[Witness speaks in his native language]
Good afternoon, everyone. Bonjour.
On behalf of the Mohawks of the Bay of Quinte, I would like to thank the Standing Committee on Aboriginal Affairs and Northern Development for the opportunity to make a presentation today on the topic of land use and sustainable economic development.
Today I am here to talk about the challenges that the Mohawks of the Bay of Quinte experience with respect to land and environmental management. I would first like to provide some background information about our first nation.
The Mohawks of the Bay of Quinte are part of the Mohawk Nation within the Six Nations Iroquois Confederacy. The Tyendinaga Mohawk territory is situated along the north shore of the Bay of Quinte and is currently 15 kilometres east of Belleville and 65 kilometres west of Kingston. Currently, the Tyendinaga Mohawk territory encompasses approximately 18,000 acres of land and roughly 20 kilometres of shoreline. Our total membership is 8,351 people, with approximately 2,125 members living on the reserve.
The establishment of the Tyendinaga Mohawk territory occurred at the end of the American Revolution, in recognition of our ancestors' military alliance with the British during the war. We were granted a tract of land, approximately 92,700 acres, roughly the size of a township, on the Bay of Quinte. The crown promised to protect the land through a treaty, and in 1793 Lieutenant Governor John Graves Simcoe issued Treaty 3 1/2, or the Simcoe Deed.
In the 1990s, the Mohawks of the Bay of Quinte conducted research into an illegal land alienation referred to as the Culbertson Tract and submitted a claim to the specific claims branch in November 1995. The claim sought compensation for the wrongful alienation of the Culbertson Tract of land and the restoration of the lands to the Mohawks of the Bay of Quinte control. Canada accepted the claim and the Mohawks of the Bay of Quinte have been in negotiations regarding the Culbertson Tract since 2004. The claim is yet to be resolved and there are other potential claims relating to illegal land surrenders following the Culbertson transaction.
The Tyendinaga Mohawk territory is primarily a rural community that houses seven provincially significant wetlands, a nesting area for waterfowl, plants, and plants that provide habitat for a large number of aquatic organisms. There is also a nesting area for great blue herons, situated in the central part of the territory.
The geology consists of shallow bedrock with the presence of fractured limestone and shale, which is also prone to horizontal and vertical fracturing. This composition has a negative impact on water quality in community wells.
The Mohawks of the Bay of Quinte receive funding through the reserve land and environmental management program, RLEMP, which means that we manage our land under the Indian Act. RLEMP is formula-driven, based on land transactions, natural resource transactions, population, and the area of the reserve.
The current land tenure system employed is through the issuance of certificates of possession to individual registered members of the Mohawks of the Bay of Quinte. Communal land is also held by the Mohawks of the Bay of Quinte and controlled by the Mohawk Council, which has the authority to make decisions related to communal land for its use and allotment. The majority of the land, however—90% of it—is held by individuals with a certificate of possession, which is a limiting factor for future development.
The two fundamental issues that the Mohawks of the Bay of Quinte face with respect to land use and environmental management are adequate funding and environmental regulatory gaps for projects on reserve.
In Tyendinaga, development is hampered not only by the lack of sufficient program funding, but also by low development capability due to the limited communal land, by efforts to protect fragile ecosystems identified as significant, by the lack of access to potable water for both residential and commercial development, and the lack of a sufficient land base to benefit from land and natural resources.
Planning is crucial to community development. The land-use planning process must be comprehensive and take into consideration the community's need for the land through awareness and community engagement, commercial development, residential development, agricultural uses, recreational uses, and the traditional relationship that we have with the land, including acknowledging and fostering our responsibility for stewardship.
There are significant wetlands, plants, and animal species on Tyendinaga that need to be protected, while still meeting the identified community need for development. Such a plan will require new studies on environmental impacts and updates to past studies on hydrogeology and capital planning.
The cost for a meaningful land-use planning process far exceeds what may be available in funding from Aboriginal Affairs and Northern Development Canada. Tyendinaga Mohawk Council is forced to choose between undertaking the cost of this type of project or allocating resources to other programs and services established to improve the social determinants of health.
As mentioned, our membership is 8,351 people, and each of these members is entitled to live on the territory. The Mohawks of the Bay of Quinte is the ninth-largest membership among all first nations in Canada. The membership has had a significant growth following the implementation of both Bill C-31 and Bill C-3. However, our land base has remained the same, a land base that has eroded to less than a fifth of its original size outlined in the Simcoe Deed. The Culbertson Tract has never been surrendered, nor the claim settled, and we need the land to accommodate our population growth. With only 10% of the territory held in common, MBQ will have to develop a process or mechanisms to acquire land for development.
A significant portion of the communal land is comprised of wetlands and the Mohawk airport, which means low development capability. According to the MBQ's capital plan study in 2002, the Mohawks of the Bay Quinte do not hold enough land to accommodate growth beyond a certain threshold.
With regard to environmental regulations, section 88 of the Indian Act specifies that all provincial laws of general application are applicable to and in respect of Indians of that province. However, the courts oftentimes have excluded section 88's application to reserve lands and land use. This creates a gap between environmental regulations on reserve and off reserve.
As a whole, environmental regulations are divided between the federal and provincial governments with respect to off reserve land. Federal regulations that apply fall under the Canadian Environmental Protection Act 1999.
On reserve, provincial environmental regulations do not apply, but federal regulations do apply, including the first nations bylaws adopted pursuant to the Indian Act. The difficulty arises because the applicable regulations and bylaws do not necessarily address all aspects of the environmental issues that are subject to regulation off reserve, nor is there an adequate mechanism for enforcement.
This gap creates a negative environmental impact and potential health risk to first nations people living on reserve. Our experience with the provincial Ministry of the Environment and Environment Canada is that if a proposed project does not impact fish there are basically no options to prevent the destruction of ecologically sensitive areas or the protection of human health.
There are few restrictions for individual holders of certificates of possession in terms of how they use the resources on the land described in their certificate of possession. For example, an individual may harvest timber on the land described in their certificate of possession with little regard to responsible and sustainable harvest. The only provision is that the timber is to be used on the reserve. Any restriction comes into effect when the individual tries to remove the timber from the reserve without ministerial approval under section 93 of the Indian Act.
Tyendinaga Mohawk Council has to be in position to pass and enforce band council resolutions to shut down operations if need be. There is no mechanism for this to occur. The Tyendinaga Mohawk Council can develop bylaws to address gaps in environmental regulations; however, the law must receive ministerial approval, which limits the scope of the bylaw making authority.
Once approved, the challenge becomes enforcing compliance. The Tyendinaga Police Service has the authority to enforce the bylaw and lay charges, but there is no prosecution mechanism within the local court system. The expectation is for MBQ to hire a federal prosecutor or federal justice of the peace to follow the process, which conflicts with competing interests for community financial resources.
Under the Indian Act, penalties are also minimal, and again require a federal representative for enforcement.
Along the same lines, if MBQ adopts provincial standards, the question or concern remains that the federal government will devolve its responsibilities directly to the community. Ultimately, whatever standards are adopted for environmental management, there is a need for the federal government to adequately resource the implementation and enforcement of the regulations.
With regard to consultation, under the duty to consult, proponents off reserve are required to consult with first nations communities prior to any development that will have an impact on first nations lands. Proponents are becoming more active in consulting first nations.
Unfortunately there is also a lack of resources to ensure meaningful participation in the consultation process. Adequate funding is required for the costs of research and professional environmental assessments, and interpretation services to review the proponents' environmental assessment reports.
The turnaround time is critical in this process, and without the security of funding, participation will simply be a gesture, at best. Some proponents exercise goodwill and provide a limited amount of funding for this process, but this is not a requirement under the duty to consult.
Lack of clear environmental regulations on reserve could also act as a deterrent for proponents. Without clarity on what regulations apply, economic development opportunities may he missed in the confusion.
The Mohawks of the Bay of Quinte incurred extremely high costs for environmental assessments when dealing with the closure of the Richmond landfill site. The financial resources required to participate were provided through reimbursement by Waste Management to the Mohawks of the Bay of Quinte after we waited for nearly ten years. Absence of this funding would have precluded MBQ's participation in the efforts to close the landfill.
There are no funds for environmental cleanup on past federal land. During the Second World War, the federal government established an airport on Tyendinaga Mohawk territory that served as a training facility. As a result, the area was contaminated, and there is no recourse except long protracted litigation to bring the federal government to task to complete an environmental cleanup of the area it damaged.
Turning to recommendations, our first is support for the development of guidelines for individual certificate of possession holders regarding land stewardship. The guidelines should be developed internally to foster a cultural approach to land-use planning and stewardship and respect the natural environment.
The second recommendation is to establish a central agency that is dedicated to enforce compliance with environmental laws. The central agency could develop regulations that serve to close the gap, ensuring a safe environment for on-reserve community members.
Third is to establish a protocol to ensure that land claim areas have a special designation and developers are informed of areas under dispute prior to purchasing or planning a project to develop land with disputed aboriginal title.
Fourth is to improve the bylaw enactment process for first nations to develop and enact bylaws that will protect the land base and environment. The federal government needs to support an improved process to ensure bylaws are enforceable and compliance is mandatory.
We'd also recommend that committees such as this one allow additional time for witnesses to this committee that will enable first nations leadership and relevant program staff to participate in preparing the presentation and allow time for translation services.