Indigenous and Northern Affairs Committee on April 28th, 2009

[The Chair, Conservative, Bruce Stanton]

First I would like to welcome committee members and our guests. As part of the 16th meeting of the Standing Committee on Aboriginal Affairs and Northern Development, we'll be addressing the subject on the agenda, the report of the Auditor General. This morning we have Ms. Sara Filbee, Assistant Deputy Minister, Lands and Economic Development, and Mr. Paul Fauteux, Director General, Lands Branch.

Pardon me, Mr. Fauteux isn't here.

[Sara Filbee, Assistant Deputy Minister, Lands and Economic Development, Department of Indian Affairs and Northern Development]

He will be here, and he's not usually late. Something must have held him up. My apologies.

[The Chair, Conservative, Bruce Stanton]

Martin Egan is also a director with the same department as Mr. Fauteux, and he will be here to help us today with chapter 4 of the Auditor General's 2009 report.

Ladies and gentlemen, before we proceed, during the meeting we're going to be circulating a list for members to indicate their attendance for the trip to Kitigan Zibi on Thursday. I would also like to use this opportunity to remind members that for the trip on Thursday, jacket and tie is not necessary. Informal apparel is in accordance with the weather, but no shorts, bermuda shorts, and t-shirts. Appropriate attire is required.

Are we taking orders for breakfast? No, we're not doing it this morning. We'll be at the whim and discretion of our hosts that morning. We'll be circulating that. Also, there will be a rough agenda circulated this morning for the Thursday trip. Now, without any further delay, we'll carry on.

Ms. Filbee has an opening statement that has been circulated to members. We'll proceed with that and then we'll take questions from members accordingly.

Ms. Filbee, please.

[Sara Filbee]

Thank you very much. Thank you for the opportunity to address you today on our progress in implementing treaty land entitlement agreements in Manitoba and Saskatchewan.

The department is proud to note that the recent Auditor General's report on this subject recognizes the improvements that have occurred since 2005. This success is due to the hard work of staff from the many parties involved in the additions to reserve process, including first nations and provincial governments, as well as Indian and Northern Affairs Canada, Justice Canada, and Natural Resources Canada. The process we are discussing is to ensure that land with clear title and no unknown environmental issues is moved from provincial jurisdiction to federal jurisdiction and then set aside for the use and benefit of a first nation.

Therefore, the ATR process is largely a due diligence process undertaken by first nations, provincial governments, and Canada. Each party has its own set of decision-making processes based on a mixture of legal and policy requirements. Productive working relationships and clear process are therefore essential. However, many parties with no obvious incentive to move forward swiftly, including municipal governments, and hydro, telephone, and natural gas utilities, are also involved.

When the Auditor General undertook the 2005 audit, TLE implementation was proceeding at a steady rate in Saskatchewan, but there was a backlog in Manitoba. By early summer 2006, only 130,000 acres of TLE-related reserve land had been created in that province during the previous nine years, or an average of less than 14,500 acres per year. To address the situation, the then Minister of Indian Affairs, Hon. Jim Prentice, and the then Manitoba Minister of Aboriginal Affairs, the late Oscar Lathlin, met on August 22, 2006, and announced an extremely ambitious target: to set aside 150,000 acres of TLE-related new reserve land in Manitoba each year for four years, more than 10 times the average annual amount set aside during the preceding nine years.

The target was not only met but was exceeded in the first year following that announcement, with over 159,000 acres of new reserve created. Despite that initial success, it wasn't possible to repeat it in year two, ending on August 22, 2008. However, we are well positioned to reach the 150,000 acre per year target, which is the three-year target, by August 22 of this year.

It has been difficult to increase the rate of TLE implementation by over ten-fold, and then try to maintain that level over the long term; however, ATR processing times are decreasing through better planning and various other measures, and more improvements can, and will be made.

Regional staff are already meeting on a regular basis with individual first nations to develop and maintain a joint action plan for each ATR proposal, so there is a shared understanding of next steps and who is responsible for each one of them.

We are poised to roll out a national additions to reserve tracking system, known as NATS, in the current fiscal year. NATS will greatly enhance the department's ability to plan and manage human resources and the various expenditures involved in the ATR process, such as for surveys and environmental assessments. The system will also address the data integrity issues the Auditor General expressed concern about, and it will provide for the consistent file structure the Auditor General recommended.

In addition, the entire ATR process has been mapped in detail to identify options to combine or eliminate steps and to gain any efficiencies that may be possible. At the beginning of the 2008-09 fiscal year, a service standard of 100 business days was established for phase three of the ATR process, the final stage undertaken in headquarters. Whereas there was some initial difficulty meeting the standard in the first quarter, it was met in the final three quarters and, on average, for the entire year.

Through discussions with regional officials and first nations, it became clear that one of the main difficulties in increasing the processing times is the lack of definition and structure around the front end of the ATR process—or phase one—that is, the part in which first nations select provincial crown land or acquire fee simple land they would like added to their reserve. To overcome this difficulty, the department partnered with the National Aboriginal Lands Managers Association, or NALMA, to talk to first nation and departmental practitioners across the country and to develop an approach to assist first nations with phase one.

NALMA has recently recommended that first nations take a “diligent buyer” approach to land selection and acquisition and has produced a draft manual based on this approach, which will be finalized in the next few months and be distributed widely to first nations. We believe this will further decrease processing times and enable service standards to be established for phase two, which is the work the regional offices undertake.

Other initiatives include the development of best-practice-based template documents for dealing with various third-party interest situations, which are being made available on-line. Additionally, there will be a continuation of the practice of conducting workshops, at least annually, with First Nation practitioners in Manitoba and Saskatchewan on how to deal with third-party interests.

Finally, we are currently in discussions with the Assembly of First Nations to jointly review the ATR policy and process. We are hopeful that this engagement process will lead to a set of jointly supported recommendations for improvement.

In conclusion, although we are pleased that the Auditor General has found that the department has made satisfactory progress in converting land to reserves since the 2005 audit and in implementing some of its recommendations, we will continue our efforts to address the full slate of recommendations.

I once again thank you for this opportunity to speak to you today, and I would be pleased to answer any questions that you may have.

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you very much.

Now we'll start the first round with Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good morning to both of our witnesses. I'm glad you took the time to introduce yourselves individually to each of us.

Mr. Fauteux, it's nice to have you here with us.

I have a couple of questions.

When the Auditor General was in talking about this specific issue--and they've done a comparison between the progress that was made in Saskatchewan versus the progress that was made in Manitoba--there seemed to be a sense that it was a relationship issue between the regional offices and the first nations. There seemed to be more openness and a more cooperative relationship in Saskatchewan. I'm paraphrasing, of course, but that is the sense that I was getting from the conversation around questions relating to this issue. That same relationship didn't exist in Manitoba, and that was one of the reasons we didn't see the same type of positive results in Manitoba.

Do you think that is the case, and what can that be attributed to?

My second question is regarding your presentation. It says some of the challenge may lie in the first phase, and that is to deal with the first nations' selecting of provincial crown land or acquiring fee simple land that they would like added to their reserve. Listening to the Auditor General, it was my understanding that more than enough land had been selected by first nations, that the delay wasn't on that end at all, but it was on the conversion end that we could see the delay.

Is there still a seven-year timeframe? This is a supplementary to that second question. Is it still on average seven years from the time the process starts to the time we have the conversion and the addition?

[Sara Filbee]

I'll start and then I'll get Paul or Martin to provide some additional details.

First of all, with respect to the difference between Saskatchewan and Manitoba, as you might have gathered from reading the audit, the whole process is really quite complex in terms of what we're trying to do and the number of parties that are involved, and there are actually quite significant differences between the way the process has evolved in Saskatchewan and in Manitoba. For example, in Saskatchewan the obligation is mostly done by land purchase, whereas in Manitoba it's usually by use of crown lands. Crown lands quite often come not surveyed. There's a difficulty in getting enough surveyors and so on. So for one thing, in order to make the land suitable for addition to reserve, right away you've got a difference in terms of timing.

[Todd Russell, Liberal, Labrador, NL]

Isn't the federal government responsible for the surveys and the environmental assessments and the readying of the land, basically?

[Sara Filbee]

The difference is that there is more to be done with respect to the lands in Manitoba than there is in Saskatchewan. There are more processes, more things that are required to be done, so it does take longer. There are also additional differences with respect to some of the third party interests that have to be dealt with in Manitoba over Saskatchewan. So there is also a very practical thing. The Saskatchewan agreement establishes a rural municipal compensation fund in terms of dealing with municipalities that provides 22.5 times tax loss compensation for rural municipalities. To the contrary, in Manitoba, it's five times tax loss. So again, when you're dealing with third parties who may or may not have the same interests in expediting, that can add to delay as well.

Secondly, with respect to your second question, I'll ask Martin or Paul to take a first crack at it.

[Martin Egan, Director, Lands Branch, Department of Indian Affairs and Northern Development]

In terms of phase one, there certainly is enough land to be purchased or selected in both provinces, but if you're purchasing land it's obviously on a willing buyer and willing seller basis. So the first nations want to be able to sit back and wait until those lands that they want are available.

On the selection of crown land, it's again a process where the province would have to go through its process to determine whether it wishes to release those lands, because there are certain things that it can withhold the lands for.

But with respect to phase one in general, under our process the first nation has to submit a band council resolution, and what we're finding is that in phase two, which is the part that the regional offices undertake, there's a lot of back and forth between the regional office and first nations on getting more details about their selection, which often isn't in the BCR, the band council resolution. And so what we're hoping the NALMA work will do is establish a little more rigorous proposal-based system where the first nation will have a certain amount of detailed information that it will submit, but it's the kind of information that a diligent buyer would require and that's the kind of information that the community obviously would want. So that coincidentally is the same type of information we need to run our process.

So I think that will make it easier to determine when the clock should start running on phase two and allow us to better gauge how long the process is taking, because right now the BCR will come in, but with this back and forth we don't really know where that clock should start ticking.

[Todd Russell, Liberal, Labrador, NL]

What about the seven-year...?

[Martin Egan]

It has been taking up to that point. But with respect to the different improvements that have been undertaken over the last couple of years, it's still hard to know how that's going to affect the outcome. Whether it's now down to six or five, we're not sure yet. But we're sensing that there are improvements.

Also, one of the big improvements is that in 2000 and 2002 Parliament passed two bills, the claim settlements implementation acts. Those are being used more and more by first nations as an opt-into situation. When the first nations do opt into that legislation, it provides a lot of tools to them in the pre-reserve situation in order to address third party interests. It not only allows those tools to address those interests, it provides those third parties with a lot more certainty regarding their interests.

The other thing it does is that once it is reserve land, that reserve land is economically development-ready--you can put a development on it right away--whereas if those acts aren't used, then you get into situations where it might take up to a year before you can put a lease and a development on that land, because there is a whole pile of other processing that has to happen.

[The Chair, Conservative, Bruce Stanton]

Mr. Lemay, you have the floor for seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I need to understand how the process works. The government has undertaken to return lands to the aboriginals and to include them as reserve lands. Is that correct?

[Paul Fauteux, Director General, Lands Branch, Department of Indian Affairs and Northern Development]

Yes, that's it.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Do those lands in Manitoba and Saskatchewan currently belong to the provincial governments?

[Paul Fauteux]

Not necessarily. In some cases, yes, especially in Manitoba, but there are also lands that were subject to party-to-party sales. Those are private sales.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

All right.

The Auditor General came and told us that one of the ideas retained was that a number of those lands would have to be near the cities. Am I in the right ball park?

[Paul Fauteux]

No. Under the tripartite agreements signed between the First Nations, the province and the federal government, First Nations have the opportunity to select lands where they want. Some indeed chose lands located in urban areas as a result of their economic development potential.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

So it's understandable that that might delay matters enormously. If you're near a major centre, whether it be Prince Albert, Regina—

[Paul Fauteux]

—or Winnipeg. Yes, absolutely. The issues that have to be resolved are even more numerous and complex in the case of urban lands than for rural lands.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Among the lands concerned, are any located inside parks? I'm not talking about a Canadian national park, but about provincial parks.

[Paul Fauteux]

Not to my knowledge.

Are you aware of any provincial parklands?

[Martin Egan]

No. There was a specific claim addressed in Riding Mountain National Park with a small area, but in general, no, the lands are not selected in parks, although there are some outstanding questions respecting that.

[Paul Fauteux]

That can happen, but it's exceptional.