[Recorded by Electronic Apparatus]
Tuesday, October 1, 1996
.1106 
[English]
The Chairman: Order. The order of the day is Bill C-39, an act respecting the York Factory First Nation and the settlement of matters arising from an agreement relating to the flooding of land; and Bill C-40, an act respecting the Nelson House First Nation and the settlement of matters arising from an agreement relating to the flooding of land.
We have with us today, from the Department of Indian Affairs and Northern Development, Terry Henderson, director general, claims implementation branch; Sandy Jackson, manager, resource development impacts; and Dr. Kenningham Marchant, legal adviser.
This is an informal meeting. It's an information session. You have the knowledge and experience and you went through the motions, so we are anxious to hear what you have to say.
We have an hour per bill. If we can do it in less time the members will be very happy, but we want to have an opportunity to hear as much information as we can.
Mr. Terry Henderson (Director General, Claims Implementation Branch, Department of Indian Affairs and Northern Development): My colleagues and I have already been introduced, so I will just proceed with some brief opening remarks.
As members of the committee are no doubt already aware, Bill C-39 is required to facilitate the implementation of certain provisions of the York Factory Implementation Agreement, which was signed in January 1996. That implementation agreement comprehensively addresses the 1977 Manitoba Northern Flood Agreement as it applied to the York Factory First Nation, enabling a much improved fulfilment by all four parties of their respective obligations under the original Northern Flood Agreement.
To be clear, Bill C-39 is not intended to give effect to the implementation agreement. Signing of the agreement by all parties in December 1995 and January 1996 has already done that. The implementation agreement with York Factory already has full force and effect under law, as do similar implementation agreements signed with the Split Lake Cree First Nation and Nelson House First Nation. Bills C-39 and Bill C-40, which we will deal with subsequently, once enacted, will simply ensure that certain provisions of the agreement can be fulfilled as contemplated.
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Specifically, moneys paid under the agreement will not be treated as Indian moneys under the Indian Act, but will be administered as a trust on behalf of first nation members, pursuant to certain terms of the agreement and a trust indenture. Certain lands to be provided to York Factory First Nation in this case will be treated as fee simple lands, rather than as reserve lands under the Indian Act. Third, claims under the Northern Flood Agreement will be handled according to provisions of the implementation agreement. Fourth and finally, Canada is able to use or access the Manitoba Arbitration Act when dealing with any dispute among the parties that is submitted to arbitration.
Bill C-39 is designed for York Factory First Nation exclusively, and Bill C-40 is designed for Nelson House First Nation exclusively. They do not affect any other first nation. The bills are drafted virtually identically to the Split Lake Cree First Nation Flooded Land Act, which was proclaimed in December 1994.
Finally, Mr. Chairman, to date three implementation agreements have been signed with three of the northern flood first nations. Similar agreements are under active discussion and negotiation with the remaining two first nations, Norway House and Cross Lake.
That concludes my opening remarks, Mr. Chairman. Thank you.
The Chairman: Do any of your colleagues have anything to add?
Members, this is going to be an easygoing meeting, so we're not going to be too structured. Mr. Duncan.
Mr. Duncan (North Island - Powell River): My question is maybe a little bit outside the terms of reference of Bills C-39 and C-40, but I think it does have an impact on Bills C-39 and C-40.
My original understanding when we passed the Split Lake legislation was that all of the agreements would essentially be the same. In other words, you've just told us the language of Bill C-39 and Bill C-40 is essentially the same as it is for Split Lake.
Do I have that assurance for the two agreements yet to come? I guess you can't predict that with total reliability. Presuming that it's not the case, that it's the worst-case scenario, would that have the impact of requiring changes? For example, if there were different provisions in the ensuing two agreements, would the language of Bill C-39 and Bill C-40 need to be reworked?
Mr. Henderson: I think the government is quite comfortable that Bill C-39, Bill C-40 and the preceding bill, which is an act for the Split Lake, are sufficient to fulfil the obligations as foreseen under the particular agreements. It certainly would be the intent of the government to introduce similar bills - like we have right now before us - for the next two first nations.
Clearly, there is a question...we would be consulting with the first nations on those bills, but ultimately the minister would put forward those bills and would need to be comfortable that they are appropriate and meet the needs. I think these bills and the wording of these bills do satisfy the existing agreements and would satisfy the agreements to follow with Norway House and Cross Lake.
Mr. Duncan: I'll ask the question in a slightly different fashion. Is there any provision in the language of Bill C-39 and Bill C-40 that would allow a reopening of the agreement from the first nations' perspective?
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Mr. Henderson: I'll turn to our legal adviser.
Dr. C. Kenningham Marchant (Legal Adviser, The Marchant Practice): No, not that I can think of at all. The agreements have been carefully drafted to be plain so they cover full implementation of the NFA, with very limited defined exceptions, the main one being for Canada water and sewer.
The legislation is simply implementation facilitation. So not at all, I would think.
Mr. Hubbard (Miramichi): Mr. Chairman, I'm new to the committee. As background, with regard to population, what are the numbers on these particular reserves?
Secondly, are there land claims that these two reserves have against the government of either Manitoba or Canada? How much money are we talking about? We're going back a long way in terms of this agreement. Are moneys involved?
We speak of trusts. Who would be the administrators of the trusts? Do the native people in those communities agree in terms of trusteeship?
Mr. Henderson: I think we can handle the questions in order, Mr. Hubbard.
Sandy Jackson, do you have the figures on the population of those two first nations?
Dr. Marchant: I think Nelson House is about 3,000 members and York Factory is about 1,200.
Ms Sandy Jackson (Manager, Resource Development Impacts, Department of Indian Affairs and Northern Development): The population is the total on and off reserve.
Dr. Marchant: Those are total members on and off reserve. In the case of Nelson House I think about two-thirds are on reserve, maybe 1,800 or 1,900, and in the case of York Factory it's about 700 on reserve. Those are approximate numbers.
Mr. Hubbard: Are there land claims outstanding?
Ms Jackson: With Nelson House, they are part of the Manitoba treaty land entitlement group, so they would have outstanding treaty land entitlement through that process.
Mr. Hubbard: Moving then to the moneys involved and the concept of trusteeship?
Dr. Marchant: Both of the York and Nelson agreements, and indeed the Split Lake Cree agreement and the Norway House agreement which is under negotiation, have similar trust arrangements. There is a corporate trustee to hold the assets. The assets are jointly administered with first nation trustees appointed or elected by the first nation or its council. The administration of the trust is entirely within the first nation, roughly in the following way. Before moneys can be spent from the trust, there has to be a community approval process. This involves meeting detailed disclosure standards to the community as to how the money is going to be set out, community meetings to discuss that, final decisions by chief and council, or in some cases they may want to have a community vote.
When that has been done, and provided that the corporate trustee is satisfied that the correct procedures have been done, that the reporting requirements are in place, that the audited financial statements that are required have in fact been submitted, the moneys then flow and chief and council are accountable as trustees themselves for seeing that this money is spent only as it was disclosed and only as it was approved.
Mr. Hubbard: With the one-third who are off reserve, there is a major problem with this in terms of the way in which various first nations apply their resources. Does this mean that this act would eliminate any benefits from the trusteeship to the one-third of the population who live off reserve?
Dr. Marchant: No, sir, there is nothing in this legislation or in the agreement that precludes off-reserve members from benefiting.
Mr. Hubbard: So only the Indian Act could apply in terms of how the chief and council handle that resource.
Dr. Marchant: The Northern Flood Agreement is expressly for on-reserve impacts. It says that in almost every section of the Northern Flood Agreement. So this implementation agreement will principally, as a practical matter, be for the benefit of those who are on reserve. But anybody who is off reserve is a beneficiary of the trust, and no distinction is drawn between an on-reserve and off-reserve member in terms of classes of beneficiaries. An off-reserve member can bring a claim for adverse effects on exactly the same basis as a non-reserve member.
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The practical matter is that the community approval process is going to be anchored on the reserve and will therefore, I predict as a practical matter, emphasize what goes on on the reserve. But there's no restriction, requirement or exclusion in relation to off-reserve members.
Mr. Hubbard: Can you perceive any problem with the one-third of those populations who are living off reserve in terms of how they perceive or look at the Government of Canada and in terms of setting up this act and the trust? Will there be a problem, as there is in other areas?
Dr. Marchant: In terms of this act, you have several different provisions, but I think only the ones relating to claims would be ones relating to the question of members. The legislation before you says that you can bring a claim under both the Northern Flood Agreement and the implementation agreement to bring it under the implementation agreement.
The implementation agreement does not discriminate against off-reserve members in terms of bringing claims. So in terms of this legislation, I think it doesn't disadvantage them at all. I would go on to say that in drafting the claims arrangements under the implementation agreement, there was great care to be sure that the procedural requirements and so on were at least as advantageous to claimants, whether on or off reserve, as the NFA itself.
Mr. Hubbard: Mr. Chairman, I have one more question. In the concept of property here, you talk about fee simple. In terms of disposition of native or aboriginal lands, or first nations lands, there are provisions that we have to.... Does this change that in any way in terms of the fee simple application of this act?
Dr. Marchant: Section 36 of the Indian Act says that land held for the use and benefit of or in trust for Indians other than by Her Majesty can be deemed to be a special reserve.
So you could have a parcel of land that was technically held in fee simple, but if it were held in trust by somebody other than the federal Crown, somebody could say that's reserve land.
The province is prepared to make certain parcels of land available for NFA settlements on a non-reserve basis. So this is really a requirement.... These are parcels that the province isn't prepared to make available to transfer into federal jurisdiction, or in some cases the first nations have picked this because they prefer that it be fee simple and because they can do commercial development and things of this kind.
It's all by agreement. The purpose of the clause in the legislation before you is to make it clear that the lands that people intend to be fee simple are not somehow through this Indian Act to be turned into reserves, which would be contrary to everyone's intention.
Mr. Henderson: To be clearer, if I might, most of the lands we are speaking about under the agreement are to become reserve lands. It's just small parcels of land that would be dealt with in fee simple.
The Chairman: Are there other members who have questions? Mr. Finlay.
Mr. Finlay (Oxford): Mr. Chairman, we'll be hearing other witnesses on Thursday. If any amendments were proposed to Bill C-39 or C-40, would they affect the land claims agreements or the land entitlement agreements?
Mr. Henderson: I think that would depend upon the nature of the amendment proposed. If it were an amendment simply seeking greater clarification within the bill, it probably would not have an effect from a legal perspective. I guess legal counsel could better answer that.
The Chairman: This may be an unfair question, but we want to do justice to every bill that comes here, so I'm going to ask you this.
We have invited four witnesses, two groups of two, to appear on Thursday. One witness is Chief Jerry Primrose and a colleague from the Nelson House First Nation. The other is Chief Eric Saunders from the York Factory First Nation.
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You have dealt with this bill and you've talked to people. Are there others who should be considered who would be crucial for information for the committee?
If there are some, you could either tell us now or let us know in the hallways, but we want to be able to do justice. We would like to move on with our work, but we don't want to go so fast that we are unfair to participants.
Mr. Henderson: I don't believe there are others who would be crucial to these particular bills. The other first nations, Norway House and Cross Lake, have some interest in it, but they were consulted and received copies of the bill during the consultation process in the spring. We don't believe there's any issue for them.
The Chairman: Having dealt with these first nations, can you anticipate any amendments?
Mr. Henderson: We understand that York Factory First Nation may be looking for some amendments to the bill. During the consultation process in April, there were some discussions about possible changes to the draft bill.
The Department of Justice considered those and responded to legal counsel for the first nations. We indicated that we saw no legal reason for making those kinds of changes. It virtually added nothing from a legal perspective, in our minds. There was no further response received from their legal counsel at that point in time, prior to the bill being introduced in the House. But we do understand now that there may be a move afoot to seek some amendments to the bill.
The Chairman: If there's anyone here listening on behalf of future witnesses, we welcome amendments, but it makes it a lot easier if we have an indication of the direction so we can do some research.
I just say that this is an open committee. If there are any desires, we can do a lot better job by knowing what to expect than to have surprises when we're going clause by clause. That's all I want to say about that.
Mr. Henderson: I understand that Mr. Harper has received a letter from the chief of York Factory First Nation. I'm not sure if he has tabled it with you, Mr. Chairman.
The Chairman: No, I have two letters from him, but I didn't receive a return letter. So is this a suggestion that there may be amendments in the letter?
Mr. Henderson: We're trying to determine right now whether or not the first nation wishes to proceed with a proposal for amendment.
The Chairman: Okay.
Mr. Henderson: From our position right now, we still feel there's no need for an amendment, but we would need to see specifically what they were prepared to propose.
The Chairman: Okay. To the members, I will endeavour to research this and keep you aware, before Thursday's meeting if I can, of what to expect. Otherwise, we'll be in clause-by-clause, and if an amendment comes in, we start over. So if that's what we have to do, we'll do it, but it's a lot better if we can prepare for amendments.
Mr. Duncan: All these negotiations are time-consuming and expensive. I guess for an outsider to understand the dynamics of these negotiations a little better, I'm wondering if you could explain a little bit about how we end up with agreements that have very similar language but different compensation arrangements within them? Does that mean that all of the significant discussions in negotiation are really dealing with the compensation arrangements? Is the language of the agreement off the agenda, for the most part, in these negotiations, or does it just end up the same? I guess that's my question.
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Mr. Henderson: I'll turn to Ms Jackson, who has been actively involved in the negotiations.
Ms Jackson: We start from a basic principle. We have a negotiating mandate set out for us, which we received from cabinet, and we use that for the basis of our discussion with each of the first nations.
Each of the five first nations is unique in its own way. The impacts felt from the project are different in each of the communities because they're in different locations in northern Manitoba, at different locations on the affected waterways. The unique arrangements put in place for each community are the basis of some of the detailed negotiations that go on, and actually result in the development of the mechanisms for implementation of the obligations being addressed under the NFA.
Mr. Duncan: So it's not just the actual compensation but the implementation mechanisms that are very time-consuming.
Ms Jackson: Yes.
Mr. Duncan: Is it fair to say that the first negotiation was the most time-consuming in many respects because it was the precedent-setting language?
Ms Jackson: I don't think it's a fair statement, because as I said, each of the communities is different. They have their own different concerns. Although the agreements end up quite similar in the way they're worded, there are a lot of other issues that have to be addressed.
During the negotiations there is a consultation process going on at the community level, and we want to ensure that the members at the community level are aware of all the discussions taking place and all the mechanisms being put in place to implement and discharge the obligations under the NFA. So a lot of work goes on at the community level, making sure that the members are aware of what it is they're agreeing to.
Mr. Duncan: Have the negotiators from the provincial end and from Manitoba Hydro been a constant throughout these negotiations?
Ms Jackson: Yes. The only exception is the negotiating team from the first nations side of it. They've changed. With each of the first nations we've been dealing with different negotiating teams. Nelson House and York had the same legal counsel but had negotiators from the community.
The Chairman: Mr. Hubbard.
Mr. Hubbard: Has there been annual compensation to the communities over the years as a result of the flooding?
Ms Jackson: No, there hasn't. Since the agreement was signed in 1977 there has been very little compensation to the first nations. That is one of the primary reasons we got into comprehensive negotiations. We needed to find the mechanism to address the obligations to the first nations in a way that was more meaningful and that put compensation into the community.
Mr. Hubbard: Are you telling us that for nearly twenty years, despite the NFA, neither Manitoba Hydro nor the Province of Manitoba has really compensated?
Ms Jackson: There has been very little compensation to the first nations.
Mr. Hubbard: So when they come here as witnesses they'll show their concern and displeasure with what has happened for that period of time, I would think. Is that your assumption?
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Mr. Henderson: They might well do that from an historical perspective. But I think it's understood by all parties that the intent of negotiating the implementation agreements, based upon a proposed basis of settlement that was arrived at mutually amongst the parties in 1990, was to fulfil and satisfy the obligations that had previously not been fulfilled. But there's no doubt there has been some wrong done amongst the parties with respect to the 1977 agreement and the lack of fulfilment of it.
Mr. Hubbard: So, as the Government of Canada, we have not really done all that much to protect the communities involved.
Ms Jackson: The way the NFA is set out there are Canada's obligations, Manitoba's obligations and Hydro's obligations, but there are also shared obligations. For the most part, Canada has tried to address the obligations it can address on its own. Then we get into the areas of shared obligations, which are more difficult to deal with. Since 1977, Canada has addressed its major obligations under the agreement.
Mr. Hubbard: I have some difficulty with this concept. These are peoples whose lands have been flooded and literally taken away from them, and it's taking us so long to come to some system. I can't see why we won't receive criticism, but I'd just like to make that observation.
I've seen it happen in our own province of New Brunswick, with flooding by hydroelectric dams. We've seen it across the country, but maybe some of our native communities are not that well respected in terms of what we have done to them. I hope this will be a start in trying to resolve some of that. Thank you, Mr. Chairman.
The Chairman: I suspect there are numerous examples of such situations, but this committee will be focused on the legislation and the role we have to play in it. I think your question was very good, because it teaches us that if we start looking to the past it may be a long time before we can deal with solving the problem.
Mr. Henderson: If I might add some information to that as well, with regard to the Split Lake Implementation Agreement, which was the first of the five first nations agreements signed in June 1992, the four parties are working very well to fulfil the more clearly understood obligations in that implementation agreement. There have been very few hitches. Normal implementation and operational issues arise, but we are dealing with them in a very mature and open fashion amongst the parties. I think if you were to speak to members of the Split Lake first nation, as an example, while they historically felt wronged, they are quite pleased that all parties are now working together in fulfilment of their rightful obligations.
The Chairman: I would like to thank our witnesses for their presentation and for coming such a long way. I hope you enjoy the city of Ottawa - you've been here before. Thank you very much.
Committee members, I'll suggest another scenario as we usually do. On Thursday we have two groups of witnesses. If you agree, we can ask the clerk to have the documents ready to go clause-by-clause at 1 p.m., if we think there are no hurdles and we can clear it up that day. If we see, based on the presentations, that there are areas where we will need more research and debate, we will set up a meeting for next week.
Do you agree we should attempt to do it Thursday, if there are no situations to prevent us? Do you agree we should plan to go clause-by-clause Thursday at 1 p.m., or before that if the witnesses finish earlier? Does everyone agree? If this committee says on Thursday that we need more time for research and debate, we will plan it for next week. Is that fair enough?
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Committee members, I have received a notice of motion from the Reform Party. I received it but hadn't accepted it. I will accept the motion. It will be tabled in a meeting. The steering committee will decide when that meeting takes place. You can expect to deal with that either before or after Thursday's meeting or next week. Okay?
Mr. Duncan: Will it be before or after Thursday's meeting?
The Chairman: If the steering committee decides to recommend that we meet at 10:30 a.m. Thursday, I'll go along with what the committee recommends, but if the steering committee says no, next week we want to make a big issue of this, or whatever, I'll go along. I just try to push on the work. You'll get to know me. Yes, I'm pushy, but I want to be fair. I don't believe in having meetings just to have meetings, but I'll push to get the work done, and if I push too hard, let me know. I'll slow down.
Mr. Duncan: That's no problem for me. I'm just asking for clarification.
The Chairman: You see, Mr. Duncan, we need to deal with that notice of motion at a meeting scheduled for that purpose. We can't deal with the notice of motion while we're having public hearings or we're debating this bill.
Mr. Duncan: Then my question is when is the meeting of the steering committee to determine the time?
The Chairman: As soon as we can talk to members of the Bloc. I think Mr. Bachand wants to be in on this, because he was here at that meeting. As soon as the members of the steering committee can sit.... We can do this before Question Period, in three minutes. It's just a matter of deciding at what time we will deal with that notice of motion. I have made my decision that I will accept the notice of motion.
Mr. Duncan: Do I take it we have to go through the formality of establishing the steering committee membership once again?
The Chairman: We haven't done that.
Mr. Duncan: No, we haven't done that.
The Chairman: It's my understanding it's three members of the governing party and one of each opposition. Is it not chair, vice-chair, and parliamentary secretary, then one you designate individually? It's not appointed by this committee, it's appointed by the parties. Correct me if I'm wrong.
Mr. Duncan: I can't remember how we did it last time.
The Chairman: I don't remember an election of members to be on the steering committee.
Mr. Duncan: We did it informally, didn't we?
The Chairman: Yes. So you decide which representative you want and the Bloc decides.
Mr. Duncan: Are you going to try to get a steering committee together? I would suggest that for Reform the steering committee representative would be me this session, and it sounds as if Mr. Bachand will be it for the Bloc.
[Translation]
The Chairman: Mr. Dumas, do you know if Mr. Bachand is in Ottawa?
Mr. Dumas (Argenteuil - Papineau): No, he isn't here today.
[English]
The Chairman: Mr. Bachand is not here today.
[Translation]
Do you know when he will be back?
Mr. Dumas: Probably tomorrow or Wednesday.
The Chairman: Tomorrow or Wednesday.
[English]
I'm willing to call the meeting tentatively for 1:45 p.m. tomorrow in the foyer - not in the lobby but the foyer - before Question Period.
Mr. Duncan: Not the lobby but the foyer.
The Chairman: I don't know if that's what you call it. It's where you enter before you go into either lobby. What do you call that place? Foyer. Everybody knows what I mean.
Mr. Duncan: Inside the security but outside the House.
The Chairman: That's right.
Fair enough. That's 1:45 p.m. tomorrow. I will make all the calls, or someone in my office will, and we'll confirm it with you.
Mr. Duncan: Thank you very much.
The Chairman: Mr. Finlay, are you able to be there tomorrow at 1:45 p.m.?
Mr. Finlay: As far as I know, Mr. Chairman.
The Chairman: Mr. Patry? Mr. Duncan? And we'll ask Mr. Bachand.
Anything else for the good of the club? The meeting is adjourned.