Indigenous and Northern Affairs Committee on June 14th, 2023

[The Vice-Chair, Conservative, Jamie Schmale]

Good afternoon. I call this meeting to order.

Welcome to the 71st meeting of the Standing Committee on Indigenous and Northern Affairs.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members may participate in person and via Zoom. Proceedings will be published on the House of Commons website. For your information, the web broadcast will always show the person speaking rather than a view of the whole committee.

I would also like to acknowledge that our meeting today is taking place on the unceded and unsurrendered Algonquin Anishinabe territory.

I will remind you that all comments should be directed through the chair. Speak slowly and clearly, because we have three languages being interpreted.

In the first section today, we have a number of witnesses here in person and on Zoom. I will introduce, from the First Nations Lands Advisory Board, Philip Goulais, and Andrew Beynon, director of land code governance, First Nation Land Management Resource Centre. As well, we have the Lower Similkameen Indian Band and the Métis Nation of Alberta joining us.

Why don't we start with the First Nations Lands Advisory Board.

Mr. Goulais, you have five minutes.

[Philip Goulais, Director, Former Chief, Nipissing First Nation, Ontario, First Nations Lands Advisory Board]

Aaniin kina waya. Hello, everyone. Meegwetch. Thank you for the invitation to speak to this committee as we meet on the traditional lands of the Algonquin.

My name is Phil Goulais. I am a proud member of Nipissing First Nation and the former chief of Nipissing First Nation. I have had the privilege to serve as an elected director of the Lands Advisory Board for many years.

I am here this afternoon to offer the Lands Advisory Board's recommendations on the issue of restitution of land to first nations, Inuit and Métis communities. I'm accompanied by my friend, Andrew Beynon, the director of lands governance at the First Nations Land Management Resource Centre.

In our written submission, we have briefly commented on the history that has created the restitution of first nations lands issue, and we offer our recommendations on a better way forward. I would start by noting a bit of discomfort with the term “restitution of lands”, which suggests that we lost touch with our lands and that the Crown is trying to figure out how to give lands back. We never lost touch with our lands. Nipissing, including myself, continues to practise our hunting, fishing and cultural traditions despite all of the many challenges of the past relationships with the Crown. Canada and Ontario never managed to take this away.

I commend the committee for tackling the important issue of first nations lands in Canada. I also want the committee to know that Nipissing, along with so many other first nations in the 20th century, faced a very real example of the Crown's recognizing our land rights, then taking them away, and then going through incredible delays to recognize our land rights again.

For example, Nipissing's land surrender and recovery of lands.... Archeologists suggest there is evidence of occupation of our lands for about 9,000 years. Nipissing was one of the nations signatory to the Robinson Huron Treaty of 1850. Later, lands were set aside, a Nipissing reserve, in the late 1800s, and in the early 20th century, Nipissing was pressed to surrender reserve lands for timber harvest, railway lands and the like. These were not surrenders taken at the request of Nipissing but were, instead, driven by Ontario and the federal government.

In one case, lands surrendered in 1907 remain unsold after failed land auctions in 1919. The lands came under the jurisdiction of the Province of Ontario under the 1924 land agreement. Nipissing First Nation retained an underlying interest in the lands. After going under provincial jurisdiction, the lands remained in limbo. Neither the federal nor the provincial governments exercised jurisdiction other than to allow for easements and rights-of-way to cross the lands. Ontario did not exercise jurisdiction because it was not responsible for native affairs. Canada did not exercise jurisdiction because it was waiting for Ontario to transfer the lands back to federal control. In 1963, Nipissing requested that the lands return to Nipissing. Four parcels of land were transferred to reserve status in 1968. After that, both governments continued the state of limbo with regard to the lands, claiming that no legislation covered the return of unsold surrendered land back to reserve status.

In 1986, the Indian Lands Agreement in Ontario provided a mechanism to allow for the repatriation of unsold surrendered lands to their former owners. Negotiations were restarted on the return of the unsold lands to Nipissing, leading to a 1995 specific agreement between Nipissing First Nation, Canada and the Province of Ontario. Orders in council to finalize the transition of the lands to reserve status were completed by the Province of Ontario in 2009, 34 years after the premier of Ontario promised to transfer unsold surrendered lands to Canada. As of this morning, we still don't have Canada's order in council.

More recently, we have pursued other additions to reserve that have taken a quarter of a century or more to complete. ATR policies sought by the Lands Advisory Board will take years to complete, cost us greatly in terms of staff, time and delays, or perhaps even cause us to lose out on economic opportunities. This is despite the fact that Nipissing is one of the earliest to have signed onto the framework agreement and to govern our lands successfully under our land code.

The Lands Advisory Board recommendations in our written submission include specific recommendations for this committee. I will summarize the recommendations.

First, Canada's land policies need to catch up with the era of reconciliation instead of confrontation. Reconciliation requires timely diligence in the pursuit of its objectives.

Second, claims and treaty negotiation policies, as well as ATR policies, need to support first nations and neighbouring Canadians in resolving land issues to the benefit of all.

Third, Canada's ATR policy is broken. We hope for this committee's support on our recommendations for a completely new approach, which is aimed at overcoming intolerable delays. Our aim is to break down the policy limitations and the current reliance on federal tools, systems and personnel.

Fourth, we also hope for this committee's support in convincing Canada to break down barriers between its own self-government land policies.... We have a proven track record of success under the framework agreement on reserves.

I, along with my friend Mr. Beynon from the resource centre, welcome your questions.

Thank you. Meegwetch.Merci.

[The Vice-Chair, Conservative, Jamie Schmale]

Thank you very much, Mr. Goulais.

We will go next to the Lower Similkameen Indian Band and Ms. Lauren Terbasket, please, for five minutes.

[Lauren Terbasket, Policy Adviser, Negotiator, Lower Similkameen Indian Band]

[Witness spoke in Nsyilxcen]

[English]

Thank you to the committee for me to be present for this important topic on land restitution.

[Witness spoke in Nsyilxcen]

[English]

I speak the names of my late mother and father, John Terbasket and Delphine Abraham, as well as my children, councilman Ira Edward and my daughter Tanisha Begaye.

I speak the names of my ancestry and descendants because their names tie us inextricably to our lands and our water and our tmixw, which are all living things. My homelands are the Similkameen and Tulameen watersheds in south central British Columbia and Washington state. It's comprised of over 7,500 square kilometres in British Columbia and 1,700 square kilometres in Washington state.

Our tribe, the Okanagan Nation tribe, is cut in half by the Canada-U.S. border, with 12 of our tribes in Washington state and seven in Canada. Our lands are unceded. We have never sold nor ceded our lands through treaty or any other legal mechanism.

The Similkameen-Okanagan systems are one of three biodiversity hot spots in Canada, hosting 77 terrestrial species at risk, including 28 that only exist in the Okanagan-Similkameen.

I am involved as a negotiator and policy analyst for the Smelqmix people and the Smelqmix government. We are working through national park reserve negotiations and MOUs with Environment Canada, through the Canadian wildlife service, to find pathways to overcome policy and funding barriers that will enable us to protect our homelands both for food sovereignty and biodiversity purposes.

In March 2022, the Smelqmix people declared an area of approximately 150,000 square hectares as an indigenous protected area, the Ashnola protected area. We did this because we could not get the support nor the tables established that would allow us to develop collaborative relationships with the federal and provincial governments despite all of our attempts.

We are working to translate our oral traditional laws into written law in order to further the process of legal pluralism and harmonization of legal orders between the Crown and our nation, and to incorporate, by reference, our Syilx water law and tmixw laws through our national park reserve discussions. We are working to address the impacts of legislative impairments from the Species At Risk Act. That would allow us to define and develop processes to compensate or trade lands so that we can protect those species that are so vulnerable and exist sometimes within our reservation lands, or are protected through limited access, through our reservations.

Based on the water-warming trends, the extreme water over-allocation, siltation caused by clear-cut logging, and mining contamination of sulphates, arsenic and mercury that are leaching into the Similkameen's systems, we can see that we are at a critical junction in terms of our time frames for indigenous nations to restore our systems, where the provincial and federal governments have not.

The treaty process and lengthy and expensive court proceedings leave Canada, the provinces and first nations in a perpetual state of animosity, distrust and economic uncertainty. These are not viable solutions.

What recommendations do we make?

First is that restitution within the traditional lands of the Smelqmix and Syilx, and all indigenous peoples in fact, must be framed within the context of our historic and future sovereignty and unceded and unimpaired jurisdiction over our land and our resources. We must make way for the constructs and pathways that allow for legal pluralism.

We know there are mechanisms that allow for transfer of lands across governments, such as lands that are transferred from provincial to federal jurisdiction through the parks process or additions to reserve. What is needed are pathways to allow for restoration, not to Indian reserves that are mired in bureaucratic red tape, but to sovereign tribal lands that make room for true reconciliation and legal pluralism within our homelands and this country that we call Canada.

Recognizing and enforcing indigenous laws are a mechanism that would allow us to hold industry accountable where colonial governments have not. This is imperative for both colonial and indigenous citizens, as we all pay the price through taxation, health costs and through expensive legal costs when our fights end up in colonial court systems. What is needed are stable financial commitments that would enable us to protect, restore and to also build economic models that are based on the concepts of sustainability.

We need processes that include nations that cross international borders and that do not pit us against our brothers and sisters across the U.S. and Canada, but that ensure co-operative, collaborative agreements.

We hope that in moving forward, the committee will look at these important issues.

[Witness spoke in Nsyilxcen]

[The Vice-Chair, Conservative, Jamie Schmale]

Thank you very much.

We will now go to the Métis Nation of Alberta.

I'm not sure who is going to speak, so I will open the floor to either one of you.

[Audrey Poitras, President, Métis Nation of Alberta]

Good afternoon.

I'm Audrey Poitras, president of the Métis Nation of Alberta, and yes, I'm very pleased to have Jason Madden along with me today.

I join you today from the Métis Nation homeland in what is now Alberta.

The Métis Nation is one of Canada's indigenous peoples. This is still our homeland, and it will be our homeland forever.

The rivers, lakes, forests and prairies of Alberta helped shape the Métis people. As a nation, we were born of the land, and we continue to depend on Alberta's lands and resources. Many Métis citizens hunt, fish, trap and gather, just as the Métis always have. They put food on their tables and sustain their families. They help keep our culture alive.

We have had to fight for generations to have our rights to the lands respected. When Canada expanded into the northwest following Confederation, we were already here. We had a right to be treated as a nation, to be negotiated with as equals and to fair compensation for any lands that were taken.

In October 1869, a group of Métis led by Louis Riel chased Canadian surveyors out of Manitoba to defend our Métis lands. Weeks later, they declared a provisional government in Manitoba to negotiate for the protection of our lands, and they did, but Canada failed to fulfill its promise. The Métis were persecuted, uprooted and scattered.

Canada moved across the Prairies, making treaties with our first nations, but did nothing for us, so the Métis began to organize.

In 1877, at Blackfoot Crossing, Métis petitioned Canada for assistance in settling land. In 1878, in Cypress Hills, Métis petitioned Canada for a reserve. In 1880, in St. Albert, Métis petitioned Canada to survey their lots.

Do you know what Canada did? Nothing. Worse than nothing, Canada opened the west for settlement and sold our homeland out from under us. We had to act. We had to resist.

In 1885, we declared a second provisional government. That year, at Batoche, Canada tried to break us. They captured Riel, held a kangaroo trial and killed him, but we were still here, and Canada knew it. This was when they gave us scrips—pieces of paper that offered nothing but false promises.

Now reduced to coupons, our homeland was systematically bought up by speculators and used to underwrite our own colonization. By the end of the century, Canada had reduced the Métis—the Otipemisiwak—to squatting on Crown land on the fringes of white towns and being called the road allowance people. Again, we organized.

In 1897, Métis in St. Albert advocated for the fair handling of Métis land claims and petitioned Ottawa for improvements to the scrip system. In 1911, Métis from Lesser Slave Lake petitioned Canada to investigate the fraud that plagued the scrip system. In 1920, Métis from Fort Chipewyan requested that Canada establish a royal commission to investigate scrip fraud.

Canada responded by changing the Criminal Code to make it impossible to prosecute scrip fraud, and to protect the land speculators who swindled us out of our rights. Canada, not Alberta, had legal responsibility for the lands in the province, but at the end of the 1920s, Canada proposed to transfer responsibility for the Prairies to the provincial governments. Once again, we organized.

In 1928, led by Charles Delorme, we advocated for the right of Métis living on Crown land. In 1932, we organized more formally as what is now known as the Métis Nation of Alberta.

In response to Métis lobbying, Alberta appointed the Ewing commission to report on Métis health, education, homelessness and land issues. After a two-year investigation, the commission recommended that the province provide Métis with a secure land.

In 1938, Alberta created the province's 12 original Métis colonies, now known as the Métis Settlements, which was the only legally recognized Métis land base in the country.

Alberta later rescinded four of those colonies, and today most Métis in Alberta do not live on the remaining colonies. Our fight, however, has had to continue: The wrongs of scrip have not been reconciled. Our rights as a nation have yet to be fully respected.

Thank you.

[The Vice-Chair, Conservative, Jamie Schmale]

Thank you so much to our witnesses.

We will now begin with our first round of questioning.

We begin with the Conservatives. For six minutes, we have Eric Melillo.

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much, Mr. Chair.

Thank you to all of our witnesses for being here on this important study.

I want to start with the First Nations Lands Advisory Board and the gentlemen in the room.

Let me start with a quick question that I wasn't planning to ask, but it came up in the opening remarks.

You mentioned, Mr. Goulais, that you didn't like the term “restitution” and you provided a bit of context. I was wondering if you could briefly offer a different term or a further explanation as to why you feel that way.

[Philip Goulais]

My friend Mr. Beynon will respond to you.

[Andrew Beynon, Director of Land Code Governance, First Nation Land Management Resource Centre, First Nations Lands Advisory Board]

Different nations, the Métis or the Inuit may have different views of terminology, but one of the difficulties, as suggested by Phil Goulais, is that “restitution” sounds like a recognition that all of the sovereignty and rights are with the Crown, and that the Crown then gives lands back or renounces what the Crown had. Many first nations, in my experience, start from a proposition that there wasn't a fair dealing in the past or a renunciation or surrender or ceding of rights.

In terms of a different terminology, there are other terms, like “reconciliation” or “addressing the lands question in Canada”, but I think there needs to be a bit of flexibility depending on the particular first nations, Inuit or Métis in Canada.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that context.

Also, on the opening remarks that were made, you mentioned, I believe, that around the additions to reserve process, some of the claims had lasted a quarter of a century and are still ongoing. I've heard a number of concerns. I come from northwestern Ontario in Treaty 3 and Treaty 9 territory. I have 42 first nations in my electoral district, many of which are in remote, isolated communities.

I've heard a number of concerns with the additions to reserve process. I'm curious to get your thoughts, your view, on what specifically is the failure or the holdup that's causing these massive delays and how we should look to fix it.

[Philip Goulais]

Meegwetch for the question and for letting me share part of the day with all of you today.

If we look at all of those examples where our lands have been in limbo for quite some time, including the area you mentioned—I have friends in the Grand Council Treaty No. 3 area as well—how do you measure the cost of lands being tied up in limbo for so long?

We're fortunate where I come from to have such a good rapport with the neighbouring municipalities and to be able to develop economic development projects. As a land management community, we have close to 100 businesses now—first nation, non-first nation and partnerships—that are going ahead, investing and creating a strong economy and a strong social fabric, and on good faith, because those lands really are still in question.

I hope I'm answering your question here, but we're going to need to see a process that is completely revamped. If you talk to the land managers, the frontline workers, the lands people in our communities, they're going to tell you and tell all of us that there's so much red tape. I think that's where your question is coming from. The left hand doesn't seem to know what the right hand is doing.

In fact, there are people from our community who have started working on our file, who have come on board and have moved papers from one side of the desk to the other, and still today, as I mentioned in my comments, the final desired end result is not there. We don't have those lands back under clear title, which is awkward for investors and for developers. We're not able to move at the speed of business, but we've done quite well so far. If we had to narrow it down—one of the spokespeople said the same thing earlier—there's so much red tape that it's horrendous for our workers who are charged with the responsibility of bringing in accurate information.

Meegwetch.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that context very much. I definitely understand the frustration you would have with that and the fact that it would hinder so much development and economic opportunity.

To stay on the same topic, I think on the additions to reserve you did a great job outlining the problem with red tape. I have genuine curiosity here; from your point of view, has there been any specific rationale or explanation given from the department to explain these delays? Could you share some of that with us?

[Andrew Beynon]

When you read the current ATR policy, it now stretches for 59 pages. It includes a 13-page application form and typically requires first nations to provide a 20-page submission just to get their ATR submission started. The ATR policy sets very narrow, restricted categories under which Canada might consider adding lands.

I suggest to this committee, which we took up in our written submission, that if you're looking at restitution or lands back, there needs to be a much more positive policy. We do not think it's possible to simply adjust the current process or procedures and make progress. An entirely new approach needs to be put in place. Fundamentally, we suggest that a number of steps in the current procedures are getting in the way of progress and preventing a benefit for both first nations and neighbouring communities. That's particularly with framework agreement first nations, which have—

[The Vice-Chair, Conservative, Jamie Schmale]

Thank you, Mr. Beynon. I'm sorry. We've gone way over time. Perhaps another questioner will be able to pick up where you left off.

Mr. Weiler from the Liberals is up next for six minutes.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Mr. Chair.

I'd like to thank Mr. Goulais and Mr. Beynon for being here in person and our witnesses for joining virtually as well.

Ms. Terbasket, I really appreciated your testimony. You brought up some very interesting points to start today, particularly in light of the indigenous protected and conserved area that the nations declared, the Ashnola IPCA, I understand.

At this point, the Government of Canada and the Government of British Columbia are in the process of negotiating a nature agreement to set out how the province will get to 25% of lands protected in B.C. by 2025. I was hoping you could speak to the importance of working in partnership with first nations in this effort and also how you see your idea of legal pluralism being able to be implemented in this work as well.

[Lauren Terbasket]

Yes, on the nature agreement—I think one of the concerns we have with the provincial-federal nature agreement is that there is very limited first nations input into even the drafting of the document. We had heard, I guess through outside means, that there were maybe two or three advisers, potentially, to the work being undertaken, but the draft of the nature agreement as well as any input from those nations related to the barriers we face in terms of protecting the lands are excluded.

Typically what happens within the province, and I guess within the federal government, is that something is drafted and then brought for comment. One of the really important factors that need to be considered is that the nations need to hold the pen. I think we are most experienced with the barriers we face when it comes to the protection of biodiversity and food sovereignty on our own lands. We face the legal mechanisms that are barriers more recently for IPCAs. We were unable and are still unable to get the province to make a commitment to move forward with IPCAs. They're telling us that they have no current policy and that now they're looking at the biodiversity framework as a mechanism, but again, we're excluded from those conversations.

I think what's important is the potential for those nations who have bravely moved forward with their IPCA declarations to include us in those discussions and to include some very key principles that come from all of our perspectives, whether they be from the north or the south. We come from very diverse areas and very diverse ecosystems. Those things need to be considered in the policy documents that are moved forward through both Canada and the province.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you very much for that.

Next I'd like to ask the First Nations Lands Advisory Board a couple of questions.

My apologies. I didn't have your written submission in advance, but I do hope I have a chance to see that in short order. I understand you have four main overall priorities and policy changes you're advocating for.

I want to touch on the last one you brought up around breaking down barriers for self-government. I do have a self-governing first nation in my riding, in the Sechelt Nation. I know that the process they went through in negotiating the modernization of that agreement could probably be described as tortuous.

I'm very curious about your perspectives on how this process could be ameliorated to ensure that we can move forward in a more expeditious way.

[Andrew Beynon]

Very quickly, we do deal with that in two areas in our document.

Number one, the policies show a reluctance to trust first nation governments and first nation governance of lands. The policies need to be more embracing of reconciliation, and need to recognize that self-government has succeeded in Canada. That's issue number one.

Issue number two is that a lot of the first nations who have negotiated self-government agreements have a positive relationship with their neighbours, so a drive to a less confrontational and to a more reconciliation-based approach with a better understanding of the benefits beyond first nations can help accelerate those.

The last point we make in our paper is that a lot of first nations have escaped the antiquated, ineffective Indian Act system of lands management and have gone to our land code system. In order to go to a modern treaty, or to a broader self-government agreement, you have to agree with Canada to renounce the framework agreement and all the work that has been done under it. It's that which we're suggesting is a barrier to moving ahead with self-government.

If first nations want to keep the framework agreement under another self-government agreement, they should have that option, and that would help accelerate things.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you very much for that.

I don't have much time left, but I was hoping you could quickly touch on how the Lands Advisory Board incorporates traditional knowledge and indigenous perspectives into lands management practices and decision-making.

[Philip Goulais]

Thank you for the question.

We continue to observe all the protocols in our gatherings, and all the things that we were taught back many years ago by our elders, and we still learn from our elders and our teachers. We make sure that, with all our cultural concerns, we try to address them and to make sure they're observed as we work and as we go forward.

[The Vice-Chair, Conservative, Jamie Schmale]

Thank you very much. We've gone a touch over.

We are going now to the Bloc Québécois and Madam Gill for six minutes, please.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I also want to thank each of the witnesses for coming today.

Naturally, I have some questions. First, I want to turn to Ms. Audrey Poitras.

I must tell you, as a Quebecker, that the Métis nation and Louis Riel are very dear to my heart. They're part of our history.

First, I'd like to hear your definition of self-government. Then, I want to ask you another question, after which I'll give you lots of time to respond.

The second question, which we also put to members of the First Nations Lands Advisory Board, is this: What challenges are you facing? Could you, perhaps, speak to us about issues specific to the Métis people? You could also tell us about the opposition you sometimes face.

In fact, that makes three questions. I'll give you time to respond, Ms. Poitras.

[Audrey Poitras]

Thank you very much for the question.

Actually, I should pass it over to Jason, who probably can respond to that more effectively.

[Jason Madden, Lawyer, Métis Nation of Alberta]

On your first question about self-government, the history of the Métis and first nations are almost like Through the Looking Glass. Canada's approach in the first nations context was control and assimilation through the Indian Act and other measures. For the Métis, it was, “Well, if we ignore them long enough, hopefully they'll go away and just absorb into the body politic.” That lack of recognition of Métis self-government has been almost the fundamental problem.

The Métis Nation of Alberta is 90-plus years old and still uses an association under Alberta's Societies Act in order to have its legal status and capacity recognized. That undermines and delegitimizes Métis self-government, which is just as vibrant and strong as other indigenous peoples' self-government. I would say that. Of course, we've been making progress on that in recent years, and we hope to push it further, but that's the fundamental stop. It's why, whenever you hear Métis leaders speak, self-government is the raison d'être of what they have been pushing with Canada, because there's been that history of denial since the days of Riel, which has been stifling.

To go further on this, those difficulties, because of that lack of recognition, whether it's in child and family services or undertaking decision-making for the Métis in relation to themselves, are frustrated. Self-government for the Métis, in particular, is seen as a vehicle to overcome those difficulties, because at least it's a starting point. You begin with a nation-to-nation, government-to-government relationship.

The land-related issues.... In many ways, we haven't even gotten to finally dealing with the legacy of Métis scrip and the challenges of a lack of recognition of Métis lands. I would highlight that's why, for the Métis in particular, recognition of self-government is so fundamental and key. As I said, it's different in different contexts for other indigenous peoples.