AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 2, 1999

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[Translation]

The Chairman (Mr. Guy St-Julien (Abitibi—Baie James—Nunavik, Lib.)): Good morning. Today, March 2, 1999, in accordance with the order of reference taken from the Journals of the House of Commons of Thursday, November 26, 1998, our committee is continuing its study of Bill C-56, an Act respecting an agreement with the Norway House Cree Nation for the settlement of matters arising from the flooding of lands, in respecting the establishment of certain reserves in the province of Manitoba.

The study of clause 1 of the bill is stood.

I would like to get unanimous consent to group clauses 2 and 8 of the bill, which include the definitions that apply to parts 1 and 2 respectively. Is there unanimous consent?

(The motion is carried)

The Chairman: We would like to welcome our witnesses from the Department of Indian Affairs and Northern Development: Mr. Terry Henderson, the Director General, Claims Implementation Branch, Claims and Indian Government Sector; Ms. Sandy Jackson, Acting director, Intergovernmental Affairs, Manitoba Region; and Mr. Gordon Kitchen, Director, Land Entitlement and Claims Implementation, Manitoba Region.

I would ask you to proceed with your opening remarks, Mr. Henderson.

Mr. Terry Henderson (Director General, Claims Implementation Branch, Claims and Indian Government Sector, Department of Indian Affairs and Northern Development): Thank you very much, Mr. Chairman.

[English]

Good morning to you and to all members of the committee. I'm pleased to be here today to speak to Bill C-56, which is before you. I wish to provide some opening remarks, following which the various witnesses, my colleagues and I, would be pleased to respond to any questions committee members would have. In addition to the three witnesses whose names the chairman read out, I have two other people at the table whom I will be asking to speak to these files.

Sandy Jackson, who was already mentioned, is here speaking with respect to part 1 of the bill. She is joined by Mr. Ken Marchant, who is legal counsel with respect to part 1, the Norway House portion of the bill. Also Gordon Kitchen, who was introduced already, is here with respect to part 2 of the bill. He's joined by Mr. Tom Saunders, who is legal counsel with respect to part 2, the Manitoba reserves establishment part of the bill.

Bill C-56 is a good piece of legislation, from our perspective. It's directed at Manitoba-based claim settlements. It provides the tools needed to ensure implementation of settlements in a timely fashion and as intended. In addition, the economic development advantages of this bill should not be overlooked, since its enactment would provide the means for the timely transfer of land to first nations pursuant to their settlements. Land, of course, is one key element of first nations economic development.

As I said, Bill C-56 furthers the implementation of Manitoba-based claim settlements, but it has two distinct parts, and those parts further the implementation in very different ways. Part 1 of Bill C-56, which is called “Norway House Cree Nation Flooded Land”, focuses on the Norway House Cree Nation master implementation agreement.

There have previously been a number of pieces of legislation virtually identical to the provisions contained in part 1 of this bill. In fact, the Norway House master implementation agreement is the fourth in a series of similar agreements, which have each benefited from the enactment of the kinds of provisions that are in part 1 of this bill.

The three previous agreements were signed in turn by the Split Lake Cree First Nation in 1992 and by the York Factory and Nelson House first nations in 1996. The Norway House master implementation agreement, like the three previous ones, enables a much improved fulfillment of obligations owed to certain Manitoba first nations by Canada, the Province of Manitoba, and Manitoba Hydro under the 1977 Northern Flood Agreement.

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In particular, the Northern Flood Agreement contained commitments that were to be jointly fulfilled by Canada, Manitoba, and Manitoba Hydro. I am pleased to say that the Norway House Cree Nation, Canada, the Province of Manitoba, and Manitoba Hydro—all four parties—have now addressed these commitments under the Norway House master implementation agreement.

It's important to understand that the provisions of part 1, if enacted, are not needed to give effect to the Norway House agreement itself. The Norway House agreement has had full force and effect in law as a duly executed contract since its signing on December 31, 1997. Instead, by enacting part 1, Parliament will be allowing the first nation to exercise, within the safeguards of a trust established under the agreement, direct decision-making authority over compensation it receives, without the involvement of the Department of Indian Affairs and Northern Development. Parliament will also be providing the ability to respect certain measures in the agreement for the handling of disputes, in particular by way of arbitration.

Prior to its signing, the Norway House master implementation agreement underwent a ratification process. In Canada's view, this ratification process was both proper and lawful and expressed the democratic will of the community.

I will now turn to part 2 of Bill C-56. Compared with part 1, part 2 of Bill C-56 would have the potential to facilitate the implementation of a larger number of Manitoba claim settlements, many claim settlements beyond simply the Norway House master implementation agreement. Part 2 focuses on existing and future Manitoba claim settlements that require Canada to create additional reserve lands.

First nations are given the freedom to apply this legislation to any Manitoba claim settlement, whether it concluded before or after introduction of this legislation. This part of the bill, if enacted, would improve how first nations address the interests of third parties on lands selected for reserve under the claim settlement. Part 2 would also shorten the time it then takes to confer reserve status on these lands. These innovations would enable the Manitoba first nations to develop these lands to the economic benefit of their members sooner than would otherwise be possible.

Here's how part 2 would accomplish its objectives. First, part 2 would give the Minister of Indian Affairs and Northern Development the power to set apart, as reserve, lands selected by first nations under their settlements. This would shorten the time that would otherwise be required to secure reserve status from the governor in council.

The rest of part 2 addresses the fact that land parcels selected for reserve purposes will, generally speaking, already be affected by some other existing property interests, for example, leases and easements. These interests must be addressed in some way before the land in which they lie can be made reserve. This does not mean that in all cases these interests must be removed. To the contrary, both the first nation and the interest holder will often share a mutual advantage in the preservation of a lease easement or other existing interest after the land moves from the provincial system and becomes reserve.

Within existing laws, however, this sort of continuity is not automatic. Even where the third party and the first nation want it to happen, the formal consent of the first nation is required. The Indian Act gives first nations the power to issue these consents, but only after the land holding the interest has already become reserve. Part 2 of Bill C-56 will allow first nations and their members to consent to the granting of third-party interests on the lands in question prior to reserve creation.

The key to these new provisions then is one of timing. Just as soon as a parcel of land has been identified for reserve creation under a settlement, first nations would be able to consent to the continuation of the interests that will affect this land. No less significant is that these provisions would allow first nations to consent to the granting of brand-new interests just as early in the reserve creation process so that they can take full advantage of emerging opportunities.

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In summary then, part 2 benefits Manitoba first nations and other Manitobans alike. First nations will be able to take the benefit of existing or potential economic activity on the lands they select. Other Manitobans will be able to secure very early in the reserve creation process a legally binding agreement for the preservation of their economic interests in these lands. They will also be free to approach first nations with new economic proposals for lands not yet made reserve, secure in the knowledge that a legally binding agreement can be put in place at an early stage.

Mr. Chairman and members of the committee, this concludes my opening remarks. We are now open to entertaining questions, and I have introduced my colleagues who would be pleased to respond to those. Again, with respect to part 1 of the bill, it's Ms. Sandy Jackson and Mr. Ken Marchant, and with respect to part 2 of the bill, Mr. Gord Kitchen and Mr. Tom Saunders.

Thank you, sir.

[Translation]

The Chairman: Thank you for your presentation, Mr. Henderson. We will now move to the question. I have been told that Mr. Bachand will be arriving late because of the bad weather. Once he arrives, he will be given his turn.

Mr. Konrad.

[English]

Mr. Derrek Konrad (Prince Albert, Ref.): Thank you, Mr. Chairman.

Thank you for your presentation.

I'm interested in finding out about the third-party interests. One of the problems that has been identified under the TLE in Saskatchewan is that rural municipalities are somewhat under the gun when it comes to bands obtaining reserve status. I don't know how this can be addressed, but the land may have been owned by a private landowner who applied for country residential zoning, let's say, and has been turned down by the rural municipality, for whatever reason, whether it's how to deal with the infrastructure needed to support a residential community or whether they are just interested in keeping it as agricultural land, or for whatever reason. So investors have lost opportunities to make a dollar or two, which is not the worst thing that happens to people, because, after all, that's what we elect governments for, to make decisions.

But when the land becomes reserve status, basically, the land can be used then for country residential purposes. Where the council is caught in a bind is that they really have no choice about the zoning that happens. So when the payment is made, in Saskatchewan at least, into a municipal reserve fund for the provision of services in lieu of taxes, the amount paid in is based on the assessment. The assessment for agricultural land is a lot lower than the assessment for country residential, and so of course councils are basically forced into approving these things even before the land is designated as Indian reserve. Could you address that? Tell me what has changed or might have changed under Bill C-56.

Mr. Terry Henderson: Yes. Thank you for the question. I'm not totally sure I understand it, but let me attempt an answer and then I'll turn to my colleagues here as well.

It's my understanding that Saskatchewan and Manitoba land claim settlements are quite different, to start off with. In the Manitoba treaty land entitlement, most of the land that is going to be converted to reserve is provincial crown land, so there should be no implications.

Mr. Derrek Konrad: So it would be under the treaty land entitlement portion—

Mr. Terry Henderson: Yes.

Mr. Derrek Konrad: —where there's cash set aside for purchase.

Mr. Terry Henderson: Can you help, Mr. Saunders?

Mr. Tom Saunders (Legal Counsel, Department of Indian Affairs and Northern Development): In the context of the treaty land entitlement negotiations under the big agreement, the one that covers the 19 bands, we were extremely concerned during the negotiations to ensure that exactly the kind of situation you were talking about did not occur, either within rural municipalities in Manitoba, or within urban areas, for example Winnipeg or Thompson, Brandon, that kind of thing.

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If I understood your comments correctly, you were really talking about two things. One issue was incompatible zoning. You have a reserve being established in an area, let's say, that's zoned residential and suddenly they decide to put up some sort of factory or something. That's an extreme example, but the point is of having incompatible zoning.

The agreement—not the legislation, but the agreement—requires that where an entitlement first nation has selected or acquired land in a municipality, before that land is set apart as reserve, the first nation and the municipality must enter into what's called a municipal development and service agreement. That agreement has to address a number of things, including compatible zoning, including how that land is going to be serviced and how those services, if they're going to be using municipal services, are to be paid for. We've tried to address in the terms of the settlement agreement precisely that point.

The other point I understood you raising was the potential for the loss of municipal taxes once the land was removed from the municipal tax base so that there weren't municipal taxes being paid in. That was an issue that's left to the Province of Manitoba to deal with in Manitoba TLE. Where a municipality believes it has suffered tax loss as a result of a reserve creation, the municipality is directed by the agreement to deal with the Province of Manitoba, and they have undertaken to deal with it. There's no fund as there is in Saskatchewan.

Mr. Derrek Konrad: Is it still my time?

The Chairman: No. Mr. Bryden and then Mr. Bachand.

Mr. John Bryden (Wentworth—Burlington, Lib.): I was looking at paragraph 11(2)(b) in part 2, which says “the right or interest has been granted to the third party under the Federal Real Property Act.” What's the Federal Real Property Act? What does this paragraph mean?

Mr. Tom Saunders: What we were concerned with in the context of TLE was that there would be situations where third-party interests were affecting reserve land at the time the land came in, and the question was how do you deal with those interests. Mr. Henderson spoke about the process of allowing pre-reserve surrenders. But there may also be common-law interests that may be simply easily solved by converting those interests into interests under the Federal Real Property Act. We believed we always had the ability to set land apart, subject to interests that had been created under the Federal Real Property Act, but there was no expressed provision to that effect in the act. The purpose of the reference here was to pick up not only a provision we made in the agreement to allow that to happen, but also to end the uncertainty about the question of whether in fact FRPA interests could be created and flow through once the lands were set apart as reserves.

In other words, what would happen would be that you'd have the land coming first as federal crown land, and at that point an interest is created or continued under the Federal Real Property Act. When the land makes the next step forward into reserve, that FRPA interest might continue. It's not that it would continue, but rather that it's on the menu of options the parties could consider when they're talking about how they might address dealing with a third-party interest.

Mr. John Bryden: I need a little bit more clarification even at that, although I think you're doing very well. Give me a hard example of what we're talking about here, because I'm unfamiliar with the Federal Real Property Act. What does it do? Then give me an example of what we're actually talking about in terms of third-party interest.

Mr. Tom Saunders: The Federal Real Property Act is the federal equivalent of provincial real property acts. It's how interests are created and titles transferred in land, which is in the name of Her Majesty the Queen in Right of Canada. It allows ministers to create interests in federal land, and in some cases to dispose of federal land—that sort of thing. That's the scope of the act.

What we had in mind was that there are some interests that exist at common law. For example, a lease is a common-law interest in land. It may be in the circumstances, just as a possibility, that rather than having the lease proceed through a designation and then having that land set apart and the lease recreated as a lease pursuant to the Indian Act, the parties might simply think, well, we just want the lease to continue as a common-law lease. So what would happen would be that as the land became federal crown land, that common-law lease would be created as a lease granted by the Minister of Indian Affairs pursuant to the Federal Real Property Act. The lease would simply be converted from a common-law interest into what's called an FRPA interest.

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Mr. John Bryden: To clarify that even further, if this were, for example, a mine or some type of resource exploitation undertaking, my reading of this section is that this mine would be protected from expropriation by whoever acquires the reserve. Is that correct? It's actually a very specific protection of property of the third-party operator of a mine or other resource-based industry.

Mr. Tom Saunders: Yes. If I could back you up one step, the fundamental principle going in is that third-party interests are protected. No land gets set apart as reserve under the TLE agreement unless the third-party interests in that land have been resolved to the satisfaction of Canada, the first nation, Manitoba, and the third-party interest holder. So everybody agrees how the third-party interest gets dealt with or the land doesn't go anywhere.

It's then that you go to this menu of selection of how it might be dealt with. It might be cancelled. It might be simply bought out. It might be recreated as an Indian Act interest. It might simply continue. One of those options is the one that appears here, which is to address the point I dealt with earlier about the uncertainly about the FRPA. It simply says one of the options might be that you would recreate the interest under the FRPA.

But the fundamental point is that no land gets created as a reserve without the third-party interests being protected in a manner that everybody, including the third-party interest holder, is happy with.

Mr. John Bryden: As my last point, I understand then that a third party could block the creation of a reserve on a particular land.

Mr. Tom Saunders: There is that potential.

Mr. John Bryden: Thank you.

[Translation]

The Chairman: Before giving the floor to Mr. Bachand, I will allow Mr. Konrad to ask a brief question.

[English]

Mr. Derrek Konrad: I have one quick question.

I was a land surveyor before I was a member of Parliament, and I never heard of a real property act in Saskatchewan where I was commissioned. I wonder if you mean land titles acts.

Mr. Tom Saunders: Yes. In Manitoba, it's called the Real Property Act.

Mr. Derrek Konrad: That's it. Thank you.

[Translation]

The Chairman: Thank you, Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): I must apologize, Mr. Chairman. I had understood that our meeting did not start until 11 a.m. this morning. I was at a meeting with representatives of the Naskapi-Cree Commission, who asked me to extend their greetings to you.

The Chairman: I told the witnesses you had been delayed because of the storm, Mr. Bachand.

Mr. Claude Bachand: I see. Is there a storm in the Cree territory at the moment?

The Chairman: No, but there will be one here at 12 o'clock.

Mr. Claude Bachand: I apologize for not being present for your remarks. There is something that has been bothering me for some time now and since you work in the Department, you can perhaps help me with it.

I do not understand why there are two parts to this bill. Why are we trying to deal with two separate issues: the agreement with the Norway House Cree nation on one hand, and the creation of reserves in Manitoba, on the other?

Most of the documents we have deal with the Treaty Land Entitlement Framework, but there are almost none on the Manitoba Northern Flood Agreement. Why are we mixing up apples and oranges here? We have already entered into agreements with five First Nations, including those in Split Lake and York Factory, whose lands were flooded. Two of these First Nations groups have already received compensation. Now we have a third compensation claim, and this time, it is included in a bill that also provides for the creation of reserves in Manitoba. Why is the creation of reserves in Manitoba not covered in a separate bill? Why were two different bills introduced for Split Lake and York Factory, while the claim from the Norway House First Nation is lumped in with the issue of creating reserves in Manitoba and put into a single bill?

It seems to me it would have been preferable to divide the title or to introduce two separate bills: one on Norway House, similar to those on Split Lake and York Factory, and another one on the creation of reserves in Manitoba. Why are these two subjects being covered in a single bill?

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[English]

Mr. Terry Henderson: There was a decision taken. I think the simple answer is that an omnibus bill would be created. While there are two distinct parts to the bill, they are somewhat related. They both relate to Manitoba. Norway House stands to benefit from part 2, as it clearly does from part 1. It was a decision taken by the government House leader that we should create an omnibus bill here to improve the efficiency of the legislative process. Beyond that, I really can't comment.

Just a clarifying point, Mr. Bachand. You said there had been two previous communities dealt with. There have in fact been three. This is number four of the total of five northern flood communities that were impacted under the Northern Flood Agreement. In 1992 we had an implementation agreement signed with Split Lake, and a bill followed for them to facilitate the implementation of that agreement. In 1996, York Factory and Nelson House were completed at approximately the same time. We had two separate bills. They came through at the same time, almost stapled together, and they were dealt with before committee and by Parliament virtually at the same time. So those three have already been dealt with. This is now the fourth community, Norway House, for which we have another bill.

[Translation]

Mr. Claude Bachand: Which is the fifth First Nation that signed the Manitoba Northern Flood Agreement? There's one missing.

[English]

Mr. Terry Henderson: It is Cross Lake.

Mr. Claude Bachand: Are negotiations underway at the moment under the Manitoba Northern Flood Agreement to provide compensation for the Cross Lake First Nation as well?

[English]

Mr. Terry Henderson: There is a process underway with Cross Lake. It's not the same as the process that's been used with the other four communities. It started out that way, but finally the parties consented to a different kind of process, and that process is unfolding. I don't know if the details....

I turn to Ms. Jackson, who might be able to say something on that.

Ms. Sandy Jackson (Acting Director, Intergovernmental Affairs, Manitoba Region, Department of Indian Affairs and Northern Development): What we've got going right now with Cross Lake is a working group, and we're awaiting a decision on the part of the first nation. They're going to set their implementation agenda, their priorities for moving on implementation of the obligations under the agreement. So we anticipate that by March 31 we will have an implementation agenda that we can deal with, and we as the responding parties—Canada, Manitoba, and Manitoba Hydro—will then have an opportunity to continue to work out the details of how we're going to proceed with implementation for Cross Lake.

[Translation]

The Chairman: Thank you, Mr. Bachand.

Mr. Nault.

[English]

Mr. Robert Nault (Kenora—Rainy River, Lib.): Thank you, Mr. Chairman.

I think we should start from the basic premise that when we deal with aboriginal issues we are always very sensitive to the issue of consultation with the first nations themselves. As a department, you're the first on deck. We're going to hear from a number of individuals in different capacities as they relate to the treaty entitlement, flood claims, and things like that.

Can you give the committee assurances that we won't hear there's been very little consultation, that this has been a top-down driven affair, that a lot of people aren't very happy with this, and it shouldn't be done this way? I want to assure myself from the outset that we've got some sort of consensus here. Obviously there are going to be people who are opposed—there always are—and we're not that naive to think we won't hear from those folks, but I want to get a good sense, if you can run me through it, of the consultation process the department took to come up with a fairly extensive bill, one that's far-reaching for the whole province of Manitoba in general. Could you give me a sense of that to start with?

Mr. Terry Henderson: Certainly. Maybe I'll start off, and then I'll turn to my two colleagues for further detail.

It's clear to us that consultations did unfold with respect to both parts of that bill—very extensive consultations. You wonder if I can provide assurances that there will be no one coming forward to the committee contesting that. I can't provide those assurances per se, but we are very confident and comfortable, from the federal government perspective and from the perspectives of the other parties to those agreements, that all consultation that was required took place and due process was followed in both the signing of the agreements that led up to this bill and in the completion of the bills themselves.

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With respect to part 1 of the bill, I would ask Sandy Jackson if she could say a bit more with respect to the actual elements of consultation that took place.

Ms. Sandy Jackson: Just to take you back, the consultations on the bill itself didn't start when we began the development of the bill. They actually started when we were in the negotiation of the implementation agreement. What's laid out in the agreement is the fact that there are certain key areas where we will be going for legislation. In our dealings with the first nation, we asked that it be made very clear to the people in the community that legislation was going to be required to facilitate the implementation of some parts of this particular agreement. There was a whole series of community consultations undertaken during the course of the negotiations.

Mr. Robert Nault: Could you give me an example of the certain portion or part of this that would necessitate a specific piece of legislation?

Ms. Sandy Jackson: Part 1 actually deals with the issue of Indian moneys. What we're dealing with is that no portion of the compensation money being paid into the trust for Norway House is to be deemed as part of Indian moneys under the definition of Indian moneys in the Indian Act. We're asking for an exemption from that part of the Indian Act so that the paying parties—Manitoba Hydro and ourselves—would pay directly into the trust, which is administered by the first nation and their corporate trustee. That is one specific example of what we're dealing with when we say “to facilitate the implementation of the agreement”.

Mr. Terry Henderson: I'd like to turn to Mr. Kitchen with respect to part 2 of the bill and the consultations that unfolded there.

Mr. Gord Kitchen (Director, Land Entitlement and Claims Implementation, Manitoba Region, Department of Indian Affairs and Northern Development): A very important point to be made very early in this is that during the negotiations of the framework agreement, the master agreement, the parties involved identified the need for the legislation we're talking about today, the ministerial order side, the pre-designation. That was identified in the agreement and all parties agreed to it.

Following that, the legislation developed and we engaged in correspondence and consultation with not only the 19 TLE first nations, through their organizing committee—they have a group called the TLE Committee—but also with the seven previous bands that had signed agreements—we call them the one-offs—and for existing and potential specific claims through the Treaty and Aboriginal Rights Research Centre—they're a specific claims organization.

At the community level, there's a very well-defined community approval process we went through. There were mandatory information sessions for all members. The ballots themselves, the packages that went out, contained pounds of information, if I may use that expression. It was all sent out by registered return mail and that kind of thing. A lot of information was provided to all the members. The meetings required attendance by chiefs and council and legal and financial advisers. We worked in partnership with the treaty land entitlement committee and the first nations. We feel there was a more than adequate amount of consultation.

Mr. Robert Nault: I assume that northern Manitoba first nations are very similar to northern Ontario first nations, so let me ask this question. When you did the framework agreement, obviously you had the band council resolutions and some sort of referendum process within the community for that to be approved. That's all been done?

Mr. Gord Kitchen: That's all been done. Well, 16 of the 19 first nations have now voted.

Mr. Robert Nault: So there are three that are still in the process, or that disagree with you and are going to be somewhat more independent in nature?

Mr. Gord Kitchen: I would think the safest way to answer that is to say they're unsure at this moment. There's still a window to hold their vote. They've initiated the process. But yes, they have some other issues they're looking at.

Mr. Robert Nault: Okay.

Mr. Chairman, I was just looking at the financial provisions. Am I to assume that roughly $75 million is Canada's portion and that it's already been agreed to within the framework agreement?

Mr. Gord Kitchen: That's correct.

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Mr. Robert Nault: I would have to also assume—and I know it's dangerous to do that—that there's been some sort of analysis done that this is enough money to meet the obligations of the crown and the other parties in the negotiations you're going to do individually with first nations now. So you must have done some leg work on arriving at some sort of number, and that is your sense.

Now what happens if one of the first nations disagrees with you? Those three you used as an example—I don't know who they are—may say they don't think this is going to be appropriate. Is there a mechanism to deal with these disputes that will arise as you get into the nitty-gritty?

Mr. Gord Kitchen: I was not involved with the negotiation, so I can't answer your question on where the money came from, or the numbers.

The framework agreement contained the numbers or the amounts of money that would be paid to each individual band. There's a federal payment allocation for each of the 19 first nations. Plus, for the six in the southern area of the province where there's not quite enough crown land available, they were given moneys to purchase land. Those amounts were spelled out in the framework agreement themselves, so when a first nation signs on, those are the numbers they'll use. How these numbers came about, I would have to ask Mr. Saunders, perhaps.

Mr. Robert Nault: We'll get to that, maybe sooner or later, Mr. Chairman. I just wanted to sort of put this in layman's terms.

The whole TLE framework agreement has two components. Obviously one is the flood plain portion. The other is to some extent a specific land claim issue where communities have made application to the government that in fact their reserves aren't big enough for a whole variety of reasons. That's all been agreed to now; this money will flow to deal with extending reserve boundaries because of specific claims that occurred over the years. These are all put in one omnibus bill. Is that correct?

Mr. Gord Kitchen: Not quite.

Mr. Robert Nault: Not quite. So there are still other avenues for first nations to pursue if they want to deal with specific land claims process?

Mr. Gord Kitchen: Yes.

Mr. Robert Nault: Okay. So that would be part three then.

Mr. Gord Kitchen: To be continued.

The Chairman: Mr. Keddy.

Mr. Gerald Keddy (South Shore, PC): I've got a couple of questions, Mr. Chairman.

First of all, I'm not going to belabour the omnibus part of the bill and the fact that we've got two pieces of legislation that are separate but overlap with one another and affect the greater bill. It does make it more confusing for us, and I think it makes it a little more difficult to follow the process.

I've got a quick question on consultation. You just mentioned briefly that in the southern part of the province, where there's less crown land available, in lieu of crown land to extend reserves you're going to supply the dollars for the first nations to purchase land, presumably on the open market, to extend reserve properties. Does that same third party consultation apply there as it does in northern Manitoba, where there are specific interests and specifically with municipalities, so the municipalities are involved in the consultative process at the beginning? You're having a new municipality or a new entity that's recognized by the crown brought into existence, many times within municipal borders that are there already or within city borders or town borders. I'm not aware of all the geography here. Is that consultation going on with the municipality prior to the purchase?

Mr. Gord Kitchen: Yes. Very early in the process, in fact one of the very first steps, is when a first nation is going to acquire or wants to acquire, they contact the municipality, inform them formally. Generally there's an informal meeting. They begin the discussions very early in the process.

Mr. Gerald Keddy: So the onus is upon the first nation to contact the municipality or the other level of government, not the federal government?

Mr. Gord Kitchen: That's correct.

Mr. Gerald Keddy: Okay. So what assurance do you have that the process is followed through? Are you kept in that loop? Are you continually involved in that?

Mr. Tom Saunders: The land is not set apart as a reserve unless we see this municipal development and service agreement, which I referred to earlier.

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Mr. Gerald Keddy: They also have that option of going back to the federal government or to the local provincial government for lost revenues for the municipality, because they're no longer going to tax this property; that's going to come out of their hands.

Mr. Tom Saunders: They never come back to us. They are directed to the province.

Mr. Gerald Keddy: All right. Thank you.

I have another quick question, if I may, Mr. Chairman.

I'd like to mention that quite often there's a lot of information in these bills and quite often we don't recognize a lot of the good work and the questions that are put forth by our committee staff members and researchers here. In this particular bill, you've done an excellent job, some very good questions.

Correspondence received from members of the Norway House Cree Nation indicates that their understanding is that the northern flood agreement is a treaty within the meaning of section 35 of the Constitution Act 1982. It's always a mouthful to say that. Maybe you can't answer entirely what the government position is on this matter, but can you flesh that out some? And has this position changed since the negotiation of the northern flood agreement?

Mr. Terry Henderson: Once again I'll pass the buck. I think Mr. Marchant is the best able to respond to that, Mr. Keddy.

Mr. Ken Marchant (Legal Counsel, Department of Indian Affairs and Northern Development): Thank you, Terry.

Mr. Keddy, in the Norway House negotiations, as in the other northern flood agreement negotiations that have come to completion, all parties have agreed to set aside the question of whether the northern flood agreement is or is not a treaty. We were all able to proceed to agree on an implementation program set out in these implementation agreements without the need to resolve that. We did add a provision that says we're protecting aboriginal treaty rights when we're implementing the northern flood agreement; we're not infringing them.

The question of whether it is or isn't a treaty is a matter about which there are different views.

Mr. Gerald Keddy: It makes it a little more difficult for us, as members of Parliament, when we're following this procedure if we really don't know if we're bringing something into fruition here that is going to be a treaty in the future. You know, it's not a settled matter.

Mr. Ken Marchant: If I understand, you're asking for some reassurance here, as well as some clarification.

Mr. Gerald Keddy: I guess I'm not asking for reassurance, I'm asking for clarification. Are we embarking upon a process here that obviously potentially can be signed as a treaty in the future, but it's not a treaty now?

Mr. Ken Marchant: Let me say this first. I think that whether an agreement is or is not a treaty, in all our views, it is binding on all parties. Whether it's a treaty or not doesn't change whether the parties are bound by it.

Secondly, all five northern flood agreement first nations, including Norway House, are signatories or adherents to Treaty No. 5, which gives them rights to reserves, which gives them rights to hunting and fishing, which also gives them rights to compensation in the event that projects like the hydro project occur. So in a sense, the northern flood agreement is pursuant to what we would all acknowledge is Treaty No. 5.

The northern flood agreement deals with subject matters that are the subject of constitutionally protected treaty rights, like reserve lands, hunting, fishing, and trapping. I would add that there is a recognition of compensation if public projects like hydro are brought in. That recognition is already in Treaty No. 5.

Mr. Gerald Keddy: So there's a specific recognition that any fiduciary rights are still in existence and not affected by what we're dealing with here.

Mr. Ken Marchant: Absolutely, both Guerin and Sparrow. Those refer to the two kinds of fiduciary duties. We were very careful in this process.

Mr. Gerald Keddy: It's not specifically stated, but it's implied, and recognized by you.

Ms. Sandy Jackson: It's specifically stated in the agreement that we're not affecting treaty and aboriginal rights.

Mr. Gerald Keddy: Okay. Thank you.

The Chairman: Thank you, Monsieur Keddy.

Monsieur Finlay.

Mr. John Finlay (Oxford, Lib.): Mr. Chairman, I think my question has just been answered.

I wanted to ask about this agreement and whether it is or is not a treaty within the meaning of section 35 of the Constitution Act. I take it from what you have said that the government's position is that it is, and the Norway House Cree Nation position is that it isn't.

Ms. Sandy Jackson: The other way around.

Mr. John Finlay: The other way around.

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Mr. Ken Marchant: It is a treaty. The Government of Canada and the Province of Manitoba have taken the position that it isn't, but we all agreed that we didn't need to deal with it.

Mr. John Finlay: All right. That's just what I was going to underline. What they've agreed to in this agreement, they've all agreed to: to set aside the question of whether or not it is a treaty unaffected.

Mr. Ken Marchant: Yes.

Mr. John Finlay: Okay, thank you.

Mr. Gerald Keddy: You clarified that, John.

Mr. John Finlay: That's right.

The Chairman: Thank you, Mr. Finlay.

We are moving to the second round, Mr. Konrad.

[English]

Mr. Derrek Konrad: As you are all aware, we have quite a stack of letters from people who are unhappy with the way this process was carried out. I guess there are some difficult questions to be asked on that, but the issue of $1,000 has been raised many times. I've heard it in meetings myself this year, I've read a number of letters on it, and I've talked to individuals.

According to this newspaper article—which I'm sure you're well aware of—on page 3 there was a promise of a $78-million trust fund. On page 13, there was a promise that if the agreement is approved, there would be three payments totalling $1,000 for all band members, with those over the age of 55 getting $1,500. I presume that information was made available to people before they signed. Would you consider that part of the agreement, or was that tossed in to make it a little easier for people to vote for it?

Mr. Terry Henderson: I might start with a response there.

I think the scheduling of payments in advance of the agreement being signed was quite normal. That was certainly the case with Split Lake, York Factory, and Nelson House before. The parties realized there were obligations owed to the first nations pursuant to the Northern Flood Agreement. I guess that caused them to establish a schedule whereby certain payments could be made even in advance of signing the agreement. There were payments made for Norway House back in 1995. When the agreement was effectively concluded in April 1997—it was concluded, but it wasn't yet ratified or signed—there was a schedule of payments laid out. That schedule of payments has been adhered to ever since, regardless of the referendums that unfolded.

Mr. Derrek Konrad: Just to follow that up, what was the purpose of the $1,000, and how was that figure arrived at?

Ms. Sandy Jackson: If I can just talk a little bit about the Northern Flood Agreement and the way it's structured, there are some specific types of obligations or reasons for compensation being paid. There are collective types of compensation and there is individual compensation. When we got into the discussions with Norway House and began to explore the possibility of some of these payments, what they were looking at were general compensation payments to individuals, because their lives had definitely been affected by the project. The Northern Flood Agreement was signed in 1977, but very little has gone to individuals for some of the damages they've suffered. The compensation payments that were outlined in the agreement and would have been paid over a period of time were general compensation payments for effects on individuals. That's the nature of these payments.

Mr. Derrek Konrad: How come they weren't included in the first agreement that was voted on?

Ms. Sandy Jackson: Which first agreement was that?

Mr. Derrek Konrad: The first referendum, I should say.

Ms. Sandy Jackson: No, they were there. The compensation payments were outlined. They're in the agreement, and the dates are set down in the agreement. All of the compensation payments were established and laid out in the agreement prior to the first ratification vote being taken. There were no changes made to the agreement during the intervening period between the first and second vote.

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Mr. Terry Henderson: Mr. Konrad, as I mentioned, the agreement was essentially finalized in April 1997. The first referendum took place in July, but the agreement that was finalized in April set out the schedule of payments. It wasn't something that was decided after the first referendum or just prior to the second referendum. There was not a connection like that.

Mr. Derrek Konrad: I see. So has everybody received the $1,000 then? Is that all finished?

Ms. Sandy Jackson: Yes, it is.

Mr. Derrek Konrad: Thank you.

The Chairman: Thank you, Mr. Konrad.

Mr. Nault.

Mr. Robert Nault: I just wanted to go back to this whole issue of a third party's ability to delay or prevent the creation of reserves for Manitoba first nations. Are you saying it's so tight that if you get a third party that is obviously being quite frivolous in its opposition to a reserve extension, that third party can in fact stop the process in its tracks? Are you saying there's no ability on the part of the Government of Canada—with the concurrence of the provincial government, obviously—to overrule a third party on the traditional territory of, say, members of Treaty No. 5?

Mr. Gord Kitchen: There is one option available other than agreement. If you run into a situation in which you're totally blocked and you're dealing with a specific piece of land, you could carve that piece out of the reserve. It could be left as “not reserved lands”. Other than that, we need the agreement of the parties.

Mr. Tom Saunders: Just to add to that, I think there are more vehicles than that.

Third parties' interests generally do not go on forever in the sense that a lease, for example, has a defined term. It may simply be that you wait the leaseholder out if that's what it's going to take.

Many interests are created under provincial legislation. We have an undertaking from the Province of Manitoba that where the third party is not using the land as required under its interests, where the land is no longer required by the third party, or where the third party has failed to meet its obligations, Manitoba will take action in terms of withdrawing, cancelling, or not renewing those interests.

We also have the vehicle called the implementation management committee. Under this concept, where there are disputes involving the parties, it's a group that is there to try to solve implementation-type issues. Obviously, third parties aren't party to this agreement, so they may not be bound by that result.

The intent, the purpose of this agreement, is to implement things and get the land moved, not to put roadblocks up to try to stop it. I think there is therefore a general approach by all of the parties to try to work at solutions.

The point made to me one time was that in terms of settling the claims, this agreement is only about this thick. The rest of the agreement is about implementation, and that was really the focus of the first nations at the table. It was no good to them to give them $75 million, and there was no good in giving them a million acres. They needed to see an implementation structure, and I think they were satisfied at the table that this structure would allow the land to move.

Mr. Robert Nault: Let me put it to you in a different way.

If Manitoba, Canada, and the first nation agree that a particular piece of land should be transferred to first nation control but this particular third party disagrees, do you mean there's no ability to expropriate and give fair market value for that land to this third party? In essence, can the third party sit on it in perpetuity?

Mr. Tom Saunders: Certainly, we would not have the ability to expropriate the land for the purposes of a reserve under any federal legislation. I suspect the case is the same with the province.

Mr. Terry Henderson: It's on a willing buyer, willing seller basis.

Mr. Robert Nault: That's the policy, but that's not the way... My understanding of the abilities of the crown is a little different from what you're portraying. In order to meet its fiduciary responsibility to first nations, the crown does have the ability to expropriate land if it's necessary. It has never used it, obviously, because it doesn't want to get into a big scrap with the province—I understand that—but the fact remains that it can be done.

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I'm trying to get a sense of how you were going to deal with, say, a mine claim that's sitting up there that an individual has worked on, or isn't working on but is paying the permit every year, or is doing some work on. You mean they can hold up that process for as long as it takes?

Mr. Tom Saunders: I won't belabour the point about the ability of the federal crown to expropriate for reserves. I don't agree that that's the situation at law.

There are specific provisions in this agreement dealing with, apart from general third-party interests, specific types of interests. So there are extensive provisions talking about mineral leases, water interests, and forestry licences, all of which talk about trying to resolve issues, talk about securing access, try to address the legitimate concerns of a third party.

If I'm a third-party interest holder and I have a forest permit or a mining claim, what I'm interested in is not that I stop the land from being reserve but rather that I have an assurance that I'm going to be able to get across the land to get at where my timber permit is or where my mine is. So we have provisions to allow for negotiations with respect to those access rights, and that's the way we try to address it. We try to get at what it is the third party is interested in. He or she is interested in being able to exercise the rights they have, being able to get in and out without being subject to problems.

So the agreement tries in specific cases—and you've mentioned mining; there's a fairly extensive provision with respect to mines interests—to try to get at the kinds of problems that might arise, so that we can resolve these kinds of issues. There's a fairly extensive provision with respect to forest interests and there's a fairly extensive provision dealing with water interests to deal with Hydro's legitimate interests.

[Translation]

The Chairman: Thank you, Mr. Saunders and Mr. Nault.

Mr. Bachand.

Mr. Claude Bachand: Mr. Chairman, I would like to come back to Norway House and to the two referendums, because I think this is a very important issue that could make this matter somewhat more acrimonious. I actually asked a question in the House on this, Mr. Chairman, and Mr. Iftody's predecessor, Mr. Patry, replied at the time. As we know, in the House, Question Period is not always the same as answer period. Questions must be short, lasting no more than 35 seconds, and the answers may be short as well.

The Chairman: We have more time here in committee.

Mr. Claude Bachand: Since we have the officials here today, I would like to take this opportunity to discuss in more depth this subject I consider so important.

Earlier, you mentioned some dates, and I am not challenging that, but I would like some more details. The agreement was reached in April 1997 and the first referendum was held in July 1997. The proposal was rejected at that time. Do you remember what the percentage was?

[English]

Mr. Terry Henderson: The first referendum of July 1997 followed a process that had been established by the parties in the agreement, which laid out very stringent parameters for the approval of the agreement. There was effectively a triple majority requirement within the agreement—a triple majority that suggested that a majority of all adult members, both on and off reserve, must vote, that a majority of adult members who voted must approve the agreement, and that a majority of electors who are the on-reserve adult electors must approve the agreement.

[Translation]

Mr. Claude Bachand: Which of the three requirements has not been met? Can it be said that none of them have been met?

[English]

Mr. Terry Henderson: It was the third that did not quite satisfy when the results came in. The parties looked at that and realized they were five votes shy. There were 961 votes cast in favour of the agreement out of 1,930 potential electors, of whom 1,517 actually voted. But there was a requirement for a majority out of all electors, whether they voted or not.

The parties looked at that result and concluded that it was not in any of the parties' interests, nor clearly in the community's interest, because on the other two parameters that were part of the referendum requirement there was an overwhelming majority of community support, of member support, for this particular agreement. In fact, it would undoubtedly be irresponsible of the parties to allow that kind of a result to quash this agreement, which had in fact considerable community support, so the parties decided that a second referendum was clearly in order.

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[Translation]

Mr. Claude Bachand: When was the second referendum held? Were the conditions the same, or were they changed for the second referendum?

[English]

Mr. Terry Henderson: The first referendum was held on July 29, 1997. The second one was held on September 23, 1997.

The parameters were indeed changed. The parties looked at it and decided the parameters were too stringent, far more stringent than would normally be used for any kind of exercise where one is seeking consent, and realized that it would be inappropriate to allow those results in their own right to stand. So in fact they did adjust and did so by way of amending the agreement itself to become a double majority requirement.

The double majority was, first, that a majority of the adult members who voted must approve the agreement. That was the same as the second requirement before. Secondly, the majority of electors who were the on-reserve adult members who voted must approve the agreement, as opposed to simply all of the electors. The results of that second referendum not only demonstrated that it was successful, that they had an overwhelming majority of both members on and off reserve as well as electors supporting the bill, but the numbers were indeed even higher than what they had been on the first referendum.

[Translation]

Mr. Claude Bachand: I see. Under these conditions, was there a majority of adults among the 50% plus one?

[English]

Mr. Terry Henderson: That's correct. It's a simple majority.

[Translation]

Mr. Claude Bachand: You said that it was at this point that the compensation of $1,000 or $1,500 came into play. If people did not know that they were going to get individual compensation of this type when they voted in the first referendum, and if they found this out before the second referendum, obviously, this piece of information had an impact on the voter turnout and the results. That was the subject of my question in the House: Human nature being what it is, did the announcement that community members would get $1,000 or $1,500 have an impact on the results of the vote?

[English]

Mr. Terry Henderson: I will turn to my colleagues for a moment, but yes, I think the community was well aware of what the payments were going to be, because those were set out in April 1997 when the agreement was finalized.

Do my colleagues wish to elaborate?

Mr. Ken Marchant: I could repeat in slightly more detail what Mr. Henderson has just said.

First of all, two of the payments set out in the agreement—and it was the same set of payments for both the first referendum and the second referendum, and I might say, it was the subject, as was the rest of the quite thick agreement, of extensive consultation with the community, beginning in 1994 through until the negotiations concluded—were in 1994 and 1995, and then there was a schedule of payments in 1997 that was set out exactly the same for both the first referendum and the second referendum. The only thing that was changed between those referendums was that the second referendum procedure was added, having recorded the results in the first one.

Ms. Sandy Jackson: If I could clarify as well, part of the consultation process that was held in the community did outline the fact that these general compensation payments were being made. So the people voting in the first and second referendum knew well in advance that there were going to be general compensation payments and in fact had already benefited from two payments.

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[Translation]

The Chairman: Thank you, Mr. Bachand.

Mr. Iftody, followed by Ms. Desjarlais.

[English]

Mr. David Iftody (Provencher, Lib.): Thank you, Mr. Chairman.

Something we may have to return to at a later date, but I don't want to delve into it in too much detail right now, are Mr. Nault's questions about the third-party interests. I'm not entirely clear about that either.

I wanted to ask a question about the ongoing litigation between the Government of Canada and Manitoba Hydro. For those of us from Manitoba who are familiar with this agreement, I think you'd be hard pressed to find a lawyer in Manitoba who wasn't involved at one time or another in this agreement, representing one of the parties. It's a standard sort of lawyers' cocktail circuit joke.

The Auditor General has talked extensively in reference to other issues we're dealing with, the Nisga'a and others, about the need to minimize this adversarial approach to treaty making and settlement of these kinds of questions. I certainly agree with that. Most of my lawyer friends wouldn't, of course. But I think this one, certainly right from the outset and for many years now, has been very contaminated with a spirit of agitation, litigation, and a sense of unfairness. One year Manitoba Hydro is feeling hard done by, and then the Government of Canada is feeling its interests are not represented, and then, at different variations within that, the bands.

I understand that currently the Government of Canada has filed a lawsuit against Manitoba Hydro because they refused to pay 50% of the costs of.... My first impression of this, of course, is that it's very unreasonable. If Manitoba Hydro has obligations, why aren't they fulfilling them? Why is the Government of Canada having to sue these people to pay 50% of what they owe on a water treatment plant? I say this in the context of ongoing problems with Cross Lake that I keep reading about, Mr. Chairman, in the newspapers in Manitoba. And Manitoba Hydro, again, is at loggerheads.

Could somebody comment on the spirit of these negotiations and discussions and why we're suing Manitoba Hydro?

Mr. Ken Marchant: I think most people would agree that the Northern Flood Agreement of 1977 was badly drafted and full of uncertainties. So virtually every article, every obligation in the Northern Flood Agreement, became a subject of an arbitration claim—every last one. In fact, it got translated from an agreement into a couple of hundred arbitration claims, with everybody suing everybody else.

One of those obligations was on Canada to provide potable water and on Manitoba Hydro to provide 50% of... that's where the arguments start; 50% of what and so on, and that is ongoing. I suppose one can partly blame the Northern Flood Agreement and then one can decide which party one wants to side with.

I would like to say this, though. In these implementation agreements, of which the Norway House agreement is the subject of the part 1 you have before you—of those four, the first of which has been in place since 1992, the two others since 1996, and this one since 1997, there has not been to my knowledge a single arbitration claim generated. There will in time be some, and I don't think that should be surprising, but the point is they're working now with several years' experience in the case of several of them without the need for arbitration.

Mr. David Iftody: I have a supplementary question, Mr. Chairman.

Am I correct in what we're reading in the newspapers in Manitoba, about an ongoing difficulty currently with Cross Lake and Manitoba Hydro? Is this one of the reasons for a breakdown in some of the negotiations? There seems to be a real disjuncture between these two parties, and my problem is there doesn't seem to be any hope right now of bringing them back together. Could somebody comment on that?

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Ms. Sandy Jackson: Yes, if I may. Right now we do have a working group structured that involves all four parties—Cross Lake, Hydro, Manitoba, and Canada. With Cross Lake, it's been particularly difficult to come to terms with what the priorities are and how we're going to proceed with the priorities.

I would say, in all fairness to Manitoba Hydro, it's not just with Hydro; it's a dispute among all four parties on how we're going to proceed with implementation of the Northern Flood Agreement. What Cross Lake has opted for is implementation in accordance with the terms and conditions of the 1977 agreement, which has been the basis for a lot of dispute. As Ken has mentioned, we have a couple of hundred arbitration claims, and right now we're trying to come to terms with how you deal with the arbitration claims that are there, how you deal with the implementation issues, and how we come up with an agenda for implementation for Cross Lake.

Certainly it's going to take a lot of time and energy on the part of all the parties to advance implementation for Cross Lake.

Mr. David Iftody: Thank you.

The Chairman: Madame Desjarlais.

Ms. Bev Desjarlais (Churchill, NDP): I want to clarify a couple of points. You indicated to Mr. Konrad, I believe, Ms. Jackson, that everyone in Norway House received the payment. Does “every member” refer to the members on reserve and off reserve? Has everyone received the equivalent payments?

Ms. Sandy Jackson: Everyone is eligible to receive the payments whether they live on reserve or off reserve, and there was a process set up whereby people could get in touch with the first nation and access these compensation payments.

Ms. Bev Desjarlais: To your knowledge, was there anything in place that would negate someone's eligibility for that payment?

Ms. Sandy Jackson: I believe we've set criteria in the agreement; it's pretty much wide open, and all the members were eligible.

Ms. Bev Desjarlais: There was nothing to negate it. What were the dates of the payments? What were the exact dates that they were to be in place? You mentioned that two were paid by 1994-95. What were the dates of the next payments?

Mr. Ken Marchant: I can give you the dates set out in the Norway House agreement. If there was a little bit of variation—

Ms. Bev Desjarlais: I think it's a key point here. I believe it is the line of questioning Mr. Konrad was getting at, that the dates were an integral part of this.

Mr. Ken Marchant: I understand that. Let me tell you what the agreement says. Because the payments were actually made by chief and council rather than by Canada, I don't necessarily know the precise dates.

The first payment was $300 on December 22, 1994. That was from compensation paid by Manitoba Hydro.

Ms. Bev Desjarlais: That was the date the government turned over the money, or was that the date the money was paid?

Ms. Sandy Jackson: No.

Mr. Ken Marchant: Let me back up a step here. Generally speaking, compensation to individuals for harm done to them is the responsibility of Manitoba Hydro under the Northern Flood Agreement. Manitoba Hydro advanced moneys to Norway House under an advance agreement in 1994, and there was a second advance agreement in 1995 and a portion of the funds from Hydro to the first nation were used for individual compensation.

So there was $300 in December 1994 and $300 in December 1995. The third payment was on August 4, 1997. That was $300 for those under 55 and $500 for those 55 and over. Again, on December 15, it was $400 for those under 55 and $500 for those 55 and over. There was one other payment on a date determined by chief and council after the referendum, and I don't know the precise date on which those payments were made—another payment of $300 and $500.

If I might add this, a principal reason for setting out these payments in the agreement the way it was done was to set a cap on them, which is set out in article 10. There is a maximum payable from the total settlement under the Northern Flood Agreement. In individual compensation, the maximum is set at $1,750, and if any individuals bring a claim that they were injured, or the propeller on their boat was harmed by a log from the hydro project, they have to deduct any compensation payments they have already received from that claim.

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The rationale for this compensation, as Ms. Jackson said, was to compensate individuals for harm done to them by the hydro project. They had a right under the Northern Flood Agreement to bring a claim for any harm done to them. The chief and council are taking over the administration of the claims under this agreement. They don't want every member of their community filing a claim; that would just be expensive and inefficient. So they want to solve the problem to the extent they can with general compensation payments. Then anybody who had a claim over and above that would have to prove it.

Ms. Bev Desjarlais: So a claim could be put in after the fact. You could still receive the money, put in a claim, as long as you paid back or deducted the amount from the claim.

Mr. Ken Marchant: That's not quite right. Let's say you suffered $2,500 in damage and you could prove it was caused by the project—you're a fisherman and your equipment was damaged. You could bring that claim under the Northern Flood Agreement or this new agreement, but if you successfully proved that your claim went beyond the record and you had already received $1,750, you wouldn't get another $2,500; you'd get $750.

Ms. Bev Desjarlais: You said the last payment would come after the referendum date set by the chief and the council. How does that play into the fact that we really had two referendums?

Mr. Ken Marchant: Well, it doesn't at all; it says the same thing for both referendums—the schedule of payments with one date to be determined by the chief and council, but the amounts are clearly set forth.

Ms. Bev Desjarlais: Okay, it's just that you had indicated it would be after the referendum when you read it.

Mr. Ken Marchant: I apologize if I was confusing. There will be five payments, four specific dates, and one other date to be determined by the chief and the council.

Ms. Bev Desjarlais: Okay.

[Translation]

The Chairman: Thank you.

Mr. Bryden, followed by Mr. Keddy.

[English]

Mr. John Bryden: I'm still hung up on clause 11 and third-party interests. I understand, from what I read here and from what you say, that this is absolute protection for third parties in legislation. Am I correct? If a third party doesn't agree to the reserve proposal, they can either block the process of setting up the reserve or have their interests carved out of the proposed reserve. Is that correct?

Mr. Tom Saunders: If I could just back up one step, the legislation doesn't deal with protecting or not protecting third-party interests. The legislation deals with the manner of effecting how the third-party interest will be dealt with, once that determination is made in accordance with the agreement. For example, under the agreement, if the parties agree a lease will continue, the legislation is the vehicle that will allow us to do it—

Mr. John Bryden: No. Excuse me for interrupting, but that's not what the legislation says. It says lands set apart as a reserve under this section are subject to any right or interest of a third party in the lands or its mines and minerals, if the right or interest has been granted to the third party under the Federal Real Property Act, or under paragraph 11(2)(c). The legislation seems to be very clear that this doesn't happen under those circumstances. The “if” is very strong. I don't understand this.

Mr. Tom Saunders: I guess that was my point. The “if” refers you back to the agreement. That's what I was trying to get at.

Mr. John Bryden: Where does it refer back to the agreement?

Mr. Tom Saunders: The lands are subject to the third-party interest if the agreement contemplates it. If the agreement doesn't contemplate it, then it's not, if the right has been granted pursuant to the FRPA. If it hasn't been granted, it isn't.

Mr. John Bryden: That's what I'm saying. I deliberately ignored paragraph 11(2)(a) because that's not what we're talking about. I want to go from “if” to paragraph 11(2)(b)—if the right or interest has been granted to the third party under the Federal Real Property Act. It has nothing to do with the agreement.

Mr. Tom Saunders: It has everything to do with the agreement because the right or interest wouldn't be granted under the FRPA, unless it had been granted under the FRPA in accordance with the agreement. In other words, the agreement would trigger whether the interest would be granted under the FRPA or not.

Mr. John Bryden: What if the interest already existed and had existed for some time?

Mr. Tom Saunders: The only case where you would have an existing interest under the FRPA that pre-existed the implication of the agreement would be where you had federal crown land that was being converted over. That is a very narrow situation.

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For example, in Manitoba, the only federal crown land that's drifting around are post offices, Canadian Forces bases, and the national park. We don't even own the airport any more. It's a very restricted provision to which it might conceivably apply if you were reading it that way. But I would still come back to the point that once you are talking about federal crown land, if it were going to be converted into reserve status it would still be done so pursuant to this agreement; therefore, all of the mechanisms in the agreement relating to whether the third-party interest survives or not would still apply.

Mr. John Bryden: On this protection of third-party interests—I'm still a little confused, but I will leave it now—is it in this legislation because of the agreement, or is it something the government believes in? Where does it come from? Is it just because of the agreement or is it because the department believes it is the right thing to do?

Mr. Terry Henderson: The purpose of the legislation is not just to protect the third-party interests, but to provide a mechanism whereby the first nation can guarantee those third-party interests commercial certainty prior to the creation of the reserve.

[Translation]

The Chairman: One final question, Mr. Bryden.

[English]

Mr. John Bryden: If this is good for this legislation—to make my question very short—is it something I can expect to see in the enabling legislation on the Nisga'a treaty?

Mr. Terry Henderson: I'm sorry, I'm not familiar with the detailed elements of the Nisga'a treaty.

Mr. John Bryden: Then you've answered my question. It has nothing to do with government policy; it's whatever kind of treaty you can manage to get. Is that correct? It's not something intrinsically good in the legislation here; it's merely something you've negotiated. So we can't expect it necessarily in the Nisga'a enabling legislation unless it's in the Nisga'a treaty.

Mr. Terry Henderson: A major distinction between the Nisga'a treaty and this one is that the treaty land entitlement agreements and specific claims agreements that have a land component to them are designed to create reserve. The Nisga'a treaty is not designed to create reserve, but to create fee simple land out of existing reserve and out of existing other lands that are going to be provided to the community as compensation.

Mr. John Bryden: Okay, thank you.

[Translation]

The Chairman: Thank you, Mr. Bryden.

You will be the last speaker, Mr. Keddy. Then we will hear from our second group of witnesses.

[English]

Mr. Gerald Keddy: The master implementation agreement differentiates amongst compensation lands, fee simple lands, and permit lands, but Bill C-56 doesn't refer to those same lands as the master implementation agreement does.

When we look at clause 5 and clause 9, which category would we put the lands in clause 5? Where would they belong? If we read clause 5, it says:

Where land is held or transferred pursuant to the Agreement, section 36 of the Indian Act does not apply in respect of that land if the holder or transferee of the land, or any subsequent holder or transferee of the land, is not Her Majesty in right of Canada.

When you make that jump over to clause 9, it starts talking about “amendments made to it from time to time”, “in the case of an agreement”, and “the Framework Agreement”. Which lands are we discussing? I'm not trying to do the clause-by-clause here.

Mr. Ken Marchant: No, I understand. I don't think there's any connection between clause 5 and clause 9. Clause 9 deals with the treaty land entitlement transfer process. Clause 5 in part 1 deals only with the Norway House agreement.

Mr. Gerald Keddy: But lands under clause 5 can still be set aside as reserves under clause 9.

Mr. Ken Marchant: I suppose that is hypothetically possible in the future, but the background to clause 5 is there are 12 fee simple parcels that Norway House is going to get from the Province of Manitoba. There are 12 development sites the province wants and the Norway House first nation agreed would remain within provincial jurisdiction. They will be held in the trust, and that could create a problem under the present Indian Act that would automatically deem them to be reserves. Neither the province nor the first nation nor Canada wants to undo what the parties have agreed. The purpose of the legislation is to make sure they stay.

• 1145

As to what could happen in the future, I suppose it is hypothetically possible, but that is not at all in contemplation by the parties at this time. The Province of Manitoba wants those sites to stay in provincial jurisdiction and the first nation agrees. These are the 12 fee simple sites in Norway House.

Mr. Gerald Keddy: Yes. There is provision for that fee simple property within it. But when we come back, what stipulations does the master implementation agreement contain with regard to fee simple lands? That's where the question is leading. At the end of the day there should be the possibility for the first nation to bring these lands into reserve or into treaty entitlement lands. There's a separation of the two entities.

Ms. Sandy Jackson: These are not treaty entitlement lands. They are compensation lands or lands affected by hydro development.

Mr. Gerald Keddy: But at the end of the process, would they become reserve lands, treaty lands?

Ms. Sandy Jackson: No. The intention is no.

Mr. Ken Marchant: The answer is no.

Mr. Gerald Keddy: Okay.

Mr. Ken Marchant: There is a specific provision headed “Non-Conversion to Reserve”, paragraph 4.4.2 of the Norway House master implementation agreement, and it says:

It is the intent of the parties that the permit and fee simple lands shall not be reserve lands.

In fact, it goes on to say that if somebody were to take action and try to make them that, Manitoba would be freed of its obligation to transfer them. These are lands that everybody agrees are not supposed to become reserve. Unless the parties were to agree to undo the provision that I've just drawn to your attention, they won't be.

Mr. Gerald Keddy: I have one quick question. The jurisdiction on the property is within the Province of Manitoba in that case?

Mr. Ken Marchant: Yes.

Mr. Gerald Keddy: The jurisdiction on any activities carried out on those lands would be under the Province of Manitoba as well, not the Government of Canada?

Ms. Sandy Jackson: That's right.

Mr. Ken Marchant: Yes, except that obviously general federal legislation would apply. The Criminal Codes applies. But yes, they are provincial jurisdictions.

Mr. Gerald Keddy: Thank you.

[Translation]

The Chairman: Thank you, Mr. Keddy.

Your time with us is almost up, Mr. Henderson. Would you and your team be available to come back and answer committee members' questions later on, as well as on March 9 and 11? Would your team be prepared to support us throughout our study of Bill C-56?

[English]

Mr. Terry Henderson: Certainly, Mr. Chairman.

[Translation]

The Chairman: Thank you very much.

May I remind all members that Christine scheduled a later meeting March 4 at 11:00. She will brief us on the future business and witnesses of the Committee.

[English]

The Clerk of the Committee: Members were requested to look through the collection of correspondence and briefs they had received on Bill C-56 and select witnesses they would like to appear. Mr. Bryden has already sent in his list. Could we have the lists ready by Thursday so that after consideration of the draft report we can select witnesses for the rest of the consideration of the bill?

[Translation]

The Chairman: Thank you very much, Mr. Henderson, ladies and gentlemen.

I'm going to ask the director of the Treaty and Aboriginal Rights Research Centre of Manitoba Inc., Mr. Ralph Abramson, and the representative from the Opaskwayak Cree Nation, Chief William George Lathlin, to please come forward.

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• 1153

The Chairman: We are now ready to begin. Who would like to make their opening statement first? Chief William George Lathlin, or Mr. Ralph Abramson?

[English]

Mr. Ralph Abramson (Director, Treaty and Aboriginal Rights Research Centre of Manitoba Inc.): What we are going to do is give a presentation in two brief parts. I am going to give an overview of what the Treaty and Aboriginal Rights Research Centre is, and then Chief Lathlin is going to talk specifically about part 2 of the bill.

I'll be giving a brief overview of exactly what the TARR Centre is. The TARR Centre was established in 1982 to undertake research and development of specific claims on behalf of Manitoba first nations. At the present time we represent 52 of the 62 first nations in Manitoba. We're governed by a board of directors of chiefs from various regions across Manitoba. That body, of which Chief Lathlin is part, oversees the activities of the centre and also the finances. We're funded through a federal program that provides funds to organizations across Canada to undertake research on behalf of first nations.

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We have three offices: one in Winnipeg; one in Thompson, Manitoba, to service the needs of the northern first nations; and our head administrative office is in Scanterbury, Manitoba, on the Brokenhead Ojibway Nation reserve. We have two research offices, the main research office being in Winnipeg, where we maintain a large and extensive resource information collection on Indian history. It contains information such as Indian Affairs files on microfilm and microfiche, an extensive mapping collection, and secondary information such as books and articles—all that's required in the development of claims.

We have a smaller resource library in our Thompson office, but the two offices are linked together, and we're able to undertake research on behalf of our member first nations.

The roots of the TARR Centre go back to a program of the Manitoba Indian Brotherhood that was established in 1969. Initially, the focus of the program was the accumulation of information on the general history of first nations in Manitoba. Around the mid-1970s, the focus of that activity changed to research and development of claims, and ever since that time the centre has been involved in working with first nations to research, develop, and submit claims to the federal government under the federal government's specific claims policy.

There's more specific information contained in the package that has been distributed. There's a brochure outlining in general terms what sort of historical information is available at the TARR Centre's resource centre, the first nation membership, and a brief description of the mandate and activities of the centre.

The other thing contained in the package is a list that was prepared by the specific claims branch, a branch of Indian Affairs, outlining just a few of the issues the TARR Centre has been involved with to give the committee an idea of the types of issues we deal with.

For example, we were the body that was responsible for undertaking development of treaty land entitlement cases in Manitoba, and that includes all the first nations involved in the TLE Committee, as well as the first nations who were involved in the one-off TLE settlements, such as Long Plain, Swan Lake, Roseau River, and the Island Lake first nation.

We've been involved in the specific claims process right from the initial stages, the identification of the issues, and we've also been involved in the negotiations of claims with the department. I think as a result of that activity, and looking forward to the future, we wanted to take the opportunity on behalf of the first nations we represent to make some statements on the second part of the bill, because we see it as something that would create a mechanism that would make it easier to settle claims in Manitoba in the future.

Maybe with that, I'll turn things over to Chief Lathlin, who is going to be speaking about the specifics of part 2 of the legislation.

Chief William George Lathlin (Opaskwayak Cree Nation): Thank you, Ralph.

Mr. Chairman, committee, I know that we have a very limited time to speak on the issues, so that's why I'm going to do a short version of what's in the big document. It's very specific, and I'll give an example of why we feel the second part of Bill C-56 would be useful to us.

In our future specific claim settlements, Manitoba first nations will likely take the position that the agreements must provide for the ability to secure new parcels of reserve land in replacement of reserve land lost.

An example in our case is the Birch River surrender for exchange in 1918. OCN, which is the Opaskwayak Cree Nation, was shorted approximately 17,000 acres. This claim has been validated and is currently in negotiations. Although the compensation ultimately agreed to in the final settlement agreement will likely be monetary, OCN will take the position that a provision to allow for obtaining replacement reserve land to the extent of reserve land lost be included in the settlement agreement. It is important to OCN and to other Manitoba first nations involved in the specific claims process that the federal mechanism to secure and establish reserve land as part of claims settlement processes is as efficient and effective as possible.

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Because there is little crown land in Manitoba that does not have some form of third-party interest on it, acquisition of this land for claims settlement purposes will have to involve dealing with these interested third parties that hold interest on land identified for claims settlement purposes.

Bill C-56, part 2, provides for what should prove to be effective and efficient options to deal with these third parties prior to the land being established as reserve. Perhaps the most viable option from the perspective of first nations is that first nations themselves will be able to deal effectively and directly with third parties prior to the establishment of reserve.

First nations can pre-designate interests on land to be established as reserve through the standard mechanisms and authorities provided for in the Indian Act. At present, first nations do not have this option. Currently, the federal process to set apart land as reserve involves the issuance of an order of the Privy Council. This process can be lengthy and can slow down the reserve creation process. This can cause, and has caused, problems for many first nations. In our case, I know we've had a difficult time because the process takes years and years to complete.

First nations governments cannot exercise effective and efficient administration and control over land until the land attains reserve status. Bill C-56, part 2, will give the Minister of Indian Affairs and Northern Development the authority to set apart land as reserve. This should dramatically speed up the federal process to set apart reserve lands.

It is important to Manitoba first nations that they maintain a high degree of control over their lands. Too often in the past, federal legislation and programs and policies have been established without any meaningful input from the people most directly affected by these initiatives. The provisions of Bill C-56 will not be binding on any Manitoba first nation unless and until the council of the first nation issues a resolution requesting application of the act in the settlement of a claim. We feel these are positive features of the bill, consistent with first nation objectives of self-sufficiency, self-dependency, and self-government.

The first nations of the power centre of Manitoba believe Bill C-56, part 2, to be a progressive and positive piece of legislation that will provide improvements to the process of settling first nations' land claims. We would urge the passage of Bill C-56. Thank you.

[Translation]

The Chairman: Thank you very much, Chief Lathlin.

We will now proceed with questioning period. Mr. Konrad.

[English]

Mr. Derrek Konrad: Thank you very much. I appreciate that Bill C-56 attempts to move things along. But I have a question that is less about Bill C-56 and more about a problem that seems to arise from time to time. I hear about it when particularly the women come to my office in Prince Albert where a band has received money under the treaty land entitlement process—I'm talking about Saskatchewan—and the band has received the compensation but the people who don't live on reserve find it hard to access the benefits of it. In other words, move to the reserve or lose your benefit.

Where some people have been gone for a generation or more, that creates quite a hardship. Do you have any plans for improving that type of situation so that people are able to live their lives with some degree of freedom, without having to be tied to a benefit that is geographically located, so they can get either cash or buy land in fee simple somewhere where it will suit the lifestyle they've adopted?

Chief William George Lathlin: Mr. Konrad, to speak to that issue, the policies of the Indian Act restrict us from going outside the community to support our band members. But we don't follow that. We support our band members wherever they may be. We have our people scattered all over the world in fact and we don't deprive them of anything that's supposed to be theirs. We include them in any compensation we get from governments in terms of land claims or whatever. We just don't exclude them like some other first nations do. I'm speaking for the Opaskwayak Cree Nation. That's how we operate with our members.

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Mr. Derrek Konrad: This is an issue I've addressed before. Goodwill on the part of one group doesn't translate into legislative action over a larger area, so you end up with an uneven reception—I guess would be the right word—of those benefits. Do you think there should be something in legislation so that it doesn't depend on the goodwill of a particular band or a particular council and that benefits extended at one time can be withdrawn at another time?

Chief William George Lathlin: I think everybody should be given an opportunity to opt in or out. I can only speak for the Opaskwayak Cree Nation. I'll give you an example on Bill C-31. A lot of people don't take Bill C-31 in their communities, although they were from that particular band. In our case, we welcome all the Bill C-31 people who are coming through. Hopefully, people will follow us. But in my opinion I think any first nation or any other person that wants to adopt that should be given that opportunity. Like it says here, it's not for everybody. People can opt in or out. I don't know if that answers your question.

The Chairman: Mr. Bryden.

Mr. John Bryden: I take it the chief heard our exchange about third-party interests, and I wondered if he had any specific comments on what he heard.

Chief William George Lathlin: We always have that problem where we don't have a mechanism to deal with third-party interests. We need something concrete that says these are the rules we have to abide by. Today we don't have that opportunity to deal with third-party interests. It would be beneficial not only to first nations but also to municipalities. In fact, I was talking to the mayor of our town, and he's really interested in that process and that there is provision for us to be able to communicate and deal with the issues before us right there, instead of having other people come and negotiate for us, as is happening right now.

Mr. John Bryden: One of the directions I was taking in my line of questioning was to express a concern that the legislation appeared to enable third parties to actually block or hold up the settlement of claims or settlement of reserve areas, shall we say. Is this something that particularly concerns you? I don't know the history.

Chief William George Lathlin: No, I don't think so. I think when it comes right down to it, reasonable people can sit down and negotiate the terms of any transaction that takes place regarding lands and our property. We feel that should be open to all parties, not just first nations but also municipalities, towns, and even cities.

Mr. John Bryden: Thank you.

The Chairman: Merci, Mr. Bryden.

Ms. Desjarlais.

Ms. Bev Desjarlais: I have just a short question. Would it have been your preference that the bill not tie together treaty land entitlement with the Norway House agreement process? Would it have been more beneficial for the first nations on the treaty land entitlement side to be separate from the Norway House flood agreement side?

Chief William George Lathlin: That I can't say right now, because when these things start to unfold, it's hard to measure them in terms of what would have been the best thing at the time. But I fully support what's going on in terms of moving our land deals with the municipality, the town, the feds, the province, or whatever. It has always been a hindrance how we deal with lands. The process is cumbersome and takes years, and it costs us money in terms of development, especially economic development areas we want to develop. It's a hindrance.

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Ms. Bev Desjarlais: I'll add to that, because Chief Lathlin and the Opaskwayak Cree Nation are obviously in my riding, as are a number of the other communities that have come into question. They are an extremely progressive first nation and have been involved in economic sufficiency for a long time.

I can assure Mr. Konrad that I know a number of women from the Opaskwayak Cree Nation who have absolutely no problem ensuring that they are part of chief and council and that they take a very active part in ensuring their rights are maintained.

His comments that C-31 members have always been included as well as off reserve members are quite accurate. I would suggest that where it's not, those first nations are encouraged to work that way, and by seeing Opaskwayak Cree Nation and others like that, that will happen.

[Translation]

The Chairman: That is good to hear, Chief. Thank you very much.

Mr. Nault.

[English]

Mr. Robert Nault: Because this is a research organization, I want to know what the breakdown is. When looking at your status report of March 31, I get the impression that the majority of the claims are TLE versus flood. Can you give me a breakdown or a little information about that?

Of course, some people are saying, well, this is omnibus and there are lots of flood claims, but when I look at your report it doesn't indicate that. Can you give us a sense of the breakdown between the two? To me, it looks like TLEs all through this.

Mr. Ralph Abramson: Sure. The report that was appended to the presentation is a document that was prepared by the federal specific claims branch. What it outlines is claims that have been submitted into the system, and a lot of them were TLEs.

I'd like to make the distinction we've always made. We have never considered TLE a claim; it's more unfinished treaty business. But there are a lot of other claims that are in various stages of development that wouldn't be reflected here. So this doesn't outline the full range of claims in Manitoba.

The other thing is, as far as issues under the Northern Flood Agreement are concerned, we've never dealt with that. It has always been a separate group that has dealt with these issues, either the northern flood committee or individual first nations. So that's the reason they're not reflected here. They've been dealt with in a process outside of the specific claims policy.

Mr. Robert Nault: But you don't do research on that side of it, then?

Mr. Ralph Abramson: On the more comprehensive flooding projects such as the Northern Flood Agreement, we have not. We have dealt with issues such as flooding affecting individual first nations, but nothing within the scope of the Northern Flood Agreement.

Mr. Robert Nault: Okay. Thank you, Mr. Chairman.

[Translation]

The Chairman: Thank you. Do you have any other question?

[English]

Merci beaucoup.

[Translation]

I will ask our next witnesses to come forward. I would like to welcome the representatives from the Treaty Land Entitlement Committee—

[English]

Chief John Thunder, who is the chairman, and Brad Regehr.

Chief John Thunder (President, Treaty Land Entitlement Committee): Good afternoon to the members of the standing committee. I would like to thank you for giving us the opportunity to make a presentation on Bill C-56, the second part of which we are concerned about. My name is Chief John Thunder. I'm president of the Treaty Land Entitlement Committee of Manitoba, which represents the 19 first nations.

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I'd also like to get into the negotiations that took place, not only in this last round in the 1990s, but in the 1970s and 1980s, when there were negotiations but an agreement wasn't signed. We basically had 30 years of education in treaty land entitlement, so it gave us an opportunity to kind of grow into this process and learn as we went along.

The economic opportunities and employment this agreement will allow us to get into are the key to it all—accessing and getting involved in the natural resources sector; having the ability to have a say in what goes on in our world; and getting out of the third world conditions that a lot of the first nations are presently in.

One of the parts I have always touched on with this agreement is the release. This agreement will allow us in the future to revisit the land quantum based on future growth, so if our population continues to grow and exceeds the amount of land we have available to meet their needs, we can come back and negotiate for new lands to meet those needs.

The implementation of this agreement is really the success of this bill. A major effort must be made on behalf of all three parties to transfer the lands to reserve status in a timely fashion. Basically, the treaty land and title office is responsible, on behalf of first nations, for ensuring that this land is transferred to reserve status. But at the same time, the federal and provincial governments are also involved in the system, and they need to be as committed to this process as we are.

All that having been said, I believe it is of the utmost importance for this country to focus its attention on the first nations from an economic perspective. We have a situation where the urban impact that is presently being felt from the migration of first nations people into the cities is in direct relationship to the neglect of the first nations communities. If we were to start focusing on the first nations communities and putting our efforts there, we wouldn't have the urban city problems that are starting to arise because of the migration that has taken place.

This agreement is only the beginning of self-government and first nations being able to take control of their lives. A major effort still needs to be made by the federal government and the provincial government to see that first nations are given the ability to utilize their lands and resources for their own needs and not have the federal and provincial governments putting in all kinds of stumbling blocks and trying to impede what we ultimately need to do for ourselves.

With that, I'd like to thank you and hand it over to Brad.

The Chairman: Thank you.

Mr. Brad Regehr (Manager, Treaty Land Entitlement Committee): Good morning to all the honourable members of the standing committee. My name is Brad Regehr. I am the manger of the Treaty Land Entitlement Committee.

The Treaty Land Entitlement Committee of Manitoba is an organization comprised of 19 first nations with voting membership and three first nations with non-voting membership. On May 29, 1997, the Manitoba Treaty Land Entitlement Framework Agreement was signed between Canada, Manitoba, and the TLE Committee. The individual first nations were not signatories to this agreement at that time, which is different from the Saskatchewan TLE agreement, because the membership of each first nation must approve of this agreement. They must vote yes or no to accept or reject it.

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At this point in time, 16 of our first nations have voted in favour of the agreement and nine of those 16 have executed band-specific agreements. We're still waiting to hear today on whether the tenth, Mathias Colomb Cree Nation, has executed as of yesterday.

I am here to comment and answer questions in regard to Bill C-56. In particular, my comments and the questions I'll answer are restricted to part 2 of Bill C-56 regarding the TLE implementation. I am not here nor am I qualified to answer questions on the Norway House Cree Nation section of the bill.

Part 2 of the bill addresses two requirements of Canada under the framework agreement: section 8.03 of the framework agreement and subsection 10.02(3). Section 8.03 requires the Minister of Indian Affairs to recommend legislation to allow the minister to set aside a reserve without the normal federal order in council. It's addressed in subclause 11(1) of Bill C-56.

Subsection 10.02(3) of the framework agreement requires the minister to recommend legislation to allow first nations to pre-designate land before it is set aside as reserve. This can be found in Bill C-56 from subclause 11(2) to clause 13.

We believe this is a good bill. It is a positive step to accommodate the implementation of the framework agreement. It reduces the amount of time for reserve creation, especially in regard to the federal order in council, which can take up to six months or more to obtain.

It will also provide a smoother transition in the reserve creation process when the land is transferred from the jurisdiction and control of Manitoba to that of Canada. This is in particular to that of third-party interests.

It also offers a level of comfort to third-party interests who are agreeing to have their interest moved from a provincial jurisdiction to a federal jurisdiction.

This bill, along with the framework agreement, encourages partnership with third-party interests as well as economic development. The bill is unique. There is no similar bill for Saskatchewan TLE implementation, or any other TLE implementation for that matter.

Treaty land entitlement has been an outstanding issue for 120 years in Manitoba. Implementation must not take that long.

First nations want their treaty land entitlement to become reserve as soon as possible so they can use their land for the purposes they wish and for the benefit of their people. This bill will assist first nations, Canada, Manitoba, and the TLE Committee in the implementation of the framework agreement. It will make our jobs that much easier.

We currently have 200,000 acres that have been selected and are in the system. If Mathias Colomb signed yesterday, that adds another 200,000 on top of the existing 200,000 that will be moving through the system today.

As you can see, first nations are taking the framework agreement and its implementation seriously. This bill is but one part of the implementation of this agreement.

The board of directors of the TLE Committee has approved this bill. As well, the bill was provided to all of the 19 first nations and was an item for discussion at a general meeting of the TLE Committee in January.

There has been extensive consultation between Indian Affairs and the TLE Committee in that we were provided with the bill as soon as it was drafted last summer. As well, we've been given an opportunity to make recommendations and comments on the various drafts.

As such, I urge you to approve this bill in order that it will move further through the parliamentary process. Thank you.

The Chairman: Thank you, Mr. Regehr.

Mr. Konrad.

Mr. Derrek Konrad: Thank you. First I'd just like to make a comment to you, Chief John Thunder. You see problems with Indian migration to cities and say the TLE will help that. I don't see a problem with anybody moving to a city. I have employed native people. They've been draftsmen, they've been field personnel. I know teachers and I know farmers and I know a number of people who have moved off the reserve, and they certainly have been no problem to society.

I think when people unprepared to undertake a life in a city or anywhere are unsupported, you will always have problems, and it doesn't matter where they came from. So I just have that one comment.

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The question I have concerns the non-requirement to seek the prior approval of a majority of members of the bands. Why is that, and how would it be better than the requirement that the band members approve a resolution to get involved in the application to obtain reserve land?

Mr. Brad Regehr: Currently, in the process you have now, when you have a third-party interest on land that you want to turn into reserve, for the most part it's under provincial jurisdiction. Before the land becomes reserve, the third-party interest has to be completely discharged even if you're going to replace the third-party interest. Once the third-party interest has been discharged, the land has to move into the federal system, whereupon you issue another third-party interest. Understandably, third-party interests are very reluctant to do that, because there is a period of time whereby their interests are not registered anywhere. This process allows the third-party interest to move smoothly from provincial to federal jurisdiction, and a replacement interest can be issued even before the land becomes reserve. That's the reason for the pre-designation process.

Currently, under the Indian Act, in order to register a third-party interest, land has to be surrendered or conditionally surrendered into designated land. What we want to do here is allow the first nation to pre-designate the land as designated land even before it becomes reserve. It allows the process to move a lot more smoothly, and it gives third parties a level of comfort in knowing that their interests will constantly be registered and protected.

The Chairman: Mr. Konrad.

Mr. Derrek Konrad: I'll pass for now.

[Translation]

The Chairman: Mr. Nault, followed by Ms. Desjarlais.

Mr. Nault.

[English]

Mr. Robert Nault: First of all, I want to welcome you to the committee and thank you for coming.

Just for the record, Chief Thunder, which community is yours?

Chief John Thunder: Buffalo Point First Nation, in southeastern Manitoba. I believe we've met a few times in regard to treaty land entitlement under Treaty No. 3. We're the only Manitoba band that's involved with Treaty No. 3, which is extensively in the province of Ontario.

Mr. Robert Nault: Maybe for the record as well, could you give the committee a rundown of the size of your land entitlement committee? How many members are there, and who are they? That's just so we can get a sense of the makeup of it.

Chief John Thunder: It's basically 19 first nations here in Manitoba.

Mr. Robert Nault: What I mean is, do they all have a person on the committee? Are they represented by every chief, or are they represented by technocrats? How is it formed?

Chief John Thunder: We have a board of directors that is represented by, I believe... how many are there?

Mr. Brad Regehr: There are five members on the board of directors.

Chief John Thunder: The board of directors then answers to the 19 first nations chiefs committee, on which sit the chiefs of those 19 communities.

Mr. Robert Nault: You've come to the committee and have been very clear in indicating that the wishes of the first nations are to pass this legislation and get on with doing the job of implementing the land entitlement process that has been going on for a number of years, obviously. Would it also be safe to say this legislation has the support of the Manitoba government as well?

Chief John Thunder: Yes, I believe it has. Throughout the negotiations, the provincial government was at the table. There were times when we were not of the same frame of mind, but I think the overall objectives of getting the land transferred to reserve and fulfilling the obligations that were outstanding were the focus of this whole agreement. I felt the Manitoba government was in support of those objectives.

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Mr. Robert Nault: Ontario Hydro was part of this whole process as well. For the sake of argument, it was the major third-party interest in this particular area, particularly in the north. It was also in agreement with us getting on with the job of reserve extension, treaty implementation, if we want to get...

There's a difference of opinion when we talk about treaty implementation, but I for one see this as pretty obviously a question of treaty implementation. You're dealing with the entitlement of land that originally was set aside in the treaty itself, so this is a wrong that was created over a number of years that we're trying to rectify. For the sake of argument, I just wanted to get a sense from you, as the chair of the land entitlement committee, that the major players, including the province, are all supporting this, and that what we're therefore doing here is enacting the wishes of the people who live in this area—basically all of Manitoba, for that matter.

Chief John Thunder: Through the negotiations, I think we were able to address some of the third-party interests. Manitoba Hydro, of course, was one of the major third parties that we had to deal with. We do have a first nation that hasn't signed on because it has some concern in regard to Manitoba Hydro. We were able to address a great majority of our concerns when it came to Manitoba Hydro, though.

Originally, there was a map of northern Manitoba that basically was dotted throughout with all the proposed hydro development for the next 36 years or so. We were able to take that map with all those dots on it and pretty much eliminate 90% of them, if not more. I think we were able to address a great deal of our concerns about the future flooding of our lands, but there was a Manitoba Hydro provision pertaining to three rivers—I believe they were the Fox, the Gods and Hayes Rivers—that still have future impact possibilities. It's because of those three rivers that we have one or two bands that are still debating whether they should be signing this agreement or not.

Mr. Robert Nault: Mr. Chairman, this last point isn't so much a question to our witnesses as it is a statement to the committee. If I'm not mistaken, this basically is a comprehensive way to fast-track a land entitlement process. What we might want to do as a committee is have someone tell us what it's like to do it individually and how long it takes.

I have had the opportunity to represent first nations that have been in the specific claim process or the land entitlement process for a number of years. It's quite a long, drawn-out affair. If we want to get a sense of it, I think we should have someone explain that to us, along with the difference of what we're trying to do here. I commend the government for doing this. I wish they'd do it in my area, because the process certainly causes a lot of headaches.

I just want to conclude by thanking the witnesses for giving us that information and for letting us know who supports it. Even though I've gotten this list of people who are opposed to it, when you think about it, all the first nations are pretty well onside, the Manitoba government's onside, and the third-party interests are onside. It kind of makes you wonder what the debate is all about and why this seems to be taking so long to get through the House. So I just wanted to say I appreciate your time.

Thank you, Mr. Chairman.

[Translation]

The Chairman: Thank you. Ms. Desjarlais.

[English]

Chief John Thunder: I guess there were some previous questions that were asked that I wouldn't mind touching on. One was in regard to the Bill C-31 issue. Mr. Konrad asked a question in regard to what support the first nations are giving to the descendants who basically had their rights taken away because of the Indian Act and the way it discriminated against certain peoples.

• 1235

As Chief William Lathlin said, Buffalo Point is no different from Opaskwayak Cree Nation, where we do support Bill C-31.

But I will say that when this bill was passed back in 1985, the minister at the time, Mr. Crombie, made comments about Bill C-31 not having an economic impact on the first nations, and that if there were any impact, the federal government would be responsible for meeting those obligations. Since that time, we've had a lot more people applying to get back to the reserves than was anticipated when they signed this bill. At the same time, the resources the federal government was supposed to supply to the first nations to meet this new growth were never there, or very little was there.

We have a small community, and we've basically doubled in size. Yet during all this time we've never received any new funding to assist us in addressing this. So it leaves us in a predicament where we support it but we don't have the resources to move this thing along and bring these people back. We have the land, but we don't have the resources for housing and all the other needs these people will require once they come back to the community. So it leaves us in a predicament. Hopefully, in the future, the federal government will see to meeting these needs.

The other question was with regard to third-party interests. I remember during the negotiations the argument that was put forth with regard to third-party interests. The word that was touched on here today and what Tom was addressing was “if”. We had that same argument back then, and Tom basically gave the same argument he gave here today. But I think there is a concern with regard to that, because it's just a matter of wording. You could take it one way or the other. It's just a matter of who interprets the word “if” and what it ultimately means. But there is that concern on our part. I think if we can look at it with regard to what's in the best interest of the first nation and give us the benefit of the doubt, if that's the position that's taken during these negotiations with third parties, ultimately the success in dealing with this third party would be in favour of the first nation.

[Translation]

The Chairman: Thank you.

Ms. Desjarlais.

[English]

Ms. Bev Desjarlais: With regard to the third-party interests—and I'll go back over the minutes to see about this—I seem to recall a fellow in the previous group indicating that when an agreement was made, it would become a provincial responsibility and it would never go back to being a federal responsibility. Now, maybe I misunderstood what he said, so I'm just verifying it with you. Is it your impression that if there's a third-party agreement now and then the agreement is made with the first nation, it then becomes federal?

Chief John Thunder: I'd like to refer this to Brad.

Mr. Brad Regehr: Under the agreement there's a wide variety of third-party interests that can be dealt with. There is a specific section dealing with mines and minerals. We've had a number of selections, and when we get the provincial response it indicates that there are a number of mining claims.

There are a variety of different ways to deal with third-party interests. One of them is to discharge them. There is a fund provided to do that. Another way is to accommodate them. Perhaps a first nation wants to grant an interest under the Indian Act or the Federal Real Property Act rather than under the current provincial legislation. That's really the option of the first nation as to which one they want to pursue.

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It also depends on the reaction of the third-party interest. If we're talking about mines and minerals, if the person holding the mining claim wants to agree to have their interests bought out or they agree to have their interest continued under the Indian Act, there are those options open.

With specific regard to mines and minerals, if a third-party interest holding a mining claim acts unreasonably, the matter can be referred to what's called the implementation monitoring committee. That committee, after allowing the third-party interest to make a presentation along with the first nation, can make a ruling or recommendation on how to satisfy that. For example, the best one I can think of is if the mining claim is worth maybe $100,000 and the third-party interest says I want $1 million or I'm not doing anything. He or she is acting patently unreasonable, and I think it would be open to the IMC to say, this is worth $100,000 and that's what you're going to get, not $1 million.

I know that third-party interests are not signatories to this agreement. We've been made well aware of that by the Mining Association of Manitoba. But I think the TLE Committee's position would be that mines and minerals are currently under the jurisdiction of Manitoba, and if third-party interests don't want to abide by this agreement, to which Manitoba is a signatory, then Manitoba is the one that is going to have to deal with it.

There are others, forestry provisions, which deal specifically with the forestry companies. Those matters can be referred to the implementation monitoring committee. I think in terms of third-party interests, it was the mining, the forestry, and the hydro, in terms of the north, which were the main ones. When you deal with the south.... We have two different processes in the TLE framework agreement. One is for the selection of crown land and the other is for the acquisition of what is other land, the purchase of 100,000 acres on a willing seller, willing buyer basis.

Normally in the course of land purchase, the third-party interests are discharged. When you buy a piece of land that's under private title, the mines and minerals, nine times out of ten, go with that land, so you don't have an issue. If you have a lease...if, for example, you're buying an office building, I don't see how it's going to come up. If a first nation is buying an office building in Winnipeg, or if they're buying it right next door to one of their reserves, I don't see how discharging all the third-party interests such as leases and ending up having an office building is going to be in anybody's interest, especially not the first nation's, and there's a process for accommodating those leases.

So the use of the words “third-party interest” is very broad in the context of this agreement. If you look in the definitions in section 1.01 it contemplates a wide variety of different types of third-party interests.

Ms. Bev Desjarlais: You indicated that the committee will make a recommendation. Is there sufficient legislative backing that the committee's recommendation must be carried through?

Mr. Brad Regehr: A lot of the third-party interests are dealt with under provincial legislation for crown land. For example, with forestry they have forest licence plans that are issued every five years but are subject to being changed within those five years. Different permits are maybe under one year or three years, and they can just not be renewed. That's provided in legislation as well as regulations and policy. That would be under provincial legislation.

Ms. Bev Desjarlais: So the province would have the authority at some point to just take it back if they so chose.

Mr. Brad Regehr: I like to think they do. I can't speak for the province. They'd better have the authority to do that, because they signed this agreement and this agreement has specific provisions that have to be abided by.

Ms. Bev Desjarlais: I have one more question.

In your notes here it mentions a 30-kilometre radius on the outside boundaries of the main reserve, and it talks about the third-party interests in reserve lands. What if the other party in question in the reserve lands is another first nation and you have bordering lands? Let's say one is somewhat bigger than the other, or even if they're not. How does that 30-mile radius around that main reserve come into play? Obviously, I have a number that are fairly close to each other, but I see that one that's not on here for people to see is Cross Lake, and it's very close to Norway House. Both are really large and growing first nations. How is that going to be accommodated under this process?

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Mr. Brad Regehr: The 30-kilometre radius you're talking about is the community interest zone, which is in effect from the day the first nation signs their band-specific agreement until the third-year anniversary. The purpose of the CIZ, community interest zone, is that within that 30-kilometre radius Manitoba has to give notification during the three years to the first nation of any proposed dispositions of crown land. To date that includes issuing of permits for cottages. In Buffalo Point's case a number came through where they wanted to remove a couple of truckloads of bog, of peat. In Brokenhead we get constant notifications for the removal of gravel from a quarry to the north of the reserve.

In the case you mentioned of Cross Lake Norway House, Norway House's CIZ borders on what would probably be the Cross Lake traditional territory. In the case of Wuskwi Sipihk and Sapotaweyak, their CIZs overlap. Both first nations in the overlap area are given notification. They may be interested in selecting the same land. For example, in Wuskwi Sipihk or Sapotaweyak, or in the case of Norway House, maybe they want to select land that Cross Lake may be interested in under some other agreement.

You have a conflict arising between two first nations. The agreement specifically addresses that issue and says the two first nations have to sit down and work something out. There is provision for the first nations to hold reserves in common. That's not an unusual thing in Canada. They could hold part of the land together or the whole thing together if they want.

The idea of this agreement was rather than using an approach where people are in conflict, to use a consensus-building model to reach agreement, to negotiate things and work things out on the level of all parties, not just between first nations but between the TLE Committee, the first nations, Canada, and Manitoba. That was the idea behind it.

[Translation]

The Chairman: Thank you, Mr. Finlay.

[English]

Mr. John Finlay: Thank you, Mr. Chairman. I apologize for not being here for the witnesses' presentations, having been called away to something else.

There are a couple of things I read in here that I'd just like some clarification on. If I'm repeating, I'm sorry, Mr. Chairman. Clause 3 of Bill C-56 provides that amounts paid to the Norway House Cree Nation under the master implementation agreement are not Indian moneys. Can you explain to me the significance of that? I think I know, but how are these not Indian moneys? What's referred to here?

Mr. Brad Regehr: Actually, I can't comment on that. I'm only here to discuss part 2.

Mr. John Finlay: All right. Sorry.

We've talked a little bit about this, and Mr. Konrad raised the question of the Saskatchewan treaty band entitlement. In what way does this bill treat the establishment of the reserves under the Manitoba treaty band entitlement framework agreement, or other agreements involving Manitoba first nations, differently from the legislation relating to the Saskatchewan agreement? Is there a difference? I understand there is.

Mr. Brad Regehr: They don't have this legislation in Saskatchewan. I wasn't involved in negotiations, but my understanding is this legislation, or the duty on the minister to recommend this legislation as contained in the framework agreement, was in specific response to the situation that was unfolding in Saskatchewan. There, for example, the minister setting aside reserve takes at least six months or more off the reserve creation process. Everyone saw that as a good thing because they're running into difficulties in that they get a backlog of federal orders in council. It takes a while to get through.

As well, there is the greater ease of transfer of third-party interests to provincial and federal jurisdiction, which is a problem in Saskatchewan. There are other things, such as the implementation monitoring committee; there is no IMC in the Saskatchewan model. They have to hire expensive arbitrators every time an issue comes up. We don't have to do that. We can refer all sorts of matters to the IMC. It's a cheaper and quicker way of doing things. We learned from their mistakes.

Mr. John Finlay: Thank you very much.

Thank you, Mr. Chairman.

[Translation]

The Chairman: Thank you, Mr. Finlay.

Mr. Konrad.

[English]

Mr. Derrek Konrad: I just have one quick question. What's the base year for the treaty land entitlement in Manitoba, the base year for population?

Chief John Thunder: The year is 1994.

Mr. Derrek Konrad: Thank you.

[Translation]

The Chairman: Mr. Iftody.

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[English]

Mr. David Iftody: I direct my question to Chief Thunder. I would just say he is one of my constituents. I don't think that prejudices me in asking a question.

We've been talking a lot about third-party interests. We are just in the process of concluding another bill where the issue of third-party interests has come up, not in this particular issue, but we did talk about it with Norway House and other agreements. It's been raised here and in Bill C-49.

I noticed with great interest that in your community you have a number of cottagers. I think the majority of them are from an adjacent Mennonite community in my riding from the town of Steinbach. I know your community has established long-term leases with these folks. My general impression from southeastern Manitoba is this is a very good relationship that has existed for some 20 years now, and in my view provides a very clear example of how there can be very good, mutually beneficial relationships, in this case for recreational properties involving the Buffalo Point first nations and many Mennonite people in my community.

Just for the purpose of discussion about negotiation for third-party interests and other concepts around it that we've been labouring with here this morning, could you talk just very briefly, Chief Thunder, about any problems you've had in the past 20 years with that? Are the relationships relatively smooth with respect to these agreements with your leaseholders?

Chief John Thunder: As David said, we've been leasing cottage properties at Buffalo Point for 22 years. We have 250 property owners there. We've had an excellent relationship with our cottage owners. We've had to deal with specific issues at times, but they have an association with an executive and they meet annually with us to address their concerns and issues. There is also an arbitration process in the lease agreements, to allow them to deal with any outstanding issues we can't deal with and address ourselves.

There is an issue that has just arisen in regard to taxation. When we first started, first nations weren't allowed to develop property tax on their reserve. In order for us to get around that, we developed an assessment fee that was basically a fee for services. The first nation now has the ability to implement property taxes.

We've always had a problem with a lot of cottagers not taking the assessment that seriously. They don't pay on time. Most of them are pretty good, but a small percentage of them won't pay their taxes on time. When we send them second or third bills and add interest on them, they have the idea we don't have the right to add interest on their outstanding accounts.

We've been trying to get the cottage owners to take it a little more seriously. We've been looking at transferring it from an assessment fee to a property tax. In doing that, there have been some increases that have been disputed by the cottage owners, so there's a possibility of an arbitration process to address that.

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I can relate that situation to an example that has occurred in B.C. where leases are coming up for renewal and the first nations are implementing property taxes on these leases. From what I've read, the rates are quite huge. It's getting to the point where the property owners can't afford to pay the rates that are being imposed upon them.

At Buffalo Point, our situation is that we started out with the assessment at a very, very low rate. In fact, when we started it was $75, and over the course of time we've increased it on kind of a cost-of-living basis. Over the last 22 years it has gone up from $75 to $575. I think the last increase was $135, and this is what has the cottage owners a bit concerned.

I guess the thing we're having to realize and deal with is that as first nations we have two sources of funding. One is the federal government, the Department of Indian Affairs, and the other source we have at our disposal is our property taxes.

One of the things I have always said is that as first nations we have less ability to generate our own sources of revenue than municipalities do, and I feel the inequity that exists out there needs to be corrected in allowing the first nations to look at generating revenues for their communities no differently from any other community.

Through the Gathering Strength policy there is this own-source revenue, which is a process we're negotiating with the federal and provincial governments to look at doing exactly what I'm talking about. But I think both the federal and provincial governments have to open their eyes in regard to looking at giving first nations the ability to generate their own revenue, because ultimately it's going to give us the ability to get out of the third world conditions and do what is necessary in what we have to do.

I can't be going back to the same well. In other words, I can't be going back to the cottage owners every time we have needs to be met. We have to go back either to the Department of Indian Affairs, which the majority of the time isn't very successful...and of course we can't be going back to our cottage owners time and time again to address that as well.

Basically, we need to look at other ways of generating revenue. Once we have those abilities, then we can disperse the responsibilities in a wider range of areas instead of just on a couple of departments or a couple of individuals. It's something we all need to be thinking about seriously.

Thank you.

[Translation]

The Chairman: Is there any other questions? Thank you.

[English]

Thank you, Chief Thunder and Mr. Regehr. Have a good day.

[Translation]

The meeting is adjourned.