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.