Indigenous and Northern Affairs Committee on Dec. 3rd, 2013

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

I have one final question. When it comes to the actual definition of traditional lands, this is something that I have concerns about. We have examples in my area, Vermilion River, where we have first nations communities from Saskatchewan buying commercial land in Alberta to make it ATR. Do you have concerns about how widespread the definition of traditional lands could become and how people could be buying land across jurisdictions?

[Ernie Daykin]

I made note of that, I think, in the presentation. That is a concern. On both sides of the equation, if uncertainty can be taken out, it's better for all parties.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Do you feel the proposed policy takes the uncertainty out or adds uncertainty?

[Ernie Daykin]

I think it adds uncertainty.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn to Ms. Bennett.

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

Thank you.

Over the last couple of years, the ATRs were top of mind for many communities and municipalities. The Canadian Bar Association has said that without legislation there won't be any policy on ATR that will give certainty. If there was to be legislation, what would be the elements that would create certainty?

I am a little concerned that this is being treated as though it's an either/or. What we've learned is that if first nations are successful, that's good for everybody around them. It's not that the economic engine goes one place or the other. It's two and two makes five, if there's good stuff happening.

To focus, what would ATR legislation look like? What would be the elements that would give you the certainty you want in order to go forward?

[John Gailus]

This is where I part ways with my colleagues at the CBA. I think any legislation is going to have to be limited in scope and probably based on the model that we see coming out of the Prairies—a process for adding land to reserve and a process for pre-designation. For anything beyond that, given the systemic issues and the number of parties that may be involved in a particular proposal, the legislative drafters would have a hard time coming up with an additions to reserve act.

[Ralph Hildebrand]

I don't know if my friend in B.C. wishes to address this question.

[The Chair, Conservative, Chris Warkentin]

Mr. MacIsaac.

[Gary MacIsaac]

Thank you, Mr. Chair.

I will comment on this policy with respect to what we would see as clarity. One of the things we're seeking is local government engagement in the process. I'll give you an example of one of the areas of concern for us. Currently, a change from the 2001 to the current draft would be the issuance of a letter of support. The issuance of a letter of support in this instance could be done by the regional director general in advance of local government consultation or discussion. It could be a condition thereof, but in a good consultative framework and process, we would suggest that it needs to be done beforehand.

Whether it's legislation or policy, one thing that adds clarity is timelines. The 2001 ATR policy contained a three-month review period for local governments. The 2013 draft ATR policy does not. If you ask for certainty, we would think that timelines are a fairly important thing to have.

We've stated at the beginning, Councillor Krause stated at the beginning, as has Mayor Daykin, that we're here to have a policy that supports economic development and growth and facilitation. We're trying to make this as clear as we can.

Another area would be on dispute resolution. We're not advocating disputes, but we are suggesting that disputes with land transfers and land discussions that are this complex, impacting this many groups, will eventually lead to differences of opinion, and there needs to be clarity, whether it's policy or legislation, on what a dispute resolution mechanism would look like.

[Ralph Hildebrand]

I guess my comment, in addition, is that you referred to two plus two can equal five, and our primary concern is that two plus two will equal one. We want to have a process in place that would ensure the concerns and needs of both sides of this equation are dealt with sufficiently in advance to ensure that we have the synergies that get us to our five rather than resulting in our one.

[Ernie Daykin]

I'm going to go back to our metro model, with our regional growth strategy and 24 municipalities trying to come together. We had one that had significant challenges with that strategy. We had a process in place. It was clear. Both parties worked through it over a period of time and came to resolution.

I think it's having that clearly defined outline of what that process looks like so that both parties know going in, and knowing the expectations of both parties. At the end of the day, a resolution was reached.

The rules weren't made up as we went along. They were there at the front end.

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

There has been some concern that maybe the timelines aren't being met, or even attempted, because of a lack of resources in the department. There's too much going on and too few people to do it.

Has that been one of the reasons that you would want to see timelines or service standards or some goals set for how long this ends up unresolved, and to make sure the government has put people in place to make it happen?

[Ernie Daykin]

I think at the local government level we run into that as well. Folks want applications put through in a timely manner. We have certain resources to work with, and if those timelines aren't met, people are going to go somewhere else.

I think it's the same in this case. We all need timelines. We all need targets. Otherwise, I think it can very easily go askew.

I think I saw Mr. MacIsaac going to speak.

[Gary MacIsaac]

Mr. Chair, if I may, my comment regarding timelines was with respect to the timelines for local governments to respond.

As I said, the 2001 policy had a three-month review period for local governments; the current draft version does not.

It has been indicated by AANDC staff that this is an unintentional omission that will be corrected going forward. We're pleased to receive a letter to that extent.

But to your question about what could add more clarity, there is an issue that would add more clarity. I was specifically referring to the ability of local governments to have a defined period of time in which to respond.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn now to Mr. Strahl.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you very much, Mr. Chair.

Thank you to all the witnesses for appearing on relatively short notice.

Mayor Daykin, we're glad you made it through the fog, and we hope there hasn't been too much here today.

I did want to talk briefly...and this is something that I've been contacted about by many of the local municipalities in my riding. They have concerns, not only with the proposed ATR policy, but with the current policy itself.

Obviously there's no intention to give local government a veto, but certainly I've heard there is a kind of after-the-fact ATR notification when a municipality is brought in. It's almost a fait accompli, and there isn't a lot of opportunity at the early stage, as you said.

What do you think should be implemented? I know we have talked a bit about dispute resolution, but where there is a fundamental lack of agreement on whether land should come out of one taxing authority and go into reserve, how do you envision those disputes being resolved? Has UBCM, FCM, given any thought to what a dispute resolution mechanism might look like?

[Ralph Hildebrand]

With respect to dispute resolution mechanisms, as Mayor Daykin indicated, our local legislation has in process a mandated mediation process. We have a third party present to assist in the mediation of a dispute between the parties. That's how this dispute that he referred to over the regional growth strategy was resolved. We have found success there.

Our concern, I would say, in the context of an addition to reserve is that if the disputes aren't dealt with in advance, they can undermine the success of the project at the end of the day. For instance, the hint was made about conflicting uses within an ATR and outside an ATR. But as we all know, if you have a bad mall in the midst of a successful mall, that doesn't mean that the bad mall will necessarily succeed; it may be that it brings down the malls around it and you create a depressed area.

We want to ensure that when something is added to a reserve, all the elements are there to ensure the success of the project. If there are conflicts between use, they need to be ironed out in advance, not once they're discovered and the businesses are in place and have invested.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Anyone else?

[Gary MacIsaac]

Mr. Chair, to Mr. Strahl's question, I don't have the silver bullet in terms of the one method. But I would follow up on Mr. Hildebrand's comments that there are methodologies that exist within our own local government framework that we could use to build off from.

The other comment, picking up on the sort of after-the-fact piece and things that can provide clarity along the way, is that the 2001 policy included guidelines for the negotiation of reasonable compensation for local government. The 2013 draft does not.

So it's clarity that's lacking in there. I think there's a discussion that this would be worked on separately, after the fact, and I think that raises a number of questions for local governments.

It's inevitable that when additions to reserve happen, there could be the potential for net tax loss. That's understandable, but there needs to be clarity around and discussion about what those guidelines might look like.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Clearly there are some examples of ATR, where there is no local government concern, dragging on too long. I think the committee has certainly heard those.

In terms of the draft policy, how much of the angst, if I can call it that, of local government, especially in British Columbia—I'm from there, so I've heard it most there—is coming from this proposed removal of the contiguous nature of an ATR? That's where I've heard the most concern. I think some of the rhetoric has been a little overheated, but it certainly has raised concerns about, as Mr. Storseth said, first nations nowhere near a municipality coming in and purchasing land and taking it out of that tax base.

If that issue were resolved, if that stayed with the 2001 policy, how much of your concern would be resolved? Or are there enough problems with the current proposal that it's a bit of a side issue and there are still significant concerns?

Mr. Daykin or Mr. Hildebrand.

[Ralph Hildebrand]

With respect to the non-contiguity aspect, that is obviously of prime concern, particularly for a metro Vancouver area where you have over half the population in the province in one particular area.

If there is a lack of continuity, or there are no guidelines as to how or when these things will occur, there are obviously, as we've indicated in the past—we've also presented papers to the department—concerns with the existing policy as well.

[Ernie Daykin]

There are also concerns around servicing agreements, both regionally and local government, and how that fits in as well.

Going back to your first comments, if local government is part of the conversation right at the get-go, right at the outset of the conversation, I think a whole bunch of potential misunderstandings or challenges could be de-escalated rather than the other way of having escalated challenges. It's laid out at the outset instead of being an afterthought.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you.