Indigenous and Northern Affairs Committee on May 29th, 2012

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'm going to call this meeting to order. This is the 37th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we are continuing our study on land use and sustainable economic development. With us we have a representative from MKO. He is Michael Anderson, the director of the natural resources secretariat.

Unfortunately, we don't have the grand chief with us. We had expected the grand chief to join us, but unfortunately he wasn't able to be here.

Mr. Anderson, we certainly appreciate you being here, and we want to turn it over to you now for your opening statement. We'll give you about 10 minutes if you can fit into that, give or take a little bit. My understanding is that there's a possibility of the bells ringing for a vote at some point in the next short while. My hope is that we can get through at least the opening statement. Then we'll maybe get some questions in, but if not, we'll come back shortly after the votes.

[Michael Anderson, Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.]

I'm at your pleasure, Mr. Chair. Thank you.

As a preliminary matter, I have several binders of material. I apologize that they are not in both official languages. They are tabbed materials with a fair bit of content that I had wanted to discuss during my presentation today, so I would invite members, if they wish, to pick up a copy of the material if they'd like to review that with me as I proceed.

As a bit of background, I would say that I've been working on lands and natural resources management for about 24 years as an employee of MKO, so I've been a personal witness of many of the different waves of activities and policies of the previous Conservative government, the Liberal government, and the current government, in terms of trying to mobilize lands and natural resources planning on reserve, engage first nations in economic development, reduce costs, and provide improved services.

A lot of the comments and suggestions we'll be making come from that real experience of seeing these various waves of different approaches, policies, and activities.

One of the things I'd like to go back to while describing this is a meeting we had recently with Minister Oliver. He raised the question with us of how we could get $500 billion worth of resource development moving in Canada. That was sort of the challenge we had in what I thought was a most excellent discussion.

The second question Minister Oliver asked was how we could address the significant underemployment of aboriginal peoples. That was the way it was described.

Mr. Chair, members of the committee, MKO has some very clear ideas about how to do both of those.

By way of a bit of background, as an organization we began our work on these types of ideas in 1984 with an intervention before the National Energy Board of Canada regarding an export licence for the Limestone generating station. Really, it was the first time Manitoba Hydro went toe to toe with a first nation organization before a regulatory tribunal. It was quite an eye-opener for Manitoba Hydro.

I had expertise from dealing with the NEB in previous proceedings, and MKO was represented by legal counsel, but the end result of it was the same sorts of ideas about capturing meaningful engagement of first nations, having meaningful involvement in procurement and contracting, having meaningful training and employment.

What was described by the minsters of the day—the Minister of Indian and Northern Affairs Canada and the Minister of Energy for Manitoba—was a northern preference clause.

So the promises were made, and what we relied upon in our evidence to the National Energy Board was in fact its decision in the Norman Wells-Zama pipeline. We quite literally whited out Norman Wells-Zama and put Limestone, and we presented the National Energy Board its very same recommendations and suggested that they be made applicable south of 60. Of course north of 60, as well as offshore, the federal government and the NEB have absolute authority to set terms and conditions that are enforceable for energy projects. But when you cross the 60th parallel heading south, there's some reluctance on the part of the federal government to utilize the carrot or the stick to impose policies on provinces.

In its February 1985 decision, the National Energy Board said the magic words, which made us very excited, that MKO's recommendations were “in the public interest”. In those days that usually meant the board was going to order it. However, as for NEB's interest in realizing our very detailed recommendations for training, employment, and northern preference, and their concerns about the effect of the Burntwood/Nelson collective agreement and how you would have to address those barriers, and so on, even though they were all essentially in the public interest and adaptable north of 60, given that long history with Justice Berger on the pipeline, the NEB said they would watch with interest how it would all unfold in Manitoba.

In the end, respectfully, the Limestone aboriginal partnership directorate board, which was established to engage in training and employment initiatives, produced what former Chief Robert Wavey of Fox Lake First Nation described as the most highly trained unemployed people in Manitoba.

If we look at the various stages of projects, these waves of multi-billion dollar investments, we see that they've all rolled over the first nations of northern Manitoba and passed us by.

The Limestone project passed us by. Essentially, for Limestone there was a hydro station in Quebec that had recently been finished, and the Revelstoke Dam was just finished in British Columbia—it came online in 1983—so we had two groups of very highly trained and mobilized dam builders who came to Manitoba to build Limestone. First nations persons were essentially doing labour jobs, cleanup, and so forth. Our largest contracting entity, Nelson House Forest Industries, finally got work at the very end of the project in clearing roadsides.

These are the kinds of experiences we've had that have made us dig in and figure out how to answer those questions. How do we achieve employment equity? How do we achieve benefit-sharing? How do we achieve not being rolled over by the wave of development, but actually become a participant in it?

So the comments I have to make to the committee regarding land management and sustainable economic development are with those real-life experiences well in hand, as well as the examples that we have today.

The MKO region covers 487,462 square kilometres in Manitoba, or about three-quarters of the province. At tab 6 of our book, on the third page, there's a map that we included in our recent submission to the special rapporteur on the right to food. This means that all of the large-scale resource developments, such as hydroelectric development, large-scale transmission, mining development, and all the major smelters, including Hudbay Minerals and Vale—formerly Inco—are all within the MKO territory.

Again, similar to our experience with Limestone, none of these large-scale developments have left a long-lasting legacy and have neither employed aboriginal peoples in these resource sectors nor highly trained them. For example, Hudbay Minerals has been operating since the Mandy Mine in 1914—almost 100 years—and Hudbay Minerals and its predecessors have never engaged in underground mining training. There is no legacy left in the local first nations or communities, like the Hudbay computer lab at the Mathias Colomb Cree Nation. So even with 100 years of extracting billions of dollars in mineral wealth from that territory, there is no long-term legacy, either in employment or in other areas.

That comment highlights the need, for example, for engagement in what we call “employment equity”, to ensure that employees of large-scale resource developments are roughly proportional to the population of aboriginal people surrounding them. That's what we mean by employment equity.

In terms of procurement, which is another element that we discussed with Minister Oliver, that is a meaningful set-aside of projects and contracts for these large-scale projects within the region. For example, the Manitoba government, when it looks at the $80 million in mines remediation in Lynn Lake, where the mines are all closed down, considers it positive to achieve a 15% set-aside to aboriginals living in the area instead of establishing its policy to try to encourage first nations to achieve 100% of the contract by going to partnerships with the Dene Tlicho, for example, who have developed a considerable expertise in mines development and so forth.

So in looking to answer Minister Oliver's two questions, how do we get $500 billion in development moving—

[The Chair, Conservative, Chris Warkentin]

Mr. Anderson, I do apologize. I do have to intervene.

Colleagues, votes are being now called. We have another two and a half minutes on the clock for the opening statement. If there would be a consensus, we could allow that to continue, and then we'll have to break at that point in time for votes.

It's looking like there's unanimity in supporting that, so for the next two and a half minutes we'll remain here, and then we'll head out for votes.

I do apologize, Mr. Anderson.

[Michael Anderson]

That's fine, Mr. Chair; I understand. As we shared earlier, it's similar to chiefs business. When the chiefs have a meeting that they need to attend to, then we are at their pleasure.

We were explaining basically the four elements to moving forward under employment and the projects themselves. The first was in procurement and employment equity in a meaningful sense. We can talk about how we think that could be achieved.

The second is accommodation. An example is using the crown-first nation consultation and accommodation process to establish measures with regard to terms and conditions in enforceable licences—which is what we were after with the National Energy Board in 1984—to ensure that these types of initiatives take place. There are substantial tools to do that. We raised that, of course, with the Senate committee. They endorsed our recommendation in A Hand Up, Not A Handout.

We need innovative mechanisms to ensure engagement at the community level in terms of business start-ups, investments, and training and employment. There is also, of course, as has been heard from many witnesses, revenue- and benefit-sharing. This takes multiple forms in terms of the sharing of direct revenues of the projects themselves, and the tax revenues governments may receive.

The concept of benefit-sharing is very widespread. There are a lot of different mechanisms and approaches to be taken, but they all tie together with policy. Manitoba Hydro, after operating and building dams in MKO's territory since the 1960s, has no codified aboriginal employment equity policy, so managers cannot be held accountable. Hudbay Minerals, similarly, has no codified aboriginal employment equity policy, so there are no targets that can be measured.

The aboriginal procurement initiative of the province really doesn't reach out to these kinds of capital works and projects. Even if the government itself is contracting the work, like the mines remediation project, the procurement requirements do not work downstream on the subcontract. The instant it's subcontracted, it's gone.

The federal PSAB has much more workable policies, but we're finding, in our experience with it, that it's not always applied as Treasury Board has intended. So the benefits and opportunities that first nation businesses in Manitoba may have secured through federal procurement may not have been achieved.

I believe, Mr. Chair, I've probably hit my two and half minutes.

[The Chair, Conservative, Chris Warkentin]

I do apologize—I hate to do it, Mr. Anderson—but I will have to now suspend the meeting.

Colleagues, we'll return immediately following votes, when we will begin the questioning with Ms. Crowder.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call this meeting back to order.

I apologize, again, Mr. Anderson, for that little bit of a hiatus. We're back, and I certainly want to thank you again for your patience.

We'll go now to our first questioner. Ms. Crowder, we'll turn to you for the first seven minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair, and thank you, Mr. Anderson. I add my apologies as well.

There are a couple of points I want to ask you about. You didn't specifically talk about this in your presentation.

I believe that 30 nations are part of the MKO group, and there is a substantial amount of development on the MKO nations' traditional territories. What sort of consultation happens with the nations of the MKO when development happens?

[Michael Anderson]

Thank you for the question.

MKO represents 30 of the northernmost first nations in Manitoba—65,000 treaty first nation citizens—and as I mentioned earlier, three-quarters of the province, which is basically the entire northern resource area. Historically, there was zero to very little consultation regarding major development. Certainly that includes all the established mines, all the existing hydro projects, with the exception of Wuskwatim, the transmission grid, the road systems, and the rail lines.

In our submission to the UN special rapporteur on the right to food, there is a history lesson by Elder D'Arcy Linklater, of the Nisichawayasihk Cree Nation, in which he describes the progressive changes to the land base without, as he puts it, free, prior, and informed consent. The MKO grand chief adopted Elder Linklater's submission to the special rapporteur, further to Elder Linklater's written request for us to do so. It is in the document we circulated.

In more recent times, the duty to consult in the crown-first nations consultation and accommodation process has been applied largely because MKO has insisted on it. The Province of Manitoba did not have a consultation policy, nor did it have staff to engage in consultation, until MKO and the Northlands Denesuline First Nation worked together to, in essence, develop an application to the Court of Queen's Bench to seek revocation of nine mineral exploration licences that were unlawfully issued without consultation.

That territory, in the very northwest part of Manitoba, of the Northlands first nation has essentially been used exclusively by the Dene for six millennia. The whole area is a Denesuline cultural site, so they're very sensitive about impacts on migrating caribou and on their own cultural sites. In essence, if you're flying in a float plane within their territory, and you see what looks like a good spot to pull your plane up and build a camp, it's because Denesuline hands built that camp over 6,000 years.

They discovered a 17-person exploration camp for CanAlaska Uranium in a very sensitive area, without their knowledge, without their consent, and with zero consultation. The community crossed their arms and said that this was not acceptable. They communicated with the grand chief. The grand chief assigned our office. We began working with the Manitoba Public Interest Law Centre and went from litigation to a discussion with the former Minister of Science, Technology, Energy and Mines, Jim Rondeau. Then he and Chief Danttouze agreed to settle the impending litigation through the creation of what became Manitoba's first codified consultation protocol and an accompanying accord to deal with some of the other issues.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Anderson, my understanding of the court decisions that have been rendered at the Supreme Court level is that there is a duty to consult at the federal government level as well. You're talking about the provincial government. But at the federal government level, we have a bill before the House, Bill C-38, the budget implementation bill, that appears to undermine that duty to consult when it comes to fisheries habitat, for example.

From the federal perspective, because that's the place where we can make recommendations, is consultation on that resource development, which drives the economy in the rest of the province of Manitoba, happening to the extent it needs to on the use of the land?

[Michael Anderson]

The federal consultation historically was non-existent until relatively recently, with the major projects, particularly Wuskwatim, in which there was a joint first nation-crown consultation by the province and Canada. That was the first time a formal—

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

When was that?

[Michael Anderson]

That was in 2004.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Okay, so it was that recently.

[Michael Anderson]

Yes. That was the very first time there was anything that MKO would recognize as a crown-first nation consultation process.

I'd like to advise the committee that within months of the Sparrow decision, MKO correctly recognized the significance and requested in April 1991 that the Province of Manitoba engage us in a working group to codify and implement the duty to consult.

Essentially, if you look at all of MKO's letters and submissions and reports that go back to that period of time, they're all absolutely consistent with the doctrine later established by the Supreme Court. We were trying to engage the governments, both federal and provincial, and corporations within the province in what is now recognized as a constitutional obligation of the crown.

In the case of Repap and Tolko, for example, they built something like 1,200 stream crossings for all their forest routes. It was MKO that pointed out that, first, they didn't have authorizations under the Fisheries Act; and second, they hadn't consulted. So after first being told there was no need for those authorizations under the Fisheries Act, the departmental officials involved then began to paper wrap all these stream crossings, again without any formal consultation.

There now are the interim guidelines issued by the Government of Canada that are being applied. But for example, there is a consultation that has been triggered by Fisheries and Oceans Canada on the Kelsey re-runnering project. That is an 82 megawatt increase in overall capacity at the existing Kelsey generating station. Kelsey happens to be sitting at a very critical juncture for the connection of sturgeon habitat between Sipiwesk Lake and the lower Nelson River. There was a report, of which I was a co-author, that was presented in August of last year. The other author is Dr. Terry Dick, a former NSERC research chair and the individual who wrote the original assessment of lake sturgeon for COSEWIC's consideration. I added the traditional knowledge component; he added the science.

That report has never been responded to by either Manitoba Hydro or the Department of Fisheries, so that consultation has ground to a halt.

So it depends on what's going on. If it's a Major Project Management Office initiative, the consultations are proceeding in some form. If it's below the radar and it's been demanded by a first nation....

We've prepared these template letters, which are described as notice of demand for the conduct of a crown-first nation accommodation process, that our first nations fill out with the appropriate information and send in. With those, even though the consultation may be formally engaged, typically it doesn't proceed. There are a number of those within our region that involve Canada that are not proceeding.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Anderson.

We'll turn to Mr. Clarke now, for seven minutes.

[Greg Rickford, Conservative, Kenora, ON]

Mr. Who?

[The Chair, Conservative, Chris Warkentin]

Mr. Rickford, for seven minutes.

[Greg Rickford, Conservative, Kenora, ON]

Okay.

[The Chair, Conservative, Chris Warkentin]

I have two competing lists here, so....

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Welcome to the witness.

It's unfortunate that Chief Harper couldn't be here today. He's a friend of mine from some time back. I've had an opportunity to live and work in a lot of the communities where MKO does its important work.

Michael, we are here today talking about sustainable land use development. As I'm sure it was explained to you, the first phase of this deals to a certain extent with on-reserve issues in these regards. But as the process goes, we realize, first of all, there's some cross-fertilization with respect to traditional lands and the bundles of rights, which the court, or specified claims, or what have you, make a larger subject matter.

The additions to reserves process comes up quite frequently. If I can be frank, most of us here, if not all of us, share some concerns about this long-standing process that takes too long. We certainly want to be able to deal with that. Eventually, I think, between myself and my other colleague here, we'll spend about ten minutes or more fleshing that out.

My question first of all will start as such. We've heard that the process of adding land to reserves is time-consuming. There's no question about that at this point, in this committee, in terms of the work that we've been doing. I understand that the Manitoba Claim Settlements Implementation Act includes provisions that have in fact helped entitlement first nations—there's a list, in our parliamentary library resources here, of which communities they include—provide some degree of protection to third-party interests by providing for pre-reserve designation authority. So this is some new language that we're hearing.

It was stated by Warren Johnson, a witness at this committee earlier this month, that this helps first nations have the ability to accelerate the additions to reserves process and settle uncertainty around the third-party interests.

Could you elaborate on the nature of the pre-reserve designation process? More specifically, in what ways has this authority affected the ATR process and addressed the delays in this process?

[Michael Anderson]

On the specifics of the pre-reserve designation process and the model that you've described, I was trying, with the case example, to understand. But in the existing Indian Act, there is provision under section 36 to designate a piece of land as a special reserve.

So there's statutory authority for Canada to identify a parcel of land as if it were reserve. I see this step as another tool, similar to that, to pre-designate parcels that may be converted to reserve.

On the movement of lands to reserve, I was part of meetings that were at the Manitoba Legislative Assembly when the predecessor federal minister and late Minister Oscar Lathlin had jointly made a commitment to move 150,000 acres a year to get toward the 1.1 million acres of lands that were provided under the TLE framework. The late Minister Lathlin really wanted to know what the holdups were. I remember we had a good technical chat about our perspectives on that.

A lot of the lands and acres that have moved subsequent to the commitments of the two ministers have been lands for which there have been relatively few conflicts. For example, in the case of the Nisichawayasihk Cree Nation, land within their traditional territory that formed together a chain of lakes that are not developed by hydro, there are no easements on them. There are no mineral claims. There are no other third-party interests that would hold them up.

[Greg Rickford, Conservative, Kenora, ON]

That would certainly complicate that, but I think what we're appreciating here is what role, if any, the provinces could play—and/or territories, I suppose—in a claims settlement implementation act that would help in some ways to deal with certain kinds of ATRs, notwithstanding some of the more complicated, not just cross-jurisdictional, issues with respect to minerals and other kinds of resources. That kind of implementation act might help deal with pre-reserve designation in the context of ATRs.

Is there a short answer to that?

[Michael Anderson]

The short answer is that the lands that are held up all have what regrettably has become a thorny issue.

[Greg Rickford, Conservative, Kenora, ON]

Right.

[Michael Anderson]

For example, in NCN's case, most of the lands with minimal conflicts.... I mean, I'm the TLE adviser for NCN, and they have by far the most complicated of all the selections of any first nation in Manitoba. They've asked us to help stickhandle that process through.