Indigenous and Northern Affairs Committee on May 1st, 2012

[Dennis Bevington, NDP, Western Arctic, NT]

Do you have a review period for potential changes to the land-use plan?

[Brian Hardlotte]

Yes. Once it's passed in provincial legislation, I think there's a five-year review process.

[Dennis Bevington, NDP, Western Arctic, NT]

Can you move designations on particular pieces of land at every five-year process with the agreement of both parties?

[Brian Hardlotte]

I guess that would be the process, to revisit some of the.... It's not set in stone, so to speak. It's kind of a living document.

[Dennis Bevington, NDP, Western Arctic, NT]

You're encompassing a very large area, and I'm sure much of it is still in a pretty natural condition. Is there an ecosystem approach that's taken in terms of...?

[Brian Hardlotte]

There is an ecosystem approach to the land-use plan.

[Dennis Bevington, NDP, Western Arctic, NT]

So you put things in—

[The Chair, Conservative, Chris Warkentin]

I do apologize, but you've gone over your time, and we'll finish off with that last answer.

Thank you.

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

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you.

Vice-Chief, we've heard from a number of leaders who have come to this committee to talk about the challenges of operating land under the Indian Act. I wonder what your experiences are with that, and what your thoughts are on how those issues might be best addressed.

[Brian Hardlotte]

Do you mean operating reserve lands under the Indian Act?

[Kyle Seeback, Conservative, Brampton West, ON]

Yes.

[Brian Hardlotte]

I can only speak for my first nation, the Lac La Ronge Indian Band. We're in the north, on the Churchill River. Our first chief went out from our area and went south. He had a vision of maybe getting information on farming. So he travelled south and got reserve lands, I guess, on farm lands. One of our reserves is at Little Red River reserve. Paskwawaskihk, they call it. It's a Cree word for a prairie. We got those lands, and of course, to this day, those lands are still kind of taken care of by the department.

I guess with anything on the reserve, you know, you have to have a BCR, a band council resolution, if you're going to do anything. Let's say an entrepreneur band member is going to do something on reserve. He has to have a band council resolution, and that band council resolution comes to Ottawa. On our farmlands, the revenues come to Ottawa. We don't take care of them. For anything we're going to do economically with band revenue money, we have to have a BCR, and that BCR has to come to Ottawa and be okayed, I guess.

[Kyle Seeback, Conservative, Brampton West, ON]

It slows down the process.

[Brian Hardlotte]

Yes.

I can say that we've gained economically with the farmlands in the past and to date.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Johnson, my colleague, Ms. Crowder, talked about how you were saying that fee simple—I don't know if you said it was a false promise—seemed to be leading in the wrong direction. There are other things that certainly are available. There is 53/60 and the FNLM. Do you see those tools as being beneficial to land use? If so, yes. If not, why not?

[Warren Johnson]

First, just to set the record straight, I didn't say there was anything wrong with fee simple. The witnesses who appeared before you said it was an issue that was going to apply to a few or ten first nations, and I'm worried about the other 600. If we go beyond FNLM, I'm actually then worried about the other 400 who aren't going to be in that, even with the current discussion of maybe upping that to 20% or 25% in the rest of the FNLM.

Clearly, the FNLM, apart from the ATR aspects of what I was talking about and recommending, would be an issue worth reconsidering for those other first nations. FNLM already includes all of that and goes beyond it. So clearly, it is a very useful instrument.

Not all first nations are opting into it. And there's still a major regulatory issue with respect to it, which, quite frankly, should concern us all.

It already includes the land-use planning zoning authorities. It allows you to set laws in place with adequate enforcement provisions.

Take the Indian Act as an example. Whether it's the federal government or a first nation doing something on reserve, if it has an instrument, it's usually the federal government, because there aren't that many instruments actually provided to the first nations. If there's an enforcement issue, you have no ability to do administrative measures. You can't issue a cease work order. You can't tell somebody to demolish something that shouldn't be there. You can't tell them to clean up something they've done. You have no administrative authority. You can fine them $1,000, and you can do it once. You can't fine them $1,000 a day. Five first nations have tried it. I've seen their bylaws. You can't do that.

I mean, if you're making millions of dollars in profit by allowing all of the regional construction companies to illegally dump hazardous waste on your site.... Talk to anyone who owns a construction company in your ridings and they'll all confirm this. I've talked to them myself. If there are reserves around, that's where the construction industry goes to dump its stuff. Tipping fees are minimal, and you don't have to worry about any of the regulations.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Seeback. Your time is up.

[Warren Johnson]

I'm sorry. I hope that answered your question. I got off on a bit of a tangent there.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Johnson.

We'll turn to Ms. Hughes for five minutes.

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

Thank you very much, Vice-Chief Hardlotte.

Also, Mr. Johnson, I think your input is quite appreciated here. I know that some of the information you've provided certainly is enlightening to some of us.

With respect to the environmental piece, I was part of the delegation that travelled last week to some of the first nations communities. What was interesting was that one of them made it very clear that they certainly were not looking at moving forward on the First Nations Land Management Act until there was a cleanup of their environmental sites—the land that was impacted by the environment. We had another first nation that basically said the same thing, and they were leery about even buying additional land at this point, because of the addition to reserve issue.

I'm just trying to get some sense of this, because it's not just about the land itself. It's also about the health and well-being of people. So when you're looking at wanting to diversify yourselves and at going into the economic development part of it, if you're going to buy this land, you want to make sure your community will still be healthy at the end of the day.

I know that health crises on reserve are often directly related to the environmental contamination. Look at my riding, for example, where Serpent River First Nation has faced contamination in the past from contaminated water. Similarly, we just have to look at Grassy Narrows, where the waters were contaminated by mercury as well.

So when people are looking to diversify, whether it's their land or the water near their land, it's very difficult to accept that type of responsibility. As you said, that's something that needs to be cleaned up. The first nation was telling us that they're just not going anywhere with the government's commitment to clean that up.

In some areas, I see first nations not being able to take advantage of the First Nations Land Management Act because of this contamination. I appreciate the fact that, as you indicated a while ago when Jonathan asked his questions, it is the responsibility of the federal government, but I just don't know how successful that can be.

I know you've done quite a bit of research on that, so I'm just wondering if you have anything to add.

[Warren Johnson]

I'm not sure there's much I can add. I'm not completely up to date on the FNLMA. There recently has been a lot of discussion that I'm not completely familiar with around it and around some of these issues.

The difficulty is that I don't think it was ever fully appreciated what the degree of the existing liability to first nations was prior to the transfer under FNLMA. There is—I don't mean to be pejorative here—I think a naive understanding that self-government will be paid for out of existing resources of the department or departments. Well, if existing resources were inadequate to do the job over the last 150 years, how can they be adequate for the job of the future under self-government?

As far as I'm aware, there was never an FNLMA cleanup fund put together, so the resources were gathered from the Treasury Board, from federal cleanup funds, etc. The department did the best it could, but the resources were just not there. As to whether they're there today or not, I can't comment, but there are the two sides of the issue, and from my perspective, I think that's the major problem on FNLMA.

On the FNLMA bands, for the environment paper you saw, I had the privilege and the opportunity to go through.... They go through a variety of stages of planning for their environmental management agreement. A good number of them—I can't remember the exact number—had done extensive work and had gone much further than they actually had to in the first stages of this preparation for their management agreement. I was amazed. This was excellent work. This was really good work.

They had already gone into discussions with the neighbouring municipalities on how they were going to jointly manage things like garbage collection and recycling, and practical things like well water, waste disposal, hazardous waste, and that kind of stuff. Also, with regard to the federal government, they discussed whether they would adopt or use federal or provincial regulations rather than trying to build this huge infrastructure of regulations around hazardous waste.

It was an excellent job. But from what I understand, there's no money to implement it.

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

During your research, did you—

[The Chair, Conservative, Chris Warkentin]

Ms. Hughes, sorry, I have to intervene. You're over your time. I do apologize, but that's the way it happens when you're up to question.

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

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thanks, Chair. I'll carry on from where Ms. Hughes was leaving off, again to Mr. Johnson.

With regard to addition to reserve policy, certainly a lot of reserves border major municipalities or crown provincial land, or whatever the case may be. A lot of times there are overlapping jurisdictions on that type of thing. What do you see as the role of the province or municipality in the reserve process as we move forward in regard to what their responsibilities may be vis-à-vis taking over the reserve responsibility?

[Warren Johnson]

I guess in simple terms it's just the good neighbour approach. You have issues of land use and bylaw harmonization and those kinds of issues. The difficulty everybody is in is that the first nations don't actually have the authority to do it.

I did a search on all of the attempts by first nations using the Indian Act bylaws to do comprehensive land-use planning and zoning. It's the type that would then allow you to go to your neighbouring municipality, in terms of your existing land base or an addition, and say, “Okay, where do we partner? How do we harmonize our stuff? You can have some confidence that my regulations are enforceable just like yours are.” It doesn't work. They have that $1,000 fine and no ability to regulate the CP lands without stronger enforcement provisions.

First nations are hampered everywhere you look by lack of authority. I referenced the analysis I did of the FNLMA preparations for their environmental management agreement. As I referenced, a large number of them went and talked to either the district planning authority, as the vice-chief was talking about, if they were in more remote areas, or it was the neighbouring municipality, whichever had the planning and land-use authority for the provincial government. When they heard that this was a potential FNLMA band that would have an equivalent authority, they immediately went to work; both parties immediately went to work.

All these problems we hear about all the time on both sides or one side disappeared because the first nation finally was coming to the table as a partner with its own authorities and a level playing field. It was able to function and to do the deals. Without that, there are never-ending problems, because the municipalities are in a difficult situation. They're trying to do deals, but the first nation partner doesn't have the authority to enforce the deal that it's doing, unless it has the moral authority and its community is just going to abide by it, independent of any actual legal regime.