Monday, December 3, 2018

The Standing Senate Committee on Aboriginal Peoples has the honour to table its

FOURTEENTH REPORT

Your committee, which was authorized to examine 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, has, in obedience to the order of reference of Wednesday, November 7, 2018, examined the said subject-matter and now reports as follows:

On November 20, 21 and 27, 2018, your committee heard witnesses on the subject matter of 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. Division 11 proposes amendments to the First Nations Land Management Act (FNLMA), Division 12 proposes amendments to the First Nations Fiscal Management Act (FNFMA) and Division 19 proposes the enactment of the Addition of Lands to Reserves and Reserve Creation Act. Your committee notes that the timelines associated with reviewing Divisions 11, 12 and 19 meant that consideration of these amendments was rushed.

Your committee recognizes that the amendments contained in Divisions 11 and 12 are First Nations-driven; they are developed by, and for the benefit of, First Nations. In particular, your committee was pleased to see options in both divisions that could provide First Nations with the opportunity to access their capital and revenue moneys held in trust for First Nations by the Crown.  Facilitating First Nations’ access to their moneys has been a topic explored by your committee in the past, as part of your committee’s study on housing and infrastructure on reserve and at a meeting held on February 16, 2016.  

Given that the Lands Advisory Board (First Nations Land Management Resource Centre), the First Nations Tax Commission and the First Nations Financial Management Board have emphasized the importance of these amendments for their institutions, your committee supports Divisions 11 and 12. Your committee commends the government for its close working relationship with these institutions.

Your committee wishes to highlight, however, that witnesses identified the need for future amendments to both laws. With respect to the FNLMA, your committee heard that it should be replaced with legislation that simply ratifies the Framework Agreement on First Nation Land Management, as opposed to the existing legislation that restates the Framework Agreement’s provisions. Your committee was told that this would better reflect the reconciliation and recognition approach of the Framework Agreement and would make it clear that it is the language of the Framework Agreement, and not the language of the FNLMA, that prevails. While your committee understands the importance of moving the proposed FNLMA amendments forward at this time, it urges the federal government to expeditiously consider the replacement legislation proposed by the Lands Advisory Board.

With respect to the FNFMA, your committee was encouraged by the evolving relationship between the First Nations institutions and the federal government as reflected in the several amendments to the FNFMA over time. On a previous occasion, your committee examined amendments to the FNFMAcontained in Bill C-59, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 and other measures.  Those amendments were reported back without observations. While Division 12 of Bill C-86 contains many of the First Nations institutions’ proposed amendments, your Committee recognizes that more work may be required, including expanding the mandate of the First Nations Tax Commission.

While the process relating to amendments to the FNLMA and the FNFMA demonstrate close collaboration and consultation, your committee heard that the consultation process in relation to Division 19 was flawed. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) and Indigenous Services Canada (ISC) advised your committee of the steps taken to inform First Nations and organizations, such as the Treaty Land Entitlement Committee of Manitoba Inc., on the proposed Addition of Lands to Reserves and Reserve Creation Act. However, your committee heard from witnesses that engagement with them on this issue was inadequate, and that they had not had time to properly consider the impacts of the proposed new act. One official implied that a lack of a response from a community was consent. Your committee believes that the lack of a response from a First Nation in response to information that is sent out by the department does not mean that the community is consenting. Your committee wishes to emphasize that achieving meaningful consultation and engagement requires ongoing and continued effort by CIRNAC and ISC, in particular, as the dissolution of Indigenous and Northern Affairs Canada may have complicated what is already a complex engagement process.  Communities may require financial and other support to fully participate in the consultation process, which should take place in the context of adhering to the United Nations Declaration on the Rights of Indigenous Peoples principle of free, prior and informed consent.

Finally, your committee received a letter from Minister Petitpas Taylor and Minister Philpott dated June 6, 2018, in which they committed to a new fiscal relationship with Indigenous communities, including discussions about revenue sharing and taxation arrangements. While your committee was informed that discussions are taking place with the First Nations Tax Commission, the Assembly of First Nations, and others, your committee was alarmed to hear that First Nations continue to be excluded from benefitting from cannabis excise tax revenue.

As a result, your committee urges the Department of Finance and the Department of Health to engage with First Nation communities and organizations on this matter in a meaningful, and expeditious manner.

Respectfully submitted,