Evidence of meeting #34 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 lands.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

3:30 p.m.

Conservative

The Chair Chris Warkentin

Colleagues, I call the meeting to order. This is the 34th meeting of the Standing Committee on Aboriginal Affairs and Northern Development, and this is a continuation of the study of land use and sustainable economic development that we have been undertaking over the last number of months, as you know.

Today we have the privilege of a guest joining us who will bring an opening statement, and then we'll have questions as usual. We have James Cada, the director of operations, and Keith Sayers, the lands and resources manager, from the Mississauga First Nation. Thank you so much for coming.

We have a third person, Julie Pellerin. It's good to have you back. For a minute I thought I should know your name, and of course I should. Thank you so much for joining us again.

Folks, we'll begin by having your opening statement.

Do you have just one opening statement?

3:30 p.m.

James Cada Director of Operations, Mississauga First Nation

No, we have two. I will be doing one first. Keith will talk more about the loss of use regarding forestry. That's more his forte.

3:30 p.m.

Conservative

The Chair Chris Warkentin

Perfect.

We'll turn it over to you, James, if you want to go first, and then we'll turn it over to Keith. Then we'll have questions for you.

Thanks so much.

3:30 p.m.

Director of Operations, Mississauga First Nation

James Cada

Thank you for having us here. My name is James Cada and I'm the director of operations for Mississauga. I've been there for, I'd say, 20 out of the last 25 years. I've been involved in lands since 1992.

For the Mississauga First Nation, our biggest challenge has been, and still is, the implementation of our northern boundary settlement agreement and the application of our first nation land code. We entered into the FNLMA initiative in March 2003, as we felt we were the rightful managers of our lands and the FNLMA provided the legal structure for that management.

Mississauga First Nation has been dealing with land issues since 1850, and we've always striven to utilize the four processes we are currently involved with to augment each other. Right now we're into the implementation of the northern boundary settlement agreement, the first nations land management initiative, highway ILA agreement negotiations, and flooded claims negotiations.

In 1850 Mississauga was a signatory to the Robinson-Huron Treaty. The land cessation was defined as the land between the Mississauga River and Penebewabecong up to the first rapids. When our northern boundary was surveyed in 1882, there were no rapids, and the boundary was placed far to the south of what was intended.

In 1994 the northern boundary settlement agreement was finalized and included 40,000 acres of land, which included 23 inland lakes. Canada agreed to set apart these lands for the use and benefit of the Mississauga, pursuant to the Indian Act, provided the title of the land was satisfactorily approved through the ATR and the environmental condition of the land was satisfactory to Canada.

The legal survey commenced in June 1995 and was completed in February 1996. Ontario passed its order in council on May 5, 1999, to transfer the unencumbered lands to Canada, to set apart as a reserve. However, the order did not take effect until Canada formally accepted the lands under the Federal Real Property Act in April 2001, two years later. Canada finally passed the OIC and granted the land reserve status on March 25, 2010—15 years and eight months later.

In Ontario, is the delay caused by the ATR policy itself, or is the system responsible for implementing the policy?

A property transfer assessment that was completed for the settlement lands in March 1995 found that only two concerns had to be addressed: a study of a closed dump and rehabilitation of three abandoned mines. The work was completed by Ontario in 1996, and since a PTA had a shelf life of only two years, follow-up studies had to be completed in November 1999, March 2003, and April 2005. There were and are no outstanding environmental issues. I'm sure the money used could have been spent more prudently. I'm guessing it cost probably at least $150,000.

Canada had to create two easements in favour of Ontario Hydro and Union Gas. The first nation signed payment in lieu of tax agreements with both companies. Since the land was not formally transferred to reserve status, Hydro One had not included these easements in its calculations. Through negotiations directly with Hydro One, they agreed to pay the 50% payment in lieu of taxes in 2009, retroactive to May 2001, in the amount of $568,000, which represented a loss of half a million dollars to the first nation.

INAC offered little to no support, as payment in lieu of tax agreements were between first nations and Hydro One. Union Gas, however, acknowledged that the lands belonged to the first nation and, regardless, paid their payment in lieu of taxes. Theirs was roughly $39,000 annually.

We passed our northern boundary lands act on June 26, 2010, to add the northern boundary lands to our individual agreement on first nations land management. We were disappointed by the position taken by the lands and ATR unit to exclude the easements for Hydro One and Union Gas from that act and from transfer to the first nation's management. The response was that Hydro One and Union Gas easements had been excluded because they are interests in federal land that predate the setting apart of the northern boundary lands as a reserve, and therefore are not reserve interests, which cannot be transferred to the first nation pursuant to the FNLMA. As you know, these interests were not granted under the Indian Act. They were granted under the Federal Real Property and Federal Immovables Act, and the reserve was created subject to them. These interests do not form part of the reserve and therefore cannot be subject to the land code.

We had argued that the hydro easement clearly states that Her Majesty agrees that it will register this agreement in the reserve land register pursuant to section 21 of the Indian Act, which therefore would be an interest in Indian land. We didn't receive a response on that matter. We were contemplating invoking the dispute resolution mechanism but realized that this would delay the amendment to the individual agreement on first nations land management by years. Given the value of the annual payments, we figured we would like Canada to continue to mismanage the easements on our behalf. I say “mismanagement” for many reasons. How can third parties have interests in federal lands without an agreement? The easements should have been in place when Canada accepted the lands from Ontario back in 2000. And why does it take the department seven years to fully execute and implement an easement that it drafted?

Hydro One paid the rent for the first 10-year period, 1994-2004, but has not paid rent since. So as part of what we thought would be our new management's responsibility, formerly Canada's responsibility, we had an appraisal carried out for the easement lands. Hydro One also required their own appraisal as part of a 10-year renewal period. These were completed and reviewed in August 2001. Since there was a difference in the appraisals of greater than 10%, a third appraisal must be completed within 90 days, as per the agreement. However, because of the position the department had taken, Mississauga was no longer involved in that process. To date, no appraisal has been initiated. Instead, AANDC recently conducted a review of the old specific claims files by the DOJ legal counsel who worked on the settlement agreement. This review is meant to assist in explaining and clarifying the contradictory language contained in the easements and the 10-year renewal dates. Unfortunately, the review of the files has not provided clarifying information. Why would they not ask the DOJ, which signed off on the easements and then sent them up to Privy Council as part of the OIC, to grant the lands reserve status? The renewal date is either 2004, 10 years after 1994, or 2011, 10 years after the first appraisal of 2001.

As for Union Gas, it is paying its annual rent, but there is no record of the initial $800 payment. The cheque has been stale-dated, and it was my understanding that this payment was required to validate the agreement. The annual payments are now being held in Revenue's suspense account and cannot be released because they say there is no mechanism to authorize the release. However, we question how they were able to release the first 10 years of the hydro rental payments.

The IA amendment was signed off on March 14, 2012, and we were proceeding to officially notify Ontario that we were registering their rights-of-way within the northern boundary settlement lands. We received from AANDC a notice that rights-of-way are not grants from Canada but rights reserved by Ontario at the time of transfer, and that therefore Canada had no responsibility for these rights-of-way and nothing to transfer to the first nation. So who is responsible for the management of the terms and conditions of this easement? Canada should have registered the rights-of-way under the Indian Act, as there are terms and conditions attached to each of the easements, with certain rights and obligations on Canada and Ontario. I do not believe that public policy and rational land management are served when easements like this are not registered publicly on the land.

In consultation with Ontario, we will be proceeding to register 16 rights-of-way and terminate five of them. Two of the rights-of-way are public and the others are private. As per the settlement agreement, if all of the lots benefiting from any of the rights-of-way are purchased by Mississauga, that right-of-way shall be deemed to be legally terminated. Ontario has agreed to ensure that these are terminated administratively. As part of the settlement agreement, Canada is required to add the properties to reserve. These are the private properties that were a must buy within the settlement agreement that Mississauga purchased at a total cost of $2.4 million. These 35 properties consisted of dwellings and cottages that are still under Ontario's administration and control.

The Mississauga First Nation council passed a band council resolution on August 9, 2000, requesting that the trust transfer the properties to Canada to be added to the reserve. The ESA follow-ups to these properties were completed in May 2003, 2005, and most recently in 2011. There are no environmental concerns that will impede the process.

On April 17, 2003, we requested that INAC appoint an agent for the transfer and offer of purchase for private properties. In November 2003, Ontario was prepared to transfer all provincial crown interests in those properties by ministerial order. In December 2003, we were given the final draft offers of purchase, which were accepted, and as of today they are still in the department for final approval.

On average, we are losing about $85,000 annually for either rental or leases of those properties, and to date that total runs about $935,000. Further, there are two small hydroelectric generation sites in the land claim area. The land for these sites is to be transferred to Canada, along with the water power leases, in the years 2037 and 2043 respectively, unless the first nation can reach an agreement with the respective owners. We are presently in negotiations with them.

However, our issue is that Ontario collects a gross revenue charge of 12% for these properties— 9% for water and 3% for land—and we are only receiving the water rental portion. We have asked that this be rectified, as the land portion is approximately $350,000 to date. Of course we get no support from the department.

Our concern is that the settlement agreement says the total amount of all land rentals, royalties, energy charges, capacity charges, or any other payments received in respect of the lands or water power during this period shall be paid to Canada for the use and benefit of Mississauga.

On a good front, we are negotiating a new easement with Union Gas under our land code, and it should be completed, including a vote, within the next three months—a six-month turnaround time. We have made the same offer to hydro.

The benefit we see with the First Nations Lands Management Act will be the effective, efficient, and economic management of our lands. However, we need all the lands to be entered in the FNLM process, and the implementation of the ATR process is holding us back.

Thank you.

3:40 p.m.

Conservative

The Chair Chris Warkentin

Thank you very much.

Mr. Sayers, we'll turn to you now for your opening statement.

3:40 p.m.

Keith Sayers Lands and Resources Manager, Mississauga First Nation

Thank you for inviting us here to share information with you. My main function is to manage the lands prudently and wisely for the benefit of our members of Mississauga First Nation.

As we know, in 1994 Mississauga First Nation, Ontario, and Canada signed an agreement on a land claim involving a dispute on the survey of the northern boundary. This agreement provided Mississauga First Nation with new opportunities in the natural resources sector. This new land fits in the Great Lakes-St. Lawrence forest region, which has some of the most tolerant hardwoods within the north shore region. We were hoping to capitalize on the forestry's economic opportunities.

Prior to the 1994 land settlement agreement, Mississauga First Nations's land base was 1,977 hectares of land; about 1,100 hectares were productive forest lands. Under our existing land base, much of that was depleted due to various circumstances.

Along with that, we have 220 hectares of non-forest land, meaning rock and water. We have protected lands of 136 hectares, which we had to exclude from the annual level cut in our forest management plan. With that, we had a non-productive forest area equivalent to 515 hectares, which was just primary swamp, so there weren't really a whole lot of forestry opportunities on the present land base.

After 1994 the land settlement area increased our land base by an additional 16,000 hectares. Of that, we had approximately 2,400 hectares of fresh water containing both warm water fish species and some deep cold water lake species of fish as well that would promote hunting and fishing.

In addition to that, we had about 2,400 hectares of non-forest land, 350 of non-productive forest land, and on top of that we had about 12,000 hectares of productive forest land, and that's where we were hoping to capitalize on our economic opportunities in the forestry.

With this, we had to establish a 10-year forest benchmark, so in the initial phase from 1994 to 2004 we developed a forest management plan. Again, with the time lags we had to wait out the process to implement our plans because the new reserved lands were not under our control at that time.

We had to spend more dollars updating our forest management plan to bring it to its current state.

We're still waiting to implement our forest management plan, and we lost other opportunities in that section as well in terms of non-timber forest products.

So the timeframes that had an adverse affect on our plans stemmed from 1994. The settlement was agreed to in March 2010, when the order in council was signed giving our new lands official Indian reserve status. In June 2010 we passed a land law under our land code, hoping to add our lands to our land code. As we heard from Jim, in March 2012 the individual agreement was signed by the minister making our lands officially part of our land quota, which we can now implement.

So in that timeframe we lost many opportunities in the forest sector by missing employment opportunities related to harvesting the wood and to value added. We missed opportunities with sawmills and other small contracts that were presented to us. We couldn't make ends meet because of the timelines.

Since that time, Mississauga First Nation has lost $10.5 million in stumpage revenues in the Ontario system in relation to direct jobs and spinoffs.

We lost about $850,000 in land lease opportunities, whether it was through recreational or other types of business entities that wished to lease land from Mississauga First Nation and help stimulate the local economy.

Most recently, we could not make a move on a renewable energy sector because of the same issues; we could not access the lands to implement these projects. In addition to all that stuff, we had hunting and fishing opportunities that some of our members wanted to engage in, and non-timber forest products, but, again, we could not issue any kind of permit forms or leases to these individuals to capitalize on the new lands.

I feel the real losers in this whole process are the many elders who participated in 1994 as the negotiating team, who were present from day one to 1994, and who are no longer here with us. They will not see the full benefit of the new lands and how we can try to prosper and move on to the next seven generations whose futures will have something to look forward to.

In short, the ATR process has to be more effective in order for first nations to become more efficient in economic opportunities. If the Mississauga First Nation had experienced a speedy process, our current economic concerns would be very minimal.

3:50 p.m.

Conservative

The Chair Chris Warkentin

Thank you, gentlemen. We appreciate your opening statements. We're going to turn it over to my colleagues now for the fall-out questions.

We'll turn to Ms. Crowder first for seven minutes.

May 3rd, 2012 / 3:50 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

Thank you, Mr. Chair, and I want to thank Mr. Sayers and Mr. Cada for coming before the committee.

I have a number of questions. Just so I'm clear, in 1994 you had a land claims agreement signed, and in March 2010 an order in council was signed, and then in March 2012 the land code was signed. Have I got that—

3:50 p.m.

Director of Operations, Mississauga First Nation

James Cada

No, the amendment to the land code was done in 2009.

3:50 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

Okay. So the state now is that the additions to reserve haven't happened.

3:50 p.m.

Director of Operations, Mississauga First Nation

James Cada

The ATR happened on March 25.

3:50 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

Of this year, 2012?

3:50 p.m.

Director of Operations, Mississauga First Nation

James Cada

No, they happened in 2010.

3:50 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

So the additions to reserve are all completed now?

3:50 p.m.

Director of Operations, Mississauga First Nation

James Cada

For the 40,000 acres of reserve lands. The Little Chiblow lands still haven't even been processed or accepted by Canada.