Indigenous and Northern Affairs Committee on June 5th, 2023

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I'm good with 20 minutes into the bells.

[The Chair, Liberal, Jenica Atwin]

Is that okay?

[Some hon. members]

Agreed.

[The Chair, Liberal, Jenica Atwin]

Thank you. We will proceed.

I'm sorry, Mr. McLeod.

[Michael McLeod, Liberal, Northwest Territories, NT]

Okay. Thank you, Madam Chair.

I'll go back to my question for Shannon.

I've heard a lot from your president Garry Bailey on different issues. He has come out with a number of suggestions over the year.

You have your time here in front of the committee. I want to know this: Could you run through some of the suggestions you think the Government of Canada can follow to make the negotiation process more efficient and effective?

[Shannon Cumming]

Thank you.

I appreciate that the member was interrupted by ringing bells. I think, last time, his line fell out, so he's a real trooper to hang in that way.

Thanks for the question.

We had a hard look at what it would take to create conditions for success. One thing that became very clear was this: There was a minister's special representative in the mid-aughts—or around 2014 or 2015—who made a report. One thing the minister's special representative recommended, and we agree fully with it, was this: Some of the old mandates, which have been around since the 1970s and 1980s, are very outdated. They are so far in the past as to be very unhelpful in getting things to the finish line. Therefore, more flexibility in mandates for government negotiators would be helpful.

If you look at the agreements throughout the Mackenzie Valley, up and down the valley, from the Inuvialuit, the Gwich'in and the Sahtu, and now to the Dehcho, the Tlicho and us in the South Slave, every agreement has always changed a bit from the one prior to it. Yes, they're similar, but in each case the negotiators found some way to put certain benefits into each of these agreements that help drive their communities forward.

For the Tlicho Agreement, north of Great Slave Lake, one of the big things they were able to successfully negotiate was a strategic economic development investment fund. It had never been done in an agreement north of 60, but the Tlicho made it happen. It was only around $5 million, which is not a huge chunk of change given the hundreds of millions of dollars on the table, but it was key to bringing that agreement to the finish line.

What would be helpful is, when a negotiating party gets close to the finish line.... It's like being 95% up Mount Everest. You've come so far and it's been a hard pull, but you're up in the death zone. You can only be up there so long. You have to hit the summit and get down safely, or you're going to die up there.

What we've learned, especially watching some of the previous large processes like the Tlicho Agreement, is this: If the minister's office and the federal system, in particular, have their full attention on this file, it's going to get completed. You absolutely need a signal from the system that this government intends to conclude its business and get this file to the finish line. We've seen this for every successful agreement north of 60. We would love to see it for ours.

Thanks to the member for the question.

[The Chair, Liberal, Jenica Atwin]

Thank you, Mr. McLeod.

Welcome to the committee, Mr. Savard-Tremblay. You have the floor for six minutes.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you, Madam Chair.

I thank the committee for having me. I'm replacing my colleague Ms. Marilène Gill, who can't be with us because of the terrible forest fires currently ravaging her region. Our thoughts are with her.

It's still a pleasure to be here today, being a member of a First Nation myself, the Huron-Wendat Nation. This is the first time I've sat on this committee, and I thank the witnesses for their enlightening testimony.

With regard to the issue of land restitution, which we are studying today, several avenues for solutions and improvements are open to us.

To the witnesses, I'd like to talk about the expression "economic reconciliation". From my understanding of this concept, which can refer to land management, it is inherent to cultural reconciliation, and these two ideas go together. Indeed, the testimony we heard leads us to believe that territory, identity, culture and language are all intertwined and interrelated.

Can you give us some concrete examples of what land restitution, Indigenous community management and economic reconciliation contribute to other areas, such as a community's culture? In other words, how is it possible to bring together both economic and social well-being?

[Clarence T. (Manny) Jules]

There are quite a number of examples right across the country.

When we talk about economic reconciliation as it applies to lands, one of the examples I gave was in the city of Winnipeg with the Kapyong properties. That development alone will translate to literally billions of dollars for the regional economy. The development at Tsuut’ina by Calgary is, again, a billion-dollar development, because first nations have not only the land but also the jurisdiction over those lands.

Another example is close to downtown Vancouver with the Squamish first nation. They're doing a multitower residential development. Again, it's over a billion dollars. You have that kind of scale of potential right across the country.

Of course, on the lower end of the spectrum, you have communities that really are.... Some by the city of Merritt have lost virtually all of their land as a result of flooding and forest fires. It's a matter of rebuilding those properties and giving them the tools that are necessary to redevelop their lands without complete dependence on the federal and provincial governments.

Of course, I believe in interdependence, but what we need with first nation governments is for them to have their own sources of revenues and their own jurisdictions over their lands. In order to facilitate that, we have to be able to have our own land title system.

Under the present system under the Canadian Constitution right now, “Indian reserve” means whose title “is vested in His Majesty for the use and benefit of a band” of Indians. That's antiquated. That's from the 19th century. What we have to do is put that in our colonial past and look forward to a future where first nations have the jurisdiction and the land title that our ancestors have always talked about.

[The Chair, Liberal, Jenica Atwin]

Go ahead, Mr. Cumming.

[Shannon Cumming]

Thank you to the member for that question.

Looking at the examples in the Northwest Territories, one of the things that comes to mind is that what's been negotiated in the agreements up there is resource royalty sharing. The government shares revenues from resources with the indigenous governments in the regions, and that's been a really successful way to generate revenue for indigenous governments that are emerging—some of them with settled treaties and some, like ours, that have not yet finalized their treaties.

It's a really good example, albeit a bit of a small one, of economic reconciliation in action. There's no issue of title to the land, because it may even be something as broad as a generalized interest in the resource royalties, so while a negotiating party may have its own lands to deal with, it also has the possibility of generating revenues from the resources that are being developed up and down the Mackenzie Valley. Whether you're in the Mackenzie Delta, halfway down the Mackenzie River or, like us, in the very southern part of the NWT, there's an opportunity to benefit from mineral resource development, and everybody shares in that.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Jules, can you talk a little about what's happening in the United States? You mentioned an aboriginal trust. Can you elaborate a little on that?

[Clarence T. (Manny) Jules]

I think that's something we have to seriously consider—some of the supplies to environmental groups purchasing properties on behalf of indigenous tribes in the United States, or renters who want to turn over some of their former lands to tribal lands.

What I envision in the trust would be a federally legislated model that individuals would be able to get a tax credit for making contributions to. It would allow individuals to turn over their lands and properties to individual first nations. In lots of cases there are lots of hard feelings between the neighbours, and that would help alleviate that by creating an atmosphere of goodwill and co-operation.

One that I'm most familiar with is the land board out of Minneapolis and St. Paul. They help facilitate lots of tribal groups to purchase lands back and to negotiate all of the ins and outs, because it is pretty complex when you're dealing with an individual who has one set of appraisals and another set of expectations. How do you bring the partners to the table to have an agreement that everyone would be able to live with in the future?

What I actually envision is a piece of legislation, which the federal government would pass, that would work responsibly with first nations here in this country. Of course, part of that would be looking at the examples in the United States. That's the primary area I would look to, to help reconstitute lands that were ultimately taken away from us. In some cases, it's having willing partners and willing sellers.

[The Chair, Liberal, Jenica Atwin]

Thank you, Mr. Savard-Tremblay.

Madam Idlout, you have six minutes.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut as follows:]

ᐃ ᖁᔭᓐᓇᒦᒃ ᐋ ᐃᒃᓯᕙᐅᑕᓖ ᐊᒻᒪᓗ ᐋ ᒫᓃ ᑕᑯᓪᓗᒋᑦ ᐊᒃᓱᐊᓗᒃ ᖁᕕᐊᓇᖅᐳᖅ ᐋ ᐊᒃᓱᓪᓘᓐᓃᑦ ᐅᖓᓯᒃᑐ− ᒦᒃᓱᓄᒃ ᑕᑰᑎᒐᓐᓄᒃ ᐋ ᐊᒻᒪᓗ ᓵᓇᓐ ᑐᓐᖓᓱᒃᑎᖃᑕᐅᕙᒋᑦ ᑕᒪᓐᓇ ᐋ ᓄᓇᓕᕆᓂᖅ ᐋ ᐱᒻᒪᕆᐊᓘᒻᒪᑦ ᖃᐅᔨ− ᒪᔪᐃᓐᓇᐅᔪᒍᑦ ᐱᔾᔪᑎᖃᓗᐊᖅᓱᓂ ᑕᐃᒃᑯᐊ ᐅᔭᕋᓐᓂᐊᖅᑏᑦ ᐋ ᑮᓇᔾᔭᑦᓴᕋᓱᑦᑐᐊᓘᕙᒃᑎᓪᓗᒋᑦ ᓄᓇᖃᖅᑳᖅᓯᒪ− ᔪᖅᑎᒍᑦ ᓄᓇᒋᔭᑦᑎᓐᓂ ᑖᒃᑯᐊ ᓄᓇᖃᖅᑳᖅᓯᒪᔫᑎᓪᓗᑕ ᐊᖅᓵᖅᑕᐅᓯᒪᔫᑎᓪᓗᑕ ᐋᒻ ᐅᑎᖅᑎᕝᕕᐅᔭᕆᐊᖃᕋᓗ− ᐊᕋᑦᑕ. ᐋ ᐃᒪᓐᓇ ᐊᐱᕆᔪᒪᕗᖓ ᑕᒪᓐᓇ ᐋ ᐋ ᖃᐅᔨᒋᐊᕐᕕᐅᒋᐊᖃᖃᑦᑕᕐᓂᖅ ᓴᓐᖐᓗᐊᕆᒐᒃᑯᓕ ᐋ ᓴᓐᖏ− ᓂᖅᓴᐅᔭᕆᐊᖃᖅᑑᔮᕐᒪᑦ. ᓴᕐᖕ..ᐃᒪᓐᓇᓕ ᓴᓐᖏᓂᖅᓴᐅᒐᔭᖅᑰᖅᑐᖅ ᐋ ᐃᓱᒪᖅᓱᓗᑎᒃ ᐱᔪᓐᓇᐅᑎᑖᕈᑕᐅᕙᑦᑐᖅ ᐋ ᐊᓯᔾᔨᖃᑦᑕᖅᐸᑦ. ᐋ, ᑖᓐᓇ ᐊᖏᖃᑕᐅᕕᓰ ᑖᓐᓇ ᐳᕇᐃᓐᑐᕆ ᓯᔅᑎᒻ ᐊᓯᔾᔨᕆᐊᖃᕐᒪᕆᑦᑐᖅ ᑖᓐᓇ ᐋ ᓄᓇ− ᖃᖅᑳᖅᓯᒪᔪᖅᑎᒍᑦ ᒫᓐᓇᑲᐅᑎᒋ ᑐᓴᖅᑎᑕᐅᖔᖅᓱᑕ ᑭᖑᓂᐊᒎᓐᖏᑦᑐᖅ ᐋ, ᒫᓃ ᓯᕗᓪᓕᐅᓗᑎᑦ ᓵᓇᓐ ᐊᑉ...ᐋ ᑭᖑᓪᓕᐅᓗᑎᑦ ᑭᐅᔪᓐᓇᕈᑦᓯ.

[Inuktitut text interpreted as follows:]

Thank you, Madam Chair.

I'm also very happy to see you again, Manny. It's a pleasure to be meeting with you virtually, as well as Shannon.

Regarding land back, the subject of land back is very important, as we all know. Mining companies are seeking to profit on indigenous lands. Being indigenous people, our lands have been stolen from us, and we need to restitute our lands back.

I have a question. The duty to consult is too weak, in my opinion. There has to be a better approach to strengthen the consultation processes, as well as the rights. Do you agree with me that the free entry system has to change within indigenous jurisdictions, and for us to be informed immediately, not after?

Manny, I'd like you to go first, and then Shannon.

[English]

[Clarence T. (Manny) Jules]

I think this is a very critical question.

One of the things I dealt with when I was chief—and this was an issue that was handed down to me from former chiefs.... We called this land that was taken away from us “the hole in the middle of the table”. That land was taken away from us by the provincial government in the 1800s. We ended up purchasing that property when I was chief in the 1990s, so it took virtually 100 years to resolve it.

One of the arguments that the federal and provincial governments put forward was that, because they gave us gifts, that was adequate consultation and the Indians were happy, which meant we had given up the land. In our community, we know and understand fully what surrender means, and obviously, we didn't surrender those lands nor those interests.

Some of the things that are critically important when we start to deal with the whole question of land back are not only the comprehensive claims processes but also the specific claims processes and expediting those processes. A lot of those lands were taken away from us under circumstances that, ultimately, were suspect because they were predicated on the fact that we couldn't raise money to defend ourselves and that we couldn't have the legal advisers at our disposal to defend our rights. These are issues that I think are separate and apart from a lot of the specific claims and, therefore, comprehensive claims issues we face across the country.

When we talk about the notion that there should be a higher standard of consultations, that's absolutely right, because first nations had these rights taken away from them by none other than Duncan Campbell Scott in 1927. He was the Department of Indian Affairs agent at that time. He worked for 50 years under that department and had 15 hours of presentations to a committee just like this, where my leaders had 15 minutes. Under any circumstances, that's wrong.

[The Chair, Liberal, Jenica Atwin]

Go ahead, Mr. Cumming.

[Shannon Cumming]

Thank you, Madam Chair.

The member raises a really important consideration for any indigenous government that's either negotiating or implementing a modern-day treaty. One of the limitations around the duty to consult is that, at the end of the day, the government still may make a decision that's contrary to the interests of the indigenous government. Despite their having laid out their case eloquently, emphatically and respectfully, the decision is still taken to proceed, and that, in our view, falls a little bit short of the whole notion in the UN declaration about the idea of “free, prior and informed consent”.

To me, that seems like a further step down the road to reconciliation than just that bare duty to consult that's shaped by common law, which, at the end of the day, may leave the indigenous government in a situation where it didn't agree strongly with the decision that was taken and felt like it had no recourse. I don't think that is conducive to reconciliation.

One thing that is another complicating factor is that, if you have a huge mineral development—for example, a large mine—it's going to be very difficult to claw the land back. That land is.... The interest in land has been granted, and the government is reluctant to change that at all.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Madam Chair, there is a problem with the interpretation.

[The Chair, Liberal, Jenica Atwin]

Thank you very much.

We're having a technical issue, Mr. Cumming, if you could hold on a minute.

Okay. Thank you for your patience, Mr. Cumming. It's a matter of your Internet quality, I guess. You can continue to answer the question, and if it doesn't work, we'll have to get you to provide a written response, if that's okay.

Please continue.

[Shannon Cumming]

Thank you, Madam Chair.

The Internet quality is fairly tricky in the north at the best of times, and I don't think the forest fires are helping. We will endeavour to provide further written submissions, not just on this particular matter but generally on some of our suggestions, to help address some of the issues around getting land back.

I was talking about free, prior and informed consent. The only other point I want to make, if I can be heard, is that there may be creative solutions to deal with a situation in which a mining company has a huge development and it's too late to claw the land back. There may not be enough benefits through something like an impact and benefit agreement, but the negotiating party would not be well disposed to saying, “We're going to settle this agreement and we'll just let that one slide by.” There may be some off-ramps the government can consider to deal with the issues around resource royalties, for example, or employment provisions separately from the treaty negotiations or treaty implementation.

If there's a way to deal with some of these outside of the treaty process, then the treaty process itself should not be used as a means to extinguish any of those rights that still exist on behalf of indigenous governments with respect to lands and resources. All we're suggesting is that there may be creative ways to allow these issues to be resolved, not necessarily through the treaty process but through something different, and those will achieve the economic reconciliation.

Thanks.

[The Chair, Liberal, Jenica Atwin]

Thank you very much.

It actually worked out quite well. I think we still have interpretation.

We are going to have to suspend. We have a vote in the House.

Thank you so much for your testimony, Mr. Cumming and Mr. Jules. It's always a pleasure to see you. We very much appreciate your testimony.

Thank you very much. We will suspend.

[Proceedings continue in camera]