Indigenous and Northern Affairs Committee on Nov. 24th, 2011

[Andrew Beynon]

Maybe I could take a bit of a broader stab at what you're suggesting in making comparisons to health care wait-time strategies.

We do recognize very strongly that fundamentally important opportunities will be lost, when there is too much in terms of waiting times or delays. To some extent, it's endemic with an Indian Act system, as I said earlier, where you inevitably have the department combined with the Department of Justice carefully trying to look at the risks of particular transactions, but what do we have in terms of strategies going forward?

One is the expansion of the FNLM regime. Particularly for communities that want to break free from that Indian Act system and have very complex or high quality economic development opportunities, it's an avenue to break away from that.

Two, on the land-use planning activities that I talked about before, unfortunately, in the past there tended to be a focus on just one particular transaction, which was a bit haphazard in terms particular economic developments. By taking a step back and having high quality land-use planning, and knowing the areas where lands are sensitive or where they need to be cleaned up, or where roads are going to go, where infrastructure is going to go and that kind of thing, it actually paves the way for responding to an economic opportunity much more strongly, which should reduce, to some extent, the timing.

Beyond that it would just be about working as much as we can in partnership with first nations to build that capacity, and with the institutions to build their own capacity to try to drive those times down.

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

What would be the average time?

[Margaret Buist]

It can be a year for a designation. Again, it's like the ATRs in that a piece has to go on at the first nation level first. One of the key challenges for a first nation in a designation is to get community acceptance through a vote. It usually always has to go to a second vote because of the number of people who live off reserve and don't participate in the vote. We require a majority of a majority under the Indian Act. Another piece we're examining is to see whether or not that is truly necessary, because that can delay a designation of a piece of land well over a year while they go through a voting process before it even gets in the door of the department.

That is one example of the types of delays we are facing, and you heard us talk on Tuesday about the delays in the additions to reserve processes all the way from the first nation piece of that process through to the department.

[Andrew Beynon]

I would just add that you might remember the testimony of the FNLM chiefs, where they showed that dramatic contrast in speed. Necessarily when you go through the departmental process, which includes the designation of lands, you're typically a year or more in terms of timeframes, and the chief spoke about a much more rapid decision-making process internally and approval process by the communities themselves.

There is no way that we could re-administer our designation process to be of that speed.

[Margaret Buist]

No, and even in the registry, land management, first nations have electronic registration. They can register their documents instantaneously. Within a day it's in the registry. Under the Indian Act it has to go through the regional office. The documents are mailed to headquarters. It takes weeks.

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

Regarding your wait-time strategies, do you have enough people doing this?

[Margaret Buist]

As I mentioned, we have 200 who just do the lands piece, not even the environment piece, on reserve in the department. We have quite a number of people doing it. It's the systems they're administrating that we're examining very carefully to look for efficiencies.

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

In terms of capacity in the first nations to be able to have a high-quality application at the beginning, do you think there's enough emphasis on improving that?

[Margaret Buist]

There's a real need for capacity for land managers on reserve, for example. You heard me say that in NALMA, there are 106 first nations members. That's one-sixth of all first nations. They have to go to the University of Saskatchewan to be educated, and that means they're coming from the Atlantic provinces to B.C. It's difficult.

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

Is there any distance learning for this?

[Margaret Buist]

There's a proposal for changing the way that education is administered to expand it to beyond just that one particular centre. We're taking a look at that possibility.

I must say there's definitely a need for it among first nations, as you've identified. There are lots of first nations who don't have land managers. There's turnover. Someone goes through the program and move on to another position or move off the reserve. There are definitely capacity challenges for first nations just in the Indian Act regime.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Bennett.

Mr. Rickford for seven minutes.

[Greg Rickford, Conservative, Kenora, ON]

Thanks, Mr. Chair. These are all great questions. I want to say from the outset that we're hearing a lot of great questions today, and I appreciate your allowing witnesses to answer irrespective of which side the questions come from.

I agree with my colleagues that there's an incredible amount of information we need to continue to develop at the departmental level, and I can appreciate, Margaret, having been a lawyer myself, the ongoing need for the government to appreciate and understand what steps they can take and to refine the steps for approval when these requests come from first nations. I was involved in vesting trusts on behalf of first nations and, of course, there are requirements for reporting in the Gazette, and there are national media centres where these sorts of notices had to go across the country. It can take some time, so I have an appreciation of that.

You mentioned a federal framework for aboriginal economic development. One of the four strategic priorities is enhancing the value of aboriginal assets. This is something we want to learn a little bit more about, and certainly around community assets. I heard loudly and clearly that we have to move at the speed of business but also balance all of these other interests around the sustainability issues, infrastructure, the environment, etc.

How are we building a modern land resource management regime? What are the specific characteristics of this, just very briefly?

[Kris Johnson]

It's a good question, and you're right that I did touch on it earlier. So thanks for bringing it up again.

[Greg Rickford, Conservative, Kenora, ON]

I want to pull some of this stuff out. Your speeches are great. I love the decks, but I think this stuff has to go on, so that when we review this it will be very clear.

[Kris Johnson]

Absolutely.

In line with the other elements of the federal framework for aboriginal development—and here you talked about enhancing the value of aboriginal assets—I would signal two key assets in any first nations community. One is the people themselves, for very obvious reasons; and the other is the land and resource space. Through that framework we really do seek to align our investments with those economic opportunities to better manage the business and community assets and create a more modern and useful lands and resource management regime. All of those together will help enhance the value of the key assets I mentioned.

Andrew has already touched on this, but do have a lot of work under way right now seeking to expand the first nations land management regime, which does respond to so many of the challenges inherent in the Indian Act. We did the engagement process last year that I talked about, which gave us some good input on how to align our economic development programs with the realities of land management on reserve. As we talked about with this committee earlier this week, we're looking at how to improve the additions to reserve processes, and we're also analyzing on a continuous basis options for improving land tenure on reserve. Those are just a few examples of a lot of work that we have under way.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Kris.

I'm going to have to go back to the First Nations Land Management Act, because I feel like I'm going to have to go back there again at some other time down the road. I think that's always going to happen. When we take your information, we apply it and we review it.

I've come to a couple of questions, if you'll permit me.

In talking generally about the changes being planned for first nations land management, Andrew, this piece of legislation, as you said before at this committee, is now more than a decade old. I think a good part of its success depends on the inputs and the experience of first nations communities with land codes in force—and you've said as much. We've talked about this consultative process that you go through. I know they've proposed amendments to the act.

If these proposed amendments would strengthen the regime, how would they do it? I know you've gone over some of this, Andrew, but list them for us. I may have some residual questions, and certainly a brief description of each may be applicable.

[Andrew Beynon]

Sure. You're quite right that lessons have been learned even with the success of the regime over the years. Those who work with it every day, the first nations themselves, have had some very good ideas for us in terms of potential legislative improvements.

With some minor refinements, not a radical overhaul and not major changes to the legislation, you could actually achieve several things. Examples of what they have raised with us are expediting the process to enact environmental laws. You may remember that we talked about this before. Within the FNLM legislation right now, there's a requirement, first of all, to establish an environmental management code before you have the authority to make environmental laws.

From the experience or difficulty in concluding those agreements, one of the ideas being discussed is just to eliminate that procedural step—which isn't common to other self-government authorities—and rely upon the fact that the legislation will still dictate a strong environmental protection standard. That's just a procedural step that has been shown to be a hurdle and could be removed.

Excluding some land from a land code, when it's uncertain that this particular land forms part of a reserve, is another. One of the things that we've seen and that operational first nations have noted is their experience in moving from the Indian Act into the FNLM regime. That transition is very important. And here it's right to build the right capacity for FNLM. It's important to get the operation off the ground as quickly as possible. The unfortunate thing is that in many situations, there are historic issues around, for example, the boundaries of the reserve and questions about particular parcels of land. If you can address that and make it possible to turn on the FNLM regime and leave those land refinement or land survey issues to be addressed at a subsequent time, you will find the transition to FNLM much faster and smoother and more effective.

Removing some uncertainty as to the date that land codes come into force is another. It's a minor technical amendment, but again an important one in terms of speeding that transition to turning on the FNLM regime.

Then I also have some thoughts that the operational first nations have raised with us. There's a schedule to the act that lists first nations. Some of the first nations that initially expressed an interest in participation have subsequently decided not to—and that annex accordingly is a little out of date and a bit confusing to an outside reader who picks it up and says, “Okay, so this first nation is under FNLM”. Well, they're actually not.

As I say, these aren't seismic shifts, but they are important for moving ahead effectively with the legislation.

[The Chair, Conservative, Chris Warkentin]

Okay, thank you very much.

Ms. Duncan, for five minutes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

As I am sure my colleague across the way can attest to, time flies on this one. We almost need you here for a whole week and then we can fully understand.

I apologize that I don't have the Indian Act here. We should probably start having some of the statutes here so we can reference them. Indeed, that might make things more complicated.

[Greg Rickford, Conservative, Kenora, ON]

Agreed.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm trying to understand what happens under the Indian Act compared to the more “modern” approaches.

In the Indian Act--and I'm presuming that's where this is--when the chief and council seek a delegation to a corporation to sign up for land corporation transactions, do they have to have the consent of their membership to do that?

[Andrew Beynon]

We may need to get back to you on that one.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

That's okay. I've got other questions.

[Andrew Beynon]

But just quickly, I don't think the Indian Act is designed to have that delegation. It's very brief on land management—