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

[The Chair, Conservative, Chris Warkentin]

I call this meeting back to order.

Colleagues, there has been some discussion among the respective parties and there seems to be an appetite to collapse the two final panels into a single one as we only had one representative in the final panel. I think this will be a more effective use of our time. That is why you will see this panel differs from our original agenda.

Today in the last panel we have Mr. John Gailus. He has been here before, as has Mr. Gordon Shanks. Thanks so much, gentlemen, for joining us.

We have Chief John Thunder joining us as well. He is the chief of Buffalo Point First Nation.

We will go in the order of our listings here.

We will turn to Mr. John Gailus first and have his opening testimony. Then we will follow with Mr. Gordon Shanks and then the chief.

[John Gailus, Partner, Devlin Gailus Barristers and Solicitors]

Thank you, Mr. Chair. It is good to be back.

Just by way of background for the members, I am a lawyer. Please don't hold that against me. I'm sure there are a lot of you in the room.

I am a member of the Haida Nation on the northwest coast of British Columbia. I am also a former employee of INAC, but not for as many years, apparently, as Mr. Shanks, so I will defer to him.

I worked there for about four and a half years as a land management leasing officer. I did a number of designations and leasings. Since 1999 I have been in private practice.

Part of my practice also is trying to navigate the designation processes in the Indian Act and to get some on-reserve economic development going.

I only have a few comments on the proposed amendments and I will keep them brief.

As a practitioner, I am very much in favour the amendments. I have two current files on my desk that are designations; I have to say I talked to one of my clients last week, and they said to tell you they are in favour of the amendments.

I think the elimination of the double majority requirement and Governor in Council approval will shave several months off the process.

In addition—and I talked about this before in my appearance on the land use study—it will also encourage compliance with the act. Many first nations are forgoing the process for a do-it-yourself approach, not taking advantage of the highest and best use of their lands and potentially exposing themselves and the government to liabilities.

However, lawyers always try to find holes, and a couple of areas cause me concern.

First is the amount of discretion that is going to be vested in the minister's office. As you are probably aware, the designation process can be traced back to the Royal Proclamation of 1763. Its purpose today is to ensure the informed consent of the members of the band both on and off reserve.

The two-vote requirement is common in all sorts of organizations, and certainly in terms of corporations. My testimony is that there needs to be a quorum. We speak of quorum in the corporate sense; in terms of the Indian Act, the quorum is 50% plus one. You need to show up to vote, or vote through mail-in ballots.

In the corporate sense, if there aren't enough people to constitute a quorum, you adjourn the meeting. Then you have a second meeting, and it's just a simple majority, so there is some consistency with the current act and what happens in the corporate world, as it were.

Without having a quorum threshold, there is the possibility of lands being designated for long terms, for example 99 years, without a significant portion of the membership voting. I submit there is a possibility of that leading to legal challenges.

In my view there needs to be a clearly defined quorum that the minister will accept as a broad consensus. While this may be addressed in policy or amendments to the referendum regulations, my personal preference would be that it be embodied in the legislation.

Overall, however, the amendments are a significant step forward, with the caution that the lack of a quorum—and I use that term in the corporate law sense—may lead to legal challenges.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Gailus.

We'll turn to Mr. Shanks now for an opening statement.

[Gordon Shanks, As an Individual]

Thank you, Mr. Chairman.

Members of the committee, thank you for inviting me to appear before you again.

As you may recall, when I appeared before you last May I told you that I had spent more than 20 years in the Department of Indian Affairs, most of that time as an assistant deputy minister, so I have some familiarity with the topic that you're studying. However, my knowledge is not absolutely current.

I had the benefit of listening to the panel before me, and so, unfortunately, most of the points I was going to make have already been made much more eloquently than I can make them.

I'll briefly make three points, though. First is the obvious one. You may have thought of this before, but the fact of Indian land has been a central aspect of first nations in this country. I think an argument could be made that without the protection of the Indian Act, first nations as they appear today—as vibrant, intact entities—probably wouldn't exist. The notion of the Indian Act and Indian land has been with us for a long time and has been central to the history of first nations.

The question you're studying now is what standards should be used if that Indian land is going to be leased to someone else—generally speaking, to non-Indians. The Indian Act, as you know, doesn't allow land to be used by non-Indians except through the permission of the crown.

I would argue that if a first nation is proposing to give up its land absolutely—for ever and a day, what's called a “surrender” under the Indian Act—the bar should be very high. This is collectively held land, and therefore it's legitimate that there be a high bar and that no changes be contemplated in the Indian Act. I would agree with that.

The decision on leasing is a separate matter, though. Leased land does not disappear from the land base of the community; it's simply an allocation to someone else to use it for a period of time, and it reverts to the first nation after the lease ends.

Land is a commodity that is necessary for economic development, as Manny Jules pointed out to you. The timing of economic development is a very significant factor. I've heard complaints many, many times from first nations about the difficulties in getting things done in a timely fashion. I would agree that anything that is going to speed up the process at all is a good thing. I would lend my support to that amendment.

The last point I would make—and it's one that was alluded to by others, although maybe not as directly—is that I wonder whether these amendments really go far enough, in the sense that they still require the minister for Indian Affairs and Northern Development to approve a referendum. I think it might be time for the committee to think about throwing off the vestiges of colonialism and transferring that fiduciary duty from the federal crown to the first nations themselves.

This is obviously a complicated question, and it would require a fair bit of analysis and study, but I think the notion of the designation really raises it. Once a first nation has decided that they want to lease the land, on what basis should the minister second-guess that first nation? If they have done things through due process and followed norms of advice and involvement, I think the committee may want to say that perhaps it should be left to the first nation and that the crown can remove itself from the decision.

Those are my opening comments, Mr. Chairman.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Shanks.

We'll now turn to Chief Thunder for an opening statement.

[Chief John Thunder, Chief, Buffalo Point First Nation]

Thank you, Mr. Chair, as well as members of the standing committee, for this opportunity.

My name is John Thunder. I am the chief of the Buffalo Point First Nation, located in Manitoba on the beautiful shores of Lake of the Woods, just across the border from the United States.

I am 52 years old. The first time I proxied for my father was when I was 18 years old at the Assembly of Manitoba Chiefs meetings. I have known the likes of Walter Dieter, Robert Conley, and Brian Vino. I even have a picture of Jean Chrétien wearing a headdress and trying to implement the 1969 white paper. Between my father and me, we have led the way for first nations in lands and economic development. We have basically written a book on it, and this is what I present to you today. I have a few books that you can help yourselves to in order to read our story.

What has been transpiring since my dad, both financially and personally, started 35 years ago to build a modern resort community, a world-class tourist destination, is that today we have a total investment of about $50 million in infrastructure and community development that surpasses most communities in Canada. We have a deficit of a mere $3 million. We have literally graduated from the Indian Act and no longer need these impediments that are placed in front of us. It is my goal and priority to host a contribution-burning ceremony in 2015 to finally sever the ties with the department of dependency.

Beyond the need to have our land code passed, and without the siege and takeover and sabotage in our communities' referendum, we more importantly want to have the total economic impact that we have created on our land. This peninsula is generating four times the revenue in taxes and natural resources. That is what our government should have for ourselves, rather than those moneys being pocketed by other governments. This is what will ultimately allow us to get out of the dependency that has been created for first nations.

There are literally billions and billions of dollars every single day that run right through both our front yard as well as our back door. Our lake is a hydro reservoir for electricity and, of course, the city of Winnipeg's drinking water. There are two transmission lines, and a natural gas pipeline runs six miles from my community, all exporting into the United States with not a penny of those revenues benefiting my community. The Canadian National Railway cuts off our community for a total of four hours every single day, yet they pay taxes to the Rural Municipality of Piney while that railroad line runs right through our community. The property taxes from this business belong to the first nation and not some other government.

I heard a good line from Paul Fauteux today, who did this study on 25 successful first nations: “I stole it fair and square.” I thought that was a pretty good analogy. It is this injustice that I have been trying to correct, but with little to no success.

We have been identified as one of the healthiest and fastest-growing communities in Manitoba, and that includes the non-aboriginal communities as well. To continue to go through processes that take a minimum of five years to accomplish is nothing short of economic suicide. Then to allow economic terrorists to sabotage all of our hard work will set us back as first nations another 30 years. Having a community vote on whether a business gets to be built on our land is insane, to say the least. The time for extracting the Indian Act from our lives to allow first nations to move forward based on their own merits is long overdue.

It is interesting that in our treaty land entitlement process, a second vote of the simple majority was incorporated into our referendum process so that we were guaranteed a favourable outcome. This might sound somewhat contradictory, but one must understand that a lot of our people lack the trust and the education to make an informed decision that ultimately is handed down to us by the Indian affairs department. It would only make sense to have all this made available with the lands management program.

I would also like to question why the Department of Indian Affairs and Northern Development has watered down this study on the successes of first nations and why the recommendations are being ignored and whitewashed. I had to post this study on my blog so I could create an opportunity for other first nations to have access to this document, because no one in the federal government was willing to move this forward.

As the chiefs in 1910 said to Wilfred Laurier, they say that they have authority over us and claim this country as their own, using their courts to regulate and control us. That was 102 years ago, and still we live with this hanging over our heads to this very day.

In closing, let me say that without the authority to implement the financial as well as the judicial side of government, we might as well be denying the future of Canada and the first nations of this country. We should be assets, not liabilities. We can help protect our country from exploitation and start adding value to our resources, rather than continuing to wholesale them. We should sit as equals with the rest of society in Canada.

If we play our cards right, we can become economic powerhouses by using our land and resources to the benefit of all of our people. We can protect the environment by reinvesting these moneys where they belong. This is what I consider a sustainable and long-term strategy for becoming a community for the future.

Meegwetch, and thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Chief.

We'll turn to Mr. Bevington for the first seven minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you to all three of the witnesses.

We've all really enjoyed having witnesses here on this particular bill, but I think we all feel a little frustrated as well, because this is not leading to any changes in this legislation. This is the way it is right now in Parliament.

I want to go to the future, because quite obviously all three of you have said that this is not adequate. What would be adequate for first nations? What is the direction first nations want out of this type of legislation? Where do first nations want to go, as nations and as governments?

I think I heard pretty clearly, Chief Thunder, about where you want to go.

Could I just get from each one of you a snapshot of where you think first nations want to go, from your experience and your understanding? That includes Mr. Shanks, who's worked on the other side for quite a number of years.

[Chief John Thunder]

As a first nation leader, I have spent my entire life studying and watching what has been transpiring for first nations across Canada, and I have travelled from coast to coast to coast and seen a lot of first nations. I've consulted over 50 first nations for economic development purposes. At the end of the day, all I can say is we only have 4% of the land in Canada. The rest, the 96%, is controlled by the Government of Canada and the provinces, yet the 4% we have continues to be milked by the Canadian provincial governments for their own advantage. We get nothing from the 96% of land that exists out there, and that includes our traditional territory, our Treaty 3 traditional territory. I get nothing from that. My community has never received one penny, yet there are billions of dollars floating right by my community, all around my community.

I'm not trying to ride on the coattails of somebody else by taking their money, their businesses, and their revenues. What I am saying is that the economic impact that we've created on our land is worth more than anything that the Department of Indian Affairs and Northern Development will ever give us.

One of the questions I have always had is why, in Manitoba, does the province receive $1.5 billion in equalization payments to subsidize that small population base, while that same society uses our population as a means to cap us with a formula? That is why first nations are so reluctant to come to the table to deal with the Canadian government. It's because basically it's a one-sided affair that doesn't allow us to move forward.

The Department of Indian Affairs and Northern Development blamed my businesses, called me “an enterprise”, and said our sewer system would not be funded by the Department of Indian Affairs because of that. When the federal government can sit there and blame my businesses and then use Revenue Canada, another department of the federal government, to turn around and tax those same businesses by collecting GST, income tax, capital gains, and then deny us those taxes to have our businesses' profits and revenues build our communities' infrastructure, to me, that is economic suicide. It can't continue to happen. Either the federal government has to get off our land and leave those revenues to our government or else take fiduciary responsibility for our affairs. They can't have it both ways.

They steal our money and then they deny us access to those very dollars. If our businesses have to build our communities' infrastructures, then there is absolutely no sense in going into business because nobody in their right mind would build a business and take their profits and give it to something that has nothing to do with what they are doing from a business perspective. It doesn't work that way in the rest of society. Why should it work that way with us, as first nations?

[Gordon Shanks]

To answer your question about where first nations want to go with this, my experience tells me that they want to go back to the discussion of the mid-1980s when there was a lot of talk about self-government under the Canadian Constitution. I think what first nations are really looking for is a recognition that they constitute a level of government within the constitutional sense, and they want to be treated as equals in a legal sense. You can't really talk about first nations monolithically, because there are so many different viewpoints, but the ones involved in economic development and in land, by and large, would like to create a different land tenure. They would like to get out from being Her Majesty in Right of Canada and create a land tenure of first nations that is not subject to the crown.

That's a complicated thing to do, but that is essentially, at the end of the day, where first nations want to go.

[John Gailus]

I'd agree with the comments of Chief Thunder and Mr. Shanks on this. I think there isn't a silver bullet; there isn't a one-size-fits-all solution out there.

When you're looking at first nations, you see there are some common aspirations. They want autonomy. However, there are limitations from community to community, based on geography, capacity, and education, on whether or not they are prepared to take on the full self-government piece. The first nations I deal with vary greatly across the board in terms of their capacity to manage their communities. That's not their fault, but I don't think there is a one-size-fits-all answer.

In British Columbia, though, where I do most of my work, we see first nations taking up the treaty process, for instance. At least half of the first nations there want self-government.

In the economic development context, you've seen a number of first nations clamouring to get into a land code under the First Nations Land Management Act. There is a long queue of first nations that want to get into the FNLMA, but I know that funding is an issue there.

There is devolution as well. I'm not sure whether the government is doing section 53 and section 60 delegations anymore. I think they are pushing everybody to the land code.

The common theme is that first nations want to be autonomous when it comes to making decisions about their land.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Gailus and Mr. Bevington.

We'll now turn to Mr. Boughen for seven minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Chair.

I want to extend thanks to the panel for staying with us throughout most of the afternoon. We appreciate your comments and your positioning. If we don't hear from people in our constituencies, we don't know what they are saying, and so we appreciate your willingness to share your thoughts with us.

As I listened to the speakers this afternoon, it seemed that a common theme was around time and timeframe. I wonder whether each panel member might share with the committee your thoughts on time. If the government said, “Here it is; you dictate the times and how you want to set it up”, what would you say?

[Chief John Thunder]

The process that the Buffalo Point First Nation went through was that Councillor Green, one of my councillors, received the education. I've received the education. My executive assistant also received the education. We have more than enough expertise.

Once we had the education, we tried to go into the process and were told no money was available and that we would have to wait for three years. We waited three years, and then when the process started, we were told there was still no money and that we would have to pay for the process ourselves, so we did. I think we're the only first nation in Canada that was required to pay for it ourselves.

We completed the process, which required three community meetings and a consultation with all members. In January two years ago we set the referendum date, but the minister didn't sign our independent agreement, and for whatever reason didn't sign it for a year and a half.

Once that minister's signature was received, we sent out the referendum date and the package, but the schedule and the timeframes were off by one week because of certain delays. The lands management programs delayed their half of it. Then we had to send out another referendum, so we did it three times.

By that point our people were totally frustrated, had no idea what was going on, and were questioning the date. When we finally held our referendum last week, we had some band members come in, take over the office, and put a stop to the referendum.

I ended up with a court injunction and an extension to the court injunction. The RCMP refused to abide by the court injunction, so these people are still occupying my office. This is the third time they've taken over my office. I got a court injunction the last time, 12 years ago. The courts wouldn't deal with it and the RCMP wouldn't enforce it. I've spent tens of thousands of dollars on court action, yet the RCMP has refused to abide by the court injunctions.

The bottom line is that ever since we started our community's development.... We were flooded out of our community. Nobody lived there for over 50 years. When my father started this modern community, he built it from scratch. There was nothing there. We had to build our own roads, our own infrastructure. We had to do everything. The only thing INAC did was try to set us up to fail. I believe to this very day that they're still trying to set us up to fail, because I can't understand why the RCMP doesn't abide by a court injunction that comes down from the Federal Court.

Either way, all I know is that the sooner we get rid of the Indian Act and the sooner we get rid of the Department of Indian Affairs, the sooner we can take back our lives and live a healthy, productive life.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Mr. Boughen, you have about two and a half minutes left.

[Ray Boughen, Conservative, Palliser, SK]

I would like to hear thoughts on this time concept from other panel members, because that seems to be across the whole piece. From what the chief just said, it is definitely an important factor. You're waiting three years to put a business plan together, and in that length of time wars are won and lost and people fly to the moon and all sorts of weird things happen.

[Gordon Shanks]

I can only agree that the frustration first nations have is with the bureaucratic lengths. Anything that can speed that up is going to be helpful.

Manny Jules talked about the speed of business. We're not talking about a very complicated thing here. We're simply saying that if I want to put in a store and I want to lease the land, I want to know if it is available for lease. My banker will give me 60 days, and I want to get this done. Are you on or not?

This is not rocket science. It is completely unnecessary to make the process as convoluted as it is, and it could be shortened a lot more. This legislation doesn't do very much, but it's a step in the right direction.

[John Gailus]

Certainly the current state of affairs is unacceptable in terms of how long it takes from getting a project proposal to having a lease in place. As I think I said in my opening comments, eliminating the double majority requirement and eliminating the Governor in Council requirement could shave six to 12 months off that process.

You've still got the Indian referendum regulations, which take something like 49 days, I think, in terms of the notice that's required, so that's still going to be an issue. Then there's a host of policy requirements in order to even get to your designation vote. There are appraisals, surveys, and environmental assessments, although I'm not sure that's still a requirement under CEAA 2012; I haven't looked at it. There are community meetings and then negotiations with the developers, and lease terms imposed by the Department of Aboriginal Affairs and the Department of Justice that third parties may not like. There are a lot of negotiations that go on with that as well.

These proposed amendments are certainly a step in the right direction, and there are other alternatives, as I said, land code being one example. I think that's what Chief Thunder was talking about: trying to get the land code process in place. That's not a fast process either, so we need to work on that.

[The Chair, Conservative, Chris Warkentin]

Thank you very much. I apologize, but your time is now up, Mr. Boughen.

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

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

Thanks very much.

Thanks for coming, because, as you know, we have some serious concerns about the process around all of this.

Mr. Shanks, have you ever seen changes to the Indian Act tucked into a budget bill of this size?

[Gordon Shanks]

No.

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

Do you think it's a good idea?

[Gordon Shanks]

Well, in my experience, if you don't consult you end up shooting yourself in the foot. One of the wise old chiefs used to say to me, “Go slow to go fast”, because if you don't, you'll get nowhere. You need to ensure that enough people have their say and, as one of the chiefs said this afternoon, you need to explore the options. Who knows what options were cast aside, or why these were chosen over others? No one knows if it's presented as a fait accompli.

In my experience, consulting and engaging with the affected players makes sense.

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

In terms of understanding the context, I think all of the panellists have expressed the ultimate goal of autonomy and I think the reason for this part of the omnibus bill is to try and fix some irritants, but as we've heard, even from the legal counsel to the AFN, we don't know the context or what other choices could have been considered. I think the concern we've heard from you, Mr. Gailus, is about the unintended consequences of legal liability if you don't have a quorum, and that a simple majority of not enough people could actually cause big trouble.

Is that what you were saying?

[John Gailus]

I think the concern there is twofold.

The act as it currently stands is very clear on what the quorum is for a meeting—it's 50% plus one—whereas the amendments that are being proposed rather leave it open. If I'm meeting with a client or I'm meeting with a developer and I say, “Here's the new process, and this is the way it works”, they will ask, “How many people do we need to get out to the meeting?”

Well, what's the threshold? Is it 30 people? Is it 50? As I said, it vests a lot of discretion in the minister's office to make the decision to approve or to not approve. It's going to lead to litigation, obviously, if the vote has been approved in accordance with the act in terms of just a simple majority, yet the minister says, “You didn't quite meet the threshold. In my view, for this first nation, you need to have 25% of the members show up”, or 40%. That is the concern as I see it.

As I said, part of the gap can be filled with policy. If the policy is upfront and the department says it will be 25%.... For some of the land codes that have been passed by first nations, 25% seems to be the threshold for their meetings, but it's going to be different; it may be a higher threshold, depending upon how many people live on reserve versus off reserve.

What we're faced with now is what you called the “unintended consequence”. The unintended consequence of Corbiere, allowing off-reserve members to vote, is that many of them don't participate, and they're counted as “no” votes under the current system. They're part of the quorum that would be required, and yet they choose not to participate.