Thank you. Bonjour.
I would like to spend a few moments providing a bit of background on current Indian Act provisions dealing with designations to explain the context and then provide some information with respect to the proposed amendments in Bill C-45 that change the designation process.
Before I begin, I should mention that my name is Andrew Beynon. I'm director general of community opportunities branch at the Department of Aboriginal Affairs and Northern Development Canada. With me today is Kris Johnson, who is our senior director of lands modernization. We also have the good fortune of having Paul Salembier here; he is our legal counsel and has worked with us on these amendments.
I'll begin by saying that the concept of land designations in the Indian Act is relatively new compared to much of the Indian Act. These provisions were introduced into the Indian Act in 1988. They were designed to refine the provisions in the Indian Act dealing with use of reserve lands to create a category that allows for first nations to deal with lands, but without having to absolutely surrender them.
In this way, designated lands could remain reserve lands and not be cut out of the reserve. This feature of designation is particularly useful for entering into leases. That's because a lease is, of course, a temporary use of the lands, not a permanent alienation of the reserve lands. The designation provisions were added into the Indian Act primarily to allow for some first nations to also make arrangements to tax the leasehold interest, rather than have a third party on the reserve lands and lose that parcel of reserve land entirely.
By way of introduction, one of the interesting things for parliamentarians is that when the designation provisions were introduced into the Indian Act, they were introduced right into the provisions that deal with absolute and conditional surrenders of land, so when you look at the sections starting at section 38 of the Indian Act, you'll see references to absolute surrenders, conditional surrenders, and designations.
In the legislative provisions in Bill C-45, which make amendments to the designation process to make it more effective, we've tried, or the legislative drafters have tried, to keep largely intact and unchanged the provisions dealing with absolute and conditional surrenders, and to segment more and make clearer the designation provisions. I wanted to offer that as an introductory point: that these provisions in Bill C-45 really do focus on designations, and as much as possible leave unchanged the procedures and the provisions dealing with an absolute surrender when a first nation wants to take some land out of a reserve.
One of the key features of designations under the Indian Act is that designations have enabled first nations to provide jobs for community members through leases, as I mentioned before, collect property taxes from commercial and industrial developments, and even attract capital for developing small and medium-sized businesses. This is also relevant to the management of petroleum and mineral resources that are under Indian Act reserves. It's a connection of the designation provisions to the Indian Oil and Gas Act.
Designations have many purposes, ranging from oil and gas to commercial leases to industrial leases, and I think some of the witnesses who will follow us today will speak with their experience about the use of designations for these kinds of long-term leases.
Procedurally, under the Indian Act as it stands now, before the amendments proposed under Bill C-45, there are two important provisions with respect to designations. One of them is that the Indian Act is set up to require a community to hold a vote to decide upon a designation. It's not just the role of the band council; the voting procedure for designations under the Indian Act requires a majority of eligible electors to be present.
In practice, since 1988, whenever designations have been held, about 80% of first nation communities have failed to get the required voter participation or turnout at that first vote.
Under the current system, if a band council fails to get the required turnout on the first vote, it can request that a second vote take place to consider the proposed designation of lands. On that second vote, there is a lower threshold for voter approval.
The key point to raise with committee members is that in practice under the current Indian Act provisions, we have seen that in about 80% of these cases we're going to the second vote with the lower threshold.
The second issue with respect to the current Indian Act designation process is that after the community gets through the voting process, and usually a second vote, the consideration of the designation requires a federal approval in order for it to become valid. That federal approval is by the Governor in Council. The proposed designation comes in to our department and is reviewed by the Minister of Aboriginal Affairs and Northern Development, but then is taken one step further, going to a full order in council.
I will turn now to the nature of the proposed amendments in Bill C-45. As I said earlier, these are proposed amendments that deal only with designations. We've tried as much as possible to thread out any of the provisions dealing with absolute surrenders and leave those unchanged.
The key to these provisions in Bill C-45 is to make two improvements to what I have described before, which have ended up being lengthy and expensive processes for achieving designations of lands.
The first amendment is to lower the voting threshold for every designation referendum, eliminating the process of going to second votes and requiring merely a simple majority of voters in favour. It is anticipated that this will save months of time and the financial resources that would be required to conduct second votes.
I should stress that this is just an issue of the voting threshold, based on the practice and experience we have gained over time. This is not an alteration of the role of on-reserve and off-reserve voters. Under the current designation provisions, both on- and off-reserve members are entitled to vote; the same would hold true if Bill C-45 is passed.
The second proposed amendment, again based on our experience with the speed and cost of designation processes, is to eliminate the requirement for approval by Governor in Council as the final step in the designation process and instead simply provide that the minister may approve the designation.
These two proposed steps, I would suggest to you, do not represent a fundamental break with the concepts that have been around since 1988 for designations. It is still a process for temporary alienation of lands, primarily for leasing purposes. There is a community ratification process open to all of the community members and there is a federal approval to finalize the designation. All we have done is simplify the voting process and the federal approval, not eliminate either one of them.
I hope these opening comments provide some explanation of the provisions. We'd be happy to answer questions.
