Evidence of meeting #33 for Aboriginal Affairs and Northern Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was first.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

3:30 p.m.

Conservative

The Chair Chris Warkentin

Colleagues, I will call this 33rd meeting of the Standing Committee on Aboriginal Affairs and Northern Development to order. We are continuing our study as it relates to land use and sustainable economic development for first nations communities.

Colleagues, before we get started, there are a couple of things I want to do. I want to welcome Jean Crowder to our committee. This is the fist time we've met as a committee in this capacity here on the Hill since your appointment, Jean, so congratulations and welcome back to the committee. I think you and I served some six years ago on this committee together. I do want to thank you for joining us, and I look forward to the next while that we spend together on this committee.

We are back now, colleagues. On behalf of those of us who travelled to eastern Canada, I can report that we had a successful trip, and it was a good opportunity for us to learn a whole host of things, many of which we intend to report to those of you who didn't travel with us. We look forward to having that discussion, and seeing that discussion continue as we move into the second leg of travel next week. If you have questions with regard to the travel, there will be some information that will continue to flow over the next week as we make preparations. If people have questions, feel free to ask me, the clerk, or our logistics officer as well. I know your staff have that contact information.

Moving on, colleagues, we have two witnesses before our committee today. We have Brian Hardlotte, the vice-chief from the Prince Albert Grand Council.

We want to thank you for travelling to Ottawa to testify before our committee today. Thank you so much. We look forward to hearing your opening statement.

We also want to thank Mr. Warren Johnson for joining us as well.

We know that you have some information that you want to share with our committee, and we want to thank you for coming as well.

We're going to turn it over to you both now. We'll start with the vice-chief, and then we'll move to Mr. Johnson. After that we will start the rounds of questioning.

Vice-Chief, we'll turn to you now for your opening statement.

May 1st, 2012 / 3:30 p.m.

Brian Hardlotte Vice-Chief, Prince Albert Grand Council

May I ask how much time I have?

3:30 p.m.

Conservative

The Chair Chris Warkentin

We'd like to keep it to around ten minutes, give or take. If you'd like, we can signal when that time is approaching, but we won't constrain you to the exact ten minutes.

3:30 p.m.

Vice-Chief, Prince Albert Grand Council

Brian Hardlotte

Thank you very much.

[Witness speaks in Cree]

I want to thank the Creator for bringing me to this place today. I just want to thank and acknowledge everyone around the table, and thank you for allowing me to speak on a very important matter, the land use and sustainable economic development.

My name is Brian Hardlotte, as introduced, and I am a vice-chief of the Prince Albert Grand Council in the province of Saskatchewan. The Prince Albert Grand Council is made up of 12 first nations. It serves 28 communities in northern Saskatchewan. The first nations within the grand council are made of the following linguistic groups: the Dene to the north; the Swampy Cree, eastern sector; and the Woodland Cree and the Plains Cree to the south. A Dakota nation is also with the grand council. Our membership comprises approximately 37,000 people, and within that number, 75% are under the age of 25. It's a very young population.

I was born and raised in the Cree community of Stanley Mission, one of the communities that make up the Lac La Ronge Indian Band, a community that is situated on the majestic and beautiful Churchill River—the Missinipi, for the Cree. As first nations people, we are naturally attached to the land and therefore have inherent rights and powers to access and use our ancestral lands, as we refer to them. This is an ongoing relationship going back since time immemorial. It's our belief that the Creator allowed us to be the stewards of these lands and to ensure that the abundance of life on these lands continues for many future generations.

Our use and access of our ancestral lands is based on our first nations laws, which are derived from natural laws, laws of the Creator. It's by the abiding of these laws that the land has sustained us for so long. Without these laws, much of our customs and traditions would not exist and the respect for Mother Earth would not exist.

First nations views on land and resources must not be ignored. We only take what we need, and it's on this premise that we must come together in order to practise sustainable economic development through lands and its resources. Furthermore, first nations laws must be the proponent for economic gain through practical harvesting methods of natural resources. This is not to imply that everything must be undisturbed.

Historically, we have freely used and accessed our ancestral lands without restriction, and this has changed as government, along with industry, freely access and use our ancestral lands for mining and exploration without proper consultation and accommodation.

First nations people understand that they require free prior and informed consent from industry and government before any exploration and mining, logging, or other natural resource extraction is done. Industry must get the social licence to proceed. I may add that we have veto—what's called veto—on any developments within our ancestral lands. This veto we inherited from our ancestors, and this veto is still intact today, as we did not surrender our sovereignty or any lands whatsoever.

We will start using this veto to ensure that we are consulted properly and are given a rightful share of revenues from natural resources extraction, but this will not exclude partnerships and collaborative initiatives, both with the government and with industry. Our people then will have sovereignty and will begin the road to prosperity.

As I speak here today, our understanding of the title to the land comes from our inherent rights and will always come from the inherent powers that give us the right to use and access our ancestral lands left for us by our ancestors. This can no longer be ignored.

The Prospectors and Developers Association of Canada issued a press release on the new proposed environmental assessment process, which sheds some light on the involvement of aboriginal peoples in this process. I quote:

We commend the federal government for its goal of a system that provides predictable and timely reviews, reduced duplication, strengthened environmental protection and enhanced Aboriginal consultation.

It is vital to point out that this group, which represents a healthy number of industry's companies, raises “consultation”. It tells us that industry has consultation as part of their plans.

The first nations within the Prince Albert Grand Council, whom I represent as a vice-chief, feel that in order for us to gain benefits from land use and sustainable economic development, we must be proponents for any development on our ancestral lands and gain nominal benefits, as all governments have in the past. We can create partnerships with industry and government, and first nations peoples can enhance self-sufficiency, as this would remove our dependency on government for our well-being.

The thought of revenue sharing has been introduced to the governments of the day. This must be addressed. In our thoughts, this is what we are entitled to, and this is what has been long ignored. The government must refrain from Canadianizing our first nations. We have long been citizens of our respective nations, and that is what needs to be recognized and respected, with a recognition that we are distinct and independent from the Canadian political fabric. Government cannot treat us as ordinary Canadians.

Revenue sharing is a matter of international covenant rules, since we are dealing with treaties that are based on sharing the land. We did not surrender any lands and resources at the time of treaty, nor did we surrender our sovereignty. This has to be recognized as well. It is written on the British treaty template, but in our understanding, our elders insist that the surrender of our lands was never part of the negotiations, and this also must be addressed.

The basics of treaty have included the right to trap, fish, and hunt. We believe these are inherent rights that we had prior to treaty, and they have to be recognized under the treaty. But what good are these rights when we are running out of land space where we can practise these rights? Land use from other resource users is in direct violation of these treaty-based rights when their activities displace first nations from their ancestral lands.

In conclusion, it must be understood by the government that we have inherent powers—in fact, distinct from all parts of Canadian society—and the same recognition can be derived from the treaties we have signed. Many people in government often tell us that we must leave the past in the past and move on. Well, it's easy for the government to say that, since they gained tenfold benefits from our land and we've been relegated into reservation plots where we are jailed and forced into poverty.

We need to address the issues from the past, and those are the treaties, in order to come into the present and move into a more prosperous future.

With that, ikosi, teniki, marci cho, and waste.

Thank you very much.

Ninanaskimon.

3:40 p.m.

Conservative

The Chair Chris Warkentin

Thank you, Vice-Chief. We're thankful that you came, and thank you for your testimony. We'll have some questions for you shortly.

We'll turn to Mr. Johnson now for his opening statement. Then we will follow up with some questions.

3:40 p.m.

Warren Johnson President, New Road Strategies, As an Individual

Thank you, Mr. Chairman.

I'm honoured to have been asked to talk to you today. My understanding is that the committee, as part of its work, is seeking a better understanding of the key issues and challenges related to first nations land and environmental management on reserve.

I was recently involved in coordinating research, undertaking literature reviews, and preparing discussion papers in this area to help animate the discussions and support the work of the Assembly of First Nations/Aboriginal Affairs and Northern Development joint working group on additions to reserve.

It is this work I'll be drawing from in my remarks, principally from discussion papers that I understand came to the attention of the committee on additions to reserve and the environmental regulatory gap.

Having said that, I am here as an individual, not to represent the working group or either of the parties.

It is useful to position where first nations are on the continuum of land management activities relating to reserve, remembering that my data was compiled in 2010.

First, two-thirds of all first nations had no involvement in this continuum and were not receiving any land management funding.

Second, less than 10% were exercising any form of delegated or self-government authority over their lands—although FNLMA has increased this recently—and the lands advisory board, which I think has already spoken to the committee, feels it could up this to 20% or 25% over time, given resources for FNLMA. Even if this could happen tomorrow, it would still leave 75% to 80% of first nations operating under the Indian Act over the longer term.

I understand the committee is also interested in identifying what alternative land management options might be considered for those who do not have access to or are awaiting to access FNLMA, and that is the main focus of my remarks.

Looking at the research, we first find that numerous researchers are pointing to the need for improvement in individual property rights on reserve over those afforded first nations by the federal government under the Indian Act, while protecting the communal nature of reserve lands. Unfortunately, the two instruments under the Indian Act most often cited as effective in this regard have proven to be bureaucratically very cumbersome, suffer from major land-use planning and regulatory gaps, and are not instruments that many first nations are comfortable with. These are certificates of possession, or CPs, which are issued by the Minister of AAND on the request of the band and used to grant title to individual members; and designating lands by way of referendum for leasing by the department.

Looking at each of these in turn, certificates of possession are an anathema to many. First, as noted in a companion study by Professor Bradford Morse and Yvonne Boyer, CPs are the successors to the location tickets used in the 1800s. They were part of the singularly unsuccessful historical system of enfranchisement, whereby Indians were to be educated in church-run schools, give up their identity, and be provided with individual land allotments that would be taken away from their reserves. They were later used under the Indian Act by Indian agents, often under questionable circumstances.

Secondly, there is no effective legislative mechanism for either the first nation or the federal government to regulate CP land use once the CPs are granted. This creates a regulatory vacuum that gives rise to many of the questionable land-use activities currently found on reserve. I would note that the Canadian Human Rights Tribunal in the Beattie decision appears to rely on just such regulation by the first nation.

Thirdly, AANDC's estate operations, as they relate to intestate CP holders, appear to be dysfunctional, giving rise to many unresolved CP estate issues. At last count, the department was running a backlog of over 500 section 50 sales on behalf of non-member beneficiaries. As an example, Akwesasne alone apparently has over 250 CPs with unsettled divided interests among member beneficiaries. The issue is compounded by the fact that 15,000 CPs have been registered without any surveys.

The net result of all of this is that new CPs, which must be requested by the first nation, are being issued at a rate that is satisfying less than 5% of new household formation on reserve.

As for designations, despite huge efforts by the Indian Taxation Advisory Board—now the First Nations Tax Commission, which you have also heard from—which championed the Kamloops amendment to the Indian Act in 1988 establishing the legal distinction between absolute surrenders and conditional designations, many first nations do not trust or understand the distinction, especially given the sorry history of surrenders in Canada.

Second, the designation process suffers from using the highly onerous Indian Act surrender provisions, in terms of voting process, ratification thresholds, and the bureaucratic management process. The result is that AANDC presentations to first nations state, “The designation process will require a minimum of 2 years to complete and more often...at least 3...and drafting a new lease can take up to two more years”, for a total of five years—hardly the speed of business. As a result, many first nations find designation votes highly divisive, with the vast majority of votes having to go to a second vote with a lower threshold before they are successful. You could then ask, why have the first vote?

This leads us to our second major research finding, that as the 31 more successful first nations who participated in the recent reserve land and first nations development study noted, and I quote:

Today INAC is even more the problem than the Indian Act, due to underfunding of its own operations and those of First Nations...and lack of competence and instability in staffing, with the result that more successful First Nations currently have more success...working outside the Indian Act than inside it.

Not surprisingly, then, in a comparable study conducted by the aboriginal affairs group, we found that a large proportion of reserve land-use activities are not registered in the Indian lands registry at all, and involve no federal approvals, as they are either what are loosely termed “buckshee leases” by bands or CP holders, or “custom” allotments by bands to members. Specifically, around 80% of all individual/family allotments are done outside the Indian Act; 50% of total band leasing is unregistered; and 66% of all short-term usage of reserve lands, like for gravel pits, garbage dumps, etc., is not federally regulated.

Our third major research finding, which follows from this, which was confirmed by both AANDC and Environment Canada in their response to the fall 2009 report of the Auditor General, is that there is a significant environmental regulatory gap on reserve and that legislation is required.

On environmental assessment, despite first nations requests, and apparently due to cost considerations, since 1992 no regulations under section 59 of CEAA have ever been passed to allow first nations to operate under CEAA. Equivalently, on environmental protection, the government designed part 9 of CEPA in 1999 to help close the environmental protection gap on federal land, which CEPA defines as including reserves, but no regulations specific to reserves have ever been passed.

While first nations have some local bylaw, business regulation, and land-use planning authority under the Indian Act, which they could use for environmental protection and land and resource management purposes, these provisions are antiquated, unfunded, and have penalty and enforcement provisions that are totally inadequate. Unfortunately, these same provisions apply to federal authorities, and as the Auditor General found, the result is that AANDC does not enforce any of its Indian Act resource or environmental management regulations.

Up to this point, the federal approach to environmental management on reserve has been incremental: to work on specific areas of legislative and regulatory development under federal administration, as they each became critical and reached a tipping point in terms of health and safety and/or growing federal legal liabilities. However, as was reported to Environment Canada in 2007:

While progress is being made...it is highly unlikely that the expected outcome of holding operations on Aboriginal lands to the same environmental protection and prevention standards as comparable operations on adjacent non-Aboriginal lands—will be met.

With oil and gas now separate under the Indian Oil and Gas Act, major projects separate under the First Nations Commercial and Industrial Development Act, and water potentially separate under the Safe Drinking Water Act, it now appears that the “residual environmental gap” identified by the Auditor General in 2009 effectively encompasses all local works other than water, all residential and small and medium business activities, and all non-oil and gas resource activities on reserves in Canada.

Here it has often been pointed out that it would be much more effective to have these more local projects regulated by first nations themselves through improvement in band law-making and enforcement powers, especially as they relate to land-use planning and zoning, similar to other communities in Canada.

The fourth major research finding relates to additions to reserve. Here the joint working group referenced earlier successfully completed its initial mandate with its recommendations to AANDC in 2010 to create a new ATR policy category to give priority to ATRs resulting from decisions from the claims tribunal. If implemented, this would result in three positive ATR categories: legal obligations, for example, as they arise from TLE and specific claim agreements; tribunal decisions; and normal community growth.

Given this and the recent progress AANDC has made to improve ATR operations in order to meet its legal obligations in the Prairies, the key ATR issues that stood out from the research related to more general ATR policy considerations and to legislative issues.

On policy, there is a range of overlapping issues flowing from the last ATR policy review with the AFN in 2001, which were either left undone or have been too narrowly interpreted operationally, including the narrow definition of service area being used in some regions, the inappropriate exclusion of economic development from normal community growth needs, and the failure to put in place an adequate community land-use planning regime to support the policy on community growth. Collectively, these impact heavily on community growth additions, important in those regions largely in eastern Canada with small reserves and little claims activity.

On legislation, from the experience in Alberta, Saskatchewan, and Manitoba with legal obligations under the claims implementation legislation, there is a range of possible legislative initiatives that would improve the ATR process for all categories, including a national version of the current prairie claims implementation legislation, inclusion of all categories of ATR rather than just claim settlements, the ability to have ministerial rather than Governor in Council approval of Indian Act section 35 easements, an alternative and more reasonable ratification procedure for pre-reserve designations to accommodate third-party interests, and the potential for land-use planning votes, adequate zoning bylaw authorities, and the recognition of first nations instruments to replace designations completely and facilitate the whole process before and after reserve creation.

The final finding from the research was that the current situation with respect to land and environmental management on reserve, as described previously, appears to serve no one's interests. Consider the following.

First, the current situation represents a major barrier to sustainable economic development on reserves, which house the most significant underemployed group of people in Canada. This situation results in a major opportunity cost to the Canadian economy. The Centre for the Study of Living Standards estimated this cost at $36.5 billion in annual lost economic output, $14.2 billion in annual expenditures, and $3.5 billion in annual lost tax revenues to Canada as a whole by 2026.

Second, just looking at the growing federal litigation liability, it appears that it could well be less expensive in terms of direct cost to the federal treasury to close the gap than to maintain it. According to a recent study done for the National Aboriginal Land Managers Association, the total federal land-based contingent liability is some $5.74 billion. These liabilities are growing at an annual rate that is greater than the entire lands management budget of INAC.

Third, as a result of TLE and specific claim settlements, the reserve land base is growing dramatically, as is the on-reserve population. When you couple this with the facts that specific claim settlements are not fully costed and that the reserve land base is not considered a cost driver for budget purposes by Treasury Board and AANDC, the AANDC lands A-base operational budget has effectively been in decline for decades, both in real terms and in relation to the reserve land base. With neither first nations nor AANDC and Environment Canada having the necessary legislative authority or resources to manage reserves to a standard anywhere near comparable to that for other communities in Canada, as they noted to Parliament in 2009, the problem can only get worse.

I would therefore draw four points to the committee's attention.

First, there clearly is a role for specific improvements in both ATR policy and legislation of the type I understand is now under discussion in the AFN/AANDC working group. This would benefit both FNLMA and non-FNLMA bands.

Second, either as part of this or separately, there is also a central role in all the issues cited for both an alternative and/or more reasonable ratification procedure for both pre-reserve and post-reserve designations and an initiative to provide first nations with adequate land-use planning and bylaw authorities.

Third, as was reported to Environment Canada in 2007, the regulatory gap has been documented and studied for over a decade, and there is urgent need for action. Given the failings of the incremental approach, it now appears time to fill the environmental gap as a comprehensive package.

Fourth, the estates issue is a tragedy and needs urgent attention.

In conclusion, I would note that these findings appear consistent with the results of the recently published first nations land and economic development study, in which 31 of the more successful first nations were interviewed.

The first three recommendations to government from these first nations were as follows: first, do what you have to do well—speed up additions to reserves, lower the threshold for designation votes; second, build a tool kit so first nations can manage the rest—land-use planning, zoning, bylaw enforcement, etc.; third, clean up the mess you have created—speed up claim settlements, fix the reserve parcel fabric, clear up the estates backlog.

Thank you.

4 p.m.

Conservative

The Chair Chris Warkentin

Thank you, Mr. Johnson.

We're going to now turn to our colleagues for questions.

We will start with Ms. Crowder.

4 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

Thank you, Mr. Chair. It's good to be back with the committee.

I want to thank Vice-Chief Hardlotte and Mr. Johnson for being here today.

I did read your paper on additions to reserve, Mr. Johnson. At the beginning of your paper, under the communal nature of reserves lands, it says:

These rules, which largely focus on the federal government’s colonial role of intervening in dealings between First Nations and third parties, are antiquated and inadequate and serious gaps are evident throughout.

You also pointed out that interest in communal property has never really been given a chance to work on reserves in Canada. I also want to mention that there are many other people who have done work on this matter, about whether private property on reserves is the way to go, whether some form of fee simple would be beneficial. I'm from British Columbia, where there is some form of fee simple, and many concerns have been raised about it.

I want to refer to Mark Stevenson. Stevenson characterizes the questions of the tenure of treaty settlement lands as a tough issue, one that has become a problem area for some first nations because of the dogmatic insistence of both the federal and provincial governments that lands set aside as treaty settlement lands not retain their status as 91(24) lands, or lands reserved for Indians. He goes on to say that it's one way for the federal government to get out of its fiduciary responsibility.

In British Columbia, and in other places in Canada, first nations have been very concerned about any move towards fee simple lands because it signals to them that the federal government is washing its hands of its responsibilities.

We hear of the ongoing underfunding with respect to bylaws, land-use planning, environmental regulations, and funding for the bureaucrats to enforce these things. I wonder if you could comment on what advantages or disadvantages you see with fee simple lands, private lands, on reserve.

4 p.m.

President, New Road Strategies, As an Individual

Warren Johnson

The advantages and disadvantages are fairly apparent. The work that's been led by Manny Jules and company is bringing those issues forward. My own view is that this is a false debate. There are some first nations who clearly want to move in the direction of the legislation that's being developed, to allow for fee simple on reserve within the—

4 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

Mr. Johnson, I'm not sure everybody is clear. When you're talking about fee simple lands on reserve, you're taking about the formula under which the first nations, instead of the crown, would own the reserve land in fee simple. We're not talking about fee simple where, for example, Nisga'a and Tsawwassen fee simple lands could theoretically be sold to non-first nations.

4 p.m.

President, New Road Strategies, As an Individual

Warren Johnson

The key point is that whatever their status or to whomever they were sold, they would remain first nations land. My concern is that this initiative is going to serve, at least in the short to medium term, very few first nations. It's been designed for very few first nations. The vast majority of first nations are not looking in that direction.

4 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

Is it because they don't have the capacity, or they don't have the resources? Why?

4 p.m.

President, New Road Strategies, As an Individual

Warren Johnson

I hesitate getting into that because that's a political discussion with the first nations. I think you should ask them.

My problem is that the instruments, short of fee simple and the kind of legislative initiatives being proposed, have never been used properly to begin with.

4 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

You're talking about certificates of—

4 p.m.

President, New Road Strategies, As an Individual

Warren Johnson

Let's take leaseholds as an example. There's no reason you can't lease land on reserve, for example. There are whole parts of the world where corporate and foreign interests can only lease land.