Indigenous and Northern Affairs Committee on Nov. 19th, 2012

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

Is there a backlog in the number of communities waiting for votes to take place?

[Kris Johnson]

No, not in waiting for votes to take place, because the volume isn't that high. However, we have heard anecdotally that some have avoided the process because of the difficulty.

[The Chair, Conservative, Chris Warkentin]

Thanks, Ms. Crowder.

Mr. Richards, we will turn to you for seven minutes.

[Blake Richards, Conservative, Wild Rose, AB]

Thank you, Mr. Chair. I appreciate that.

I will start by making sure there is some clarity around the idea of land surrender and designation. The act obviously speaks to both. Frequently, land designation is confused with land surrender because of the wording in the Indian Act.

Could you clarify for us the difference between these two terms, and which is being amended in Bill C-45, and why? Why it is important that changes to this legislation apply only to designations?

[Andrew Beynon]

I will give a nutshell answer. My colleagues may want to elaborate on it as well.

Essentially, the Indian Act prior to 1988 provided for two things: an absolute surrender of reserve lands or a conditional surrender of reserve lands. As the language implies, an absolute surrender was to be used when a first nation, for one reason or another, wanted to have part of its reserve land cease to be a reserve. A conditional surrender allowed the first nation community to take that same step, but with some kind of a condition tied on the release of the lands—for example, a conditional surrender for railway purposes for however long railways might use the lands, or for electrical utility purposes for the length of time the electrical utility used the reserve.

Particularly with conditional surrenders to a particular user for a limited time, what happened was some first nations came forward and suggested that the specific use and the very particular purpose behind the conditional surrender meant that there was still some remaining interest for the first nation over time. They tried to tax the lands, but the courts decided that the nature of an absolute or a conditional surrender was such that the land was not clearly remaining part of the reserve in order to be subject to taxation.

The amendments introduced into the Indian Act in 1988 clarified two things. One, they made it very clear that there could be a lesser step by first nations, which was to designate lands but not to fully surrender them. The designation would leave a sufficient interest of the first nation in those lands, particularly to permit its taxation. That was the major benefit of the Kamloops amendment in 1988.

As I said in my opening remarks, what Bill C-45 is doing is targeting those designation provisions, for which we now have about 20 years of administration experience, to simplify the process and to make designations go through quickly. It's a surgical set of provisions. It doesn't change the absolute surrender provisions.

[Blake Richards, Conservative, Wild Rose, AB]

So we are only talking about the designation portion. The surrender is not being amended by Bill C-45.

[Andrew Beynon]

That's correct.

[Blake Richards, Conservative, Wild Rose, AB]

Thank you. I appreciate that.

Given that we've now established that point, can you tell me what challenges the designation process currently poses to first nation land managers in dealing with prospective private investors? If you could give some examples, it would be very helpful.

[Andrew Beynon]

The current designation provisions have been helpful on the one hand in terms of making it possible to have long-term leases and to marry that with taxation of the leasehold interests, but experience has shown some problems with it, particularly the delays involved in having what is very often two votes by the community before you can be sure the designation has happened. Then on top of that, to have to go through the federal process all the way to a Governor in Council decision.

I think you'll hear from some witnesses from first nations later today on timing, but in many communities the total process for the lengthy designation is around two to four years. I'm even aware of one case in which it took eight years to finally go through a designation process. The problem with that for economic development is that it is simply not operating at the speed of business. Neighbouring communities are able to make decisions with respect to potential commercial, industrial, or residential use of lands far more quickly and capture economic opportunities. That's the first thing.

The second thing is that first nations dealing with the current designation process can't be 100% sure of the speed of going through the voting and the Governor in Council approval process. As a result, if an outside developer is offering some potential that the first nation community may want to pursue, they can't say up front to the developer that they can guarantee a six-month or an 18-month process.

[Blake Richards, Conservative, Wild Rose, AB]

So you're suggesting that the benefits are that it will allow decisions to be expedited and also create some certainty for those potential investors to ascertain what the timelines will be in receiving or not receiving approval, which obviously, as we know, is a very important aspect of doing business.

Do you see any other benefits in allowing the minister to be able to approve designations without referring them to Governor in Council?

[Andrew Beynon]

Yes, I'd add one more, and that is, as I was saying in response to an earlier question, the anticipated cost of conducting a surrender is going down. Right now, an administrative cost is incurred in having to go to second votes.

[Blake Richards, Conservative, Wild Rose, AB]

So in addition to those two facts, it's also reductions of costs. You feel this change will expedite the process for approval of land designations.

Could you give me an indication of to what extent we can expect this process to be expedited?

[Kris Johnson]

On your question as to the extent it will expedite, in the designation processes over the last five years, the average time between a first vote and a second vote is about four months, so by effectively eliminating the need to go to that second vote, you will speed things up by an average of four months. Sometimes it can take even longer than that, because you have to formally request it, get a response authorizing the second vote, go back to the community members with the information, allow a specified period of time for them to consider that information, and then conduct the vote.

The timing between a ministerial approval and a Governor in Council approval again is variable, but it's months on average, so when you total it all up, you're probably looking at six months at least, and in most cases probably much more than that.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Richards.

We'll turn to Ms. Bennett now for seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much.

As you know, this committee is studying land management at this time. It seems odd that, based on the two letters that have come to the committee from the Onion Lake First Nation and the Penticton Indian Band, some people think this is a good idea but others are quite offended. Many of the people we've talked to, as my colleague has said, say there was no prior discussion on this matter—no meetings, no consultation—and see it as a violation of their treaty rights to have imposed changes to the Indian Act without their consultation.

As the director general of the community opportunities branch, can you explain how it can happen that we sully the relationship with first nations, ending up with these top-down decisions that they had no say in and weren't even aware of? They didn't even get an information session this time, as opposed to what usually masquerades as consultation. They got a letter saying this is what's happening.

To go back to the UN declaration concerning “free, prior and informed consent”, how do you do your job in terms of relationships with communities when this kind of stuff happens?

[Andrew Beynon]

I would offer two comments.

First, to go back to my previous answer, with all due respect I suggest that these amendments are not touching upon aboriginal or treaty rights.

The second point I would raise is that designations are not an obligation of first nations; they're a tool to be used by first nations that want to use designations. Simplifying the process but maintaining the role of the community in voting on the designations, I suggest to parliamentarians, is not really a fundamental interference with something that was existing in the Indian Act.

Beyond that, I have to leave it to parliamentarians to consider whether or not, for these amendments or for broader and more comprehensive amendments to the Indian Act or other legislative change, you would want to have a broader engagement with first nations before proposing change.

Again, this legislation is only dealing with the nature of those particular provisions that respond to a complaint about the speed and cost of designations.

[Carolyn Bennett, Liberal, St. Paul's, ON]

But in terms of your declaration that this doesn't infringe on treaty rights, isn't it up to first nations themselves to interpret what they think is the right to have been consulted on things that affect them?

[Andrew Beynon]

Well, it's something that goes both ways. It is the government that has legal duties of consultation when those are triggered, so it's really for the government to consider whether proposed decisions or legislative actions might infringe on aboriginal treaty rights and whether they're justified.

Again, my suggestion is that this does not.

[Carolyn Bennett, Liberal, St. Paul's, ON]

But to tuck something as sensitive as the Indian Act into an omnibus bill.... Have you ever seen that done before?

[Andrew Beynon]

I can't say that I have, but the other comment I have to make is that I am not in charge of making decisions on how the government introduces legislation. The choice of Bill C-45 or of another process is not for me as an official.

[Carolyn Bennett, Liberal, St. Paul's, ON]

However, for you as the director general of relationships with communities and hoping for their success, consulting with communities probably is the way you generally do business. This hasn't done that at all—not one meeting.

[Andrew Beynon]

I would agree that as a director general, a lot of my work is done in consultation with first nations, and there is a lot of merit to drawing out views that they have. In many if not most situations, that's what we do. In this particular case of small changes to the Indian Act involving obvious impediments to economic effectiveness and discretionary provisions—they're not an obligation for first nations—that's the rationale for the choice.

I understand why you're raising the concern and offering what some first nations have said, but this is about as much as I can say as an answer.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Taking that view, you can't know what they thought because you didn't ask.

[Andrew Beynon]

I'm going to go back to what I said earlier. We did have indications from first nations—many of them—that there are great concerns about the delays in respect to approval of designation processes. This is not something that was developed by me without a sense of some input from first nations.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Well, getting the letter from Onion Lake afterward can't make your job easy in an ongoing relationship.