Evidence of meeting #37 for Indigenous and Northern Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was hydro.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

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

4:50 p.m.

Conservative

Greg Rickford Conservative Kenora, ON

Are you hearing from third parties, Michael, as to whether they think this is better in the context of the implementation act than, say, the situation in another province where there isn't a layer, if you will, or a piece of provincial legislation that could help deal with certain kinds of ATRs?

4:50 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

The informal process that your officials have adopted and are working with, we call parcel A and parcel B. In that situation we take a piece of land that includes an identified area that's in conflict. The area might be a former mine against which there is a mining claim or something like that. We actually carve that area out of the boundary of the selection in order to move the rest of it. We've been creating these different mechanisms of designation in order to move forward so that the whole thing is not hung up just because there's a corner of it that's involved in a mining claim. The area is actually renamed—it's given A, or B, or a new name—and then the other part of it is moved forward.

4:50 p.m.

Conservative

Greg Rickford Conservative Kenora, ON

This is excellent information, Michael.

I'm curious; do you have an inventory of processes that have gone on under this Settlements Implementation Act, in which we could see quantitatively and qualitatively that it has worked better than what we've had, by way of comparison, in other jurisdictions, where there hasn't, let's say, been an act to speed up certain ATRs?

4:50 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

The quick answer is that we absolutely have the capacity to do that. We could do the comparison. If you're requesting that, we'd be happy to do that. Typically, it takes at least eight years to move a parcel from selection to—

4:50 p.m.

Conservative

Greg Rickford Conservative Kenora, ON

We've heard that.

4:50 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

So we're all into looking at anything that works, and if it doesn't undermine the intent for which the selection was made and so forth, we've all been pretty flexible. Actually, your officials in the region have been reasonably flexible about those kinds of things. The other hang-ups have involved areas with a cabin, a camp, on them. That was the reason the selection was made.

4:50 p.m.

Conservative

Greg Rickford Conservative Kenora, ON

So when you say a comparison—

4:50 p.m.

Conservative

The Chair Conservative Chris Warkentin

Thank you, Mr. Rickford.

I do apologize, but you've gone over time. I was going to try to jump in between the interchange there, but I will have to get to you on another round.

Ms. Bennett, we'll turn to you now for seven minutes.

May 29th, 2012 / 4:50 p.m.

Liberal

Carolyn Bennett Liberal St. Paul's, ON

Michael, maybe you'd like to finish up on the parliamentary secretary's question, and then maybe you can help us understand. You have been intimately involved in these processes for so many first nations. Could you tell us a little bit about what you think the delays are based on. Is there not enough staff? Are there not enough resources? Based on the question we placed on the order paper, there doesn't seem to be a tracking system so that people can know what the holdups are or even what the status of their application is.

Then maybe you can go on and tell us a little bit about some of the success stories in terms of urban reserves, or economic development, or what else you've been able to do.

4:50 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

Thank you for that question, and thank you for allowing me to continue with the parliamentary secretary's question.

We've all tried to make it work where we can. Even though thorny issues have arisen, they haven't.... As another consequence of the two ministers making a commitment to move 150,000 acres a year, a working group was created in Manitoba that involved federal, provincial, and first nations officials. I was one of the people designated at the request of the provincial minister. Of course the grand chief instantly concurred with that request.

I created a table. I like tables. I like to be able to snapshot things and be able to track and plan them. Of all the selections categories of the issues that were held up, I made the observation to all the people sitting on this working group that we are going to figure this out. There is no other group of experts somewhere else in Manitoba who know the TLE framework as well as we do—the director of lands for the department, the senior people from the lands branch in the province, and persons like me and other first nations reps. If we were going to puzzle this out and make it work, this group at the table was going to do it. There wasn't anyone else. Once everyone agreed, yes, that's true, then we began to focus on resolving the issues.

Within the path, what's happened is some intractable issues, like the form of a hydro easement, have frozen those selections, and they're not moving forward. There's a lot of work on a standardized easement agreement, but Hydro has requested the lands under easement be administered by the Province of Manitoba and not as federal land, and that's not consistent with the original TLE framework.

These are reserve lands that have an easement protecting use of the lands but subject clearly to the authority of the minister and chief and council. Manitoba doesn't want to do that. They're concerned about Canada having influence on the operation of Manitoba Hydro's water regime.

In terms of pre-transfer uses of lands, which is the question we were talking about earlier, a piece of land would be selected because it's a cultural site. There are camps and cabins on it. The department felt there was a liability concern, and that then delayed all those until we worked those out.

What we ended up working out was that instead of having that release, the acceptance of liability by the first nations covers the entire parcel, which may be several thousands of hectares. We had the release apply to the area reasonably appurtenant to the use. There were compromises, and I was part of the team who helped work that out. Whenever we've hit a wall, we've tried to figure out a way around it.

The easement one is a bit sticky, and it needs to be resolved because there are a large number of sites on the water because that's where our communities settled. The reason our communities are on rivers is for all the right reasons—water supply, communication, transportation, fisheries, wildlife—and so to have these particular selections held up are quite a problem.

We're keenly interested in the ATR process on urban reserves, for example NCN's selection of the Mystery Lake Hotel in Thompson. Apparently there's a ministerial recommendation from region to headquarters suggesting that this proceed, but it is still moving along. There's a site on Madison Street in Winnipeg that MKO is interested in for other reasons, which would be the first urban reserve in the city, Long Plain First Nation, because we have an interest in putting a Muskehki pharmacy in that parcel. It's being converted to Yellowquill College. We have a floor plan to put a pharmacy and a clinic in the college so it would be the first, first nation-owned business on an urban reserve inside city limits in Winnipeg, but that is not proceeding very quickly.

There's a lot of economic opportunity. A lot of benefit would flow from speeding up the mechanism of dealing with urban reserves in particular that are designated for economic purposes. In NCN's case they also have another selection they want to build a large convention centre on, a facility, because the Mystery Lake Hotel doesn't have conferencing facilities and so forth, which would create a hub of activity and business that would benefit the whole Thompson region. Again, issues with easements and dealing with Hydro have held up the piece of land they want to set aside for that purpose.

On problem solving that one, I can say we went to meet with the deputy minister of Northern Affairs and presented the rationale Hydro was using for setting an easement elevation on the land that would render most of the parcel under water or under easement, and therefore not developable. The deputy said that's a no-brainer. We're never going to do that because that particular easement elevation would flood half the Thompson airport and so on.

There's a lot of goodwill, we think, that's necessary to have players encourage each other, to not, in that case, set an easement elevation for a hypothetical project that's never going to get built, just for the purpose of controlling as much of the reserve selection as possible.

Positive development and economic stimulus for the Thompson region have been held up for a decade as a result of this position that's not moving with Manitoba Hydro, even though the deputy minister of Northern Affairs has advised the first nation that we're never going to do that, as did Mr. Brennan before he retired.

We need to try to get senior policy people troubleshooting through some of these hang-ups to get these critical acres moving, so we can create some jobs and build some convention centres and make benefit for the people of the regions based on those reserve selections.

There are a lot of positive results from the TLE agreement, especially in economic use of certain key parcels that are not proceeding.

Another one is, as you would probably expect, we did a detailed analysis of both mineral resources and potential hydro sites on NCN selections, for example. We hired the former deputy minister of mines for the Province of Manitoba to help us do the workup. He had retired, but he knew the ground better than almost anyone we could hire. He advised us of the key mineralization we should be interested in.

We also reviewed all the historic sites for developable hydro power. One of the selections that NCN has made is on the next low head hydro site below Wuskwatim. They've selected both sides of the river, so the Dominion Water Power Act would apply, which would mean they would get all the water rentals, everything. The site has been bedeviled by attempts to model easements so far upriver from Thompson, from the Manasan site, that the site becomes ineligible due to an interpretation of a provision of the TLE framework.

It's one of those things where if you sit reasonable people down in a room and lay the facts out face-to-face, we should be able to come up with some solutions to move these very valuable economic sites forward. Then we'd end up with, at that particular site which is known as Kepuche Falls, a hydro station built by a first nation using its own financial wherewithal. Wow.

5 p.m.

Conservative

The Chair Conservative Chris Warkentin

Thank you, Mr. Anderson.

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

5 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

Thank you, Mr. Chair.

To pick up on the comments and the discussion you had with Mr. Rickford earlier, Manitoba is one of three provinces that has enacted legislation aimed at expediting ATRs arising from TLE and specific claim settlements.

The Manitoba Claim Settlements Implementation Act contains provisions that enable ATR approvals through a ministerial order rather than through an order in council. It also enables pre-reserve designations.

What effect, if any, do you think this legislation has had on the speed at which ATRs are resolved?

5 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

I can say the ministerial order is a good thing. It moves the land more quickly. The order in council lands, you're all familiar with the mechanism. It takes a long time. You have to get the committee of deputies together. It's a long process to get an order in council of the federal cabinet.

Having a ministerial designation has substantially sped up the process in some cases.

As I've said, where we've had lands that are ready to go and can be moved, they've moved, and most of them have been surveyed. Most of them either have been set aside already or are in the process of being set aside.

The ones that are not moving, as I've described at some length, are ones with these issues that really require some senior-level troubleshooting once presented with the facts. However, changing it to a ministerial order has also, we hope, permitted the opportunity for departmental officials to take into consideration the field information from their own officers, information from the TLE committee, and from the first nation, and try to make a decision that feeds up through a ministerial recommendation that then can be acted on.

5 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

How does this compare with the pre-legislation period, these timeframes? Could you compare and contrast that a little bit?

5 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

Yes. I was saying that, without intending to be disrespectful, we called the ATR the prevention of reserves policy because it just took so long.

5 p.m.

Conservative

Greg Rickford Conservative Kenora, ON

Sorry, what was that?

5 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

The prevention of reserves policy. For example, there was an issue with the stale-dating of environmental assessments. Departmental officials would work on doing an environmental site assessment, particularly if a site had any human use prior to that, the storage of fuel or particular things like that. The wheels were turning so slowly that two years passed and at one time the ESA would be stale-dated, and you'd have to do it again.

There have been some internal policy changes made that have allowed, where there has been no subsequent change in land use, the previous ESA to stand and so forth.

The process took so long that when a piece of land was selected, it really wasn't moving to reserve. Often with first nations there has been a recent issue with the loss of use claim. Some of these lands are so valuable that they are delaying being transferred to reserve and converted to reserve, which results in a substantial economic loss, not only to the first nation, but to its partners.

5 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

Would you say it's significantly better than it was before?

5 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

I would say, as a practitioner, that there are elements of the change in policy that when properly applied are better than the previous process.

5 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

How much of the progress in converting lands to reserves do you think can be attributed to the legislation?

5:05 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

The ministerial order is a step that removes a considerable period of time consideration. I repeat again that most of the acres that have moved are ready to move. They're remote, there are no mining claims, and there are no hydro easements. You basically send a survey crew out, survey them, and get the survey photo mosaics authorized by the first nation. You get it named by the first nation, and then it goes through the process to be set aside. For those sites the change in statute to ministerial order has sped up the conversion to reserve, but for the ones that are hung up, it's not having the same kind of effect.

5:05 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

You're talking about some land with difficulties, but what would you say the challenges are right now?

5:05 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

I think reasoned minds getting together to methodically go through the parcels that are in limbo would be of some value right now. That might need some senior policy assistance to say, “This is the decision we're going to take, this is the decision we're going to live with, and let's move on”.

Brokenhead First Nation had several sites that Hydro claimed were affected by hydro development on the Winnipeg River. They were a considerable distance away, and they eventually got Hydro to drop that claim, and so forth. Try to speed up getting those blockages, where reasonable persons acting with information can actually make some decisions and ask whether we can move on.

That was the intent of the TLE working group that the late Minister Lathlin had established in response to the joint commitment of the two ministers. That working group didn't continue the sort of energetic engagement in identifying parcels and concerns, figuring out who was responsible for the concern, who had the concern, who could resolve the concern, and how we could get there. So that site-by-site process has sort of unravelled. I would strongly suggest that it be reinvigorated. I thought it was doing some good work.

5:05 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

At what stage do you find these things mostly take place—these challenges or things that are slowing down the process?

5:05 p.m.

Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.

Michael Anderson

Interestingly, in many cases with the sites that are the most troublesome the issues arose at a very early stage after selection in the various correspondence back and forth, including from the province. Some of them, for example the departmental concerns regarding the pre-transferred use of lands, arose considerably afterwards.

As far as one of the issues, under the TLE framework agreement a very important provision is that the 1991 additions to reserve policy are grandfathered, so there's an agreement that Canada will not change the ATR after entering into the May 29, 1997, TLE framework agreement. So the rules then will continue going forward.

A considerable amount of time and effort has been invested in resolving concerns that both government parties have come up with after signing the framework agreement. Pre-transfer uses of lands is one big one that Canada came up with. Then this new set of rules for easement lands that Manitoba and Manitoba Hydro are pressing have taken up a considerable amount of time.