Evidence of meeting #7 for Indigenous and Northern Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was governments.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Murry Krause  Councillor, City of Prince George
Ralph Hildebrand  General Manager, Corporate Counsel, Corporate Services, Metro Vancouver
Ernie Daykin  Director and Chair, Aboriginal Relations Committee, Metro Vancouver
John Gailus  Partner, Devlin Gailus Barristers and Solicitors
Gary MacIsaac  Executive Director, Union of British Columbia Municipalities

11:45 a.m.

Conservative

The Chair Conservative Chris Warkentin

Colleagues, I'm going to call this meeting to order. We're running late already and I'd like to get started.

This is the seventh meeting of the Standing Committee on Aboriginal Affairs and Northern Development. We have with us this morning witnesses who have already joined us. We have by video conference, Mr. Gary MacIsaac, and we have Mr. Murry Krause, who's a councillor from the City of Prince George.

My understanding, Mr. Krause, is that you have to get going, so we do apologize for our late start. We'll turn to you first to begin with your opening statement, and then we'll structure everything moving after that.

11:45 a.m.

Murry Krause Councillor, City of Prince George

Thank you very much, and my apologies for having to leave, but this is a meeting that's been set up for a while. I'll get on with the presentation. I hope to at least be able to take one or two questions. When I leave, you will be left in very good hands with Mr. MacIsaac.

Thank you, and good morning, Chair and committee members. We appreciate the opportunity to be before you this morning. I am Murry Krause, City of Prince George councillor and chair of the Union of BC Municipalities First Nations Relations Committee. Joining me, via video conference from Vancouver, is Gary MacIsaac, the executive director with the Union of BC Municipalities—UBCM.

We've been asked to speak today by the Federation of Canadian Municipalities—FCM—owing to UBCM's ongoing work and knowledge of federal policy on additions to reserve and reserve creation, as well as the relevance of this issue to our membership.

UBCM is a provincial organization with 100% local government membership in B.C., and it is a member of FCM. Our organization is a member-driven organization with 194 local government members, including seven self-governing first nations members. I'm pleased to be here to convey our position and concerns regarding the proposed revisions to the federal policy on additions to reserve and reserve creation.

First, I'd like to emphasize that UBCM members have an established policy of expressing support for first nations endeavouring to increase economic development activities in their communities. UBCM recognizes the potential for positive outcomes of economic endeavours for both local governments and first nations. As such, UBCM understands the real and substantial need for the federal government to support first nations growth and development in an expedient, straightforward manner.

That said, the 2013 draft ATR policy, as currently written, has the potential to affect local government operations extensively. Areas of concern raised by our membership include local government consultation, expediency at the expense of clarity, facilitation and dispute resolution, implication of non-contiguity and transfers of jurisdiction—including service concerns—land use compatibility, and community growth and fiscal implications.

I will do my best to give a short overview of these issues today, but I would ask you to review our written brief, which conveys these concerns in detail. This brief is based upon our October 2013 submission to the federal government during the formal ATR policy comment period and is based on UBCM policy as well as solicited member feedback. I believe you also have, or will have shortly, an FCM submission on the revised ATR policy, which speaks in support of UBCM's position.

I also understand that a delegation from metro Vancouver, a long-standing UBCM and FCM member will be sharing their perspective following my presentation and will comment further on these points. Their perspective, as a local government service provider, will be especially pertinent to your study.

The first and perhaps most pressing point of concern I would like to raise is local government consultation. UBCM has been monitoring the ATR policy for a number of years. Since October 2010, we have expressed interest in the ATR review process several times, contacting the Minister of Aboriginal Affairs and Northern Development Canada to request updates and an opportunity to provide feedback on the policy, as well as the Standing Senate Committee on Aboriginal Peoples during its ATR review in March 2013. We expressed disappointment that local governments had not been consulted during the ATR policy review thus far.

UBCM arranged for a teleconference with AANDC staff regarding the ATR review in July 2013. However, this update was provided less than two weeks before the draft policy was released for public comment. Because UBCM members expressed significant concern regarding the ATR policy review, we also invited AANDC staff to participate in the session at the UBCM convention in September 2013. The level of member concern expressed in this session underscored the need for much more substantial local government engagement on the revised ATR policy.

The lack of government perspective in this review speaks to an underlying issue in the draft policy itself—the absence of a clearly defined and recognized role for local authorities within the ATR process. The importance of early, meaningful consultation with local government cannot be understated when a federal initiative affects local government operations. Local governments do not aim to obstruct first nations prosperity. Ensuring early and ongoing local government participation provides an outlet for discussion and problem resolution.

As noted, a key issue identified by our members in regard to the revised policy involves lack of clarity resulting from efforts to expedite additions to reserve. Reducing the ATR policy length substantially, condensing category criteria, redrafting sections, and relying on resources external to the policy have created a vagueness that could counteract attempts to expedite the process. Our brief identifies sections of the policy that could be revised to clarify local government's role within the ATR process, including strengthening the language regarding local government collaboration, local government consultation prior to a letter of support issuance, and recognition of local government timelines and structures within the policy.

Another concern I would like to raise is on dispute resolution. The ATR process is built upon a good neighbour approach to negotiating agreements. This is the preferred approach for any type of discussion or negotiation between adjacent communities. However, constructive dialogue can become strained when financial and other implications are anticipated by one of the negotiating parties.

In its report “Additions to Reserve: Expediting the Process”, the Standing Senate Committee on Aboriginal Peoples recommended “Support mechanisms, including dispute resolution assistance, to First Nations in their negotiations with municipalities and third parties”. In its response to the report, the government states that it will better support productive negotiations between first nations and local governments and/or third parties through improved guidelines, tools, and resources under the ATR policy.

Ultimately, the only way of resolving outstanding disputes within the 2013 draft ATR policy is via a unilateral decision by the regional director general, based on his determination of whether the parties are negotiating in good faith. In our view, adequate dispute resolution measures should be outlined in the policy itself, and AANDC should provide facilitative and technical assistance to both first nations and local governments as needed.

Another aspect of the policy that concerns B.C. local governments is the relaxing of contiguity requirements. UBCM policy supports selections of contiguous parcels of land rather than dispersed and unconnected lands in order to preserve jurisdictional clarity and uniformity and to allow for the efficient use of public facilities and services.

The draft 2013 ATR policy stipulates that the proposed reserve lands should normally be located within a first nations treaty or traditional territories. But they may also access lands that are not adjacent to existing reserves and are outside of their traditional territories. However, as one of UBCM's members has stated, serving non-contiguous reserve lands presents a major problem for local governments, considering the existing jurisdictional and legislative barriers to servicing non-treaty first nations lands.

Loss of land and tax base, jurisdictional fragmentation, land use inconsistencies or conflicts, and bylaw coordination are some of the key concerns for local governments. The concerns around servicing non-contiguous lands emphasize broader concerns around local government's exposure to liability as a result of the existing regulatory gap, which directly impacts service provision for non-contiguous reserve lands.

Land use compatibility is another area of concern for UBCM members. The 2013 draft ATR policy requires that first nations and local governments discuss issues of mutual interest and concern, and it requires that where the proposed reserve land is within, adjacent, or abutting a local government, the first nation notify the local government. In our view, the broad requirements for discussion notifications are not adequate, given the complexity of issues at hand.

B.C. local governments have well-established land use processes and structures that often involve extensive community engagement, some of which are entrenched in provincial legislation. As such, early, meaningful engagement that is outlined clearly within the policy should commit all parties to considering potential impacts of the ATR proposal on land use plans and acting as needed to address these issues.

The last item I would like to raise today is one of local government fiscal implications pursuant to additions to reserve. The budgetary process designed by the Local Government Act requires local governments to recover costs and balance their budgets. Maintaining financial stability is of critical importance to local governments in order that they continue to be able to provide services expected by the residents at a reasonable cost.

Significant or unanticipated changes to any of their revenue resources may result in revenue shortfalls and tax increases unless there's a corresponding decrease in expenditures. The draft ATR policy has the potential to increase the number of ATR proposals, and as lands are removed from a local government tax base, the loss of existing tax revenues for some local governments may be significant.

In that regard, we note that the 2001 ATR policy includes guidelines for the negotiation of reasonable compensation for local government tax loss. These guidelines are not contained within the 2013 draft ATR policy, and it does not stipulate what formula or cost-recovery mechanism is appropriate or over what timeline adjustment payments can be expected. It has been indicated by AANDC staff that guidelines for negotiating net tax loss payments will be expanded and developed in a separate guideline document. However, it is our view that local governments should be provided with a tax-loss framework so that they may be better equipped to mitigate potential losses. To this end, clear provisions formalized within the policy are needed.

In summary, I would like to reiterate that the federal government must recognize local authorities as participants in processes and policies that impact local jurisdiction, such as the additions to reserve policy. More work is needed, and we hope to have the opportunity to work with first nations and the federal government to ensure that the revised ATR policy is as strong and as clear as it can be to support all parties working within the process.

Again, thank you very much for listening to us. We'll take some questions.

11:55 a.m.

Conservative

The Chair Conservative Chris Warkentin

Mr. Krause, how is your time? Do you have some time?

11:55 a.m.

Councillor, City of Prince George

Murry Krause

I probably have just a couple of minutes. I'm sorry.

11:55 a.m.

Conservative

The Chair Conservative Chris Warkentin

Colleagues, if you need any clarification or you have questions for Mr. Krause, I think now would be the time. I know it is unconventional to have questions now, but if there is something you need clarification on from Mr. Krause, get it before he leaves.

I'm not seeing anyone.

Thank you, Mr. Krause. We appreciate you waiting for us and giving testimony today.

11:55 a.m.

Councillor, City of Prince George

Murry Krause

You're very welcome. It's my pleasure.

11:55 a.m.

Conservative

The Chair Conservative Chris Warkentin

I will turn to the other witnesses now.

We'll begin with Mr. Hildebrand, and then Mr. Daykin and Mr. Gailus, if that works.

11:55 a.m.

Ralph Hildebrand General Manager, Corporate Counsel, Corporate Services, Metro Vancouver

I will be deferring to Mayor Daykin to do the presentation for Metro.

11:55 a.m.

Conservative

The Chair Conservative Chris Warkentin

Mr. Daykin.

11:55 a.m.

Ernie Daykin Director and Chair, Aboriginal Relations Committee, Metro Vancouver

Thank you, and good morning, Mr. Chair, committee members.

My name is Ernie Daykin, and I'm the mayor of the District of Maple Ridge in British Columbia. I will say, it was a bit of a challenge getting here this morning. I didn't realize that Ottawa got fog.

I'm also a director on the Metro Vancouver board and the chair of the Metro Vancouver aboriginal relations committee. Mr. Hildebrand is general manager of corporate services and corporate counsel for Metro Vancouver, and one of Ralph's responsibilities is the Metro Vancouver aboriginal relations committee.

Just at the outset, I will tell you a little bit about Metro Vancouver. We're a federation of 22 municipalities and one treaty first nation who work together collaboratively to ensure that we have a liveable region, and we work on a variety of issues. I want to also say at the outset that we appreciate the work you're doing. We also recognize and acknowledge that we want what is best for our community, or for Metro Vancouver, while respecting the fact that first nations also want what is the best for their communities. We have, I think, very similar goals.

As I said, Metro is a federation of local municipalities. We work together to deliver regional services that include drinking water, waste water treatment, and solid waste. Metro Vancouver also regulates air quality, plans for urban growth, manages a regional park system, and provides affordable housing.

Metro Vancouver currently serves 2.3 million residents. Over 50% of B.C.'s population live in the Metro Vancouver area. We are home to 11 first nations communities, 22 Indian reservations, and one treaty territory. The regional district is governed by a board of directors, who are elected officials from each local authority, including the Tsawwassen First Nation.

As I mentioned a couple of minutes ago, I am the chair of the aboriginal relations committee, a standing committee of the Metro Vancouver board of directors, which was established to provide treaty negotiations and aboriginal relations to the Metro Vancouver board and individual municipalities—in short, to be a resource. One of the committee's endeavours over the past couple of years has been to monitor the progress of the federal government's development of the revised additions to reserve, ATR, policy. A Metro Vancouver policy paper was presented in March of 2012, and that was communicated to the federal department of Aboriginal Affairs and Northern Development Canada. It identified a number of local government issues related to the existing ATR policies that we feel need to be addressed.

First, local governments would like to work cooperatively with the province, the federal government, and first nations governments with respect to ATR. We have to work together. No one body has the answer. As we work together on this, we'll come to a solution that we feel works. Local governments, however, were only asked to provide written comments. Moreover, regional districts were not acknowledged or recognized in the ATR legislation and process. This approach does not ensure that local government issues and interests are understood so that a proper decision can be made by Aboriginal Affairs and Northern Development Canada.

Secondly, we feel strongly that there should be a timeline to review and comment on ATR applications. The process should include multi-party forums to further observe, inform, and discuss the respective and possible competing interests, such as land use designations.

Third, the ATR application process does not recognize the cost of the process to local governments or to first nations. The ATR application process requires the expenditure of time and human and financial resources by both local government and first nations. This issue is exasperated by the impact that an addition to a reserve has when it involves lands within a local government's boundaries. Local governments can be financially impacted in a negative way by the ATR. Therefore, funding from the crown is essential for ensuring that local governments are properly engaged in the ATR process.

Fourth, the ATR process can work to undermine the treaty process. Additional ATRs mean potentially fewer incentives for first nations to pursue treaty negotiations. For example, the Squamish First Nation has not negotiated treaties since 2000, but instead has pursued ATR both within and outside the Metro Vancouver region. Additionally, the Musqueam Band has not negotiated treaties since 2005 and is currently pursuing ATR.

And lastly, it is also not clear under the current ATR process how local governments and first nations can and will resolve their disputes, including land use issues. In 2012, Metro Vancouver identified the need for an appropriate mechanism for resolving these disputes resulting from ATR or disputes that impede the progress of the ATR application.

Moving forward to 2013, I would like to address some of the local government concerns with the revised policy. The draft ATR policy allows first nations to add to an existing reserve for economic development purposes. Metro Vancouver recognizes the potential for market development on first nations lands to be mutually beneficial to aboriginal communities and their neighbouring governments.

I think that's important to note. Metro Vancouver recognizes that the potential market development on first nations lands can be mutually beneficial for aboriginal communities and their neighbouring local governments. Again, we can be in it together.

However, the federal government and first nations applying for ATR need to be made aware of the multiple barriers local governments face in providing services to Indian reserves, including legal, physical, and fiscal capacity related to utility servicing. Regional and municipal interests must be recognized in the ATR approval process to ensure that if an applicant first nation receives approval to add lands to its reserves, utility services will be available and an alignment exists between the first nation's objectives and regional and municipal interests.

Further, the draft ATR policy allows first nations to add lands to reserve even when those lands are outside the first nation's traditional territory, as long as the majority of the first nation's existing reserve land is located within the province or territory. This policy change may result in a significant increase in the number of ATR applications in Metro Vancouver, where first nations from across B.C. could potentially purchase and add lands to reserves for the purpose of pursuing economic development opportunities close to highways and urban centres. These economic development opportunities may not align with local governments' obligations under statute. For example, in B.C., the Local Government Act requires that all works and services provided by the regional district be consistent with Metro Vancouver's regional growth strategy. All bylaws adopted by the board and all services undertaken by Metro Vancouver must be consistent with that regional growth strategy. Metro Vancouver may therefore be precluded from providing services to lands added to reserves that first nations intend to use in a manner inconsistent with the regional growth strategy. This is because pursuant to the Local Government Act, Metro Vancouver must conform to that regional growth strategy.

Further, providing services to non-contiguous reserve lands presents a major challenge for local governments, considering the existing legislative and jurisdictional barriers to servicing non-treaty first nations lands, such as established regional and municipal policies and regulatory requirements, bylaw adoption and enforcement on Indian reserve lands, and environmental and financial liabilities.

When an ATR has been approved, local government land use bylaws, zoning, and related enforcement are no longer applicable on that land. The first nation has the authority to determine how to use its reserve lands according to the needs and interests of its community. At this present time, as a prerequisite to ATR approval, first nations must negotiate areas of joint land use planning and bylaw harmonization with neighbouring local governments. However, that requirement, which is contained in the current ATR policy, is no longer clearly stated in the revised policy.

Local governments are required to recover the full costs of all local services, including the costs of regional services and regional transportation services. The provisions of the regional growth strategy limit the exposure to develop, and ensure that regional taxpayers do not end up paying for the costs of projects not contemplated in the regional growth strategy.

Regional servicing issues, including the collection and remittance of all requisite Metro Vancouver property taxes and development cost charges....

Harmonization and servicing agreements with neighbouring local governments should be included in the policy as a condition of ATR proposal approval.

Further, the ATR policy should be amended to ensure that long-term uses of the proposed ATR lands are compatible with municipal and regional land uses and consistent with the land use proposed in the original ATR proposal. This amendment would serve to protect agricultural lands and ensure that any non-contiguous additions will not lead to conflicting land use for local governments. Planning proposals and structures developed under the official community plans and regional growth strategies are entrenched in provincial legislation. Local governments are required to adhere to these processes.

The revised policy no longer reflects the 90-day review period. Instead, the applicant first nation is required to notify the affected local government in writing of the reserve creation proposal to give the local government an opportunity to assess any potential impacts of the proposal on their existing land use plans and service delivery.

In the absence of a specific timeline, it is unclear whether local government input will be considered in the review process. In order for regional districts and municipalities to consider a proposal for ATR, it is necessary to process the proposals in accordance with the procedures imposed on local governments by applicable legislation.

Those procedures include notice requirements and time limitations that must be adhered to by the local government . As a result, the institution of any time periods included in the ATR must take those restrictions into account. It is therefore critical that the federal government amend the draft policy to require early, meaningful, and timely consultation with the impacted local governments. A new ATR policy should provide local governments with the 90-day review period similar to what is afforded to the province. This amendment would provide certainty that local governments will be fully considered during the ATR proposal process.

Dispute resolution mechanisms also need to be included in the policy, including dispute resolution assistance from Aboriginal Affairs and Northern Development Canada to assist first nations and local governments in resolving disputes that may arise between them during these negotiations.

The guide titled Communities in Cooperation: A Guide to Alternative Dispute Resolution for First Nations & Local Governments in BC, prepared for the B.C. First Nations Summit and Union of British Columbia Municipalities, outlines a dispute resolution process that we feel may benefit the revised ATR policy. As well, the dispute resolution chapters of the recent treaty final agreements in B.C. can also provide some examples of clearly outlined dispute resolution processes.

As reserve lands are exclusively federal land, they are outside of local governments' regulatory and taxation authority. Any outstanding legislative and jurisdictional concerns relating to local governments' inability to apply and enforce utility bylaws on Indian reserves may hinder the progress in negotiations between local governments and first nations. Without effective regulatory tools, local governments are exposed to financial, environmental, and public health liability if a problem arises with a local government service provided to reserve lands. These regulatory and jurisdictional complexities need to be taken into consideration when revising language around the consultation and dispute resolution process.

Thank you for your kind attention. That concludes my presentation.

As time allows, I'd be happy to answer any questions.

12:10 p.m.

Conservative

The Chair Conservative Chris Warkentin

Thank you, Mr. Daykin.

We'll turn now to Mr. Gailus for his opening statement.

12:10 p.m.

John Gailus Partner, Devlin Gailus Barristers and Solicitors

Thank you, Mr. Chair. I want to thank the committee for inviting me back...[Inaudible—Editor]

12:10 p.m.

Conservative

The Chair Conservative Chris Warkentin

I think we're having some technical problems.

12:10 p.m.

John Gailus Partner, Devlin Gailus Barristers and Solicitors

Okay, go ahead.

I want to thank the mayor for being so kind as to offer me his chair. I am not Ernie Daykin; I am not the mayor of Maple Ridge.

My name is John Gailus. I'm a member of the Haida Nation of British Columbia. I worked for almost five years with the Department of Indian Affairs and Northern Development, as it then was, doing economic development as a senior lands and management leasing officer. I also did a number of additions to reserve. In 1999 I went into private practice. I thought it was going to be easier than working for the department, but it turns out it's not the case. I've been practising exclusively in aboriginal law since then.

I'll keep my comments brief, given the time. I would recommend to the committee, if you haven't read it already, to read the CBA submissions on the additions to reserve policy.

I want to make two comments today. One of the questions that's come up and one of the recommendations that came out of that report was the possibility of enacting legislation dealing with additions to reserve, and in particular putting in pre-designation procedures, so looking at the claim settlements acts in Manitoba, Alberta, and Saskatchewan and at whether or not that's something we should consider doing nationally.

I think there is merit in looking at that as a model and in looking at possibly doing pre-designation procedures. But as this committee is well aware, there have been recent changes to the Indian Act that have made designations much simpler. I think that making these changes, although they're worth looking at, doesn't really solve the systemic problems with the current system. You've probably heard a lot about that already.

So what needs to change? I think that although AANDC has proposed changes to the ATR policy, it's the first nation that remains responsible for satisfying all the elements of the policy and funding it themselves. This is a fairly substantial burden that the first nation has to shoulder, and in my view, AANDC needs to take a more active role in all aspects of the ATR process by providing human and financial resources, and, more importantly, by obtaining a mandate early in the stage. It often seems to be the case that it's up to the first nation to approach the department and say, “Well we think we're ready to go on this. Can you get a mandate?” Then they wait 6 months, 9 months, 18 months for the department to get a mandate to actually negotiate a claim.

There are also challenges dealing with the province. I won't speak for the municipalities, but that's certainly a challenging process as well. There are also third-party interests that lead to the substantial delays that we're seeing in the ATR.

So we can make changes in terms of legislation at the back end, but we really need to do a lot of work at the front end, in my view.

In British Columbia, where I do most of my work, the province may be prepared to offer lands for settlement, but they want to reserve all the natural resources. They don't want to give the trees; they don't want to give the mines and minerals; they don't want to give the oil and gas. To use the analogy of the giant carrot that my property law professor taught me, they don't get the carrot; they just get the dirt the carrot is growing in. It's particularly galling for my first nations clients when we're doing specific claim settlements, for instance, for lands that they ought to have gotten, and the province comes to the table and says, well, we'll give you this patch of dirt, but you can't have the trees, you can't have the oil and gas, and you can't have the mines and minerals.

I was going to say something about municipalities, but they're here; they can talk about their issues.

Third parties want security of tenure, either under the Federal Real Property Act or under the Indian Act. That's always a challenge. When you're acquiring land, you've got to deal with these third-party interests. And now we've got the duty to consult, which adds another layer. So if a first nation selects reserve lands in a particular area where there's an overlap with another first nation, the crown now has to go out and consult with that other first nation. That's going to add to your delays as well. I don't have a solution to that one. In my view, Canada has a significant role in these negotiations, but they prefer to sit on the sidelines. Unfortunately, my friends from the department aren't here to defend themselves.

One solution I'd like to see would be for AANDC to have agreements with particular provinces regarding how they'll deal with ATR; that is, having a memorandum of understanding or some sort of agreement, for instance, between Canada and B.C. to say this is how we're going to approach additions to reserve and these are the things we're going to do, rather than doing it in a piecemeal fashion, constantly going back and forth in terms of getting mandates to negotiate on an ATR proposal.

Those are my comments. If there are any questions, I'd welcome them.

12:20 p.m.

Conservative

The Chair Conservative Chris Warkentin

Okay. It seems we've lost Mr. MacIsaac. He was scheduled to speak earlier, but because of the delay....

Mr. MacIsaac, there you are.

December 3rd, 2013 / 12:20 p.m.

Gary MacIsaac Executive Director, Union of British Columbia Municipalities

Thank you. I have no further comments, Mr. Chair.

12:20 p.m.

Conservative

The Chair Conservative Chris Warkentin

Thank you so much.

We'll begin with our rounds of questioning, and we'll start with Ms. Crowder.

12:20 p.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Great. I want to thank all of the witnesses. Unfortunately, I only have seven minutes and I probably have about an hour's worth of questions, so you'll have to forgive me. I'm just going to try to ram them through.

Mr. Gailus, I want to start with you for a moment. One of the reasons we are having some additional testimony is we wanted to specifically talk about pre-designation. Could you talk about the merits, the pluses or the minuses, around pre-designation?

12:20 p.m.

Partner, Devlin Gailus Barristers and Solicitors

John Gailus

Absolutely.

Obviously there is some merit there if there is a proposal that's time sensitive. If Canada has agreed to set such lands aside as reserve and the nation comes together and votes on that proposal...when the order goes forward, there's the addition to reserve order—whether it's an order in council or a ministerial order—and that would be followed obviously by the designation order.

You can certainly collapse those timelines, but as I pointed out, given the recent changes to the Indian Act, you might save three or six months. I'm not sure how fast the designations are going through now as opposed to before, given the changes, but I think my key point was that you may shave six months off the designation process at the end, but if it's taking you 16 years to get to that point—and I have a file that I'm dealing with on that issue—what's another six months?

Certainly it would have to be in legislation, and we have the model there. We have the two acts from the Prairies that we could use.

So while I think there's merit in looking at that, I don't think it's going to make a substantial difference to the first nations.

12:20 p.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

We've had all three sets of witnesses talk about consultation—Mayor Daykin, Mr. Krause from Prince George, and Mr. Gailus. It's interesting to hear municipalities call for meaningful consultation when that is certainly a call that has come from first nations for decades, and first nations have not been able to get an agreement around meaningful consultation, despite numerous court decisions reaffirming the duty to consult. Now we have municipalities and regional districts adding their voices to a consultation.

Quickly, to take on this thorny task, could I ask each of you to talk briefly about a couple of elements that you see as being essential in meaningful consultation?

Mr. Gailus, I'll start with you, and then I'll go to Mayor Daykin.

12:20 p.m.

Partner, Devlin Gailus Barristers and Solicitors

John Gailus

In the first nations context or...?

12:20 p.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

In the first nations context, because it has to be included in an ATR process.

12:20 p.m.

Partner, Devlin Gailus Barristers and Solicitors

John Gailus

Absolutely. Obviously, the court cases talk about early engagements, sharing of all relevant, available information. The courts speak of doing a preliminary assessment, so the challenge for first nations is this issue of overlapping territories and first nations filing these maps that claim extensive territories, which therefore gives them rights to be consulted. Coming from British Columbia, you'll recognize this.

It's ironic that the first nations have gained this duty to consult but may end up thwarting their neighbours by using it if a reserve has been requested in an area that's particularly important to another first nation. I'm seeing this happening now in the context of treaty land entitlement—how the first nations are going to deal with one another on their land selections. The reality is, there's only so much real estate, and you're going to want to choose the most valuable real estate that's available when it comes to additions to reserve.

The crown's approach has been to try to have those first nations work it out among themselves, rather than being a referee and bringing it down.

12:25 p.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Gailus, I think you're aware that the BC Treaty Commission has constantly called for additional resources around dispute resolution, even in the treaty process.

Mayor Daykin.

12:25 p.m.

Director and Chair, Aboriginal Relations Committee, Metro Vancouver

Ernie Daykin

At the local level, in every application that comes our way, we talk about early and ongoing consultation. That's the way we're used to doing business, and our citizens expect it of us at the local government level. As I said earlier, we're in it together. The more we can talk and understand each other's challenges or approaches, the better chance we have of success.

From my perspective, local government and our role in it hasn't been acknowledged by the other levels of government. I think a good example of how we've made that consultation in Metro Vancouver, and that working back and forth, is that 24 local governments have come together with a regional growth strategy through a whole bunch of discussion and debate on land use and made it work. I think we have a bit of a track record there.

Mr. Hildebrand, do you want to add to that?