada, so it will be hard to get rid of.
I’ve chosen to approach it through the development of optional legislation so that communities, as Harold said, have a clear path forward and can make decisions on their own. It doesn’t mean that once they join the FMA, they have to do this or that. We work with communities to make sure it’s tailored to their own particular needs.
My view is simple. I don’t like the Indian Act and I don’t want it around, but there’s no consensus to get rid of it. As my leaders at the time in the 1970s said, “In five years, we want to get rid of the Indian Act.” This has been the longest five years of my life.
Mr. Calla: Senator, again, I think it shows a lot of insight.
The challenge is that we’re moving to try to define our relationship with the Crowns, federal and provincial, under section 35. There’s a lot of work in progress. What we hear and what I hear constantly when I go out into communities is that there is a federal fiduciary duty under 91(24). Until we’re comfortable in defining what our section 35 rights will be and have it in legislation, as Manny says, I think an approach that is optional and allows you to opt out of sections of the Indian Act, as you choose, is the correct approach at this time. In my own community, we’ve done it in child welfare membership and in taxation. It can work. I think there’s less apprehension in the community. Nobody likes the Indian Act, but they know it.
Mr. Jules: There is something else that’s critically important here, particularly outside of British Columbia. This is one of the reasons I propose our own land title system under section 91(24). Right now, the federal government has occupied section 91(24) through its own legislation; that is, the Indian Act and other pieces of legislation. What I propose is simple: we should have our own land title system under section 91(24). I believe that would make it easier for treaty land entitlements.
I sat on a chiefs’ committee on the land question and had to analyze how Indian reserves are held right across the country. In British Columbia, as a result of order-in-council 1036 and Privy Council 208, all Indian reserves were transferred from the provincial government to the federal government. That hasn’t happened elsewhere in Canada. On the Prairies, I would always be perplexed as to why the elders would say they need the Indian Act because that’s going to protect their land. Indeed it does, because on the Prairies, the underlying title to those Indian reserves is held by the provincial governments. The Department of Indigenous Affairs has the administrative responsibility over those lands and the people, but not the underlying title.
If we had our own title system, we would be able to transfer those lands to our title as we see it and not need to have the Indian Act buttress that notion that, if we didn’t have the Indian Act, we couldn’t have the land we have today. I say that because it highlights not only the complexity of the issue we’re facing but also the method that we’ve chosen to use, which is optional legislation, making sure there’s institutional support and an institutional basis to be able to support First Nations as they make these critical steps towards governing ourselves.
Senator Christmas: Thank you again for taking the time and energy to come all the way to Ottawa to help us understand these issues. I can speak for all of our colleagues here that we appreciate the work you’re doing. I know I admire the hard work and innovation that you’re doing. To me, it appears that you’re making self-government happen in a practical way that our people can accept and work with and go at their pace.
Senator Patterson: Hear, hear.
Senator Christmas: It makes our job easier when you come to us and say that you fully support these amendments and that you were part of the process in proposing and developing these amendments. I understand, Mr. Calla, that you didn’t get everything you want, but you’re comfortable with what’s here. That’s a model about how Crown-Indigenous relations should be, that before legislation arrives at this table, those affected should be able to give their full consent that, yes, we agree with that. I’m very pleased with that.
Last week, we had members from the First Nations Lands Advisory Board. They also told us that they supported the amendments to the First Nations Land Management Act. I appreciate that.
Mr. Jules, I’m puzzled as to why you mentioned that the Indigenous word for taxes was taken out of the legislation.
Mr. Jules: I wanted it included.
Senator Christmas: You wanted to include it, but what happened?
Mr. Jules: I’m preparing you for the next Budget Implementation Act. I say that because every place I go, whether it be First Nation politicians or individual members or other politicians, they always say, “Manny, how come you can’t use a different word than ‘taxes’”? I say, “Yes, I do. I spell it differently — t-a-k-s-i-s.”
What I want to do is have that formally recognized in the legislation under which we operate so that it signals to First Nations and to all Canadians that this is a concept that we used until we were legislated out of it by the Indian Act.
Senator Christmas: I know Senator Tannas touched on it, and you answered a bit of it, but how are your negotiations or discussions with the Department of Finance and Health Canada going on the cannabis framework?
Mr. Jules: We will be meeting in January. I was hoping we would have more substance, if you will, discussed before Christmas and before Santa Claus comes. I was hoping we would have been on his list, but we’re not. We will renew the discussions early in January. I’m still optimistic that we can make progress before the spring and summer of next year. The discussions are informal, and that’s one of the reasons I’m advocating an expansion of the tax commission’s mandate, as well as the other institutions, so that we can have a mandate to deal with the Department of Finance, Department of Health and other federal departments.
Senator Christmas: Is there any indication that that may lead to something within Budget 2019?
Mr. Jules: What was interesting in the discussions with both Finance and Health Canada is that they hadn’t heard the proposals. They had met with individual communities. Of course, when you’re dealing with an individual community, you are focused on that individual community, not looking at the national scope, which is what you have to do in this particular case. Quite simply, when you look at the Excise Tax Act, it has to be broken into two, and they hadn’t heard that approach before. It was the same thing with the Department of Health. After two years of consultation, I was absolutely flabbergasted that they hadn’t heard these concepts before.
It shows the depth of the consultations they undertook. It wasn’t truly reflective of what could be. As a result of that, I’ve been meeting with a lot of First Nation communities across the country, speaking at large engagements, and that’s where I start firstly with the taksis. This is how I spell it.
When First Nations start to realize that the Excise Tax Act applies to them, it’s a wake-up call. A lot of them don’t realize that when we go to a gas station, whether it be on reserve, we’re paying an excise tax on gasoline, tobacco and liquor, and that will apply to cannabis. Once you tell them that 75 per cent of that will be shared not with us but with the provincial governments, they take another deep breath and say, “What?” There is a lot of support across the country, and it’s gaining momentum, to create a national institution to deal with that so that we can ultimately have a stamp and can regulate these products on a national basis, as well as getting our fair share of the excise tax that will be collected from our citizens.
Senator Christmas: Thank you, Mr. Jules.
Mr. Calla, I’m very pleased to hear about the expansion of FMB’s mandate to include the whole list of First Nations organizations, right from tribal councils to non-profits to self-government entities. I’m sure you’ve planned this already, but I’ll ask you the question: With all of this expansion happening within the organization, do you have the capacity, the budget and the people? I know you have multiple offices throughout Canada, but how do you plan to ramp up to be able to serve this new group of clients?
Mr. Calla: Thanks to the response of the department and the budget that was announced, we have significantly increased the level of funding for the institutions — in particular, the Financial Management Board — to address the need to grow. That will only continue, and we will continue to advance, through our corporate plans and our discussions with government, the human resource requirement that’s going to be necessary to respond to this expanded mandate.
The other thing coming down the line is that the Financial Management Board will also begin a form of monitoring around some of these matters — 10 year grants, as an example — and that’s going to also increase the demand.
The fortunate thing for our institutions, quite frankly, is people want to come and work for us. On more than one occasion, people have come in and said, “I want to come here and work because I see you want to do something; you are actually doing something.” We haven’t found it difficult to find people who want to come and work for the Financial Management Board, or the other institutions, for that reason.
These amendments and the things we’re looking for are not just for the Financial Management Board; they are also for the tax commission and the finance authority. There’s great opportunity in monetization of revenue streams to support economic and community development in these areas, and how some of our communities have organized themselves should not be a reason why they can’t benefit from these kinds of initiatives.
Where things are done at a tribal council level instead of a band level, we have to recognize that and respond to that. We’re now in development of some standards at FMB, working with the First Nations Health Authority of British Columbia on what a governance structure would look like, what financial performance looks like, and it will be different. We’re doing that work, and we’re continuing to be supported by the department and government in doing that work. That has to be sustained throughout the piece.
As the demands are put upon the organization, they’re going to need to be recognized by government, and we are going to need to grow in the regions to be able to support those communities. That’s why we’re very pleased to be working with AFOA Canada and to be looking at how we can utilize that group to be able to support the capacity development that will be needed in these communities.
It’s a bunch of work, but it’s exciting work, and we’re able to do it today. In the future, if the department continues to respond to the increased demands of our institutions, we have a clear path forward.
The Chair: We are almost at the end of our time, but I would like to give the opportunity to our new members to each ask a question.
Senator Francis: Manny, earlier you mentioned Manitoba and P.E.I. being on the verge of bankruptcy. I’m from P.E.I., so I wondered if you could clarify what that’s about.
Mr. Jules: The Parliamentary Budget Officer did an analysis, as he does on a regular basis, and reports to Parliament. In that report, it highlighted the situation in Manitoba and Prince Edward Island as potentially going bankrupt a generation from now as a result of a number of factors.
My own analysis points to the fact that First Nations have to be an integral part of the economy. If we’re not part of the economy, there are going to be more and more communities or provinces that are going to face this dilemma in the future. How is health care paid for? How is education paid for? Those kinds of fundamental questions and dialogues are ones that First Nations have to be a part of. They will ultimately contribute to the betterment of ourselves.
That means breaking down the legislative barriers preventing us from being an active part of the economy. Right now, the Indian Act has prevented us from fully realizing our potential. In Manitoba, we’re seeing that changing as a result of the economic situation in which they find themselves. That’s why the meetings we had last week in Manitoba are critically important. I’d like to go to Prince Edward Island to help in that situation as well. In Manitoba, there was a willingness to even consider a federal tax credit so that First Nations would be able to occupy areas of jurisdiction that aren’t part of the fiscal make-up right now. They’re prepared to talk about jurisdiction on our own lands, whereas before, there was resistance to do that.
Senator Francis: Thank you.
Senator McInnis: Many of my questions have been answered with the question from Senator Christmas, but listening this morning about doing away with the Indian Act brought back memories of about four decades ago when I was in the provincial government in Nova Scotia. It was always the talk then that we’ve got to get rid of that Indian Act, but no one seems to have found anything better at the moment.
The question that Senator Christmas asked was with respect to cannabis, and you answered that, but I take it the commitment was that the government has brought in a policy that they will do this. I also take it that it would not necessarily have to be an amendment to the act; it could be done by regulations by the executive council. Is that correct?
Mr. Jules: My approach is a little bit different. I think we need a legislative amendment to both the Excise Tax Act and the cannabis legislation to recognize First Nations as a governmental jurisdiction. That was left out of the original legislative piece. Particularly, it’s highlighted in the Excise Tax Act when it only recognizes sharing of revenue between the federal and provincial governments, leaving First Nation governments completely out of that equation. If we just do a regulatory change, that wouldn’t address the underpinnings of the legislation. Something I learned a long time: Why go indirectly when you can go directly?
Senator McInnis: I agree with you, because then it’s secure.
Mr. Jules: That’s right. Absolutely.
Senator McInnis: Secondly, you want a separate registry with respect to land title. We don’t have much time, but isn’t that quite a transition? How would you go about that? You have a land management act now. What are the advantages?
Mr. Jules: Right now, it’s just housing. For the housing backlog federally, meaning nationally, the catch-up to the backlog is either going to take 300 years, if you believe the Department of Indigenous Affairs, or 800 years, if you believe the Assembly of First Nations. That in itself should be rationale enough to have our own land title system.
When you deal with treaty land entitlement, what happens is you’re dealing with 100 per cent of the land value over here when it was fee simple, but when you transfer it over to the Indian Act and have it governed there, you’re losing over 90 per cent of its revenue immediately. That goes to issues like bonding. On an Indian reserve, you can’t be bonded. What happens if you can’t be bonded? That’s a detriment to an individual entrepreneur who wants to get into business. You can’t seize assets on a reserve, so that limits his ability to be able to partake in contracts. One of the reasons we’ve been advocating for our own institution to be able to do that is so we can get around those legislative barriers that are preventing us from allowing individual entrepreneurs to blossom fully and for First Nations to have the adequate jurisdiction that they require to have a vibrant economy.
Mr. Calla: Because the matter was raised, it’s important to appreciate that one of the reasons we advanced a jurisdictional approach to a fiscal relationship is to create the certainty and leverage that can come from that. If you don’t have that fiscal certainty through legislation, it’s no different than a contribution agreement from the department. It can be taken away at any time. In order to maximize the economic and fiscal benefits of this revenue stream, you need to have the confidence that it will be there over time. If we’re talking about a new nation-to-nation relationship and a new fiscal relationship, creating that fiscal certainty is absolutely going to be imperative. When we talk about these matters, it’s important to say that if we’re going to move into excise tax, then this has to be done through legislation. It’s the only way it will work and the real benefits that can come from those increased revenues can be realized.
Senator McInnis: It takes a long time sometimes to get legislation through, though.
Mr. Calla: We tried three times with the First Nations Fiscal Management Act over a 10-year period from the time we started. You’ve got to start; you can’t be daunted from that. We can learn from that and know it can happen much more quickly.
Mr. Jules: Quickly on the issue of a registry, one of the things that happened with the Nisga’a and others is that they had to register their lands under the provincial land titles system. That moves away from 91(24) to section 92 provincial jurisdiction. That’s another reason we should have our own land titles system.
Just in closing, I promised all the senators as a Christmas gift a copy of the Chinook book about Chief Louis and Chiliheetza’s travel from Kamloops to Rome. I have copies for you here. Once again, have a merry and a happy.
The Chair: Thank you very much. On behalf of the committee, I would like to thank our witnesses from the First Nations Tax Commission and the First Nations Financial Management Board this morning. Thank you for your fulsome answers.
Senators, we have a second panel this morning, officials from the Department of Indigenous Services and Crown-Indigenous Relations.
Before we start the second panel, I would like to draw to committee members’ attention a letter that was sent by Minister Philpott and the package of documents accompanying it that we received and distributed yesterday by email. The officials are here this morning to address some concerns and, perhaps, perceived discrepancies in testimony from witnesses that we heard last week.
We will start with questions from the senators.
Senator Patterson: Thank you for being with us again today and for the documents you forwarded to the committee yesterday. Have they been made available to committee members?
The Chair: Yes.
Senator Patterson: Okay.
I was concerned about a discrepancy between your testimony and that of the Manitoba Treaty Land Entitlement Committee, or TLEC, who we heard from at the same meeting we heard from the officials.
Based on the documents received from the department, it was not immediately apparent to me that the proposed legislative changes before us would repeal the Manitoba Claim Settlements Implementation Act and roll the treaty land entitlement process into the new legislation. Is that the effect of the proposed legislative changes?
Sheilagh Murphy, Assistant Deputy Minister, Lands and Economic Development, Crown-Indigenous Relations and Northern Affairs Canada and Indigenous Services Canada: Yes, it is.
Senator Patterson: Thank you. When you met with the Manitoba TLEC, did you distribute any documents at that meeting?
Ms. Murphy: When I met with them in August, we talked about it. At that point in time, we didn’t have documents that we could share. We explained to them what the intent was, and we offered to come and meet with the First Nations that are adhered to that agreement and walk them through, which I did on September 14. At that point, we distributed that long sheet of paper, which I believe is in the package, that shows you the benefits, which we had sent to all First Nations in September. I walked them through that. We told them what the intent was, and we explained to them that they would not lose anything that they currently had under that agreement, that we were just converting that into national legislation, and that, in fact, their non-treaty land entitlement parcels in Manitoba would come under the same benefits that they currently enjoyed under the settlement act.
Senator Patterson: We have the document that you distributed?
Ms. Murphy: I believe it’s in the package, yes.
Senator Patterson: Was there a timeline on when this legislation was to be expected?
Ms. Murphy: We had told them that we expected that we were looking at fall, and I believe we communicated that to other groups as well. We didn’t know what form it might take in the spring. When it became apparent that it was going to be incorporated into the Budget Implementation Act, I gave them advance warning, when that was being tabled, through email, that was happening.
Senator Patterson: You’re telling us that the primary or express purpose of this meeting was to engage in the legislation. Was that the sole focus of the meeting?
Ms. Murphy: No. You may be familiar with the fact that we have had an arbitral ruling around the work that Canada did to consult the Metis on the movement of parcels under treaty land entitlement. We’ve been working with the chiefs to try and remedy the findings and to work on amendments to their Manitoba framework agreement. I had gone out in September with the explicit purpose of talking about the legislative proposal. I had made it very clear that we were going to do that. They had asked us to come do that. At the same time, I spent time talking with them about the more general challenges we had and what we wanted to try to achieve in a priority action plan that we had built together in trying to advance treaty land entitlement in Manitoba.
Senator Patterson: I asked this because, after receiving the documentation that you’ve just sent, I reached out to the TLEC. I understand from them that the primary focus of the meeting was, in fact, holding Canada to account for their breaches determined by the adjudicator in the March 19, 2018, binding arbitration award.
Colleagues, I can’t help but be reminded of Bill S-3, where the government maintained they engaged in consultation, but this committee learned that the department would distribute materials just a few minutes before their presentation. At that time, we heard as well that the department felt letters sent to chiefs and national leaders was enough. As you know, we didn’t accept that position from the government then, and it led to substantive change. I am concerned that we don’t have enough time to properly scrutinize this bill.
Have they got the wrong characterization when they say it was primarily about the breaches of the agreement and the decision by the adjudicator?
Ms. Murphy: When we met with them on August 9 in Ottawa, we walked them through a number of improvements that we wanted to make to the Manitoba framework agreement. Part of that is the ATR policy directive. At that point, I raised the idea of national legislation and what it would mean. I offered to come out and explain that to the members of TLEC. When we communicated with them in August as follow-up to that meeting, my understanding was that the September meeting was two-fold. It was for us to explain the legislative proposal, as well as talk about the remedy. They were certainly preoccupied and continue to be preoccupied with the arbitral ruling. We continued to work with them on that, but it was made very clear in August that we were wanting to talk about the legislation as well.
Senator Patterson: Where are you with regard to coming to a resolution agreement that will address what was found to be Canada’s breaches of the agreement to the treaty land entitlement committee from the March award? Where is that?
Ms. Murphy: We continue to work with them. We did meet many of the points that were raised by the ruling. We’ve paid for their legal fees. We’ve given them over $1 million to be able to consult this year and work with us on changes to the Manitoba framework agreement. We continue to look for a remedy in terms of the delay in moving the 35 parcels through. I can ask Susan for the details, but I believe that out of the 35 parcels, four or five are the only ones that remain not to be turned into a reserve since the ruling.
We are not necessarily all on the same page. We have continued to have discussions. There were discussions last week with the committee. We’ve also turned to the implementation monitoring committee, which has a dispute resolution component to it. It oversees the implementation of the Manitoba framework agreement. We’ve engaged with that committee as well in an effort to try and remedy the default and move to what we think is more substantively the conversation we need to be having, which is to modernize the agreement and to try and deal with all the other issues that keep us from completing treaty land entitlement.
Senator Patterson: Okay. Thank you.
The Chair: I think I heard you say, Ms. Murphy, that in your meeting with the treaty land entitlement committee in August, you walked some of the members through what was going to be proposed in the legislation and offered to explain. Compared to other witnesses that we’ve had, they’ve actually had a part in coming up with the amendments and the legislation. It sounds like you’re saying that this was something that was developed without their input.
Ms. Murphy: That’s not what I’m saying. Let’s just go back to the work that was done, beginning in 2009, with a whole number of organizations, such as the Assembly of First Nations, to make improvements to the additions to reserve process. Through that work, there was a long-standing engagement and development of options in and around how to improve the ATR process, up to and including the notion of taking the Prairie settlement acts and making them national. That’s what we’re trying to do, namely, act on that recommendation that has come out of reports of this committee and of the Auditor General and the general work of that group.
We had all of that information when we were heading into making the new policy directive in 2016. We didn’t get to legislation at that point in time. We believe that the administrative amendments that we’re asking for now are acting on that long-standing record of engagement and consultation. It’s acting on instructions and desires that First Nations have expressed for several years, not on something that was recently developed in the last year.
The Chair: We also heard from the First Nations Land Advisory Board who talked about the framework agreement on the First Nations Land Management Act that was signed in 1996. They said the First Nations Land Management Act was proposed in 1999 to actually enact that agreement. They also said a lot of what’s in the Budget Implementation Act is removing redundancies or flaws contained in the Land Management Act to make it consistent with the framework agreement. They were also saying that they would prefer to have a separate act, a land governance recognition act. That would be the better way to go, rather than continuing to tinker with the First Nations Land Management Act. Have you considered a new act such as the one that was proposed by this group? They actually have it written out. I presume that you’ve also been sent a copy of that proposal.
Eric Grant, Director, Community Lands Development, Lands and Environmental Management, Lands and Economic Development, Crown-Indigenous Relations and Northern Affairs Canada and Indigenous Services Canada: Thank you, senator, for the question.
As federal officials, we are looking at repealing or replacing the First Nations Land Management Act on a longer-term trajectory. We’ve always been open to that and have always had those discussions with the Land Advisory Board as we’ve been developing this package. For this period of time, we felt the enhancements that were being suggested to us by the First Nations Land Management Board could be implemented quicker by using the current system that we have with the framework agreement and the legislation working together. It would require a bit more study and a bit longer-term trajectory to look at the legal implications of dismantling the act altogether and replacing it with this new land governance act that they suggested. That is absolutely something we are working with them on and looking at on a longer-term trajectory. I think we agree. They may have said at the table that they’re okay to proceed with this now, but they do want to look at getting rid of the act as a longer term objective.
The Chair: When you say “longer term,” what are you thinking about — a year, two years, five years?
Mr. Grant: Our discussions have been in the two to five year range. These immediate changes were in the one to two year range. We have a two-phase land reform agenda that we’re pursuing. This would be part of that two to five year window, along with several other more complex issues that have been brought to us by the land advisory board.
The Chair: Why is it important to bring forward the amendments that you do have? What is the critical piece that needs to be done now?
Mr. Grant: Thanks for the question. A couple of the more critical pieces, most specifically around the voting thresholds and the elimination of the participation requirement within those voting thresholds, is something they’ve had issues with for several years. They’re very much supportive of getting that piece through as soon as possible. That’s one example.
The Chair: Thank you.
Senator Christmas: Thank you for appearing again.
When it came to the testimony of the Manitoba TLE committee, I was trying to understand why they thought that they were not fully consulted. After I read your documentation that you had circulated, it appeared to me that your engagement process — that is, once you became aware that it was going to come through the BIA Act — involved you advising the First Nations by letters, by correspondence. As Ms. Murphy mentioned, part of the strategy was that you would have face-to-face meetings with the intent of informing, advising and I assume helping the Manitoba TLEC to understand that this new act would be put forward. Was your intent with the engagement plan strictly to advise and inform, or were you seeking consent from these communities as well?
Ms. Murphy: I don’t believe that we went out with the intention of seeking consent because we built the proposed amendments off of several years of joint work, where there already were recommendations that this would be a good administrative step and that all communities across Canada could benefit from the benefits of these Prairie implementation acts. We’ve got the resolution in the package as well from the AFN, which Chief Genaille from TLEC co-sponsored, that included the notion of bringing those Prairie acts into a national fora. So we thought we had enough feedback,input and requests from First Nations across the country to have a mandate that we were comfortable enough making these administrative arrangements.
I would say there’s lots of other things we need to be doing to improve the additions to reserve process — legislatively and from a policy perspective — but just making this initial step, I think, will help. It sets us down a path of further reform that we are already working with. We have an ETR advisory committee, and we continue to engage and look for efficiencies in the system. This is just an initial step towards longer-term reform. It started with the 2016 policy directive and then other things that we would like to do going down the road.
To me, it was part of an agenda of continuous improvement rather than a one-stop, one-chance way to improve the additions to reserve process. It was informational because we thought we already had a mandate from all that work that we had done.
Susan Waters, Director General, Lands and Environmental Management, Lands and Economic Development, Crown-Indigenous Relations and Northern Affairs Canada and Indigenous Services Canada: I would just add that the additions to reserve legislation is optional. There are provisions that First Nations can choose to take advantage of or to leave them. The only provision that wouldn’t be optional is the minister signing off rather than through order-in-council. That’s an important consideration.
Senator Christmas: It appears to me that there are really no questions about the substance. I think everybody agrees with the substance. Where there’s disagreement is with the engagement process and whether or not you went deep enough or wide enough or thorough enough. It struck me that, at least when it comes to Manitoba TLEC, where you’re actually repealing legislation — and I know what you’re saying, Ms. Murphy. You’re basically keeping the same provisions as in the national act, but I think just the very act of repealing, I thought in my mind, would require explicit consent. I wondered if that’s what was in the minds of those witnesses who appeared here last week, that they were expecting to provide explicit consent, and obviously that didn’t happen. Now they feel sort of left out of the process. Again, this is me trying to understand what happened last week. Do you have any comments on that?
Ms. Murphy: The only thing I can say is we thought, based on previous work that had been done, that this would not necessarily cause concern. We raised it in August because we were in conversations with them on trying to improve the treaty land entitlement fulfillment process in Manitoba. We asked them if they had concerns. We asked them if that had any questions. I said that we will come out and speak with their constituencies, which we did in September.
All through those conversations, we never got anything in writing. We never heard back that there was concern. We didn’t have any feedback from even those conversations that would have led us to believe that they were worried or concerned. We would have been happy to address those and speak to them about those concerns more fulsomely had they been raised, but they had not come back to us.
When I met in September with the chiefs, I said — because I was explaining to them what it was going to look like — “If you have any questions or concerns and you don’t want to raise them now, we’re open to hearing from you.” There were regional officials in the room. I was there. I said, “We’re open to hearing from you on what those might be.” That was in September, and again I did not hear anything back. I again offered to go back and speak in October, and only recently have they come back and asked us to come back and do that again. So we tried to catch that last week. We were not able to.
So having that conversation requires us to know that there’s not something working as well, and we didn’t hear that from them.
Senator Christmas: I guess as a process improvement — and this is all hindsight now and I get that — being an Indigenous person, sometimes a lack of response or silence is a response. So I leave that option open.
It seems that your engagement plan was, if there are no objections, you’ll proceed. What I’m saying is that in this case, where we’re dealing with legislation, I think the better move would have been to ask for explicit consent, to ask those communities, “Can you provide some documentation that you agree with this proposal?” Of course, I’m citing Article 19 of UNDRIP, where Indigenous people have to give free, prior and informed consent to any kind of legislation being proposed. I would just make that as a comment.
My second question has to deal with the First Nations Lands Advisory Board. They characterized the changes to their act as being simply ratification, and they advised us that they thought the framework agreement was the operative document and that the legislation was simply ratification. They described how efforts were made to replicate, in most part, the framework agreement in the legislation, and then there were discrepancies. Then they started saying, “Well, which is operational?” And they said, “Well, for us, the framework agreement is operational because we gave consent to that.”
I’m curious as to why we simply didn’t ratify through act the framework agreement rather than trying to duplicate or replicate it and then try to enact that and then that becomes the enforcing or operational document in this case.
Mr. Grant: Thank you for your question.
I think what we had collectively agreed to do for this first round of amendments was to pursue the same course of action we had taken to amendments in the past, which was to make changes to the framework agreement and to make corresponding changes to the act that would bring that into effect, so we decided to move along that same path, but as part of the phase two we would look at switching that course of action and repealing the act and replacing it with an act similar to what’s been proposed by the Lands Advisory Board, if that’s something legally we can accomplish as Canada.
Senator McCallum: Thank you for coming back.
My question goes back to the Manitoba group again. When the two witnesses presented last week, one had started their process in 1996, and Sapotaweyak had done theirs in 1997. Those two stories are very different. One group wanted no changes to the framework; the Sapotaweyak group were still, in 1997, in negotiations under the TLE. And they told us that the land price from 1997 was $199, and now, it was 3,000, or 30,000. It had skyrocketed and they couldn’t afford now to buy that land. That’s such a long time for this process to be going on, and it’s unfair for the First Nations because there’s so much lost opportunity. It was a problem and continues to be a problem today. What do you see were the major obstacles for Sapotaweyak to move forward with their TLE? Was there specific information they needed, or were there specific circumstances that existed so that this process has not moved forward?
Ms. Murphy: I don’t have all the details of what has happened in that community. More generally, the treaty land entitlement in Manitoba has an acreage to return, 1.4 million acres or that kind of scale, back to communities. We’ve not reached that target. We acknowledge we need to do a lot more to advance treaty land entitlement fulfillment in Manitoba.
We’ve made great progress in the last couple of years in moving land forward. We continue to work with the communities. We know there are some challenges in and around things like third party interests, the selection of land and the purchase of land.
The treaty land entitlement committee came to Minister Bennett in 2016 with a list of 13 priorities they thought might help advance treaty land entitlement. We turned that into a plan, and there are a number of action items in that plan we’ve been trying to work collectively with the chiefs on to resolve fulfillment of title. That really isn’t a legislative piece; it’s all of the other complexities that come with taking land and putting it into the reserve-creation process. We know that we need to go back and look at that. We need to look at the amount of money communities have. Some of them have run out of agreement room. That has all been put into the action plan that Canada has said they want to work on with the chiefs, as well as with the province, because the province is also part of that framework agreement.
We’ve stalled, I would say, in our ability to move forward on that action plan because of the arbitration challenges we’ve had in the last couple of years. However, Canada remains willing. We went through that 12-point plan when I met with them in August to say, “Here are some of the other things we need to be doing.” We need to get back to the table and looking at that agreement and how we can modernize it and have it deal with some of the challenges that those communities have in terms of third-party interests, survey and other things that make land conversion complex.
Senator McCallum: Do you see a possibility that you will move forward soon? That’s a long time to keep people waiting.
Ms. Murphy: I don’t know whether Susan wants to jump in.
Some communities haven’t even signed on to the agreement. Some haven’t done all their land selection. It varies across the communities that are part of that agreement.
There’s work we can be doing. We are working with Barren Lands, for instance, on their particular issues. But it’s a tripartite agreement where there are challenges. We need to get to the able to deal with those challenges, I would say, and find other ways in which to resolve them.
It is a long time. Some communities have done very well, and they’re close to completing. Others haven’t even started. So we need to sit down with each of the communities and prioritize what they would like to achieve and work with them on that.
Under the new 2016 additions to reserve policy directive, we’re compelling all regional offices across the country to go out and sit with communities — it’s part of the policy directive — to prioritize their additions to reserve parcels and make us work with them to move them through to reserve creation. The biggest chunk of land, for sure, sits in Manitoba, under treaty land entitlement, as well as Saskatchewan. That’s where we have probably the highest number of legal obligations that are outstanding. We are continuing to try to figure out, with communities — and communities have to be ready as well. Some of them get busy with other things. The movement of land or large parcels of land is not necessarily their priority. They may be trying to move — and we’ve seen this more recently — small parcels in an urban context, which is complex as well. We try respond to the priorities of those communities and facilitate their ATR objectives.
Susan, do you want to add anything?
Ms. Waters: No, I think that’s a fair statement. We’re working with the national Indigenous advisory committee to try to identify where there may be bottlenecks or areas where we could work together to facilitate, such as looking at particular areas that might block the movement of land. For sure, there are third-party interests, but again, as I mentioned last week, are there certain third parties that are particularly problematic and that we could work with together to unlock a bunch of land instead of working parcel by parcel?
Senator Patterson: I have a question relating to engagement and the issue we canvassed at the last meeting, which is the significant changes that have been under way in reorganizing Crown-Indigenous Relations and Northern Affairs Canada, formerly AANDC and INAC.
We had testimony from Ms. Waters at our last meeting. I asked about whether there was confusion about which department is involved with this matter and about the change, and she said:
Right now, while we are in transition during the process of transformation into the two departments, we don’t require the First Nations to understand which minister they need to move towards. We act as a one-window approach, and if one minister has to approve one transaction, we make it seamless for the First Nation.
She went on to say in that exchange:
It is seamless and I would say that it’s working quite well.
We had an opportunity to hear from the Manitoba Treaty Land Entitlement Committee. By the way, they said that the one-window approach with the regional offices was not effective for them because they deal with headquarters. I wonder if you’ve had a chance to review that testimony and whether you would agree that, in this case, there seems to have been some clear confusion on the part of the organizations you’ve engaged with about which department is responsible for land administration matters since the reorganization.
Ms. Murphy: I think that at that meeting, we promised to provide a written response. That is in the final stages of approval in and around the reorganization of the department. But I am happy to provide some additional detail about how we work now.
The Lands and Economic Development Sector, of which I’m the ADM, is the policy holder of programs and policy in the Lands and Economic Development area. Our regional offices that sit under Indigenous Services Canada then provide those programs and services as the front face to communities. On a day-to-day basis, even the treaty land entitlement communities will work with the Manitoba regional office of Indigenous Services Canada on all of the work they need to do to get the parcels ready for additions to reserve.
In terms of the more substantive issues around the Manitoba framework agreement, because that is invested in policy, I work with Susan, headquarters people, the regional office and with TLEC to try to resolve some things that might have more of a policy nature than the actual transactional work that goes into the additions to reserve process. It’s a collective effort.
When there are more policy issues, it’s the sector at headquarters that will look at those. When it’s the actual transactional pieces of putting the additions to reserve package together, setting priorities and doing all of the work of the package that will come before ministers for approval, that happens within the regional context.
I would say that every time we have a conversation with the Treaty Land Entitlement Committee, we clarify when it will be a regional lead and when it will be a headquarters lead and when it will be a shared lead. It’s not ideal, but whether we were in two departments or one department, that would be how we would work normally in terms of policy direction from headquarters and on-the-ground, operational work done through regional offices.
Senator Patterson: Mr. Duschenes, who is not here today, said that it would be worth providing a written response to this that describes the order-in-council process that has taken place, the Governor-in-Council process that has taken place so far, the legal framework as to what has been maintained from the DIAND Act and what has been transferred through order-in-council, and what the timeline is for the creation of legislation that would then firmly create the legal framework for both departments.
The information about the order-in-council process that you have committed to providing, will that information say what is policy and what is operational and who goes where? And since I think this is important in our consideration of this act, as even today we have officials from two of what they call departments before us: Will we get that information quickly? I understand these order-in-council decisions are public documents. Will we be able to get this information before we conclude our consideration of this legislation?
Ms. Murphy: Yes. It’s in final approvals now, and my understanding is you will have it well in time before you finish looking at and considering your deliberations on the bill.
Senator Patterson: Colleagues, I would like to say that I appreciate Senator Christmas’ comments that it’s engagement we’re concerned about here rather than the substance of the legislation. I think it’s particularly relevant, as the government has approved a private member’s bill that endorses the UN Declaration on the Rights of Indigenous Peoples, and it talks about free, prior and informed consent, and it will be coming before this committee and we’ll be examining it.
We’ve been shown a one-pager that was a summary of the proposed legislation, of which Mr. Henderson, the official from the Treaty Lands Entitlement Committee of Manitoba, told us at the September 14 meeting, the official did briefly tell them that this legislation was in the works, but at no time did she ask us, “What do you guys think of this?” They were simply told there’s legislation in the works and it’s certainly a possibility that it could happen relatively soon. And then there was silence, and the silence has been, I would say, assumed to indicate consent.
I don’t know if that would meet the UN Declaration on the Rights of Indigenous Peoples and the expectations from that bill. I am concerned that wasn’t handled very well. We’ve just had a witness that I think said they probably drove the legislation in the other divisions we’re examining. That’s a model of engagement that we should all strive for.
The other point is that I don’t think it’s clear that officials were explicit that Manitoba’s enabling legislation would be repealed, because Chief Genaille and Mr. Henderson were clear that they didn’t consider the government to have engaged on that aspect. Would you comment on the repeal of the enabling legislation and whether you talked about that, and whether you discussed that in Alberta and Saskatchewan?
Ms. Murphy: I will say I did talk about that with the Treaty Land Entitlement Committee when I met with them in September. How they understood that and so forth, I can’t speak for them. They speak for themselves, I did offer to come back and explain it again or take questions throughout the following months. That has been my interactions with them. I can’t speak to how they interpreted that.
In terms of Saskatchewan and Alberta, Susan has gone out, and you see in your package as well a list of the meetings that we went to. We were asked to come and explain, so we came and explained through the fall period. I don’t think we’ve had the same interaction from communities in Saskatchewan and Alberta that we may have had from TLEC. Susan met with communities and leadership in those provinces.
Ms. Waters: In Alberta, we had our regional office do much of the outreach, and in Alberta the legislation has a limited application dealing mostly with settlement agreements. They don’t have the same extent and breadth of the treaty land entitlement as we do in Manitoba and Saskatchewan. In Saskatchewan, we also did not hear any concerns about the repeal of the legislation.
I just would say that the provisions have been copied over pretty much exactly into the new legislation and so it’s more an issue of form rather than substance. The provisions have been carried over and not changed in any way that would impact their ability to move land over to reserve status in those two provinces.
The Chair: We’re at the end of our time. We have time for one short question from Senator McCallum, and after that we will have a short in camera meeting.
Senator McCallum: I’m just going to make a request. When you look at the number of active additions to reserve by region, Saskatchewan and Manitoba are 602 and 514, and then the next ones are 68 and 67. There’s a huge discrepancy. Would it be possible for you to give us information in writing as to why there’s such a huge backlog? It would help us to understand.
Ms. Waters: It goes to the amount of land we owe to First Nations in Manitoba and Saskatchewan through treaty land entitlement that isn’t in the same manner as the other provinces. We don’t have the same amount of land selected for addition to reserve or committed through treaty. It’s very particular in Manitoba and Saskatchewan that there is a higher number of parcels. It doesn’t have to do with the fact that Manitoba and Saskatchewan are slower. In fact, 80 per cent of the land that we move over is in Manitoba and Saskatchewan, so we’ll see the most progress there. In fact, in Manitoba, we had a significant number of additions to reserve completed since 2015, and second would be Saskatchewan.
Senator McCallum: Thank you.
The Chair: Thank you. I would like to thank our witnesses this morning. Thank you for appearing once again to clarify our questions.
(The committee continued in camera.)