Proceedings of the Standing Senate Committee on
Issue 11 - Evidence - February 14, 2012
OTTAWA, Tuesday, February 14, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 9:32
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 Lillian Eva Dyck (Deputy Chair) in the chair.
The Deputy Chair: I would like to welcome all honourable senators
and members of the public watching this meeting of the Standing Senate
Committee on Aboriginal Peoples on CPAC or on the web.
My name is Lillian Dyck. I am from Saskatchewan, and I will chair this
morning's meeting of the committee. The mandate of this committee is to
examine legislation and matters relating to the Aboriginal Peoples of Canada
Today we will be continuing our study of additions to reserves. The
phrase "additions to reserves " — ATR — refers to the process of adding
land to existing reserves or adding land to new reserves.
In June 2011, Canada, as represented by the Minister of Aboriginal
Affairs and Northern Development, and First Nations, as represented by the
Assembly of First Nations' National Chief, agreed to a joint action plan to
improve the long-term prosperity for First Nations people and all Canadians.
The Canada First Nations joint action plan includes a commitment to explore
concrete initiatives aimed at unlocking the economic potential of First
Nation, including improvements to the additions to reserve policy.
Witnesses for this study would be asked to provide their views and
observations on the current ATR policy and its associated processes and will
be encouraged to offer their suggestions on how to overcome the various
deficiencies with the current policy and process.
This morning we will hear from four organizations: first, the Treaty Land
Entitlement Committee of Manitoba Inc.; second, the Peguis First Nation;
third, the National Aboriginal Lands Managers Association; and, fourth, the
First Nations Lands Advisory Board.
Before going to our witnesses, please let me introduce the committee
members who are here today.
On my left, we have Senator Sandra Lovelace Nicholas from the province of
New Brunswick; Senator Jane Cordy from Nova Scotia; and Senator Jim Munson
from Ontario. On my right, we have Senator Pierre Claude Nolin from Quebec;
Senator Nancy Greene Raine from British Columbia; Senator Salma Ataullahjan
from Ontario; Senator Carolyn Stewart Olsen from New Brunswick; and Senator
Don Meredith from Ontario.
Members of the committee, please help me in greeting our witnesses and in
welcoming them to our meeting.
From the Treaty Land Entitlement Committee of Manitoba Inc., we welcome
Chief Nelson Genaille, President; and Chief Wilfred McKay Jr., Member.
Joining us from Peguis First Nation, we have Michael Sutherland, Councillor;
and Nathan McCorrister, Executive Director. From the National Aboriginal
Lands Managers Association, we have Leona Irons, Executive Director; and
Gino Clement, Chairman. In addition, we have several witnesses from that
organization who may answer some of our questions. Finally, here on behalf
of the First Nations Lands Advisory Board, we are joined by Chief Robert
Witnesses, we look forward to your presentations, which will be followed
by questions from the senators. We would ask that you try to keep your
presentations brief, about five minutes each, so that we have as much time
as possible to entertain questions from the senators.
In terms of presentation order, would you like to proceed as listed with
the Treaty Land Entitlement Committee of Manitoba Inc. going first? You may
Chief Nelson Genaille, President, Treaty Land Entitlement Committee of
Manitoba Inc.: Good morning.
[The witness spoke in his native language.]
Good morning and happy Valentine's Day to you all.
On behalf of the 21 First Nations, it is an honour to be speaking here to
a Senate committee. I am Chief of Sapotaweyak Cree nation. I have been the
chief for two years now. Before doing TLE, I was the councillor for six
years. I started back in 2000. Sapotaweyak is signatory to treaty 4, one of
the entitled First Nations under Manitoba TLE.
Joining me here is Chief Wilfred McKay from Rolling River. Looking back
at the work that we did, we pretty much started the same time on this TLE.
The TLE was signed on May 29, 1997. The signatory agreement was treaty 1, 3,
4, 6 and 10. By this agreement, 1.1 million acres was supposed to be
allotted to us for reserve creation. Since that time, however, only 464,000
acres have been converted. We are not even halfway there yet after almost 14
years. As part of treaty 1, per capita it is 168 acres per family of five
that is going from one to four.
Under treaties 3, 4, 6 and 10, it is 640 acres. As you can see, the urge
that I get from my community is to fulfill this treaty obligation. One
hundred and thirty-seven years have come and gone since Canada and the First
Nations entered into the treaty. This is the most cumbersome process that I
could undertake for the First Nation land service in trying to complete
this. We have tried to explore the economic opportunity of our lands many
times, but it is not happening.
I can sense the frustrations of the other First Nations that also do TLE.
The ATR process is a very cumbersome and very long process.
On October 20, 2000, Canada passed the Manitoba Claim Settlement
Implementation Act. We opted into that. It was an act that was supposed to
expedite TLE, but I do not see that happening at all.
As of August 21, 2010, after a four-year time frame, a total of 375,000
acres were converted. This past year, I think only 21,000 have been
converted. Clearly there is something wrong with this process, and hopefully
the Senate committee will be able to ask the proper questions as to how they
can help and fulfill this legal obligation of land. The time frame for most
of the bands is coming up; it is 15 years. As a schedule B band, one of the
bands that can acquire other land, we only have until 2013, with two
one-year extensions. At the same time, my community keeps telling me,
us buy more land so that we can get into economic development. " I keep
telling them that we have two pieces of property that were bought in 2006
and 2008. How can I look to buying more land when my First Nation is paying
taxes for the land we just bought? It is a Catch-22.
Meanwhile, the provincial government is going to be sticking to their
guns and saying that deadlines are coming up. I do not know if we were going
to be fulfilling the time frames that are allotted for Crown land selection
That being said, we need this process to be expedited, but at the same
time we need both governments, provincial and federal, to fulfill this
agreement. This is a treaty obligation. At what point in time do I tell my
First Nation that we are not going to fulfill this agreement? They are going
to ask me, "What do we need to do? " I am not a person who is into warfare
or protesting this or that. However, at the same time that general business
is going on, I see the government disposing of Crown land and entering into
agreements with the private business sector. Meanwhile, we as First Nations
are left behind, and I see the media telling us that we are a tax burden.
This is a Catch-22. How can we be given that opportunity if it is a
I will not say any more; I will give my colleagues here a chance to do
Michael Sutherland, Councillor, Peguis First Nation: My name is
Mike Sutherland, and I am a councillor with Peguis First Nation. I, too, am
honoured to be here today to provide a presentation to the Senate. I would
like to thank the chair and senators for giving us this opportunity.
Today, I am going to talk about two issues, but because of time
constraints I am just going to concentrate on the number one issue for
Peguis First Nation, which is flooding, and how it can work with the ATR
Peguis First Nation signed treaty 1 with Canada, as represented by the
Crown, in 1871. As Chief Genaille said, treaty 1 provides that our First
Nations would have 160 acres for a family of five, a formula used to
determine what our First Nation would receive for land. Peguis did not
receive all of the reserve land to which it was entitled under treaty 1, and
this shortfall in land amounted to what is called an outstanding treaty land
entitlement. I will not be speaking on that; it is just for your
I will be talking about the flooding in our community. Peguis First
Nation has experienced severe, annual flooding of our main reserve in recent
years. This past year, we experienced one of the worst floods ever. The
flooding situation in our community, and also in a number of other First
Nations in the Interlake area of Manitoba, has gained national attention.
This past year alone, we have had over 300 people displaced and living in
hotels. Just to let you know, in 2010, we had over 800 members displaced.
That year, we had four floods. One was spring flooding, and three were
overland. People pretty much stayed in hotels throughout the whole year.
We have 480 homes in the flood zone in our community. About one third of
our land is in a flood zone. Therefore, it is not designated suitable for
habitation or agricultural use.
As you may be aware, category three or the other category of the ATR
policy includes lands provided for First Nations who have suffered from
natural disasters such as flooding.
Last year, in August 2010, we met with our regional office of INAC, and
one of the regional directors recommended that we look at TLE. We said
absolutely not, because under the ATR policy there are regulations that
provide the opportunity for us to acquire further land to make up for the
land that is not suitable for habitation or for agricultural use.
As you are aware, in her 2005 and 2009 reports the Auditor General of
Canada criticized Canada for not fulfilling its obligations and for the
management of its responsibilities in converting land to reserves through
the ATR policy. Although the reports did not focus on the ATR policy itself,
they did in fact highlight some areas that needed to be improved, including
resources for proper staffing, better reporting, assistance to First
Nations, dealing with third party interests, and a consistent approach to
applying and managing the ATR policy.
We have been experiencing new and existing third-party interests being
created within our traditional territories. Third-party interests on Crown
land have the ability to create barriers and time consuming obstacles for
our First Nations in selecting land. Our TEA, Treaty Entitlement Agreement,
provides for our First Nations to be notified of certain Crown land
dispositions being proposed for use by third parties or by governments. We
have experienced a couple of examples where both the province of Manitoba
and Canada have failed to appropriately and adequately consult our First
Nations on the availability of Crown and federal land for selection or
Unfortunately, with no further choice, we are undertaking further steps
to resolve this situation through legal action in court. This is another
example of where Canada can take the lead in both addressing this within
their ATR policy with respect to land selection and implementing a clear and
accountable process for consultation and accommodation as recognized by the
As I mentioned earlier, Peguis First Nation has experienced severe annual
flooding of our main reserve, and we have been flooding for over 20 years.
Since 2006, it is been disaster after disaster. In 2009, we had two floods:
our spring flood and another flood over the summer months, which we call
overland flooding. It is a new monster. It does not just affect people along
the river systems; it affects the whole community.
In 2010, we had four floods. We had the spring flood, and we had three
other subsequent floods throughout the year, in August, September and
In 2011, we had one major flood that affected the whole Interlake region,
as well as other parts of Manitoba. Today, we still have 65 families out of
our community. In 2010, as I said, we had over 800 displaced people from our
community living in hotels in a city.
Last year, there were over 300-plus people, and there are still 260 away.
We have six families that have been out of the community going on three
years. There have been extreme hardships for those families. My
brother-in-law's family is one of them, and the family is on the verge of
breakup through not being in their community and being away from their
families and their loved ones. They are finding it extremely difficult.
Families are being torn apart.
The level of education in our community has dropped significantly.
Previously, we were looking at a two-year provincial standard as we were
below that. Now, it is going on three because of the flooding. Every year we
are displaced, sometimes for up to six weeks with the kids out of our school
systems. Health conditions and housing shortages are all due to the
flooding; and this year is no different.
I have some recommendations. There is a requirement for oversight and an
independent body to ensure that government officials, including deputy and
assistant deputy ministers, meet their obligations under the current
policies and for them to be accountable for their actions, or lack thereof.
Canada must give priority to first Nations who are impacted by natural
disasters, such as flooding. Emergency situations such as ours need to be
reviewed by the Auditor General of Canada in comparison to non-first Nation
communities. For example, we have communities there that are non-First
Nation. The farmers in agriculture are being compensated immediately.
However, since 2006, we have five farming families left in our community
that have not received any compensation whatsoever. At one time Peguis First
Nation boasted 75 farming families in the community. Now, we have just two
left. Over the last three years, it has taken its toll on the remaining. The
ATR policy needs to be reviewed and changed in terms of Annex C and category
three of new reserves and other policy considerations in subsection 2.4.1
dealing with natural disasters and flooding.
With that, I thank you for hearing our concerns. At this time, we would
like to extend an invitation to the Senate committee to visit our community,
to view the impacts of the flooding and to meet with our chief and council.
The Deputy Chair: Thank you. I will now move to the National
Aboriginal Land Managers Association.
Gino Clement, Chairman, National Aboriginal Lands Managers
Association: Good morning. My name is Gino Clement and I am the lands
manager for Listuguj First Nation in Quebec. I am also the NALMA Chair and
Chair of the First Nations Lands Managers Association for Quebec and
As custom to our association, we would like to begin by honouring and
acknowledging the traditional territory of the Algonquin people. In respect,
we offer our medicines of sweet grass, cedar, sage and tobacco. We also ask
the creator and the spirit of our ancestors relations to grant us wisdom and
that we have a productive session. We would also like to thank the standing
committee for the invitation to speak today. We look upon this opportunity
to promote awareness for raising professional standards in First Nation land
managers, and to draw attention to the need for improving the additions to
With me today are my colleagues who will join in during our question and
answer period: Joe Sabattis, NALMA Vice Chair East Region and Chair of the
Atlantic Region Aboriginal Lands Association; Aaron Louison, NALMA Interim
Chair Western Region and Chair of the Saskatchewan Aboriginal Lands
Technicians; and Gordon Bluesky, NALMA Director and Director of Manitoba
USKE. Unable to attend today, and they send their regrets, are Jennifer
Copegog, NALMA Director and Chair of the Ontario Aboriginal Lands
Association; Jerry Panegoniak, NALMA Acting Vice Chair Northern Region and
Acting Chair for Planning and Lands Administrators of Nunavut; and Lance
Yellow Face, NALMA Director and Chair of the Treaty and Aboriginal Land
Stewards Association of Alberta.
Our NALMA Executive Director, Leona Irons, will now provide the committee
with a brief presentation. Again, we thank you for the invitation to speak
Leona Irons, Executive Director, National Aboriginal Lands Managers
Association: Today we are going to provide you with a brief background
on our association, describe to you some of the issues and challenges faced
by First Nations with respect to additions to reserve and highlight our
achievements in dealing with ATR issues and challenges.
The National Aboriginal Lands Managers Association was officially formed
in 2000 as a non-profit, non-political organization. NALMA is a technical
organization driven by First Nation lands management professionals. We
receive our funding support from Aboriginal Affairs and Northern Development
Canada to carry out our mandate.
Our association comprises seven regional land association chapters with
112 First Nations and Inuit community members at large, namely in the areas
of the Atlantic, Ontario, Quebec and Labrador, Manitoba, Saskatchewan,
Alberta and Nunavut. We also have representation from British Columbia. We
have yet to confirm our organization's representation in the Northwest
Territories as well as Yukon. However, we have established contacts there.
Our members operate under various land regimes or programs. We have members
who operate under the RLEM program, which is the Reserve Land Environmental
Management Program. They manage their lands under the Indian Act. We have
the First Nations Lands Management Act, which is a sectoral self-government
management of lands. We also have members who are under self-government,
which is a full control and management of lands.
It is interesting to note that specific to our membership, we manage over
1 million hectares of community lands. With the addition of treaty land
entitlement and specific claims settlements, we project this number to
increase significantly. We have three basic mandates. NALMA and our regional
lands associations work towards providing opportunities in professional
development, networking and technical support that will meet the existing,
emerging and future needs of First Nation land managers to efficiently and
effectively manage their lands. We view our mandate to raise professional
standards in land management, promote good lands governance and provide
access to technical support.
There are many issues and challenges faced by First Nations communities
in successfully completing an ATR. Through our ATR training initiatives, we
have heard many testimonies from First Nations on their issues and
challenges. The major challenges are in the ATR process and capacity and
resources. If I may, I will demonstrate the process by showing you a process
chart that outlines the process of the ATR. There are a number of steps in
the process from start to completion. It is a lengthy process, and certainly
I can understand our colleagues' in dealing with the process.
Generally, the land managers are involved directly with the ATR process
at the community level. It is for that reason we have vested interest in
working with willing and productive partners to improve the ATR process.
Over the past 10 years, we have made significant progress in raising
professional standards and in promoting and building capacity around good
land management. Our practical approach of working closely with Aboriginal
Affairs Canada, headquarters and regional level, Assembly of First Nations
and other external organizations to address land capacity has produced
effective, tangible and successful results.
With the funding support of Aboriginal Affairs and Northern Development
Canada and subject-matter professionals, we are able to produce an ATR tool
kit. This tool kit is an integrated set of printed materials, worksheets,
flow charts, checklists and training modules designed for use by First
Nations and their professional associates. It should be used from the very
start of the land acquisition process and continued throughout the ATR
process until completed. Using this tool kit, we have delivered training to
over 100 First Nations across Canada. We have offered the training in both
official languages. In addition, we have provided each First Nation with a
copy of the tool kit.
NALMA is a non-political organization, and we respect the political
process in offering our technical support to work towards improving land
management. Currently, NALMA is assisting Aboriginal Affairs and Northern
Development Canada and the Assembly of First Nations joint working group by
providing access to technical professionals as related to ATR and land
The joint working group is doing an excellent job of working in
partnership to explore all policy, legislative and operational options for
improving ATR, and they are planning to bring forward some of their
recommendations for reform. We strongly value their work and commitment
because at the end of the day it is us at the community level and our
colleagues throughout Aboriginal Affairs who implement improved changes, so
we do have an interest to be part of that joint working group.
The National Aboriginal Land Managers Association is a First
Nation-driven, professional organization working towards improving quality
of life for our people. As stewards of the land, we have the important
responsibility of ensuring quality land management to promote sustainable
growth and prosperity within our communities. Like many organizations, we
are challenged with fiscal restraints. However, it is the future endeavour
of our organization to continue working with willing and productive partners
to raise those professional standards, solve the issues and challenges and
promote good land governance.
We have various levels of subject matter professionals on our NALMA board
who can address your questions on additions to reserve. If there is a
question related to that, they are here to answer them.
The Deputy Chair: Thank you.
We will now hear the witness from the First Nations Lands Advisory Board.
Chief Robert Louie, Chair, First Nations Lands Advisory Board:
Good morning, honourable senators. I am Robert Louie. I am Chief of the
Westbank First Nation, and we are located in British Columbia's Okanagan
Valley. I am also Chair of the First Nations Lands Advisory Board, and it is
a pleasure to be before you again.
I have two individuals with me who are here to assist in the event that
you have questions that might be specific to some of the issues that they
are working on. First is Julie Pellerin. She is a Nipissing band member, and
she works at the Lands Advisory Board Resource Centre as manager of support
services in Ontario, Quebec and the Maritimes. As well, we have Kerry
Kipping. He works also at the Lands Advisory Board Resource Centre as our
I am pleased to provide some thoughts on Canada's approach to additions
to reserves — I will refer to it as ATR — and the federal ATR policy in this
regard. First, I will speak from my experiences as a community chief for
over 20 years, having been involved in the process of successfully adding
lands to reserve in the past as well as presently seeking to add new lands.
Right now, we have four separate land matters involving upwards of 1,000
that is part of the ATR process.
Second, I would like to speak from the experience across the country of
those First Nations operating under the Framework Agreement on First Nation
Land Management. The framework agreement, as I believe you know, is one of
the most successful First Nations sectoral self-government initiatives in
Canada. We are very proud of that fact.
Before I proceed, I want to provide some context to this experience with
some general observations about Canada's approach to ATR and the current
policy and how I believe that Canada should be approaching additions to
reserve differently. The current federal approach to additions to reserves,
I submit, is based on a presumption that ATRs are generally not a good thing
and to be avoided and, if absolutely necessary, restricted. That is exactly
how that policy is presented. Consequently, the policy is not designed or
interpreted to encourage or support additions to reserve but rather to
discourage them. The ATR policy, although amended from time to time, was
written in a different era and not in our evolution way from governance
under the Indian Act. I would argue that Canada must revisit its approach to
ATR and not just rewrite the policy but replace it with legislation. That
legislation must be based on the assumption that Canada actually wants to
add lands to reserves because it is in the long-term interest of First
Nations, Canada, and indeed the provinces and the municipalities to do so,
especially in this period of rebuilding First Nations' government and
implementing the United Nations Declaration on the Rights of Indigenous
In Canada, the average reserve size is 6,000 hectares. Indeed, some First
Nations communities in Canada have no land or miniscule amounts of land. In
the United States, the average size is 124,000 hectares of land. In fact, to
put it into perspective, you can fit all of Canada's reserves into the
reserves of the Navaho nation, and you could fit that by approximately two
and a half times. Many reserves are simply too small to be viable economic
and social entities.
The current ATR policy includes three broad categories for additions: (a)
legal obligations, (b) community additions, and (c) new reserves and/or
other policy. To oversimplify the policy, these categories basically work to
limit additions to those that either meet strict legal requirements of the
Crown to add land or to expand the reserve to build community housing or
An assumption of the ATR policy is that adding lands to reserves will
usually increase costs to the federal government. In part, this has arguably
led to a more restrictive rather than enabling policy.
Interestingly, in order for additions to meet the requirements for legal
obligation, as stated in the language of the policy, funding issues should
not frustrate the addition to reserve. We know from experience that this
reference implies that funding issues can and do frustrate additions in
other categories of community additions and new reserves/other policies.
Respectfully, the funding concerns reflect a narrow view of First Nations —
one that collectively we must overcome by realizing that First Nations that
have a suitable land base for economic development, that have regained
control of their lands by moving beyond the Indian Act and that have good
governance, have proven to reduce costs in the long run by creating a net
gain to the Canadian economy and by reducing First Nations' reliance federal
Take, for instance, my own community, Westbank First Nation, which is now
self-governing. As a result of our good governance and exercise of
appropriate jurisdictions, we have been able to stimulate and grow our
economy through local development at a pace that exceeds our neighbouring
municipality. We generate significant revenue not only to support our own
government activities and the delivery of programs and services by our
government but also for the region, for British Columbia and for Canada.
Recent independent studies show that for the year 2010, $80 million in
additional tax revenues to both Canada and British Columbia were raised from
economic activities on our Westbank lands. As of 2010, our gross domestic
product has been estimated at $500 million annually.
Likewise, similar studies conducted for the lands advisory board have
shown the incredible economic impact that First Nations with land codes have
been able to make. Overview of the process of adding lands to reserve
confirms that it is clearly too time consuming and problematic, as validated
by the recommended actions of the Auditor General and others. The current
policy makes it incredibly difficult, if not impossible to add lands to
reserve for economic development purposes, which in today's world makes
absolutely no sense.
In determining any objections to an ATR, one of Canada's considerations
is the position of adjacent local governments regarding the potential loss
to their municipal tax base resulting from an ATR. Interestingly, on the
other hand, there is no consideration for potential gain — that is, tax gain
— to First Nations. Again, it all depends on one's point of view when
looking at the addition.
For the most part, lands actually available for an ATR are undeveloped
and therefore represent very little tax benefit to a city or town. Even
though the provincial government may support it and appreciate that the
First Nation's economic project stimulates the regional economy as a whole,
it is ironic because one of the grounds for declining an ATR can be lack of
municipal support. On the other hand, First Nation land management and the
land code have placed Nipissing First Nation, for example, in a position of
partner with the local governments and have led to mutually beneficial
relationships. On November 3, 2011, the mayor of the City of North Bay, Mr.
Al McDonald stated, "We share an exceptional relationship with
Nipissing First Nation and the City of North Bay that I think is quite the
model, and I just want to say on behalf of the citizens of North Bay, thank
you so much for your leadership. "
The ATR policy should address specifically an addition in the context of
an exchange of lands in accordance with the terms and conditions of either a
self-government agreement or the framework agreement. Once parties conclude
an agreement for the exchange of our lands, notwithstanding any exceptional
circumstances, the additions to reserve should simply be treated as fait
accompli, with a timely administrative process that involves little if
no subjectivity on the part of the federal decision makers. If not, federal
or provincial projects could be delayed or never built.
The ATR policy has a potential to create expectations for those who, for
whatever reason, would prefer additions not to take place. Again, it would
be much simpler if the process was clearer.
There is a provision in the ATR policy for category C additions. That is
the addition that is referred to as "new reserves/ other policy, " in which
some consideration is given to economic development that the addition
not be approved if the economic benefit could be substantially achieved
under another form of land holding, i.e., non-reserve land owned by a First
Nation corporation. " From our perspective, economic development should take
place on reserves as the evidence shows under the framework agreement that
it is not the fact that it is lands that is 91(24) or lands reserved for
Indians that is a problem. The problem is that the legal framework for
governing the lands under the Indian Act is wrong. One could surmise that
ATRs are being overlooked for economic development purposes because of this
clause in the ATR policy. That clause needs to be revisited.
If our collective intention here is to create strong First Nations
governments, then the process should be easier and quicker for a First
Nation governing its lands under a land code outside the Indian Act. Before
I conclude, for framework agreement First Nations, there is an additional
step of additions to reserve which I briefly want to raise.
The bureaucratic mindset that has impeded ATRs is now affecting additions
of reserve lands to a concluded individual agreement and transfer of land to
the governance jurisdiction of an existing land code. This needs to be
rectified. The example I want to give here is the Mississauga First Nation
in Ontario. Land governance under the framework agreement requires lands.
However, for one First Nation, the Mississauga First Nation in Ontario, the
delays in the additions to reserve process have resulted in a land code that
governs an empty meadow of only 0.16 acres. This is an extraordinary example
how crucial land is to building a community and viable economy and how the
ATR process is not working.
Mississauga First Nation filed their claim in 1983 and the settlement
agreement was finalized in 1994. On March 25, 2010, an order-in-council
approved the granting of 40,000 acres of land to reserve status. Mississauga
signed the amendment to the individual agreement on September 7, 2011. Since
then, the individual agreement has been awaiting the minister's signature.
In fact, I raised this matter with the minister in my meeting with him last
night. Although the approval process had been met within the Department of
Aboriginal Affairs and Northern Development, there has been no indication of
the cause for this latest delay.
Land code First Nations have embraced the opportunities provided by the
framework agreement and are creating active, exciting and more prosperous
futures for the communities as a result.
In conclusion, the ATR policy needs to be replaced with a legislative
base based on the objective that adding lands to reserve is in the interests
of all parties. It should include an efficient and timely way for lands to
be added to reserves for economic development purposes and a separate
category established there from.
With respect to First Nations that are governing lands beyond the Indian
Act, and specifically First Nations with land codes under the framework
agreement and those First Nations who are self governing, the policy must
reflect the government-to-government relationship and the fact that the
relationship is different than for a First Nation whose lands are
administered under the Indian Act.
These are some of my comments, honourable senators. I know we are going
to be running out of time and I can certainly add a written submission to
the committee to complement my presentation, if that would be desired. Thank
you very much for hearing me today.
The Deputy Chair: I would like to thank all the witnesses for
their thorough and interesting presentations this morning.
Ms. Irons, you held up the chart of the process involved in the ATR
approval process. It seems rather complex. Is there a major bottleneck
within that chart that you showed us that we could address or should the
process be totally revamped? Is there some specific section that we could
look at to remove a bottleneck? I know when we were looking at land claims
there was a bottleneck within the process right at the beginning that was
addressed. I am not sure whether that sort of remedy would work in this
Could we have someone from NALMA answer that question?
Gordon Bluesky, Director, National Aboriginal Lands Managers
Association: My name is Gordon Bluesky, from the Brokenhead Ojibway
Nation. I am also the Manitoba USKE chair on the National Aboriginal Lands
Managers Association board. We have quite a bit of resources here to answer
I have to take myself back to some discussions with the Treaty Land
Entitlement Committee as to some of the bottlenecks that come into the
Manitoba region specifically with the amount of lands that we have to filter
through the ATR process. Our framework agreement alone, which our TLE
committee falls under, has approximately 17 First Nations and approximately
1.1 million acres of land that have to ultimately filter through the
framework agreement and then through the additions to reserves process.
One of the main points that needs to be identified is the amount of
resources, which to me reflects the amount of commitment that the government
has to accommodate these legal agreements and this treaty land entitlement.
You have $2 million that is supposed to address the environmental audit
process of the additions to reserves, and the same $2 million is also
supposed to address the surveying requirement. In most cases, Aboriginal and
Northern Development Canada for the region of Manitoba is taking First
Nations that are less encumbered and for whom the process will be easier and
giving them priority for parcels of land through that small amount of money
that is actually for the region. The bureaucrats of our region are forced to
try to accommodate each First Nation's ATR because we not only have the
Treaty Land Entitlement legal obligations, there are also the one-off First
Nations like Peguis and Rolling River, Long Plains and so on. Not only that,
but you also have the First Nations that are just going through the specific
claim process and also going through the other category under the three
categories on additions to reserves. Therefore, there are approximately, if
I can guesstimate, over 2 million acres of land. I do not see the resources
coming into the region to reflect the amount of work that is required to
accommodate close to 2 million acres of lands that have to be put through
the chart that you see behind us.
One of the steps, as I said before, is third-party interest resolution,
which is basically the process that you have to get through to resolve
encumbrances situated on a parcel of land, for example, Manitoba Hydro
distribution facilities or the Manitoba telephone system's communications.
You also have other interests that are unregistered, that have never existed
prior to the First Nation selecting or acquiring these properties, for
example, the hydro easement requirements, that have to be resolved prior to
the First Nation assuming ownership of the property.
The ATR process has put the First Nations in a position where they are
trying to negotiate agreements and settling issues and encumbrances on
properties that are not even under their jurisdiction yet. That is the
largest impediment because then the First Nation is put in a position where
they have to sign that and agree to this before they can get that. The
entitlement was initially meant for the First Nations people of this land.
That is why we signed Treaty Land Entitlement. However, once we get past the
ceremony and the signing of the agreements, it is like we are obligated to
provide entitlement to everyone else by the entitlement that was initially
meant for us.
I think the municipal and provincial jurisdictions and industry have been
given priority over a constitutionally protected right, through the treaty
provisions, for land.
We have lost focus on that in the ATR, specifically for Manitoba.
Mr. Genaille: As an example, the ATR is just a small step of the
whole overall process itself. I have Chief McKay here. He has an economic
property that he wishes to convert, with the desire of fulfilling his First
Nation and other First Nations trying to succeed in a business opportunity.
We could give him time to elaborate on where he feels the stumbling block
Chief Wilfred McKay Jr., Member, Treaty Land Entitlement Committee of
Manitoba Inc.: Good morning. My name translates as Echo in the Wind. My
English name is Chief Wilfred McKay, and I am from Rolling River First
Nation in Manitoba. It is very interesting when I sit here and listen to my
colleagues and the problems they are having turning land into reserve
through the reserve creation process. I heard a comment that it will take
another 50 years before we finish our TLE framework agreement process in
My council and I have drafted a resolution asking for a 20-year extension
on our process at Rolling River. Rolling River is required to purchase
approximately 4,000 to 7,000 acres of land and select 2,500 acres of
provincial Crown land, which we have done already. The provincial Crown land
that we selected has reserve status already. It only took us about two years
to turn that land into reserve. The problem we are having is with the land
we have to purchase. The framework agreement provides anywhere from $195 to
$215 to purchase land around our area. Well, lo and behold, there is no way
that will happen. It has not happened yet. The least we have paid for an
acre of land has been $300. The local farmers and landowners heard that the
First Nation signed a TLE agreement, so suddenly they want anywhere from
$500 to $600 an acre. That is providing us with many problems. So far, the
First Nation has purchased approximately 3,100 acres of land that has been
turned into reserve land. As you can see we are a long way from the 4,000 to
7,000 acres we have to purchase and turn into reserve. That is why we have
had to ask for a 20-year extension under the TLE process.
The main reason is the price of the land. It skyrocketed ever since the
First Nation signed these agreements with the provinces and the federal
Another problem I see with additions to reserves — turning land into
reserve — is the problem we are having with the Department of Indian
Affairs. It is not really a problem with them. The thing I see is that they
are very short staffed to deal with our issues. You heard from Gordon the
amount of acres and the amount of First Nations that have to be dealt with.
The regional office does not, in my opinion, have the capacity to look after
these issues in an appropriate manner. They just cannot do it. I know for a
fact there is just one lawyer in the region in Manitoba who is trying to
look after all these issues. That is where our main problem is. The Justice
Department for that region is sitting on a bunch of files that they cannot
get to. We talk about economic development. We have purchased 534 acres
adjacent to, but not within, the city limits of Brandon. It is across
Highway 1 from Brandon and is adjacent to the city limits. We figured there
are vast economic development opportunities here. The land we purchased is
on Highway 1 between Brandon and the Brandon airport. We cannot seem to deal
with these TPIs. We have to deal with Manitoba infrastructure and
transportation. We ended up giving them some land back because of road
right-of-ways and buffer zones. The TPI causes quite a problem for the First
Nation. No disrespect, but me sitting here today in front of the Senate,
with my colleagues, is just another one of those problems. However, I
realize how important this is.
Will coming here to sit with the Senate and my colleagues help me in any
way to push our issues for Rolling River First Nation in Manitoba? I do not
know why things have to get so technical. An individual goes and buys land
privately. Within seven days, they have title to the land that they
purchased. For Rolling River and other First Nations in Manitoba, it takes
seven years. I do not know what the problem is, but I gave you my opinion of
the problem. We have dealt with Manitoba Hydro and with MTS. The two
corporations have been very cooperative. We have signed for a permit under
subsection 28(2) of the Indian Act with them. We had to negotiate for two
years for but finally we have an instrument we could use with Manitoba hydro
and MTS. We thank them for that, but there are mines and minerals issues
too. We have had to go to B.C. and to come to Ottawa to deal with the mines
and minerals issues.
Again, I do not hold anything against the Province of Manitoba, which has
been very cooperative towards our process. It is the federal department that
causes delays in reserve creation. If you have any questions to ask me, I
will be glad to answer them, if I can. Otherwise, I thank you for giving me
a few minutes to speak. Meegwetch.
Mr. Sutherland: I wanted to add to Mr. Bluesky's comments about
capacity within the region, which is not only at the regional office or
level. With respect to respecting our treaty implementation notification
areas, our provincial departments do not respect them. Not only that but
also the capacity within our communities to handle some of these issues is
not there. We are very limited in resources not only at the regional level
but also at the local levels in our communities.
Prior to being on council, I worked under Mr. McCorrister at our TLE
offices as a lands and natural resources coordinator. One of the things I
dealt with daily was Crown land dispositions, especially mines and minerals
with quarry leases in peat mining. These quarry leases go up to ten years.
We are inundated every day with lease applications. Many times over the
years since our TLE notification became valid in 1997 provincial departments
have been issuing these leases without consultation with our First Nations
communities. That adds a tremendous amount of third party interest
throughout our region. I will give you an example. There are huge gravel
quarries adjacent to our community. They are owned by third party interests
with leases up to ten years. We, as a First Nation community, have to fight
for the use of our own gravel or pay for it within our traditional
territory. There is no respect from the provincial government or regional
offices when it comes to our TLE implementation process. Even though there
is a notification area, they still go ahead and they issue leases that last
up to ten years and reissue them without consultation. We are in a mini
battle right now with the provincial government over areas such as forestry,
mining, Crown land and agriculture, and so on, when it comes to the use of
the land within our traditional territory and the lack of respect for the
use of the land.
That shows the resolve of the provincial government and where it lies in
respect of the TLE processes. Mr. McCorrister and I have spoken briefly over
the last 20 years about flooding. Never once has the provincial government
or the federal government approached us when it comes to the ATR policy
because one third of our First Nation is under the flood zone. There has
been no follow-up. I was telling Chief Robert Louie here that we have had
over 18 studies done to our area in the last 20 years paid by taxpayers'
dollars. It amounted to millions and millions of dollars, but none of the
recommendations have ever been followed up on.
It shows the resolve of the provincial government in Manitoba when it
comes to the respect of our TLE and the ATR policy. The fact of the matter
is that I do not believe there is any respect in dealing with us as First
Nations. Take a look at the capacity within our communities. If we do not
respond to a lot of the dispositions within a 90-day period, they go ahead
and issue leases without consultation. Often our offices do not have the
people to deal with those matters.
In the southern part of Manitoba, which would be treaty 1 and treaty 2
territory, a lot of the agricultural and land and other areas are
privatized. Much of it has been acquired without any consultation whatsoever
with any of the First Nations there. What remaining land we have left, we
are fighting for and trying to hold on to it. A vast majority of it is held
under third party interests. How do we deal with that? That is one of the
biggest issues that we have. We talk about a bottleneck. It is not only at
the regional level but goes right down to the community levels as well.
Senator Nolin: Chief McKay, just to make sure that I understand
your numbers properly, did you say that you are trying to buy 3,100 acres at
$300,000 an acre?
Mr. McKay: There are 37,000 acres left that we have to try to
purchase under our TLE framework agreement.
Senator Stewart Olsen: How much is it per acre?
Senator Nolin: How much an acre?
Mr. McKay: The least we have been paying is $300 an acre. The
framework agreement identified that we purchase land anywhere from $195 to
$215 an acre; but the least we have paid so far is $300 an acre. I think the
highest we paid was about $536 an acre.
Senator Meredith: These are things that we have heard before. It
is increasingly frustrating when we sit here as senators and we constantly
hear all the bureaucracy hurdles that you have to jump through. I was
shocked to see the chart that you raised. I would be discouraged to even
start the process; and I am being frank with you.
Chief Louie, you have appeared before us and have spoken at length. In
2009, the Auditor General talked about the inadequate timelines and process
of reducing the time that you have to wait to get these additions to land.
What do you think the factor is in terms of surveys and the environmental
assessments that has contributed to the length of this time that it has
taken to get these lands into your hands so you can actually do economic
development with them?
Mr. Louie: I guess there are two ways that I look at it. One is
general for those First Nations that are Indian Act First Nations that are
not in self-government or with land codes.
Yes, at times I think that if you are looking at lands to add to the
reserve, there are complexities that you have to look at with things like
environmental matters or things like surveys and so forth, and that
certainly has frustrated the process. However, it should not be an
impediment to completing a transaction. When you are looking at First
Nations and using one of our First Nations in the land code process, it is
frustrating because there are extra hoops that the First Nation has to go
through, extra conditions, that offset the time frame.
One of those situations is probably the Mississauga First Nation, for
example. There are 40,000 acres waiting to get to reserve status, and they
have been waiting now for a long, long time. They enacted a process with the
land code development. Everyone was supportive of that — the governments,
their peoples and everything else. Yet, they have to go through extra
hurdles, so it complicates their timing of the process. Hopefully it will be
expedited as a result of what we are looking for as what we refer to as
Amendment No. 5 to the framework agreement, which will relieve some of those
requirements of things like having surveys finally done before you can
transfer the land to the First Nation. Especially if you have rural lands,
if you can adequately describe it and have no questions as to where those
lands are, then theoretically those lands should be able to go into the
process and say, "Yes, they can be added to the reserve. You have got the
jurisdiction. You can start doing something with those lands. " However, if
you are impeded by things like final survey requirements and then having
issues that might involve roads or some other issue and it gets complicated
in the municipal process or it gets complicated in some transfer process,
then you are stuck in a time warp that could go 40 years, and that is
unacceptable. There are ways that I think that can be done.
Senator Meredith: What has the minister indicated to you? You said
you met with him regarding this particular case.
Mr. Louie: Yes.
Senator Meredith: I am curious. We just came through the Crown
First Nations Conference, and there is a willingness on the part of the
government to move things expeditiously regarding economic development and
resource sharing. I see this as opportunities for the First Nations people
to move forward. You talked about it, Chief Genaille, with respect to the
opportunities that lie ahead for the people that you want to be free to be
able to develop your lands and move forward. I would think that the minister
would be acting quickly to say, "Let us sign this and get this moving
forward. " What has been the indication, sir?
Mr. Louie: I think the minister was somewhat aghast that it was
not in his office immediately. He has asked his assistant to say, "Well,
where is the file? " I think part of that problem is the bureaucratic
slowness in dealing with matters and getting it before the minister. I think
the minister genuinely would like to deal with this matter and get it off
the plate to stimulate the economic development just as we discussed at the
Crown and AFN gathering. However, I think the bureaucratic process and
things like ATR policies get in the way. You have all these bureaucrats. You
get that mind thinking, and everything gets stalemated and you do not get
through the process. I think these people in Manitoba and other communities
are experiencing the same problems. There is too much bureaucratic tape, and
it needs to change. I have read through that whole Chapter 10 of INAC's
whole land manual, and it is quite a document. It says ATR policy, but in
fact it is not just policy; it is a bureaucratic quagmire of programs and
all kinds of other things. You get mired down in that if you are a
bureaucratic, how do you get things moving? That is why the recommendation
that I am suggesting to you as honourable senators is create legislation
that truly has an intent to add to reserves.
These First Nations here around this table need those lands added to the
reserve base. They do not need bureaucratic quagmires and slowdowns and
bureaucracies to just frustrate the process, like the Mississauga. That is a
huge tract of land that they need right now, and I know, according to what
they indicated, just in lost revenues, they have calculated more than $1
million and $150,000 annually just from two utility easements, and that does
not include things like commercial leases and ventures. That is how much
collectively was lost because they have not been able to get these 40,000
acres transferred to reserve status. For them to have only 0.16 acres of
land right now is unacceptable. That is the problem.
Senator Meredith: Mr. Sutherland, I am concerned about the people
displaced through the flooding.
Mr. Sutherland: Right.
Senator Meredith: What has the province done? You talk about 18
studies that have been done over the last several years. I cannot remember
the exact number.
Mr. Sutherland: Twenty.
Senator Meredith: Over the last 20 years, and none of those
recommendations have been implemented to say, "Here we are. How can we
possibly maybe swap lands or move the First Nations people to higher lands
so they are not impacted negatively when we know that the floods are going
to come through. "
The province has done nothing, and the federal government has done
nothing to mitigate this circumstance?
Mr. Sutherland: In 2010, we had an extreme flood during the
spring, and July 1 of that year we had a major overland flood, heavy rains
and extensive flooding, and people who were just coming back were again
displaced for several weeks. The Minister of —
Senator Meredith: By the way, who pays for their accommodations
when they are moved?
Mr. Sutherland: It goes through the emergency measures
organization, which then funnels back to them through INAC.
Steve Ashton, the Minister of EMO, promised immediately 75 homes to be
replaced, and yet today we have not seen a doorstep. Over the years, there
have been many promises like that. I think in 2009 we flooded again
extensively, and they promised to replace and remediate 300 homes. We
started the process, and I think we did about 40 or 50 where they remediated
homes that were extensively damaged, and there was a lot of mould there. I
asked the chief and council and I even drafted a letter to them at the time
and to the EMO not to remediate the homes but to replace them or move them,
because they were sitting in the flood zone. Unfortunately, it did not go
that way, so they spent thousands and thousands of dollars remediating those
homes over the winter to again experience extensive flooding in 2010. Again,
it was a waste of taxpayers' dollars.
The province does their due diligence by the studies, stating that they
understand the issues and the problems, but I will tell you something. Here
is Peguis, and here is the RM south of us. From that RM, about halfway in
the RM to the north end of the reserve, is about 67 metres. We live in a
basin. Regardless of 18 studies or whatever, you do not need an engineer to
figure out water flows down hill, and we were at the bottom of the hill.
That is the result of it.
It is also compounded by Manitoba Hydro and the high water marks they
have been maintaining over the last few years. They are generating more
money. They are generating energy being sold south, so they maintain the
high water mark at 716. It is supposed to be 711. We are about five miles
from Fisher Bay or Lake Winnipeg. From the end of the reserve to the lake is
about 14 feet. What happens is that when the north winds blow, that bay
fills up, and water pushes back up the river through the First Nation of
Fisher River at the edge of Peguis. When the water flows down, it stops
there and pushes back. We can actually see water flowing back south rather
than north because the river system cannot handle it because the lake is at
maximum capacity already. It compounds the flooding. Thus, we launched a
lawsuit last September of $347 million against the federal government, the
provincial government and Manitoba Hydro.
Senator Meredith: That will take another 20 years to resolve.
Mr. Sutherland: It has not stopped. Taking them out of the
community and putting them in hotels until the water levels recede has been
the only real support that the province has given us.
Through INAC there has been some mould remediation, but not to the extent
where it is going to help the community. There have been no replacement
Senator Meredith: How are we going to deal with this? Legislation,
or is there some sort of engineering aspect of diverting the culvert or
raising the land? Is there something that can be done?
Mr. Sutherland: One of the things the Senate has to do is force
the regional departments to act upon their recommendations. When the water
comes from the south and hits the reserve.
Senator Meredith: Can you highlight some of those recommendations
for the Senate?
Mr. Sutherland: Drainage. We have 700 kilometres of roadways and
ditches in Peguis, not including additional drainage to lower areas. When
the water hits the reserve from the south end, it slows down because all the
drainage through the community has not been remediated. They are plugged
full of debris, grass, and trees. The culverts are not adequate. There are
so many issues when it comes to the infrastructure of the community. Once
the water hits the reserve, it slows right down.
One of the things that I have been recommending with some of the studies
that were done is to divert the water around the reserve. It is about $190
million in order to do that. However, about five or eight miles from the
corner of the reserve there is another bay called Washow Bay. About a
five-mile stretch from there toward Peguis is swampland, but there is a
ridge. I am proposing to send a trench straight east from the reserve. I
think we would go two miles and hit that swampland. It is a natural flow
away because the huge swamp is in that five-mile vicinity can handle as much
water as we put towards it. They are huge and would slow the flow of water
down to the lake. Nobody wants to look at it because it is too practical.
However, the Senate could force the provincial government to look at this
option. They just spent $500 million making a five-kilometre floodway for
the lakes in Fairford first nation because of the extent of flooding from
Lake St. Martin. They did a five-kilometre floodway to Lake Winnipeg costing
over $500 million, but they cannot put a two- mile stretch of ditch east of
Peguis. We have been flooding for 10 years. They only flooded once last year
and the province put together this plan right away to alleviate all the
Senator Meredith: Your estimated cost is $190 million?
Mr. Sutherland: No, that is the estimate to go around the reserve
to the lake. I am saying go straight east which is about eight miles. We
have an engineer working for us named John Arthur. He used to work for the
province as a hydrologist. He figures it is $25 or $30 million to do this
project, which is a lot less than going totally around the reserve and
straight north. It is a heck of a lot less than the $500 million that was
spent on that five-kilometre floodway in the Lake St. Martin area.
These are some of the recommendations that are already there, but they do
not follow through with them. The last study that was done was called the
LIDAR study, and it talks about the building up of the provincial road
through the reserve. It talks about the cleaning of the infrastructure of
the ditches — the draining systems — through the reserve, and looking at
other forms of flood.
However, none of it has been implemented. We need somebody to force the
federal government in order to do that. It has to come from you guys.
Senator Meredith: Thank you so much.
Mr. Genaille: In regard to converting land, through its treaty
obligation the Cree nation is entitled to 108,134 acres of Crown land. I
successfully completed 99,000. Right now 3,000 acres is in the process of
being surveyed and converted to Crown land. I will be about 105,000 acres
completed in my land quantum, but out of that land settlement, we are
allowed to purchase and acquire 36,000 acres of other land which is urban,
farmland, and those types of land.
Looking at the two pieces of property we bought, one is 0.14 acres that
cost $16,000. The other property has 1.5 acres. This is not even two acres
of acquired land that has been in the process for now six years. An example
which one of the senators mentioned was how much the land costs. There was
100 acres for sale within our area. It was for $375,000. When this agreement
was negotiated, it was based on a set per acre price. That has not happened.
In regard to the amount of dollars that we are allowed to acquire land,
we are not going to have enough. I posed that question to the provincial
government to acquire other land, which is Crown land.
In our traditional territory, there is industry. The industry is ready
and willing to intern to partnership agreement with our First Nation. That
is to go into economic opportunity.
Our TLE office in Winnipeg calculated an average of eight years to 6.4
years to convert a piece of property. We were not even halfway done yet, but
it takes a duty to work together.
Back in 2008, I came here and requested that the minister, and this
government, help with that. It was a ministerial commitment that guaranteed
150,000 acres per year, but I remind you that it was never fulfilled. Last
year only 22,000 acres was converted.
Our office went to the provincial government, and the premier at that
time said 1.1; you got it. It is easy for the ministers to say they are
going to proceed, but it is the bureaucratic system within the system that
slows it right down. We are always put down in regard to what we want to do.
There is a recommendation that I would like to put forth. There is a lack
of technical and financial capacity at the First Nation level, and at the
provincial and federal level. You have the provincial government continuing
to issue out TPIs. These are the competing factors. How are we supposed to
fulfill this if we have a government putting out third party interest out
there? It is never going to happen.
Dealing with Manitoba government, there is a process called the
Implementation Monitoring Committee. This committee has the power and
authority to deal with the issues. I had to sit in that committee back in
2002-03 just to help the issues forward. Jim Gallo was there, but he was
there at the same time when the MFA TLE agreement was negotiated. He even
mentioned at the time this ATR policy needs to be revamped but shortened. I
am pretty sure there is a federal policy within the policy on how to convert
a piece of property once it hits the table. There were about 10 selections
that sat at the minister's desk for order-in-council approval.
We need that connection. We need that communication. Our office Treaty
Land Entitlement committee can do it; one of the three parties that signed
on this agreement. Out of this agreement we have the Entitlement First
Nations, EFNs. We help and provide technical service, but the commitment to
fund our office is going to expire next year. Once it expires, who is going
to help the Entitlement First Nations; the resource that our office has
helped in gaining with the knowledge of how to convert a piece of property.
How is Peguis going to proceed? Peguis is going to be sitting here in 20 or
50 years time saying, "Where's my Crown land? How am I supposed to convert
my piece of property now? " If I encountered this for the last 10 years —
which I have — it is very cumbersome.
I would like to urge the parliamentarians to fulfill this outstanding
treaty obligation. They have to fulfill it.
I made a promise to my elders that I am going to help and assist. I am
going to convert, not for myself or my family, but our future generations —
our grandchildren — so they will benefit.
Through this working group — Canada, Manitoba and the province — we
established a way on how to make it work and how to make it go better. At
the same time, as a partner to this agreement, you have to have that partner
willing to work. We could try. We have tried. I came to AFN to support a
motion in fulfilling the outstanding debt. Now it is up to this government.
This government has an opportunity.
The Conservatives were a minority government not too long ago. They were
around our community and said, "We can do it. We can help. " Now I am here,
but I do not feel that here. I do not feel that commitment.
[The witness spoke in his native language.]
Mr. Louie: The honourable senator asked about what are some of the
other problems. To add to my earlier comment, there is a big issue with
capacity in government to deal with the matters. Not enough human resources
have been assigned to deal with these significant issues. Often no money is
provided, and the policy as it is now for many of these categories expects
the First Nations to pay their own costs. The bottom line is bad policy to
start with. It was written, I submit again, in a wrong era in time. It does
not take into account today's needs and the dramatic requirements to get
these issues fulfilled.
Senator Raine: I am learning; this is a subject that I am not that
familiar with. As I understand it now, we have outstanding obligations that
have been agreed to by describing a certain number of acres that are owed. I
find it astounding that this is saying that you can buy the acres, but only
at a certain price. It is not surprising, I suppose, that people who have
land for sale in the area jack their prices up and now you cannot buy it.
This is a ludicrous situation.
Instead of going through this process, if you were ordinary Canadians and
you purchased an acreage fee simple — that is, it was your acreage; you
owned it — what would you have to do in terms of third party agreements with
Manitoba Hydro or with the power lines or the roads or the government? If
they wanted to do something, they would come to you, but they would treat
you completely differently. I presume that you would negotiate and carry on,
but the land would be yours. I fail to understand why it has to be so
complicated to have it added to reserve unless it truly is the case that
people do not want it to be added to reserve. Yet, they have agreed. I do
not know to whom I should ask that question.
Mr. Bluesky: In our previous discussion in regards to adding lands
to reserve and some of the frustrations that we deal with when acquiring
property, we talked about this. For example, we acquire it for $40,000 an
acre. We then move that property through and add it to our reserve.
Essentially, it could be in a field in my existing First Nation because it
does not carry the same value as property that it did in its fee simple
form. With a commercial highway, for example, once you turn it to reserve,
you have to go through another process to designate it commercial,
institutional, residential, or whatever, before you can develop the
property. You have a couple of processes that have to be acknowledged before
it can get to what you are saying.
I can agree and understand with some of the perspectives because some
people have even said to me, "Why are you buying lands and turning them to
reserve when you lose three quarters, if not more of the value once it
becomes reserve lands, and the provisions and sections of the Indian Act
then apply, " which obviously limit our First Nations rather than progress
them. Why would you want to do that?
For example, our First Nations — and more specifically the treaty First
Nations — historically have signed agreements through the relationships that
we assume we have with the Canadian government, and with the British Crown
initially, that they will understand and respect certain rights that we have
as Aboriginal peoples and as First Nations people across this land. Those
rights and considerations will not be and are not acknowledged unless we are
situated within the jurisdictions of our own governments. Many times First
Nations people and First Nation governments are not acknowledged as such. I
have not seen the fruits of the government-to-government relationship yet. I
have not seen us sit down in that manner. Before we can look at why we would
want to do this, how will we have this and then continue with it, the legal
and administrative frameworks need to be established in Canada. We must
understand that the additions to reserve policy and the Indian Act were not
developed by First Nations people. First Nations people were not party to
the Natural Resource Transfer Agreement across the Prairies. However, for
example in Manitoba, we got 1 million acres of land, up to 2 million acres
of land, which represents less than 1 per cent of Manitoba's total land
mass. Yet, they have 85 per cent of the say in terms of our entitlement. How
are we supposed to move forward and have these?
In reference to the AFN and the Crown gathering — and I do not want to
get this discussion too far off topic — I was listening when the Prime
Minister was interviewed leading up to that Crown consultation. He was
referencing the frustrations that they are having and the lengthy processes
that are involved with the Gateway pipeline. They have to acquire land to
move the gas over 1,700 kilometres and they have to climb over a mountain to
make it to the Pacific Ocean. I will guarantee that process, the regulations
and the steps. He was talking about the frustration, the impact on the
Canadian economy, on jobs for Canadians and on the impediments and
roadblocks in international investment coming into Canada based on these
foreign processes, foreign entities and movie stars and going beyond the
NGOs internationally. We have the same frustration, but the processes,
regulations and acts that are created are not foreign; they are not
international entities that are impacting First Nation prosperity. They are
created here domestically without the understanding of First Nation
prosperity in mind. This additions to reserve, the regulations under the
Indian Act, the Indian Act itself as a whole; we have some prime examples of
this for First Nations. I believe that investment in First Nations is truly
an investment in Canada. It is one of the last true investments that we can
make as an investment in our First Nations. I do not think that should ever
be looked down at as not being a positive thing. I look at the First Nations
that have the opportunity to go through the lengthy processes of adding
lands to their reserves, going through the lengthy processes that are under
the Indian Act to designate or to zone these properties and then finally
getting to the point where, 25 years in the future, they can build an office
complex or a gas station or something else. To me, those things will not
just employ First Nations people; they will employ Manitobans, Canadians. In
some of our regions, those rural communities that benefit from First Nation
development are not acknowledging the national scope of things and are not
acknowledging that we are in the development of our lands. The prime example
is the Westbank First Nation and the benefits and the food that is being put
on the tables of all Canadians — not just First Nations. I think many people
look at First Nations development and these additions to reserve as adding
lands to a jurisdiction and a government that is totally alien to this land.
It is not. Investment in First Nations is an investment in Canada. That is
how the ATRs should be focused; that is what Chief Louie is focusing on.
That should be the main goal of it. Meegwetch.
The Deputy Chair: I know that some of the other witnesses would
like to make a comment, but we still have five or six senators waiting to
ask questions so I will now move to Senator Lovelace Nicholas.
Senator Lovelace Nicholas: Would land claims settlements solve
some of these immediate problems if you have land claims pending for land
additions or to buy land?
Mr. Sutherland: For Peguis?
Senator Lovelace Nicholas: Yes.
Mr. Sutherland: We have 111,000 acres of private land and 55,000
acres of Crown land that we are looking at. Currently, we are only at 23,000
acres of land that has been identified, so we still have a long way to go.
As Chief Genaille said, we have a 25-year process, but I do not think we
will reach that milestone. When it comes to our flooding issues, it has been
recommended that we acquire lands though those processes, but we totally
disagree because under the ATR policy it states that lands not suitable for
agriculture or habitation should be replaced. That has not even begun to
happen yet, and that is what we are stating. One the most important aspects
of our area is that we have 480 homes in a flood zone. Out of that 480,
probably 400 have to be replaced, but, if we go through the ATR policy, how
long will it take us? The TLE could be quicker, but we firmly believe that
the people will not support that because we cannot give up land entitled to
us to replace land that should be replaced by the federal government.
Maybe it is in your hands now to force this issue and to help us acquire
that replacement ATR land. Nearly one third of our reserve is under water
when it comes to flooding, but the process is so lengthy that it could be 10
years before we acquire. We do not have enough high ground to replace 400
homes. Buying land is an opportunity to help us, but we do not feel that is
the route to go. ATR is the route to replace unsuitable land. One of the
reasons we are here today is so that, hopefully, you could push this issue.
With the ATR policy, the amendments that we all talked about here have to be
made to shorten that process because the way it is now is not acceptable for
our people; it is too long, too cumbersome.
Senator Lovelace Nicholas: As to flooding area, why is your
community located in a flooding zone? Is it your choice to live there, or
were you put there?
Mr. Sutherland: In 1906 — and this is why we have our Treaty Land
Entitlement and our legal surrender — the government came into the
community, in the Selkirk region just north of Winnipeg. We called it St.
Peter's reserve. The government negotiated with a handful of people and
forced us out of that area because it was land that was highly sought after
for agricultural use along the banks of the Red River. It began with Lord
Selkirk appropriating that land and giving it to his settlers. They moved us
to where we were today, so we had no say. In 1906, we were displaced there.
Senator Ataullahjan: I did have two quick questions, but I will
stick with one.
Chief Louie, you mentioned that in 2010 you made $80 million in tax
revenue for the region. Do you know the loss to the tax base from that land?
I would be interested in knowing how much more was made due to the economic
development that you mentioned.
Mr. Louie: Westbank is self-governing. We have shopping centres,
industrial development, recreational development and other forms of
development on our lands. The point that I was trying to make is that if a
First Nation like Westbank has lands and has the opportunity to develop
them, then it will generate an economic benefit. In our case — and we had
professional people, economists and so forth, who prepared studies — in the
past years, $80 million was raised in taxes alone. We know that $50 million
went to the federal government, and $30 million went to the provincial
government in our province of British Columbia. We know that we have
contributed $500 million in estimated GDP as of 2010. That is a lot of
stimulus to the economy. Therefore, the point that I wish to make very clear
is that if First Nations have lands to work with, and if they are given the
opportunity, they can contribute, like we have, to the overall Canadian
economy. I think that is what is failing in this whole ATR policy. It does
not look at the economic values. It is designed — and I submit this very
candidly — to prevent or to frustrate additions to reserves. That is a huge
problem. They have not looked at the potential tax gain to the overall
economics of Canada or of the province, and that is a huge problem.
Senator Sibbeston: I think mine is more of a statement than a
question. I have been in politics, and I have been a minister in government.
It just seems like the problems or the issues that you raise today are all
bureaucratic issues, and they need a political decision. You need a minister
or the Prime Minister to say, "Look, we are going to make progress;
there are bureaucratic delays and problems, but we have to find ways to
speed things up. "
It seems to me that the problems you talk about all require some
political will — decisions by ministers — to speed up the process or find
ways of accomplishing what you want. Now, when the Prime Minister and the
Crown have met with the First Nations people, I see it as an opportunity to
deal with some of the problems. Let us hope that this process will result in
some solutions because, on our front, we hear the problems of First Nations
all the time. It is always the same. The time line or thinking of Indian
Affairs is in terms of decades. You can never get a solution; it always
takes 20 or 30 years, so this has to change. It seems to me that it requires
political will to change and improve things for First Nations.
That is my comment.
I am sure they would agree with that. When we meet with the minister in
the future, I guess it will be up to us to encourage the minister to take a
personal interest and tell us basically, as civil servants, to hurry up and
do the job.
The Deputy Chair: I know your witnesses are eager to comment, but
we have three other senators with questions. If there is time, you can
address your comments at the end.
Senator Cordy: Thank you to each of you who have been kind enough
to speak with us this morning. It has been very helpful for me.
My question is addressed to Chief Louie. You spoke about the ATR
agreements being written in a different era because we are now looking at
self government. This is a new era, and that is what any agreements or laws
should be focused towards. In fact, you did say that the agreements should
be replaced by a law. How do you think a law would make it less cumbersome
for additions to reserves? What would the new law include to make it
simpler, less cumbersome and more effective?
Do you feel a new law should also ensure that there is coordination
between the municipalities, the provinces and the federal government? The
federal government ultimately has the responsibility for the reserves, but
things seem to be bottlenecking. We also have some challenges that are put
forward by provinces or municipalities. How would we deal with that aspect
of it? There does not seem to be much coordination happening from what I
have heard this morning.
Mr. Louie: It seems to join with what Senator Sibbeston said, as I
understood it, is that it requires a political will.
If legislation were a requirement to add to reserve lands and if the
political will and concept of truly wanting to add lands to reserve land
bases were there, then there would be a need to do it either because it is a
legal requirement or it is a community purpose requirement as may be
outlined in the three categories of the ATR policy. As I see it, if it were
in the legislation, it could be simplistic to the extent of sheer will to
achieve the outcome wanted. If direction is provided in the legislation to
the bureaucrats with the time frame and what will be done, it will not get
mired down in pretend policies, which are frustrating. You would take away
the arbitrariness for the ATRs if you had direction through legislation. It
would provide the teeth for First Nations to challenge any lack of progress.
That would be significant. Currently, what do you challenge? Who do you
challenge? Who do you go to in order to say that it has taken some 40- odd
years to get additions to reserve? Why can we not make things happen?
You can deal with municipalities and provinces. In our case in my
community at Westbank, we have the provincial government on our side. They
have a contractual obligation and a commitment to add lands to our reserve
land base. They have agreed to do that, yet we are frustrated by some of the
municipal concerns. In fact, I believe that in many municipalities they do
not want to see any reserves being added to or land taken away from their
lands. They feel they have that total right. You have that quagmire.
Municipalities are subsets of any provincial government. They should not
have the veto, and that can be made clear as well. I know the policy exists
for municipalities not having the veto, but in fact they have something that
is very close because they frustrate it over time. That is a problem.
Legislation could help to correct that.
Senator Munson: You answered part of that question on the
legislative process, which I was going to ask about. As we come to the end
of this meeting, we have certain powers of persuasion and that is all we are
trying to do in terms of people we can talk to.
At the very beginning, Chief Nelson, there was an ominous tone and there
was an ominous tone a moment ago about what is happening in British Columbia
respecting the rights of Aboriginal people and jobs and about Canada. You
said, sir that you are not a person into warfare or protest, but you sound
like a very frustrated chief. These are extremely important issues. Having
been around for a little while, it is one thing to blame the bureaucrats and
the barricades that they are putting up, but could you expand upon your
frustration? We have about eight minutes to go in this meeting. At the
beginning you painted a picture about just what is out there in these time
frames. Another generation will go by, and we will still be talking about
Aboriginal rights and treaty rights. We always forget that as the base of
Mr. McKay: There are a couple of recommendations that our office
is ready to entertain. It is about adopting fast- moving legislation
pertaining to TLE obligations and implementation and about penalty clauses
for inaction and lack of movement as part of federal Crown meetings. For
example, if we acquire a piece of property and if that property has the
potential to make $2 million a year in revenue, it would benefit the First
Nation. With regard to tax loss, there is a municipal service development
agreement that needs to be signed with the town and municipality in lieu of
those services as a tax loss. We still pay regardless and the town or
municipality does not lose anything.
With regard to the minister making a five-year commitment to fulfil this
agreement, I would like to urge that to happen. In the next five years, the
commitment will end. You could have the minister provide a new five-year
ministerial commitment to provide survey funding to the Manitoba region and
the backlog of TLE, because. As I said, our TLE agreement is there but it is
not even halfway done. Another First Nation has signed off another claim,
and they will start their process; and I feel sorry for them. How long will
they be here?
With regard to tax loss, there is no tax loss to a town or municipality.
We will still pay that benefit to them. There is an opportunity where the
two governments could work together. In March, we will have a signing
ceremony. After that we have a business plan that is ready to roll. We have
an opportunity that the piece of property will make $2 million a year. That
$2 million will do a lot for education, housing and the other social
concerns that we have.
It is very frustrating. If we could expedite this process with some form
of legislation, it would greatly help the process. That is the feeling I get
from my members, because they want economic opportunities. The industry
waiting at my back door wants to start the business, but I cannot do it.
About 10 years ago we selected a piece of property. The provincial
government has been collecting rent on that piece of property, but I get
nothing. We have other First Nations that have mining activity. The mining
activity pays the province, but the reserve gets nothing. The community is
left out, and yet it is happening at their back door. We have an opportunity
here, so let us work together.
Mr. Louie: The senator asked a pointed question about Aboriginal
rights and treaty rights. I would like to explain something because it is
important. I will use British Columbia as an example. In British Columbia,
we have the B.C. treaty process. The mandate of that B.C. treaty process is
no reserves but there will be some other form of land tenure, i.e., fee
simple. That is the mandate that the provincial government and the federal
government have. Although it frustrates settlements of land claims and
treaty entitlements, whatever that might end up being, we have the Additions
to Reserves Policy that says the government will add to reserve lands. In
theory, there is a contradiction in two philosophical viewpoints. You are
penalized whichever way you look at it.
To go more to your point, a new category could be put possibly into
legislation, such as an Aboriginal title entitlement, and use it as a base
to add to the reserves or to the settlements. With that process, we could
avoid lengthy lawsuits, lengthy time frames and get on with doing business.
Senator Raine: For my question, I will go back to Chief Genaille.
You mentioned in your opening comments that the Senate needs to know what
questions to ask. Perhaps you could submit a list of questions to ask and
whom we should ask.
Mr. Genaille: Our office will do that, yes.
Mr. Sutherland: I have a comment on Senator Sibbeston's
statements. He is right. Ministers meet with us in good faith and have every
intention to support us. However, when it gets below the minister's office
that is where the problems lie. The civil servants and directors of each
branch have a tremendous reluctance to deal with the issues at hand.
Sometimes months and years go by before they even start to tackle any of the
issues, especially when it comes to the ATR policy, dispositions and
Somewhere down the line, legislation has to be passed to force the civil
servants to act immediately on issues that are at hand and not set them
aside or put them on a shelf because that is where the problem lies. When
working with the various levels of government when it comes to issues of the
land, our TLE and traditional land use, the problem lies with the civil
servants; and it always has. You can change the minister but the problem is
that directors, deputy ministers and those under them are not elected, so
they have no obligation to the constituents to act on the issues at hand;
and they do not. I will guarantee that they do not. They put it on the shelf
and delay the process as long as they possibly can. The only way that will
change is through additional legislation. Without it, we will be here 10
years from now discussing these same issues.
The Deputy Chair: I would like to thank our witnesses for their
expert testimony this morning and suggest that if they have not submitted a
written report to the clerk, they could submit written recommendations for
the record. A number of recommendations came up this morning, but any others
that you may think of after the meeting or have not had a chance to express
this morning could be submitted in writing.
(The committee adjourned.)