Indigenous and Northern Affairs Committee on Nov. 22nd, 2011

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair. My questions are through you, Chair, to the witnesses.

Thank you again for being here. The information you're providing this committee is extremely important in order for us to understand all the aspects of aboriginal affairs, and particularly the land management process.

First, what else has the department done to address key recommendations of the Office of the Auditor General in the 2005 and 2009 reports regarding the additions to reserve lands and that process? Could you help me out with that?

[Jolene Head]

In addition to the minister's commitment outlined earlier in Margaret's speech, the department has implemented, as she also said, the national ATR tracking system. NATS is what we call it. It tracks all ATRs and provides up-to-date statistics on the conversion process.

As well, the Manitoba and Saskatchewan regions, where the bulk of our ATR submissions are, are continuously working with first nations to develop action plans for the land selections, by way of workshops and regular meetings with the first nation communities.

Our department as well, jointly with NALMA, as Margaret had outlined, has developed the ATR tool kit and subsequent training, which has been under way for the last two years, so that first nations can better understand their roles and responsibilities in the ATR process, as well as those of all of the other stakeholders, and are better able to promote consistency in the approach to the transactions.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you.

That's something interesting. You talked about the ATR tool kits. I'm wondering if you have some quick examples of what it might look like in the tool kit.

[Jolene Head]

The tool kit consist of a binder. It's a working tool for first nations. There are checklists and examples of best practices from across the country to help first nations know what types of activities they have to complete for an ATR proposal. For example, they would look at survey requirements, environmental site assessments, and title searches and those sorts of things.

NALMA developed those tools based on consultation with the first nations and the department on what is required to complete an ATR proposal. That is what's in the tool kit. It also has a bit of a diary, so they can write in their remarks and be up to date on where the file is if somebody else has to take it over.

[LaVar Payne, Conservative, Medicine Hat, AB]

That sounds like a very good tool kit to me.

How is the department responding to the creation of a specific claims tribunal with regard to ATRs?

[Andrew Beynon]

This may be something that I'll comment on.

The opposition critic, for instance, raised a question of some cutoffs and specific claims issues. Back in 2009, the government announced its “Justice at Last”, very much focusing on trying to increase and drive more specific claims settlements. It was recognized that it was only one step to resolving the specific claims and negotiating the settlements. Very, very often, the specific claims settlements contemplate additions to reserve, expanding the reserve land base, as part of the overall settlement.

What the parties recognized was that it's very important to make sure that the implementation of the promise of the specific claims settlement can be delivered. So right up front, working with the AFN, we all recognized, based on experience, that it was important to invest in making sure the additions to reserve processes were as effective as possible, or else the specific clams settlements would only carry you to a certain point.

So with an eye to implementation, beginning back in 2009 we've been working with the Assembly of First Nations, which has a lot of experience with specific cases of additions to reserve across the country. At first, the lens of that work was very much the Justice at Last...the expectation, for example, that the Specific Claims Tribunal would make orders and that we would be dealing with additions to reserve in the context of specific claims settlements. But I think fortunately, that work with AFN...at least the officials involved would like to see it expand to take in the opportunity to improve additions to reserve more generally.

I think that's the great promise of it. One is the possibility of improvement to policies and procedures—purely process steps. Two, there may even be the potential for perhaps some legislative changes that could also assist with additions to reserve.

Margaret mentioned in her opening remarks the fact, for example, that there is legislation: Claim Settlement Implementation Acts that apply in some of the western provinces. We're not sure where the work with the AFN will necessarily end, but for committee members' interest, there could potentially be legislative improvements that would help us with the speed and cost of additions to reserve.

[LaVar Payne, Conservative, Medicine Hat, AB]

I believe that the things you have agreed on with the AFN will certainly help in the process.

I just have another question in terms of the federal ATR policy. In particular, I'm wondering a bit about the three steps. You talk about the legal obligations on page 6 and community additions as well as the new reserve creation. I was looking at numbers two and three, and in particular the community economic projects.

Under number three, of course, I believe you said it was much more difficult in that particular clause. But you have economic development reasons, so I'm trying to figure out what the difference is between “community economic projects” and the economic development reasons. Perhaps you can help me out with what that difference really is.

[Margaret Buist]

It's a fine distinction, but in terms of the community economic projects this is something the community would be doing themselves. The third category, economic development, would be a third party wanting to develop a mine on a reserve, for example. A community economic development project would be a shopping mall that the community was doing itself, as opposed to with a third party developer.

[LaVar Payne, Conservative, Medicine Hat, AB]

In the example of the community one, there would be no third party involvement?

[Margaret Buist]

That's correct.

[LaVar Payne, Conservative, Medicine Hat, AB]

Okay.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Payne.

Mr. Genest-Jourdain has five minutes.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Before considering adding land to a reserve, what attention do you give to the environmental site assessments on the existing reserve?

[Margaret Buist]

Before adding land, the condition of the land has to be assessed. This is expensive and time-consuming, but it is absolutely necessary before crown land can be transformed into reserve land.

[Andrew Beynon]

It is necessary because when adding land, as the clerk mentioned, we often begin with lands that are provincial crown lands. It can happen that the province has already developed land and that there have been environmental problems. Before they become federal land and become, in part, land that will be assigned to a first nation, we want to resolve or at the very least assess environmental issues.

There are two things that are important and need to be done. Firstly, we have to know the environmental status of the land. We want to avoid situations where we receive lands without knowing about their environmental condition. Secondly, as Ms. Buist and Ms. Head mentioned, often the first nation needs that land. As a first nation, it wants to know what the environmental condition of that land is and what solutions were brought to existing problems.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Concerning reserve lands that are already occupied by communities, what importance to you attribute to land management that has already occurred? In other words, aside from lands that are being considered for future use, are the lands that are already a part of the reserve's territory taken into consideration from the environmental perspective?

[Margaret Buist]

The department already has programs to remediate reserve lands. However, there is a long list of projects given the funds that are available for that work.

As for additions of land to the reserve, that land may have been used by the province for industrial activities. The members of the community generally want to live on these lands. And so it is necessary to clean the land to make it comply with residential, not industrial, standards. That is a problem. It costs a lot of money to reclaim this land.

[Andrew Beynon]

I would add that the issue of reclaiming or improving existing reserve lands falls under a broader federal program. All federal land is considered, be it airports, Environment Canada sites, reserves, or land located in the Canadian north. National priorities are analyzed.

[The Chair, Conservative, Chris Warkentin]

We have about a minute left, if anybody would like to take it.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I have a quick question.

It's all very interesting. There's a lot to absorb and appreciate. Additional material would be helpful.

You mentioned in your presentation, Ms. Buist, that in some cases where lands are being added, there may be allowance for development before the lands are added, and presumably before there is a land code. Can you tell us what law those developments are being governed by? Are they under the Indian Act? What governs those developments?

[Andrew Beynon]

Let me take the start of this. It's a very good question that you ask.

The issue is this. Under the Indian Act, you can have a designation of lands for leasing purposes. That's something we talked about in an earlier presentation.

The fascinating thing about a community vote to designate lands to allow them to be leased for various purposes is that the language of the Indian Act confines that process to a reserve. Many communities that want to deal with economic development opportunities and target particular lands for additions to reserve can't technically do the community designation. You can't have the community vote and prepare for the lease until after the land is added to a reserve. That creates a huge timing problem.

Another example of this is found when you have some existing third party interests on land that you'd like to see added to reserve. For example, there may be a strategically valuable parcel of land that has a public utility right-of-way running right through it. The first nation may say: “We would like to have that land added to reserve because it's very strategically valuable and we don't want to remove the public utility right-of-way. We recognize that it may benefit us or benefit the Canadian public.”

The problem is that the utility right-of-way is created under provincial legislation, not under the Indian Act, and again you have a gap whereby you can't have the designation or the authorization under the Indian Act until after the land becomes a reserve. You may jeopardize the existing third party interest in that way.

What Margaret was referring to in her opening remarks is that the claims settlement legislation that has limited application in western Canada created an authority for the community to have a pre-reserve designation of the lands, so that even before the lands are added to a reserve you can turn to the community and have a vote asking whether there is agreement that there should be this particular interest on what are going to become reserve lands.

It's a very effective tool for doing two things: one, responding to community aspirations for lands that may already have some existing interests on them; and two, working with municipalities, provinces, and third parties such as utility authorities to deal with a parcel of land and not put at risk existing interests.

What's interesting about it, perhaps for you as parliamentarians, is that the claims settlement legislation only has limited application right now. That pre-reserve designation opportunity doesn't apply everywhere.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

[Andrew Beynon]

Ms. Buist?

[Margaret Buist]

I just want to add--

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