Indigenous and Northern Affairs Committee on Feb. 16th, 2012

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

You talked about the lack of potable water, Chief Maracle. Is there a lack of potable water in your area? How grave is that? I'm sure there are economic development issues if you don't have that.

[Chief R. Donald Maracle]

There are two problems. There's a lack of potable water: 57% of the wells in our community are contaminated. There are 293 that are hooked up to a municipal system with a contract we have with the town of Deseronto. But in addition to the lack of potable water, many of the wells go dry. We have a very shallow drinkable aquifer that's anywhere from 30 to 40 feet deep. It's very easily polluted because of the fissured rock and layered limestone, with minimum soil cover over the bedrock. So it's very easily contaminated. It's a very fragile ecosystem there.

[The Chair, Conservative, Chris Warkentin]

Thank you.

[Chief R. Donald Maracle]

It presents a lot of challenges in housing development and the need for adequate water and sewage. People do pay water and sewer bills.

[The Chair, Conservative, Chris Warkentin]

Thank you, Chief.

We'll go to Mr. Boughen for five minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thanks, Chair.

Let me add my voice to those of my colleagues in welcoming the panel here this afternoon.

In some research work we looked at we ran across the First Nations Land Management Act. We're just wondering, Chief, is the capacity to participate in that regime strong in your neck of the woods? Is it moving forward in the right way? How do you view that whole act?

[Chief R. Donald Maracle]

The Mohawk Nation has not been very much a taker of the First Nations Land Management Act. We feel that the law has to be culturally appropriate for the people. Anything that resembles alienation of the land is a very sensitive topic to Mohawk people, particularly because there is already such a serious land shortage to accommodate future growth in our community.

[Ray Boughen, Conservative, Palliser, SK]

So are the communities you represent actively involved in the land management framework, or not?

[Chief R. Donald Maracle]

The land management on our reserve is under the certificate of possession system under the Indian Act, so we have private interests, and they can mortgage that interest to the band. So we can set up a mortgage regime to accommodate housing; all we need is the capital to lend them the money.

In 1970 we started the revolving loan fund, and people pay 6% on mortgages. So there's growth in the fund, but the challenge we face is that the growth in funds hasn't kept up with the population growth, so we always have people on a waiting list for a mortgage. Mind you, they qualify for a mortgage based on income, but there just isn't the capital to lend it. Instead of using leveraging like banks use, when we have a dollar to lend we actually have a dollar in the bank account. It's real money, it's not credit.

[Ray Boughen, Conservative, Palliser, SK]

Okay. I guess the types of activities we're looking at through the land management are residential and commercial. You talked earlier in your remarks about those opportunities. Are they feasible? Are they happening? Or are they still in the planning stage? Are we moving those ideas forward?

[Chief R. Donald Maracle]

What ideas did you have in mind?

[Ray Boughen, Conservative, Palliser, SK]

Residential and developmental use of the land in terms of commercialization and—

[Chief R. Donald Maracle]

Regarding the commercialization, each business is going to have different environmental impacts. There just needs to be adequate consultation. In municipalities you have a planning department that holds public meetings, so if the people who live in those communities have a concern about any proposed development, there's a process. In a first nations community there is no process other than just phone the chief up, or see one of the councillors at the hockey arena or in the grocery store, and then vent your concern there.

There needs to be a planning department that can have these hearings, and I think everybody, no matter what community they live in, has the right to be heard. So there needs to be a planning department, but also the plan has to be sound, so there needs to be an opportunity and resources to hire experts to see what the environmental noise level impact is, what the traffic implications of doing business are, what the capital requirements are in terms of putting a road in, or maybe three-phase electricity, or extending natural gas. What are the costs of development to the community? Where does the money come from to pay for all this?

Those are going to be the kinds of questions the communities may be concerned about. And then what is the potential for job growth in the community? So people need to be doing all that legwork, I guess, since it's a combination of our own staff plus some expert opinions, someone able to conduct these public hearings on proposed development. I think development would go a lot better if there were accurate and proper information going to the community. Otherwise, it becomes very reactionary, and I think that's what happens when developments occur in traditional territories or on reserve lands.

Quite often you have to be careful because there are a lot of businesses looking for a place to operate where they don't have to comply with any laws, so they tend to target things that are high polluters, pay low wages, and leave an environmental nightmare for somebody else, like the first nation and the federal government.

[Ray Boughen, Conservative, Palliser, SK]

Those groups have to receive sanctions from your licensing department or from the people who control the land anyway, would they not?

[Chief R. Donald Maracle]

Let's say we looked at a quarry. The Department of Indian Affairs have what they call draft quarry regulations. Under the Indian Act land tenure system--let's call it a deed, so everybody understands what we're talking about--a certificate of possession is similar to an individual freehold deed except it's subject to the reserve system, meaning that you can't sell the land to a non-Indian.

There is no ability for a first nation to put restrictions on a certificate of possession that's issued by the federal government, the Minister of Indian Affairs. So if a band member has a certificate of possession, he may say he is going to open up a quarry on his land and it's going to operate 24/7. There could be noise levels. It might lessen the groundwater of people who depend on their wells. There may be concerns that it may be polluting the river. With the machinery running back and forth, what is the impact of the heavy machinery on the local roads? It's all those sorts of things.

Currently the federal government and the Mohawks of the Bay of Quinte are being sued by a band member. Of course because it's about the control on a certificate of possession on land that's been issued by the minister, it's been very difficult for our lawyer to engage a lawyer from the federal Department of Justice to have that conversation about the need for a regulatory aspect on reserve land.

If we were to pass a bylaw, we could have a challenge. We could pass the bylaw. The local police could lay a charge that there is too much noise coming from there--and we do have an environmental bylaw--but the crown attorney, provincially, and the federal crown attorney could say they don't have the responsibility to enforce band bylaws.

Traditionally, I think the federal government used to look at a band bylaw as having the same status as a federal regulation because it's passed pursuant to section 81 of the Indian Act, which is where the authority is derived to make that law.

The only option we have is to hire a private lawyer, who may cost up to $400 an hour, to deal with those issues in the court, and there would be appeals all the way up to the Supreme Court. So the process would become prohibitively too expensive.

Really, I think there needs to be some mechanism where the local courts will enforce those bylaws, because that's what courts are for. We don't have courts in our community, or the financial capacity to pay a justice of the peace and to run a court system, to record and render the decisions and look at case law and those kinds of things.

[The Chair, Conservative, Chris Warkentin]

Thank you, Chief.

Unfortunately, these clocks run faster than we like once it's our turn. Sorry, Mr. Boughen, I'll have to cut you off there.

Mr. Bevington, for five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair.

The last bit was very interesting. Of course we're really trying to understand how land management works. I know it will eventually lead to economic development.

Mr. Paul, one of the goals is to build the net worth of aboriginal communities by increasing aboriginal control of land, resources, and property throughout Atlantic Canada.

You represent 38 separate communities. Do they share any common management structure?

[John Paul]

Some operate under the Land Management Act, some operate under the Indian Act, some operate under their--

[Dennis Bevington, NDP, Western Arctic, NT]

Would there be a guy who would take care of a couple of communities in terms of their land management?

[John Paul]

Not really.

[Dennis Bevington, NDP, Western Arctic, NT]

So they're all pretty separate?

[John Paul]

The communities operate pretty autonomously in terms of land management; I don't know how, but it kind of ended up happening that way. As the chief said, the focus in the past has basically been about how to manage housing, certificates of possession, and land use in the communities. But it's never looked at it from the other perspective of whether there is a land-use plan for the community.

A number of years ago we were engaged in a process with many of our communities called comprehensive community planning. We worked with most of our communities in the region, setting up a formal process to go through comprehensive community planning: develop the expertise, engage the community, engage the leadership, and engage anybody and everybody, basically, in how you would go about a community planning process. But it was only perceived as a project, not as a process. You need more than just a process; you need the capacity, including the planning department and the land-use department, and you need the infrastructure to be able to do those things. Whether it's with one community or 38 communities, you need the capacity, the expertise, and the knowledge to be able to do the regime in a manageable way that works.

From my perspective, I have 38 communities in five provinces and one community in the United States, so creating a consistent land regime among those 38 communities will be quite a challenge: crossing all of the Atlantic boundaries into the Gaspé, into Quebec, and down into Maine, and coming up with one regime for all of those communities that works. But fundamentally, it comes down to capacity and setting up a process that works.

[Dennis Bevington, NDP, Western Arctic, NT]

How many of those communities would you say have the resources to initiate a land management regime and actually carry it out over a long time?

[John Paul]

Very few. I'd say less than 1% of those communities have the capacity, and even the ones that got in under the First Nations Land Management Act will have to develop that capacity and engage the community to come up with a regime that's workable for the community. As the chief said, in most if not all of our communities, the issue of land in the community is a very sensitive issue. How you discuss it, how you play it out, whether it's for development or just general use, you have to have the conversation with the citizens. You have to talk to them and explain to them what you're going to do, why, what the short-term and long-term implications are, and what the potential legal implications are. You have to really explain all of that and have a discussion. If there's no process to do that, then you're kind of leaving it to chance as to what might happen.

The proponent meets you at the rink and he wants to build a nuclear power plant on your reserve, and you tell him, “Yeah, no problem—I'll give you a certificate. The federal government might not come around for a few years.”

[Voices]

Oh, oh!