Thank you very much, Mr. Chair and members, for inviting us back today.
As the chair said, my name is Margaret Buist. I am the director general of the lands and environment management branch in Aboriginal Affairs. With me today is Andrew Beynon, who has been here before, as you know. He's the director general of community opportunities. Also here is Jolene Head, the director of lands and environment operational policy.
Andrew and I both had the opportunity to speak with you last week regarding land tenure and land registration on reserve. Today we're going to take you through the reserve creation process, its legal origins, and departmental policies that relate to it, and we'll try to describe some of the issues and challenges faced by various stakeholders with respect to reserve creation. Finally, we'll highlight some of the achievements and milestones related to reserve creation by the department.
Lands have been added to reserves over time for many reasons, including: as part of historic treaties; to settle outstanding claims; for exchanges of land due to the expropriation of existing reserve lands; to accommodate expanding reserve populations; and more recently, for economic development purposes.
Canada currently has a decade-old policy to guide its decisions on when and how lands will be added to existing reserves or when new reserves will be created. The policy and the associated procedures are time-consuming, expensive, and complex. Many issues have been raised, not only by first nations, but by other parties, including the Office of the Auditor General, which in 2005 and 2009 criticized the government for the delays and costs involved in the additions to reserve process.
Aboriginal Affairs has responded to these criticisms by revisiting the 10-year-old policy, by establishing a joint working group with the Assembly of First Nations to examine policy changes, and by creating changes internally to our own procedures and systems to try to make things more efficient. The changes have begun to show progress.
In the last five years, significant gains have been made in adding lands to reserves. Since 2001, over a million acres of land have been added to reserves across Canada, with more than two-thirds of that amount happening in the last five years. More is yet to be done, and our department is committed to working with first nations to continue finding improvements to existing systems. Challenges will continue as new claims are being negotiated in the prairie provinces and Ontario, which are likely to greatly increase the amounts to be added to reserve.
For a brief refresher on what a reserve is, I'll review some background information to set the stage for understanding the challenges of adding to reserve.
A reserve is a tract of land that has been set apart for the use and benefit of a band, the legal title to which is vested in the crown. Title is held by the federal crown, and the federal crown has the authority to create reserves. The land, when set aside as a reserve, is for the benefit of the entire band, not just one individual.
Reserve creation is the process of setting apart land by way of royal prerogative; it is not found under the Indian Act. There's a long history of reserve creation, and it begins with the Royal Proclamation of 1763. There are two types of reserve creations.
The first is called additions to reserve; you may hear the acronym “ATRs”. The granting of reserve status to a parcel of land that is added to an existing reserve is an ATR.
A new reserve is the granting of reserve status to land that is not within the area of an existing reserve community. According to departmental policy, additions to reserve proposals are for land located in the general geographic area of an existing reserve so that services and infrastructure can be extended at little or no cost. New reserve proposals are for land that is not in the geographic area and will therefore be more costly. As a result of that, new reserves are not as common as additions to reserve.
For the three prairie provinces, additions to reserve are reinforced by optional legislation called the Claim Settlement Implementation Acts. These allow lands to be set aside as a reserve by ministerial order rather than executive order of the Governor in Council.
These acts also provide for pre-reserve designations of land, which allow the land to be developed in advance of the addition to a reserve, so as soon as it's approved, the development can be under way.
In addition, in the three prairie provinces there are treaty land entitlement framework agreements that have been negotiated on a tripartite basis among Canada, the province in question, and a first nation. These are specific claim settlement agreements in which first nations are compensated for lands owed to them under historic treaties that blanket the prairie provinces. Lands are acquired through this process and converted to reserves in accordance with the federal additions to reserve policy, which I'll now talk to you about.
Under the policy, any proposal for an addition to a reserve or the creation of a new reserve must fit into one of three categories. These categories are: legal obligations, so these are obligations that result in law from treaties or claim settlement agreements; court orders, and those are not as common; and other legal reasons, such as the return or exchange of lands appropriated under the Indian Act.
The second category is what we call “community additions”. That encompasses needs due to community growth for housing, schools, economic projects, or infrastructure enhancements. This category also includes the return of unsold surrendered land.
The third category is new reserve creation or other reasons. All proposals that don't fall within the first two categories come within this section of the policy. Examples include new reserves for landless bands, band relocations, and economic development. This is the most restrictive category under the policy, and it requires extensive justification in order to add lands to reserves.
There's also a fourth category, which is currently under discussion with the AFN. As you may know, the new Specific Claims Tribunal will have the power to order compensation for successful claims. It's anticipated that this compensation will be used to purchase lands added to reserves. This new category that's being developed will allow for this new type of additions to reserves.
Let me now take you through some of the issues and challenges faced by all of the parties involved in an addition to a reserve. Those parties include first nations, municipalities, provinces, and, of course, Canada. These issues and challenges range from tax loss, consistency in land use and zoning, complexity in the negotiation processes, and the time and resources involved in reserve creation.
There are many positive examples of reserve communities that contribute to the quality of life of neighbouring municipalities, but there's still an element of resistance to the notion of creation of new reserve lands. First nations, our government, and provincial governments must work together to explain the benefits and necessities of reserve creation so that proposals for reserve creation can be accepted and understood by all Canadians.
Municipalities often express concern about the loss of taxes when a reserve is created. First nations are required to negotiate a tax loss adjustment to compensate for the effect of a reduced tax base and the reduction in municipal services. This, however, is not meant to compensate the municipality fully or indefinitely for the gross level of lost taxes, and that remains a concern to municipalities.
Another concern raised by municipalities is the need for consistent application of land use planning and zoning on adjacent reserve lands. Once lands have been added to a reserve, the first nation has the authority to determine how to use their reserve lands according to the needs and interests of their own community; municipal jurisdiction doesn't apply to the reserve lands anymore. However, as a prerequisite to the approval of the addition to a reserve, the federal policy requires that first nations need to negotiate joint land use planning and bylaw harmonization as much as possible.
Another issue and challenge is the negotiation of municipal service agreements when these are required for reserves that are adjacent to municipalities. There are also negotiations related to the purchase of the land to be added to reserve, of course, and there are negotiations needed with third parties that may have interests already on the land that's needed to add to reserve, such as easements, leases, and permits. All of these negotiations can contribute significantly to the delays experienced in the reserve creation process.
There are no formal dispute resolution mechanisms in place in the federal policy to assist the parties when negotiations break down. Municipalities have expressed concern that first nations and the department can proceed with the reserve creation despite their objections. First nations have expressed concern that municipalities and third parties that refuse to negotiate agreements in good faith can hold up for long periods of time the addition to reserve process.
A final challenge is cost of reserve creation. The cost of purchasing land at fair market value can be prohibitive for first nations, particularly when they're looking at urban or resource-rich lands to add to reserve and they have only a fixed amount of compensation from the claim settlements with which to purchase these lands. The cost of completing all the necessary pieces that go with additions to reserve, like surveys and environmental site assessments, is very high, even more so when land is remotely located.
These issues and challenges have a significant impact on the level of resources required and the length of time it takes to add land to reserve in Canada. We're working with the Assembly of First Nations in tackling these issues head on and revisiting our federal policy.
More specifically, to address these challenges, the department and first nations have begun to address them directly. For example, there's an organization called the National Aboriginal Lands Managers Association, or NALMA, that trains land managers on reserve, and together with the department they created an ATR tool kit for first nations at the first stage of adding lands to reserve to assist them in developing their proposals. We've also implemented a national tracking system, an IT system, to monitor the progress of proposals and as a project management tool to assist us in helping first nations.
As I mentioned earlier, we're also undergoing a complete review of the ATR policy in chapter 10 of the “Land Management Manual”, and we're examining our internal processes that have developed over time to look for efficiencies. We're developing further tools to assist first nations at the early stage when they're developing their proposals and negotiating with municipalities over service agreements or with third parties over their interests.
Finally, as I mentioned, we have a large of piece of work going forward with the Assembly of First Nations to explore the policy changes for ATRs, which I've described to you here today.
As I indicated at the beginning, over the past 10 years over a million acres of land have been added to reserve. In addition to the treaty land entitlements, specific claim settlement agreements since 2006 have provided the potential for a further half million acres of future ATRs. When fully implemented, the treaty land entitlement agreements in the prairie provinces will result in the conversion to reserve of over two million acres of land in Saskatchewan and over a million acres of land in Manitoba--more than twice the size of P.E.I.
Approximately 61% of the land selected by first nations in Saskatchewan has been converted to reserve, and about 43% in Manitoba. More agreements are currently being negotiated in Saskatchewan, Manitoba, and Ontario, which will add even more land to reserve.
In conclusion, the additions to reserve respect Canada's legal obligations to first nations and they provide for additional land for much-needed housing, infrastructure, and economic development opportunities. Our department is committed to working with first nations to meet the challenges of adding lands to reserve while continuing to explore other avenues for land tenure, which you've already heard about, under legislation other than the Indian Act, such as the First Nations Land Management Act.
Thank you.
