Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 25 - Evidence, April 14, 1999
OTTAWA, Wednesday, April 14, 1999
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-49, providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management, met this day at 5:40 p.m. to give consideration to the bill.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: This afternoon, representatives of the Department of Indian Affairs and Northern Development will be addressing Bill C-49. Please proceed.
Mr. Bob Watts, Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development: We do have a prepared text which we will provide to the committee. It is in translation at the present time.
Honourable senators, I appreciate the opportunity to appear before you this afternoon. With me is Ms Geneviéve Thériault from our legal services; Mr. Kerry Kipping, director of resource initiatives; and Mr. Leroy Paul, policy adviser in lands and trust services.
At the outset, I should like to take a few minutes to provide you with some background information and an overview on Bill C-49, the First Nation Land Management Act, and then respond to questions concerning the bill.
On February 12, 1996, Canada and the 14 chiefs signed the Framework Agreement on First Nation Land Management. The First Nation Land Management Act will be the formal legislation respecting this initiative. If Bill C-49 is passed by Parliament, the act will ratify the framework agreement.
The framework agreement and act would not fundamentally alter the Crown's fiduciary relationship to the signatory First Nations, although certain of the Crown's fiduciary obligations would diminish as the First Nations exercise their new authority and take on their responsibilities under the act. The framework agreement and legislation would allow the signatory First Nations to opt out of the land management sections of the Indian Act and establish their own land management regime to manage their lands and resources, thereby providing for more control at the local levels.
The framework agreement and this proposed legislation were developed in full partnership with the affected First Nations to promote self-management initiatives that will result in, among other things, improved economic development on reserves that will provide for the formation of sustainable First Nations communities. It will provide First Nations with the ability to react quickly to business decisions affecting land management.
Currently, under the Indian Act, it often takes a number of months to address land management issues and this usually means business opportunities pass First Nations by. This initiative is a form of sectoral self-government, tailored to the needs of a specific group of First Nations. It does not bind other First Nations to this model. It is important to understand that the reserve land tenure system is unique. The land is held by the Crown for the use and benefit of the First Nations members.
The affected provinces and municipalities were consulted during the drafting of Bill C-49. When concerns were brought to our attention, federal officials met with those parties to try to address their concerns. For example, we met on a number of occasions with municipal associations, with lottery corporations, pipeline and railway companies, tenants' associations in Ontario, and utility companies. This initiative supports the government's efforts to increase self-sufficiency in First Nations communities by providing the necessary tools for efficient and effective land management. This regime will eliminate the time-consuming regulations imposed by the Indian Act, and allow the signatory First Nations to develop economic and job growth initiatives that will benefit the entire community.
The federal government's overall goal is to work in partnership with aboriginal people to ensure that they have the skills and expertise to shape their own solutions. Bill C-49 is a major component of this effort and the broader goals that were outlined just over a year ago with the launch of "Gathering Strength -- Canada's Aboriginal Action Plan."
Under "Gathering Strength," our priorities were to renew partnerships with aboriginal people, strengthen governance systems, develop a new fiscal relationship, and support strong communities, peoples and economies. Bill C-49 is a major step towards supporting each of those objectives.
I will highlight some of the more important considerations of Bill C-49 and the framework agreement. The Framework Agreement on First Nation Land Management is not a treaty. It is a sectoral delegation intended to strengthen the capacity of First Nations in the area of land management. For example, providing land management training to signatory First Nations representatives and for providing technical advice by the First Nations Lands Advisory Board. This legislation does not impact on any treaty or aboriginal rights that any of the signatory First Nations may have.
The Charter of Rights and Freedoms applies to the act, and the land codes and First Nation laws passed under the First Nation Land Management Act. This bill, unlike the Indian Act, does not set out the mechanisms of land management; rather, it lays the foundation, including a mutually agreed to set of principles and processes which allows First Nations to develop a modern and accountable land management regime. The hallmarks of this process include transparency, accountability, community membership participation, consultations, and responsible management policies. This is evidenced by the three land codes that have already been ratified by the Chippewa of Georgina Island, the Mississauga of Scugog Island and the Muskoday First Nation.
It is important to note that overwhelming support was received from the communities for this initiative. In the case of Georgina Island, the community voted 150 to 21 in favour; in Scugog Island the community voted 72 to 4 in favour; and in Muskoday the community voted 309 to 40 in favour.
This support is a result of countless consultations with the community membership to ensure that they can make an informed decision during the ratification vote. These First Nations communities should be commended for working together to forge a new direction based on their communal values. It is further evidence that these communities take their responsibilities seriously and desire to do the right thing, not only for themselves but also for others who have daily dealings with their communities. At this time, as I indicated earlier, the initiative is limited to the 14 First Nations who have signed the framework agreement.
Both the framework agreement and the bill provide for a review to be undertaken within four years to address matters such as the functioning of the land management regime, the adequacy and appropriateness of the funding levels, the ongoing role of the First Nations Lands Advisory Board, the inclusion of other First Nations, any changes that may improve the functioning of land management determined by that review, alternative dispute resolution mechanisms, and any other such issues that may be agreed to by the parties. Once this review has been undertaken, and following further provincial consultations, the regime may be opened up to other First Nations by way of an Order in Council.
To address concerns respecting protection of third party rights, Bill C-49 requires that any person having an interest in land that is subject to a proposed land code be informed by the First Nation officials before it is voted on by the community. This will provide an opportunity for interest holders to bring forward their concerns to the First Nations.
In our opinion, Bill C-49 and the process it supports are sound. The process, as previously noted, has been developed in full partnership with the affected First Nations to promote self-management initiatives that will result in, among other things, improved economic conditions on reserves.
The bill respects the goal of providing the signatory First Nation communities with the opportunity to actively develop a regime that will directly affect their everyday lives, which is consistent with the recommendations flowing from the Royal Commission on Aboriginal Peoples.
This bill provides opportunities for the signatory First Nations to expand their experience and expertise in land management. It ensures community decision making by requiring local approval of a land code, which enhances accountability of the chief and council to the membership.
Honourable senators, this bill is also one of the first pieces of federal legislation respecting First Nations -- outside of any land claim or treaty -- which requires full community involvement, including all persons living on and off reserve. Currently, the Indian Act, for example, only provides voting privileges to persons normally resident on the reserve. The bill moves land management under the authority of the First Nation, thereby advancing and modernizing the current situation under the Indian Act. By reducing the day-to-day involvement of the department and the minister in land management and activities in the signatory First Nation communities, the bill places this responsibility back into the hands of the First Nation communities. It also allows the signatory First Nation communities to take advantages of opportunities that would create economic and job initiatives. It provides the necessary tools to ensure that an effective working regime is in place, such as First Nations law-making authority, enforcement powers and dispute resolution mechanisms, and provides for a high level of accountability within First Nations.
Bill C-49 protects third-party interests by continuing existing terms and conditions of leases, licences and permits, and provides a dispute resolution forum.
As well, the bill allows the signatory First Nations to take the lead on filling the legislative gap respecting matrimonial real property. Currently, there is no law respecting this issue. The Indian Act is silent on the matter. This will be the first time this issue is addressed in First Nation communities and, more importantly, by First Nation communities.
This bill fosters the development of environmental assessment and protection regimes, which will be harmonized with federal and provincial regimes, and will be negotiated and approved by the Minister of Indian Affairs and Northern Development, the Minister of the Environment, the First Nations, and the provinces, where they wish to participate. These regimes provide for consultation mechanisms.
The bill also provides for better security for reserve land bases by removing the section 35 expropriation power of the Indian Act and limiting the federal expropriation power. These lands cannot be sold or alienated except by way of land exchange. The integrity of the land in question must be maintained.
The bill fosters good relationships between the signatory First Nations and their neighbouring jurisdictions by providing the authority for them to deal directly with each other without involving the Department of Indian Affairs and Northern Development for every transaction. For example, if neighbouring jurisdictions wish to enter into service agreements, they can negotiate the terms and conditions, but they must get the minister's approval for finalization. As most persons who have experience with this frustration know, this can be a lengthy process.
Bill C-49 is not meant to be a solution to all the issues that are linked to the Indian Act or reserve lands, but it is a major step in solving some of the problems.
In following the debate on this bill, a number of issues have arisen. We are aware of these matters and would like to briefly address them at this time.
Expropriation is a well-established tool of governance and a necessary facet of land management. Its use is not easily invoked. Further, any expropriation is subject to the scrutiny of the courts. First Nations, in implementing the power of expropriation, would have to respect the principles of natural justice, the general principles common to expropriation in Canada, and due process, such as: service of notice; registration of notice in the Indian Land Registry maintained by the Department of Indian Affairs and Northern Development; the right to object; the establishment of an independent forum to hear objections before an approval for expropriation is granted; and procedures for taking possession of the interest and providing compensation in a timely manner.
As honourable senators know, the power of expropriation is held by various governing jurisdictions, such as federal and provincial governments, public and private institutions, such as municipalities, school boards, universities, hospitals and utilities, including power companies, pipeline agencies, highways, railways and environmental agencies.
Expropriation powers can be exercised for community or other First Nation purposes. In this instance, "community purposes" means, for example, water and sewage projects, and "other First Nation purposes" represents, for example, hospitals, schools, fire halls and retirement homes. This is an authority that First Nations will not take lightly and will use only if all other methods to acquire interests do not work.
Compensation must be addressed as set out in the federal Expropriation Act and must take into account the highest and best use for the determination of fair market value and other compensatory matters necessary to be taken into account in determining compensation.
With respect to matrimonial property, currently, in cases of marriage breakdown, the division of marital assets such as cars, moneys, pension plans and real property situated outside the reserve boundaries are dealt with in accordance with provincial matrimonial laws. The Supreme Court of Canada ruled in Derrickson v. Derrickson that provincial matrimonial laws could not apply to the division of interest in reserve lands because those lands are under the exclusive jurisdiction of the federal government.
The federal government agrees that there is a legislative gap in the Indian Act with regard to the issue of matrimonial property. It must be understood that First Nations people are in a unique situation, that lands are held by the Crown for the use and benefit of the members of the community, and that lands are not owned by individual band members.
This unique situation is one of the reasons this legislative gap in the Indian Act is being addressed by a fact-finding process already initiated in the Department of Indian Affairs and Northern Development in consultation with aboriginal representatives. However, it is still incumbent on the 14 First Nations affected by Bill C-49 to address this issue in their own land codes.
The signatory First Nations are taking the lead on filling the legislative gap found in the Indian Act respecting matrimonial real property in respect of their communities. The framework agreement and the legislation provide for a community process to be incorporated in the land code that would require the community, not the council, to develop and approve rules and procedures regarding the use, occupancy and possession of First Nation land and the division of interests in that land upon the breakdown of a marriage. These rules and procedures shall not discriminate on the basis of gender. The Charter of Rights and Freedoms, which is part of the Constitution, applies because the Constitution is the supreme law of Canada.
With respect to consultations, First Nations recognize that this issue is an important aspect of land management and intend to strengthen existing relationships and build new relationships, where needed, with neighbouring jurisdictions. This will also strengthen existing agreements already in place, such as servicing agreements and policing agreements.
First Nations are also prepared to develop bilateral agreements which must be reciprocal with other jurisdictions.
Honourable senators, it is our position that this is a good bill. It is about economic self-sufficiency and accountability for First Nation governments. It is a positive step forward for First Nations. We feel that the First Nations, from whom you will hear later in this process, will benefit from the new powers and authorities in strengthening their communities and in developing stronger government practices. This process is about building strong sustainable communities. We feel this bill will move these First Nations in that direction.
We have heard that the principles of this bill, namely, economic development, governance, accountability, capacity building and land management outside of the Indian Act, are forward-looking, and we seek your support in assisting First Nations in their desire to regain control of their lands and resources.
Honourable senators, that concludes my presentation. We are now prepared to respond to your questions.
Senator St. Germain: The areas of concern, as you adeptly pointed out, Mr. Watts, involve the questions of expropriation and matrimonial property, as well as the land code aspect.
I am from British Columbia, and I know there is great concern on the West Coast as far as expropriation is concerned. Logically, the Musqueam situation has generated controversy, but that has been blown out of proportion in certain areas.
I think that this is a good bill because it will help these 14 bands to assert themselves and, hopefully, it will assist them in their economic fight to become viable in their respective communities.
The object is to find a solution with which everyone can live. I am sure that you follow Hansard. As Chief Justice Lamer said, "We are all here to stay." We must find solutions that do not drive wedges between the communities. Musqueam happens to be part of this deal as well. In British Columbia, the issue relating to the Musqueam must be dealt with foremost. It is in that spirit that I ask these questions of you.
First, I am told that expropriation is dealt with differently in the Sechelt Indian Band Self-Government Act. I also understand that, as Bill C-49 is drafted, it does not necessarily mesh with the requirements of the Canada Expropriation Act. This has been brought to our attention by several people because of the rumours that certain Indian band are just raising rents and taxes for the purpose of expropriation. That is the view of some people.
Why is it treated differently in the Sechelt Indian Band Self-Government Act? Apparently, the that act goes hand in glove with the Canada Expropriation Act but this bill does not. Can you comment on that, please?
Mr. Watts: I will begin to answer your question and then Mr. Kipping will follow up on my reply.
In the process that led to the drafting of this bill, we examined expropriation acts all over the country, including the federal statute. In this case, the negotiation was specific to the 14 First Nations with whom we were dealing. They may not have had the same interests. Also, this occurred at a different time than when the Sechelt Indian Band Self-Government Act was developed.
It is clear that some of the definitions and processes that we used in this bill are consistent with the federal Expropriation Act, for example, the notion of how compensation is determined. Some of the times that are dealt with respecting notice are also consistent with the federal Expropriation Act. From a general point of view, what is dealt with in the bill and in the framework agreement, and what will be dealt with further in terms of transfer agreements with the First Nations, is representative of the discussions today with First Nations and are not the same discussions that occurred with the Sechelt many years ago.
Mr. Kerry Kipping, Director, Resource Initiative Directorate, Lands and Trust Services, Department of Indian Affairs and Northern Development: In terms of the overall process of expropriation, we have examined the Sechelt expropriation provisions and find that they are similar, if not identical, to the provisions that we have under the proposed First Nation Land Management Act, Bill C-49. For example, the Sechelt legislation talks about expropriation being for community purposes. In Bill C-49, the First Nations expropriation powers are for community works or for other First Nations purposes. We feel that these powers are similar and the wording is identical to what is contained in the Sechelt agreement.
The Sechelt First Nation has the ability to make fair and reasonable laws respecting expropriation. In Bill C-49, we feel we have included provisions that are similar to those under Sechelt and are identical to those processes which would be laid out under the federal Expropriation Act.
In terms of how expropriation will be done, the First Nations will provide those rules and procedures, but they will be using the federal Expropriation Act as a guide in doing that. For example, if one were to examine the expropriation provisions found in the Muskoday land code, one would find that they are identical to the provisions and the processes set out in the federal Expropriation Act for the taking of land, for the giving of notice, and for the provision of compensation. We believe that the expropriation provisions in Bill C-49 also mirror those processes and provisions. While the wording may be slightly different, the intent is the same as that contained in the federal Expropriation Act.
Senator St. Germain: Why did not you use the same wording found in the current Canada Expropriation Act as opposed to getting into a controversial area? I am not a lawyer, but I have certainly paid lawyers. The moment you begin to deviate from what is basically accepted as law, you open the door to litigation. This is what I sense the legal community in British Columbia, who are representing the various organizations who will be affected, are concerned about.
If you can answer these questions as we go along, perhaps many of our concerns will be addressed, and your responses may mitigate the entire situation as we get into debate on it.
Mr. Kipping: We used wording that we found reflected the First Nations.
For example, in Bill C-49, we use the phrase: "First Nations purposes." In our minds, the purpose of that First Nation community is reflective of the purpose of the Canadian public. It reflects the wording in the federal Expropriation Act which talks about "public purposes." The First Nation community is the First Nations public. Therefore, we believe those word mean the same.
We have put these processes before our legal advisers who have given us advice that we are consistent with the direction in which we are going. We have similar legal advice on other wording, such as, for example, the clause that states that the First Nations, in expropriating or determining compensation, shall take into account the heads of compensation set out in the Expropriation Act. We have considered federal precedents related to jurisprudence in that area. The Supreme Court has ruled in a couple of cases that the words "shall take into account" reflect the words "must," "shall," or "have to," so we feel we are on solid ground in those areas. We do not feel the wording we have used detracts from the kinds of positions that are in the federal Expropriation Act or in any of the other expropriation acts that we have reviewed across the country.
Senator Andreychuk: I think your comments are correct that words like "taking into account" are fairly consistent with the Expropriation Act, federally and otherwise, but the word "public" is a problem. Expropriation for public purposes was a scary concept in Canada when it first came in, but, over the years, jurisprudence has define what "public purposes" are. I think the dilemma is that there was nothing in the definitions to indicate that "community purposes" and "First Nation purposes" would at least be in similar categories to those that would be classed as "public" and, therefore, it would be a zone of comfort for both sides to say that, in similar instances, they could expropriate. However, when you did not tie it in, either through the definition clause or specifically in that paragraph where you define "community purposes" and "First Nation purposes," it leaves me in the position -- and certainly I am going to admit that I am a lawyer -- where I think I could say that First Nations purposes are public purposes but they may be different. That is going to be the dilemma, and that has caused some fear.
Personally, I have every confidence that the First Nations will follow the definition of "public purpose," but my concern is that there is not a feeling of comfort because it is a new term. You use the term "First Nations purposes" and you say it will be akin to "public purposes," but it does not say that anywhere in the bill to give me the kind of comfort I need to be able to say more than all I have to rely on is the goodwill of the First Nations that they will follow it. There is nothing in the bill that obliges them to do so, and that is the gap with which we are grappling. Having spoken to the First Nations people, I know they certainly intend to do that, but it is not embedded in the bill.
Mr. Kipping: We did look at the federal Expropriation Act, in terms of definitions or trying to find definitions of what was meant by "public purpose." There is no definition in the federal Expropriation Act as to what that means. That is defined by appeals, through expropriations as they actually occur, and through jurisprudence in the courts. The First Nations will be guided by the same jurisprudence and by the same guidelines that are set out in the jurisprudence where it has been defined. There is nothing that we could find that would actually define what "public purpose" meant in any of the expropriation acts.
Senator Andreychuk: That is my point. "Public purpose" was as fuzzy as "First Nations purpose" when it was first introduced, but, over the years, it has been defined by jurisprudence. Surely we could have said that "First Nations purposes" shall include purposes equal to the jurisprudence that has evolved in definition of "public purposes." I know you cannot separate it from that jurisprudence, but I am asking: Why could you not tie it in to the jurisprudence? Given a little imagination, I think we could find a definition of that.
Mr. Kipping: At this point in time, I am not sure how we would do that. In setting out the process for expropriation in Bill C-49, we took that into consideration and concluded that, should a First Nation not follow due process or rules of natural justice, the courts would be able to define that process in the same way that it does now under the federal Expropriation Act, where, if someone contests a purpose for expropriation, they can take it to court and there is an appeal mechanism. There is a process there to address that issue. We wanted to leave the First Nations with the same latitude, the same ability to be able to move forward, develop their powers and their authorities in a manner where, if the processes were challenged, then they would fall back on the existing jurisprudence. We were not trying to narrow their powers but, rather, trying to expand those powers to include all of those that were available under the Canada Expropriation Act or under any provincial expropriation act.
Senator Andreychuk: It is not the phrases, "due process" and "natural justice" that pose the problem. I think those are adequately covered and have to evolve. The important question is: "When can you take my land?" We know that "public purpose" has been defined. If a province or municipality took land to set up, say, an amusement park, they would probably run into certain roadblocks. If they wanted to set up a school or some necessary service, they probably would not run into those same roadblocks because I think those purposes are defined. We do not know what a "First Nations purpose" is. I am more comfortable with the term, "community purpose," but I am not so certain that the courts would define the right to take for First Nations purposes in the same way as the right to take for public purposes, because I think the First Nations have a unique place in the Canadian fabric.
Ms Geneviève Thériault, Counsel, Legal Services, Department of Indian Affairs and Northern Development: I do not know if I can completely answer your question but expropriation is always an extreme power, and it always causes a clash between the right of a private individual and the rights of the public interest. There is no reason to believe that the use of other words than "public purpose" or "public works" would be interpreted otherwise by the courts. Expropriation has always been permitted only for a public purpose. That is the only reason expropriation powers can be used.
Senator St. Germain: Mr. Chairman, this subject is so important -- it is the most contentious part of the bill -- I just want to make certain that Senator Andreychuk is getting a clear and complete answer.
Senator Andreychuk: I want one more try at this. The term "public purpose" is known for the community at large, for the municipalities, the provinces and the federal government, but what might be in the public interest of First Nations is not known. You seem to equate them. I am not certain, in my mind, that they would be, nor should they be. That is the whole point. Perhaps needs in the First Nations would be entirely different from other "public needs," if I can use that term. That is where there is lack of clarity and certainty.
Mr. Kipping: We would be prepared to take that question under advisement and return to the committee with an answer before you complete your deliberations, if that is permissible.
Senator Andreychuk: We want to have a similar expropriation rights for First Nations. On the one hand, we want those who are dealing with First Nations to know exactly what might happen to their rights, but, on the other hand, we do not want to bind First Nations into a pocket of rights that are not going to meet their needs. What we really want is a definition of "First Nations purposes."
Mr. Kipping: If the chair would allow, we will take the question for further consideration.
The Chairman: We will be returning to that point later.
Senator St. Germain: Are those of you who represent the department up to date on the details, issues and problems related to the Musqueam situation? That is not a loaded question.
Mr. Watts: We are familiar with the details and problems we are confronting.
Senator St. Germain: You talked about matrimonial property and the fact that, in regard to reserve lands, provincial matrimonial laws cannot apply. Has this not been under study by the Department of Indian Affairs and Northern Development for years? You spoke of the gap that exists as it relates to the Indian Act. This is another very contentious point. We will hearing witnesses on this point, but it would help if we had your views on the matter before the witnesses appear before us. Native women have clearly stated their case.
What steps have we taken to fill the gap?
Mr. Kipping: You are correct, there is a gap in the Indian Act, and it has been under study. There have been some unsuccessful attempts to amend the Indian Act, including one just last year.
Currently, we are in discussions with both the Congress of Aboriginal Peoples and the Assembly of First Nations regarding the announcement by the minister last June about the appointment of a fact-finder. When appointed, that individual will work with aboriginal communities, the AFN and the CAP to identify the issues more fully, to spell them out more clearly, and to provide the minister, the department and the government with a series of options to close that gap and to regularize or level the playing field so that aboriginal women are treated with the same level of equality as non-aboriginal women off reserve.
Senator St. Germain: Will the passage of Bill C-49 improve their plight, or will they be left in the same position after it comes into effect?
Mr. Kipping: I would not characterize Bill C-49 as "improving their plight." I would characterize it as improving their substantive position with regard to matrimonial real property on the breakdown of a marriage.
As Mr. Watts said earlier, at present there is no law that applies to aboriginal women on the breakdown of a marriage. This bill will provide the community -- through the land codes and through the legislation -- with the ability to create rules and procedures to deal with those matters that are not, currently, addressed elsewhere.
Bill C-49 takes into consideration the cultural, linguistic and traditional backgrounds of the communities. It puts the interpretation of the rules and the procedures in the hands of the whole community, those living on and those living off reserve. The community itself, after consultation, must vote on the establishment of the rules and procedures. That function is not left in the hands of a small group of decision makers. We believe that that has moved the yardstick forward quite substantively.
Senator Andreychuk: Are you saying that passage of Bill C-49 will solve the problems, arising from matrimonial disputes concerning property, that face all women living on First Nations reserves at the moment?
Mr. Kipping: Yes.
Senator Andreychuk: In the land codes as they deal with property rights, will "community" be defined to include all registered members of the First Nations, male or female?
Mr. Kipping: Yes, the persons approving the land code will all be registered voters on or off reserve, male or female.
Senator Andreychuk: It will be the full complement of the community.
Mr. Kipping: Exactly, that is correct.
Senator Andreychuk: Do you know whether any of the First Nations are in the process of disputing, either before the courts or otherwise, section 31 cases?
Mr. Kipping: Of the 14 bands who are signatories to the Framework Agreement on First Nation Land Management, none is before the courts at this time contesting Bill C-31.
Senator Andreychuk: If these land codes set principles that differ from what your department might deem appropriate, what will be the position of the government?
Mr. Kipping: I am not sure I quite understand the question.
Senator Andreychuk: Can all women who come under the Indian Act expect to have property rights in the near future? If those rights vary from reserve to reserve, what would be the position of the department? Are you seeking uniformity?
Mr. Watts: I cannot predict what may arise in our discussions with aboriginal organizations, but my sense is that it will be difficult to arrive at a global solution because land is held differently in different communities. In some communities, people are issued a Certificate of Possession or a "ticket." In some communities, people know that they have a right to live in a place because their mom and dad lived there. In some places, there is a more communal approach and there is no sense of private ownership.
My sense is that it will be difficult to find a one-size-fits-all solution.
As I mentioned, there is a legislative gap in the act. However, there is no bias based on gender. In some communities, most of the land may be held by men; and, in others, most of the land may be held by women. One solution will not fit everywhere.
Senator Andreychuk: I understand that every bill that comes before Parliament must bear a minister's signature certifying that it complies with the Charter of Rights and Freedoms. Was that done in this case?
Ms Thériault: Every bill that is drafted by federal drafters is checked for Charter consistency.
Senator Andreychuk: It must be signed by the minister.
Ms Thériault: The Minister of Justice.
Senator Andreychuk: Was this bill signed off?
Ms Thériault: This proposed legislation was signed off, as is all federal legislation.
Senator Andreychuk: Was this one?
Ms Thériault: Yes, yes. All bills are signed by a minister to certify that they comply with the Charter.
Senator Lawson: I am involved with a native lease in another jurisdiction, in fact, in California. It has a direct comparison to the Musqueam situation, which is the only reason I raise it.
The area surrounding the area we are in, because of the very strong U.S. economy, is exploding. Every week in the paper you read about dramatic sales increases in all the areas. In some developments, 10 to 15 people line up to bid on one lot. They draw lots to see who wins the right to buy. This excludes one area which is on a native lease.
I asked a lawyer in California, a specialist in Indian affairs, "What do you charge?" He said, "I charge $300 for three questions." I said, "That is a pretty high rate, is it not?" He said, "Yes, it is. What is your third question?"
At that point, I asked my bank manager friend, "Why do we have the problem of this exploding real estate market with the exception of leased land?"
He said, "How long do you have left on your lease?" I said, "It runs to 2031, 32 years. That is a long time." He said, "Not as far as bankers are concerned. When we talk about making 30-year mortgages, we want not less than 40 years left on your lease. If you do not have it, we do not make 30-year loans." The reason people cannot sell properties is because the people buying cannot get mortgages. You have to understand that, with each passing year, the value decreases.
This is a direct parallel to the Musqueam situation.
The Federal Court ruled that the value set on leased land was comparable to the value of privately-held land. From what I am told in California from other tribes the decision by the Federal Court that the value of leased land, with each passing year, diminishes, as does your opportunity to sell it, is not a valid decision. That was proven very clearly.
Thus, I went directly to the representative of the tribe and said, "Why do we not negotiate directly on the one condition that I do not want you to tell me that my leased land on native lands has the same value as privately-held lands." He told me that if he were to tell me that, he would not be telling the truth. This is the representative of the tribe who told me the same thing that the bank had told me. It keeps going down.
I then said, "On what basis are we going to negotiate?" He laid out a very simple, clear formula based on the lot size, location and the usual things, but with a diminishing value as time goes on. He said, "You had a reasonable rate. As a matter of fact, it was under market value. It was market value at the time the lease was made but it is undervalued now. If you want to extend your lease to a 65-year lease to 2063, we are prepared to do it, but we would expect you to restart a new lease now. Even though you have 31 years to go at approximately $1,200 per year, we would expect you to pay a more competitive market rate from this day forward. We would also expect a cost-of-living adjustment every five years."
On the face of it, it was very reasonable, at least in my judgment. The new rate went up to $2,600. This was going on at the same time, I am hearing from Senator St. Germain and others, that the Musqueam rate is going up by 7,000 per cent.
With this decision of the Federal Court, what opportunities are there for the Musqueam people, who are being severely penalized, to have a negotiated, fair settlement? Are there any provisions for mediation, arbitration or any system that would guarantee fairness for the homeowners?
Mr. Kipping: This bill is not intended to affect what is currently going on at Musqueam. What happened there happened under the Indian Act.
By putting this type of process in place under Bill C-49, it puts the kind of relationships you are talking about more in the hands of the First Nations, more in the hands of the lessees, if you will, in being able to work together to address those kinds of situations. I do not want to dwell on the Musqueam case too long. It is before the courts. I am not an expert on where we are on that overall process.
How First Nations and their tenants or lessees work together can only be enhanced by having a more direct working relationship, along the lines of what you are talking about, senator, as opposed to having the government as an intermediary and not allowing those kinds of relationships to develop. This bill very much advances that overall process, and allows those kinds of relationships to develop.
As I said, what has happened at Musqueam isunfortunate, but that happened under the Indian Act. It would have happened whether Bill C-49 had been presented or not. Unfortunately, the matter is now before the courts and has become acrimonious. That is not something that this bill can address at this time. However, we are hoping those kinds of relationships will develop.
Senator Lawson: Are you suggesting that what happened with the Musqueam Nation could not happen with the passage of Bill C-49? If you are saying that, I want you to direct me to the clause that guarantees that protection.
Mr. Kipping: I do not think there is a specific clause in the bill that provides that protection. What we have included in the bill is the fact that those existing leases, licences or interests will continue in accordance with the existing terms.
The overall process that this bill is to establish is the ability of the First Nations to develop sustainable communities and to be able to use those communities for the economic benefit of not only themselves but their neighbours. It is to increase the long-term economic sustainability of that community. There is nothing in the bill specifically that states that will happen. Those kinds of relationships have to develop, as any other landlord and tenant relationship would develop. This measure gives them the opportunity to do that.
Senator Lawson: Did your minister not say some weeks ago that she was proposing mediation of some form to try to resolve this issue?
Mr. Watts: I am not really sure where that is at. I know the idea of mediation has been put on the table. I am not too sure whether all parties have agreed on that process or not. It may be something that makes sense. The whole idea of dispute resolution and mediation is captured in Bill C-49.
With the passage of Bill C-49 I think we will see examples of modern lease making. You described a situation where a lease was entered into 30 years ago, with no rent reviews for the last 30 years. Property values skyrocketed in the surrounding area. We see the result in terms of leases being based on fair market value.
My sense is that the more modern leases will probably have renewal periods every five years, or perhaps even sooner, but they will be consistent with how leases are worded elsewhere in the country.
Senator Lawson: I read in one of the many accounts we were getting in the Vancouver newspapers that the Musqueam band was appealing the Federal Court's decision. The homeowners talked about a 7,000 per cent increase. They were appealing on the grounds that it was not high enough. They expected a higher return. Do you know anything about that?
Mr. Kipping: That is completely new to me. I understood that the Musqueam tenants had filed for leave to appeal the decision of the court, but not that the First Nation had appealed any of the decisions.
Senator Lawson: This is something your ministry needs to address because it will influence many fair-minded people, and I count myself in that group.
As an aside, I signed a new lease.
If the ministry does not deal with the Musqueam situation and put it to rest, it will have a negative effect on the way many of us vote on the overall issue, fearing that more power is being given for more of these kinds of deals. This is an important issue which must not be overlooked by your ministry.
Mr. Kipping: The ministry is looking at this very seriously. I also believe that the tenants and the Musqueam Nation have met on a couple of occasions to address the issue between themselves. I am not sure of the standing of that discussion, but I do know attempts are being made to bring the sides together to resolve this. That is the best answer we have at this time.
Senator St. Germain: As Senator Lawson points out, the question relates to the valuation aspect, and that was a court decision. There is nothing in the act to mitigate a situation like this because most of us who have been in business know that leased land, no matter from whom it is leased, is not worth the same as fee simple land.
I was shocked when this decision came down from the courts. I believe you are right, that it is before the courts now on behalf of the residents of Musqueam.
Is the department prepared to bring forward amendments if the testimony presented here proves, without question, that there is reason to make an amendment for clarification, say, on this expropriation issue?
Mr. Watts: We indicated earlier that we are prepared to come back on the question of expropriation and to further explore it with the committee.
Senator St. Germain: I missed that evidence then; I am sorry. I have no further questions.
Senator Chalifoux: Thank you for appearing before this committee. This a very important bill.
Under the Indian Act, each band is responsible for its own membership. As you know, there is the general list, and then the band membership list. Under Bill C-31, some people can never be admitted to the band list.
When you talk about the membership of the communities of these 14 bands, will that membership include the Bill C-31 Indians who have never been admitted to the band list?
I do not know if the 14 First Nations have included the Bill C-31 natives on their band lists, but I know that, in Alberta, many of the bands do not admit Bill C-31 Indians in their band membership.
I have a particular concern about the situation which will prevail in a matrimonial breakdown. You say you are negotiating with the AFN and working with CAP. Have you considered consulting with the native women's organizations to address the issue of marriage breakdown and the division of property?
Mr. Watts: In terms of who is a member, some First Nations, through Bill C-31, took control over their membership code. They decide who is a member, post Bill C-31. Some membership lists are still maintained by the department. In fact, we maintain most band lists in Canada.
It is my understanding that, through this bill, those who will be eligible to vote are members on and off reserve as described by either the membership code or the membership list which is maintained by the Department of Indian Affairs and Northern Development.
Senator Chalifoux: Is it the list held by the Department of Indian Affairs and Northern Development or the list held by the band? There are two different lists. I know because my family is involved in this matter. Your department has a general list, and there is also a band membership list. Which list will you be using?
Mr. Watts: We will be dealing with the list which identifies the members. The department has a general list of status Indians. We have a list of status Indians who are members of a particular band. Those lists are also maintained by the bands for whom we maintain lists. Approximately half of the bands across Canada have their own membership code, and they maintain their own membership lists.
Senator Chalifoux: I know that.
I have received many letters from women who have regained their status after their mothers were denied their status for marrying a non-native. They have been asked to be put on the band list and their requests have been refused because bands have control over their own band lists.
I am asking you whether those men and women are allowed to vote in the bands of their ancestors? Will they be on the lists? What is the position of the 14 bands who are signatories to this framework agreement?
Mr. Kipping: To my understanding, the department lists and the band lists were compared -- at least the three that we used -- and those lists were consolidated so that all members of the First Nations were eligible to participate in the vote.
The question is probably best addressed to the First Nations themselves, but it is my understanding right now that none of the 14 current First Nations before us is in any dispute over who has been added as a member of that First Nation.
Our list and the First Nations list, whether they are controlling their own membership or we have the list, are compatible at this point.
Senator Chalifoux: The second question was whether you are consulting with the native women's organizations which are directly involved with the 14 bands?
Mr. Kipping: Again, the position faced by the department is that, unfortunately, the Native Women's Association of Canada has elected not to participate in the process at this point in time. I am not sure of the circumstances. I can get that information and report back to the committee. At this point in time, the option was there for the Native Women's Association to participate. They have elected not to do so.
Senator Gill: It is my understanding that land is treated differently on various reserves. In some instances Certificates of Possession are issued, and in others the land is treated as common land. In some instances both situations prevail.
Will the present conditions continue? Must they retain the status quo when they are establishing a new regime for land management? Does the department have some requests, as you transfer land to the Indians, as to how they will manage the land? How will that happen?
Mr. Kipping: We will transfer to the First Nations what Canada currently holds in terms of interest in those lands. If we have registered Certificates of Possession, if there are leases. If there are other types of holdings which have been registered, they will be transferred to the First Nation. Bill C-49 provides the First Nations with an ability to tailor a land management regime internal to that community.
Earlier, one honourable senator raised the protection of existing third party interests. Those interests would be transferred intact, and we would expect those interests to be respected on the transfer. However, the community itself would decide how those lands would be held, how they would be used, and how new interests would be created. Again, it is up to the community to decide internally how those lands would be managed.
Senator Gill: I am not saying that this is the case with those bands, but in some bands you have a piece of land here and a piece of land there. Sometimes it is owned by Indians; sometimes it is owned by non-Indians. Some of them will make claims. What will happen to such claims?
Mr. Kipping: The position under Bill C-49 at this point is that it will apply to existing reserve lands only. Should First Nations acquire additional lands by way of claim, those lands may be added to the reserve through the agreement of both Canada and the First Nations itself. They could then either fall under the process of Bill C-49, or the First Nation could decide to hold those lands outside of the reserve and outside of the regime of Bill C-49, whether it be in fee simple, as a special reserve, or whether as a piece of land held for themselves or in common with other First Nations.
The principle under Bill C-49 is that it applies only to existing reserve lands or to those lands which Canada and the First Nations agree will be set aside as reserves.
Senator Gill: A land management regime must be established in four years. What will happen to this regime? Will it be approved by the minister or by Parliament? Who will approve it? You will have the decision made by the entire band, but what is the case in Ottawa?
Mr. Kipping: As a point of clarification, the First Nations who have signed the framework agreement are under no obligation to create a land management regime under this process. That is an optional process. Those 14 First Nations who have signed the framework agreement and who have agreed to participate in this process have done so on the understanding that, at some point in time, they may make the decision that they do not want to continue in the process or that in the future they will come under the process. There is no time frame which says that they must come under the program within four years, or how that will work.
Senator Gill: Someone would have to approve that somewhere, though.
Mr. Kipping: The land codes to be developed by the First Nations will be reviewed by the minister but will be approved by the First Nations communities.
There are two documents which must be dealt with at the same time. One is a land code and the other is an individual agreement. The minister and the First Nation must both agree to the contents of the individual agreement. If the minister feels that there are some uncertainties in the land codes, she can, at her discretion, withhold signature to the individual agreement until such time as the parties have agreed to the process. However, at the end of the day, it is the community decision-making process which will wrap up the whole process itself.
Land management decisions are made within the community itself. How those lands will be held, how they will be managed, who will be accountable, how they will be accountable, what decisions or what bodies will be established to manage those lands and how they are appointed, are decisions that will be made by the community itself and will be ratified by the community.
The Chairman: I was involved in trying to arrive at a workable solution to deal with the question of lands under the James Bay and Northern Quebec Agreement. To this date, we have not found a workable solution.
Did you say that ownership of the land is not necessarily being transferred to the community but that it will remain as reserve land? That is, you are giving them the authority to deal with the land. Is that correct?
Mr. Kipping: That is correct. The title to the land remains with the Crown. The lands will be defined as First Nations land, but they are reserves as they currently exist under the Indian Act. We are giving the First Nations the ability to manage those lands within the community for their own use and benefit. That is to say, the minister steps out of the picture and the First Nations step in to manage those lands on a day-to-day basis.
The Chairman: Does the minister also step out of authority in terms of establishing a land code for public servitude -- that is, for transmissions lines, public access and access corridors?
Mr. Kipping: The existing interests on those lands at the time we transfer the administration and the responsibility to those First Nations are transferred at the same time. If there are existing third party interests, transmission lines or other interests on those lands -- whether they be by way of permit, lease, or other interests -- the First Nations would then become the manager of those interests.
The Chairman: They then have that responsibility?
Mr. Kipping: Yes; absolutely.
Senator Adams: We heard from witnesses for the Musqueam organization in connection with this bill. If Bill C-49 passes, can anyone develop a condominium? For example, can the Sahtu Indians develop a condominium within the City of Vancouver? Those witnesses told us that they cannot do that because they live on a reserve, but their people can buy into that condominium.
How will that work? Is there a provision in Bill C-49 that restricts an Indian band from setting up a condominium on their reserve lands and leasing it to others?
Mr. Kipping: Under Bill C-40, the First Nations will be able to develop the kinds of economic enterprises and business opportunities that are currently restricted by the Indian Act. They will be able to establish those opportunities.
The overall process involves allowing the First Nations to make decisions about how those lands will be managed in areas such as use, occupancy, planning, and so on. They will have the full authority to manage those lands themselves within the rules established by the community on how those lands will be developed.
Senator Adams: What about the policing of the area? Will the band work with the city to police the area?
Mr. Kipping: There is no intention in this bill to do anything other than land management. The regular processes that would apply under the Indian Act, other than land management, will continue.
This bill does not give the First Nations any power to deal with policing other than what they already have under the Indian Act or under their ability to sit down with the municipalities and develop working relationships between the two. This bill does give them any additional powers in those areas. Under the Indian act, they already have the power to enter into agreements with their municipal neighbours. Passage of this bill will not change that. This will only affect the day-to-day administration or management of the land itself and those provisions under the Indian Act that restrict the progress First Nations would like to make in terms of using their lands to the benefit of the community and their future generations.
Senator Adams: Does the development of water and sewer systems or road systems have anything to do with the city? Is that the sole responsibility of the band?
Mr. Kipping: What the First Nations do in terms of water and sewer development now can continue to be done in the future. This bill does not change that. However, this bill moves the minister out of the picture. If they need to get into a municipal servicing agreement with a neighbouring municipality, the minister is removed from the process. They can deal head to head with that municipality, speed up the process and develop better working relationships. The intent behind this bill is to develop new partnerships and relationships between First Nations and their neighbouring municipalities.
Senator Lawson: If land is assigned to a native tribe, having been expropriated from a non-native entity, and the non-native challenges or disputes the amount paid, what access, if any, does the non-native have to arbitration or to any outside appeal, other than back to the tribal council
Mr. Kipping: Under the current circumstances, as set out in Bill C-49, the expropriated party has the same recourse as you or I would have if our property were expropriated, wherever we happen to live. They have the ability to ask for a hearing. They have the ability to ask for a substantiation as to why that expropriation is taking place. They have the ability to appear before an alternate dispute resolution process. As a last resort, they have the ability to go to the courts. This bill does not change that process.
Senator Lawson: Prior to the courts, they have the right to go to arbitration.
Mr. Kipping: Yes.
Senator St. Germain: It is unfortunate that we do not have the time to hear Mr. Abrams.
The Chairman: We will make arrangements to hear from him at another time.
Thank you for your presentation. After we have heard from our other witnesses, we will probably invite you to return with the minister.
Mr. Kipping: Yes.
The Chairman: The committee is adjourned.
The committee adjourned.