Indigenous and Northern Affairs Committee on May 1st, 2012

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Can you explain the process or what land-use plans are, what the province is in negotiations with right now?

[Brian Hardlotte]

The land-use plans were started in the nineties, and it's the province that pretty much had the lead role in developing these plans.

The one I am familiar with is for my ancestral lands area. It's called the Missinipi integrated land use plan. My first nation, the Lac La Ronge Indian Band, participated in this land-use plan. It covers 3.9 million hectares of territory—12,045 square miles. It's a huge area.

The land-use plan is a strategic government and first nations document that identifies lands and resource management issues. It's a road map that sets the direction for present and future management, use, and development of a major part of the ancestral lands. That process is still there.

For the process in the Missinipi, you had regional meetings; you had local advisory meetings. When the land use was planned, an elders gathering was held and the land-use plan was provided by translation to the elders.

The whole process took somewhere like 10 years; it was a 10-year process. It's not a one-year process to develop a land-use plan. To this date, that I'm aware of, it hasn't really passed and gone into legislation.

I am also aware that there are other land-use plans in our neighbouring first nations that were done and have been passed into legislation. In my opinion, those other land-use plans were done very quickly.

I hope that answers your question.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Partly.

Now with the First Nations Lands Management Act that the government is proposing, in working with other first nations we've seen the benefits to some of the communities just in Saskatchewan alone, such as with the Whitecap Dakota. They've participated, and you've seen the economic benefits there, through private ownership of their lands, the casinos, the golf courses. We've seen them progress to where they only have a handful of people on economic assistance.

I'm wondering what stage PAGC, Prince Albert Grand Council, is at in regard to negotiations under the First Nations Land Management Act. What stage are you at?

[Brian Hardlotte]

There are no first nations that are really engaged in that process, that I'm aware of.

On the Whitecap Dakota, compared to some of the bigger first nations within the Prince Albert Grand Council, their numbers are very low.

We haven't really engaged in that process with the federal government.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

What's happening in the negotiations? What's preventing PAGC from progressing further?

[Brian Hardlotte]

We haven't really had those people come to work with us and give us the information. Let's sit down and let's do the work. We haven't had that offer.

Maybe we have, but I'm not really aware of it.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Vice-Chief, in regard to economic development and negotiations, how much capital has been invested in the process with the Province of Saskatchewan?

We talk about 3.9 million hectares. What are we looking at for economic spinoffs? Has that been forecasted?

[Brian Hardlotte]

Nothing has really been forecast, and there are really no numbers. I'm well aware that some of the first nations, mine, for example, and some of the first nations in the Athabasca, have benefited from the land use. Some of the first nations are also engaged with industry, with IBA. But there are really no numbers, so I can't answer that. I can get numbers for you and forward them.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

That would be great. Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll go to Ms. Bennett for seven minutes.

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

Thank you, both. It was very helpful.

I guess, Vice-Chief, I would like to know more about the veto and how that actually is affected or could be affected in terms of these very important decisions concerning your land.

Mr. Johnson, you're quite encyclopedic on all of the things we're trying to study.

It's a bit unusual, Mr. Chair, but I think it would be beneficial for the committee to have the answers to the 13 questions written by our Library of Parliament, if that would be possible, in writing, from Mr. Johnson. He hasn't seen the questions we've been provided by the Library of Parliament, but I think it would be excellent if we could provide them for Mr. Johnson and have a written response. I think it's fairly important.

If I have time, I'll come back to some of the things we learned last week about the lack of timeliness on ATR and environmental cleanup and anything else you want to add. You can either do it in writing or during my questioning.

Vice-Chief, could you tell me how this veto ought to work or should work?

[Brian Hardlotte]

On the veto, as first nations people, we have faced a lot of legislation and regulations in the past. In some cases, we've complied with the restrictions imposed on us.

On your question, we believe that we do have that. We believe that we inherited that from our ancestors. We believe that first nations have the power to stop an official action, I guess, especially enactments of legislation that in history have been imposed on us. In this whole process of working together and consulting with first nations people in this area of land use and sustainable economic development, I believe that first nations people, government, and industry can come together and in some cases work on legislation that works for everyone.

Thank you.

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

Mr. Johnson, last week we were at Mashteuiatsh, where they've been waiting on an ATR that would take them out to the highway, which would actually allow them economic sustainability in a real way. They seem to have waited a long time for this.

Is it just that there aren't enough people working on these things and there isn't enough capacity in the department? Or is it that every time there's an election or something, people down their tools? Why do these things take so long?

[Warren Johnson]

In dealing with an antiquated process, a process that doesn't have any other comparison outside of this environment...the federal government actually has to take ownership of the land to make it reserve, to transfer it, to worry about third-party interests and all that. These are all authorities only the federal government has.

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

I think what we were hearing last week.... Is this a Department of Justice problem, this fear of litigation, whether it's environmental, whether it's potential lawsuits from others? Is it being slowed down by the Department of Justice, or is it really the Department of Aboriginal Affairs?

[Warren Johnson]

It's the whole process. I don't think you can single out any one part of it. My own opinion is that the department is spread far too thin.

I really like the way the participants in the reserve land and economic development study, those first nations that I quoted at the end, posit their remarks. What they're really saying is it would be better if the government.... Perhaps I could quote another part of that because I found it very useful; it said if the government wants to help, it needs to learn how to get out of the way. If that could happen and the resources that are saved from getting out of the way, not doing things that first nations can better do, were then put on the things the government has to do.... The federal government has to take responsibility for additions to reserve, as long as you're talking about federally owned land held for the use and benefit of first nations.

There are certain things, irrespective of the Indian Act or whatever the legislative future of all this is, that the federal government has to do. From my perspective, it needs to concentrate on the things it has to do, its core responsibilities, and do them well. The rest should be up to first nations.

[The Chair, Conservative, Chris Warkentin]

You're almost out of time, but I think you're remembering some of those things that were very important from our travels.

If I can intervene with the last couple of seconds—

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

You can have my time, Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We heard that one community has some issue with regard to third-party interest. The difficulty is...as you say, the federal government obviously plays an important role in the additions to reserve process, but we also heard about the impediment of third-party interests.

At the provincial level there's an opportunity for annexation of lands, and there can be a price determined by the province for reasonable compensation for annexed lands. There doesn't seem to be the same provision within the additions to reserve.... Is there such an inclusion? Is there an ability for the federal government to annex lands that have a third-party interest and force these folks to the table? That seems, in one case, at least, to be what extended the timeframe by several years.

[Warren Johnson]

Not that I'm aware of, but I think there are other ways of making the third-party interest issue easier to deal with.

The specific example I'd use is to think of yourself as the third party. You have some right on the land. The land is going to be purchased by someone else, in this case a first nation. They either maintain your right or buy you out.

The trouble is, you're going to be moved under the Indian Act. What's the comparable instrument under the Indian Act to my current right on this property, even if the first nation wants to leave me there? There is no comparable instrument under the Indian Act. The first nation doesn't have the authority to issue these instruments.

So you get into these convoluted legal mechanisms of taking things under the real property act and having to get into....

The simple example is in my remarks. If first nations had adequate bylaw and land-use planning authority under the Indian Act—which is largely an enforcement issue, not legally a very difficult issue—and it wanted to acquire land and there were interests on it, it could have a community land-use planning vote, like any other community would. They could say they were interested in these lands, they would maintain these activities on it, or whatever, and there would be no issue. That could all be done before the land was added to reserve.

There are a variety of ways of getting at this process, some of which I know are under study by the working group I referenced earlier. There is no facility for this kind of thing. My experience, having had some responsibility for it for a number of years myself, is that the federal government would be very loath to use that responsibility even if it had it. It's operating in a local area. It's provincial land; it's not federal land to begin with. Is it going to go in and start annexing people?

[The Chair, Conservative, Chris Warkentin]

Yes, that is the question. Thank you.

Mr. Boughen, we're going to turn to you for seven minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thanks, Mr. Chair, and thanks to our panel for taking time out of your busy day and sharing some thoughts with us.

When we look at the first nations, they've expressed concerns that the process of adding land to reserves is time consuming and costly. What do you consider the main challenges of the current addition to the reserve process?

Vice-Chief, could you have a run at that one?

[Brian Hardlotte]

I'm not really familiar with the process.

In the province of Saskatchewan we're dealing with the lands there, our crown lands, and the reserves are considered federal crown land. The whole thing about treaty entitlements, first nations, and being able to purchase lands, original crown lands, in their area...I'm familiar with that process.

First nations from the Prince Albert Grand Council are entitled first nations, treaty land entitled first nations. They have purchased lands even in the cities, for economic benefits, to build such things as gas bars. It's a good process.

The Government of Saskatchewan has the authority to sell lands in any of their crown lands. As first nations people, because of our relationship with the land, we really don't like that.

I can also mention that in Saskatchewan, even on crown lands, there are lands that we call traplines. I was a trapper. My dad and my grandfather were trappers. The provincial government, because of the NRTA, made what they called a block system in the north. This block system is what they call a northern fur conservation area. I belong to a fur block. But in that fur block there are a whole bunch of people. Again, this was a regulation, I guess, that was imposed on us. From that block, they're further broken up into what they call zones. The zones are further broken up into what they call traplines, and those are family traplines, lands that were inherited from our ancestors. The whole idea of the block system was conservation and management, and to this day that system is still there.

I can say that first nations people...as you know, trapping was a big part of the building of Saskatchewan, the building of Canada. It was a main part of economic development in our first nations communities in the past, and it is to this day.

We complied with those regulations and restrictions. We've become so used to those restrictions...not restrictions, with the regulations. For example, when there's a company doing exploration in my trapline...in the past we worked with the company and got along, not really a proper consultation but a consultation. With the land-use plans, I think that's the other goal: they're going to consult with the trappers.

You're consulting with first nations people. You're also consulting with the trappers. The traplines are like lands owned by farmers in the south. They're attached to us. We didn't pay anything for the land; we inherited the land. And we've managed this land and we've conserved the area in the land.

But that's the province of Saskatchewan, and that's the way it still is today.

[Ray Boughen, Conservative, Palliser, SK]

Thanks, Chief.

I guess this question is to either of the gentlemen. Could you explain the issue of third-party encumbrances for us in more detail and the proposed ways to address these issues in a timely and effective manner?

[Warren Johnson]

The issue here is that it's difficult for many first nations to find land for the purpose they're looking for it that doesn't already have some kind of encumbrance on it. That encumbrance can be a hydro line, it can be a railway right of way. Some of it's not even registered on title. For example, provincial lodges and things are often permitted, as opposed to registered on title. So there's a variety of situations for first nations when it's going out to acquire land, and when I say “going out to acquire land”, somebody with that kind of flexibility is likely somebody who has a claim settlement, as opposed to just doing the normal, more routine community addition, where there are other issues. In either case, it's unlikely you're going to find.... A lot of land is going to be encumbered by some kind of right of way or restriction on it. It could be an existing mineral right, which then requires access provisions, given the right of the mineral holder.

In a large number of those cases that I'm familiar with, having worked in the area for a fair number of years, first nations don't have any difficulty with a lot of these issues. The trouble is with the process to transfer those and transfer a federal title to reserve creation and replace the instruments. You can't replace the instrument until after the reserve is created, so there's no security for the third party before the reserve is created. How do you start the process? It's a catch-22.

The structure of the current process.... If you wanted to design a process to fail or to take a very long time and frustrate everyone, it would be this process. If you wanted to design a different process, well, then, you could do that.

In reference to my earlier remarks, some of the instruments, all of which would require, unfortunately, legislation.... I say “unfortunately” because it's sometimes difficult to get legislation through, but in this case, this is something that could be easily partnered with first nations on to accelerate the ATR process.