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

[Stephen Gagnon]

Where you have a land claim, the first nations or the groups themselves—including in the case of the Inuit—are responsible for their own views and for making sure their claims are respected. So the Government of Canada has a role right now that may change through devolution. Presumably, the Government of the Northwest Territories will be able to make its own decisions on how it sees the whole package of different kinds of initiatives going on.

[Dennis Bevington, NDP, Western Arctic, NT]

But you're putting forward changes—

[The Chair, Conservative, Chris Warkentin]

Mr. Bevington, your time has expired, and I'm afraid that if I let you go on, it will extend beyond that.

Now we have Mr. Rickford for five minutes.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Folks, we spoke briefly, in one of my colleague's line of questioning, about NUPPAA. This will be a piece of legislation that we're going to deal with in some way, shape, or form in the not too distant future, and I was struck by your words to the effect it would be the final implementation piece for Nunavut land-use planning.

This brings to mind a recent piece of legislation that we dealt with in northern Quebec, called the Eeyou Marine Region Land Claims Agreement. I should remark for the record on the tremendous co-operation, from all parties, in expediting this. Similarly, it was a final piece of legislation that had been going on for some time.

Paula, you mentioned words to the effect that this represented the leading thinking around an integrated seamless land use plan.

We may revisit these questions, if in fact we deal with it at committee at this time, but this particular land claim agreement deals with a number of provisions in the bill that are not reflected in the agreement. They are necessary to complete a sound and robust planning and environmental assessment regime, which is something we take very seriously.

What do those provisions include? Could you highlight those for us?

[Paula Isaak]

Do you mean the provisions that are in the bill but not in the agreement itself?

[Greg Rickford, Conservative, Kenora, ON]

Yes.

[Paula Isaak]

Right. In order to make the legislation as robust as you say, there are some emergency provisions. They allow for emergency activities to take place in situations where there are transboundary projects. There are provisions in the bill to allow for a seamless assessment of those.

There were some inspection and enforcement provisions put into the act that are not specifically set out in the agreement. The agreement, as I mentioned in a previous answer, sets out the process but doesn't set out a lot of the details. So it was important that the bill set out a number of details that were part of the spirit of the agreement and reflect what a legislative process needs to include.

As well, there are provisions around timelines for decisions, which are key. Some of those timelines are timelines on the processes the board undertakes, as well as what the minister undertakes in his decision-making roles.

Those are some of the key aspects in the bill that aren't necessarily in the agreement.

[Greg Rickford, Conservative, Kenora, ON]

I would suspect then, Paula, that in order for this to be a nimble, flexible, responsive piece of legislation, there would also be provisions to deal with transitional and consequential amendments. I'm thinking also of things like public registries perhaps, and notification, and written reasons they may have on that.

[Paula Isaak]

Absolutely.

[Greg Rickford, Conservative, Kenora, ON]

Could you expound a bit on why that is important?

[Paula Isaak]

Yes, those are common aspects of a piece of legislation.

Again, they're not reflected in the agreement because the agreement wasn't written in legislative language. Transitional provisions are important so that there will be a seamless transition from current activities and process to a legislatively guided process. Those are key, and there are always consequential amendments to other pieces of legislation that are required.

[Greg Rickford, Conservative, Kenora, ON]

Thank you for that. That's important.

I could delve into this, but I think in my last half minute or so I'll make the link to the CanNor agency in terms of supporting our broader government objectives and initiatives across the north.

In your view, is this a key legislative framework to the coordinating role that the CanNor agency is in place and positioned to fulfill?

[Paula Isaak]

CanNor, and particularly the northern project management office, is a key aspect of the regulatory improvement initiative. While CanNor does not manage those legislative tools, they certainly can help assist all the regulators who manage that regulatory process and all parties in working through the regulatory processes. They're key partners in implementing all of these pieces of legislation.

[The Chair, Conservative, Chris Warkentin]

Thank you very much. I appreciate the testimony today and appreciate the questions that were asked.

Ms. Isaak, and Mr. Gagnon, we appreciate your testimony today and I' m sure that we'll hear from you again before our study is complete.

Colleagues, I will suspend the meeting now so that we can set up for the next round of witnesses.

The meeting is suspended.

[The Chair, Conservative, Chris Warkentin]

Committee members, I'm going to call the meeting back to order. We do have our witnesses assembling for the second hour of our meeting. The second round of witnesses are no strangers to our committee.

Ms. Buist, Mr. Beynon, and Mr. Johnson, thank you for coming back again on a different subject today—but, as I've assured you before, we'll probably see you again before the committee has done its work. Thank you so much for coming again.

I understand that the introductory remarks weren't translated, colleagues, in time for them to be distributed at committee, but there's been an assurance that the documents will be circulated to committee members once they are out of translation.

We'll turn it over to you now, and as per normal we'll hear from you and then we'll no doubt have questions.

[Andrew Beynon, Director General, Community Opportunities Branch, Department of Indian Affairs and Northern Development]

Thank you. It is our pleasure to be back before the committee today. I was hoping that my wife might actually attend during this lunch session, but she hasn't made it yet.

Today, what we're going to talk about is the subject of land management programs on reserve. We're going to take you through the legal responsibilities associated with administration of reserve lands, describe the programs that have been established to support first nations in managing their lands, and also try to discuss with you as a committee some of the potential trends for the future where we think we would be taking programming.

The first point that I wanted to talk a bit about is lands administration as compared to lands management. There are many first nations that desire complete autonomy in managing their lands, either under comprehensive self-government arrangements or under specific lands authority provided for under the first nations land management regime. However, it's very important to know that there remain many first nations that do not want to terminate Canada's role in respect of lands under the Indian Act. Despite the limitations imposed by the Indian Act, these first nations want Canada to remain involved and consider that Canada owes specific fiduciary obligations related to reserve lands.

Even with those first nations that prefer to have Canada involved with reserve lands, it is important to note that there has been a considerable evolution over the years in the roles and responsibilities of Canada, or this department, and first nations in respect of land management on reserve. As a result, there has been considerable change in the department's lands programs and the importance of the topic today.

At one time, Canada undertook virtually the entire range of land management functions, including a significant role in deciding upon the nature of land development, the terms of land deals to be negotiated with third parties, as well as the administration of those land arrangements. At that time, there was very little role for first nations in the day-to-day decision-making.

Times have changed, even though much of the language of the Indian Act has not evolved and the department's role in lands is now more limited. Internally within the department, we tend to draw a distinction between the department's role in administering Indian Act systems and a significant role for first nations in the rest of land management. An interesting illustration of this type of evolution over time in roles and responsibilities is provided by looking at section 32 of the Indian Act, which provides as follows:

A transaction of any kind whereby a band or a member thereof purports to sell, barter, exchange, give or otherwise dispose of cattle or other animals, grain or hay, whether wild or cultivated, or root crops or plants or their products from a reserve in Manitoba, Saskatchewan or Alberta, to a person other than a member of that band, is void unless the superintendent approves the transaction in writing.

I should pause to say that the superintendent, of course, was an internal departmental official. Furthermore,

The Minister may at any time by order exempt a band and the members thereof or any member thereof from the operation of this section, and may revoke any such order.

The interesting thing is that the minister has issued an order to exempt all Indian Act bands from the restrictions set out in section 32 of the act. So even those first nations that want Canada to administer lands are not subject to this very restrictive example of federal land management and control.

The federal role in administering Indian Act land systems includes such matters as operating the Indian lands registry, operating the computerized systems for collecting revenues, and tracking environmental obligations. In respect of individual land transactions, the federal administrative role includes such matters as signing or executing final leases, collecting revenues under the leases, and enforcing compliance with Indian Act terms.

The broader first nation role in managing lands, even those operating under the Indian Act, extends to such matters as deciding on the extent of commercial and residential development as opposed to the balance with conservation on reserve lands, and leading the negotiation of the terms and nature of land tenure with individuals and businesses. Admittedly in some communities, first nations have chosen to bypass the Indian Act entirely and not deal with the department for land administration or land programs, but in those communities it's very difficult to effectively manage any complex development in this matter.

Even though there has been an evolution of this type over the years towards greater responsibility of first nations for land management, it has to be said that there remain severe restrictions under the Indian Act. Under the Indian Act, Canada is ultimately exposed to potential liability for land transactions, and Canada could, for example, be sued for failing to obtain satisfactory terms of leases or satisfactory revenues under leases. This is a fundamental drawback of the Indian Act system of land management whereby Canada and first nations face different risks and different considerations regarding legal liability, and there is a heavy administrative burden in relation to the land transactions, often resulting in delays.

Just to go back over this, you'll remember Chief Louie's appearance here when he discussed the change that he saw in his community with the FNLM regime. He drew the example of the first-ever chartered bank outlet on a reserve, and described just how frustrating it can be to have the economic transaction and the legal risks second-guessed by the department, when the department is trying to avoid liability for transactions.

Within these limitations of the Indian Act, we recognize that true management of reserve lands can only be done at the community level with input from individual band members. So three broad categories of programs have been developed and are provided to assist first nations in managing their lands: investments in land-use planning, including environmental and economic considerations; capacity and training for individuals involved in land and environmental management; and targeted financial support for key land management transactions and functions. These programs need to respond to the very considerable variations in land use and sustainability challenges faced by first nations all across Canada.

One of the first programs I'll describe is what we typically call RLAP and 53/60.

Several attempts have been made to respond to the diversity of needs. Beginning in the 1980s, two programs were established to assist first nations in participating in the management of their lands. The first was the delegated authority program, which is often referred to as 53/60, reflecting sections 53 and 60 of the Indian Act, which expressly set out the authority of the minister to delegate certain land management powers. Bands that operate under this 53/60 program have broad authority to execute a number of land transactions, including land allotments--as we discussed when talking about certificates of possession before this committee--issuing permits and leases, reviewing rents, and collecting revenues.

Recognizing that many first nations do not wish to have a fully delegated scope of responsibility under one of these formal delegations of authority under 53/60, the department also established the reserve land administration program, which we call RLAP. It's a program that provides support to first nations so they can work together with departmental staff to administer lands.

Another program is what we call RLEMP. In 2002 an evaluation of the reserve land administration program and the delegated authority program concluded that these programs should address a broader scope of land management and not just administration of Indian Act land transactions. The department designed a successor initiative, which is the reserve land and environment management program, or RLEMP. This program, unlike the RLAP and 53/60 programs, invests in the development of first nations land managers and provides for their professional certification. So there's a significant capacity-building component.

The training component of the program is delivered in partnership with the University of Saskatchewan and the National Aboriginal Lands Managers Association. The university courses are designed to give students a general knowledge of key areas of land and environmental management, while the technical training is delivered by NALMA to focus on land transactions under the Indian Act.

Turning to what we talked about with the committee before, the first nations land management regime, each of the three land management programs described so far suffers from this same limitation. They're focused on first nations participation in managing lands pursuant to the Indian Act, whilst the department has to have a significant role under the Indian Act. The risks and the limitations inherent in managing lands under the Indian Act cannot be fully addressed through these programs, and first nations under these programs cannot break away from ministerial oversight and exercise full self-governing authority over land, resource, and environmental decisions.

To truly transfer not only responsibility but also authority for land management, a different response was needed. With this goal in mind, 14 first nations negotiated with Canada the framework agreement on lands management in 1996, which was later ratified and brought into force as the First Nations Land Management Act. As we discussed with this committee on October 6, the first nations land management regime displaces the 34 land-related sections of the Indian Act and grants full authority to first nations to establish their own laws and to carry out the management responsibilities independent of the department.

Now, to discuss the current situation, there are presently 164 first nations participating in the RLAP, 53/60, and RLEMP programs, and the total budget is $13 million. The FNLM regime includes 35 first nations operating under their own land codes, 3 first nations progressing actively towards becoming operational, and more than 80 wishing to join the regime. The current annual operating budget for FNLM is approximately $15 million, though Budget 2011 included a commitment to reallocate further funding.

In addition to these programs, there are other funds available to first nations to manage their lands, resources, and environment. Approximately $1.5 million is available each year to fund commercial leasing activities. Funding is provided directly to first nations where they want to engage in a designation and have a commercial lease. This includes funds for professional fees and expenses for legal advice, engineering, land appraisals, surveys, environmental site assessments, and expenditures related to community consultation and engagement for these designation and leasing activities.

One million dollars is spent annually on community environmental projects such as environmental management training, conservation plans, climate change strategies, and resource planning. There is also a federal government-wide program to assess and remediate environmental contamination on federal lands, including reserve lands. South of 60, the budget this year is $12.3 million.

There is of course an increasing recognition that land management and community economic development are inextricably linked. The department is currently examining ways to improve our programming and to tie more closely economic development programs to land management programs. In a previous committee appearance, we described the importance of a pilot project that we have to improve local land-use planning linked to the first nations community economic development vision. It's anticipated that with such plans in place, subsequent land management activities will be much more aligned and better planned in order to reduce delays and provide a more formal process for community members to engage in making land use and economic development decisions pursuant to those plans.

The department works in partnership with key institutions, such as tribal councils, technical institutes, the Lands Advisory Board and FNLM Resource Centre, and the National Aboriginal Land Managers Association. I will just take an example. NALMA partners with the department not only on training under the RLEMP, but also on land designation processes, additions to reserve, and mentoring first nations land managers.

I'm sorry for taking so much time. It's just that this is such a complex area; but briefly, by way of conclusion, I'll just make a couple of points.

As I've described above, there's a broad range of programs and other supports, including funding and linkages to various institutions, to develop further first nations' abilities to manage reserve lands. We've talked about land-use planning, as have my colleagues who appeared a moment before. Land-use planning on reserve is very different from the broad regional planning and the activities of the land boards in the north. However, local land-use planning is an issue relevant to many first nations south of 60 operating under the Indian Act or FNLM or full self-government, or even land claims.

In addition to our focus in the future on improving land-use planning, lands programming will be oriented towards practical land management functions that first nations need to lead. Over time we hope to place less emphasis on building a capacity within first nations to administer Indian Act types of transactions, because we know that many first nations want to move to other legislation like FNLM. What's important is to build the capacity for leasing and negotiating, and a capacity for lands officers who are strong on economic development, for example.

With that, we'd be pleased to respond to any questions.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Beynon. We appreciate that comprehensive introduction to the subject.

Mr. Genest-Jourdain, you have seven minutes.

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

[Member speaks in native language]

We know that, up to now, Aboriginal Affairs and Northern Development Canada has been responsible for compiling data and for managing information for community land management on Indian reserves.

Are the communities that operate under the First Nations land management regime under the obligation to compile their data in accordance with your database, the one managed by Aboriginal Affairs and Northern Development Canada? if not, are they going to be required to create their own publicly available database? We know that all your data were available just by entering a code on a webpage. We could then take a look at all the registrations done by a given community, using some basic parameters. Will that kind of information still be available to the public? If not, will the community be ultimately responsible for managing it?

I have another question. I have looked over your land management delegation programs, such as the reserve land and environment management program and the First Nations land management regime. Some concepts keep coming up: “management groups”, “groups fulfilling management functions”, “aboriginal companies”, “other groups involved in land management”. So I gather that management can be delegated to various entities.

Can those entities be purely private under the Companies Act? Are these companies or corporate entities going to have to report to Aboriginal Affairs and Northern Development Canada or to the community? And how will verification and monitoring be done in the community?

[Andrew Beynon]

Those are excellent questions. I will start the answers and my colleagues can also add a few words.

The first thing to mention is the First Nation Land Management Act. The act contains a number of aspects for participating First Nations. First, communities develop their own land codes. Members of the community can require their governments to report under those codes.

Though the communities themselves do not give a lot of details, the agreement and the act require the use of our department's land register. Canadians can have access to it in order to find the basic information on the lands, just as the participating First Nations can.

You also mentioned the delegation of authority to private or corporate interests. In the negotiations, the agreements, on government autonomy, such as the ones on the governmental autonomy of the Westbank First Nation or the Nisga'a First Nation, you often find the ability to delegate authority, possibly even to private or corporate interests. But in First Nations land management, if I am not mistaken, I do not think that the authority to delegate exists. The authority to legislate on land matters falls to the band council. Most participating communities have not used a corporate or regional entity.

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

I am sure you are well aware that the Lobbying Act does not apply in the communities. There is a specific exemption. As you see it, does that not open the door to interference from, and ultimately to a takeover by, private interests? As I see it, the door is open to private interests, because, ultimately, the band council can simply decide to delegate management authority to those interests.

But how do you see the situation, given the present state of affairs and the jurisdiction that is limited to members of the community?

[Andrew Beynon]

I think we should perhaps be more specific at this committee. Generally speaking, communities that participate in the First Nations Land Management Act are required to have land codes. Community members have to vote on that before authority can begin to be exercised. So I think the community members are going to insist on limits to the authority of their band council and on a requirement for some kind of accountability to the community members themselves.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks very much.

It's another complicated area. We may need individual briefings or follow-up questions, but thank you. And thank you for trying to roll off figures, the number of bands and so forth, but what we would appreciate receiving is if you could provide us with how many reserves or bands are currently applying or participating in each one of those categories, and what the waiting time is like for them. Part of that ties in with what we're interested in. I know Mr. Bevington asked you for that previously. Can we be advised of how many people in the department are specifically assigned to dealing with these matters of leasing, the development applications, and so forth, and what the waiting time is simply because of staff burnout? You can just send us that information. I know you don't have it all at your fingertips.

I have one additional question.

You've talked about what happens with the land code, but you've also talked about, as I understand it, some of these activities that occur under the provisions of the Indian Act, the leasing of lands, and so forth, that you can do absent the code, if I'm correct. The question that puzzles me is, does this money go into that trust fund, where there is, as I understand it, a 2% cap on how much money can be pulled out? I don't know if it's per year. Maybe you can explain that to me. When that money is being collected, if that money isn't paid because, say, there's somebody outside who's leasing the land, does the government follow up? Do they get the money directly? Does it go to the band council? How are these arrangements made?

[The Chair, Conservative, Chris Warkentin]

Ms. Duncan, you are out of time, but we'll give an opportunity for a little bit of an answer.

[Andrew Beynon]

The committee is asking some very interesting questions, I think, about speed. You know there's a question of a backlog and delays in entering the FNLM regime. I think one area where I would note there are delays, as I suggested earlier, is where communities are trying to deal with, for example, a designation of lands for leasing. As I think some of the communities that have appeared before you have already said, it can be a very frustrating process to get through the queue to get to your designation of lands.

But interestingly, by way of contrast, RLEMP, for example, or training with NALMA, don't suffer quite as much of a delay or backlog. I'm not saying that it's perfectly easy, but relatively speaking there is not quite as much of a backlog.

With that, I'll just turn to my colleague to speak to some of the technical details.

[Kris Johnson, Senior Director, Lands Modernization, Community Opportunities Branch, Department of Indian Affairs and Northern Development]

We do have some of the numbers at our fingertips today.

To your question about how many are in each program, we have within the three programs my colleague described—RLAP, 53/60, and RLEMP—a total of 164, of which 93 are in the RLEM program at various stages; 69 in the RLAP program, the reserve lands administration program; and 2 under the 53/60 program. It's important to note, though, that under the reserve land and environment management program, there are 11 communities with delegated authority under those acts. It's simply a different program.

In terms of the number of staff, there are approximately 200 staff inside our department involved in land management, although that doesn't necessarily include all of the environmental staff. There are approximately 200 first nation land managers funded by these programs, and more than that not funded by these programs.

That gives a sense of scale of capacity out there to manage reserve lands.