Indigenous and Northern Affairs Committee on May 7th, 2009

[The Chair, Conservative, Bruce Stanton]

Good morning to our members and witnesses. This is the 18^th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

On the agenda today, we have the Auditor General's report and

Also this morning, we have two presentations. First, from the Treaty Land Entitlement Committee of Manitoba, we're going to welcome Paul Chief and Carl Braun. Secondly, we'll have a presentation from representatives of the Treaty One First Nations, and we're going to be welcoming Chief Terry Nelson and Chief Glenn Hudson.

Seeing as one of our witnesses from the Manitoba TLE has yet to join us, we'll begin with the Treaty One First Nations.

Chiefs, welcome to our committee this morning. You have 10 minutes. I'm not sure who would like to lead off, or if you wish to split, with five minutes each. It's your 10 minutes.

Chief Nelson will begin.

[Chief Terry Nelson, Chief, Board of Directors, Treaty One First Nations]

[Witness speaks in Ojibway]

I want to thank the committee for its time this morning.

I'm Chief Terrance Nelson, and I was elected by the chiefs of Treaty One to present our position. Due to time constraints, I will forego the formalities and go straight to the issues. Treaty One was signed with the British crown on August 3, 1871, at the Stone Fort. Our ancestors signed the treaty with clear intentions: to preserve our way of life, to ensure our sovereignty within our reserve territories, to ensure shared benefits from all 16,700 square miles of our territory, and to have a peaceful, respectful coexistence with Her Majesty's white and other subjects.

Today 900,000 people inhabit our 10-million-acre traditional territory. Our position as to Treaty One is simple, straightforward, and clear. Before the immigrants got to our lands, we owned all the land. Our rights were inherent and not granted by any other race or people. The crown did not give us any land in treaty. The crown had no land to give us. The crown could not give us what was already ours. We never ceded or surrendered our traditional territory. We agreed to share the benefits of our lands. To gain the consent of indigenous people to allow crown access to the 16,700-square-mile Treaty One territory, the crown promised and undertook definite and binding obligations as documented in the treaty text.

One of the main crown obligations is to recognize our exclusive territory--lands reserved for the sole and exclusive use of indigenous people:

Her Majesty the Queen hereby agrees and undertakes to lay aside and reserve for the sole and exclusive use of the Indians the following tracts of land, that is to say...as will furnish one hundred and sixty acres for each family of five, or in that proportion for larger or smaller families....

In the last 138 years since the signing of Treaty One, the crown has not completed the most basic condition of treaty: the promise to recognize and reserve 160 acres' grant for each family of five. Five first nations in Treaty One--Broken Head, Long Plain, Peguis, Roseau River, and Swan Lake--have unfulfilled TLE agreements with the crown. The other two first nations in Treaty One, Sandy Bay and Sagkeeng, are in the process of negotiating TLE agreements. TLE is just one of numerous breaches of the conditions of treaty that must be completed by the crown.

Since 1871 the benefits for the crown to use, license, and tax immigrant activity within Treaty One have been immense. It is the position of Treaty One that the only legal access the crown has to our 16,700-square-mile territory is the treaty. We, the indigenous people, have title to all our lands and resources within Treaty One territory, and the crown has only conditional access based on the rights granted to the crown in treaty.

On August 3, 1871, the crown gained conditional access to the territory but only for settlement and immigration. The crown promised in the 1871 treaty negotiations to meet with the indigenous people in the future to clarify the benefits of treaty. That promise is written in treaty as:

...and that they may know and be assured of what allowance they are to count upon and receive year by year from her Majesty's bounty and benevolence.

Despite numerous Supreme Court of Canada decisions on the crown's duty to consult and accommodate, and despite our new numerous attempts to engage the crown in fulfilling its legal obligation, the crown continues to ignore the treaty and its own courts.

In licensing and permitting two new pipelines to be constructed in our territory without any agreed benefit for the first nations, the crown jeopardizes the benefit it's gained in treaty. The question is where we go to ensure that the honour of the crown is enforced when the RCMP and the Canadian army will not enforce Supreme Court of Canada decisions.

Based on the last 138 years of lack of enforcement of treaty obligations, it is the decision of the chiefs of Treaty One and the people of Treaty One that the continued failure of the crown to abide by the treaty condition to share benefits of our lands forces the first nations to collect for ourselves those benefits due to the indigenous party of the treaty.

We, as the indigenous party to Treaty One, granted the crown a pledge of peaceful coexistence, which the crown wrote in the treaty text as:

And the undersigned Chiefs do hereby bind and pledge themselves and their people strictly to observe this treaty and to maintain perpetual peace between themselves and Her Majesty's white subjects, and not to interfere with the property or in any way molest the persons of Her Majesty's white or other subjects.

Existing pipelines in our territory already transport $40 billion a year in oil through our lands. With new pipelines in our territory, that number will reach over $100 billion in oil per year through our territory, without any tariff or fee paid to the indigenous people.

All people in Treaty One territory, including private landowners who purchased land from the crown, are in the same position as a person who purchases stolen property or property with liens on it. We, as the indigenous landowners, still hold a lien and underlying title to all 16,700 square miles of Treaty One territory, because the crown did not discharge its lawful obligation under treaty.

As Justice Binnie wrote in a Supreme Court of Canada decision in Mikisew, “Treaty-making is an important stage in a long process of reconciliation, but it is only a stage.” As well, he said that the “negotiations were the first step in a long journey that is unlikely to end any time soon”.

When a fundamental breach of treaty is not resolved, we, as the indigenous party to the treaty, must always reserve our right to take direct action if we cannot get the other party to the treaty to complete their legal obligation.

When a government fails to abide by Supreme Court of Canada decisions and refuses to acknowledge international standards by voting against the United Nations Declaration on the Rights of Indigenous Peoples, what options are there for us to ensure that peaceful coexistence is not just another pretense for indigenous people to continue to live at the 63rd level of the United Nations' living index, while the immigrants to our lands live extremely well from the sales of the wealth of our lands and resources?

Not to interfere with the property of Her Majesty's white subjects is a treaty right granted by indigenous people to the people who immigrated to our lands. It is a treaty right that is contingent upon Her Majesty fulfilling the conditions of treaty. We, as Treaty One chiefs, have no desire to break the treaty or to interfere with the property or in any way molest the persons of Her Majesty's white or other subjects, but it is important that the crown be held responsible for its word of honour.

We, as the chiefs of Treaty One, are prepared to answer any questions in regard to this action. We state very clearly that the crown's failure to abide by the land quantum of 160 acres per family of five has not been resolved in 138 years. They have given us a tremendous legal hammer, because we are saying that all 10.7 million acres of our land, our traditional territory, is still ours because the crown did not fulfill the TLE.

[The Chair, Conservative, Bruce Stanton]

Thank you, Chief,

By the way, I should have recognized that you're also joined here today by Chief Donovan Fontaine.

I apologize, Chief, for not mentioning you in the opening comments.

Now we'll go to representatives of the Treaty Land Entitlement Committee of Manitoba.

You have 10 minutes.

Mr. Braun.

[Carl Braun, Executive Director, Treaty Land Entitlement Committee of Manitoba Inc.]

Good morning. Just as a brief introduction, I am the executive director for the Treaty Land Entitlement Committee.

The following is a briefing submission to the Standing Committee on Aboriginal Affairs and Northern Development on the issue of Manitoba treaty land entitlement, in consideration of the Auditor General's report of March 31, 2009, and chapter 4 on treaty land entitlement.

We thank the Auditor General and her office and, for the most part, agree with their findings, but take the opportunity to provide our comments--

[The Chair, Conservative, Bruce Stanton]

Excuse me. I'm sorry, but if you could keep the pace a little slower just for the purposes of translation, that would be helpful. Thank you very much.

[Carl Braun]

Sure.

We take the opportunity to provide our comments to the 2005 and 2009 Auditor General's reports. In addition to speaking to the reports, we take the opportunity to share experiences in twelve years of implementing the biggest land claim in the history of Manitoba, the May 29, 1997, Manitoba Treaty Land Entitlement Framework Agreement, which is referred to as the MFA. The following programs will provide background, highlight our experiences, and provide recommendations to improve the TLE process.

The Manitoba Treaty Land Entitlement Framework Agreement was signed by the Treaty Land Entitlement Committee of Manitoba Inc., representing 20 first nations--Canada and Manitoba--on May 29th, 1997, at the Opaskwayak Cree Nation. This agreement is intended to provide land owed to the 20 entitled first nations, fulfilling a longstanding commitment arising from a number of treaties signed between Canada and the first nations between 1871 and 1910.

Under the framework agreement, 1.1 million acres of land will be transferred to the first nations reserves to make up for the shortfall that occurred at the time reserves were created. Manitoba will provide the first nations with 985,000 acres of crown land. Canada will contribute $76 million, a portion of which will be applied to the purchase of up to 114,677 acres of land from private owners for those first nations that do not have sufficient amounts of crown lands to select from within their vicinity.

All the purchases from private landowners will be on a willing seller, willing buyer basis. The framework agreement sets out the process, principles, and mechanisms agreed on by the federal and provincial governments and the 20 entitlement first nations. Within the packages I've circulated to the clerk, there exists appendix A, which provides a more detailed background on that process.

The committee was established as a party that signed the Manitoba framework agreement on behalf of the first nations. The TLE Committee is a centralized organization that is mandated to provide technical and professional assistance to the first nations. Out of the 20 entitlement first nations, 15 have executed their individual treaty entitlement agreements. The committees assist the first nations in implementing the Manitoba framework agreement and their specific treaty entitlement agreements that fall under the umbrella of the Manitoba framework agreement.

This includes dispute resolution processes and assists first nations with a specific negotiation, such as municipal development service agreements and resolving third-party interests. Again, within the package, appendix B provides a brief overview of the processes involved in the implementation. Regarding the Auditor General reports, both the 2005 and 2009 reports on the TLE obligation do not speak to the lack of resources on all sides, particularly the funding that has been exhausted through the periods in signing the agreements on through the current state. After twelve years of signing the MFA, we can report that we are 28% completed, and we have all exhausted much more than 28% of the initial funding received.

This performance measure represents the easier land transactions. At this rate it will take a minimum of 25 years to implement the entire MFA. We first point out in the 2005 Auditor General's report that it did not review the main federal policy that we understand dictates the reserve creation process, the additions to reserve policy, ATR--I'll repeat, the additions to reserve policy. The policy is at best the means to ensure that Canada's risk is minimized with practices unclear to first nations and inconsistent amongst INAC practitioners.

The ATR policy seems to be a policy of INAC, with guidance provided from the Department of Justice. We report that in some cases this risk assessment approach to providing certainty has not eliminated the risk but transferred the risk to first nations. As our fiduciary, we expect Canada to explore and create innovative instruments and tools with first nations input to provide certainty to all parties, rather than relieve itself of any liability. Our comments to the 2009 report begin with the recognition of questionable successes and performance measures, with specific reference to the 150,000-acre-per-year or 600,000-acre-per-four-year ministerial commitment. It is recognized as a four-year ministerial commitment.

The 2009 Auditor General report recognizes the achievement of INAC with respect to 159,000 acres in year one, in 2007, of the four-year commitment, and a rise of productivity in relation to previous years. We report that one parcel of crown land, 58,000 acres in size, made up 36% of the year one performance measure.

We also report that in year two there was one parcel of crown land, 82,000 acres in size, that would have made up 55% of the year two performance measure. This particular parcel was not achieved and was moved to year three of the four-year commitment. With this in mind, it can hardly be realized that four years of serious commitment to a file could result in such progress.

The committee recognizes Canada's four-year commitment as set out, but Canada must look beyond the 120-parcel target they set out, as there are approximately 280 more parcels that require reserve status.

If I could summarize, the 159,000 acres achieved was as a result of multiple years of work. We're looking at about 10 years of work that resulted in that 159,000 acres, and not any single period or adjustment in file management or policy change can be attributed to that success.

This comment is further supported in the Auditor General's report, which states that the Department has not reduced processing times.

The problem with TLE is the additions to reserve process takes far too long. We feel Canada's current ATR process is fundamentally flawed, and we have been challenged with pinpointing the exact problem, as it is not transparent to either the first nations or our committee. In our experience, on average, it takes Manitoba and Canada five to seven years to transfer and convert a parcel of unencumbered crown land to reserve. This is land that, for the most part, has no third-party interests or encumbrances--in other words, the easy land transactions. In one example, it took 14 years to add a parcel of land to reserve.

The survey process itself can take two years. The environmental screening process can take a year. The designation process to create leasehold interest on a land can take a minimum of one year. We have discovered that municipal service or utility agreements can take five years or longer. These are just a few examples. The bottom line is that first nations have an opportunity, with an agreement in place, for choice lands, and they may miss out on investment and development opportunities from the process taking so long.

Canada's current specific claim process involves having a claim validated, negotiated, settled, and essentially implemented. In the implementation phase of the Manitoba TLE Framework Agreement, there are approximately 470 parcels selected or acquired by 15 first nations that require reserve status. Each parcel has been strategically selected or acquired by the first nation with the common objectives of self-sufficiency, economic development, or political autonomy, to name a few. These parcels chosen by each of the first nations fall into Canada's policies and processes, secondary to the TLE Framework Agreement. Government policies, processes, and practices have become a major impediment. They are non-transparent to the first nations and the committee, and INAC staff essentially appear to implement under Department of Justice directives or become guardians of any potential liability associated with new additions to reserve.

The inadequacy of land base for aboriginal peoples across this country has been identified in various reports, including the royal commission report on aboriginal peoples. However, government continues to focus on potential liability associated with new additions to reserve. First nations and first nations organizations get caught up in implementing government's way or no way. This has quite evidently not worked. It tends to tarnish the relationship and instills age-old mistrust. There is also a lack of adequate human and financial resources allocated to the entire TLE process on all sides.

On the provincial side of implementation, it appears Manitoba is there to protect third-party interests. In a sense, they become a fourth-party interest and function within their own land tenure system. An example is their own crown corporation, Manitoba Hydro. Rather than proactively assisting in resolving interests, it seems they continue to issue all types of interests to industry as if TLE or land claims were secondary to other crown interests and land. This steers away from the spirit and intent of treaty land or the constitutional obligation at hand and complicates the first nations attempts to resolve third-party interests.

In terms of third-party interests, we have forecasted what the future holds for treaty land entitlement implementation, and we see that in the next two years, if Canada meets its four-year ministerial commitment, Canada will have problems identifying lands to survey by 2011.

To prepare for this, the Treaty Land Entitlement Committee has designed a third-party interest strategy and invested our own funds--$600,000 for 2008-09 and another $600,000 for 2009-10--in building the capacity of first nations in a solid attempt to deal with third-party interests.

The strategy takes a focused approach to prioritized parcels of land and lays out detailed work plans in addressing the options, methods, skill sets required, and challenges and opportunities with third-party interests. Our intent is to create unencumbered parcels, not just to assist Canada in meeting the four-year ministerial commitment, but toward the legal obligation of 1.1 million acres as per the MFA.

[The Chair, Conservative, Bruce Stanton]

If you could bring this to a close now, Mr. Braun, we are a little bit over time. Just take a bit of time to finish up and then we'll go to questions. Merci beaucoup.

[Carl Braun]

I'll skip to the conclusion. Thank you.

Rather than focusing on achieving objectives that promote first nations self-sufficiency, economic development, and political autonomy, it's quite evident that the government focus is to merely meet obligations under agreements. This appears to be the case with other land claim agreements, comprehensive or specific, across Canada.

The government's lack of human and financial resources allocated to the entire TLE process displays their ability to implement as resources permit. Government focus on risk and liability, dictated by non-transparent government policies and practices, will eventually transpire in the implementation phase of any land claim agreement settled in Canada.

Canada must look beyond their four-year ministerial commitment and keep the full constitutional obligation in mind. This four-year commitment is narrow in scope and targets only 120 parcels, or 30 parcels per year for four years. These parcels have been in the system for quite some time and are considered the easier land transactions. Looking beyond the four-year commitment will require a longer-term, fully resourced implementation plan that includes 260 parcels with third-party interest or other encumbrances on them.

The bottom line is that adding land to reserve takes far too long. Canada must recognize this and make key adjustments to policy in order to remove systemic issues. Any proposed policy changes to add land to reserve must foster first nations objectives, such as economic development initiatives, and look to reducing time in adding land to reserve.

In comparing land development projects with first nations in B.C., it is estimated that if 1% of TLE lands in Manitoba are developed by 2023, TLE first nations could realize $4 billion in investment, $87 million in annual property tax revenues, and $40 million in annual servicing costs.

Our recommendations are to re-evaluate resources required for implementing TLE and to develop a new policy or approach and explore options and commit to that new approach, with first nations input. Also, Canada must commit to and ensure that there is a fully resourced implementation plan and continue with a centralized tracking/monitoring system to monitor the progress of implementation.

I'll finish with that.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Braun.

For the benefit of members, Mr. Braun referenced the submission that he made. It was sent to the clerk, but unfortunately not in time to get it translated and made available today. That will be done. You will get copies of that in the days ahead.

Thank you for your presentations, Mr. Braun and Chief Nelson.

We will now move on to members' questions.

Let us start with Mr. Bélanger. You have seven minutes.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chair.

I thought I had missed more than I actually did, but I want to make sure I have the numbers straight.

Mr. Braun, how many parcels of land have been selected by the nations for transfer? Is it 480? Was that the number I heard?

[Carl Braun]

Yes.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

In the four-year cycle we're talking about, there are 120, so that leaves 360. Have they at least been started?

[Carl Braun]

Yes, they've all started. They've all been put into the process. I guess an accurate picture would be that we have converted 86 of the 480 selections to reserve status.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I don't know if I'll pronounce this properly, but is Kapyong one of the 480?

[Carl Braun]

It's not one that has been formally selected at this point.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

It is not one of the 480?

[Carl Braun]

No.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Well, okay, yet it's become a very.... Are you at liberty to speak to that one? Can someone speak to that one?

[Chief Terry Nelson]

Treaty No. 1 is the one that's in court right now on Kapyong. Actually, we will be coming up to court on May 20 and 21. One of the reasons, of course, is that Treaty No. 1 does have outstanding TLE agreements. There are two separate groups here. There's Treaty No. 1, which is seven first nations that have the 10.7 million acres of land, including the city of Winnipeg, and there's the TLE committee, which has a separate group and represents 19 first nations.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I must admit, I have an interest in that file, but I suspect we're a little bit hamstrung in terms of being able to talk about it. It's going to court on May 20.

To what extent are you free to speak of it now?

[Chief Terry Nelson]

We're free to speak to the issue. I think our clear position, as Treaty One, is that the crown clearly, in signing the treaty land entitlement, recognized that they had an outstanding lawful obligation from the 1871 treaty--namely, the reality of the 160 acres per family of five, which was presented as the land quantum that they would reserve. That was the minimum amount of lands supposed to be in place in 1871.

There are two processes here. There's the TLE land that was supposed to be in place in 1871, which the crown failed to do. They've actually recognized that legally, under TLE, signing the TLE agreement, that, no, they did not do what they had said they were going to do.

Then there's the additions to reserve policy, which the Department of Indian Affairs tries to stretch out and make a career out of.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

They do that very well, do they?

[Chief Terry Nelson]

Yes, they do.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

The reason I have an interest is that there's a similar situation in the riding I happen to represent. National Defence has declared surplus a piece of land that they were hoping to transfer to the Canada Lands Corporation for eventual disposal or sale or development or whatever. The Algonquin Nation has indicated, whoa, that's part of the land claim they have.

Were there any discussions with the government? Was there refusal? Why did you feel that you had to end up in court?

[The Chair, Conservative, Bruce Stanton]

Mr. Bélanger, perhaps I could just interject here.

The topic of the day is specifically around the Auditor General's report 2009. I appreciate that there are linkages here with respect to TLEs, but we are getting into an area that might be unavailable for some committee members to speak on the record about. This issue is before the courts. I would just ask that we try to do our best to confine the content of the questions and presentations.

I would say as well, Mr. Bélanger, that we won't take your time away. I think the chief wanted to get in on this as well.

Please carry on.