Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 10 - Evidence - Morning sitting

OTTAWA, Tuesday, October 17, 2000

The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-14, respecting an agreement with the Norway House Cree Nation for the settlement of matters arising from the flooding of land, and respecting the establishment of certain reserves in the Province of Manitoba, met this day at 9:00 a.m. to give consideration to the bill.

Senator Thelma J. Chalifoux (Chairman) in the Chair.


The Chairman: Honourable senators, before hearing from witnesses we have one important issue to address, the election of the deputy chair.

Senator Andreychuk: I move the name of Senator Cochrane.

The Chairman: Senator Cochrane, do you accept the nomination?

Senator Cochrane: Yes, I do.

The Chairman: Are there any other nominations? Hearing none, congratulations, Senator Cochrane. I know you will do great things as part of the team.

Before we ask our witnesses to proceed, I wish to inform honourable senators that following the department's presentation we will be video conferencing with a group from Winnipeg -- thus, the reason for all the machines.

I wish to welcome the representatives from the Department of Indian Affairs and Northern Development who are here with us, Mr. Austin, Ms Jackson and Mr. Kitchen. Please proceed.

Mr. Bill Austin, Assistant Deputy Minister, Claims and Indian Government, Indian and Northern Affairs Canada: Honourable senators, I am pleased to be here today to address Bill C-14, the proposed Manitoba Claim Settlements Implementation Act. Bill C-14 is administrative in nature but will have a major impact on almost 30 Manitoba First Nations and their claim settlements. Rather than speak to the technicalities, I will try to convey what the proposed act will mean for the people affected.

Bill C-14 is contained in two parts. Part 1 deals with the Norway House Cree Nation and its master implementation agreement of 1997. This agreement provides the Norway House community with a compensation and benefits package to complement the Manitoba Northern Flood Agreement of 1997. With this agreement, the First Nation is being given the means by which to rebuild its community and the lives of its members following the adverse impacts of the hydro development of the 1970s.

Part 1 of Bill C-14 will be a key contributor to the success of this agreement. Its provisions will enable Norway House to best decide how to deal with fee simple lands and settlement monies it receives under the agreement and which are held respectively through a land corporation and a trust. Without the appropriate provisions of Part 1, there is a risk that these fee simple lands and some categories of the agreement monies will be considered to be within the ambit of the Indian Act and thus needing to be administered by Indian Affairs. That is not the intention of the parties to the agreement.

I wish to assure this committee that appropriate safeguards have been put in place by the terms of the agreement to ensure accountability to the First Nation membership for the management of fee simple lands and settlement monies.

Part 1 also maximizes the use of dispute resolution mechanisms in the master implementation agreement with arbitration under provincial legislation for all parties, including Canada. The agreement dispute mechanisms are more effective and locally responsive than those in the northern Flood Agreement.

We are already seeing those settlement funds that have been provided directly to its trust bear fruit for Norway House. A community centre, a recreation centre, social programs and 105 jobs have been created to date. These benefits can only be multiplied when the First Nation has direct control of its fee simple lands settlement proceeds and dispute resolution mechanisms.

Honourable senators may already be familiar with similar provisions to those of Part 1 of Bill C-14. Indeed, Parliament has enacted on three previous occasions similar legislation for three of the five northern Flood Agreement first nations: the Split Lake Cree First Nation Flooded Land Act; the York Factory First Nation Flooded Land Act; and the Nelson House First Nation Flooded Land Act.

I will proceed to Part 2 of the bill, which focuses on all Manitoba claim settlements -- those now in place, as well as those to come, where Canada commits to setting apart land as reserves. In order to provide maximum freedom of choice, particularly in respect of future settlements, First Nations would be entitled to opt in, or not, to the provisions of Part 2.

Part 2 will ensure that the process of approving land for reserve status under Manitoba claim settlements is shortened. That will be done by empowering the concerned First Nations to accommodate existing rights as well as the economic opportunities on those lands even while the process of reserve creation is unfolding. First Nations in Manitoba and third parties will be able to reach binding agreement, before the reserve is created, on how to preserve existing interest in lands selected by the First Nation. This power is simply not possible now under the Indian Act, which states that lands can only be encumbered by the First Nation after they have been set apart as reserve lands.

The provisions of Part 2 will enable a seamless transition of third-party interests to on-reserve interests with legal certainty to both third parties and First Nations. First Nations will also be able to grant interest where none presently exists, allowing them to seize emerging economic opportunities while the reserve creation process unfolds.

Part 2 will empower my minister to exercise the usual Governor in Council function of conferring reserve status in respect of reserve creations under Manitoba claim settlements. Such reserve expansion commitments presently amount to over 1.3 million acres under various Manitoba claim settlements -- 1.1 million acres under the Manitoba Treaty Land Entitlement Framework Agreement alone. These commitments will not be fulfilled in one step. Rather, First Nations will be engaged in multiple land selections, each of which will be the subject of its own reserve creation order when all conditions <#0107> environmental, third-party interests, et cetera -- are met. Without this ministerial reserve creation power, the order-in-council process currently used will be flooded with administrative requests for reserve status orders.

In closing, I repeat that this legislation will assist not one but many Manitoba First Nations, both those with existing settlements and those who may yet conclude such settlements. It will enable them to make decisions respecting their settlement proceeds and settlement lands, to further their economic futures. Manitoba First Nations have indicated that over 80 per cent of their treaty lands will be for economic development. In many cases, negotiations with developers are underway. Over 400,000 acres of land selections have already been made.

Manitoba first nations are waiting for enactment of this legislation to conclude economic ventures that will be key to making their new reserve lands truly valuable to the community. They have told us, in no uncertain terms, that they are eager to have this legislation. Without it, valuable opportunities may be lost.

Honourable senators, thank you for the opportunity to address the committee on this important proposed legislation. My colleagues and I will be pleased to answer any questions honourable senators might have.

The Chairman: I wish to note that page 7 is missing from the written brief.

Mr. Austin: We will correct that and ensure that the committee receives a copy of the complete address.

Senator Watt: Please excuse my lack of clear understanding of this bill, as I have not had the opportunity to review it in depth. Nevertheless, I see similarities to past agreements, in terms of the way it has been put together. A number of parties are involved in the agreement -- not only the government, but also the actual developers such as the Manitoba Hydro-Electric Board.

First, I would like to have a clear sense of how many people are directly concerned in this issue. When you mention "opting in," how many people are involved?

Mr. Austin: Regarding Norway House, which Part 1 of the bill concerns and which is similar to the other three that have already been passed, there are over 5,000 members, of which approximately 3,700 are on reserve. However, particularly with the second part of the bill, this would be available to all First Nation members in Manitoba.

I will now turn to my colleague, Mr. Gord Kitchen, to give you an idea of the number of First Nation members on reserve.

Mr. Gord Kitchen, Director, Land Entitlement and Claims Implementation, Indian and Northern Affairs Canada: I do not have a total, but I can tell you that there are 27 TLE First Nations, and their populations vary from 200 to 2,500. I will get the exact number for you.

Mr. Austin: There are potentially 62 First Nations in Manitoba. We could certainly get you numbers, those who live on reserve and those who live off reserve.

Senator Watt: This proposed legislation specifically focuses on the Norway House Cree Nation.

Mr. Austin: Yes, the Part 1 does.

Senator Watt: However, the bill is not limited to those people only because you have provided, under Part 2, for others to opt in as well.

Mr. Austin: Yes, that is correct.

Senator Watt: Why is that? Why are you setting the stage for future potential negotiations?

Mr. Austin: There are two parts to this bill, which is an omnibus bill. It deals particularly, as you pointed out, with Norway House, but it also facilitates economic development in the treatment of land, in Part 2, for all First Nations. Therefore, this is an effective way, in our opinion, of bringing forward an effective piece of legislation.

Senator Watt: I am curious about the design of the proposed legislation because it is the first of its kind that I have witnessed since I have been in the Senate. It is more like instructions to native people to come on board, and it gives one the impression, in Part 2, that there was not true representation from aboriginal Nations. Where were they when the stage was being set for the next round of negotiations, for the newcomers? I find this very unusual.

Why does the government seem to be moving in the direction of generosity by saying "Come on board"? Are the First Nations ready to come on board? I have no clear notion as to the rationale behind this. I understand that economic development is one aspect. Is it that the department feels that it must move in a massive way to settle outstanding land claims now? Is it because of the policies existing on that point?

Mr. Kitchen: The impetus behind Part 2 of the legislation arose out of the Treaty Land Entitlement Framework Agreement in Manitoba, which was negotiated on behalf of 19 First Nations at the time, en mass if you will. During the negotiations, the issue arose of the difficulty of dealing with third-party interests and of the process itself. As a result, the parties agreed that Canada would recommend legislation to address those issues. That is the impetus behind the bill.

We have 19 TLE First Nations under the agreement. We also have seven under previous agreements. We cannot exclude them, or any specific claims that may come along. It is tied specifically to a claim settlement agreement, be it one in place now or perhaps one in the future.

It was felt that it is the decision of the First Nation whether to proceed under the current regulations and policies. Or, if they prefer this route because it is advantageous to them, they can opt in. Rather than government foisting something upon them, the option is with the First Nations.

Mr. Austin: The common theme is meeting the government's outstanding obligations and commitments to a number of Manitoba First Nations with regard to the northern Flood Agreement, which is more in Part 1, as well as various treaty land entitlement agreements or other specific claims that may come forward later. It is meeting those obligations in a holistic way.

Senator Watt: I am not completely satisfied with all the answers I am getting. I also see this piece of legislation as a first step -- a similar kind of legislation could easily apply to the other provinces. Would the department view this as a precedent being set in one province that could then be applied to other provinces?

Mr. Kitchen: The reasoning behind the bill relates primarily to dealing with the third-party interests, which is, of course, the national issue. It is structured the way it is to allow that to continue. Whether that would go on a national scale or not, I could not comment.

Senator Christensen: Certainly some of the witnesses we will be hearing will be persons with third-party interests. What third-party interests are affected in those areas by Bill C-14? What was the consultation process, and what has been their input on the development of this legislation?

Mr. Austin: I believe that the potential third-party interests are quite varied, whether it is easement for hydro, whether it is land for economic development, other easements, et cetera, or setting lands aside. It is quite broad. There have been conversations and discussions between First Nations and third parties.

Mr. Kitchen: The existing third-party interests depend on where the land is and the particulars of the piece of property. We have set aside land as reserve in northern Manitoba, and some third-party interests were addressed. Those were of the nature of hydro development or winter roads to allow people to get in and out. Province-wide, they can be just about anything -- for example, access to a particular spot across the land. They are wide open, and they must be addressed under the process.

Senator Christensen: Within these packages, would there be existing lands that were held fee simple?

Mr. Kitchen: Under the framework agreement there are six bands and three others that can acquire land as opposed to selecting provincial Crown land simply because there was not enough Crown land in their area. They would be purchasing land on a willing buyer-willing seller basis. That land would be fee simple land that would ultimately be converted to reserve.

Mr. Austin: The emphasis is on the willing seller-willing buyer basis.

Senator Cochrane: Would these two parts not have been better addressed under two separate pieces of legislation?

Mr. Austin: As I have tried to explain, overall the government is trying to meet its outstanding obligations. There are a number of those. There are obligations under the Northern Flood Agreement, as well as the TLE obligations. Norway House, for example, will benefit from both parts of the legislation. We have been, as you know, attempting to resolve the issues of the Northern Flood Agreement for some time.

We started by trying to do it for all five First Nations as a collectively, but we felt that that would not work. We have been bringing forward individual pieces. We have done three, and this will be the fourth. There are individual agreements from that point of view as well.

Once we have an implementation agreement, we would bring it forward at the first opportunity rather than asking people to wait. In combining these in Parts 1 and 2, it is trying to facilitate what First Nations want and make sure that the economic opportunities to which they wish to avail themselves are available.

Senator Cochrane: I think that it could be done just as well separately. I think that these groups would still have a positive effect with each one separately.

There were five First Nations affected by the northern Manitoba flooding. This is the fourth, as you pointed out, to be dealt with in legislation. The remaining First Nation, Cross Lake, declines, does it not, to enter into an implementation agreement?

Mr. Austin: Yes, I believe that is correct. We are still working with Cross Lake to bring some resolution so that we can implement the Northern Flood Agreement with that First Nation. They could receive the benefits that are available under that.

Senator Cochrane: Could you tell me why they are declining to do this? Why do they feel that the original agreement offers them better opportunities for an acceptable settlement?

Mr. Austin: Senator, with great respect, I am not sure I can address their concerns adequately. I think the question is more fairly put to them. We certainly have attempted to work with them and continue to do so. However, we have not been able to reach an agreement at this point.

Senator Cochrane: You must know of their reservations from your discussions.

Senator Watt: Perhaps we should ask them.

Mr. Austin: I think that is the point, senator.

Senator Watt: We should call them as witnesses. We have a week.

Senator Cochrane: You would prefer not to give us further clarification as to why they refuse?

Ms Sandy Jackson, Acting Manager, Claims Unit, Intergovernmental Affairs/Operations Policy, Manitoba Region, Indian and Northern Affairs Canada: It is unfair to ask us to explain the rationale of Cross Lake. I would like to say, however, that we are respecting a decision that they have taken. We continue to work with them.

They have asked us to implement the terms of the original Northern Flood Agreement because that is the route they want to go. In order to respect that decision, we have been trying to work out implementation of the original terms of the Northern Flood Agreement with Cross Lake. It is an ongoing process. It may be that next year or the year after they may decide that the implementation agreement is an alternative they wish to pursue. The implementation agreement is an option that is still available to them.

The options are there. Cross Lake has made a decision at this time to go with the original NFA. We will respect that decision and we will work with them to implement the NFA based on the original terms of that agreement.

Senator Cochrane: Thank you. I did not mean for you to divulge anything outside of the discussions that you have had.

Part 2 of the bill will streamline the process for setting aside reserve lands in the future. It will give authority to the minister rather than an order in council, will it not?

Mr. Austin: That is correct.

Senator Cochrane: I understand that this will speed up the process. What are the implications for further parliamentary scrutiny of those decisions and actions?

Mr. Kitchen: The agreements are approved by cabinet at some point. For example, the Treaty Land Entitlement Framework Agreement has cabinet approval. It has gone through that process. Canada has already agreed to add these new reserve lands. The bill says that once it leaves the department, it will be finished. The minister will have that delegated authority as opposed to the order-in-council process, which has been used. I believe that the term is "Royal Prerogative." That has been done because the Indian Act is silent on who has the authority to create a reserve. It has always been done this way. The only intent of this is to streamline a process to which we have agreed. The specifics of each addition are addressed in detail under the provisions with all our regulations and policies.

Senator Sibbeston: My only experience in dealing with a First Nations agreement has been with the Nisga'a. When that matter was before us, the Nisga'a leaders were very much involved in advocating their case.

I am curious about where the First Nations stand today on this matter. I do not know whether having department officials here before us does justice to the issue. Where are the Norway House Cree Nation and other First Nations who are being affected by this?

The Chairman: We have letters of support from them. Also, we will be hearing from those people by video conference.

Senator Sibbeston: Why are they not here when this is so important to their lives? Why are the Norway House First Nation and other First Nations that are being affected by this legislation not here today, rather than department officials advocating for this legislation? I am curious. I want to know.

Senator Watt: Are you saying that they are not hungry enough?

Senator Sibbeston: I do not know. My only experience has been with the Nisga'a bill. When we dealt with that issue, the Nisga'a leaders were here advocating for their case. I find this process completely different. I am not satisfied with having department officials because I do not think that they know very much about this. I do not think that they have adequately answered the questions that have been asked. I do not believe that they are the best spokespeople to deal with this matter.

The Chairman: We approached the First Nations and, rather than coming to Ottawa, they chose to give evidence by video conference. They have been dealing for five and a half years with the department. They appeared before the House of Commons committee. They believe that they have said everything they can say. We gave them the option of appearing in person but they preferred to appear by video conference.

We requested the department to appear today to give their view, as we usually do in any case. The department people who are here have been totally involved with this situation throughout the years.

Perhaps, Ms Jackson, you would like to comment on your involvement.

Ms Jackson: I have been working with the five NFA First Nations since 1990. We have had many discussions on this.

This bill is much different from the Nisga'a bill. Nisga'a deals with self-government. This bill deals with administrative changes to facilitate, in the case of Part 1, implementation of the Norway House agreement. This bill is really administrative in nature, which is why the departmental representatives are here. The changes that we are looking for impact on policies that we have in place at the department.

Senator Johnson: In 1997, Norway House held a referendum on the issue. The referendum passed by a majority of those who voted. The issue has been around for a long time. We heard from the people when we dealt with the issue in Bill C-56. It has been thoroughly discussed with the Norway House people. I spoke to them over the weekend as well. We are just trying to get it implemented now.

Senator Sibbeston: Therefore, the bill before us just deals with lands that have been flooded and agreement by the Norway House Cree Nation with respect to that flooding. The bill does not involve a comprehensive land claim or self-government agreement; correct?

Ms Jackson: Part 1 of the bill deals with facilitating the implementation of only certain parts of the agreement. It does not deal with the comprehensive agreement itself. The agreement has already been implemented. There are a couple of administrative matters that we need to deal with through this legislation. Part 2 is a separate part of the bill.

Senator Andreychuk: The flood bills always come before us in the last week of a Parliament. In my seven years here, I have found that often aboriginal bills are shoved through in the last week. Something is wrong with our priorities.

I do agree that the first part of the bill deals with a negotiated agreement that should have been implemented long ago. I see no problem with it. However, the second part of the bill, which is referred to as housekeeping matters, really contains a lot of substantive things. In the future, if we find substantive issues couched in a flood bill, we should ask for a severance of the bill.

The framework for all other reserves, et cetera, is embedded in this legislation. By so doing, am I to believe that all of the groups who will be affected or could be affected by the second part of the proposed act have in fact been consulted and are in agreement with this process? If they are not in agreement, do they still have the choice to go through a different framework structure in their negotiations, or will they be bound by this one?

Mr. Kitchen: Part 2 of the proposed legislation is based on a claim, so it arises only when a claim is settled.

Senator Andreychuk: My point is this: If a First Nation has a claim, there is a process that is identified in the proposed legislation; however, if the reserve and the band decide to take their claim in a different direction, are they now bound to use this structure only, or are their options still open to them?

Mr. Kitchen: They are not bound. There is an existing process.

Senator Andreychuk: A total framework agreement?

Mr. Kitchen: No, it is the existing process under the Indian Act. The bill that is before us rearranges part of the process that exists now. However, a First Nation has the option to use the new legislation -- in other words, they opt in. Otherwise, they are in the existing system. If they want to use the new legislation, they opt to; there is no requirement for them to use it at all.

Senator Andreychuk: It has been put there as an enabling piece; would that be a fair characterization?

Mr. Kitchen: Yes, there is the existing Indian Act and its regulations and the additions policies, all of those things.

Senator Andreychuk: I am not sure which of the witnesses indicated that the attempt here was to make sure the monies and accountability structures are not pursuant to the Indian Act but to this proposed act, and that you followed this process to circumvent -- if that is the correct word -- the Indian Act.

Mr. Austin: Accountability is a very important aspect. Trusts have been set up under the implementation agreements. Those trusts establish the accountability framework or regime for monies or lands. Those trusts are a very important mechanism, so that the First Nation -- in this case Norway House and its members -- has in place an accountability regime for all members. There are a number of trustees, for example, that are established, some of which are elected and some of which are nominated. There is a bank involved as a trustee. There is a strong accountability framework for the management, for example, of the monies that will flow into that trust.

Senator Andreychuk: As I understood, the purpose of this proposed legislation is to give the accountability, the involvement and more direct responsibility to the aboriginal people, and thereby you are attempting, if I can use those words, to circumvent or put in another structure other than the supervisory Indian Act process?

Ms Jackson: We are seeking an exemption from the Indian Act for the settlement monies. There is a portion of the Norway House settlement monies that we deem to be Indian monies, and under the Indian Act those monies would be paid to Canada and then we would administer on behalf of First Nations.

In our negotiations, the First Nation expressed the view that they are capable of administering, handling and making decisions about settlement proceeds on their own, without the department acting as the guardian. It is a move toward self-government and is very much something that the First Nation expressed as something that they wanted to do. We are seeking an exemption from the Indian Act provisions dealing with Indian monies and we have insured that these settlement proceeds, the accountabilities, as Mr. Austin was saying, are to the people of Norway House. That is what we are seeking.

Senator Andreychuk: Could you elaborate on Part 2, as your comments were directed to Part 1.

Ms Jackson: My comments are on Part 1.

Senator Andreychuk: How would Part 2 work on an exemption and how does it take precedence over the Indian Act?

Mr. Kitchen: Part 2 sets up certain payments made directly to the First Nation, and those payments are administered by the First Nation in accordance with a trust. Canada is not a party to the trust. The trust is composed of nominated and elected band members, as trustees, and an independent trustee, which is quite often a financial institution chosen by the band, but the money flows directly to the First Nations. Some of the First Nations also get money to purchase land, as I indicated earlier. The funds are in another trust account but are administered by the trustees. They are accountable on an annual basis with an independent audit to the members of the First Nations, as would any other money that flowed.

Senator Andreychuk: I am trying to be certain about the legalities of it. The Indian Act has supervisory functions for the federal government. You are saying, and I agree, that the way to go is to get away from that kind of structure, having the aboriginals more involved. What in Part 2 assures me that you can do that and that there can be no question later that the Indian Act prevails as opposed to this structure? What cancels out the responsibilities of the Indian Act?

Mr. Kitchen: Under Part 2, there is no exemption asked for under the Indian Act for the monies. They are flowing in the normal way that contribution funding flows to First Nations.

Ms Jackson: There are two different types of agreements being dealt with here, and the exemption from the provisions of the Indian monies part of the Indian Act applies only to Part 1 and applies only to the Norway House settlement agreement.

Senator Andreychuk: I understand that, but I do not understand Part 2 because we do not have enough in the agreement to understand how it will operate. These are land claim settlements we are talking about. You are saying they will flow in the normal way. I am confused. I want to be sure that what you are doing resonates and has the legal capability of withstanding any attack on it.

Mr. Austin: Under the government specific claims policy, which encompasses treaty land entitlement and other specific claims, monies go to First Nations in an accountable controlled trust generally. Certainly that is what we are talking about here. It has been the practice of the Government of Canada in settling these outstanding obligations to use the trust mechanism. We have not been using, to the best of my knowledge, the Indian Act and the Indian monies portions of the Indian Act because in settling those obligations these are not seen as the same type of activity as was foreseen when the Indian Act was devised.

Senator Andreychuk: You are seeing a claim that the federal government by policy is settling and providing monies for, but it does not reduce the obligations and responsibilities under the Indian Act. Is that what I am hearing?

Mr. Austin: Yes.

Senator Andreychuk: I want to know whether they have received a certificate under the Charter of Rights and Freedoms. Does this proposed act comply with the standard policy? The minister should be here to answer whether in fact this proposed legislation has received Charter scrutiny and whether a certificate has been issued.

Mr. Austin: May I get back to the committee on that question, please?

Senator Rompkey: I want to ask a general question for my own purposes, and perhaps other people know the answer.

This arrangement was deemed to be a treaty under section 35, I think.

Senator Watt: Section 35(4).

Senator Rompkey: Could you elaborate on that? During consideration of the bill in the House of Commons, there was testimony by the Norway House Cree of their understanding that the agreement is a treaty within the meaning of section 35. The then minister of Indian Affairs confirmed this, as did Matthew Coon Come, who was then grand chief of the Crees of the Quebec.

I would like to know the government's position. The Northern Flood Agreement has the status of a treaty under section 35; is that correct?

Ms Jackson: There have been many discussions about the status of the Northern Flood Agreement. When we got into negotiations with Norway House and with the other three First Nations with whom we have implementation agreements, we came to an understanding with the First Nations that we were not going to argue about the status of whether or not it was a treaty. The key issue was implementation of obligations that were owed by Canada, Manitoba Hydro-Electric Board and Manitoba. There had been dispute about whether it was a treaty. We decided that we should set that issue aside and deal with the implementation of this agreement.

Senator Rompkey: I am trying to get at fundamental rights. Were there previous treaties?

Ms Jackson: There are previous treaties. These First Nations are covered by Treaty 5.

Senator Rompkey: All of these First Nation have previous treaties?

Ms Jackson: Yes, they do. The compensation agreement was signed in 1977. At the time that it was being negotiated, through reading history, there was no indication --

Senator Rompkey: I am trying to get at the history. Could you give me a thumbnail sketch of the when the treaties were signed.

Ms Jackson: I could not tell you when the treaties were signed, but it is Treaty 5. The Northern Flood Agreement was signed in November 1977.

Senator Rompkey: That agreement flows from the previous treaties. The obligation in principle was there in the previous treaties with the Government of Canada.

Ms Jackson: The Northern Flood Agreement deals with hydro development in northern Manitoba and compensation for hydro development in northern Manitoba. Treaty 5 deals with an agreement between Canada and the First Nations on a number of treaty issues. The Northern Flood Agreement does not necessarily stem from Treaty 5. However, there is recognition within the Northern Flood Agreement that these First Nations are covered by Treaty 5. There is a link made back to Treaty 5.

Senator Rompkey: Even though this is not a treaty under section 35, the others are treaties under section 35.

Ms Jackson: There is recognition. Within the implementation agreement there is a clause that says that treaty and aboriginal rights are not affected by this agreement. Therefore, we are not changing or doing anything. We are ensuring that that protection remains.

Senator Johnson: I would like to ask one question. How long has the delay been? Over what period of time have we been trying to do self-government in Manitoba and with Norway House and the others. I know from talking to Chief Ron Evans that this has had an impact.

Mr. Austin: The effect is more indirect because it is slowing the economic development in the land, et cetera. In that regard it does put in place various ways where First Nations can become more self-sufficient, can become more economically viable, and can move forward with their governance methodologies and with frameworks, et cetera.

Senator Johnson: There is a feeling in Manitoba that this has been an impediment to work in this area. I would like the committee to know that.


Senator Gill: The second part of the agreement states that the Minister is empowered to grant reserve status to Crown lands. That is not the customary procedure. This flows from a specific agreement in place in Manitoba. Elsewhere in Canada, permission must be obtained from the province and from the Governor in Council.

Apparently, this status will be granted by the Minister of Indian Affairs. Is it the second part of the agreement that applies in Manitoba? I assume you included an agreement on Norway House in the second part so that Norway House's existing reserve or community would be expanded.

Mr. Austin: That is correct.


Mr. Austin: Mr. Kitchen could explain this certainty gap, which is important. It has to do with certain powers vested now under the Indian Act.

Mr. Kitchen: In many cases the First Nation has selected a piece of land for economic development for which they will require a partner. Under the current Indian Act, the First Nation must designate that land for leasing or to get into this partnership arrangement. They do that by community vote. They pass a band council resolution, and then they request Canada to put the documents in place. They can only do that once the land is reserve. They get into a situation where they have negotiated a deal with their partner, but they can only agree to put the proposal before the membership down the line once it is reserve.

This legislation would allow them to go through that approval process prior to the land becoming reserve. It would take effect the minute the land is reserve. It gives certainty. Many third parties do not want to agree to something that cannot be guaranteed to occur.


Senator Gill: As I see it, the gist of the agreement is to set out certain expansion options for communities. I sense that Manitoba is headed in this direction, unlike most of the other provinces where for a variety of reasons, people are not interested in aboriginal community expansion.

You have worked out an agreement in Manitoba and this will certainly have an impact on the rest of Canada. As I see it, most aboriginal communities across the country will want to expand. I think communities will want to get involved. Do you agree with me?


Mr. Austin: It is important to emphasize that this bill shows that Canada is attempting to meet obligations. We are trying to put in place a framework that allows for economic development and movement toward self-government or greater economic activity, and to make sure for all Canadians that this will impact Manitoba, and only Manitoba.

We are trying to put that framework in place not only for First Nations people living on reserves but also for Manitobans who may have economic interests or activities they wish to pursue with First Nations partners or others.

The Chairman: I wish to thank the witnesses for appearing today. It has been interesting and enlightening. If we need to call you back later in the day, will you be available?

Mr. Austin: We will make ourselves available.

The Chairman: The committee will recess to prepare for the video conference.

The committee recessed.

The committee resumed.

The Chairman: Honourable senators, I would like to get your comments on the possibility of seeking leave to sit at three o'clock. That will give the technicians enough time to get the video conference set up so that we can hear from the remainder of our witnesses, who will take approximately an hour and a half to make their presentation and answer our questions.

Are all honourable senators in agreement to reconvening our meeting here at three o'clock? Senator Andreychuk, are you in agreement with that?

Senator Andreychuk: Yes.

Senator Watt: I am definitely in agreement with sitting this afternoon. There is one issue that I wish to raise as a result of our questioning of the witnesses this morning. I am wondering whether we should make an administrative decision as to whom we will hear from.

The Chairman: We already have our witnesses. They are listed on the agenda.

Senator Watt: Do we intend to invite people who have not yet been taken into account?

The Chairman: The first two witnesses are members of the Norway House Cree Nation, Mr. Bryan Hart and Mr. Leonard McKay. They are dissenting. They have questions regarding the bill. The other two, Mr. Fred Muskego and Mr. Robert Roddick, from the Norway House Cree Nation Band Council, are in favour of the bill. Therefore, we have both sides and we will hear both sides on the bill.

Senator Watt: We have only this week, then.

Senator Andreychuk: Are you sure? Can we count on that?

The Chairman: If honourable senators agree, we will adjourn until three o'clock and reconvene here in this room.

The committee adjourned.