Indigenous and Northern Affairs Committee on April 3rd, 2012

[Clarence T. Jules]

This was one of the areas that the first nations talked about extensively when we had a proponent meeting with them. What they said was that they didn't want to be restricted by section 89 of the Indian Act. They wanted to be able to be bonded; therefore, the seizure provisions of section 89 would not apply in cases where monetary issues are involved.

Where they started to draw the line was with third-party issues, like somebody getting into a car accident and wanting to go after the property owners. They were saying that's not something they wanted to get into. If we're using the lands for mortgageability and bonding, then, yes, the lands would be seizable.

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

Still with regard to the First Nations Property Ownership Act, what do you think about exporting the stated principles to remote communities?

I hail from the Uashat community. Earlier, you talked about Sept-Îles. Back home, the only things we have plenty of are pawn shops and shylocks.

Do you feel that, for remote, and socially and financially disadvantaged nations, that principle is applicable and exportable?

To my knowledge, one of the first actions promoted will be, of course, trying to alienate that land for financial gain. Some land in my community is located on the shores of the St. Lawrence River. That land still has some value added. Quebeckers are interested in it.

[Clarence T. Jules]

I have had the chance to visit your community on several occasions. Ricky Fontaine—I don't know if you know Ricky—was on my tax advisory board for a number of years. As I mentioned earlier, when Sept-Îles first started to move into the holy area of property tax, they couldn't because the Quebec government was occupying the field, and we had to amend the municipal act. That took about five years to do.

When we talk about the seizure of lands within the context of mortgageable interests, it's something you have to go into with your eyes open. I'm not promoting somebody going in and saying they're going to sell these lands for beads and trinkets. That isn't the purpose of what I'm proposing. The purpose of what I'm proposing is to empower the individual so they rely on themselves, as opposed to somebody else, to move ahead. That's the kind of culture I believe your people had, and my people have had since time immemorial.

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

I have a fairly broad question I will try to remember.

How much time do I have left?

[The Chair, Conservative, Chris Warkentin]

You have one minute.

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

Mr. Bevington, go ahead. I cannot recall my question.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Chief Jules.

I'm interested in the approach, but I want to look at the larger picture. I'm going to read you something written by Pamela Palmater, a Mi'kmaq lawyer. She says:

Similarly, section 35 of the Constitution Act, 1982 is a significant promise to aboriginal peoples to both recognize and protect their aboriginal and treaty rights. Perhaps most importantly, section 35 is a constitutional promise to aboriginal peoples to protect their distinctive cultures and identities for future generations. Since land is critical to the identity of First Nations as well as to the maintenance of their cultures and communities, it seems illogical to suggest that First Nations are best served by dividing up their reserves into individually owned parcels of land available for sale to non-aboriginal people in the name of economic development.

Is that a harsh judgment by her?

[Clarence T. Jules]

From the onset I knew there had to be a broad public debate over this issue. There was a book released in 2009 that brought it to the forefront. I knew that this was going to be a substantive change from the status quo. All of us in this room recognize that the status quo hasn't been good for first nations. Even Ms. Palmater would agree with that.

When I look at implementation of our rights under section 35, that's what this does. It allows our first nation governments to make a choice for themselves, an informed decision.

To me, the freest expression of our collective interest is individual rights. Without the free expression of our individual rights within that collective, we're not going to survive as a people. Indeed, that was how we always operated. In traditional times if we didn't like the system, we went somewhere else and started our own band. We can't do that now, because the Indian Act says, “You're from this place.”

When I think about our traditional land base, it isn't just the Indian reserve. So this has to be part of an overall strategy to resolve the issues we have facing indigenous peoples across the country.

Some of it is real resource-revenue sharing. But without being able to utilize what we have, we can never do that adequately. We'll always just say, “Well, let's take the smallest share that we can out of that because that's all we can get.” I want to change that. I want to be able to change it in a very fundamental way that empowers our governments, so that our governments will always be here for future generations.

I'm not here to have an extinction. There have been examples in Canadian history where communities have become extinct. Indeed, because of the smallpox epidemics of 1862 and 1863 in British Columbia, a number of my communities became extinct, and they joined to form the remaining 17 Shuswap communities that I'm a member of now. The Nicola people of Merritt have become extinct.

Indeed, one of the proponent communities, Whispering Pines, has said they want to participate in this because they know that if they go extinct because of the wording of the Indian Act, which says 6(1), 6(2), and by 6(3) you're not a member....

They're saying they want to be able to have their own land base, so that future generations will be able to enjoy what little land they have now, but also to use that as a springboard to move ahead.

Ms. Palmater and others are entitled to their positions, and the communities that make an informed decision to move ahead on this basis have the same rights.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Jules.

Mr. Payne, we'll turn to you now for five minutes.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

Thank you, Manny, for coming. It's just fascinating listening to you talk about something you strongly believe in.

I know you touched briefly on the differences between the First Nations Land Management Act and the first nations property ownership act. I don't know if there is anything else you want to add to that in terms of the differences you've already explained. I do have some other questions around that.

[Clarence T. Jules]

Just to finalize that area, there has been a lot of concern from individuals who are under FNLMA, and I have no objection to their choice. I think if it works for them—good.

What I'm proposing is substantively different. It involves having a Torrens system with fee simple interest. It does something that can't be done under the Indian Act right now. So FNLMA still is an Indian reserve. There still is crown liability. They don't have areas of jurisdiction over the environment, for example. So there are some limitations, but it's been successful in a lot of communities, and I'm not about to dis what successes they've had. What I want to be able to do is go beyond that.

[LaVar Payne, Conservative, Medicine Hat, AB]

The other thing I have to say is that you have a pretty open mind on which first nations want to belong to which types of systems, so I think that's really outstanding on your part.

I need a little bit of clarification. You did talk particularly about the fee simple and the community aspects of the ownership of the land. Did I understand you correctly when you said that even with the fee simple, the jurisdiction would still remain within the band?

[Clarence T. Jules]

That's right.

[LaVar Payne, Conservative, Medicine Hat, AB]

Okay. This takes me on.

You also talked about the provincial buy-in. What needs to be done? Assuming that the federal act is passed and everything goes forward, what needs to be done to work with the province to ensure that this goes forward and meets all of the needs you're looking for?

[Clarence T. Jules]

I'm sure that all the committee members are aware of the St. Catharines Milling case and the Star Chrome case in Quebec. If you're not, those were very important cases right after Canada became a country. They pointed to, and underlined, the fact that if there are lands that are set aside for Indians, title, if you will, is vested in the province. So Indian Affairs basically has the administrative responsibility over reserves and Indians. That's the 91(24) provision.

To put that aside, the provincial governments have to pass legislation so that there's no ambiguity in the title being transferred from the federal government to the first nations government. I don't want to have a situation in the future where somebody dies intestate, or some community becomes extinct, and the province says, “Well, we're going to raise our title.” That's why the provincial governments have to be involved.

I think there are other areas that are critically important when we look at provincial spheres of jurisdiction. I talked about one of them, which is the environmental issue. The province has developed, over a longer period of time, institutions that we need to be able to access. We can either use existing legislation or we can do it, as we're proposing, under FNPO, by default. The first nation would have the jurisdiction, but if they chose not to exercise that jurisdiction, other laws would apply, at their request, by default.

[LaVar Payne, Conservative, Medicine Hat, AB]

You talked about your brother and his passing, and his estate having to be looked after by Indian Affairs. It just blows my mind that this is what actually happens. This idea of fee simple and being no different from any other Canadian has great appeal to me, and obviously to you. You touched a bit on some of the economic benefits. Also, for those who do pass on, those lands, as I understand you, would continue to belong to the heirs of that individual.

[Clarence T. Jules]

That's right.

Another area I talked about was when an individual dies intestate, there's no impetus on the part of the heirs to settle the estate. In my community, we have some very valuable tracts of land. It's now two generations since the individual passed away. But there's no impetus on the part of those heirs to settle the estate, because what are they going to do with it?

We have situations such as Kahnawake, just south of Montreal, where there are some beautiful old homes, yet people have a one-thousandth interest in them. People aren't interested in settling a lot of those outstanding issues.

[The Chair, Conservative, Chris Warkentin]

Mr. Payne, unfortunately, we've gone over by about a minute now. So we'll have to move on to our next questioner.

We'll go to Mr. Bevington, for five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

I have just a few questions.

How will reserve lands be transferred to fee simple ownership without inviting provincial jurisdiction?

[Clarence T. Jules]

The first step must be the passage of federal legislation that sets up the process by which title, which is now vested in the federal government, would be transferred to the first nation. Provincial legislation would also have to be passed to ensure that they respect that process and will not be trying to raise their interests. The only province that doesn't have a requirement to do that is British Columbia, but British Columbia has agreed to do it, because I've asked them—from really a momentum position—to do it. There have been discussions with both parties about it.

I think the passage of the provincial legislation would ensure that those interests the province may feel it has, because it has what's called an interest that underlines the Indian reserve, wouldn't be raised.

[Dennis Bevington, NDP, Western Arctic, NT]

So right now, on first nation reserves, if you have a certificate of property, you can achieve a mortgage. You can also lease to somebody else who can achieve a mortgage. Is that correct?

[Clarence T. Jules]

On the existing Indian reserve?

[Dennis Bevington, NDP, Western Arctic, NT]

Yes.

[Clarence T. Jules]

Yes, if you receive the appropriate approvals.

In the case of Kamloops, when I was chief, I had a handshake agreement with the Sun Rivers development. They spent $18 million before a lease was even granted. So then you have to designate land, and now there's discussion about taking away the sections that deal with designation. The history of the designations or the conditional surrenders of lands goes back to the Star Chrome and St. Catharines Milling cases, where there had to be a federal role in all of these issues.

So you have to have a vote and then you're able to enter into an agreement. Once that happens, you have to ask the landowner—who is Her Majesty—to enter into a lease on your behalf. So you're the beneficiary of that lease.

[Dennis Bevington, NDP, Western Arctic, NT]

Even if you're under the First Nations Land Management Act?