Indigenous and Northern Affairs Committee on Feb. 16th, 2012
A recording is available from Parliament.
On the agenda
The Chair Chris Warkentin
Colleagues, I'm going to call this 24th meeting of the Standing Committee on Aboriginal Affairs and Northern Development to order.
Today we are hearing witnesses as we continue our study on land use and sustainable economic development.
We have three witnesses, as you can see, before us today. We have witnesses from the Atlantic Policy Congress of the First Nations, represented by Mr. Paul. We have the Mohawks of the Bay of Quinte, represented by Chief Maracle, as well as Mr. Kring.
Thank you so much for being here. We appreciate what you're going to bring.
Today we'll ask you to begin with opening statements. We'll start with you, Mr. Paul. We'll give you approximately ten minutes. Then we'll have Chief Maracle give his opening presentation, and then we will begin with the rounds of questions.
Mr. Paul, we'll turn it over to you.
John Paul Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat
Thank you, Mr. Chair.
I speak to you today from a position of great potential and opportunity for our communities in Atlantic Canada and the 38 communities who are members of our organization.
As a policy research advocacy organization, we have worked closely with our communities, the economic development officers in communities, and others in the communities since 2005 to develop and implement measures that support the key goals of our chiefs' economic development strategy.
The chiefs' Atlantic aboriginal business strategy has several key objectives. First is to increase property and resource development of lands for all of our first nation communities. Second is to promote and support aboriginal business. Third is to promote an educated and skilled workforce. And fourth is to document progress and results over time for the first nations.
Our first nation communities are ready to make their full contribution to the economic future of our country. We believe that the future of the entire Canadian economy and the economy of Atlantic Canada are directly tied to the essential role of our first nations people. But to take our place in the economic future of the country and our region, we need fundamental change and economic reform, led by first nation leadership and our aboriginal business community. These various changes are needed to empower our young people. And they will allow us to move away from a learned mindset of dependence to economic independence and self-reliance.
First nation government leaders must continue to be strong, accountable, and transparent in all efforts in economic development. A key element of development is additional access and use of lands for economic benefit, both on and off reserve. We now have in front of us a great opportunity. Aboriginal youth are the fastest growing population in Canada. In Atlantic Canada, the first nation population is expected to continue to grow by at least 25% over the next 12 years, specifically among those aged 25 to 44.
As the private sector, governments, and each province search for human resources, our communities must be ready to provide a highly skilled and educated supply of people to join the workforce in every sector. We need to start early to provide our children with a solid foundation at home and at school. Learning must be grounded in our cultural values, traditions, and languages to ensure that children grow into youth and adults who become contributors to our society and future leaders who can make tangible improvements for all our people. We need to provide our youth with the required support to choose training programs and post-secondary education that will help them take their place in Atlantic Canada's growing economy.
Our Atlantic aboriginal economic development integrated research program, one of the activities we do, was created to improve the knowledge base of aboriginal economic development to improve the lives of aboriginal people in the region. It was formed through a partnership between our organization, the Nunatsiavut government of the Labrador Inuit, and 12 universities in Atlantic Canada. The research we do is relevant to the Atlantic aboriginal communities and the organization, and it is done using community-based, participatory research methods.
An MOU with the universities to support this collaborative partnership and the development of aboriginal research capacity in economic development has been in place for a number of years. This approach is unique in Canada. It's our sixth year of operation. The AAEDIRP continues to provide evidence-based research to support decision-making on economic development in the Atlantic region. Broader issues related to economic development have also been explored. They include education and lifelong learning and how these support economic development; the link between one's aboriginal language and education and employment success; and indigenous knowledge and the role of elders in economic development and research.
The research projects all enhance aboriginal capacity-building efforts, provide much needed baseline data, and bring together Atlantic Canada literature on aboriginal economic development. An Internet database on aboriginal economic development resources from across the region, for use by communities, governments, and researchers, is also being created.
The AAEDIRP has begun its sixth year and continues to support community-based research with the communities and university partners. The research projects enhance our capacity and develop a useful database of economic development research that is used by communities, practitioners, and university researchers.
In Atlantic Canada, we have already made incremental improvements in education since 1988, especially in Nova Scotia, under the historic education sectoral self-government agreement. More first nations youth are doing better in class and staying in school longer. In fact, aboriginals' high school completion rates are among the highest in Canada.
Our youth are going on to higher education in universities and community colleges in ever-increasing numbers. In Atlantic Canada alone right now, we estimate that over 1,400 students are attending universities and community colleges. Education is a lifeline for our young people and a way for them to take their place in the world as proud Mi’kmaq, Maliseet, Passamaquoddy, and Innu peoples.
We must continue to do this good work. We can do that by working together.
Beyond education, we need to ensure that our young educated people have tools, skills, and access to opportunities. Megaprojects in our region, like Lower Churchill Falls in Newfoundland and Labrador and the federal shipbuilding contract awarded in Halifax, will require hundreds, if not thousands, of skilled workers over the next 30 to 40 years. These are ideal opportunities for first nations people if appropriate actions are taken early in the process.
A partnership focus must ensure that first nations youth connect and stay with training and have access to all these employment opportunities. Our first nations youth require supports for making the transition to an urban centre, which is often where the good jobs and opportunities exist. We need the solid outcome-based partnership at all levels of government, and with employers, first nations, and all employment and support agencies, to provide these needed supports.
We've seen very recently how successful this approach can be to produce results from ideas to permanent jobs. The Sydney tar ponds project in Cape Breton provided an innovative approach to create real jobs and business opportunities for first nations. Mechanisms to facilitate this process have been under a collective structure called the Unama’ki Economic Benefits Office, which is a collaborative effort of five Cape Breton communities and now one mainland community.
Over 24 months, this project's efforts have produced $71 million in contracts for aboriginal companies. The project has trained over 213 people and has led to over 60 permanent jobs.
The federal government, through Human Resources and Skills Development Canada, provided a multi-year investment in first nation capacity and leadership to support economic and business opportunities and targeted training for specific jobs and skills required for this project, with the support of first nations and research to identify and provide long-term supports to people before, during, and after training, and as they move through the career process, to ensure that those who participate become long-term, highly skilled, and exceptional employees.
However, to access these opportunities, our children and youth need support at the basic level. Our youth need positive programming to ensure that they grow up to be healthy, well-adjusted adults and do not face the serious challenges of addiction and suicide. We need them to have hope. Programming, services, and supports must empower our young people. There are serious gaps in youth programming at the community level. These gaps need to be fixed.
Our elders and seniors also need support, recognition, and programming so that our youth can continue to learn languages and cultural knowledge from them. There is an urgency to learn from the elders, as we are losing them very rapidly, day by day.
Promoting and supporting the transition from income assistance to real opportunities in the form of training, education, and employment is a very significant challenge. A collaborative partnership based on a first nations approach needs to be created in each regional centre in Atlantic Canada. This will ensure that efforts result in meaningful outcomes that produce opportunities for clients, for individuals, and for families. In order to accomplish this partnership, like the Unama'ki benefits model in Cape Breton mentioned earlier, this could be replicated throughout the region.
It is critical to everybody involved that real supports need to be provided to people. Actions taken need to be incremental to allow the steady transition for people from social assistance to employment to take place over time. Long-term targeted supports of at least one or two years are needed for every client. This will ensure that challenges faced by clients can be addressed and changes can be made in order to allow permanent entry into the labour market. This will increase the likelihood that these clients retain permanent employment over the long term and it becomes a career.
For lands, the recent addition of three first nations in the Atlantic region under the First Nations Land Management Act allows those first nations to move forward on plans to develop their lands regime based on the extensive experiences of other first nations in a manner consistent with their values and vision. It allows and supports further economic development opportunities and creates greater clarity around the lands required for various business arrangements and financing. This effort gives control to first nations communities themselves to develop and implement land regimes that work for the communities and allow real development opportunities.
We still have a great deal of work ahead of us, but by working together we know that our first nations youth are poised to succeed no matter what the barriers.
Thank you for your time today.
The Chair Chris Warkentin
Thank you, Mr. Paul.
Chief Maracle, we'll turn to you now for your submission. Then we'll have some questions for you.
Chief R. Donald Maracle Chief, Band No. 38, Mohawks of the Bay of Quinte
[Witness speaks in his native language]
Good afternoon, everyone. Bonjour.
On behalf of the Mohawks of the Bay of Quinte, I would like to thank the Standing Committee on Aboriginal Affairs and Northern Development for the opportunity to make a presentation today on the topic of land use and sustainable economic development.
Today I am here to talk about the challenges that the Mohawks of the Bay of Quinte experience with respect to land and environmental management. I would first like to provide some background information about our first nation.
The Mohawks of the Bay of Quinte are part of the Mohawk Nation within the Six Nations Iroquois Confederacy. The Tyendinaga Mohawk territory is situated along the north shore of the Bay of Quinte and is currently 15 kilometres east of Belleville and 65 kilometres west of Kingston. Currently, the Tyendinaga Mohawk territory encompasses approximately 18,000 acres of land and roughly 20 kilometres of shoreline. Our total membership is 8,351 people, with approximately 2,125 members living on the reserve.
The establishment of the Tyendinaga Mohawk territory occurred at the end of the American Revolution, in recognition of our ancestors' military alliance with the British during the war. We were granted a tract of land, approximately 92,700 acres, roughly the size of a township, on the Bay of Quinte. The crown promised to protect the land through a treaty, and in 1793 Lieutenant Governor John Graves Simcoe issued Treaty 3 1/2, or the Simcoe Deed.
In the 1990s, the Mohawks of the Bay of Quinte conducted research into an illegal land alienation referred to as the Culbertson Tract and submitted a claim to the specific claims branch in November 1995. The claim sought compensation for the wrongful alienation of the Culbertson Tract of land and the restoration of the lands to the Mohawks of the Bay of Quinte control. Canada accepted the claim and the Mohawks of the Bay of Quinte have been in negotiations regarding the Culbertson Tract since 2004. The claim is yet to be resolved and there are other potential claims relating to illegal land surrenders following the Culbertson transaction.
The Tyendinaga Mohawk territory is primarily a rural community that houses seven provincially significant wetlands, a nesting area for waterfowl, plants, and plants that provide habitat for a large number of aquatic organisms. There is also a nesting area for great blue herons, situated in the central part of the territory.
The geology consists of shallow bedrock with the presence of fractured limestone and shale, which is also prone to horizontal and vertical fracturing. This composition has a negative impact on water quality in community wells.
The Mohawks of the Bay of Quinte receive funding through the reserve land and environmental management program, RLEMP, which means that we manage our land under the Indian Act. RLEMP is formula-driven, based on land transactions, natural resource transactions, population, and the area of the reserve.
The current land tenure system employed is through the issuance of certificates of possession to individual registered members of the Mohawks of the Bay of Quinte. Communal land is also held by the Mohawks of the Bay of Quinte and controlled by the Mohawk Council, which has the authority to make decisions related to communal land for its use and allotment. The majority of the land, however—90% of it—is held by individuals with a certificate of possession, which is a limiting factor for future development.
The two fundamental issues that the Mohawks of the Bay of Quinte face with respect to land use and environmental management are adequate funding and environmental regulatory gaps for projects on reserve.
In Tyendinaga, development is hampered not only by the lack of sufficient program funding, but also by low development capability due to the limited communal land, by efforts to protect fragile ecosystems identified as significant, by the lack of access to potable water for both residential and commercial development, and the lack of a sufficient land base to benefit from land and natural resources.
Planning is crucial to community development. The land-use planning process must be comprehensive and take into consideration the community's need for the land through awareness and community engagement, commercial development, residential development, agricultural uses, recreational uses, and the traditional relationship that we have with the land, including acknowledging and fostering our responsibility for stewardship.
There are significant wetlands, plants, and animal species on Tyendinaga that need to be protected, while still meeting the identified community need for development. Such a plan will require new studies on environmental impacts and updates to past studies on hydrogeology and capital planning.
The cost for a meaningful land-use planning process far exceeds what may be available in funding from Aboriginal Affairs and Northern Development Canada. Tyendinaga Mohawk Council is forced to choose between undertaking the cost of this type of project or allocating resources to other programs and services established to improve the social determinants of health.
As mentioned, our membership is 8,351 people, and each of these members is entitled to live on the territory. The Mohawks of the Bay of Quinte is the ninth-largest membership among all first nations in Canada. The membership has had a significant growth following the implementation of both Bill C-31 and Bill C-3. However, our land base has remained the same, a land base that has eroded to less than a fifth of its original size outlined in the Simcoe Deed. The Culbertson Tract has never been surrendered, nor the claim settled, and we need the land to accommodate our population growth. With only 10% of the territory held in common, MBQ will have to develop a process or mechanisms to acquire land for development.
A significant portion of the communal land is comprised of wetlands and the Mohawk airport, which means low development capability. According to the MBQ's capital plan study in 2002, the Mohawks of the Bay Quinte do not hold enough land to accommodate growth beyond a certain threshold.
With regard to environmental regulations, section 88 of the Indian Act specifies that all provincial laws of general application are applicable to and in respect of Indians of that province. However, the courts oftentimes have excluded section 88's application to reserve lands and land use. This creates a gap between environmental regulations on reserve and off reserve.
As a whole, environmental regulations are divided between the federal and provincial governments with respect to off reserve land. Federal regulations that apply fall under the Canadian Environmental Protection Act 1999.
On reserve, provincial environmental regulations do not apply, but federal regulations do apply, including the first nations bylaws adopted pursuant to the Indian Act. The difficulty arises because the applicable regulations and bylaws do not necessarily address all aspects of the environmental issues that are subject to regulation off reserve, nor is there an adequate mechanism for enforcement.
This gap creates a negative environmental impact and potential health risk to first nations people living on reserve. Our experience with the provincial Ministry of the Environment and Environment Canada is that if a proposed project does not impact fish there are basically no options to prevent the destruction of ecologically sensitive areas or the protection of human health.
There are few restrictions for individual holders of certificates of possession in terms of how they use the resources on the land described in their certificate of possession. For example, an individual may harvest timber on the land described in their certificate of possession with little regard to responsible and sustainable harvest. The only provision is that the timber is to be used on the reserve. Any restriction comes into effect when the individual tries to remove the timber from the reserve without ministerial approval under section 93 of the Indian Act.
Tyendinaga Mohawk Council has to be in position to pass and enforce band council resolutions to shut down operations if need be. There is no mechanism for this to occur. The Tyendinaga Mohawk Council can develop bylaws to address gaps in environmental regulations; however, the law must receive ministerial approval, which limits the scope of the bylaw making authority.
Once approved, the challenge becomes enforcing compliance. The Tyendinaga Police Service has the authority to enforce the bylaw and lay charges, but there is no prosecution mechanism within the local court system. The expectation is for MBQ to hire a federal prosecutor or federal justice of the peace to follow the process, which conflicts with competing interests for community financial resources.
Under the Indian Act, penalties are also minimal, and again require a federal representative for enforcement.
Along the same lines, if MBQ adopts provincial standards, the question or concern remains that the federal government will devolve its responsibilities directly to the community. Ultimately, whatever standards are adopted for environmental management, there is a need for the federal government to adequately resource the implementation and enforcement of the regulations.
With regard to consultation, under the duty to consult, proponents off reserve are required to consult with first nations communities prior to any development that will have an impact on first nations lands. Proponents are becoming more active in consulting first nations.
Unfortunately there is also a lack of resources to ensure meaningful participation in the consultation process. Adequate funding is required for the costs of research and professional environmental assessments, and interpretation services to review the proponents' environmental assessment reports.
The turnaround time is critical in this process, and without the security of funding, participation will simply be a gesture, at best. Some proponents exercise goodwill and provide a limited amount of funding for this process, but this is not a requirement under the duty to consult.
Lack of clear environmental regulations on reserve could also act as a deterrent for proponents. Without clarity on what regulations apply, economic development opportunities may he missed in the confusion.
The Mohawks of the Bay of Quinte incurred extremely high costs for environmental assessments when dealing with the closure of the Richmond landfill site. The financial resources required to participate were provided through reimbursement by Waste Management to the Mohawks of the Bay of Quinte after we waited for nearly ten years. Absence of this funding would have precluded MBQ's participation in the efforts to close the landfill.
There are no funds for environmental cleanup on past federal land. During the Second World War, the federal government established an airport on Tyendinaga Mohawk territory that served as a training facility. As a result, the area was contaminated, and there is no recourse except long protracted litigation to bring the federal government to task to complete an environmental cleanup of the area it damaged.
Turning to recommendations, our first is support for the development of guidelines for individual certificate of possession holders regarding land stewardship. The guidelines should be developed internally to foster a cultural approach to land-use planning and stewardship and respect the natural environment.
The second recommendation is to establish a central agency that is dedicated to enforce compliance with environmental laws. The central agency could develop regulations that serve to close the gap, ensuring a safe environment for on-reserve community members.
Third is to establish a protocol to ensure that land claim areas have a special designation and developers are informed of areas under dispute prior to purchasing or planning a project to develop land with disputed aboriginal title.
Fourth is to improve the bylaw enactment process for first nations to develop and enact bylaws that will protect the land base and environment. The federal government needs to support an improved process to ensure bylaws are enforceable and compliance is mandatory.
We'd also recommend that committees such as this one allow additional time for witnesses to this committee that will enable first nations leadership and relevant program staff to participate in preparing the presentation and allow time for translation services.
The Chair Chris Warkentin
Thank you very much, Chief.
We appreciate both of your opening statements.
We'll begin the questioning with Ms. Duncan, for seven minutes.
Linda Duncan Edmonton Strathcona, AB
Thank you very much.
Thank you, gentlemen, for appearing today. It is very important testimony, and we appreciate having that on the record.
We've heard a number of witnesses who have raised somewhat similar issues, but I have some questions first for Chief Maracle. Then I would like to talk to Mr. Paul about his very interesting perspective on the various economic developments.
Chief Maracle, you've raised the concern with the regulatory gap, and we've had other witnesses come to testify to that. I'm quite aware of that. In fact, I worked with first nations in Alberta for quite a few years trying to address that gap. You essentially have two options. One is to provide greater powers to the first nations themselves to be able to regulate and enforce proper environmental and sustainable development rules on your lands, or possibly in the interim, which has been discussed by some witnesses, have the federal government finally step up to the plate and enact these long-awaited laws. Unfortunately, the provincial laws don't apply on your lands.
I wonder if you could speak a bit more to your concern. The issue also would be whether or not you had the capacity. If each first nation is going to set about enacting and enforcing its own individual environmental laws or environmental impact assessment laws, could you speak a bit more about that, about what your preference would be? Where would you prefer the government put its attention? Would that be supporting your nation to develop its own environmental sustainable development regime, or would you prefer that the federal government fill that vacuum?
Chief, Band No. 38, Mohawks of the Bay of Quinte
First of all, in Ontario there is a ministry devoted to environmental protection for everybody who lives in the province. Within that ministry, they have a variety of experts. They have hydrogeologists, air quality specialists, and toxicologists. There is a whole gamut of professional people who advise government leaders on what course of action to take. There are regulations that govern the process.
There is nothing similar to that within the federal government or in the first nations community. Within the first nations community, there is no financial capacity to develop that level of expertise. The federal government tends to focus its efforts on the protection of the environment as it relates to fish, rainbow trout, and daphnia. There is no environmental protection for human health. For example, with the Richmond landfill site, we spent close to $700,000 to participate in an environmental process, because we were advised by a toxicologist from Queen's University that the viruses and bacteria could pollute the groundwater and reserve. There was a transboundary concern, yet we couldn't get the federal government to step up to the plate with even limited resources. If there happened to be a surplus somewhere, you might get a few dollars, but there was no funding to participate in the process. Still, there were deadlines that we had to meet if we wanted to register a concern. The only thing the government was going to listen to was expert opinion.
We were successful in getting the Richmond landfill closed. However, there is an ongoing monitoring requirement. The federal government is not doing its job. They should be stepping up to the plate to ensure that federal lands on which there are transboundary impacts are not going to continue to be polluted by off-reserve development.
Within the reserve, the industries that pollute and want to escape environmental regulation will migrate to the reserve, because they believe there are no laws there. I think when the Indian Act was drafted and section 88 was put in, it was assumed that in the absence of a federal or community law, provincial laws, if they were of general application, would affect aboriginals, and these laws were incorporated by reference. They have agencies that enforce compliance.
For example, look at the Technical Standards Safety Authority, which inspects gas stations. A gas station can leak and it can pollute millions of gallons of groundwater very quickly. The Technical Standards Safety Authority takes the view that their safety laws don't apply on the reserve. We disagree with that. In a court case, we were seeking compliance with that standard because there was an absence of any other standard. All the federal government requires is that the gas tanks be registered with Environment Canada. There is no inspection. There are no inspectors. Off reserve, those systems would be inspected at least once every three years to make sure they were not leaking and polluting the environment. There is nothing like that in the province. The TSSA will come on the reserve at the invitation of the chief and council to do the inspection, but all of the compliance issues are voluntary.
In 2002 there was a gas station that leaked. The owner didn't want to comply. He simply cut the yellow tape the inspector strung up, had a locksmith cut the lock on the electrical panel box, and the off-reserve fuel suppliers continued to violate the fuel-handling code and supply that station with gas. There didn't seem to be anything they could do. There was a high risk of explosion. I ordered it shut down because nobody knew what law applied, including the Ontario Ministry of Labour and Human Resources and Skills Development Canada. HRSDC said their laws applied to Indians, but not to the non-natives who worked in those stores. The Ministry of Labour said their laws applied only to the non-Indians who worked in those stores. It was a real conundrum. To top it off, there was no money. We had a deficit-financed environmental consultant suggest a proper way forward, which was to order it shut down.
Linda Duncan Edmonton Strathcona, AB
Thanks. I would love to follow up with you on all of this. I wish you all had more time.
Mr. Paul, in the House today we have been debating a motion calling for more support for aboriginal education. Your brief contains a different perspective from what a lot of intervenors have. Could you talk a bit more about where there needs to be more investment in education, so that you can move forward with economic development on your land and resources?
The Chair Chris Warkentin
Unfortunately, the time has now expired, but I'm certain that other members will take the opportunity to follow up on this as well. I think there will be an opportunity.
Carolyn Bennett St. Paul's, ON
Take some of my time for him to answer.
The Chair Chris Warkentin
Sure. I'm certain there will be time. It's an important question.
Mr. Rickford, it's your turn, for seven minutes.
Greg Rickford Kenora, ON
Thank you, Mr. Chair.
Thank you to the witnesses for being here today.
Chief Maracle, I wish you all the best in your recovery from what sounds like a nasty injury. I appreciate that you're in some discomfort here today.
Chief, Band No. 38, Mohawks of the Bay of Quinte
That's also one of the challenges.
Greg Rickford Kenora, ON
I appreciate that.
Mr. Paul, I'm going to focus my questions to you over the next six and a half minutes or so, and my colleagues will continue.
I want to focus first of all on your submission to the crown and first nations gathering. You highlighted a number of issues related to long-term opportunities for an economic renewal. Indeed, today you spoke at length specifically about the Sydney tar ponds remediation project, for instance. You spoke of the innovative means for job creation and what that meant for first nations people.
I was wondering whether, in just over a couple of minutes, you could describe more specifically how you're working with first nations communities in the Atlantic region to create economic development. Perhaps more specifically, what are some examples of specific skills training, for example, that came from HRSDC and that put those communities in the best position possible to participate in this project and then perhaps in economic development in general?
I'll probably limit you to a couple of minutes, because I want to move on, but I would like a little more info.
Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat
If anybody knows the history of the Sydney tar ponds, they will know it has taken decades to figure out what they were going to do. Once a decision was made to do something, one thing that was argued all along was that first nations should be part of the tar ponds solution.
One of the things they did was take a two-pronged approach, basically. One prong was to engage the communities themselves in the area and talk to them specifically about what the project involves and the range of specific jobs and specific contract opportunities that could be available, in advance of the project actually starting. They took the time to meet with the communities—the leadership, the employment people, the economic development staff—and the business people, basically to tell them that if they wanted to be part of this project, here is what they had to do.
The other thing they did was create a body to coordinate the effort with the communities, coordinate it with the business people, but also force all the people who were working in economic development and employment, including the leadership, to ask what they were going to do. How many people is your community going to supply? Which businesses from your community are going to do this or that specific job or project? They had an ongoing way of doing this. They created a collaborative approach between the government and the people doing the contracting—the communities, the leadership, and the economic development staff—and the business people. Somebody coordinated them all to ask how to put the pieces together to end up with a contract, end up having a business, and end up training them in advance of the contract, giving them the jobs and then employing them for the whole duration of the project.
The interesting part about that was that the companies that ended up being created as part of the project are now doing other projects in environmental remediation beyond what they're doing.... The people who started the businesses and did that went on to do other things, because they now had a track record of performance and standards.