Indigenous and Northern Affairs Committee on May 29th, 2012

[The Chair, Conservative, Chris Warkentin]

Pardon me. I hate to interrupt.

Thank you, Mr. Seeback.

We'll turn to Mr. Genest-Jourdain, for five minutes.

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

Good afternoon, Mr. Anderson.

[Michael Anderson]

Good day.

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

I was particularly interested in the part of your statement where you spoke about...

Can you hear me well?

[Michael Anderson]

I can, yes.

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

I was particularly interested in your statement that the members of aboriginal communities are not included in decision-making bodies and the upper echelons of industry, especially in relation to the development of industry and of resources on traditional lands.

I am a native of a northern Quebec community on the 52nd parallel. Over the years, I have also observed that the deterioration of the social fabric was related to the encroachment of industry on our territory. I would like to know your position on that and in particular, I would like you to give us some idea of the situation in Manitoba.

[Michael Anderson]

The legacy issues related to large-scale developments and first nations land are deep and profound. There are elders in some of our communities who have not gone back to their traditional territories where their former homes were because it would literally break their hearts.

I know that companies have some difficulty in understanding how this could persist for more than one generation, but the elders and community members feel that many of the legacy issues are not resolved because they're not resolvable. There's an irreversible adverse effect to changing river systems, water regimes. The seasonal flow of water has been completely reversed. The water is high in the winter when it used to be low, and so forth.

However, having said that, the first nations are insisting, even those who are partners in new development.... For example, the Nisichawayasihk Cree Nation is a 33% equity owner of Wuskwatim, and the Cree Nation partners are collectively a 25% equity owner of the new Keeyask generating station.

There's actually an interesting tension between even their partner, Hydro, and the first nations. There's this thought that when you're a partner in a project you move on; you've accepted what's happened before. But the elders and the community members are insisting on keeping the current impacts and those legacy concerns as equally front and centre as their partnership in building the project. Every step that's taken has to reconcile, to heal, those past impacts.

In Stoney Cree, it would be, Kwayaskonikiwin—to achieve balance. So the elders are insisting that ceremonies be done, that recognition be done, to not forget what happened and move forward.

The impacts of the past developments are around everyone every day. The communities insist that be recognized.

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

What is the turnover like? If I understood what you said correctly, training is given to members of the communities. That also goes on in the communities. ERAs, impact and benefits agreements are concluded with the companies. Training is planned, and a percentage of jobs have to be set aside for the communities.

However, the fact remains that there is quite a high turnover rate among the employees from the communities. That phenomenon is linked among other things to the deterioration of the fabric, that is to say that the company managers claim that the employees are not reliable. They claim that Indians from the community do not turn up once the cheque has been issued. Are the same claims made in your area? Does industry put these things out there in order to justify a constant turnover among the aboriginal workers?

[Michael Anderson]

There are circumstances that are very similar in our communities, partly because of isolation, lack of support for workers when they're in camps, and so on. The agreements are attempting to provide support for workers and to adapt their work schedules so their lives and their communities, including their harvesting activity, can be accommodated in their employment on the projects. It still has a long way to go.

On the Wuskwatim project, there was what was described as cross-cultural training, which the first nation was responsible for. Interestingly, when you took a tour of the Wuskwatim project and you came through the plant gate, you would be handed a list of the customary law principles of the Cree Nation as they would apply to the construction of a hydro station. Then, if you were working in that plant, all of this would be explained to you—how the project was inherently inconsistent with the customary law but that all of these other activities would be undertaken to try to reconcile it.

In terms of our workers, it's very important that there be support for them—for counselling, for assistance with their communities. If people are at a distance for long periods of time from their families, particularly if they're from remote communities, it is apparent to employers that those persons are less reliable than others. But they have a different cultural outlook on time and seasons and community needs, and their families' needs. We're trying to grow the resource industry to match the expectations of our citizens.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

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

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

Thanks, Mr. Chair.

Thanks, Michael, for coming today.

A vast majority of first nations communities in Canada operate under the Indian Act. As I understand it, in the case of the MKO most of the communities are that way as well.

I have two questions for you, and then I'll let you answer them. Managing reserve land under the Indian Act is, shall we say, weak. What are some of the challenges faced by land managers under the provisions of the Indian Act?

My second question is, in your experience, what factors influence a first nations community's decision to remain under land management under the Indian Act, as opposed to joining the first nations land management regime, for example?

[Michael Anderson]

The most obvious limitation for first nation environmental management is that section 81 of the Indian Act doesn't provide a head of authority for a first nation to manage the environment and its lands in that common sense.

One of the former environment managers of Manitoba region and I spent a long time trying to figure out how we could twist and turn and tweak the current legislative framework to result in an environmental management regime. It might be of interest to the committee, as kind of a sidebar, that when the chiefs in the assembly created the Natural Resources Secretariat in 1988, we equipped ourselves almost immediately with a geographic information system and satellite imaging capabilities, so that we could do mapping of both our communities and the surrounding territory.

The region was so excited about what we were doing that there were proposals jointly between the regional director general and our grand chief to headquarters to try to resource the kind of capacity that we represented on a long-term basis, so that the region would have a partner to try to work through some of these issues.

We weren't successful in achieving it. I was very grateful for doing a small national tour encouraged by the Manitoba region to see what we have here in Manitoba and how maybe it will work for you. But the essence is the statute doesn't provide clear tools for managing the environment side of the equation. As for the First Nations Land Management Act, first nations like Opasquiak are interested in it because they need the tools to deal with leases to do economic development on reserve of other persons other than themselves as well as their own members.

They had trucking operations, for example, and prior to the First Nations Land Management Act, they didn't have the authority to enforce their own leases. If they were having trouble with people dealing with battery acid or fuel or oil, or they wanted to deal with those individuals, they didn't really have all the tools they needed. Under the land management act, they have a bigger tool kit that they can use to properly manage their lands in the sense that prudent and reasonable managers would expect of their lands.

It's a tool kit that works for first nations that have need to use it. It's less applicable, although not exclusively so, to a first nation that is more remote and that is managing, typically, its own lands and may not have any certificates of possession or any individual possession of land through a formal mechanism. People live through custom. That's their house, that's the point of land on the lake where their family has always lived, and it's administered essentially through custom, through chief and council and the entire community.

Other first nations have gone into pretty rigorous regimes like the Squamish Nation. That's the classic case of Joe v. Findlay, where they did have a truck operation over by Indian Arm, and they couldn't control it. So it was that gap in the law between a head of authority under the Indian Act, which does exist in that case, and implementing it through bylaws.

One of the other projects we've been keenly interested in is filling the statutory authority where it does exist under section 81 with a comprehensive scheme of bylaws for on-reserve land environmental management to make the tools work as much as we can make them work.

There was a time in the past where Manitoba region was keenly interested in creating these kinds of frameworks, but it's less so today.

[The Chair, Conservative, Chris Warkentin]

We will now turn to Mr. Bevington for five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you.

Thank you to Mr. Anderson. Quite obviously you have a wealth of experience in this particular area, and I appreciate what you're telling us here today. Some of it may take a little time to digest.

I'm interested in what's happened over time with the hydro facilities. I guess the original one was Grand Rapids?

[Michael Anderson]

The first large project in the north was Kelsey, which was constructed to provide power to the Inco operations at Thompson. That was a co-project built originally between Inco and Hydro, and became a Hydro project.

That was followed then by Kettle, the first large generating station on the Nelson River at Gillam, and then Grand Rapids.

[Dennis Bevington, NDP, Western Arctic, NT]

People in Grand Rapids, I visited there a couple of summers ago, and they were very concerned about the treatment that they've had in terms of the hydro facility and what it had done to their community, and some of the unresolved issues that they have with the federal government over this.

Are you familiar with those issues?

[Michael Anderson]

I am. I've done some work with the two of them. Actually, in terms of the project sequencing, it was Kelsey, then Grand Rapids, then Kettle. Kettle was not possible until long-distance high-voltage transmission was technically feasible.

One of the reasons Grand Rapids was begun in January 1960 was because the transmission length wasn't that long. It's our thinking today that if you applied to build Grand Rapids in 2012, you would never get a licence to do it, because it was the fourth largest freshwater inland delta in North America. Even the United States Department of the Interior, when they did the environmental review of it, intentionally underlined several key facts like that.

In the case of Grand Rapids, the project was constructed, and no settlement was arrived at with them until 1991. The settlement at the time was a full and final $5 million. That seems unthinkable as a measurement of the value of that generating station on a full and final settlement basis. They subsequently arrived at a further arrangement with Manitoba Hydro regarding the re-licensing of the dam. The licences are about to expire. As a condition of their support for relicensing the project, Manitoba Hydro has agreed to provide annual payments to the community on a basis that was agreed to through negotiation with the first nation. The future agreement is very different from the past one.

[Dennis Bevington, NDP, Western Arctic, NT]

Has the federal government had a hand in this as well?

[Michael Anderson]

Well, interestingly, Canada was not a party to the original agreement, nor is it a party to the current one. Members may be aware, and the parliamentary secretary certainly is, that there has been outstanding litigation, which has been moving along slowly, between the Grand Rapids First Nation and Her Majesty, because Canada was not a party to the original settlement. The first nation takes the position, and we would agree, that Canada did have and continues to have a responsibility regarding the construction, operation, and licensing of the Grand Rapids generating station. I happen to be one of the witnesses for the Grand Rapids First Nation in that case.

[Dennis Bevington, NDP, Western Arctic, NT]

I notice that you have some details about some of the work that had been done on fuel storage and lands management. How many communities do you still have in the region that are off transmission lines? Do you still have a number of diesel-fired communities?

[Michael Anderson]

Well, the report you referred to, which includes that case study, is “The Fiduciary Obligation and the Environmental Management of First Nations' Lands”. As a bit of background, the department circulated this report to every first nation in Canada as part of the lands-in-trust review held many years ago. They considered the discussion in it to be important enough that it was part of the tool kit given to everybody. We're updating it now.

To answer your question, though, there are two types of fuel consideration. We have four communities left that are on diesel: the Barren Lands First Nation, the Northlands Denesuline First Nation, Sayisi Dene First Nation at Tadoule Lake, and Shamattawa. They're the four most northerly first nations, if you draw an arc around them.

The fuel storage we were talking about in this case study was also fuel for heating, because many of our communities, even though they have electricity, still use heating oil for personal use and for backup. Even though there is a grid now to most of the east side first nations, the grid does go down. When you have a nursing home or a personal care home or places like that, you have oil as a backup.

There were many types of tanks in the community. Also there was gasoline, diesel fuel, lubricating oil, and so on. This case study was about how to manage that. The concern was that, at the time, the department had engaged in an arrangement with the Province of Manitoba, without speaking with the first nations about whether that was the process they wanted, to have fuel storage tanks monitored, regulated, and so forth.

What originally brought it to our attention was that some of our first nations were getting enforcement orders on provincial letterhead. The chief and council were receiving letters from the Province of Manitoba about the condition of their fuel tanks. Those, of course, were delivered to me very quickly, and then we began this dialogue with the region. Subsequent to this original paper, the fuel storage regulations were established under the Indian Act. They were then placed under federal authority.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Anderson. I do want to thank you for the testimony today. We certainly appreciate you putting up with us running in and out. Certainly, I want to thank you for coming and bringing testimony. I can tell you that it has been valuable.

There was some information that had been requested from certain members around the table. I don't know if there's a recollection as to what that might have been. You are not compelled to send it to us, but if you would, our committee would certainly appreciate it. I think there was a comparison that was asked for by Mr. Rickford, as well as some information from Ms. Crowder. Maybe you can—

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

No, actually, I have a question for the parliamentary secretary, which is separate. It's just a very brief question.

[The Chair, Conservative, Chris Warkentin]

Okay. Very good. If that would be available, I know that would be really appreciated. If you would just make it available to the clerk, that could then be distributed to committee members. Like I say, it's not something that we compel you to do, but if you have it available, that would be helpful.

Thank you so much for coming. I think there's just some committee business that we have to undertake now. Then, we will be free to leave.

Ms. Crowder.

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

It's actually just a very quick question for the parliamentary secretary. I submitted a notice of motion, but realized that we're going to run out of time.

I am wondering if it is possible to have the minister come on supplementary (A)s, which were referred to the committee. I know the last supply day is coming up. I don't think it has been scheduled, but we have to have him before the last supply day. I realize that, because we have no committee meeting on Thursday, we won't be able to talk about the motion on Thursday. I wonder if you could ask the minister if he would come some time before the last supply day.