Indigenous and Northern Affairs Committee on Nov. 17th, 2011

[Carolyn Bennett, Liberal, St. Paul's, ON]

And you're using that term again, as my colleague asked about.

[Andrew Beynon]

Yes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

A lot of first nations are very suspicious of what it means.

[Andrew Beynon]

I'm not sure I would say it's a term that I've yet heard causes harm.

But very quickly, when we have a conversation, if the focus is on trying to move ahead in a way that allows for sustainable economic development and addresses the concerns of the first nations as to their vision for the future of their community, and if it's a question of potentially using a tool such as the First Nations Commercial and Industrial Development Act or first nations land management legislation or of trying to develop new options and different ways of proceeding, I think it's a conversation and an evolution or change that I've seen over the past generation and that, I think, will continue and move ahead.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Are you saying that modernization to you means...? As my colleague said, many people feel it is a bit of an obsession about fee simple. Are you saying that it is about using creative means to get out from under and around the Indian Act?

[Andrew Beynon]

These are very much legal and proper means. But yes, I see lands modernization as a very wide umbrella, not necessarily just one potential option for some first nations of fee simple

We know there are many first nations, for example, that have concerns about fee simple and don't want to pursue that option. When I say “lands modernization” I see it as many different ways of moving beyond the Indian Act, and not necessarily as that one issue.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Bennett.

Mr. Clarke, you have seven minutes.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chairman.

I'd like to thank the witnesses for coming, and I thank you for your words. What you say is appreciated. In listening to the opposition talk about the one word, “modernization”, I would say that I hear from my chiefs of first nations on this, and that hearing non-aboriginals make a big deal over the word “modernization” offends me, as an aboriginal first nations person.

What first nations are really asking for is not a handout, but a hand up. It comes right down to economics. Economics is the key to what we're speaking about today. Hearing some non-aboriginals talk about modernization, I would respond that it's just a word. It's just about helping first nations and aboriginals move ahead.

Many first nations communities across Canada have a deficit in land use planning. There are many positive impacts happening. For example, when you look at Saskatchewan, the Dakota Dunes Casino and golf course are progressing very well using this model.

I understand that the department has initiated a pilot project to invest in strategic land use planning to test different approaches. This is great or good news, but it could also have some dampening effects on some others that may not be ready to go to that point.

My question is, what work is being done to address the issues of land planning on reserve?

[Andrew Beynon]

I'll make a first response and ask my colleagues to add as well.

The reason we're trying to do it as a pilot project is that there are a few first nations in particular that have approached us and said they are very interested in trying to ensure there is high-quality land use planning. We want to work with them on what is a fairly novel issue to make sure that we're doing it the right way. Then, for those that are interested, we would see potential expansion of it across the country.

I'll give you an example. There is one first nation—I believe I'm going to be meeting later today with the chief and representatives of this first nation—that has had a recent addition to the reserve. These are lands that have not yet been developed. What they're interested in doing is making sure that, to the extent they can, they have high-quality development of those lands—partially in terms of economic development, but also in terms of conservation—and properly deal with the residential as well as the commercial land, and then all the associated utilities and road rights-of-way, and so on.

The good thing about working with them on this is that we have an opportunity to deal with some land that hasn't been developed yet to try to assist the first nation in deriving the right kinds of benefits from that land—not just economic development, but also appropriate conservation and proper management of the land.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

We're seeing that in the southern part of Saskatchewan, just north of Regina, where first nations have potash interests right now and are looking at securing partners from the industry to develop those—and also, I believe, foreign ownership. They are looking at Environment Canada and its standards as well to help progress this one development, which is going to have billions of dollars' worth of ramifications for just that one community or a group of four communities. So that is huge. Economic development is a key point here and will probably lead to aboriginals superseding the non-aboriginal groups, once they all get on board.

I look at Saskatoon, for instance, and the University of Saskatchewan, which holds land parcels around the school. They created a box store mentality, developing a lease with the major box chains and creating the property there. They have a lease value of up to 99 years. The university still holds that property.

Could the first nations have that same approach available to them for planning development?

[Andrew Beynon]

Yes, I think that's a good example that you've raised. The interest that I've heard is in trying to look less at one single economic development project but at a range of economic development activity.

I'm not entirely familiar with your University of Saskatchewan example, but it resonates with me because it's a matter of not just responding to a particular business opportunity on a small parcel of land. It's about having a sense of what the whole, the combination, could drive at and how each one can connect and feed off of each other to maximize the benefits.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

From my understanding in talking to some chiefs, they prefer the tenure system established under the First Nations Land Management Act.

As a quick segue here, since fee simple tenure is common off-reserve and we're changing to the fee simple system, I'm very curious about this reserve land being an effective way to address some of the changes with the current tenure.

[Kris Johnson]

Perhaps I'll respond to that.

There is a proposal, in its early exploratory stages, by the First Nations Tax Commission examining that very issue, whereby a limited number of interested first nations could grant fee simple title to some or all land parcels with a reversionary right to the land to the first nation, so that no matter who owns the land, the land as a whole would be under first nations jurisdiction.

However, as you rightly noted, there are many other first nations that prefer land tenure rights as they currently are, or as they would be under the First Nations Land Management Act, whereby lands are transferred by Canada and then bands transfer the leasehold interest rather than fee simple title to individuals and groups.

For economic development, the key issue is security. Land tenure is secure when a person holding an interest in land can predictability assert and enforce their rights to the land. Private sector investment seeks that certainty, simplicity, and consistency in order to invest in and develop the land.

While off-reserve land tenure provides that security, there are many different ways that land tenure on reserve could be reformed to accommodate the unique needs, interests, and rights of first nations as a whole, or individual communities and their vision.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Clarke.

Mr. Bevington for five minutes....

[Dennis Bevington, NDP, Western Arctic, NT]

Thanks, Mr. Chair, and thanks to the presenters.

There's a principle that we should talk about when we talk about land in aboriginal communities. In the region I come from, there's a very strong sense of collective land ownership that is a very strong part of the cultural values of first nations, as I understand. There's a great sense of their wanting no further alienation from the land as well.

When we're talking about land modernization, are we talking about moving away from what first nations have as a traditional collective sense of what land is? Is that one of the fundamental issues that we're talking about here?

[Andrew Beynon]

No, I don't think I would agree with that.

I think that first nations, as they pursue land modernization possibilities, be it an FLMNA regime, or the limited number of first nations that may be interested in fee simple in the future, or other mechanisms, retain a strong culture of maintaining their collective interest in an entire reserve that has been set aside for the entire community. First nations would have the authority, for example, to make sure they can earmark very sensitive lands and say those will not be developed because they're for a very narrow community-oriented use.

It's only where the first nation as a whole comes to a decision and says, for example, we do want to benefit from the commercial mainstream and to engage in some of the economic development and derive the benefits that those create, that they can identify parts of reserve land and say they're going to lease those out. In some communities, they've made a decision that they want a maximum lease term of 99 years because then the community's connection to the land over the long term will be maintained.

In some communities they are considering the potential of fee simple, in that they are saying to themselves that even if some of the land is disposed of to non-members, first nations governmental authority would still be maintained, because the laws applying to those lands would be the laws that are made by the first nation itself.

It's a question for individual communities as to how they want to deal with what I agree is their strong connection to the land and strong communal sense of it, either by limiting the development of those lands or ensuring that the development is only by specific term leases--

[Dennis Bevington, NDP, Western Arctic, NT]

You agree there are extreme sensitivities that come into anything we're doing here when we talk about land modernization?

[Andrew Beynon]

Yes, I do agree.

[Dennis Bevington, NDP, Western Arctic, NT]

Yes, there's no getting away from that.

[Andrew Beynon]

No.

[Dennis Bevington, NDP, Western Arctic, NT]

Absolutely.

I'm just curious about your department. I've spent some time in municipal government, and I'm looking at the roles and at the responsibilities you apply. How many people work with you in your particular branch in servicing all of the first nations on reserve that are applying for these orders in council? You have a fairly large job in taking a band council resolution and getting an order in council on it.

What personnel and what resources do you have to service all of these first nations?

[Margaret Buist]

My branch in headquarters is in charge of the reserve land issue south of 60 and the two reserves north of 60. We perform certain functions in headquarters. My branch size is about 70 people, but we can't do our job without all of the people in the regions.

Each individual first nation will deal first with the regional office in a particular province or territory, when they want to do something with respect to lands, such as an addition to reserve. They work with the regional colleagues. I couldn't tell you how many lands officers there are. There are quite a few in each region. Then the lands issue--

[Dennis Bevington, NDP, Western Arctic, NT]

Could we get those numbers?

[Margaret Buist]

Sure. Yes.

[Dennis Bevington, NDP, Western Arctic, NT]

For the whole structure of what you're doing there, could we just get that presented to us in terms of numbers?