Indigenous and Northern Affairs Committee on May 1st, 2012

[The Chair, Conservative, Chris Warkentin]

Thank you.

I hate to jump in, but the clock is running away on us, so we're going to turn to Mr. Genest-Jourdain for five minutes.

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

Mr. Johnson, do you understand French?

[Warren Johnson]

Yes.

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

I have a few questions for you and I hope they fall under your area of expertise.

Under the Indian Act and the fiduciary relationship, could you tell me what obligations the Canadian government has when it comes to reclaiming contaminated lands on reserves?

[Warren Johnson]

It gets a little difficult, depending on the situation and the cause of the contamination, but as a general rule it's a federal liability. It's federal land. It was under federal watch that the lands were contaminated, even if the contaminant is often a federal undertaking. The major contaminants historically have been the diesel spills from diesel generation and the like. These things weren't monitored. They have been going on historically. We've built schools on top of the contaminated lands. The problems go on and on.

That's why I think there's been major concern raised, and for well over a decade now, with the environmental gap. It's not just an issue of contamination. It's an issue of historical contamination. It's an ongoing problem.

Nobody is regulating CP lands. In some communities, because of the community's own consensus, CP issues are less of an issue for them. They manage by consensus. That's not an issue. But for large numbers of first nations, they don't consider CP land under their authority. The federal government has no authority on them. And it turns out that many of the issues we find in the papers about illegal garbage dumps, fires in dumps, tire-burning, or whatever on reserves are, when you go to look at them, on CP land.

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

Still along the lines of contaminated lands on reserves, if it has to do with a signatory nation to the First Nations Land Management Act, does the responsibility for reclaiming those lands go fully to the community or does the federal government still have some responsibility for those lands?

[Warren Johnson]

At the point of the first nation taking over responsibility for land management under FNLMA, that is where the federal liability ends. Anything that happened before that is a federal liability. There is a federal obligation under the FNLMA to clean that up. I would have to check the record—I haven't in a while—but I think we're a little late in doing those cleanups. There's a frustration within the FNLMA.

From there forward, it's a first nations responsibility. The only difficulty is that to guard that in the future, you need to be exercising your environmental assessment and environmental protection authorities that you have under FNLMA. But under FNLMA, you're not allowed to do that unless you have signed an environmental management agreement with Environment Canada. There has not been one environmental management agreement signed with Environment Canada yet.

So the problem that we're talking about in terms of the regulatory and environmental gap has spilled over into self-government under FNLMA.

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

Thank you.

I still have one minute?

[The Chair, Conservative, Chris Warkentin]

Yes.

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

[Inaudible—Editor]

Vice-Chief Hardlotte, could you tell me what the position of your community is with respect to uranium exploration on your traditional territories?

[Brian Hardlotte]

I can start off by saying that I worked in the uranium industry with exploration companies right from the start, working for contractors. I guess a contractor works for the company.

In my younger days, as a young man, I worked in the field of exploration in things like line cutting. You cut lines; it's hard, laborious work. You cut lines in the bush so the companies, geophysicists, can come in and walk those lines and do the work they have to do. I did that as a young man. I worked in a uranium mine for a little while, not long.

The first nations people...like I said, we are not against development. We just want to do it in a sustainable manner, protecting the environment and water and making sure all the areas are being monitored—the water is being monitored and also the land. I believe right now it's really the responsibility of industry to monitor the water where their mines are situated. I feel the monitoring should be a little more broad, not just in their area.

We're not against development. We're not against mining. We just want to work together with industry and with government, and work on things like land-use plans.

[The Chair, Conservative, Chris Warkentin]

Thank you, Vice-Chief.

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

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you Chair.

Thank you, Vice-Chief and Mr. Johnson, for coming today. It's important testimony that you're giving.

I have a couple of questions for you, Mr. Johnson. What I'd like to ask you is about legislation on the Claim Settlements Implementation Act, in terms of Manitoba, Saskatchewan, and Alberta, and reserve creation.

Could you help us understand that process and the claims that may be coming through that process?

[Warren Johnson]

Unfortunately, as you may have seen from my remarks, this legislation only applies in those three provinces, and only to claim settlements.

If you're looking for a way to help out the ATR process nationally, as I said in my remarks, there's one area to look at.

Not to oversimplify, a first nation has an option of whether to use that legislation if it has an addition to reserve. If it takes that option, the two principal things that happen is that it can do a pre-reserve designation, which means before the reserve is created it designates the land and accepts some of the third-party interest to help facilitate that process that we were talking about.... While the designation process is still an onerous process, which itself should be fixed, having the ability to do that helps to accelerate the addition to reserve and settle the uncertainty around the third-party interest, prior to the reserve being created. It's important from that perspective. That designation is accepted as if it was an Indian Act reserve designation.

The second thing it allows is for the minister, rather than the Governor in Council, to approve the addition to reserve, which cuts two to three months off the process.

Those are the two principal features.

With the experience on it, and I provided a number of points in terms of potential legislative options.... As an example, if there is already a section 35 easement taken for public purposes, it requires a section 35 Indian Act replacement instrument. That requires an order in council. You can have this, frankly, ridiculous situation where the addition to reserve is going through this process because the first nations opted in to accelerate it to a pre-reserve designation, the minister can approve the reserve himself, but the specific instrument accepting the right of way, or whatever it is there, has to go to an order in council separately as opposed to being part of this other process.

There are a variety of suggestions on the table in areas that I know the joint working group I was discussing earlier is looking at. I completed my work for them in January, so they'd have to speak on where they are now and where that's going.

Those two are the basic elements of the legislation, and there is clearly some potential in looking at that experience and expanding it.

[LaVar Payne, Conservative, Medicine Hat, AB]

With all the improvements there, it would certainly be beneficial.

[Warren Johnson]

To expand it nationally, to apply it to all additions to reserve, and to pick up a whole range of these points, like the section 35 easements...if you could couple that with some improvements in the designation process and whatever, which first nations might be quite willing to accept, you could probably do a lot.

[LaVar Payne, Conservative, Medicine Hat, AB]

I had some other questions in terms of the current additions to reserve policy. You've touched on some of that already. It's been revised on more than one occasion, I understand. You touched on some of the biggest challenges and making them simpler and faster.

Do you have any other thoughts around that process as to what could be much more beneficial and help move that along more quickly? We know there have been issues and problems dragging these things out for long periods of time.

[Warren Johnson]

There's a whole range of them. The addition to reserve discussion paper that was made available to the committee is a fairly lengthy paper, as you can see.

As an example, one simple thing that most people respect, and I know first nations do, is just saying no. Letting something languish in a bureaucratic process for 10, 15, or 20 years, which is not going anywhere, where there are major difficulties from a federal perspective.... Why hide behind the process? Just say no and why.

We found out in the analysis we were doing with the working group that there are three categories of ATR in the policy. There are legal obligations from the claims settlements, or court rulings or whatever, say a return of railway land or something like that; there is the normal community growth; and then there's something called “new reserves/other policy”. That's actually a category for which in the period we covered in the study there was only one ever passed. That's the category of “no”. If that's the category you're in, you're not getting anywhere.

We had a member of the committee, when I was working on it, a first nations representative at the committee, who was actually in the process with first nations in Quebec and had been for 10 or 15 years. It wasn't until we had the discussion around the committee that he understood he was in the wrong process. These were landless bands looking for reserves. That's a political financial decision that has nothing to do with the ATR process. Major relocations of communities and these things that cost major money...major political decisions normally have to go to cabinet. Just clarifying that category would remove the frustration among a number of first nations who are wasting a lot of time and resources on it.

I could go on.

[The Chair, Conservative, Chris Warkentin]

I'm certain. We wish we could drag this out a little bit longer because we're getting a lot of good information. I apologize that I'm trying to enforce a little bit of the time keeping.

We're going to turn to Mr. Bevington for five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair.

I want to first thank you, Mr. Johnson, for your information. I think that was a great suggestion by my colleague to get you to answer those questions.

I would also like it if at some point in time you could elucidate your point about the departmental shortfall in resources and manpower to actually do the work that's required. I don't want to get into that now. I know you mentioned it. I do have some questions I want to address to the vice-chief. If you could present us with more information on that topic, I would be very appreciative.

To the vice-chief, I'm interested, of course, in the land-use planning process. Within the Athabasca region, does that extend to the Alberta border as well?

[Brian Hardlotte]

No.

The Athabasca land-use plan that is being done does not go into that area. I'm familiar with the area. I have a map here, but to your question, it does not go to Alberta.

[Dennis Bevington, NDP, Western Arctic, NT]

But your first nations are in that area?

[Brian Hardlotte]

Do you mean the land use?

[Dennis Bevington, NDP, Western Arctic, NT]

No, the actual Prince Albert Grand Council.

[Brian Hardlotte]

There are first nations to the north. The Fond du Lac First Nation, the Black Lake Dene Nation, and Hatchet Lake Dene Nation are involved with the Athabaska land-use plan. But it's still in the working stages; nothing has been really.... To my knowledge, they've had their.... They did the process a little differently from the Missinipi land-use plan.

In our process there was a land-use plan provided for us from government. With them, I'm not sure, but I think they were on their own. They did their own land-use plan, which to me is a better process, because you're looking at your maps, you're really educating your members, putting them to work. Maybe, as an example, you can utilize summer students who are going to school in the area of natural resources. I think that's a better process than being provided a land-use planner and having them do all the work, such as the GIS work, within their department.

I'm also a little familiar with other land-use plans in the other provinces. An example is the Whitefeather Forest initiative in the Pikangikum area in northern Ontario. I had a look at their land-use plan, and I was totally impressed and amazed at the work they did with their land-use plan, using, of course, the pictures and using their own language and their own syllabic system right in the land-use plan, so their elders can understand it. It was a good process.