Reserve Land and First Nations Development

RESERVE LAND AND FIRST NATIONS DEVELOPMENT

PRELIMINARY PROJECT RESULTS

ANNEX 7

APPROVED FIRST NATION INTERVIEW REPORTS

Page

1. Abénakis d'Odanak (QC) 3

2. Akisq‟nuk First Nation (BC) 13

3. Algonquins of Pikwàkanagàn (ON) 22

4. Buffalo Point First Nation (MB) 34

5. Chapleau Cree First Nation (ON) 52

6. Fort Folly First Nation (NB) 65

7. Fort McKay First Nation (AB) 75

8. Indian Island First Nation (NB) 85

9. Innus Essipit (QC) 96

10. Kahnawá:ke (QC) 110

11. Kingsclear First Nation (NB) 120

12. Kitigan Zibi Anishinabeg (QC) 128

13. Little Sushwap Indian Band (BC) 143

14. Millbrook First Nation (NS) 153

15. Montagnais du Lac-St-Jean (QC) 166

16. Osoyoos Indian Band (BC) 177

17. Simpcw First Nation (BC) 189

18. Skidegate, Haida Gwaii (BC) 202

19. Songhees Nation (BC) 215

20. Squamish Nation (BC) 228

21. Tk‟emlúps Indian Band (BC) 239

22. Tsawwassen First Nation (BC) 251

-2- 23. Tzeachten First Nation (BC) 266

24. Whitecap Dakota First Nation (SK) 276

25. Whitefish Lake First Nation (ON) 293 -3- PREMIÈRE NATION DES ABÉNAKIS D’ODANAK

STATISTICAL INFORMATION

Location 32.5 km from Sorel, in the province of Quebec, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 309 members (16%) on reserve, 1577 members (84%) off reserve, total 1,886 100 non-member residents on reserve

Reserve land 567 hectares (1,401.08 acres), one reserve, riveraine

Reserve land management legislative and regulatory framework Indian Act

Reserve land management staff membership in a professional association National Aboriginal Land Management Association

Property taxes No

Community Well-Being Index* 76

Parcel Fabric Index** N/A

Active registered transactions 235 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 1,070 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

*The Community Well-Being (CWB) Index is a method of assessing socio-economic well-being in Canadian communities. It combines census data on income, educational attainment, labour force activity, and housing into well-being “scores”, on a scale of 0 to 100 for each of the several thousand communities in Canada. CWB Index scores are derived from Canada's Censuses of Population, which are conducted every five years.

**The Parcel Fabric Index (PFI) was developed by the Surveyor General Branch of Natural Resources Canada to measure the current status of parcel fabric on reserve on a scale of 0 to 100 by comparing it to the as-built environment (houses, structures, land clearing and agricultural development). -4- PREMIÈRE NATION DES ABÉNAKIS D’ODANAK

RÉPARTITION DES TENDANCES QUANT À L’UTILISATION DES TERRES

40% Certificats de possession (CP) (200 hectares) 40% 1%

Activité associée à une 6% license ou un permis (1 hectare) 1% Terres enregistrées utilisées par la bande (45 hectares) 6% Terres inutilisées par la bande (300 hectares) 53%

53%

-5- PREMIÈRE NATION DES ABÉNAKIS D’ODANAK

RAPPORT D’ENTREVUE

August 16, 2010, 9:30 AM to 2:00 PM

Chief Rick O'Bomsawin Michel Durand Nollet, Bureau Environnement et Terre Paul Gosselin, Agent de développement économique Luc Nolett, Technicien de la faune Marie-Michèle Bourassa, Biologiste

A) Odanak's Reserve Land Management Experience

The following 12 key events or periods were identified.

1. Donation de la Seigneurie de Crevier (1660)

La veuve du Seigneur de Crevier donne la totalité de la Seigneurie, une terre d'environ 10 milles par 10 milles d‟une surface totale de 64 km², aux Abénakis, qui la conserveront tant qu'au moins un Abénaki catholique y habitera.

2. Empiètements agricoles (1660-1962)

Pendant plus de trois cents ans, une série de cessions et de donations rétrécissent progressivement le territoire de la communauté. Des agriculteurs limitrophes empiètent sur ce territoire en y coupant des arbres et y creusant des fossés pour "faire avancer leur lot." La carte initiale du territoire des Abénakis d'Odanak montre qu'il avait la forme d'un parallélogramme régulier. Aujourd‟hui, la carte du domaine de Pierreville, une partie de la réserve, a la forme d'une clé, le résultat de trois siècles de cessions, donations et empiètements. La surface actuelle de 567 hectares ne représente qu'environ 20% de la surface initiale de la Seigneurie.

Ces cessions, donations et empiètements ont également eu pour effet de morceler le territoire, le Domaine de Pierreville faisant toujours partie de la réserve mais étant actuellement enclavé et sans accès pour la communauté.

De plus, au fil des ans des "magouilles" ont donné lieu à des papiers notariés qui servent aujourd'hui de base à des revendications par des non-autochtones visant des îles, par exemple l‟Île-à-l‟ail, et d‟autres terres non-accessibles de la réserve.

3. Cession d'une partie de la Seigneurie (38 lots) pour créer Pierreville (vers 1828)

Des redevances de $7 par année sont encore payées en 2010 par les propriétaires de Pierreville à cette municipalité "au nom du Seigneur, ce qui prouve que ça nous appartient," selon les représentants d'Odanak.

4. Cession de terres au Canadien Pacifique pour construire un chemin de fer (1882)

Canadian National later bought Canadian Pacific and now owns the tracks that divide a good part of the community, locking up both housing and economic development.

-6- Trains stopped running along these tracks in the late 1960s and the First Nation has been arguing ever since to try to get the land back, which remains a major problem to this day. CN has handed back the land to every township along the tracks, but not to Odanak because the reserve is federal land and the federal government can't accept contaminated land.

A small part of the CN land is contaminated. The First Nation has been asking CN for years for a copy of a study carried out ten years ago according to provincial contamination standards and still has not received it. The federal government wants the study to be done all over again according to federal standards. Le CN refuse de refaire l‟étude de la contamination en vertu des normes fédérales parce qu‟elles sont plus sévères que les normes provinciales.

Chief O'Bomsawin said that CN is engaging in "stall tactics," since it refused to give the land back but offered to sell it to Odanak. Moreover, the contamination only affects a single lot (less than one hectare out of 16) in a limited area but is blocking the whole land transfer, which has since become the subject of a Specific Claim.

Chief O'Bomsawin added that "this is prime economic development land, because companies want to be on the highway and the counties around us have no more economic development land" as a result of the Québec law on the protection of agricultural lands. C‟est pourquoi Odanak s‟est doté d‟un parc industriel où un incubateur industriel a ouvert ses portes en 2009 et quelques locaux sont loués depuis peu.

5. Cession du terrain du juge Gill (vers 1880)

Une partie du territoire des Abénakis fut cédée au juge Gill "pour services rendus." Ce terrain a été racheté par la Première nation en 1987 en vue d'un ajout à la réserve, qui a eu lieu en 2010.

6. Création de la réserve (1962)

Un arpentage de toute la communauté pour créer la réserve permet de voir les parties perdues (80%). Certificates of Possession (CPs) were issued in recognition of individual possession for about a quarter of the reserve, the other three quarters remaining Band land.

7. "A lot of sitting around the table" (1962-2010)

That's how Chief O'Bomsawin described the last 48 years of unsuccessful efforts to resolve all of Odanak's outstanding reserve land management issues. After a long period during which "nobody paid much attention to land management because of lack of time and concerns about survival," it was just "meeting after meeting going nowhere. It takes six months to schedule a meeting and then it has to be rescheduled because somebody changed jobs." Odanak concluded from this experience that INAC‟S attitude was basically "out of sight, out of mind."

The remains of some oil tanks, grain towers and a bridge on the CN lands were removed over time because they posed an obvious danger to the public, but the process continues to be "very, very slow."

-7- 8. Projet de loi C-31 modifiant la Loi sur les Indiens (1985)

9. Nouveau bâtiment pour le Conseil de bande (1994)

10. Création d'un poste de Directeur général de la communauté (fin des années 1990)

11. Création du Bureau Environnement et Terres (2008)

12. Plan stratégique 2008-2013 (2008)

The plan was presented to a community meeting and "there was some hesitation because of the welfare mentality," according to Chief O‟Bomsawin. "While a majority wants to see growth, we're in a transition period in which some are still saying: It's always been this way, why do I have to work?"

Chief O'Bomsawin explained that his father, Paul O'Bomsawin, was part of a delegation of First Nation leaders who went to the United Nations in 1972 to seek international recognition, including recognition of the Haudenosaunee passport. Members of this delegation were told by UN delegates that "economic stability was a criterion to get recognition as a race of people with our own rights and our own independance."

"The non-Native person has ten times the chances of survival of the Native person," said Chief O'Bomsawin.

Un autre représentant d'Odanak décrivit en ces termes la mentalité et les pratiques auxquels le Plan stratégique de 2008 tentait de mettre un terme: "Tout le monde qui est entrepreneur présente de petits projets et cherche une subvention, mais ça n'a jamais décollé et après ça on leur dit que leur projet était mauvais."

B) The main factors that contributed positively to Odanak's reserve land management, in declining order of importance

1. Respect of the People for Certain Lands Here

Chief O'Bomsawin referred to the Commons, a part of the reserve about which he said: "We have a thousand different stories, whether it was a place to graze cows or sacred spiritual grounds, but everybody agrees you don't build there and that it's land for common use, with respect." Similarly, "only one house was ever built on the water, because legends say you don't build there."

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Leadership

Chief O'Bomsawin explained that he grew up on a farm near Ottawa but that his father was from Odanak. On what was to be the day of his death, his father told him to go back to the reserve. "Somebody said it would be easy," said the Chief, laughing, "with a free house, etc." Rick O'Bomsawin followed his father's advice and came back to Odanak 18 years ago, after his mother died. "Language was my biggest issue," he said, because most First Nation members spoke French and he didn't.

-8- "We're all pushing in the same direction now," he noted, "all working together as a team. As the community comes together, we can only go forward, but the younger generation has a different view because they lived through welfare and the project system to deal with unemployment."

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Separation of Politics from Policy

This was Rick O'Bomsawin's main campaign theme when he successfully ran for Chief in 2007. Other Odanak representatives said that "there was a lot of favouritism before." Chief O'Bomsawin contrasted that with the present state of affairs, which he described as "staffs now has 90% of control over their issues and I'm hoping to get that up to 100%. It's not about who you know anymore," he concluded.

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Training for Staff

Un des représentants d'Odanak expliqua que la Première nation a "besoin de plus de gens compétents, par exemple des avocats, arpenteurs et administrateurs." Chief O'Bomsawin said that "respecting the fact that staff have the education, we rely on them now. I rely on them because I don't know everything." Un autre représentant d'Odanak expliqua cette collaboration harmonieuse entre les responsables politiques et administratifs en disant que "le fort demande de l'aide."

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Odanak's reserve land management, in declining order of importance

1. Lack of Understanding and Ignorance on the part of Odanak's White Neighbours

"Nobody takes us seriously," said Chief O'Bomsawin, referring to businesses, individuals and environmentalists.

He recalled a time not long ago when "Natives couldn't go to the Metro," the grocery store in the town of Pierreville next door. "There were fights and kids got beat up, because there was a lot of rivalry. Today we know our place and we know that we can stand."

More recently, he said, "when I bought the cheese factory in 1992, all the businesses in Pierreville cancelled their contracts, saying "I won't buy from those Indians." They wanted us to be good little Indians, keeping quiet on the other side of the fence."

"It's even tough today," he continued, "because there's a lot of pushback from neighbouring communities. There's jealousy when we do good things. We're a small community and we've always been under everybody, so when we rise up, first they don't take us seriously, then they get pissed off."

-9- Chief O'Bomsawin said he had always been an activist fighting for Native rights and that "the way to beat this problem is to create a situation where the outside needs us more than we need them." That has been Odanak's objective "with every business we've entered."

"Hate breeds hate and loves breeds love," he said, noting that "there's no hate like Native hate, we can hate ourselves more than anybody else can."

"Let's try to do our best to work together, accepting that sometimes we need to agree to disagree," he added.

He noted that Odanak's neighbours are "a heavy French-speaking community" and that while he was "born in Ottawa, I've been here 18 years and still don't speak French, and they're fighting for language and culture," just like Odanak. He said the lack of understanding of its neighbours made even less sense because Odanak is "a 75% mixed community", i.e., only 25% of its members are of "pure" Indian blood. Unfortunately, "education didn't include Native history", so, "while we can't undo the past, we need to work with what we've got and look for a better future."

Another Odanak representative recalled that relations between the First Nation and its white neighbours deteriorated sharply after the 1990 Oka crisis. That year, "les artisans autochtones ont eu peur au Festival Western de Saint-Tite" because of threats and insults from whites, as a result of which they had hurriedly packed up and left. Similarly, "on est barré du Mondial des Cultures de Drummondville depuis la crise d'Oka."

The First Nation has no control over this negative factor of its reserve land management.

2. Lack of Value of Reserve Land

Chief O'Bomsawin attributed this to the fact that "the Queen owns it and you can't lien the Queen." He illustrated his point by saying that "the last line of my deed says something like "upon surrender all land must go back to Her Majesty the Queen." This makes it very hard to get financing because you can't give a guarantee based on what you own. Native banks therefore charge higher interest rates and Native businesses on reserve can't be bonded, because bonding requires cash and most Natives don't have cash. Cash flow is what makes a business work," said Chief O'Bomsawin, who continues to be active in business.

"It's different off reserve. The guy on the outside has all the options." Given all these constraints, he concluded, "I'd rather pay taxes."

The First Nation has no control over this negative factor of its reserve land management.

3. Le manque d'outils et d'appui du MAINC, du gouvernement du Québec ou de l'industrie

À titre d'exemple du peu d'appui que leur donne le ministère des Affaires indiennes et du Nord canadien (MAINC), les représentants d'Odanak expliquèrent qu'ils ne pouvaient plus avoir les cartes foncières dont ils avaient besoin pour gérer leurs terres de réserve. Ils ont porté ce problème à l'attention du MAINC et on les a mis en contact avec un technicien en informatique unilingue anglais qu'ils étaient incapables de comprendre.

De façon plus générale, dirent-ils, lorsqu'ils demandent de l'aide au MAINC, "on ne parle jamais à la même personne et c'est toujours à recommencer." -10- The First Nation has no control over this negative factor of its reserve land management.

4. Le budget alloué par le MAINC ne permet de payer le gestionnaire des terres que deux jours par semaine

The First Nation has no control over this negative factor of its reserve land management.

5. INAC no longer pays for land surveys

"Un arpentage de CP par un arpenteur du Canada coûte $8,000. L'arpenteur-géomètre à côté peut faire le même travail pour $1,000," selon Michel Durand Nollet, du Bureau Environnement et Terre. Vu le coût prohibitif du type d'arpentage exigé par le MAINC, M. Durand Nollet, qui a une petite formation en arpentage, prépare lui-même un brouillon de plan d'arpentage et un Arpenteur du Canada "donne un autre numéro de plan dans son bureau pour de $1,000 à $1,500 pour aider les gens de la communauté." À ce prix-là, ce dernier n'effectue aucun travail sur le terrain.

The First Nation has no control over this negative factor of its reserve land management.

D) Odanak's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Odanak assesses its success as a 1.

2. Success in using its reserve land for economic development purposes

Odanak assesses its success as a 1.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Odanak assesses its success as a 3.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Not applicable, as Odanak does not use such tools and procedures.

5. Odanak's priorities for the management of its reserve land over the next five years

i) According to Chief O'Bomsawin, Odanak needs "a zoning system where we can designate land for environmental protection, economic development and resource exploitation, which will stop basement businesses that don't work anyway. Economic development should be on the highway. We need to keep businesses with businesses and residential with residential. There needs to be some sort of regulation.

ii) A lot of people in the community won't like that and will say that "you're telling us what we can do on our lands and turning us into a municipality."

-11- iii) "Un rôle d'évaluation, qui nous donnerait un grand coup de main pour fins d'assurance, d'emprunts et d'aide sociale," selon Michel Durand Nollet. Chief O'Bomsawin added that "we need to estimate a base price of what a house and a piece of land is worth on the reserve, because now everything is worth $1. Property assessment would allow us to create a Band loan program to build a house."

As matters stand, he continued, "the INAC housing program will lend $80,000 for a house, so someone can make $70,000 for free by buying a house for $10,000 and borrowing $80,000. Council will pay for the loan because of the Ministerial loan guarantee. While this hasn't been done, it could be, especially with the McIvor case, by people we don't know living in Toronto or elsewhere. If we have an assessment of $40,000 for a house, we won't lend you $80,000. We need some sort of valuation system, because now people pick prices out of their head."

However, "we're dealing with individual properties, so it will be tough to put these things in place. Some will welcome it, others will say "mind you're own business, I'll do what I want." You have to lead the rest of the population to respect what the educated members say." This is especially hard to do in "a small community where everybody's related."

E) Odanak's Recommendations

1. To be acted upon by other First Nations over the next five years to maximize the contribution of reserve land management to the achievement of their community control and economic development goals

i) Educate your people

ii) Respect the fact that your staff have an education, because you can't have Chief and Council as "know all, do all"

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) "Communications and consultations, i.e., more meetings like this and more discussion about what it's like living in your sandbox," said Chief O'Bomsawin.

À titre d'exemple de la nécessité pour le gouvernement du Canada d'améliorer la communication et les consultations avec les Premières nations, Michel Durand Nollet mentionna un dossier de consultation arrivé le 14 décembre avec une demande de réponse pour le 10 janvier, à défaut de quoi le silence serait considéré comme a probatoire. Un tel délai n'est pas raisonnable pour aller chercher un professionnel si on n'a pas l'expertise à l'interne, selon lui.

ii) Donner aux Premières nations les outils nécessaires, tant financiers que professionnels. Par exemple, "donnez-moi les sous pour engager un cartographe," dit Michel Durand Nollet. "Ça prend du monde compétent qui connaît le dossier" pour répondre à des demandes de consultation comme celle précédemment mentionnée, d'autant que le MAINC a eu "des mois et des professionnels" pour la préparer. -12- iii) Comme l'a recommandé la Commission de développement économique des Premières nations du Québec et du Labrador, Paul Gosselin suggéra de "donner un montant annuel à la communauté et de la laisser décider comment la dépenser." Une telle flexibilité est nécessaire parce que "les processus d'analyse de Développement des entreprises autochtones Canada sont trop longs." En revanche, "le Secrétariat aux Affaires autochtones du gouvernement du Québec permet de commencer à construire avant que l'analyse soit complétée," sur la base d'une analyse préliminaire et rapide. iv) Revoir la définition du développement économique. Par exemple, une bâtisse devrait être admissible à un tel financement dans certaines circonstances. De façon plus générale, selon Paul Gosselin, "il faut plus de souplesse dans les programmes, qu'on n'a pas. Ils sont tellement rigides pour des petits montants, de l'ordre de $10,000, les formulaires sont longs comme la table, ce n‟est pas sûr et les cadres fédéraux ne peuvent pas passer à côté pour te donner un petit coup de main. Dans un Centre local de développement économique du gouvernement du Québec, les investissements de $50,000 se décident en 20 minutes. Avec Développement des Entreprises Autochtones Canada, ça prend de huit à neuf mois. C'est pourquoi un client avec lequel je travaille depuis des mois, qui a fait autant d'appels que moi, veut s'en aller." v) "Le nerf de la guerre c'est de donner des outils aux communautés, c'est- à-dire de l'argent," selon Michel Durand Nollet. Par exemple, Odanak mène en ce moment un projet en environnement avec Hydro-Québec, qui exige que la communauté se dote de professionnels pour lui fournir un financement. Plus précisément, la Première nation a besoin d'un biologiste spécialisé en herpéto-faune (amphibiens et reptiles). "Avant de faire du développement économique, il faut que tu saches ce que tu as sur ton territoire," dit Michel Durand Nollet, parce que toute entreprise de planification commence par un inventaire. Odanak prépare en ce moment un plan de développement touristique détaillé et a obtenu un financement de Tourisme Centre du Québec pour un sentier d'interprétation. Dans ce contexte le Bureau Environnement et Terres va donner une formation aux guides du Musée des Abénakis. En dépit de tous ces efforts de la Première nation, trop souvent les financements du MAINC n'arrivent pas en temps utile. À titre d'exemple, Michel Durand Nollet observa que "les oiseaux migrateurs doivent être inventoriés quand ils sont sur la réserve en mai, alors quand le financement arrive en juillet, il est trop tard."

Approuvé par le Chef Rick O‟Bomsawin Le 29 octobre 2010 -13-

AKISQ’NUK FIRST NATION

STATISTICAL INFORMATION

Location 110 km from Cranbrook, in the province of British Columbia, the nearest service centre to which it has year-round road access, Zone 2, i.e., rural

Population 153 members (58%) on reserve, 111 members (42%) off reserve, total 264 455 non-member residents on reserve

Reserve land 3,412.2 hectares (8,431.73 acres), two reserves, waterfront and woodland

Reserve land management legislative and regulatory framework Reserve Land and Environment Management Program (Training)

Reserve land management staff – Membership in a professional association No

Property taxes Yes

Community Well-Being Index* 80

Parcel Fabric Index** N/A

Active registered transactions 130 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 87 active CPs registered in the ILR, the FNLR or the SGFNLR as of October 28, 2010

DISTRIBUTION OF LAND USE PATTERNS

Certificates of Possession (CPs) 20% 0.02% 0.45% 0.25% 1.1% Buckshee Short-Term Usage (20 acres) (*5 year 20% leases from the Akisq'nuk Development Corporation) 0.25% Permitted Activity (2 acres) (gravel pit on CP land) 0.02%

Designated Land Leases (93 acres) *Indian Beach Estates 1.1%

Unregistered Band Use Lands (38 acres) 0.45%

78.18% Unused band Lands 78.18%

-15- AKISQ'NUK FIRST NATION

INTERVIEW REPORT

September 9, 2010, 9:00 to 11:30 AM

Chief Lorne Shovar Lucille Shovar, former Band Administrator Latrica (Terry) Nicholas, Lands and Taxation Manager

A) Akisq'nuk's Reserve Land Management Experience

The following 16 key events or periods were identified.

1. Christmas Treeing (throughout the years)

Individuals who cut down Christmas trees on CP or Band lots paid stumpage fees.

2. Reserve and Guide Outfitting Territory Established (1920s)

Akisq'nuk sells hunts to non-residents and First Nation members guide them out to the area, which is in the First Nation's traditional territory. Because of this Akisq'nuk can‟t own it as a First Nation and it was initially in a Band member's name. In 2006 Akisq'nuk got the Guide Outfitting Territory in its own name, even though it only has use of the land, which is owned by the provincial Crown.

3. Indian Beach Estates Leasing (1960)

Indian Beach Estates (IBE) consists of Lots 2 and 45. IBE is leased to K&H Holdings pursuant to a head-lease with INAC on behalf of the Band. The head-lease is for a term of 60 years and expires on December 31, 2026. There is no provision in the head-lease for a renewal or extension.

The designation of IBE was done in two phases. In 1959 the members voted in favour of designating (surrendering) Lot 2, a 50.1 acre parcel, for a term of 90 years expiring in 2049.

In 1967 K&H Holdings leased Lot 2 for a term of 60 years, terminating on December 31, 2026.

In 1971 members voted in favour of surrendering Lot 45, a 42.8 acre parcel, for a term of 55 years to K&H Holdings.

In 1974 the head-lease was amended to include Lot 45 for the same term as Lot 2, to coincide with the expiration of the head-lease in 2026.

Lots 2 and 45 were subdivided into approximately 145 residential building lots with common areas and sub-leased to tenants for a term ending on December 31, 2026.

Rent reviews and negotiations are completed every five years to determine the annual fee payable to Ak'isqnuk. This money is deposited into the Band's trust account in Ottawa and can be accessed through a Band Council Resolution (BCR) via a community meeting.

-16- 4. Gravel Pit Expropriation (1968)

A gravel pit along the main highway was expropriated by the BC Department of Highways. It reverted back to reserve status in 2008.

5. Certificates of Possession Issued (early 1970s)

CPs are hereditary and continue to be issued to this day. CP lands were surveyed in the early 1970s and some CP holders did forestry.

Akisq'nuk just signed a contract for gravel extraction on CP lands, which took about two years and required a lot of talk because INAC required the First Nation to support it

6. Campground Lease (1971)

A non-member approached Akisq'nuk in 1969 to establish a campground on Band land and a 13-year lease was signed two years later. The non-member kept running the campground after the expiration of the lease, which thus became a buckshee lease. Akisq'nuk knew the non-member was making money and wanted to make the lease legal again. Negotiations started but the non-member walked. Akisq'nuk has been operating the campground since and signs its own campground leases, which are not registered through INAC.

7. Akisq'nuk Development Corporation Established (1980s)

This Development Corporation was never active until 2008, when Chief and Council signed a management contract under which it oversees the campground, the Early Childhood Development Centre, the Guide Outfitting Territory and billboard signage.

8. Forestry Contracts (late 1980s to the present)

Akisq'nuk got quite a bit of these contracts in its traditional territory, the last one about four years ago. Some are spacing contracts, under which space is created between trees that are left standing. Others are Non-Renewable Forest Licences, which allow logging for profit of trees affected by bug kill or something like that.

9. Nupqu Development Corporation Established (early 1990s)

This natural resource-based corporation is owned by the Ktunaxa Nation, which, in addition to Akisq'nuk, includes the Lower Kootenay First Nation in Creston, the Tobacco Plains Indian Band in Grasmere and the Saint Mary's Indian Band in Cranbrook. The Shuswap Indian Band in Invermere was initially a member of the Nation, put pulled out around 2005.

Aisq'nuk was initially a one-fifth owner of the Nupqu Development Corporation and that share rose to a quarter after the other four member First Nations bought out the Shuswap Indian Band in 2010.

10. Billboard Signage (1990s onward)

Billboards were put up all along the highway that cuts through the reserve, some on Band land, others on CP land.

11. Ktunaxa Nation Statement of Intent (1992) -17- The Nation filed an SOI to enter the BC Treaty Process in 1992. It is expected that there will be a land component to the eventual Treaty.

12. Taxation (1992)

Akisq'nuk started collecting property taxes under Section 83 of the Indian Act. In 2007 it passed a BCR applying to be added to the Schedule to the First Nations Fiscal and Statistical Management Act (FSMA) and has been operating under the FSMA since it entered into force. Property tax revenues are now contributing to health, education and housing, as well as to broader "legislative" purposes as provided by the FSMA, which offsets part of Chief and Council expenses.

13. Saint-Eugene Golf Resort and Casino Established (2000)

This facility was built on reserve land that is shared among the five original First Nation members of the Ktunaxa Nation, which established it in partnership with two business partners: the Samson Cree First Nation in Alberta and the Chippewas of Rama First Nation in Ontario. The three partners each have an equal share, so Akisq'nuk owns one-fifth of one-third.

14. Early Childhood Developmemt Centre Built (2006)

Initially planned as a Day Care Centre, this facility has been operating as an Early Childhood Development Centre since it opened in 2007.

15. Crown Land Partnership Negotiations Start (2006)

The Integrated Land Management Bureau of British Columbia, the District of Invermere, the Shuswap Indian Band and Akisq'nuk began these negotiations after the Province signaled that it wanted to dispose of a chunk of Crown land in the District of Invermere. The Province would give Akisq'nuk a portion of this land (Lot 4616) "as accomodation" and Akisq'nuk could either sell or develop it.

In the context of these negotiations Akisq'nuk's lawyer and Chief were shocked to learn that Akisq'nuk can only own land through a Development Corporation or similar entity because of a section of the BC Land Act and that only one or two First Nations, such as Sechelt, can own land in British Columbia.

16. Reserve Land and Environment Management Program (2010)

Notification from INAC of acceptance into RLEMP was received in March 2010 and Akisq‟nuk's Lands and Taxation Manager is currently taking the RLEMP training. Akisq‟nuk intends to develop its own Land Code, which will be done with community involvement, and to pass BCR seeking admission into the First Nations Land Management regime once its Lands and Taxation Manager has completed the training.

B) The main factors that contributed positively to Akisq'nuk's reserve land management, in declining order of importance

1. Willingness of People to Do It

Akisq'nuk's membership is willing to lead in economic development and its leadership is willing to support its members.

-18- The First Nation has a medium degree of control over this positive factor of its reserve land management, because of the different levels of education throughout the community.

2. Own Source Revenues

OSR dollars coming in enabled the Band to do things that it couldn't have done only with INAC funds, like health, education, recreation and some infrastructure, especially housing. OSR doesn't include money from the IBE leases, because Akisq'nuk has to ask INAC for it, but includes things like forestry and the campground leases, from which revenues flow directly to the Band.

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Cooperation and Information Sharing at the Nation Level

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Employment

"Our members want to work," said Chief Shovar, noting that Akisq'nuk has a very low level of social assistance. Employment on reserve, a lot of which is seasonal, is both a result of and a contributing factor to land management, because "if we could provide full time employment, we would have more support" from members for land management policies and projects, explained the Chief.

The First Nation has a low degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Akisq'nuk's reserve land management, in declining order of importance

1. INAC

"If we started a red tape factory, INAC would keep us in business forever," said Chief Shovar. "For example," he explained, "we wanted a water treatment plant exclusively for our members and it took ten years to get INAC approval. We wanted gravel extraction and it took two years to get INAC approval. If we had done it ourselves we would have paid a $50 fine, so it's not worth the time and trouble of doing it through INAC."

"INAC is too paternalistic, so you're unable to manage your own affairs. The process takes so long, by the time they get back to you, you've forgotten about it or put it on the back burner. For example, when we planned the Day Care Centre, we had children from zero to six years old galore. By the time it was approved, our birth rate had dropped and there were no more kids. That changed the nature of the project from a social programme for Akisq'nuk's members to a business entity for the greater community from Radium to Fairmont."

"Today the Early Childhood Development Centre is rated among the top ten in the Province. It went from 28 children in its first year of operation to 56 in its current and third year, and there's a waiting list because it's well recognized. It turned out good because we did it without INAC funding. We got some from the Province, but we had to -19- run it as self-funded and make it pay its own way. That's why it's a multi-use facility and our Development Corporation is now housed there, but it'll have to move out soon because the Centre is expanding into 30-month old kids."

"The IBE rent review every five years is another example. INAC requires both the Community Association to get an appraisal done and Akisq'nuk to get an appraisal done, and they meet in the middle after strenuous negotiations. Akiskq'nuk agreed with its tenants that it would use the BC Assessment Authority and there would be no more appraisals. INAC said “no, these are the INAC rules; you have to have two appraisals."

"INAC LTS provided $26,000 to Akiskq'nuk to hold a referendum on extending the IBE lease to 2058 and make it a 99-year lease because it currently expires in 2026, the land is designated until 2058 and land values have dropped because there are only 16 years left on the lease. We're trying to move away from confrontation and get a win-win, but INAC won't let us negotiate our own rental agreements."

"INAC processes take far, far too long and time is of the essence for economic development. I think they change people intentionally," said Chief Shovar. "You get someone you can work with and they change the worker, and you have to re-educate them. It's been happening at the Treaty table for a long time too."

The First Nation has no control over this negative factor of its reserve land management.

2. Processes Involved in Developing Reserve Land

"Designations are a huge hindrance," said Chief Shovar, "because of the time and cost involved, as for environmental assessments. It takes a long time to get anything going."

"Getting agreement from eligible voters in Ontario, the United States, Saskatchewan, Vancouver and Cranbrook, some of which have never lived in this community" is a key aspect of how INAC processes contribute negatively to Akisq'nuk's reserve land management. "The first vote requires 75% of eligible voters to vote, but less than 50% of members live on reserve. Eventually you get it done, but it takes 10 to 15 years. A lady with a CP had been trying to set up a gas bar and convenience store for 20 years, and now she's given up."

"You need to go through all those hoops and loops to get INAC funding. Individuals can't go to the Band to get financing without a designation and a lease."

Akisq'nuk's Lands and Taxation Manager observed that the First Nations Property Ownership Initiative of the First Nations Tax Commission can change all that, but Chief Shovar said that he was "still on the fence" with respect to that proposal.

The First Nation has no control over this negative factor of its reserve land management.

3. Change in Governments and Ministers

The First Nation has a low degree of control over this negative factor of its reserve land management.

4. Recent Economic Slowdown

The First Nation has no control over this negative factor of its reserve land management.

-20- 5. Minority Federal Government

The First Nation has no control over this negative factor of its reserve land management.

D) Akisq'nuk's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Akisq'nuk assesses its success at 2.5.

2. Success in using its reserve land for economic development purposes

Akisq'nuk assesses its success as a 2.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Akisq'nuk assesses its success as a 1.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Akisq'nuk assesses its success as a 2, because buckshee leasing can't be used to obtain financing.

5. Akisq'nuk's priorities for the management of its reserve land over the next five years

i) Working towards total self-sufficiency (but this will take more than five years), so we can say 'no' when INAC comes with their carrot-dangling money. A lot of the time our staffs have to be proposal writers and report writers, rather than dealing with real issues, so we're sort of moving away from that.

ii) Assisting CP holders in developing their own businesses

E) Akisq’nuk’s Recommendations

i) If you don‟t need the INAC process for things like logging or gravel extraction, just go ahead and do it

i) If you do, ensure your membership is informed to get their support, for example on things like a vote to go under the First Nations Land Management regime

-21- iii) Pass a taxation law, because it gives you jurisdiction over individuals on your land and allows you to access funding for infrastructure, and to top up INAC program funding where it doesn‟t meet the needs

iv) Help lobby to change INAC rules and processes. Those red tape factors need to be changed. For example, off-reserve member voting rights are a definite hindrance to First Nations‟ economic growth, because they stretch out the timeline and somebody who‟s successful in Ontario doesn‟t care, so doesn‟t bother to vote, so the threshold is not met. We need this hindrance removed.

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Change the Indian Act. It was originally written to be obsolete in 1950, because it was expected that all First Nations would be gone by then, so it needs a serious overhaul and it needs to be modernized. For example, change the proportion required for any type of referendum.

That‟s enough to keep the Minister and the government busy for at least five years. Get First Nations input on that process. Work with the Assembly of First Nations to do that.

Approved by Chief Lorne Shovar October 29, 2010 -22-

ALGONQUINS OF PIKWÀKANAGÀN

STATISTICAL INFORMATION

Location 42 km from Pembroke, in the province of Ontario, the nearest service centre to which it has year-round road access, Zone 2, i.e., rural

Population 429 members (20%) on reserve, 1,624 members (80%) off reserve, total 2,041 60 non-member residents on reserve

Reserve land 688 hectares (1,700.08 acres), one reserve, woodland, rock and swamp

Reserve land management legislative and regulatory framework Regional Lands Administration Program and Reserve Land and Environment Management Program

Reserve land management staff membership in a professional association National Aboriginal Land Managers Association and Ontario Aboriginal Lands Association

Property taxes No

Community Well-Being Index* 78

Parcel Fabric Index** N/A

Active registered transactions 263 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 1,541 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

*The Community Well-Being (CWB) Index is a method of assessing socio-economic well-being in Canadian communities. It combines census data on income, educational attainment, labour force activity, and housing into well-being “scores”, on a scale of 0 to 100 for each of the several thousand communities in Canada. CWB Index scores are derived from Canada‟s Censuses of Population, which are conducted every five years.

DISTRIBUTION OF LAND USE PATTERNS

(NOT AVAILABLE) -24- ALGONQUINS OF PIKWÀKANAGÀN

INTERVIEW REPORT

August 6, 2010, 9:00 AM to 2:00 PM

Chief Kirby Whiteduck Dan Kohoko, Executive Director of Operations Jan Leroux, Manager, Lands, Estates & Membership

A) Pikwàkanagàn's Reserve Land Management Experience

The following 21 key events or periods were identified.

1. Last Petition (1857)

This petition for the creation of a reserve, the last of a long series, was the only that came to fruition.

2. Reserve Creation (1873)

A 1,200-acre reserve was created, consisting mostly of rock and swamp. The Department of Indian Affairs (DIA) forced families to pay 10 cents an acre for location tickets (later replaced by CPs, i.e., Certificates of Possession). The whole reserve was allocated, pursuant to the government's policy of trying to make farmers out of Indians. First Nation members gave CP land to create First Nation owned land, which was augmented over time through estates.

3. Second Golden Lake Dam Construction (1918)

A first dam on Golden Lake caused major flooding and was removed when a new dam was built in 1918. Part of the reserve was expropriated for this purpose. INAC received $100 in compensation. The First Nation received only 10%, i.e., $10.

4. CN Rail Construction (around 1925)

Part of the reserve was expropriated for this purpose. The First Nation received no compensation.

Once it was no longer needed, the track was returned to the First Nation and designated as a public road, which opened up a lot of land that couldn't previously be accessed.

5. Hydro Easement (1930)

This easement was granted to provide hydro-electricity to First Nation members. A main line was erected that does not service the First Nation. When Hydro One was privatized, the easement, which had been granted for public purposes, was no longer valid. The First Nation has been trying for years to negotiate a replacement permit with Hydro One, which paid some money for a while but has paid nothing since 2008.

6. Addition to Reserve (1940s or 1950s)

This was the only ATR in the history of the reserve, to which it added 700 acres.

-25- 7. Shore Road Allowance (1954)

There is a 66 foot shore road allowance along the boundary of the First Nation that is owned by Bonnechere Valley. The First Nation is trying to acquire this allowance and add it to reserve. Some of it has been flooded, but the First Nation is trying to obtain the full 66 foot allowance, so that if the water goes down it will then not have to reapply for what was underwater. The First Nation is conducting research to determine if compensation may be due.

8. Band Take-Over of Management and Administration (1967)

The Indian Agent left and a First Nation member was appointed as administrator, and took over management and administration. Things started to improve as a result, after very little improvement for almost a hundred years.

9. Day School Closure (around 1964)

The reserve's two day schools were eliminated. The children were bussed to schools in the local town and the quality of education improved as a result.

10. White Paper (1969)

The strong reaction against the federal government‟s White Paper on Indian Policy led to a shift in government policy. INAC began to devolve more management and administration to First Nations, but without the tools (human, financial, technology) to go with it. Pikwàkanagàn's vision of improvement started in this context.

11. Post-Secondary Education (1970s)

A new funding program allowed First Nation students to continue beyond high school. Pikwàkanagàn students are very successful. The First Nation wants to attract its students back into the community with competitive wages and benefits, but is unable to do so at this time.

12. Housing and Land Policy (1980s)

Under this policy Community land was allocated to people who required housing, which eventually led to more CPs being issued.

13. Bill C-31 (1985)

Pikwàkanagàn's membership went from 267 before Bill C-31 to close to 2,000 today. New members brought in a lot of skills, abilities and knowledge.

Bill C-3, the result of the McIvor case, should "blow up and die down", since most of the new reinstatees will be older. Nevertheless, more people will be accessing the same amount of funding and the same amount of land.

14. Algonquins of Ontario Land Claim (1991-92)

Pikwàkanagàn is the only Algonquin First Nation in Ontario. They decided not to pursue a joint land claim with the eight other Algonquin Bands in Québec and filed a separate claim, along with Non-Status Ontario Algonquins. The claim concerns about 9.5 million acres of territory that was never surrendered under treaty. The negotiations are ongoing -26- and the First Nation plans to use part of an eventual monetary settlement to buy more fee simple lands to add to reserve, as it has been doing over the years.

15. Residency Law (1991-92)

This law determined who has a right to live on reserve. There were enforcement issues, with respect to both getting all residents to apply and getting those who didn't meet the Algonquin blood requirements to move out.

16. Agreement on Casinos with the Government of Ontario (mid-1990s)

This agreement provided for one First Nation casino to be established in Ontario (on the reserve of the Chippewas of Rama First Nation) and for a formula-based distribution of all its proceeds to Ontario First Nations, although the Conservative government of Premier Mike Harris later clawed back 20%.

This agreement, a new version of which is set to enter force in 2011, provides Ontario First Nations with an unfettered source of income, as opposed to contribution agreements with INAC. Without it many things in Pikwàkanagàn that INAC won't pay for wouldn't exist: the new Band Office, the Assisted Care Living Facility, the recent upgrade to the Community Centre, which created employment in the community, and the planned industrial site and small business centre. The First Nation pays for the whole thing, since part of these facilities are financed by a loan from the Canada Mortgage and Housing Corporation.

17. Global Positioning System Problem (around 1998)

All survey lines on the reserve were off by 50 feet. It took five years to correct them, which was much too slow.

18. Membership Rejects Land Use Policy (late 1990s)

After consultation the members rejected the possibility of developing a land use policy or zoning by-law. The First Nation has no official land use code, but has an unwritten one where certain parcels have been designated by Council for specific purposes (i.e, school, cultural, industrial, etc.).

19. Agreement with Bell Canada (around 2005)

The First Nation issued a permit for a phone line going through the reserve. The permit was not under the Indian Act because INAC wanted a survey but wasn't prepared to pay for it.

20. Draft Policy on Matrimonial Real Property (2007) and Enforcement Problems

The First Nation prepared a draft policy on MRP and had consultations on it with the community. Enforcement is a problem, for this policy as well as for all of Pikwàkanagàn's laws. The Ontario Provincial Police won't enforce its laws, nor will the Ontario Superior Court. The First Nation is working with the Union of Ontario Indians to address the enforcement problem. Meanwhile, there are some bad people that the First Nation would like to get off the reserve but can't. Last year a man with multiple arrest warrants against him killed a member on reserve "because we didn't get to him out on time."

-27- 21. Possible Land Purchase (2010)

The First Nation is seeking new INAC money to purchase adjacent land, which would lead to the first reserve expansion since the 1950s if they get it.

B) The main factors that contributed positively to Pikwàkanagàn's reserve land management, the first five of which are in declining order of importance, the last seven being of lesser but equal importance

1. Commitment and Determination of Council

The First Nation is very underfunded by INAC, with only two people trying to run lands, membership, band governance and elections, which is a lot. Despite these constraints, Council gets staff what they need to manage the land.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Council Putting Aside Land for Public Purposes

By setting aside reserve land for the school, the cultural grounds, an industrial and small business site and a burial ground, Council is implementing what amounts to a de facto land use plan.

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Being Given Authority to Manage the Land

The First Nation joined the Regional Lands Administration Program (RLAP) in the 1980s.

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Geographic Information System

The First Nation purchased a GIS and hired an assistant to gather all the information and do all the data input. The data needs updating since the assistant left because the Land Manager doesn't have time to do it. While short term proposals are good, ongoing maintenance is needed.

The First Nation has a high degree of control over this positive factor of its reserve land management.

5. Getting Around INAC Policies and Processes

For example, the First Nation decided to build an industrial and small business site and lease out space in that building. INAC wants a full scale designation for the land, which could take up to two years and delay the project by that amount of time. The land is community-held and the building and the businesses that will operate out of it will be community-owned. INAC insists that it has to be designated under the provisions of the Indian Act as it will be earning money for the community. Policies and processes are so cumbesome and so long that it hinders economic development within the community.

-28- Not leasing the land will allow the First Nation to get around the designation process, sign the leases for the rental space and collect the revenues. It plans to issue permits for parking, as it did for Bell Canada and Hydro One. While this issue is not yet resolved, Pikwàkanagàn representatives said "it wouldn't have happened if INAC was reasonable."

The First Nation has a high degree of control over this positive factor of its reserve land management.

6. Succession Planning

The First Nation put in place a four-year training plan for the Land Manager's successor and has recently sent out a poster to fill the position. Funding for this purpose was obtained from Ontario's New Relations Fund.

The First Nation has a high degree of control over this positive factor of its reserve land management.

7. Assistance with Proposal Writing

The Land Manager benefited from the assistance of the Funding Research Coordinator, a First Nation employee, in writing the proposal to obtain funding from the New Relations Fund. The Coordinator assists anyone who requires help in preparing a proposal.

The First Nation has a high degree of control over this positive factor of its reserve land management.

8. Building Relations with Senior INAC Regional Managers

The First Nation invited senior INAC regional managers up to the reserve, showed them around and told them about its plans. This has been done twice in the last two years and the First Nation would like it to become an annual event.

The First Nation has a medium degree of control over this positive factor of its reserve land management.

9. Waste Management Plan

The First Nation adopted a waste management plan that includes recycling, thereby saving potential land use for a landfill and contributing to environmental protection.

The First Nation has a medium degree of control over this positive factor of its reserve land management.

10. Environmental Assessments

EAs are mandatory now and are also good for environmental protection.

The First Nation has no control over this positive factor of its reserve land management.

11. Ontario Regional Lands Association

The First Nation's Land Manager is a member of this association, which is at the origin of the National Aboriginal Land Managers Association. -29- The First Nation has a high degree of control over this positive factor of its reserve land management.

12. Educated People who Work as a Team

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Pikwàkanagàn's reserve land Management, in declining order of importance

1. Lack of Meaningful Consultation by INAC

"We don't like being consulted by INAC", said the First Nation's representatives, "because they say they talked to us and then they ignore what we said." For example, on additions to reserve, "they sit in their ivory towers and dream up things that you just can't do on reserve."

The First Nation has no control over this negative factor of its reserve land management.

2. Devolution Without the Tools

To do the job that INAC has devolved to them, First Nations need training, funding, infrastructure and staff.

When Pikwàkanagàn joined RLAP it was given the equivalent of about four hours of funding a week, which was very minimal. The First Nation is now funded under the Reserve Land and Environment Management Program (RLEMP), which it feels it's being "forced" to join because it never adopted a Band Council Resolution (BCR) seeking to do so, so "why say we agree to it when we don't?", asked its representatives. Moreover, the First Nation feels it's being penalized by receiving 15% (about $3,000) less a year because it didn't pass such a BCR, but believes that $3,000 wouldn't cover the cost of assuming the additional responsibilities that participation in RLEMP entails, "because they [i.e., INAC] have devolved so much."

Moreover, because Pikwàkanagàn doesn't lease reserve land to non-members, today it receives only about $23,000 in annual land management funding, with which it "can hardly manage anything." In addition, the land base is so small that the First Nation either has no plans to lease it or, if it does, runs into problems of swamp land or land with no road access.

The First Nation has no control over this negative factor of its reserve land management.

3. Lack of Land

The First Nation lacks land both in quantity and quality i.e., most of it is rocks and swamp, "because that's what they [i.e., DIA) sold us."

One practical consequence of this is that houses on reserve have no foundation (which would need to be blasted through the rock, which is prohibitively expensive, or would quickly be flooded on swamp land). As a result, all the houses are built on cement slabs.

The First Nation has no control over this negative factor of its reserve land management. -30- 4. INAC Survey Policies

Pikwàkanagàn members can't afford the cost of surveys for their CP holdings, which INAC paid for until 2005. "Having two or three members building on the same piece of land without a survey will cause havoc," predicted Jan Leroux, Pikwàkanagàn's Land Manager. To illustrate how expensive Canada Lands Surveys (CLSs) are compared to Regional Survey Office surveys (RSOs), which INAC used to do until it stopped paying for them and started requiring CLSs, she said that a CLS for a half-acre cleared lot costs $4,500, whereas off reserve a two-acre bush lot can be surveyed for $1,200.

Moreover, "since 2005 surveyors have been doing paper surveys that don't put markings on the land, so people don't know where their lot lines are. This is going to balloon and intersect with estates", she concluded.

The First Nation has no control over this negative factor of its reserve land management.

5. INAC Estates Policies

"INAC is selling our land to the highest bidder and we have no say," said Mrs. Leroux. "They're selling homesteads out from under the families, without surveys and with undivided interests, which causes major problems for the management of our lands," she added.

The First Nation has no control over this negative factor of its reserve land management.

6. Lack of Infrastructure for Development

Pikwàkanagàn has no high speed internet connection, nor does it have a three-phase power line, so it can't bring in industry.

A major three-phase power transmission line goes through the community, but Hydro One initially refused to power it down to service the reserve. The First Nation replied that it was going to put its industrial and small business site, in which it hopes to attract a boat building factory, right under the line and would let Hydro One deal with the public relations fallout of refusing to service it. Hydro One said it would reconsider its initial response but that the First Nation would have to pay the cost of powering down the line.

The First Nation has no control over this negative factor of its reserve land management.

7. Lack of Multi-Year Funding

Pikwàkanagàn gets too much project funding from INAC and not enough core funding. The First Nation wants a commitment to multi-year funding. Also, funding should be received up front and not at the end of the fiscal year. The First Nation has a hard time covering expenses until the funds come in.

The First Nation has no control over this negative factor of its reserve land management.

8. Lack of Funds to Pay Our Staff

Pikwàkanagàn representatives said that "INAC doesn't give us enough money to pay our staff, so we have to use our own source revenues to recruit, retain and ensure the growth and development of both our staff and our community."

-31- "There is no comparison between what a federal reserve land manager and a First Nation reserve land manager receive. This is a big pay equity issue, and it's not limited to lands," they said.

The First Nation has no control over this negative factor of its reserve land management.

9. Lack of a Communications Strategy

Pikwàkanagàn needs a strategy to better manage its communications with both its members, on and off reserve, and neighbouring municipalities.

The First Nation has a high degree of control over this negative factor of its reserve land management.

10. Lack of a Land Use Policy or Code

Pikwàkanagàn's membership twice rejected a land use code in the last 10 years, but Council is thinking that it may need to reintroduce it.

The First Nation has a high degree of control over this negative factor of its reserve land management.

D) Pikwàkanagàn's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Pikwàkanagàn assesses its success as a 3.

2. Success in using its reserve land for economic development purposes

Pikwàkanagàn assesses its success as a 2.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Pikwàkanagàn assesses its success as a 2.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Pikwàkanagàn assesses its success as a 3.

5. Pikwàkanagàn's priorities for the management of its reserve land over the next five years

i) Choosing a path to manage the land, e.g., RLEMP, FNLM or Self- government, while ensuring that it retains its status as reserve land (i.e., Pikwàkanagàn does not support the First Nations Tax Commission's proposed First Nations Property Ownership Act)

ii) Obtaining more land through the land claim and ATRs (at least two and maybe more) -32- iii) Having somebody trained and qualified to take over the Land Manager's job

E) Pikwàkanagàn's Recommendations

i) Find a way around the need for surveys of reserve land by Canada Lands Surveyors to lower the cost

ii) Don't issue CPs. Allow your members to use reserve land but keep it as Band land so the community as a whole owns it. Use the land for community economic development, not individual economic development. INAC did it to us; we had no choice, so now we have to allot CPs because that's the trend here.

iii) Put in place your own land use plan; don't ask for INAC permission or approval, to avoid the bureaucracy's rules and regulations

iv) Keep looking, researching, trying different things and networking with other First Nations (because everything's been done or tried once) to do what you want to do. Don't take no for an answer from INAC, there's lots of expertise out there.

v) Plan to attract back your educated members

vi) Protect your land for future generations, be good stewards, don't sell it to non-Indians

vii) Try not to depend or rely on INAC or the Government of Canada

viii) Focus on larger projects and economic activities on a larger scale to have a broader impact than individual economic development efforts can have

ix) Build and lease facilities rather than land to retain control of the land rather than tying it up in a long-term lease

x) Have regular information sessions for your membership to ensure their continuing support for what you're trying to do

xi) Determine your own membership to save your reserve land to those of blood

xii) Build relations with INAC regional officials

xiii) Join a regional First Nation Land Managers Association

2. To be acted upon by the Government of Canada over the next five years to meet It’s commitment to modernize reserve land management

i) Drop the formula for funding and provide funding based on First Nations' needs. You need to provide a base to every First Nation to enable them -33- to provide services to their members. It needs to be enough to get First Nations started, not just maintain the status quo. If it costs INAC X amount of dollars to manage reserve land, maybe that's what First Nations should get. You're now funding to fail and that's what you're getting. For a small reserve it's impossible to run a lands program with the funding available. Devolution needs to come with the necessary tools, including financial ones. ii) You need flexibility to deal with the different circumstances of different First Nations. INAC has always tried to manage First Nations across the board and it's never worked, so stop doing it. iii) Stop penalizing success; encourage us to become more successful until we reach a certain threshold. For example, don't tell us "you can't have project money this year because you got some last year." iv) Facilitate the assignment of experienced INAC First Nation staff in their home communities v) Respect First Nation policies. For example, advise First Nations of land transfers, leasing or other land transactions by their members. vi) Allow the registration of liens on reserve land with copies if the First Nation doesn't have duplicate originals (e.g., because the bank has them) to prevent transfers from happening without the liens being satisfied vii) Start paying for individual holding land surveys again, because we can't manage lands without them viii) Clean up your mess before you give it to us, e.g., through FNLM or Self- government. This includes surveys, environmental issues (including contaminated sites) and estates (e.g., situations where 60 people have an interest in a parcel). ix) Work with us, not against us. You're supposed to be there to help us. Work for us before you work for the Crown. x) The Department of Justice (DOJ) needs to focus on solutions instead of obstacles. In other words, DOJ should tell us how to do what we want to do, not that we can't do it. xi) Amend the Indian Act to give First Nations access to a judicial system to enforce their laws, i.e., the provincial courts xii) Create the conditions for more INAC staff stability. The current situation is pathetic: we have to train them because nobody knows what they‟re doing any more, e.g., in estates. xiii) Bring technology to the First Nations that do not have it, i.e., hydro, three- phase power, fibre optic lines, etc.

Approved by Jan Leroux October 29, 2010 -34- BUFFALO POINT FIRST NATION

STATISTICAL INFORMATION

Location 202 km from Winnipeg, in the province of Manitoba, the nearest service centre to which it has year-round road access, Zone 2, i.e., rural

Population 50 members (48%) on reserve, 59 members (52%) off reserve, total 109 200 non-member residents on reserve

Reserve land 4,030.26 hectares (9,959 acres), two reserves, waterfront

Reserve land management legislative and regulatory framework Reserve Land and Environment Management Program (Delegated Authority)

Reserve land management staff membership in a professional association No

Property taxes Yes (Assessment Fee)

Community Well-Being Index* 77

Parcel Fabric Index** N/A

Active registered transactions 546 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 0 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATERNS

0.14% Designated Land 10.00% Leases* (794 acres) 7.97% Unregistered Band Use 7.97% Lands** (17 acres) 0.14%

Community Infrastructure Lands*** (about 995 acres) 10% Unused Band Lands 81.89%

81.89%

* South Shore (100 acres), East Shore (300 acres), golf course (200 acres), condos (15 acres), resort/marina (20 acres), office (2 acres), maintenance and fire hall (2 acres), individual home ownership (155 acres)

** Section 95 CMHC Act housing

*** Burrow pits, sanitary landfill, sewage lagoon and roads -36- BUFFALO POINT FIRST NATION

INTERVIEW REPORT

August 25, 2010, 8:30 AM to 12:00 PM

Chief John Thunder Herman Green, Councillor

A) Buffalo Point's Reserve Land Management Experience

The following 26 key events or periods were identified.

1. Treaty 3 and Reserve Creation (1873)

The route that the Anishinabe used to move north and west into the Red River was through Buffalo Point and the Reed River, and was explored by La Vérendrye and Gauthier after establishing Fort St. Charles in 1732. In 1857, Gladman, Hind and Dawson explored this route with the assistance of the Anishinabe.

It was thus with the Anishinabe of Buffalo Point that the Canadian government first sought to sign a treaty to open up the West to settlement in 1870, but Chief Ayashwash refused. The Treaty Commissioners moved west and signed Treaty 1 at Lower Fort Garry in 1871 and Treaty 2 a few weeks later at Manitoba Post. In 1873 they circled back to Buffalo Point and "got us to sign because of starvation," according to Chief Thunder.

Treaty 1 and 2 First Nations had received 160 acres per family of five, as would Treaty 4 and 5 First Nations. Treaty 3, 6, 7, 8, 9, 10 and 11 First Nations got 640 acres (i.e., one square mile) per family of five. This was the same amount of land that the US government was providing under the Homestead Act and that the Canadian government was giving immigrants at the time. The Chiefs who would eventually sign Treaty 3 were in attendance during the negotiation of Treaties 1 and 2. They had heard the Chiefs who signed Treaty 1 ask "As you treat us, will you treat others?" and be told "Yes" by Governor Archibald. It was therefore clear that this promise had not been kept and Buffalo Point First Nation raised the disparity issue during Treaty Land Entitlement negotiations in 1994. According to Chief Thunder, the fact that Treaty Commissioners went back to 160 acres per family of five in Treaties 4 and 5 proves that "they knew they were screwing these Indians out of their land."

The treaties were supposed to make the Indians into farmers and provisions of a plow, oxen and farming implements were furnished. An area at Buffalo Point was fenced off, Jesuit priests planted vines and cattle were raised for about 10 years. The barbed wire fence and the reminiscence of a pasture are still in existence today, as is the one furrowed plow. The experiment was abandoned once the reality that this was "an all sand peninsula and it couldn't be done" sank in, said Chief Thunder.

2. Rollerway Dam Construction (1887)

The dam was intended to power up the Keewatin lumber yard and gold mining operations, and it flooded the Lake of the Woods.

-37- The wild rice that grew in the lake was also flooded and "the life of the First Nation was displaced," according to Chief Thunder. Today, 123 years later, it's being compensated, "but it took a court case to get it going."

Forty-two children died from starvation and disease after the flood, which represented a 75% mortality rate among the children. "Our population would be three or four hundred today if those children had lived," said Chief Thunder. In 1916 there was a total of 57 members, which was the highest count in the early years.

3. Last Inhabitants Move Away (around 1927)

The Buffalo Point peninsula was cut off by the risen waters of the lake and by the end of the 1920s everyone had moved off the reserve onto the mainland because of the difficulty and remoteness. Many eventually dispersed throughout the U.S., with some staying on the Canadian side.

The reserve sat vacant for 50 years. The land was still used for logging, berry picking, trapping, harvesting, hunting and fishing, but nobody lived there.

In 1929 Indian Agent Edwards came to the Point and noted the presence of three houses and numerous graves that had been washed away, and one hundred acres of hay land, all of which he valued at $800.

4. Land Exchange (1930)

The reserve lands that had been flooded had not been expropriated and Chief Old Jim Thunder spent many years asking for compensation. In 1930, 43 years after the fact, he succeeded in getting the reserve re-surveyed and exchanging the 1,670 acres of lands flooded at Buffalo Point for the same amount of new land at Reed River, which was transferred to Buffalo Point as their second reserve. The Chief was quoted as saying: "We want the water of Reed River so that we can trap a few muskrats and continue to live our traditional ways."

These new lands were held under a provincial certificate of title and not formally given reserve status until an addition to reserve in 1989. Buffalo Point First Nation therefore did not get the benefits flowing from reserve status for all those years. For example, in 1944 the provincial government kicked out the inhabitants of a log cabin at Reed River and burned it down. They gave Chief "Shorty" Warren Thunder $800 for doing that later on.

5. Grandma's Refusal to Send Dad to Residential School (around 1935)

The Indian Agent came to take Buffalo Point children to residential school. Chief John Thunder's grand-mother wouldn't let them do that and she moved off the reserve to the neighbouring town of Middleboro, where her son Jim and her other children attended the local white school. According to Chief Thunder, "that was the most important thing she did."

6. Sports Fishing Comes to Buffalo Point (1950s and 1960s)

The Lake of the Woods was teaming with fish and wildlife, and Buffalo Point became a popular spot with US fishermen, who mostly came for the walleye in the summer. A few First Nation members, mainly the Thunders, started talking about the possibility of developing the reserve as a tourist destination. -38- At about the same time, Canadian and US private interests expressed interest in buying the reserve. Hearing about this, Warner Jorgensen, the local Member of Parliament, and Premier Duff Roblin wrote to the federal government asking that the province be given the first opportunity to buy it. As a result, other First Nation members started taking an interest in the Thunders' development plans.

7. Provincial Purchase Offer (1967)

The Manitoba Government was still after Buffalo Point's land and in 1967 offered $72,500 for the primest site on the reserve, i.e., the southeast corner, comprising 968 acres. The Province was involved in the Palms to Pines Freeway Project, also known as the Mississippi Flyway or the Great River Road. Part of that plan was to take the reserve lands of Buffalo Point, two Northwest Angle Bands and two Shoal Lake Bands and turn them into a provincial park to capitalize on the expected increase in tourist traffic coming North. "Minnesota and Manitoba were on the bandwagon," according to Chief Thunder.

Tom Thunder notified his adopted son Jim Thunder, who was stationed in Africa with the US Air Force, about this offer. Jim Thunder took a week's leave of absence, came home and put a stop to the sale of the reserve.

8. Jim Thunder Becomes Chief (1969)

Chief "Shorty" Warren Thunder was in poor health and started talking to his nephew Jim about becoming Chief, as Shorty had never been married or had any children. After a couple of years Jim finally agreed and in 1969 became Chief with the support of the active community members. Shorty had his third heart attack and died in 1972.

9. Development Planning Begins (1970)

Band members now realized that there was value in their land and that it could be developed to build cottages, a marina, etc. Chief Jim Thunder started working on a comprehensive master plan (CMP). In 1970 a first community meeting on economic development was held with Ross and Partners in Shorty Thunder's house in Middleboro. Buffalo Point First Nation members started moving back to the reserve.

10. Road To Nowhere (1972)

A road linking the reserve to Highway 12 was a necessary precondition for implementing the CMP. During Jim Thunder's early years as Chief he was also Vice-President of the Manitoba Indian Brotherhood, along with President Dave Courchene. In 1972 Dave assisted Jim in getting the Department of Indian Affairs to build seven miles of road right- of-way on the reserve, at a cost of $55,000. The stumps were left in place, so the logs rotted because they couldn‟t be taken out.

The Department ran out of money and the road leading to the peninsula was never built. As Chief John Thunder put it, "they were dumb enough to set him up for failure? and when the money ran out, too bad." The unconnected road on the peninsula became known in the community as the Road To Nowhere.

Chief Jim Thunder realized that he was going to have to build the road to the peninsula himself and went to the bank to borrow money. The bank would not lend the money to the First Nation because it couldn't seize reserve land in the event of non-payment, but lent it to Chief Thunder personally, taking his trailer house, station wagon and boat as -39- security. This $10,000 personal loan built one mile of road leading to the peninsula from the highway.

11. Comprehensive Master Plan Completion (1974)

The CMP, which was prepared by four different companies of engineers, architects and consultants (PM Associates , W.L. Wardeop and Associates Limited, Garry Hilderman and Associates, and Architects Consortium), was completed in 1974. The whole reserve was designated for development through a community referendum that was unanimously passed by all present.

The CMP cost $100,000 and was jointly funded by INAC, the Department of Regional Economic Expansion-Special AHRDA, Manitoba Mines, Resources and Environmental Management, Manitoba Tourism, Recreation and Cultural Affairs, and the Manitoba Indian Brotherhood. It is still used to this day.

12. Competition from the Provincial Government and Lack of Support from the Federal Government (1974-75)

The Province took the Buffalo Point CMP and used it to build a hotel and golf course in Hecla Island Provincial Park, which Chief John Thunder described as "a privatized white elephant that the Province gave away and still funds. This is unfair competition, because it's subsidised and advertised by the provincial government, which denies Buffalo Point the same treatment."

Moreover, he said, "we lease cottage properties and campgrounds, so they lease cottage properties and campgrounds. We build boat docks and a marina; they build boat docks and a marina. Everything we do, they do."

„‟And everything we do, there's a conflict of interest," he continued. "It's illegal in the US to regulate the competition, but Manitoba does it. They denied us on the casino, but they have a casino. The federal position is a cop-out: If you want gaming, go to the Province because we gave them that jurisdiction."

Chief Thunder contrasted that position with the federal position on the Manitoba Retail Sales Tax Act: for two years the federal government stopped the First Nation from converting the Provincial Sales Tax to a Buffalo Point First Nation Sales Tax, "so the feds speak out of both sides of their mouth: they say they won't intervene in provincial jurisdiction over gaming, but they do so for the sales tax. So they're picking and choosing. It's always the same game, just another means of preventing First Nations from moving forward."

13. Cottage Leasing (1976)

Soon a number of Canadian and US investors started showing interest. Chief Jim Thunder selected 21 investors from the neighbouring town of Steinbach who formed the Lake of the Woods Investment Group and leased 100 acres on the South Shore of the reserve for cottage development. The agreement also provided that Buffalo Point had to build a marina within two years or the Steinbach investors would get another 100 acres to open a marina of their own.

The investment money was used to finish the road from the highway to the peninsula and to the investors' leased property. The First Nation then opened up is own sub- -40- division on the East Shore, called the Buffalo Point Cottage Development, to which it also extended the road.

14. Competition with Our Investors (1977)

Seventy-five lots on each of the two sub-divisions had been leased out in the first wave. The end of the Vietnam War in 1975 had been a huge economic stimulator and the economy was booming, to the point that Chief Thunder said he "hasn't seen anything like it since."

"With that money in the bank," he explained, "we dredged the harbour to build the marina." The Thunder family was given an opportunity to open the marina and resort by the other members, as no one else showed any interest. The marina deadline was met and the agreement fulfilled to the investors' satisfaction.

The revenues from the cottage leases from Block A on the East Shore also brought the needed revenues to build the community and its infrastructure, as well as the construction of Phase 2 of Block B.

15. First Full Year of Operating the Marina (1980)

"It was a modest beginning: one dock and a little old bait shop," said Chief Thunder, "but we kept adding to it every year. Today we have 350 docks, 200 recreational campsites and 24 cottage rentals."

16. John Thunder Comes Back From College (1983)

John Thunder took over as Band Manager and economic development started to take off. The First Nation had been doing all of its own building, including making its own wood products in a one-man sawmill built and operated by Chief Jim Thunder, and needed to replace all of its heavy equipment.

Over the years the First Nation built up its services to both its members and its tenants, starting with a Maintenance Yard and a Fire Hall in 1984. INAC refused to fund the fire hall but paid for a fire truck. This was the second concrete thing INAC paid for after the Road to Nowhere. According to Chief Thunder, INAC also paid for "19 studies since 1969 but most of them came to nothing," with the notable exception of the CMP.

Buffalo Point also built a Police Office and an Administration Office in 1998.

17. Tornado (1989)

The First Nation made an application to INAC to fund the construction of a Government Centre, which INAC rejected.

A tornado came through the reserve and caused "quite a bit of havoc," according to Chief Thunder. The First Nation made an application to INAC to fund the construction of a storm cellar in the basement of the Government Centre, where community members could find shelter in similar circumstances. INAC rejected that application as well and the First Nation took out a $150,000 loan to build the Government Centre and the storm cellar.

18. Buffalo Point Starts Selling Hunting Licences (late 1980s) -41- The Province said the First Nation had no right to do so, but they did it anyway. The First Nation said that Treaty 3 reserved their right to hunt and fish on their traditional territory and asked the Province what was the legal basis of the right it claimed to sell licences to hunt and fish on that territory. The Province didn't answer the question.

19. First Attempt at Taxation (1992)

As Band Manager, in 1992 John Thunder prepared an Economic Impact Study with the assistance of a University of Manitoba student funded by the Canadian Executive Service Overseas and used it as a basis for a proposal to the Province for a Taxation and Natural Resource Revenue Sharing Agreement. The Province rejected the proposal.

The First Nation opened a lumber yard on reserve and started collecting a First Nation Sales Tax (FNST) in place of the Provincial Sales Tax (PST) in 1992. The Province sued the First Nation for the latter. The First Nation was found guilty and fined $1,200. An audit later found that it owed the Province another $3,000 in PST. At the court hearing, the First Nation argued its right to collect the FNST based on the reports of the Royal Commission on Aboriginal Peoples and the Manitoba Aboriginal Justice Inquiry. While sympathetic, the presiding judge said all he could do was apply provincial law.

20. Second Attempt at Taxation (mid-1990s)

Paul Martin was the federal Finance Minister at the time and "must have picked up on this as a way to get First Nations to pay tax," according to Chief Thunder, because not long after Ken Medd and Brant Almond from Revenue Canada started selling the idea of a First Nations Sales Tax to replace the PST. Chief Thunder participated in these discussions but was not impressed with what the federal government was offering: "sign an agreement limited to gasoline, tobacco and alcohol now (i.e., around 1996) and we promise we'll sign an all-inclusive agreement next year," said Revenue Canada.

Buffalo Point signed the limited agreement and collected $12,000 in taxes on gasoline, tobacco and alcohol in the first year of its implementation When asked about the all- inclusive sales tax agreement the following year, Revenue Canada said "we're not ready, it'll be next year." This same conversation went on for six years.

Around 2000 Revenue Canada came up with a population-based formula that Chief Thunder refused to sign, because in his view "population won't get the job done." The Chief "hounded" Ken Medd on this issue "for years and got him to admit in 2009 that it was a dead-end road and would provide neither the appropriate rewards and incentives, nor the necessary revenues, because it doesn't matter how much business you generate or how much sales tax you collect, you're going to be capped based on your population. That's got INAC written all over it," according to Chief Thunder. Buffalo Point can‟t wait and listen to broken promises any longer. It is therefore moving ahead and setting up its own tax regime.

21. John Thunder Selected as Buffalo Point's Sixth Hereditary Chief (1997)

22. Sewer and Water Study (1998)

This project is also part of the proposed facilities under the Comprehensive Master Plan. The sewage lagoon was built in 2005 and the sewer system was hooked up that same year. Buffalo Point applied to INAC for funding for a water treatment plant but was -42- turned down through a letter from Minister Strahl saying that "your private enterprise" doesn‟t qualify for infrastructure funding.

Chief Thunder said that businesses owned by the federal and provincial government are given Crown Corporation status, which comes with certain special rights and privileges. In contrast, the federal and provincial governments identify businesses owned by First Nation governments as "private" and refuse to give them the same treatment as Crown Corporations. This, in the Chief‟s view, illustrates an unacceptable double standard.

Chief Thunder wrote back to the Minister that the water treatment plant was also needed to meet the needs of First Nation members, whose individually drilled wells would be easy to contaminate by someone with malicious intent, in which case he would hold INAC responsible. The Chief explained his concern by saying that the First Nation is being sued by some of its own members and that he has brought to the attention of Minister Vic Toews, the local Member of Parliament, and the RCMP that "some individuals are trying to sabotage our community." He also noted that "some members don‟t have the mental capacity to understand what they‟re doing."

Chief Thunder added that INAC‟s use of population-based formulas to determine funding levels for First Nations penalizes Buffalo Point for the small size of its population. This also illustrates a double standard, he said, because Manitoba has received special consideration from the federal government as a "have-not" province and because of its small population in the form of equalization payments since the 1950s. "Should First Nations not expect to have the same fair treatment for our communities?", he asked.

23. Building the Hotel Resort (2000-2010)

The Hotel Resort is the last phase in the Master Plan, which is to include a Hotel, Conference Centre, Health Spa, Gaming Room, Recreation Centre, Daycare, Restaurant, Lounge fact Clubhouse and was supposed to be completed after 25 years, i.e., in 1999. Work in fact started around 2000: a road was built, electricity was put in, the site was cleared, shoreline reclamation was completed and a first wing of the hotel and an island green for the golf course were built. The First Nation spent about $600,000 in blueprints for this project over 10 years.

Financing was and remains a major problem, which is why what was supposed to be a 25 year CMP is still not completely implemented 36 years later. The First Nation spent $45,000 in application fees to three financial institutions, all of which rejected the Hotel Resort project. The Royal Bank and the Canadian Imperial Bank of Commerce had both received a Loan Loss Reserve (LLR) from INAC, which was supposed to facilitate First Nations' access to capital, but still turned it down in 2010. Buffalo Point then did another two months of due diligence, including audits and business plans, with the Assiniboian Credit Union (ACU), which also rejected the proposal, saying "we didn't use the LLR because we thought your project can stand on its merits." Chief Thunder was very angry and told the ACU representative: "I'm leaving, because if I say I'm going to say something I'm going to regret." He explained that HLT Advisory, a hotel consulting company based in Toronto, had produced a study saying that Buffalo Point‟s project wasn‟t viable and "sabotaged our hotel by doing a bogus study" commissioned by people who were "jealous of our success."

Chief Thunder‟s anger was also directed at INAC, first because "nobody talked about the LLR at the engagement session in Toronto in 2009" on the new Federal Framework for Aboriginal Economic Development. "Financial institutions can't lose because of the LLR," he said. "The federal government should protect the reserve status of First Nation -43- land, whatever you're going to develop on it. In his view the First Nations Property Ownership Initiative put forward by the First Nations Tax Commission is “economic suicide.” He believes that in time First Nation reserve land will be recognized as more valuable than fee simple land because it can‟t be sold. Generation after generation will be able to enjoy the financial benefits of leasing, which will ensure a stream of revenue and cash-flow in perpetuity. "Selling fee simple land is a one-time shot," he said, "while we think of the next seven generations and leasing will generate more revenue than fee simple in the long term."

The Chief added that “the $9 billion a year Indian industry is about getting money in the hands of anybody else but First Nations. That $9 billion works out to about $80,000 per person, but at the Band level we only get $20,000 per person, so $60,000 is pissed away. That's why First Nations look like they do, why they're in third-party management and poverty."

"INAC is trying to put us in third-party management," the Chief continued, "because we have a 54% deficit. We have $40 million in assets and we owe $3.7 million. Anywhere else in the world we would be looked at as a role model and an economic development generator. There's no problem to be rectified, because our liabilities are offset by our assets to give us our net worth. We're sitting better than anybody else out there. In the old days our auditors told us to write off our assets as soon as possible and get them off our books. This is cock-eyed and backwards. Assets should be highlighted to be able to borrow."

First Nations don‟t get the same access to low cost borrowing as municipalities, said Chief Thunder. Buffalo Point pays $633,000 annually in interest fees. If it was treated like a municipality for borrowing purposes, it could save at least $233,000 in annual interest payments and wouldn‟t have to constantly worry about cash flow problems.

24. Golf Course Opens (2000)

The First Nation had taken out various loans totalling $700,000 after Manitoba had rejected its proposed Taxation and Natural Resource Revenue Sharing Agreement in 1992. It borrowed an additional $900,000, for a total of $1.6 million, in 1993 to begin work on the golf course, which opened seven years later.

25. Third Attempt at Taxation (around 2007)

After Buffalo Point had rejected the population-based sales tax agreement proposed by Revenue Canada, the Province of Manitoba had said that it was interested in converting the PST into a FNST and had asked the First Nations for two months to get ready to negotiate an agreement. After two months the First Nation went back to the Province, which "refused to honour its commitment," according to Chief Thunder, "because Revenue Canada says we can't do it because there's federal legislation."

After Revenue Canada admitted that the population-based formula was a dead end, Buffalo Point reminded the Province of its commitment to negotiate a sales tax agreement and provided it with a schedule by which it was going to implement the Buffalo Point Sales Tax (BPST) to replace the Manitoba PST. The Province "never came up with the agreement they had promised, so we just started doing it," said Chief Thunder.

"The Province always says we have no obligation to you because you're a federal responsibility, so why should we have any obligation to them, like selling their fishing -44- licences or collecting their taxes?", he asked. "They get transfer payments from the federal government based on population and counting First Nations people. White people live here and we provide services to them (roads, garbage collection, a sewage lagoon, etc.) but they don't get to be counted as our people, so we lose lots of money and we have to pay for Canada and Manitoba's expenses. INAC has refused time and time again to do anything about this, even though it's unjust. These systemic programs by government are the same as a form of systemic racism," he concluded.

Chief Thunder stressed that, like other First Nations, Buffalo Point has to address all these challenges, which he described as "a collective of chaos," at the same time and that "we have to educate our people on the government regime to go where we want to go. Nobody's there to help us with all these injustices."

"Imagine a ladder," he continued. "The federal government is on the top rung, the provincial government is one rung below the federal government, and the municipal government is one rung below the provincial government. The municipal government has its authorities and jurisdiction under the Municipalities Act, but First Nations only have the Indian Act, which is economic suicide, pure and simple. First Nations are therefore way down at the bottom of the ladder. I want to place my community on one of those rungs at the top of the ladder. We should at least be parallel to the provincial government and definitely deserve to be a hell of a lot more than what we are."

"How hypocritical is it to build a Human Rights Museum in Winnipeg and say you Indians stay in poverty and we‟ll cap you at every opportunity based on your population?", asked Chief Thunder. He explained that, as a result of the difficulties Buffalo Point encountered in financing the hotel, some of the apartments that had been funded by the Canada Mortgage and Housing Corporation in anticipation of the hotel being built were unoccupied. Rather than leaving them empty, the First Nation proposed renting them out to non-members, but CMHC refused. "That‟s INAC to a T," he said. "You can‟t make money. Every time we try to do something, some government agency prevents us. If things don‟t change, there‟s no way the Third World conditions in First Nations are going to change."

26. End of DFO Case (2010)

The Department of Fisheries and Oceans had charged the First Nation in 2005 with destroying fish habitat as a result of the construction of the island green. Buffalo Point had responded that it was creating a better fish habitat because of the shoreline reclamation protecting its land, businesses and infrastructure, of which the island green was a part. It had been built on top of a sand bar and the workers never had to go in the water because the work was done at a time of low water levels. When the water had returned to Manitoba Hydro (as opposed to natural) levels, DFO had complained but dropped the case after forcing the First Nation to spend $250,000 in legal costs and three years of effort.

B) The main factors that contributed positively to Buffalo Point's reserve land management, which are all necessary and presented in the order in which First Nations need to work on them to achieve independence

1. Education

As a result of his mother's refusal to send him to residential school, Chief Jim Thunder's education was a positive experience. "He wasn't forced to be or do someone or -45- something he didn't want to be or do and he wasn't treated in an abrasive way," according to his son John Thunder.

Today Buffalo Point has nine kids in university but only gets $66,000 from INAC for post- secondary education, so the First Nation is subsidizing more than 50% of the cost of their education.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Hereditary System of Leadership

Chief Thunder believes that "First Nations should quit holding popularity contests. Leaders should be raised to be leaders and there should be standards and qualifications."

"People weren't living here," he continued, "so the Indian Agent couldn't whip them into the Indian Act election system. This provided continuity and consistency in our leadership, which is important because in elections you don't know what's going to happen in the future."

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Location, Location, Location

The First Nation has a high degree of control over this positive factor of its reserve land management, because its ancestors selected where to place the reserve by Treaty. They were nomadic and Buffalo Point was a summer gathering place.

4. Quality of the Land and its Resources

Buffalo Point has good quality land, with nice beaches, clean water and clean air, which is why "we sell environment to cottagers and tourists," said Chief Thunder.

The First Nation has a high degree of control over this positive factor of its reserve land management, since the resources came with the land it selected.

5. Financial Sustainability

Chief Thunder defined this factor as "the ability to use your land and resources as an economic stimulator to give the First Nation's membership and government the resources to manage and sustain themselves."

The First Nation has a medium degree of control over this positive factor of its reserve land management, because "INAC never funded us adequately and never will, and there are too may impediments to developing the land, like taking five years for a designation."

6. Community-Approved Vision

Buffalo Point's membership approved the vision in its Comprehensive Master Plan. In Chief Thunder's view, "no Chief should be allowed to divert from the community- approved plan and every Chief should be required to fulfill that mandate."

-46- The First Nation has a high degree of control over this positive factor of its reserve land management.

7. Economic Understanding

"You need to know what tools to use to create an economy," said Chief Thunder.

The First Nation has a high degree of control over this positive factor of its reserve land management.

8. Land Management Skills

Buffalo Point was one of the first 12 First Nations to "get out of the Indian Act land management system under Sections 53 and 60," said Chief Thunder. As Band Manager, he took eight months of land management training around 1987 under "the INAC Certificate Program."

Chief Thunder explained that, in the pre-FNLMA days, INAC had prepared a Chartered Lands Act, the first draft of which provided that reserve land could be sold. That draft was offered to a group of First Nations that included Buffalo Point, who said no. The other fourteen First Nations ripped up INAC‟s draft, revised it and continued the discussions that eventually led to the Framework Agreement on FNLM. Buffalo Point therefore could have been one of the original FNLM First Nations and Chief Thunder said he now regrets it.

Buffalo Point had designated the whole reserve in 1973 in an effort to start economic development. After the 1984 Supreme Court of Canada decision in the Guerin case, INAC was concerned about getting sued and wanted to protect itself by de-designating all the undeveloped lands. Chief Thunder agreed but later regretted it, as the process of de-designating the undeveloped lands and designating lands for the hotel and golf course took five years to complete. This "proved that staying in the Indian Act and allowing INAC to manage our land was detrimental," because a good majority of the time a five year delay would mean that a business would never get off the ground because the investors would walk away.

Buffalo Point since applied for entry in the FNLM regime, but "we're way down the bottom of the waiting list," said Chief Thunder. As a result, Buffalo Point is now considering self-funding its participation in the FNLM regime. Chief Thunder noted that it was unclear whether Ministerial approval would be required in this scenario.

The First Nation has a high degree of control over this positive factor of its reserve land management.

9. Independence

Chief Thunder described this factor as "the antidote to the begging the Indian Act forces on First Nations." He recalled that in the early days after contact "some First Nations didn't like rations and the idea of being supported by anybody else. That has been lost. We need to get back to the level of pride of Anishnabe people, as inherent people to this land, and we're 80% there."

As examples of Buffalo Point's regained independence, the Chief said that the First Nation

-47- - is working on a Natural Resources Program,

- relies on the strength of its Treaty,

- is encouraged by international support for First Nations managing their lands and resources, and

- has assumed jurisdiction over income tax for both member and non-member residents on reserve.

Elaborating on this last point, he added: "Revenue Canada says a First Nation can only get jurisdiction over income tax through a Self-Government Agreement, but the INAC Regional Office has been refusing us a Self-Government Agreement for the last 20 years. I told Ken Medd „‟you agreed we have a right to tax, period,‟‟ which means land, sales and income taxes. INAC plays the game of telling us we can only have this tax, but not that tax. That tells me that the federal government wants to have control and to undermine First Nations' ability to take care of them. Anything Revenue Canada or INAC does always comes back to haunt us."

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Buffalo Point's reserve land management, the first one of which is the most important while the others are less but equally important

1. The Indian Act and INAC

The First Nation has no control over this negative factor of its reserve land management.

2. The 1930 Natural Resources Transfer Agreement (NRTA)

Chief Thunder said that this federal-provincial agreement was "a major detriment to First Nations because it has taken away our ability to not just feed our communities, but to add value for the benefit of our governments. Canada erred in giving away our resources without any consultation. Only when we have control over the natural resources of our traditional territory will we be able to generate the revenues we need to sustain ourselves and manage our affairs into the future."

The First Nation has no control over this negative factor of its reserve land management.

3. Not Being Able to Control Its Reserve Land and Traditional Territory

According to Chief Thunder, because of the NRTA "the Province has become a party to our Treaty, which is why it's so much of a problem getting more Treaty land."

The Chief pointed to the railway as another example of the First Nation's inability to control its land, saying that "CN shuts down our community 12 times a day for 15-20 minutes at a time. This community is totally trapped. An axle broke off the train and CN shut us down for 24 hours. There was a derailment in Middleboro, but had it happened half a mile earlier our community would have been shut down, with no way to get us out by land. We've talked about it for years and years, but CN doesn't give a shit. They hurt our community, they benefit and we get nothing."

-48- In addition to the railway tracks, the Buffalo Point reserve has a hydro-electric transmission line and a gas pipeline and reservoir. For these reasons, "this is the single most revenue-generating place in all of Manitoba," according to Chief Thunder, "and we get nothing because the transmission line was grand-fathered in, says Manitoba Hydro."

"We want to identify our traditional territory and our resources," he continued, "and what we're going to get. We want our own

- hunting licences,

- fishing licences,

- stumpage fees,

- mineral rights,

- sub-surface rights,

- land use permits and leases,

- selling of resources and water, and we want to identify what piece of that action we get from our traditional territory."

Referring to the capital gains tax, the Chief asked: "Why should the federal government get 20% of the price for this land? That should go to Buffalo Point. INAC says we have to build our own infrastructure. I don't have a problem with that, but we need access to resources like all other governments in the world."

The First Nation has a medium degree of control over this negative factor of the management of its reserve land and traditional territory.

4. Finance

Chief Thunder defined this factor as "the lack of ability to borrow money against capital assets with favourable terms and conditions. Banks won't touch most First Nations, so INAC sets up Aboriginal Capital Corporations. They say „‟you're a risk, so you have to pay high interest rates, like 10%.‟‟ The Human Rights Museum in Winnipeg raises funds, so it's subsidized, it's not made into a risk. We get set up to go to the sharks. We get set up to die."

"The Treaties were supposed to give us a share of the resources of the land, but instead we get programs and services," added Councillor Green. "This is a great manipulation tool against our sovereign rights to self-regulate and manage our affairs."

The First Nation has no control over this negative factor of its reserve land management.

5. Lack of an Environmental Protection Process for Reserve Land

"Environmental protection is a must," said Chief Thunder, "but there's way too much added cost. INAC has spent money on environmental audits in our community on lands that are as natural as they were on Day One. Private sector companies wouldn't survive this."

-49- “Our philosophy on land and how we care for and use Mother Earth is important and permeates our governing systems for land," added Councillor Green. "The Indian Act has no concept of Mother Earth as being animated and alive, and having a spirit."

The First Nation has no control over this negative factor of its reserve land management, which contradicts its cultural concept of land.

6. Lack of Enforcement

"In order to deal with the growing pains that come from economic development, we have 21 by-laws," said Chief Thunder", and 19 of them are from 1976. Not one of them has ever been enforced because there is no magistrate, ombudsman or other judicial process to do so. If an ATV rips up our golf course, we can only take him to Provincial Court, where it would cost us $5,000 to impose a $500 fine."

The First Nation has a very low degree of control over this negative factor of its reserve land management.

D) Buffalo Point's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Buffalo Point assesses its success as a 4.

2. Success in using its reserve land for economic development purposes

Buffalo Point assesses its success as a 4.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Buffalo Point assesses its success at 1.5.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Buffalo Point assesses its success as a 5, because its houses are on Band land and its building its own trails and issuing its own hunting and fishing licences.

For example, it has a bear baiting program and charges hunters $3,000 to kill a bear.

5. Buffalo Point's priorities for the management of its reserve land over the next five years

i) Complete the new Master Plan, which has been in the making for the last two years and will be worth about $300 million over the next 30 years. The First Nation is fine tuning it with PM Associates and Hildemans, two of the original consulting firms from 1974, to ensure continuity and consistency.

-50- ii) Get out of the Indian Act. "We want total independence," said Chief Thunder. "I don't want your money, I don't want your help, all I want you to do is get out. In 2015 we're hosting a Contribution Burning Ceremony and will no longer accept Band Support and Operations and Maintenance Funding. We'll keep Welfare, because INAC started it, Health and Education, in other words all funding tied to personal rights, but we'll have our own tax regime, our own Natural Resources Program and our own revenues for our collective and government rights."

E) Buffalo Point's Recommendations

i) "Respect us and know what we're doing," said Councillor Green. Chief Thunder explained: "I've consulted about 50 First Nations across Canada to let them know what we're doing. There's a lot of jealousy and hearsay coming from some First Nations, the same First Nations who don‟t have access to resources and continue to accept only what INAC provides in funding. Those First Nations don‟t get anywhere fast with that approach, as they do not develop their own First Nation capacity.

ii) Go back to your traditional forms of leadership, or at least extend terms of office to four years, because the three year compromise makes no sense

iii) Have a community-approved Master Plan and ensure that every leader has the mandate of fulfilling it

iv) Generate your own revenues and get out of the Indian Act. When you have your own revenues, you have your own self-government. Forget about negotiations, just do it. It‟s easier to ask for forgiveness than permission. We‟re probably the only community (not just First Nation community) that makes more money for Manitoba and Canada than what we get from them. That‟s changing now, because we‟re clawing back. In the last 33 years Canada and Manitoba have taken $25 million out of Buffalo Point, including $3 million in fishing licences. During this period we received $4.2 million in federal and provincial assistance, most of it ($2.4 million) from the Province to blacktop the road from Highway 12 to the marina. Gary Fillman stepped up to the plate and the Province made money off of it through PST and income tax, because half our employees are white, and fishing licences. Buffalo Point protects and manages that fishery, but the Province, which used to sell its fishing licences in the US, just puts that money in its coffers.

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Allow each First Nation to move forward at a time and pace of its own choosing

ii) Implement the 1994 Framework Agreement between Minister Ron Irwin and the Assembly of Manitoba Chiefs (AMC), in which First Nations defined their constitution, and “Whabung: Our Tomorrows,” the self- -51- government template tabled by the AMC in response to the 1969 White Paper. “Everything that pertains to self-government is there, implement it,” said Chief Thunder.

Referring to the funding that was made available at the time to implement the 1994 agreement, he explained that “Treaty 3 First Nations took the money and hired teams. Each team visited five communities and carried them through the process of defining what self-government would look like.” Noting that all of that work had come to nothing, he concluded that “every time we do something, Canada defines it and demeans it, pulls the rug out from under our feet and chucks it down.”

Iii) Stop spending time and money talking to national and regional First Nation organisations and Tribal Councils. Talk instead directly to First Nations and redirect those moneys where they belong, i.e, to the descendents of those with whom you signed the treaties. iv) Stop Indian economic development moneys to prop up Aboriginal businesses and redirect those moneys to First Nations as well

Approved by Chief John Thunder October 20, 2010 -52-

CHAPLEAU CREE FIRST NATION

STATISTICAL INFORMATION

Location 200 km from Timmins, in the province of Ontario, the nearest service centre to which it has year-round road access, Zone 2, i.e., rural

Population 101 members (25%) on reserve, 300 members (75%) off reserve, total 401 Approximately 30 non-member residents on reserve

Reserve land 1,036 hectares (2,560 acres), two reserves, woodland

Reserve land management legislative and regulatory framework Indian Act

Reserve land management staff membership in a profession association No

Property taxes No

Community Well-Being Index* 82

Parcel Fabric Index** N/A

Active registered transactions 8 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) as of March 9, 2010

Active registered Certificates of Possession (CPs) 14 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

97.58% Certificates of Possession (14 acres) 0.55% 1.05% Certificates of Occupation (27 acres)* 1% Surveyed and Serviced Lots (9 acres)** 0.04% 0.04% Un-registered Band Use 0.47% Lands (12 acres) 0.47% Unused Band Lands (2,498 0.55% acres) 97.58%

*To be converted to CP once the mortgage is paid off **Available for housing -54- CHAPLEAU CREE FIRST NATION

INTERVIEW REPORT

September 7, 2010, 9:00 AM to 12:30 PM

Brian Edwards, Band Administrator

A) Chapleau Cree's Reserve Land Management Experience

The following 10 key events or periods were identified.

1. Treaty 9 (1905)

Chapleau Cree First Nation (CCFN) is originally from the James Bay area, from which it migrated down to the Chapleau area. When Treaty Commissioner Duncan Campbell Scott came to sign Treaty 9, he told CCFN that they were part of the Moose Factory Cree and called them "Moose Factory Crees at Chapleau."

Treaty 9 said that First Nation signatories would get no more than one square mile for each family of five. CCFN got 160 acres. The reasoning behind that number is not entirely clear and is currently the subject of Treaty Land Entitlement negotiations, but is likely based on the idea that "these people have land up there."

Indian Reserve 74, the original CCFN reserve, was very harsh and inhospitable, as it was under water most of the year. For these reasons, only three houses were ever built there.

2. CCFN Disperses (around 1940)

A septic plant was built upstream, which led to raw sewage floating by the reserve, making it totally uninhabitable. Everybody moved off the reserve shortly afterwards. CCFN, which was still considered the "Moose Factory Crees at Chapleau," ceased to exist, as its members were all living elsewhere, i.e., in Chapleau, Sudbury, Sault-Sainte- Marie and eventually right across Canada and as far as Australia.

3. New Reserve and Fox Lake Corporation (around 1991)

Some Band members came together in the mid- to late 1980s and formulated an approach to get new reserve land. An application was made to INAC and Fox Lake was determined as a possible site. Surveys and engineering drawings were done and lots were mapped out by INAC, which also funded the building of Fox Lake Road.

Indian Reserve 74 A was created around 1991, at which point lots were being cleared and houses were beginning to be built. The heavy equipment that had been used to cut the road in and build lots was turned over by INAC to Fox Lake Corporation, which was owned by the Band. The Corporation had operators and maintained the equipment, both of which it made available for rent for rock clearing, road building and house construction.

The business didn't meet expectations, as two other companies were doing the same type of work in Chapleau, so the market was saturated and Fox Lake Corporation couldn't compete economically.

-55- 4. Home Building Program (1991-1993)

CCFN members were offered an incentive to build their home in the form of a $34,000 ministerial loan guarantee (MLG), of which $10,000 needed to be repaid over 10 years. People could approach the bank for a loan based on the MLG, which was used as a collateral down payment.

Under this program the Band was hired to do the same sort of work as before, i.e., lots were cleared and basements were dug out, as were trenches for hydro, phone and water lines, and septic beds. CCFN members received training in construction trades at the same time as construction proceeded.

The $10,000 repayments on the MLGs went into a fund for new home construction. The fund is now smaller and provides a $20,000 subsidy of $10,000 in cash and $10,000 in kind, i.e., construction work by the Band. Contrary to the initial fund, no repayment is made to the new one, so it's dwindling because it's not being replenished.

There hasn't been a lot of construction work in the last 12 years because people aren't moving back (the population on reserve is pretty steady at about 100 residents, of which 80 are members) or, if they do, they occupy an existing home.

5. Fox Lake Corporation Disbanded (1995)

The Corporation's equipment reverted to the Band, which assumed its debt of about $500,000. Some of the Corporation's staff was kept by the Band and the equipment was used on reserve to clear lots and for training Native operators, both members and non- members, which was funded by INAC, either directly or indirectly through Tribal Councils. The equipment was also used for local maintenance, i.e., snow removal, opening up sand pits for local use and road maintenance.

A large steel garage of about 30,000 feet was built, the majority of which is rented out to a welding shop that is privately owned by a non-member, employs members and generates revenues for the Band.

There is not a lot of economic development activity on the reserve, but there are a lot of training programs to move into economic development, such as housing construction, chain saw operation, First Aid and heavy equipment operation. Most economic development projects on reserve are of a smaller scale.

6. Gas Bar Established (1996-97)

A little kiosk with a gas pump was initially established as a Band-owned business and still is, and it began to generate employment. Today it is the first source of revenue and employment on reserve, the Band Office and Band Health Office being the only other sources of employment.

The kiosk and gas pump expanded around 1998 and moved into a larger building with a small store and multiple pumps, including diesel, and more staff. It encountered some administrative problems and cash management controls were put in around 1999, following which it started showing positive revenues again.

7. Profit Centre Established (around 1999)

-56- This was an economic development centre that worked on training and economic development projects. Two mentors were associated with the Centre: a Band member with over 20 years of business experience and a non-member Native person with over 20 years of experience in economic development, specializing in traditional ecological knowledge. Three Band members were admitted as economic development trainees and each one was tasked with a project: a) managing the gas bar, b) managing a gravel pit that was established in 1998-99 with a tandem-axle dump truck that was used off reserve for construction of the local road towards Timmins, and c) working with the non- member mentor on ecological tourism and housing projects. “It was difficult to convince other Bands to get on board with ecological tourism and consolidate resources and funding sources, but we tried anyways.‟‟

8. Profit Centre Disbanded (around 2000)

After a year the Profit Centre was disbanded and one of the three trainees stayed on as the Band Economic Development Officer (EDO).

9. Debt Repayment and Exploring Options (2000-2005)

A new Chief and Council focussed on paying down CCFN's accumulated debt of about $1,000,000 with money received from the Rama Casino Agreement.

CCFN explored different economic development projects, including a cedar processing plant with seed money from Fednor and Ontario's Community Futures Development Program. A corporation in Moose Factory under the Mushkegowuk Tribal Council funded the feasibility study. The project's main drawback was that there is no method for regenerating cedar at CCFN's latitudes. Cedar grows wild in the area and takes a long time to do so. It's also considered a sacred plant, so a majority of the membership voted down the project in a referendum.

After the cedar processing plant was rejected, Fox Place, a hotel and conference centre, was considered, but it didn't go very far and never happened.

10. Hydromega Project (2000-2010)

Hydromega Corporation received permission from the Government of Ontario around 2000-2001 to approach four First Nations at the headwaters of the Kapuskasing River, including CCFN, which in turn gave Hydromega permission to continue their studies. Hydromega's approach was very environmentally friendly and innovative. The First Nations agreed with its economic development plan, which included revenue sharing and ownership by the First Nations of one of the four proposed dams, to be paid off with shared revenues over 20 years.

Discussions on the project are still ongoing after 10 years and construction will hopefully start in the spring of 2011, as the environmental studies have now been approved by the Ontario Ministry of Natural Resources, the First Nations and Environment Canada.

B) The main factors that contributed positively to Chapleau Cree's reserve land management, which are equally important and presented in a logical sequence

1. Education

"We understand the importance of education and are able to make sound decisions. We also understand the need to be prepared for unforeseen events, which is why we have a -57- financial reserve of $1.5 million. For example, if we want to build a Community Centre we understand and honour that we'll have to fund part of it.

We just purchased 160 acres next to the reserve with a lot of frontage on Fox Lake Road and we want it added to the reserve, as it represents a very good opportunity for existing and new businesses."

The First Nation has a low degree of control over this positive factor of its reserve land management, because "we take what's handed down to us by the funding agent, i.e., INAC. Our success rate is very good and the funding available and the changes being considered will have a huge impact on that success. We're upholding our end of the Treaty, but we get stuck with negotiation without representation, because we talk to INAC, they say they have to talk to Treasury Board and then they hand out to us what's going to happen."

2. Independent Attitude and Community Pride

"A majority of residents on CCFN's reserve were raised off reserve. As a result, they weren't exposed to the dependence of all the other reserves in this area that are taken care of by INAC. We're tightly knit and we share a sense of independence that we wouldn't have learned if we had been raised on reserve. We're not here to hold people up, we're here to give them a hand up. We expect everyone to take care of themselves and we have nobody on social assistance except the permanently disabled. We try to keep our employment within our membership, but that's not always possible, because we need specialized skills.

One thousand years ago we didn't have one one-hundredth of the luxuries we have now, yet we still survived then.

We could build a new strip mall to rent retail and office space.

We partnered with Sault College in Sault-Sainte-Marie and an independent consultant to offer a training program in green energy (thermal, wind and solar) for 10 First Nation trainees. We want to take that education to build about four stay-over cabins on Fox Lake with green energy. The bottom end of the new property abuts a small lake and we want to market those cabins for use by tourists, visiting off-reserve member and special event organizers.

The CCFN Band Administrator has past experience with event management. In 2009 CCFN hosted the Nishnawbe Aski Nation's annual Keewaywiin Conference and in 2010 it hosted the seven Mushkegowuk Tribal Council First Nations' Cree Fest, both of which were a huge success and generated revenue. The basement of CCFN's Band Office seats about 150 people and is offered as a meeting place for people in Chapleau, which generates revenue, employment and a small profit that contributes to paying off the mortgage.

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Separation of Politics and Administration

"A shared understanding of the separation of politics and administration, and the cooperation that flows from it are a huge aspect of our success and explain why a lot of innovative thinking has been going on since 2005,” according to Brian Edwards, the -58- Band Administrator. One of CCFN's three economic development trainees in the late 1990s, Mr. Edwards had gone back to school in 2000. When he agreed to take up his current position five years later, one of his expectations was that there would be a clear separation between what he called "operations administration" and "political administration."

He explained that "I got agreement with Chief and Council that I would be in charge of the administration building, the Public Works Department, the Health Department and any economic development ventures. Any related problems or concerns, e.g., of unhappy employees, would have to come to my attention. This system works both ways, i.e., employees don't go to Chief and Council, and Chief and Council don't go to employees. Five years later, we don't struggle with it as much as we used to.

We also put in place policies and procedures, e.g., on financial management, so we're all on the same page as to how to run the reserve. There used to be a lot of nepotism: a niece or nephew would take their issue to their aunt or uncle on Council. There's been a huge change and it wasn't easy: some employees embraced it, others resisted and some left, but I had Chief and Council's backing and they had my commitment.

My training as a social worker helped me to act as a go-between and satisfy both employees involved in a dispute while remaining fair, without taking sides. In the past, some employees and councillors had litigated against the First Nation. It was painful and ugly, but that hasn't happened since 2000. We try not to give anybody cause to sue, but we don't do away with our procedures for fear of litigation. For example, we took action against an employee for drinking on the job who got away with that type of behaviour in the past.

When I started in 2005 the file of complaints since 1995 was four inches thick. We had only three written complaints in the last five years, all of which were addressed. We've come far in a short period."

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Openness and Transparency

In the past some members of CCFN's elected bodies pursued "their own self-serving agenda, using their position or authority for their own benefit." As a result of a "community consolidation taking place, that kind of behaviour from the past isn't tolerated anymore. Now we have a complete open book. For example, any First Nation member can have a financial statement not only provided, but also explained."

The First Nation has a high degree of control over this positive factor of its reserve land management.

5. Innovation

For example, CCFN is currently pursuing a wood torrification project. It got seed money to explore this concept with a consultant and has found a couple of wood roasting processes through which non-traditional hardwoods like poplar can be used as traditional hardwood after they have been thermally modified to look like cedar or oak. Changing the "recipe" can make it look like any type of wood. Cooking it modifies the wood's cell structure and makes it denser, giving it more weight and strength for heavy use, such as decking or furniture. -59- CCFN's EDO is constantly making applications through the Community Economic Opportunities Program, the First Nations Innovation Fund and the New Horizons Fund (a senior‟s programme). More recently CCFN has tapped into the Recreational and Infrastructure New Construction Programme under Canada's Economic Action Plan and split the cost of building a small rink and a playground three ways with the provincial and federal governments.

The EDO is responsible for writing proposals for different funding agencies and doesn't just do economic development. In this way CCFN is using established programs as much as it can, to the full extent it can qualify for them.

The First Nation has a medium degree of control over this positive factor of its reserve land management, because of funding constraints to get the best people.

C) The main factors that contributed negatively to Chapleau Cree's reserve land management, the first one of which is the most important, with the second and third being of lesser but equal importance

1. INAC and the Indian Act

"INAC and the Indian Act are the origin of the constraints on what First Nations can do. For example, we can't sell a tree without express permission from INAC, so we're powerless. If there were diamonds under our feet, they wouldn't be ours. We only own how deep a plow blade can go, because we're supposed to be farmers. The Indian Act maps out how we're supposed to live out our lives, like the expectation that we'll be farmers or fishermen or forestry workers. It doesn't take into consideration that we'll be lawyers or doctors or operate businesses. The Indian Act in general is one of the biggest detriments to the progress and success of a First Nation.

The main point is First Nations' lack of control over themselves and their resources, not just on reserve but in the traditional territory.

We upheld the agreement in the Treaty. Everything we have been asked to do, we have done. Everything that was supposed to be done for us under the Treaty has either not been done, or it's been done as defined by the government without any input from us.

An example is the Chapleau Crown Game Preserve, which is in the heart of our traditional territory, because it's very fertile ground and abundant with wildlife. In the early 1900s the fur trade declined, so there was a push by government and industry to create a game preserve. We were dealt with as poachers, but mining and forestry were still allowed to operate. The purpose of the preserve was said to be re-establish fur- bearing animals, but that was prevented by mining and forestry. In 2000 we took control over it again, organised a hunt, shot a moose and notified the Ontario Ministry of Natural Resources. Charges were laid and then stayed, so there was no prosecution. Now Native people can hunt in the preserve, but this could disappear tomorrow with a new Minister because permission came from the Minister, not from a Court.

This kind of action to defend our rights fuels the negative perception of Indians by mainstream society. It helps fuel existing prejudices and supports the government's agenda of pulling back funding for First Nations.

It's difficult to survive on crumbs when you know you own the loaf.

-60- INAC and the Indian Act are the bodies of creation of reserves, the perception of the modern Indian and the way we live today."

The First Nation has a low degree of control over this negative factor of its reserve land management.

2. Mainstream Society's Perception of First Nations

"This perception is negative and made of substance abuse, low employment, dependence on social assistance and direct support by mainstream society. It's the stereotype perceived by non-Natives.

Racial barriers are still in place, they're not as thick as they used to be, but they're still there.

Fox Lake is seen as the good Indians, but if we get into any kind of discussion on Native spirituality, the attitude is „'you can call your God anything you want, but he has to be the same as my God.'‟ That's ignorance and I can't do anything about that beyond providing some education. We can present information and education, but we can't control whether it's accepted. That doesn't mean we stop trying. We just try new ways that are adaptive and innovative."

The First Nation has a medium degree of control over this negative factor of its reserve land management.

3. Competition between First Nations to Secure Funding Dollars

"There's only X amount of funding and the available dollars are outnumbered by the applications, so it's set up in a way that not everybody's going to be satisfied. This sets up First Nations to fail, for example when we're told that there are only 10 spots in this training program but 50 applicants.

Assessing the applications is a very secretive process, so for us it's like playing darts with a handful of darts: you just throw them all and hope that one of them hits the target. This keeps us in check, it controls us by forcing us to spread ourselves too thin on too many applications, hoping to be successful on one of them.

Funding is insufficient. We get $42,000 a year for an EDO and that's supposed to cover everything, including the mandatory employment-related costs that represent about 15% of salary, and administrative expenses, so we may have about $35,000 left in salary.

What's a good return for the funder? Is it equal? Last year we generated $400,000 in economic development activity, so if I'm giving them such a good rate of return maybe they should reciprocate, instead of saying “here's your population and your location, so here's what you get.”

There was a meeting of Band managers and administrators from across Canada hosted by INAC in September 2009 as part of the engagement sessions on the Federal Framework for Aboriginal Economic Development. INAC wanted to know what Band managers and administrators do. The answer was everything: I'm a marriage counsellor, funeral director, real estate agent, heavy equipment operator, water treatment plant specialist, pension fund administrator, just name it. Imagine a ten-story building. The Band administrator does every job in it, from taking out the garbage to -61- painting the penthouse windows, and building the building. All this for about 40% a year less than you make, I told the INAC representative.

We do that because of our dedication to our community. That's why we do what we do. I made more money as a Child Protection Worker and I had that job down pat, so it was a lot less stressful.

First Nations are pitted against each other and partnerships are prevented. For example, if we wanted funding for a Hockey Training Programme, that would put us in competition with neighbouring First Nations. This puts up barriers between us. We're even in competition for INAC funding with our Tribal Council, which is supposed to be representing us.

This is the new approach to divide and conquer. The reserve system was supposed to keep us in check, so Indians would no longer be where they were and “we'll take care of them until we integrate them into mainstream society, so they can be just like us.” Now we're being put in competition with our cousins. It's a matter of control. Our futures aren't our own outside the reserve. Competition generates division, irritation, even hatred. Our lack of political union is comforting to our Big Brother, because it makes it easier to maintain the reserve system.

This competition is set up to breed animosity between reserves. Competition is good for business, but competition when you can't even get into business is bad.

It's also a waste of money, because you don't have any opportunity for profit and you don't get any growth for the community or individuals."

The First Nation has a very low degree of control over this negative factor of its reserve land management.

D) Chapleau Cree's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Chapleau Cree assesses its success at 1.5 because "we need to operate within the parameters that are given to us and to account for what we do according to someone else's parameters. We are handed down the limits of what our authority is and that stems from the Indian Act."

2. Success in using its reserve land for economic development purposes

Chapleau Cree assesses its success as a 1, because "we can't cut down a tree, if there were diamonds under our feet we couldn't dig a hole in the ground to get them, we can't sell the fish in the lake and we can't bottle the water and sell it. We have no freedom in how we use our reserve land. Our only freedom is in our thinking and our thinking is about how to generate revenues off reserve."

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Chapleau Cree assesses its success at 0.5, because "a Certificate of Occupation is issued when a member takes out a loan to build a house and a Certificate of -62- Possession is issued when the member has paid off the mortgage, but the CP means little to nothing for the home owner if he wants to take out a second mortgage to start a business, because the First Nation would then have to play the role of business advisor and loan guarantor."

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Chapleau Cree assesses its success as a 5, because "our sense of community determines how we maintain our public and private spaces on the reserve." For instance, there is no garbage by-law, but nobody leaves garbage lying around. There is a noise by-law, but you don't hear any noise after 10 PM."

5. Chapleau Cree's priorities for the management of its reserve land over the next five years

i) Being able to establish some type of economic engine. If we can provide opportunity to our off-reserve Band members, we may be able to entice them to come back. Sub-division plans are in process. A water investigation study is underway with INAC, which could open up a whole new area of the existing reserve.

ii) An Addition to Reserve for the new parcel

iii) Complete the Treaty Land Entitlement negotiations with Canada and Ontario, hopefully within the next two years. We're three quarters of the way there, but we keep getting knocked back a step. Our goal is new reserve land for residential expansion and economic development.

iv) To be one of the forefront leaders in the newly-formed North East Superior Regional Chiefs Forum. Six area First Nations are looking to collaborate in specified areas of expertise and CCFN's area is information management.

v) With these things on the go, we hope to be able to continue the reserve. The initial reserve population was in the 50s, now it's in the 70s. Three babies were born in 2006, which was a population exposion for us because there were 94 people on the reserve at the time. With 400 registered Status Band members and less than 25% living here, we need new blood to continue the reserve, so we need an economic engine because there's no use moving back if you don't have a job. We have a 95% employment rate. The majority of Band employees are Band members and the majority who are working are working on the reserve.

vi) The spiritual agenda. Turtle Lodge was built in 2009 for fasting, spiritual ceremonies and commemorative events of a spiritual nature. People hold sweats in it and next to it, and a tipi stands next to it. There is a resurgence of Native spirituality and our way of living is being brought back again.

The Health Centre's main priorities are education and illness prevention. It also assists with the spiritual aspects of education, helping us maintain a healthy body and a healthy spirit, setting us up for mental health.

-63- These things are always put forward hand in hand with economic development. It has to be balanced. We try to maintain that balance every time we move forward and we move forward after. We do this for our future generations who will hopefully come back and enjoy the same type of approach and philosophy, hopefully even better.

E) Chapleau Cree's Recommendations

i) Have an equal and fair say at the table where INAC sits. Our elected leaders should have the same opportunity as other elected leaders. Open up and share INAC's power. End second class citizenry. The only way that can happen is if First Nations band together, put aside any personal agenda and practice the Seven Grandfather Teachings. Make that general philosophy an action, not just a thought.

For example, three months ago I hosted a Band Administrators meeting with two Mushkegowuk Tribal Council First Nations and six representatives from the Tribal Council itself. We had two days of discussions, which we agreed would be followed up by an Executive Heads meeting. When came time to choose the meeting place, the Tribal Council representatives wanted to go to Rama for the casino and the shopping.

I said “let's meet in one of our own First Nations to keep the money we spend in our communities. You have to put in the maximum to get the maximum, not put in the minimum to get the maximum. You're not going to be taken seriously until you're serious.”

The Ontario First Nations Limited Partnership, which runs the Rama Casino, has to take attendance at its meetings every day, in both the mornings and the afternoons, because otherwise people don't show up to discuss how billions of dollars will get distributed. The per diems are very high and it's difficult to spend three days talking about accounting when you've got slots ringing in one ear and the mall ringing in the other ear. Our leaders need to be held to account. That's the way it's been for a long time: “I'm buying you for this or I'm taking advantage of you for this,” depending on whether you're collecting or providing the per diem.

Both First Nations and INAC need to be taking the fate and future of First Nations seriously. Indians are a big business and it takes about $4 billion internally to disburse $4 billion. I just want what they got. I want to be equal, i.e., if INAC takes half off the top, I want to take half off the top. Maybe it's not really half, but there's a perception that that's what INAC does. There is a legitimate holdback to run the Department, whether it's 50% or not and whether it's $4 billion or not, because you need capital in order to function. Tell me what the formula is and apply it to me.

Let's get back into who owns the land and apply our agreement in the Treaty to share those resources. We want Treasury Board -64- representatives at the table, along with representatives of INAC and First Nations, not INAC saying “we need to check with Treasury Board.”

First Nations need to put up a collaborative agenda, along the lines of “this Treaty's not working out for us, so you can have it back and let's start from scratch.” That's the only way I see it happening, because the last 100 years of negotiations have been fruitless: “We're taking back everything we gave to you and you can have back everything you gave to us.”

The competitive nature would move out of the picture, because a solidarity movement would begin to take place. First Nations would see a unitary approach is a stronger one, kind of like “you fight me; you fight my gang of 633.” That kind of empowerment would flow down to First Nation individuals. With empowerment comes responsibility and with responsibility comes positive action to keep negative actions in check.

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) The relationship between First Nations and government needs to be taken to a point of equality, where an elected Chief holds as much weight as an elected chief of a country. Now we receive assistants and underlings. Government needs that understanding: Nation to Nation. Government has to concede its authority and take Nation to Nation seriously. You'll have a whole trickle down effect with that, by putting people in charge of themselves and their own futures. Chiefs will then be able to say to their people “now you have to recognize my authority and my responsibility” and we'll begin to address the Third World conditions in one of the G8 countries.

Approved by Brian Edwards October 7, 2010 -65- FORT FOLLY FIRST NATION

STATISTICAL INFORMATION

Location 14.5 km from Sackville, in the province of New Brunswick , the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 30 members (27%) on reserve, 81 members (73%) off reserve, total 111 3 non-member residents on reserve

Reserve land 56.1 hectares (138.62 acres), one reserve, woodland

Reserve land management legislative and regulatory framework Indian Act

Reserve land management staff membership in a professional association No

Property taxes No

Community Well-Being Index* N/A

Parcel Fabric Index** 96

Active registered transactions 48 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 57 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

40%

Certificates of 10% Possession (CPs) 40% Registered Band Use Lands 10% Homes on Band Lands with no CPs 20% Unused Band Lands 30%

20%

30%

-67- FORT FOLLY FIRST NATION

INTERVIEW REPORT

September 13, 2010, 9:30 AM to 12:00 PM

Chief Joseph Knockwood Tina Milner, Financial/Office Administrator

A) Fort Folly's Reserve Land Management Experience

The following 9 key events or periods were identified.

1. Reserve Creation (1971)

Fort Folly First Nation (FFFN) is originally from Beaumont, near Memramcook, where its original reserve was created in 1840. Chief Knockwood's grandfather James Knockwood had purchased three acres of land at Dorchester and his uncle Louie Knockwood one. Both had bought these parcels to live on and they paid taxes on them.

Chief Knockwood's father was energized and went into the blueberry business. He sold out for $8,000 in 1951, which was a lot of money at the time, so he bought two 3,000 acre plots. He kept that up over time and ended up owning quite a bit of land, including the parcel that was to become the current FFFN reserve. When he died in 1955 the family got messed up and it took a while to settle the estate. Chief Knockwood came back in 1961 from the US Army, signed off and his brother took over the blueberry field.

Chief Knockwood explained that "in 1966 we were trying to sell land in Beaumont for $1,000 to purchase land here for $1,000. INAC went around and got people to sign off individually. They didn't do a referendum. INAC made it happen and made a deal with my three brothers that they'd build them each a house. There weren't many people involved, just five families. We had 82 acres here and 62 acres in Beaumont. The only reason we moved here was because it was closer to the grocery stores."

2. Bingo Hall (1995-2000)

The previous FFFN Chief decided to build a bingo hall, which originally housed a bar, restaurant, gaming facility, gift shop and a large hall for bingo games. It was "too big, too quick," according to Tina Milner, and was closed in 2000 because it was not profitable. It was the same as another one in Fredericton and should have went, according to Chief Knockwood, but Dionne Entertainment, FFFN's partner who had a 51% share and a five year management contract, shut it down.

The bingo hall's failure left FFFN crippled, with a debt that it's still paying off and will continue to pay off until 2012. The First Nation was in third-party management for five months, then co-management for four years.

Chief Knockwood said that the Chief who presided over the grand opening of the bingo hall in 1995 was a one-term Chief and that the project was not in the best interest of the whole community. In his view, continuing with the bingo hall would have been worse than third-party management.

After the bingo hall closed, FFFN couldn't afford the $30,000 annual insurance costs, so INAC took responsibility for the building. They closed it up and locked it in 2000, but -68- didn't properly winterize it and in particular didn't ensure that the water lines were shut. A water line broke and the building suffered water damage. INAC did not pay to have it properly cleaned, so the building is full of mold. "INAC did not take care of our asset," concluded FFFN representatives.

They explained that FFFN took back ownership of the building and put in $10,000, "because we would love to help our member" who is trying to get the building back into a useable state. This member owns a machine shop on reserve and wants to use the bingo hall to do some welding work. At the time of the interview he had stripped down the tiles and the gyproc to take out the mold.

3. Crown Land Logging (1997-1998)

FFN negotiated an agreement because the Province had lost the Paul case in the New Brunswick Supreme Court in 1998. The agreement gave all the First Nations in New Brunswick 5% of all the harvesting of wood in the Province. For FFFN this represented the right to harvest 250 cords of hardwood and 750 cords of softwood per year. The Irwing Company bought FFFN‟s softwood and is delivering its hardwood to the reserve, at FFFN‟s cost.

FFFN has taken out a $90,000 bank loan to purchase a wood processor on reserve, which will give Band members with wood-burning stoves (about 90% of them) three to five cords a year to burn. The First Nation will thus keep about 80 cords for its own use and has buyers for the rest. Chief Knockwood described this project as "small economic development to help the Band out."

4. First Marshall Agreement (1999-2000)

Fishing is the main industry in Fort Folly. The community owns three fishing boats and holds 9 different fishing licences, but primarily focuses on fishing for lobster, groundfish and swordfish. The fishing grounds are in the Bay of Fundy off Parrsboro and off Sambro, Nova Scotia, in the Atlantic.

FFFN already had a lobster fishing vessel and licence through an agreement with the Department of Fisheries and Oceans (DFO). As a result of the first Marshall Agreement it got a second lobster fishing vessel and licence, plus a truck and training.

For the second phase of Marshall FFFN had requested a crab fishing vessel and licence. Instead it got a swordfish fishing vessel and a small swordfish licence, and a little more training dollars. The swordfish vessel and licence are leased and produce what Chief Knockwood described as "a very small profit."

The Chief said that FFFN was very lucky because it has two lobster fishing seasons every year, one in the spring and another in the fall. "That keeps the Band afloat and pays the bingo hall debt. That's where economic development comes from for this reserve," he said.

The Chief explained that FFFN uses its commercial licences for its food fishery, to build the relationship with Parrsboro, the Nova Scotia town on the other side of the Bay of Fundy where its fishing boats are based. People in Parrsboro "had a misbelief that FFFN was going to take over," he said, "so we have no separate food fishery and they can see we're doing the same as they are." With the same relationship-building objective in mind, FFFN donates a third of what the Parrsboro Lions Club needs for its annual lobster supper, which this year amounted to close to a hundred pounds. "We -69- have a good reputation now, because they see we're just like them: we go, we fish and we come back." This is a marked improvement from when "they threatened to burn our boats in 1999 when we first started."

5. Salmon Habitat Recovery Building (2002)

This building houses a project that monitors the inner Bay of Fundy salmon, which is considered endangered. The project is proposal-based and committed over $200,000 this year. A FFFN crew works at Fundy National Park (FNP). One member of the crew is from Truro and it had two from St. Mary's.

Crew members do electro-fishing, i.e., they stun salmon, take them out of the water, tag them, take eggs and return them. They also track salmon, monitor their breeding grounds, ensure spawning and incubate eggs. The facility provides laboratories, a greenhouse, offices and storage space for equipment.

In addition, FFFN staff work with American eel, trap them and see what quantity's around because it's an endangered species too. They also work on the Peticodiak River, and were there at the time of the interview with a fish trap to see what was there. A causeway was built on that river and caused many issues because it's not environmentally-friendly, so they took down the dam to see what species are still living in the river and they're trying to bring it back to the way it should be. A smolt (small salmon) wheel catches and counts what's coming back to the streams and rivers.

This was originally a joint project based on a three-year commitment from INAC, DFO and Parks Canada through FNP, but INAC pulled out after a year and a half. FFFN and FNP stuck together and DFO had proposal-based funding. FNP committed to $50,000 a year for three years.

"Because of INAC's decision to back out of the project, saying "sorry, no money," it's hard to take any commitment INAC makes seriously now," said FFFN representatives. They noted that INAC had backed out of its commitments to FFFN twice, the second time in relation to community planning (see item 7 below).

At the beginning of the Salmon Habitat Recovery Building project, INAC provided FFFN with $500,000 on March 1 and said it had to be spent by March 31. As a result of these experiences, FFFN representatives described themselves as "very leery now."

6. Treaty Negotiations (2003-the present)

Chief Knockwood lost the election and went back to work for the Union of New Brunswick Indians (UNBI) in 2003. The UNBI was in Treaty negotiations at the time but it didn't go because only 12 of its 15 members were willing. When Chief Knockwood was elected again in 2005, he started negotiations with the 15 UNBI reserves by creating the Assembly of New Brunswick Chiefs (ANBC). He said that today the ANBC are "all working together" and that a bilateral agreement and a trilateral agreement are currently in process.

The ANBC is seeking a trilateral Treaty like the one Nova Scotia First Nations have done. They got the Province behind them and are trying to get the federal government on side. At the time of the interview the then Liberal provincial government had said that things were moving right along. Chief Knockwood hoped the Conservatives would continue if they won the election and noted that money had been set aside by both governments. -70- 7. Community Planning Project (2003-2004)

On the strength of a three-year funding commitment from INAC, FFFN hired a Community Planning Coordinator, who created six large Community Planning panels in cooperation with Dalhousie University. The first panel is a Vision Statement for FFFN and the other five contain Background Information on Land, Settlement, People, Economics and Strenghts and Opportunities.

INAC had committed to provide about $50,000 per year ($40,000 for wages and $10,000 for training and supplies) but pulled out after a year and a half. The Atlantic Policy Congress, representing 34 Chiefs, picked up the Community Planning Coordinator's salary for six months, then FFFN was on its own.

"We're a very tiny First Nation," FFFN representatives explained, "so when we make commitments to somebody we like to keep them. We don't want lawsuits and the Labour Board." For these reasons, the panels were produced but not the planned full- scale layout and booklets, which were never completed because there was no money for anything beyond salary. FFFN had to pay $45,000 to get the project as far as it got.

8. Eco-Action Plan (2009)

INAC came out with funding with the Canada Mortgage and Housing Corporation (CMHC). Some of it was related to housing and some to water and sewer. $150,000 was received to renovate four houses. The occupants of two of them were to receive a CP and all of FFFN's work was completed by January 2010.

Speaking of INAC, FFFN representatives explained that "they said we had to wait for the audit in August. The audit showed that all the money was expended, but INAC is still holding back $15,000 (i.e, 10%) because we're waiting on what Ottawa wants, because they're not sure."

"We're now in Phase 2," they continued, "and the project is all proposal-based. We were to receive $75,000 this year: $50,000 to service three lots for water and sewer, and $25,000 for renovations on a house. We've started the design and planning work, but we haven't received any money yet and, to us, the $15,000 holdback is a real big chunk, especially when I proved that it's all been expended," said Tina Milner.

"We have a $300,00 a year total budget from INAC, so it's hard when I have to second guess what they tell me they‟ll give me, because they claw money back after committing to it," she continued. "CMHC is very different. They didn't need to see the audit, there was trust and no holdback. We have a great working relationship with INAC, we work well with them, but it's hard when I have to say "show me the money first." There's no problem at the regional level. I need Ottawa to decide what reports they want done and to follow through. It's discouraging."

9. Wells Project (2010)

FFFN's wells weren't closed when it hooked up its water and sewer system to the next- door village of Dorchester around 2004. The wells are now bubbling up, which caused some foundations to crack. At the end of February 2010 INAC came up with $50,000 to close off two wells. FFFN ended up closing off four, did repairs to two homes and reported back to INAC by March 15, "so when they have money they know they can give us money and we can spend it in the time they need it spent and on the project they -71- want it spent on," said Tina Milner, who once again stressed FFFN's good working relationship with the INAC Regional Office.

B) The main factors that contributed positively to Fort Folly's reserve land management, in declining order of importance

1. Fishery

FFFN's biggest objective is employment. Its fishing crews need to travel an hour to Passboro and have to put up with the Bay of Fundy tides, which are the highest in the world.

The swordfish fishery requires the vessel to go out to sea for 14 days straight, so there are no FFFN crew members. For this reason the previous Chief had said no, but Chief Knockwood and a more proactive Council said yes.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Salmon Recovery

This is another example of what a proactive Chief and Council can do.

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Fort Folly's reserve land management, in declining order of importance

1. Location

The reserve is off the beaten path and near a penitentiary, which is not an attraction.

The First Nation has no control over this negative factor of its reserve land management.

2. Poor Management by Our Partners of the Bingo Hall

The bingo hall's failure left FFFN with a debt of about $400,00, for which it will be paying $4,500 a month until 2012.

The First Nation has no control over this negative factor of its reserve land management.

3. Slowness of the ATR Process

FFFN owns a building in Parrsboro in which it stores two of its fishing vessels, as well as a small house one street over from the wharf. It started the Additions to Reserve (ATR) process, which is complicated by the fact that the parcel it wants to add is in another province.

FFFN needs to approach Parrsboro to get a letter of support for its proposed ATR, which could be trying because the former mayor, with whom FFFN had established a relationship of trust, passed on, so now it needs to start afresh with the new mayor.

-72- The First Nation has a medium degree of control over this negative factor of its reserve land management, as a result of Chief Knockwood‟s involvement as Co-Chain of the ATR Working Group under the AFN-INAC Joint Initiative and in the current AFN Engagement Process on ATRs.

D) Fort Folly's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Fort Folly assesses its success at 3.5.

2. Success in using its reserve land for economic development purposes

Fort Folly assesses its success as a 2, because economic development on reserve is currently limited to a little blueberry field that is not yet in production, a machine shop owned by a Band member on land that is subject to a CP issued for commercial use only, a sweat lodge, trails operated in partnership with Fundy National Park, a fishery building and a greenhouse next to it that is not currently being operated, and some work on logging.

Moreover, there are no private businesses in Fort Folly where community members can purchase goods. All community funds are spent in nearby urban centres. The closest convenience store is in Dorchester but the majority of daily spending is in Sackville. FFFN's "Background Information: Economics" Community Development Panel describes this phenomenon as follows: "Economic Leakage: Money spent Off-Reserve 100%."

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Fort Folly assesses its success as a 3, because they used those tools for the bingo hall.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Fort Folly assesses its success as a 1, because they designated lands for community use, such as the sweat lodge.

5. Fort Folly's priorities for the management of its reserve land over the next five years

i) Make the blueberry field profitable. We had a guy bushwack a strip of Band owned reserve land from the last ATR to grow blueberries but it didn't work, so he's going to spray it again this fall to kill everything in there that's not blueberries. We don't have the money to be able to buy the blueberry land he's offering us ($45,000 or more).

ii) Extend our water and sewer system to be able to construct more housing on reserve. We hate to turn back the clock and go back to wells and septics, so we need to find money for more serviced lots. There's been a plan in place for three years but there's no money. The Chief has to be -73- there everyday to get INAC to do it, because "going in there and banging the table is the only way to get things done around here," said Chief Knockwood, "but I sit on so many committees and have other things to do."

iii) Get rid of the swordfish vessel, buy two more lobster vessels and make them wider to fish all day long in stormy weather and not have to worry about it.

iv) Build a gas bar off highway 106. The proposal is complete, the site has been cleared but all the funding is not yet secured. Moreover, Chief Knockwood is worried about somebody breaking and entering. There are a lot of drugs and alcohol around here, and it doesn't come from the reserve but from next door. People in the medium security Dorchester penetentiary can walk out anytime they want because there are no locks and no gates. A police raid in the whole district turned up 2,000 marijuana plants. Some were on reserve but their owner is not known.

v) Reclaim land back in Beaumont for economic development (tourism) and because the FFFN graveyard is there. After its claim was rejected, FFFN offered the Archbishop to buy the land, because it's owned by the Catholic Church. It's leased to a group for tourism (they use the church as a hall for musicians) and "the Bishop doesn't trust that we would honour the lease," said Chief Knockwood.

E) Fort Folly's Recommendations

i) "Anything they're doing is their business," said Chief Knockwood, who didn't want to offer any advice to First Nations unless they asked for it

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Accelerate the ATR process

ii) Live up to your commitments

iii) Try to secure more funding for economic development

iv) Give more money so First Nations can survive. "Double the $300,000 a year we get," said Chief Knockwood, "because we can take care of this place. INAC doesn't fund any Operations and Maintenance to the full level, so things get run down. For example, this building was built in 1992. We approached INAC then with a plan, but there was no money. We've been trying to get a dry space for Tina's paperwork all in one place. The building would also hold our carpentry. We spent $20,000 on the plan and another $30,000 on manholes and drainage. Hopefully I can find money for concrete this year. We had to replace the furnace, so the building froze and a pipe leaked. We needed $30,000 for the replacement and repairs, including fixing the floor where the tiles were -74- lifting and creating a safety hazard. We approached INAC for half the money and they said no. We approached Health for the other half and they said yes. Some things we have to do whether the money's there or not."

Approved by Chief Joseph Knockwood October 20, 2010 -75- FORT MCKAY FIRST NATION

STATISTICAL INFORMATION

Location 64 km from Fort McMurray, in the province of Alberta, the nearest service centre to which it has year-round road access, Zone 2, i.e., rural

Population 343 members (51%) on reserve, 325 members (49%) off reserve, total 668 Number of non-member residents on reserve unknown

Reserve land 14,886 hectares (36784.10 acres), cinq reserves

Reserve land management legislative and regulatory framework Indian Act – First Nations Lands Management (Inactive)

Reserve land management staff membership in a professional association No

Property taxes Yes

Community Well-Being Index* N/A

Parcel Fabric Index** 24

Active registered transactions 39 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 0 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

(NOT AVAILABLE) -77- FORT MCKAY FIRST NATION

INTERVIEW REPORT

June 22, 2010, 9:15 AM to 1:15 PM

Chief Jim Boucher Phil Peddie, CEO and Band Administrator

A) Fort McKay's Reserve Land Management Experience

The following 13 key events or periods were identified.

1. McKay Industrial Park (around 2000)

This first industrial park was created on 80 acres of formerly provincial Crown land that was 100% First Nation owned. The land had been designated for an addition to reserve (ATR) as part of the anticipated Treaty Land Entitlement (TLE) Settlement Agreement and was fully leased.

2. Reserve Creation (2004)

The TLE Settlement Agreement, the negotiation of which had started 20 years earlier, was finally signed in July 2004. The environmental assessments and surveys that were required before all of the land could be added to reserve in fulfilment of the Agreement would end five years later, in 2009.

3. Caribou Industrial Park (2005)

This second industrial park was created on 180 acres of reserve land as a joint venture (JV) between the First Nation (51%) and Wayward Steel (49%). Because this development was very expensive, it proceeded in four phases. The first two and a half phases required the JV to borrow $25 million. The rest was self-financed on an equal basis by the two JV partners.

Construction will be finished and the park leased within a year, and the loan repaid within ten years. Revenue generation is expected to begin within 4-5 years and the First Nation considers this project very successful.

4. ATR for the North and South Blocks of the Oil Sands Lands Completed (2006)

Two agreements were in place with Shell, with whom negotiations had begun in the fall of 2005. Under the first, the parties agreed to work toward a lease and development agreement for the First Nation's Oil Sands Lands (OSLs) once they had been brought into the reserve. Under the second, Fort McKay was to acquire Lease 90 from Shell as partial compensation for the lease of the OSLs.

5. Agreements with Shell Cancelled (2007)

The First Nation concluded that the acquisition of Lease 90 was beyond its financial means, as $2-2.5 billion was required to develop bitumen slurry and transport it to Shell's plant 18 kilometres away. The 50% participation contemplated would have cost Fort McKay $1-1.25 billion. -78- Moreover, the parties couldn't agree on the terms of the OSL lease because Shell wanted to

- pay the Alberta royalty rate for non-upgraded bitumen (which the province had set artificially low) rather than market price for upgraded product,

- start to pay royalties only when production started, which was 17 to 40 years away, and

- pay only $100-200 million up front.

On the advice of competent economists, the First Nation concluded that the net present value of what Shell was offering was zero and ended negotiations. The parting was amicable, with Shell reimbursing Fort McKay all its negotiating costs (about $2 million).

The First Nation has not been actively pursuing the development of its OSLs since, although Shell has recently shown signs of renewed interest. As Phil Peddie put it: "We waited 200 years, we can wait some more".

6. Creeburn Lake and Barge Landing Lodges (2007-08)

Creeburn Lake Lodge is a high-end 500 person open camp executive lodge and the First Nation is contemplating expanding its capacity to 1,000 people. The initial investment required a $50 million loan, which the First Nation took out on a 50/50 basis with its JV partner Atco. Revenues are also split 50/50, although Fort McKay has a 51% controlling interest to benefit from oil company preferential treatment for Aboriginal content.

Only $7 million remains to be paid off from Fort McKay's $25 million share of the loan, which it partly repaid with a $5 million distribution it took in 2008-09. Distribution was subsequently put on hold because of the recession.

Barge Landing Lodge is a 2,500 person camp created under another JV with Atco. The terms were the same as for Creeburn Lake Lodge, except that Fort McKay put up the land and Atco put up 100% of the initial $10 million investment, all of which has since been paid back. This is now the First Nation's biggest cash cow, generating about $25 million of the $35 million in net annual income from all Band-owned companies and JVs.

Chief Boucher situated this income stream in the context of the First Nation's overall financial and human resources as follows: - $175 million in assets - $27 million in debt - $600 million in gross annual income - 1,400 people employed in Band-owned companies and JVs.

7. Completion of Outstanding ATRs for Non-OSL TLE Lands (2008)

8. Completion of Exchange Lands ATR (2009)

9. Consultation and Regional Benefits Agreement (CRBA) Negotiations End (2009)

After 14 years of negotiations, the All-Party CRBA Core Agreement came to an end on December 31, 2009 for all five Athabasca Tribal Council First Nations, including Fort McKay.

10. Completion of Reserve Creation (2010) -79- Fort McKay bought two lots from the North-West Company in February 2010 that had been surveyed in advance and the ATR was completed by May, only three months later.

This marked the completion of reserve creation. The First Nation has now added to reserve all lands to which it was entitled and is "in good shape", according to Phil Peddie.

11. "Odour Incident" (2010)

On February 14, 2010, a chemical odour swept the reserve and caused runny noses and eyes among First Nation members, as well as pressures to evacuate. The cause of this incident has not been established with certainty, as regional air quality monitoring systems did not provide any readings, but the First Nation believes that it was likely Suncor's new process to dig up old tailings and mix them with a polymer to bind the clays and finds.

This incident reinforced Fort McKay's sense of being at "Ground Zero", an island surrounded by an environmental wasteland, whose traditional way of life, based on hunting and trapping, was still alive only 35 years ago and is now dead. In this context Chief Boucher stressed the importance of preserving the Northern Reserve (Moose Lake) for traditional uses.

The incident also raised the spectre of relocation, but the community doesn't want to relocate. "This is where we live and where we work,‟‟ said Phil Peddie, noting that Fort McKay has a very high rate of employment (95%) for people who want to be employed, thanks to the same oil sands industry that is threatening its environment.

The incident also demonstrated that the First Nation can't rely on industry to either protect its environment or inform it when than environment is under threat. Fort McKay is therefore putting in place its own environmental monitoring capability.

Following the demise of the CRBA, the First Nation is also approaching individual companies to negotiate individual issues, given its location right in the middle of the oil sands operations of Shell, Suncor and Syncrude.

The First Nation sees oil sands exploitation in general and tailing ponds in particular as an environmental disaster. It is also aware that "these companies are around us for a hundred years, if not two hundred.‟‟ It therefore wants to be engaged in reclamation efforts from the start, so that "lands are left in a condition where they can be used and valued."

Against this background, Fort McKay wants to build a plant to redeem the oil sands in the eyes of Canadians and the world, in partnership with industry, the Province and the federal government. The key to doing so is not money but regulations: the necessary technologies exist, but no company wants to increase its cost of production by adopting them if its competitors don't. Fort McKay is therefore proposing to build a plant with the best available technology (BAT) and keep it "state of the art" as technology evolves. Regulations mandating the use of BAT could be brought in once the new technologies had been demonstrated in the Fort McKay First Nation proving ground.

Fort McKay also wants Alberta to adopt international air and water quality standards, which are twice as stringent as the ones it currently uses.

-80- 12. Incubator Industrial Park (2010)

The First Nation is developing this facility and planning to make it available to member entrepreneurs at less than market cost.

13. Land Use Plan and Study (2010)

This study, which is currently underway, and the plans that will follow are motivated by a number of factors:

- the First Nation is out of building lots in the hamlet,

- the TLE designations need to be checked to ensure that the planned uses at the time are still current, and

- the First Nation is gearing up to exercise its by-law making powers for building permits, inspections, codes, zoning, etc., and plans to keep the hamlet residential (i.e., no businesses).

Métis Local 65, which lives right next door on leased provincial Crown land and with which relations are excellent, will figure prominently in the Land Use Plan. Fort McKay and Métis Local 65 have entered into a Memorandum of Agreement (MOU) that, to their knowledge, is the first of its kind in Canada among two different types of Aboriginal communities. Under the MOU Fort McKay has agreed to help Métis Local 65 develop a community on part of the land it leases from the Province, at Fort Kay's cost and as a gesture of good neighbourliness. Métis Local 65 has agreed to explore with the Province and Fort McKay the possibility that another contiguous part of that leased land could be sold to Fort McKay and added to reserve to build another residential sub- division, across the road from the Métis community.

B) The main factors that contributed positively to Fort McKay's reserve land management, in decreasing order of importance

1. Continuity and Integrity

Jim Boucher has been Chief for 21 of the last 25 years, during which he was out of office for two non-successive two-year terms (the First Nation moved to four-year terms in 2004).

Chief Boucher brings to the table a willingness to sit down and work things out with industry and the provincial and federal governments, as well as a willingness to leave the table when all efforts at reaching agreement have been exhausted. He is not in it for the money but for the interests of his First Nation, as he demonstrated some years ago through the successful court challenge that prevented two recently elected Councillors from outvoting him to pillage the First Nation's assets (the number of Councillors was subsequently increased to four to diminish the likelihood of such attempts).

The First Nation has also benefited from the mutual respect between its Chief and its white CEO, who initially came for 18 months as a third-party manager and who the Chief asked to stay because the community and the Elders saw him as fair and honest. Phil Peddie doesn't hesitate to tell the Chief when he disagrees with him and, while neither of them wins all the arguments, it's not about winning but about what will best serve the First Nation's interest. -81- The First Nation has a high degree of control over this positive factor of its land management success.

2. Completing the TLE Process

This gave the First Nation a lot of credibility and marketability with the private sector, including the tenants in its industrial parks.

The First Nation had some control over this positive factor of its land management success, although the TLE process took much longer than it would have liked (see below under Cost of TLE Negotiations).

3. Working Effectively with Provincial and Federal Officials

The First Nation doesn't generally find federal officials hard to deal with (but see below under Bureaucratic Complexity and Ass-Covering). It is so happy with INAC's work on its behalf on head-leases and sub-leases that it decided not to replace its land manager after he quit, but to rely on INAC instead.

Fort McKay is also seen as easy to work with by both provincial and federal officials. For example, after it was told by federal officials that it should have been complying for years with federal building codes rather than provincial ones, minor adjustments were quickly made to existing buildings and both provincial and federal officials are now involved early in the planning of all new First Nation buildings.

From Fort McKay's point of view its cooperation with federal and provincial officials on the First Nations Commercial and Industrial Development Act (FNCIDA) was emblematic of a mutual willingness to make commitments and keep them, and more such cooperation is needed.

Fort McKay is similarly happy with its degree of control over its reserve land, since "the feds haven't prevented us from doing anything we wanted to do." This is one of the reasons why Fort McKay decided to become inactive in the FNLM process. The two main reasons for this decision were:

- the regime is underfunded and

- not one operational First Nation has signed an environmental management agreement (EMA) more than ten years after the FNLM Act was passed.

Fort McKay is not afraid to take on liability for some things and would have included all the lands around the hamlet in FNLM. However, the BP oil spill in the Gulf of Mexico illustrates the magnitude of what can go wrong. That's why the First Nation would have excluded all its OSLs and probably also the Northern Reserve because of the risk of encroachment by the oil companies.

Given the importance it attaches to FNLM's environmental component, Fort McKay had considered self-funding the negotiation of its EMA while it was still in the development phase of the regime, even though the Framework Agreement only requires EMAs to be signed within one year of a First Nation becoming operational. However, the Lands Advisory Board had concerns about allowing a developmental First Nation who could afford it to jump the queue of operational First Nations who had been waiting for years for INAC to provide the necessary funds to negotiate their EMA.

-82- In light of all the above, Fort McKay decided to stop pursuing entry into FNLM and give priority to its TLE lands.

The First Nation has a high degree of control over this positive factor of its land management success.

4. Land-Based Revenues

These revenues funded the construction of 225 brand new homes, the beauty of which rivals any sub-division in Edmonton. This housing is not free but members pay only nominal rent, subsidized at a rate of 50-60%, i.e., tenants pay 40-50% of market value.

The First Nation has a high degree of control over this positive factor of its land management success.

5. No Individual Ownership

Only two houses on reserve are individually owned, but the owners don't own the land on which their houses are built. "This allows us to manage the land more efficiently," according to Phil Peddie, since individual ownership would prevent commercial development. Residential lots are all 100 feet by 100 feet, there are no lots of one acre or more and all lots are Band-owned.

Fort McKay is currently looking at Tsuu T'ina First Nation's Redwood Meadows model of 99-year residential leases, with the difference that only part of the new development would be on reserve land, the other part being on Provincial land.

The First Nation has a high degree of control over this positive factor of its land management success.

C) The main factors that contributed negatively to Fort McKay's reserve land management, in decreasing order of importance

1. Cost of TLE Negotiations

It took twenty years and cost the First Nation $20 million to get a $40 million settlement. In other words, it had to spend half of what it was owed to get the other half, so ended up with only 50% of its entitlement after expenses. The First Nation was "held back a little bit" with respect to economic development during those 20 years, according to Phil Peddie.

The First Nation had no control over this negative factor of its reserve land management.

2. Time Needed to Learn How the Indian Act Land Management System Works

"Fortunately, there were some good people around in INAC to help us figure it out," according to Phil Peddie.

The First Nation has no control over this negative factor of its reserve land management.

3. Bureaucratic Complexity and Ass-Covering

-83- The federal system is complex and can be hard to, first, understand and, second, work with. Moreover, federal officials each have a limited mandate and it can sometimes be difficult to find someone who has a view of the full picture.

Chief Boucher was strongly of the view that “the first order of business in Ottawa is always protecting the Minister's ass, as opposed to helping First Nations.”

The First Nation has no control over this negative factor of its reserve land management.

D) Fort McKay's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Fort McKay assesses its success as a 4.

2. Success in using its reserve land for economic development purposes

Fort McKay assesses its success as a 3.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Fort McKay assesses its success as a 4.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Fort McKay assesses its success at 2.5 and attributes this to the fact that its self- financing capacity allows greater flexibility than under the Indian Act, such as 100% debt financing because it has the asset base to guarantee repayment of the loan.

5. Fort McKay's priorities for the management of its reserve land over the next five years

i) Long-term sustainability, i.e., protection against the volatility of the oil market and environmental health and safety

ii) OSL leasing and the CRBA

iii) Acquire additional lands from Métis Local 65, the Province and the Municipality of Wood Buffalo

E) Fort McKay’s Recommendations

i) Hire the best people for the job

ii) Let go of your prejudices and distrust of both the people you hire and -84- INAC

iii) Integrity, honesty, meeting commitments and building good, solid relations are critical success factors

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Settle land claims to allow First Nations to move forward on economic development and give them their identity

ii) Keep the promises made by previous Canadian governments, e.g., the Kelowna Accord (because First Nations base their relationship with the federal government on whether or not commitments are kept and they historically haven't been)

iii) Recognise First Nations and keep negotiations and processes moving (to counter the perception in First Nation country that the Canadian government doesn't pay much attention to First Nation issues)

iv) Develop First Nations' capacity to exercise more control over their land, as does the Reserve Land and Environment Management Program, for those who need it

v) Make reserves more business friendly by coming to the table with First Nations industry and the provinces (as in the case of the First Nations Commercial and Industrial Development Act, “a huge step forward”)

Approved by Phil Peddie July 16, 2010 -85- INDIAN ISLAND FIRST NATION

STATISTICAL INFORMATION

Location 13 km from Richibucto, New Brunswick, the nearest service centre to which it has year- round road access, Zone 2, i.e., rural

Population 100 members (62.5%) on reserve, 60 members (37.5%) off reserve, total 160 10 non-member residents on reserve

Reserve land 38.4 hectares (94.88 acres), one reserve, waterfront and forested

Reserve land management legislative and regulatory framework Indian Act

Reserve land management staff membership in a professional association No

Property taxes No

Community Well-Being Index* 78

Parcel Fabric Index** N/A

Active registered transactions 3 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 0 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

80%

Unregistered Band Use Lands 80% Unused Band Lands 20%

20%

-87- INDIAN ISLAND FIRST NATION

INTERVIEW REPORT

August 26, 2010, 9:00 AM to 12:00 PM

Chief Kenneth Barlow J. Kevin Barlow, Chief Administrator Ingrid Brooks, Councillor

A) Indian Island's Reserve Land Management Experience

The following 12 key events or periods were identified.

1. Grandfather Buys Land (around 1920)

Chief Barlow's grandfather spoke five languages. The Indian Agent noted the high level of education in Indian Island First Nation (IIFN). Part of this land later became the reserve, while another part (Sock Point) did not, even though INAC built about 8 houses for Band members there in the 1960s.

2. Reserve Creation (1957)

The reserve consisted of 60 acres in the shape of a triangle. The first IIFN Chief elected under the Indian Act electoral system was Peter J. Barlow. Very few services were provided by INAC and IIFN members used local natural resources (clams, blueberries, hunting and fishing) to survive.

3. The Only CP is Lost (early 1960s)

IIFN stayed away from CPs, because "the land belongs to everybody," said Chief Barlow. A single CP was issued in all of IIFN's history and it's not clear why. It was lost as a result of the CP holder changing Bands and none have been issued since, which Chief Barlow said was a good thing.

4. White Paper (1969)

The federal government‟s White Paper on Indian Policy galvanized First Nations across the country and, in the face of their strong protests, INAC became more responsive, particularly in terms of housing and economic development.

IIFN was made up of one large family, which was typically how First Nations were organized before the Indian Act. As a result of their close family ties, IIFN members traditionally took care of each other. For example, young people would naturally offer to take in firewood for the Elders. These practices of giving and service began to recede in the 1960s and 1970s when people started working for money.

5. Community Health Representative (1970s)

This was one of the first community-based employees provided by federal government funding.

6. First Community Hall (1985-86)

-88- This was "an elephant of a building," according to Chief Barlow, which far exceeded the community's needs, but allowed the Band Council to move out of the Chief's house. The new Chief at the time was Wendel Barlow.

7. Campground (early 1970s)

The campground was created for IIFN members as a way for the community to come together in one place and gather around the fire.

"We also had all these people coming in from outside," added Chief Barlow, "and we let them stay for free because we prided ourselves in the beauty of the place. We just told them to enjoy it and take care of it."

8. Land Claim Filed (around 1973)

The Chief generated some media attention by leading a group of IIFN canoes out to Indian Island, which is part of the land claim but not the reserve. The coming together of the community on this occasion, displaying a sense of statement, contributed to increase the sentiments of pride and identity coming out of opposition to the 1969 White Paper.

9. Employment Projects and Traditional Livelihood (1970s and 1980s)

"The types of economic activity at the time were just employment," said Chief Barlow. For example, Human Resources Development Canada would fund projects to provide summer jobs to IIFN members. INAC money paid for community members to build houses, "even though they weren't the best houses for addressing some of the community's social needs."

Other than that," the Chief continued, "we made a bit of money with our traditional livelihood. We had traps for bass, we fished smelts and speared eels. Fish were more plentiful back then and that's really changed. We dug clams and we got $2 a bucket for them, and all of a sudden the price shot up to $10. The price of eels also went up, so non-Natives went crazy and bass, clams, eels and smelts all disappeared. First Nations didn't benefit from the increased prices because they didn't participate in the overfishing. The price of everything went up and all the stocks crashed because they were fished out."

"First Nation members would also go to Maine to pick blueberries and they made good money. You would see a lot of First Nation ghost towns during August for blueberries and September and October for potatoes. Potatoes didn't pay as well, but when you're impoverished, even bad money is still money."

"When we were kids we'd work twice as hard to buy tickets for the rides at the fair. Kids today have degrees and a sense of entitlement, but no life skills or work ethic. Back then community members made baskets and axe handles, and also carved oars. They had nothing else and they couldn't depend on the government, so that's how they made their living."

10. Federal Funding and Changing Attitudes (1980s and 1990s)

"Everybody younger than 40 in IIFN is in a different category," said Chief Barlow. "In our day, we didn't give you a fish, we taught you to fish. We didn't give you a canoe, we taught you how to make a canoe."

-89- "Federal funding changed that. It created new opportunities and a new economy, and the traditional livelihood and work ethic also changed. For example, now we have to pay people to take care of their ailing parents, because they need money and can't afford to take time off from work to do so. Today our members come out of school at 23 with a Master's degree and book smarts but no life skills. They couldn't fend for themselves if the economy collapsed."

11. Two New Economic Development Projects (2006)

Kenneth Barlow was elected Chief in 2006 and started work on an oyster project and a wind energy project.

With federal and provincial support, IIFN managed the development phase of the oyster cultivation project, which is expected to generate a little bit of income in 2011 and more the following year. At maturity, it is expected to generate up to $500,000 a year in gross revenue and require about $40,000 in annual maintenance costs. According to Chief Barlow, "this is a good example of how government support can be targeted to current needs."

The wind energy project entails building windmills outside the reserve on leased Crown land, "to avoid the financial difficulties linked to reserve land," Chief Barlow explained, "and because we don't have the land base to put up five or six towers and because we need a 1,500 foot radius around each one of them."

Similarly, the Chief continued, "we claim the water but we can't mortgage it, so our leased oyster beds in front of the reserve are under provincial jurisdiction."

A meteorological tower was built to measure wind velocity and other patterns. The wind energy project is entirely funded by federal dollars. "MRED (Major Resource and Energy Developments) funding made this possible and we're now asking for Phase 2," said Chief Barlow. Expected revenues are from $500,000 to $1 million a year.

"This is the road to independence," he explained, "because we now get $1.3 million a year from INAC and these two projects are expected to generate about that amount." He added that this had been made possible by a younger generation of Chiefs and Councils: "Past Chiefs and Councils didn't want to rock the boat; they just took what INAC gave them. The new generation is conscious of the needs of the future. Our population is expected to grow and so will our housing needs. Traditionally you thought about the next seven generations before taking important decisions. Some people lost that and got used to federal funding year in and year out, but federal funding is never enough. We have an aging population; we have cancer, diabetes and Alzheimer's. Our needs are greater but the resources don't grow, so we need to break free from underfunded federal grants."

The wind energy project stemmed from a provincial initiative for community-owned windmills and Indian Island is the only First Nation in New Brunswick to move forward with it. "We've laid the path," said Chief Barlow. "It'll be easier for other First Nations because they'll know what they're going to need."

12. Two More Economic Development Projects (2010)

Ocean Spray is building the largest cranberry site in North America in Rogersville, which is in IIFN's traditional territory. They therefore consulted IIFN, as well as other First Nations, and reached agreement to build a 250-acre cranberry site within theirs, to be -90- 100% owned and operated by the North Shore Micmac District Council, a Tribal Council that includes IIFN.

Moreover, if IIFN wants to open its own cranberry site, Ocean Spray has agreed to teach them how to build and run it. The First Nation has identified a site with Natural Resources Canada next to the windmill site and is doing a study to determine the bog's potential.

The First Nation is also planning a new campground on land that was recently added to the reserve. This project is still in the early concept stage, because it's a beautiful area and IIFN needs to assess its future land needs for community growth.

B) The main factors that contributed positively to Indian Island's reserve land management, in declining order of importance

1. Stability of Government

IIFN has had only four Chiefs since 1957, "which indicates a certain level of contentment with the ways things are managed," according to Kevin Barlow. Councillors also tend to serve for a long time.

Moreover, community members are all interrelated, so there is a very close connection between Chief and Council and the membership.

Children were allowed to observe the December 2009 meeting of Chief and Council, and meetings with INAC. Chief Barlow explained that "making such meetings open and transparent nurtures the seeds of the community pride and community spirit that still exist very much today."

The First Nation has a high degree of control over this positive factor of its reserve land management

2. Ethics and Esthetics of the Community

There is no vandalism or graffiti in IIFN, because the extended family keeps such behaviour in check. "People enjoy the natural beauty and feel good about themselves," said Chief Barlow, noting that there only ever was one suicide in the community. There were, however, a series of premature violent accidental deaths among young men, which indicates the need for more accident prevention.

"People who came here from outside to drink were asked to leave," the Chief added, "and people watched out for each other."

The First Nation has a medium degree of control over this positive factor of its reserve land management, since it did not create the natural beauty of the reserve but has maintained it.

3. The Extended Family System

"Everybody could discipline everybody else's kids," said Chief Barlow. This contributed to upholding cultural norms, such as listening to your elders, and enabled the Elders to keep the traditional ways alive by passing then on to the younger generation. This was one of the benefits of the extended family system, which helped to manage the pressures the community was facing. -91- For example, said Chief Barlow, "only four or five went to residential school and we were able to help them deal with the consequences. It's easier for people to stay alive in a small community, for example if your house burns down."

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Elders' Teachings

The Elders pointed out a traditional dancing site on Indian Island, one of only two in the Atlantic, which became an important part of the basis for IIFN's land claim.

"They shared that knowledge with us," said Chief Barlow, "and we're trying to pass it on through videotape." The North Shore Micmac District Council has submitted a proposal to Heritage Canada to that end.

Kevin Barlow explained that the Elders have knowledge of a special kind of peat moss that makes it possible to carry embers to start a fire and other forms of traditional knowledge. They are now in their late 70s and 80s, so it's important to get that knowledge from them to pass it on to the next generation.

The First Nation has a high degree of control over this positive factor of its reserve land management.

5. Think Big

IIFN has shown its willingness to take on big challenges, said Chief Barlow, which he contrasted with the fact that "others are content with the status quo or focus on small projects that create only a few jobs." The windmills each require a full-time technician, who can make $50-60,000 a year. If IIFN builds five windmills, that's good jobs for five people. The road to the windmill site will also need to be kept open year round, creating a snowplow business opportunity.

"We always prided ourselves in being a big small First Nation," said Chief Barlow, living in a beautiful place and coming from a line of fighters with a strong boxing tradition. "That was put into us by our Elders," he noted.

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Indian Island's reserve land management, in declining order of importance

1. Small Land Base

"We never gave it a thought when there were only five or six houses," said Chief Barlow, noting the recent and projected demographic growth of the community. "Our uncles sold land they owned around here and regretted it after the value went through the roof. There's not much to do on this small reserve."

The First Nation has a low degree of control over this negative factor of its reserve land management. Although a land claim was submitted in the 1970s, it was not vigorously pursued.

-92- 2. Federal Policies

For example, the INAC policy of not supporting First Nations economic development until the 1980s and 1990s. "Their idea of economic development was creating summer jobs," said Chief Barlow. "That's all we had. INAC would create a job on reserve, such as building a house, to help my father get unemployment insurance. He couldn't contribute to the Canada Pension Plan because he didn't pay tax."

The First Nation has no control over this negative factor of its reserve land management.

3. Focus in the 1970s and 1980s on Social Issues

"We produced social workers and addictions councillors," said Chief Barlow, "because, here as in other communities, people turned to drugs and alcohol," in large part as a result of residential schools.

Similarly, the Chief continued, "veterans came back from World War Two with Post- Traumatic Stress Disorder but they weren't diagnosed and therefore went untreated. As in other First Nations, IIFN veterans were not treated as well as non-Native veterans and suffered as a result.

"Placing kids in non-Native homes because of family violence created other problems. It wasn't as bad here as in other communities because of the extended family system, but it still happened," he said.

For these and other reasons, "the emphasis was not placed on economic development," he concluded.

The First Nation had no control over this negative factor of its reserve land management.

4. Racism

"If you went into the neighbouring town of Rexton," Chief Barlow said, "nobody would hire you, if they didn't stone you. They used to stand on the bridge when our boats were passing underneath to stone us. Faced with that kind of attitude, you're forced back onto your small reserve. Then the federal government says: "Here's some chump change, do what you can with it." We were so poor, we couldn't go buy land and start a business. Even if we had been able to do so, an economic boycott would have followed from the local white community."

The Chief explained that Elsipogtog First Nations, which is only 10 to 15 miles away, bought a lobster boat in the 1970s or 1980s and local white fishermen vandalized it (e.g., smashed the windows). "In Indian Island," he continued, "hundreds of white-owned boats would encircle small Native boats with crews of six or seven and paralyze them. It was all about economics and they didn't want to share, so the federal government started buying fishing licences for Natives."

There was also physical violence from the government against Native fishermen, such as when the Department of Fisheries and Oceans "rammed a small Native fishing boat in 2000, a video of which went around the world."

"They like our money," the Chief continued, "they just don't like us. The town nearest the reserve benefits because there are no businesses on reserve, because our population's too small and because the non-Native population wouldn't buy from us. -93- They expect us to buy from them, though, but it's a one-way street, so there's no economic base in most reserves."

"It's pretty much the same here," the Chief said. "We have a convenience store, but it's only open part time because the owner couldn't afford to keep it open full time. We have a little bit of economic activity in the community: there are a few micro-businesses where people make traditional crafts or baked goods in their homes, but it's just a way to make extra money, it can't sustain a lifestyle."

"It would be better if we could keep our money in the community," he concluded. "The camping and recreational vehicle site might allow the store to open full time."

The First Nation has a low degree of control over this negative factor of its reserve land management.

5. High Unemployment

The First Nation government is the largest employer in the community.

The First Nation has a low degree of control over this negative factor of its reserve land management.

6. Provincial Policies

Chief Barlow explained that "the Province benefitted from INAC payment for First Nations education, because it gets $1,200 for a Native kid and $1,000 for a non-Native kid. That's an example of the provincial government offloading to the federal government, because we weren't getting anything from them other than what they already had in place. A recently concluded Enhanced Education Agreement has started providing services specifically targeted to First Nation kids. This is an example of how they're giving back, because they got extra money from the feds and claimed they were providing extra services, but they didn't."

The First Nation has a medium degree of control over this negative factor of its reserve land management, because by being steadfast in constantly raising issues with both the federal and provincial governments, over time its voices began to be heard, especially when they were backed by court rulings.

7. Lack of Tax Sharing Agreements

Chief Barlow said that "provincial governments have only recently started entertaining the idea of rebating part of our taxes. As previously mentioned, the New Brunswick government obtains a benefit from the federal government for the education of First Nation students. Part of that benefit should be shared with First Nations through a tax sharing agreement (TSA). Once the wind towers become operational, the First Nation- owned corporation that will own them will be taxable and could therefore benefit from a TSA.

The First Nation has a medium degree of control over this negative factor of its reserve land management.

D) Indian Island's Current Situation and Future Directions

This section measures success on a scale of 0 to 5. -94-

1. Success in using its reserve land for community control purposes

Indian Island assesses its success as a 4.

2. Success in using its reserve land for economic development purposes

Indian Island assesses its success as a 4, "based on how we define economic development, i.e., traditional means of sustenance and micro-businesses. We had no CPs, because we were too small, and no designations, but we were never hungry and at Christmas there were always gifts under the tree. With what they had to face, they did pretty damn good."

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Not applicable, because Indian Island uses no Indian Act tools and procedures to manage its reserve land.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Indian Island assesses its success as a 4, because "we're self-governing and our members follow the unwritten rules for governing themselves. A member asks Chief and Council "Can I build my house here?", and Chief and Council say yes. We never saw anybody take more than they needed and we never saw any fences going up, because the invisible lines are mutually respected."

5. Indian Island's priorities for the management of its reserve land over the next five years

i) Maximize economic development. As IIFN acquires more land to support economic development, new tools and procedures will be used, such as a wind power generating corporation.

ii) Follow up on the March 2010 INAC-funded erosion study. Land will need to be added to the reserve inland, because of IIFN's increasing population and the reality that one day its existing land will be under water. The First Nation is costing out the study's remedial recommendations and will ask INAC what can be done now to delay the inevitable relocation of about 50 Band-owned homes. "We want to protect that resource," said Chief Barlow, "so we need to build up the shoreline."

E) Indian Island's Recommendations

i) Discuss what your economic development is about. We have our traditional way to survive. A lot of First Nations go wrong building things that don't work, because they get into the wrong types of businesses. Communities have to do a reality check. We grew up with a strong work -95- ethic but only tackled things we could manage. Avoid the white elephant syndrome.

ii) Let the free economy work; don't get into Band-created businesses. We have a fairly prudent fiscal approach. There are programs out there to find seed money and fund a business plan. Our convenience store started out too big and the owner now realizes that.

iii) Look where you are and see what will work. A lot of us are off the beaten path. In Elsipogtog a lumber yard makes more sense than a restaurant because they have a lot of take-outs, so the restaurant shut down. Often people are just thinking about supplementing their income, not really about creating a viable business.

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Increase access to equity. A new fund was recently created under the First Nations Financial Authority with $7 million nationally, but we need $4 million and we're just one First Nation out of 634.

ii) Enhance or strengthen ministerial loan guarantees to help us secure more debt financing. If more reserves were able to match what they get from INAC, as we're trying to do, there would be less stressor.

iii) Strenthen Aboriginal tourism flow. Most of us are off the beaten path, so we need resourced tourism strategies. For example, the Acadian Trail is advertised all along New Brunswick highways, but we were here first, so why don't we have a Micmac Trail? Reserves who have the resources (we don't) could put in culture camps and other tourist attractions.

iv) Increase business development training for First Nations leadership. For example, we're learning a lot from our $20 million wind energy project, but there's some trepidation from INAC because we're such a small First Nation. More training might help reassure them, as well as ourselves.

Approved by J. Kevin Barlow October 21, 2010 -96- PREMIÈRE NATION DES INNUS ESSIPIT

INFORMATION STATISTIQUE

Emplacement A 1 km des Escoumins, dans la province de Québec, le centre de service le plus près auquel la réserve a accès par la route toute l‟année, zone 1, c‟est-à-dire urbaine

Population 176 membres (41.03%) sur la réserve, 253 membres (58.97%) hors-réserve, total de 429 77 membres apparentés sur réserve

Terres de réserve 86.25 hectares (213.12 acres), une réserve, riveraine

Cadre législatif et réglementaire de la gestion des terres de réserve Loi sur les Indiens – Gestion des terres des Premières nations (inactive)

Personnel de gestion des terres de réserve membre d’une association professionnelle Non

Impôts fonciers Non

Indice du bien-être des collectivités* 84

Indice de trame parcellaire** 84

Transactions actives enregistrées 19 transactions actives enregistrées dans le Registre des terres indiennes (RTI), le Registre des terres des Premières nations (RTPN) ou le Registre des terres des Premières nations autonomes (RTPNA) de 1999 à 2009

Certificats de possession (CP) actifs et enregistrés 97 CP actifs et enregistrés dans le RTI, le RTPN ou le RTPNA au 9 mars 2010

*L‟indice du bien-être des collectivités (IBEC) est une méthode pour évaluer le bien-être socioéconomique des collectivités canadiennes. Il rassemble des données du recensement sur le revenu, le plus haut niveau d‟études atteint, l‟activité sur le marché du travail et le logement en des « scores » de bien-être sur une échelle de 0 à 100 pour chacune des milliers de collectivités au Canada. Les scores de l‟IBEC sont tirés du Recensement de la population du Canada, mené tous les cinq ans.

**L‟indice de trame parcellaire (ITP) a été élaboré par la Direction de l'Arpenteur général de Ressources naturelles Canada pour mesurer l‟ensemble des données sur les parcelles de réserve sur une échelle de 0 à 100, en le comparant au milieu exploité (maisons, structures, défrichement et développement agricole). -97- PREMIÈRE NATION DES INNUS ESSIPIT

RÉPARTITION DES TENDANCES QUANT A L’UTILISATION DES TERRES

Certificats de Possession (CP) 3.7% 17.6%

Terres enregistrées utilisées à des fins résidentielles en attente 3.7% 50% de CP 3.7% Terres non enregistrées utilisées par la bande 17.6% 3.7% Terres Non utilisables par la bande 50%

Terre innutilisé par la bande 25%

25%

-98- PREMIÈRE NATION DES INNUS ESSIPIT

RAPPORT D'ENTREVUE

Le 10 août 2010 de 9:00 à 16:30 heures

Chef Denis Ross Réginald Moreau, Directeur général Marc Genest, Directeur, Développement économique Dominique Roussel, Coordonnatrice, Habitation, Formation, Membership et Terres

A. L'expérience de gestion des terres de réserve d'Essipit

Les 28 événements ou périodes clés suivants ont été identifiés.

1. La Grande Alliance (1603)

Du 27 mai au 9 juin 1603, les Chefs de trois nations alliées par la culture et la langue, les Étchemins (Malécites), Anicinabek (Algonquins) et Innus (Montagnais), se sont réunis à l'embouchure du Saguenay à l'invitation du Grand Chef Innu Anadabijou. Il y scellèrent une première alliance avec la France, le Roi Henri IV y étant représenté par François Gravé du Pont et Samuel de Champlain. Cette alliance a permis aux Français de s'établir dans la région de Québec en échange d'une promesse de relations économiques et d'aide militaire.

Anadabijou, qui incarnait le principe de souveraineté exercé depuis des millénaires par les différentes Nations peuplant le continent, considérait le Roi de France comme son égal en titre et en droit. Il accueillit ses représentants dans un esprit d'ouverture et de partage, de reconnaissance mutuelle et de fidélité bipartite. Cette alliance allait durer plus de 160 ans, jusqu'à ce que le Grand Chef Pontiac abandonne, sept ans après la chute de Québec, la lutte que menait contre les Britanniques une large confédération autochtone qui espérait toujours le retour des Français.

Gravé du Pont et Champlain ramenaient avec eux deux Innus qui avaient séjourné en France, où ils avaient reçu bon accueil, et qui étaient porteurs d'un message du Roi. Celui-ci faisait part de ses bonnes intentions vis-à-vis des nations réunies et de son désir de peupler leurs terres, de faire la paix avec leurs ennemis ou de les aider à les vaincre. Anadabijou répondit à Champlain "qu'il n'y avait nation au monde à qui il voulait plus de bien qu'aux Français." Les Innus leur ont donc ouvert les bras et ont accepté de partager avec eux leur territoire et ses ressources.

À cette époque les ancêtres des Innus d'Essipit étaient nomades et se tenaient à l'embouchure des rivières l'été, par exemple à la Pointe-à-la-Croix, au centre de ce qui est devenu le village des Escoumins. Leur territoire s'étendait à peu près de Québec à Sainte-Anne-de-Portneuf et ils n'ont jamais cessé de l'occuper.

2. L'arrivée des colons et des compagnies forestières (vers 1825)

Les maladies infectieuses font des ravages et les populations des Premières nations sont décimées. Au fur et à mesure que leur territoire est hachuré par les blancs, les Innus et les autres Premières nations y sont considérés comme des squatters.

3. Création de la réserve de Betsiamites pour tous les Innus de la Côte Nord et du Lac Saint-Jean (1862) -99- Les Innus d'Essipit refusent de déménager et l'Agent des Indiens de Betsiamites les gère à distance jusqu'en 1975.

Le ministère des Affaires indiennes (MAI) essaie de transformer les Innus en agriculteurs et crée une dépendance totale à l'égard de l'Agent des Indiens (semences, charrue, cheval, etc.).

4. Création de la réserve d'Essipit (1892)

En février 1843 les Innus d'Essipit demandaient que les terres qu‟ils habitaient déjà leur soient accordées avant qu‟ils n‟en soient dépossédés par les colons qui commençaient à arriver, et que soient respectés leurs droits de chasse et de pêche.

Cinquante ans plus tard, le gouvernement achète un terrain de Théodore Jean Lamontagne en haut de la côte du village des Escoumins dans le but de créer une réserve. Le terrain devait au départ mesurer 200 acres, mais on se rend compte au moment du transfert qu'il en manque 103, puisqu'il ne mesure que 97 acres. De plus, cette terre fédérale réservée aux Indiens n'a pas fait l'objet d'un décret lui conférant officiellement le statut de réserve, ce qui sera corrigé 101 ans plus tard, en 1993.

5. Les Innus bloquent le chemin du quai (1906)

Le voisinage entre Innus et Blancs donne lieu à une série de disputes concernant des clôtures, des fossés et l'accès aux terres des Blancs à travers la réserve. La réserve est en effet mal placée du point de vue des Blancs, puisqu'on doit la traverser pour accéder au quai en eau profonde construit par la compagnie Saguenay Lumber, le chemin contournant la réserve pour s'y rendre étant sujet à des éboulis.

Les Innus érigent une clôture qui bloque le chemin du quai pour affirmer leurs droits sur leur réserve.

6. La municipalité des Escoumins demande au MAI de déménager les Innus d'Essipit à Betsiamites et qu'on leur donne le fruit de la vente des terres de la réserve (1919)

Les Innus refusent à nouveau de déménager.

7. Création de l'Association des Indiens du Québec (début des années 1970)

Cette Association est fondée pour revendiquer le territoire, en réaction à la campagne électorale de Robert Bourassa qui promet de créer 100,000 emplois en développant le potentiel hydro-électrique de la région de la Baie James. Les Innus d'Essipit y sont actifs dès le début.

Suite à l'élection du Parti Québécois en 1976, les revendications constitutionnelles du Québec, qui insiste sur l'intégrité du territoire québécois, déteignent sur les Indiens. Ceux-ci veulent assurer leurs droits sur leurs propres territoires.

8. Le retour des trois amis (1976)

Denis Ross termine son diplôme de technicien en loisirs, son frère Bernard son diplôme d‟études collégiales en administration et leur ami Réginald Moreau son baccalauréat en récréologie. Plutôt que de faire carrière à l'extérieur, les trois hommes décident de revenir sur la réserve et de se mettre au service du développement de leur -100- communauté. En 1977 Denis Ross est élu Conseiller pour un mandat de deux ans. En juin 1979 il est élu Chef, poste qu'il occupe encore présentement.

Le premier projet des trois amis est une salle communautaire, dans laquelle se réuniront à la fois le Conseil de Bande, qui se réunit jusque là dans la résidence du Chef, et la communauté dans son ensemble. Ils n'ont pas de projet d'entreprise privée, mais sont animés par une pensée communautaire. La trajectoire est lancée.

9. Création du Conseil Atikamek-Montagnais (1976)

En 1975 le Grand Conseil des Cris et le gouvernement du Québec signent la Convention de la Baie James et du Nord Québec. Les Cris ont cassé le Traité de Solidarité pour signer seuls et l'Association des Indiens du Québec est dissoute.

Douze communautés (trois Atikameks et neuf Montagnaises) s'unissent pour former le CAM et mettre de l'avant leur revendication territoriale globale.

10. Premier bureau de Bande (1978)

L'ouverture du premier bureau de Bande marque le début de la prise en main par la communauté, la scolarisation de certains de ses membres et la volonté de dévolution des programmes du MAI aidant.

Les débuts sont modestes: pour prendre en charge les programmes du MAI le Conseil de Bande a pour seuls employés un gérant de bande animateur et une secrétaire à temps partiel.

La réserve ne sert alors qu'à des fins purement résidentielles, à l'exception d'un dépanneur privé ayant ouvert ses portes autour de 1960. Les membres de la communauté travaillent tous hors réserve, surtout pour la compagnie forestière Consolidated Bathurst.

11. Ouverture de la salle communautaire (1978)

Le premier projet de développement communautaire est réalisé grâce à un emprunt qui avait été largement débattu, certains membres hésitant à voir la communauté s'endetter. La décision est prise avec une attitude de "ça passe ou ça casse" et le projet est un succès.

On crée alors un premier poste à temps plein, celui de gérant de Bande et animateur de la petite salle de billard au sous-sol de la salle communautaire. Le développement part en grande partie de là, puisqu'une personne au service de la communauté (Bernard Ross) est désormais payée pour s'en occuper.

12. Formation du Comité de développement socio-économique de Bande (1980)

Le CDSEDB prend en charge une partie des programmes dévolus du MAI. Le CAM avait pris la responsabilité du secteur santé et bien-être social, et Essipit décide de prendre en charge l'éducation et le développement économique. La communauté étant trop petite pour justifier un salaire à temps plein pour chaque secteur, on fusionne deux demi-salaires et on crée un poste de Directeur Éducation et culture-Développement économique.

-101- Celui-ci (Réginald Moreau) consulte la population sur leurs ambitions en matière d'éducation, de culture et de développement socioéconomique, et amène ainsi les gens à s'identifier à des projets de développement. Cette consultation est aussi l'occasion d'identifier les compétences, diplômes et intérêts des membres de la communauté, et de les faire participer à une réflexion stratégique communautaire. L'extrême exiguïté de la réserve (0.4 kilomètre carré) est une donnée de base, mais les gens donnent quand même leur aval à l'utilisation d'une partie des terres de réserve à des fins de développement économique.

Au fil des ans d'autres consultations communautaires sont tenues sur des projets spécifiques, comme les cours d'artisanat (1980), le bar et la salle de raquetball, la radio communautaire et le kiosque d'artisanat (1981). Il s'agit de projets récréo-touristiques, de services et de loisirs qui améliorent la qualité de vie, créent de l'emploi et font des profits qui sont réinvestis dans la communauté.

Onze ans plus tard, en 1991 la communauté constatera que 80% du rêve de 1980 a été réalisé, notamment par le biais de travaux de foresterie, de pourvoiries, d'entreprises de tourisme et d'un dépanneur communautaire.

Dès le début, le travail des gens pour leur communauté est encadré par la devise "Pour nos pères et nos enfants," ce qui signifie dans le respect des valeurs de nos ancêtres et pour le mieux-être de nos enfants.

13. La guerre du saumon (1981)

Un membre des Innus d'Essipit se fait enlever son filet individuel par le ministère des Loisirs, chasse et pêche du Québec dans le fleuve en face de la réserve. Il demande l'aide de la communauté et lui donne son filet, qui devient de ce fait un filet communautaire, et la communauté décide de l'appuyer.

Les Innus re-bloquent le chemin du quai pour la première fois depuis 1906, cette fois pour réaffirmer leurs droits sur leur territoire traditionnel. Le trafic du traversier Les Escoumins-Trois Pistoles est bloqué. Le CAM organise une marche de solidarité à Essipit dans le contexte des revendications des Premières nations au Québec.

La communauté d'Essipit est unie derrière son conseil et ses leaders. Comme l'ont dit ses représentants, "on arrêtait d'être des bons Indiens et on recommençait à être dérangeants.

14. L'acquisition de pourvoiries (1983-99)

L'achat de la pourvoirie du Lac des Coeurs, d'une superficie de 141 kilomètres carrés, en 1983 assurait la présence d'Essipit sur son territoire traditionnel hors de sa réserve de 0.4 kilomètre carré pour la première fois depuis 1892. Au fil des ans Essipit acquiert cinq autres pourvoiries:

- Club Claire, 29 kilomètres carrés, en 1989 - Domaine Sportif du Lac Loup, 55 kilomètres carrés, en 1990 - Lac Jumeaux, 16 kilomètres carrés, en 1994 - Lac Bernier, 30 kilomètres carrés, la moitié acquise en 1996 et l‟autre moitié en 2006, - Lac à Jimmy, 24 kilomètres carrés en 1999.

Aujourd'hui 80% des entreprises d'Essipit sont situées hors réserve.

-102- Suite à l‟acquisition des pourvoiries, Essipit a conclu des ententes de gré à gré avec des compagnies forestières pour des contrats de reboisement.

15. L'implantation du Totem (1986-94)

La réserve n'ayant pas d'accès à la route 138, le principal axe routier de la Côte-Nord, Essipit fit l'acquisition d'un terrain municipalisé en bordure de cette route. La Première nation y érigea un totem pour attirer l'attention des passants et une affiche annonçant les services et commerces de la communauté. Dès son installation, le totem fut contesté par la municipalité des Escoumins pour non-conformité avec son Règlement sur l'affichage. S'en suivit une bataille juridique qui dura huit ans et qu'Essipit finit par perdre en 1994.

Selon les représentants d'Essipit, cet acharnement de la municipalité contre le totem était symbolique du fait que "Essipit devenait dérangeant parce qu'on faisait du développement et que les voisins blancs nous aimaient mieux quand on n'en faisait pas."

16. L'achat et la rénovation du chalet d’un membre (1986-87)

Vu l‟extrême exigüité de la réserve et afin de maximiser l'accès au logement pour tous ses membres, Essipit s'est fixé un objectif d'une seule habitation par membre et un seul certificat de possession de terrain par individu. La communauté a donc acheté le chalet d'un de ses membres pour assurer la conformité avec cet objectif, auquel le Chef et l'Administrateur de la Bande se sont aussi conformés en vendant leur résidence secondaire. Il s'agissait dans tous les cas de ventes de gré à gré résultant de négociations avec ses membres, méthode que la communauté a jugé préférable à l'imposition d'un règlement.

L'objectif d'une maison par membre a été reflété dans la politique d'habitation adoptée en 1997.

17. Acquisition du terrain AD (1988)

Essipit a acheté un terrain presque contigu à la réserve en prévoyant éventuellement l'y ajouter. L'achat a été financé par la Bande et son coût lui a été remboursé par le MAI au moment de l'ajout à la réserve, le terrain devenant propriété fédérale.

18. Étude d'impacts sur la loi C-31 et premiers retours sur réserve (1987-88)

19. Construction des cinq chalets de l'Anse-à-Jos (1988)

La construction de ces chalets découlait d'une réflexion communautaire sur l'utilisation du territoire de la réserve au bénéfice de la communauté à des fins individuelles ou communautaires. L'Anse-à-Jos était un endroit privilégié en bord de mer qui était quelque peu utilisé par les membres. La construction de chalets à des fins de location touristique signifiait que l'accès à cette partie de la réserve serait désormais moins accessible par les membres. Les membres ne pourraient donc plus bénéficier directement de ce lieu à titre individuel, mais en bénéficieraient indirectement à titre communautaire par le réinvestissement des profits des chalets dans la communauté.

20. Plan de développement touristique (1993-94)

-103- Suite à la construction des chalets de l'Anse-à-Jos en 1988, à l'acquisition de la pourvoirie du Club Claire en 1989 et de celle du Domaine Sportif du Lac Loup en 1990, en 1992 Essipit a mis en place un plan de mise en valeur du saumon, construit une scène extérieure pour pow-wow et acquis un premier bateau de croisière aux baleines.

En 1993-94 un plan de développement touristique venait structurer ce développement pour faire d'Essipit une destination touristique, en mettant en valeur la culture autochtone dans les produits touristiques. Cette volonté d'amérindiennisation ou d'identité innue, que partageaient les autres bandes innues, se traduisit d'abord par l'adoption de l'appellation Essipit pour désigner ce qui s'appelait antérieurement la réserve indienne des Escoumins. Essipit donna aussi des noms innus à tous ses lieux publics, entreprises et services.

21. Dissolution du CAM (1994)

Selon les représentants d‟Essipit, comme la dissolution de l'Association des Indiens du Québec en 1975, celle du CAM presque 20 ans plus tard était le résulta d'un manque de solidarité entre Premières nations.

Les douze communautés du CAM se sont divisées en trois blocs de négociation: le Bloc Atikamek, le Bloc Centre-Conseil Tribal Mamuitun dont fait partie Essipit, et le Bloc Est- Conseil Tribal Mamit-Innuat.

22. Acquisition du terrain de la fabrique (1994)

Essipit a acheté ce terrain contigu à la réserve qui permettait de rejoindre le terrain AD acheté en 1988 et ainsi de rencontrer le critère de contiguïté de la Politique sur les ajouts aux réserves pour les deux terrains. Quelques mois plus tard, l'évêque du diocèse de Baie Comeau appelait le Chef Ross pour lui demander de rétrocéder le terrain à la fabrique, en raison de pressions de membres de la population des Escoumins et "pour préserver la paix sociale." Le Chef Ross, étonné, a refusé.

Pour les représentants d'Essipit, ces pressions s'expliquent par la mesquinerie, la jalousie et l'envie à l'égard des "supposés privilégiés" que constituent les Indiens sur leur 0.4 kilomètre carré de réserve. Elles reflètent également l'opposition farouche des voisins blancs à tout projet de développement d'Essipit, que ses représentants ont résumé en disant "pas de développement, pas de problème." Selon eux, cette opposition prend sa source dans la haine et le racisme.

23. Ajout à la réserve (1998)

Face à cette opposition, en 1995 Essipit a commandé une étude sur les retombées socio-économiques de la communauté sur le milieu local et régional, dans l'espoir de convaincre la municipalité des Escoumins d'appuyer son projet d'agrandissement de la réserve, ainsi qu'une étude démographique afin de convaincre à la fois la municipalité et le MAI de sa nécessité.

Rien n'y fit. Les négociations avec la municipalité traînaient en longueur en 1996-97 mais n'aboutissaient pas. Le conseil municipal passa des résolutions s'opposant à l'ajout à la réserve et la mairesse de l‟époque, Mme Maltais, fit une déclaration télévisée exigeant un engagement d'Essipit à ne pas faire de développement économique, par crainte de "concurrence déloyale.‟‟ Il a fallu que les gouvernements fédéral et provincial donnent des "bonbons", qui prirent la forme d'une promenade de $700,000 et d'une usine d'assainissement des eaux de $3.2 millions, pour acheter l'accord des Escoumins. -104- Même avec ces "bonbons", l'attitude de la population voisine demeurait hostile, comme l'illustra la manchette du journal régional: "Les Escoumins abdiquent devant les autochtones." Pour les représentants d'Essipit, "ce fut une époque très douloureuse."

24. Signature avec les gouvernements fédéral et provincial de l'Approche commune sur la revendication territoriale globale (2000)

25. Projet de gestion intégrée des ressources (2000-2010)

Ce projet a été réalisé dans le cadre de l'Initiative de préparation des négociations sur la revendication territoriale globale et a permis d'axer le développement économique d'Essipit sur le développement hors réserve. Le plan de gestion intégrée des ressources a également permis de faire le constat des enjeux sur l'ensemble du territoire. C'est ainsi qu'Essipit a trouvé des caribous forestiers en voie d'extinction et fait créer une réserve de biodiversité pour les protéger.

26. Accès aux ressources (2002)

La création de cette réserve de biodiversité n'a pas été chose facile. Essipit "avait décidé d'y aller jusqu'au bout et on était près à s'attacher après les arbres s'il le fallait," selon ses représentants. Des négociations eurent lieu avec le Ministère des Ressources naturelles du Québec dans un climat de "poudrière sociale" et "Boisaco, la plus grande compagnie forestière de la région, a vu qu'on avait des droits et une ferme détermination pour les défendre quand on a paralysé l'obtention de ses permis de coupe.‟‟

Les jugements de la Cour Suprême, notamment dans les affaires Marshall et Delgamuuk, ont confirmé "qu'on existe, qu'on a des droits aux ressources et qu'ils doivent nous consulter pour les exploiter,‟‟ selon les représentants d‟Essipit. Ses 375 kilomètres carrés de pourvoiries contribuent ainsi à assurer à Essipit une place à la table, mais ne suffisent pas toujours.

Le plan de gestion intégrée des ressources a "identifié l'ensemble des ressources sur le territoire pour s'assurer qu'on est partenaires s'il y a des projets ou qu'on les développe nous-mêmes. Néanmoins, on est toujours à la merci des autres, qui ne nous parlent pas tout le temps, ou qui parfois nous donnent accès aux ressources mais pas les moyens d'y accéder, comme dans la cas de l'ouverture au milieu par le gouvernement du Québec de la production d'énergie éolienne," selon les représentants d'Essipit.

Lors des appels d‟offre il n‟y a pas de bloc d‟énergie réservé à Essipit sur ce qui est défini comme son territoire traditionnel (Nitassinan). N‟importe quelle compagnie peut déposer des projets sur le Nitassinan dans la mesure où elle prouve qu‟Essipit a été consulté. Essipit aurait souhaité que le gouvernement mette en place un programme de financement (par exemple, de garanties de prêts) afin de permettre aux Première nations de pouvoir mettre leur mise de fonds dans les projets car elles ne peuvent pas avoir accès au marché financier de façon traditionnelle, compte tenu de la Loi sur les Indiens, de la non-saisissabilité de leurs actifs et du fait qu‟elles n‟ont pas de pouvoir de taxation comme les municipalités ou les municipalités régionales de comté.

27. Signature avec les gouvernements fédéral et provincial de l'Entente de principe sur la revendication territoriale globale (2004)

Au moment de cette signature, des cartes furent publiées indiquant les terres qui reviendraient en pleine propriété à Essipit une fois négociée l'entente finale. Cette -105- publication eut pour effet d'accélérer le développement sur ces terres, dont les propriétaires cherchaient à augmenter la valeur en prévision d'un éventuel dédommagement. La négociation a évolué en conséquence et le projet d'entente finale prévoit maintenant moins de terres privées en milieu municipalisé et plus de terres de la Couronne en forêt.

28. Mouvement de protestation des Escoumins (2008)

Un comité s‟étant nommé "Comité de survie des Escoumins," avec bureau prêté sans frais par la municipalité dans son édifice municipal, a installées trois grosses affiches jaunes en bordure du chemin principal au milieu du village sur lesquelles on pouvait lire "Non au Traité avec les Innus." Les représentants d'Essipit y voyaient un "placardage empreint de haine et de racisme." Le maire a menacé publiquement que des autos appartenant aux membres d'Essipit pourraient êtres vandalisées et des chalets brûlés. Une marche populaire a été organisé par le Comité de survie et près de 400 personnes (principalement des résidents des Escoumins) ont participé à cette marche qui donnait son appui au Comité.

B. Les principaux facteurs qui ont contribué positivement à la gestion des terres de réserve d'Essipit, en ordre d'importance décroissante

1. Leadership et vision

Le rassemblement autour d'une même vision a permis à la communauté de transcender les rivalités basées sur les intérêts individuels et familiaux.

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

2. Le développement communautaire

Vu l‟extrême exiguïté de la réserve (de 0.8 kilomètre carré depuis l‟ajout à la réserve de 1998), il a fallu être parcimonieux et rationner l'utilisation des terres.

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

3. Le succès du premier projet de développement communautaire

Le fait pour le Conseil d'avoir tenu sa promesse en livrant la salle communautaire lui a permis de se bâtir une crédibilité auprès de ses membres, basée sur l'intérêt communautaire et non pas sur l'intérêt individuel. Cette crédibilité a permis au Conseil et à la communauté de traverser les crises par la suite.

La Première nation a un degré de contrôle moyen sur ce facteur positif de sa gestion des terres de réserve.

4. Stabilité politique et administrative

Ce facteur a deux aspects: la continuité et la stabilité, au niveau du personnel tant politique qu'administratif, et un mariage harmonieux entre eux.

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve. -106- 5. La politique d'habitation

Cette politique a été adoptée en fonction de la petitesse du territoire et dans l'esprit du développement communautaire. Les représentants d'Essipit ont dit qu'il "aurait pu y avoir un millionnaire propriétaire de toute la réserve mais on n'en voulait pas. Pour cela il a fallu faire accepter une habitation et un certificat de possession par individu et c‟est encore ce qui prévaut.

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

6. L'ajout à la réserve des deux terrains achetés

La Première nation a un degré de contrôle faible sur ce facteur positif de sa gestion des terres de réserve.

7. Ne pas se confiner à la réserve pour le développement économique

Selon les représentants d'Essipit, "sur notre 0.8 kilomètre carré on ne peut faire que du développement de survie. Si on s'était limité à la réserve, on aurait un dépanneur et quoi d'autre?"

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

C) Les principaux facteurs qui ont contribué négativement à la gestion des terres de réserve d'Essipit, en ordre d'importance décroissante

1. L’extrême exiguïté de la réserve

Pour démontrer le caractère raisonnable de sa revendication territoriale globale par rapport à sa population, en 2003 Essipit a calculé comme suit le nombre de kilomètres carrés par habitant des municipalités avoisinantes, suivant les données de la Municipalité régionale de comté:

- les Escoumins: 0.13

- Sacré-Coeur: 0.16

- Tadoussac: 0.08

- Bergeronnes: 0.40

- Longue Rive: 0.21

- Portneuf: 0.26

- Forestville: 0.06

La moyenne était de 0.21.

Avec sa population sur et hors réserve de 386 et sa superficie de 0.8 km2, Essipit avait à l‟époque un rapport territoire/population de 0.001. Si elle obtenait les 48 km2 qu'elle revendiquait dans les négociations, la Première nation aurait un rapport -107- territoire/population de 0.12, donc encore bien inférieur à la moyenne des municipalités avoisinantes.

L‟extrême exigüité du territoire a forcé des choix déchirants, comme la construction des chalets touristiques à l'Anse-à-Jos et l'installation d'une affiche rouge disant "Clients Autorisés Seulement" qui en limite l'accès à nos propres membres. En fait, il faut quelque peu brimer la liberté de nos gens afin de faire coexister la notion de développement économique sur un si petit territoire. "On aimerait mieux dire oui aux membres qui veulent faire d'autres usages de la réserve," ont dit les représentants d'Essipit, "mais on est obligé de brimer un peu nos gens. On a fait du développement économique parce qu'on avait du financement de différentes sources gouvernementales qu'on aurait pas eu pour du résidentiel. On est obligé de dire à nos membres d'aller hors réserve pour faire du développement économique, comme la Bande."

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

2. Le manque de solidarité des Innus

"Si toutes les Premières nations étaient restées ensemble, on aurait eu plus de chances d'avoir un traité," ont dit les responsables d'Essipit. "Plus on se chicane et moins il y a de traité qui se signe. On est parti avec l'Association des Indiens du Québec et on est rendu à négocier à trois Premières nations innues."

La Première nation a un niveau de contrôle faible sur ce facteur négatif de sa gestion des terres de réserve.

3. L'attitude des gouvernements du Canada et du Québec

De l'avis des représentants d'Essipit, "les deux gouvernements ne prennent pas leurs responsabilités. La négociation [de la revendication territoriale globale] dure depuis plus de trente ans parce que si t'as pas de barrage à construire, ce n‟est pas bien vendeur de donner du territoire aux Indiens." Il en résulte "une délégation de pouvoirs électoraliste et excessive aux municipalités," qui cause le blocage des négociations parce que "plus tu descends au niveau du sous-sol d'église, plus ça devient de l'interpersonnel" et plus les gens adoptent "une perspective à trop courte vue et dépourvue de vision. Un traité de gouvernement à gouvernement ne sera jamais réglé par des élus locaux parce qu'ils voient leur petit morceau de territoire s'effriter au lieu de le voir se développer. Il faut dépersonnaliser le débat et que le gouvernement décide de l'intérêt collectif. En 1985 le Premier ministre René Lévesque a reconnu les Premières nations du Québec. Depuis il n'y a eu aucune continuité parce qu'il n'y a aucune ouverture."

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

4. Le manque d'ouverture de la municipalité voisine des Escoumins

C'est ce manque d'ouverture qui a empêché Essipit d'agrandir sa réserve plus qu'elle n'a réussi à le faire, et aujourd'hui elle ne peut plus le faire.

La Première nation à aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

5. L'absence de règlement de la revendication territoriale globale -108- C'est là le résultat de l'absence de volonté de régler des gouvernements fédéral et provincial, qui détiennent à la fois les pouvoirs et les terres.

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

6. La Loi sur les Indiens

Cette loi complexifie les transactions foncières et "ça nous ralentit," ont dit les représentants d'Essipit, "mais ce n'est pas le plus contraignant. Ça ne nous a pas empêché de nous développer."

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

7. Le processus d'ajouts aux réserves

Ce processus est complexe et beaucoup trop long, et ses règles sont trop contraignantes, notamment l'exigence de contigüité et le fait que le développement économique n'est pas considéré comme une raison suffisante pour agrandir la réserve.

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

D) La situation actuelle d'Essipit et ses voies d'avenir

Cette section mesure le succès sur une échelle d'un à cinq.

1. Succès à utiliser ses terres de réserve à des fins de contrôle communautaire

Essipit évalue son succès comme un 4.

2. Succès à utiliser ses terres de réserve à des fins de développement économique

Essipit évalue son succès comme un 5.

3. Succès à utiliser ses terres de réserve avec des outils et procédures prévus par la Loi sur les Indiens

Essipit évalue son succès comme un 4.

4. Succès à utiliser ses terres de réserve avec des outils et procédures qui ne sont pas prévus par la Loi sur les Indiens

Essipit évalue son succès comme un 1 et ce faisant fait référence à sa politique d'habitation.

5. Les priorités d'Essipit pour la gestion de ses terres de réserve au cours des cinq prochaines années

i) Le Traité pour régler la revendication territoriale globale

-109- ii) La revendication particulière pour les 103 acres manquants au moment de la création de la réserve

iii) L'agrandissement de la réserve

iv) La continuation du développement économique hors réserve (qui est la clé de l'indépendance par rapport au MAI). Assurer une priorité continue à l'intérêt collectif dans un moment charnière de l'histoire de la communauté

E) Les recommandations d'Essipit

1. À mettre en oeuvre par les autres Premières nations au cours des cinq prochaines années pour maximiser la contribution de la gestion des terres de réserve à l'atteinte de leurs buts en matière de contrôle communautaire et de développement économique

i) Privilégier l'intérêt collectif avant l'intérêt individuel (c'est complémentaire, mais d'abord le collectif)

ii) Pour nos pères et nos enfants (la devise d'Essipit), ce qui veut dire qu'on travaille dans l'esprit de ceux qui nous ont précédé et dans l'intérêt de ceux qui nous suivront. "Nous", i.e., ceux qui sont entre "nos pères" et "nos enfants", on est pas là pour en profiter, on est là pour travailler.

iii) Allez voir ce que font les autres Premières nations pour apprendre de leurs expériences

2. À mettre en oeuvre par le gouvernement du Canada au cours des cinq prochaines années pour tenir son engagement de moderniser la gestion des terres de réserve

i) Réglez tous les dossiers de revendications. Faites une priorité du règlement des revendications tant particulières que globales, ce qui nous donnera du pouvoir, du territoire et des ressources, notamment financières, et nous sortira du cadre de la Loi sur les Indiens.

ii) Encouragez le gouvernement québécois à vous suivre dans la voie du règlement des revendications globales

iii) Donnez aux Premières nations les ressources humaines et financières nécessaires pour une bonne gestion des terres de réserve, notamment pour payer les frais d'arpentage et autres frais inhérents.

iv) Investissez dans l'habitation pour aider à régler les problèmes sociaux criants qui découlent de la trop grande promiscuité

Approuvé par le Chef Denis Ross Le 27 octobre 2010 -110- KAHNAWÁ:KE

STATISTICAL INFORMATION

Location 14 km from Montreal, in the province of Québec, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 9,771 members (87.2%) on reserve, (7,540) members (22.8%) off reserve, total 17,310 16 non-member residents on reserve

Reserve land 20,161.65 hectares (49,820.52 acres), two reserves, one urban and one remote

Reserve land management legislative and regulatory framework Regional Lands Administration Program

Reserve land management staff membership in a professional association National Aboriginal Land Managers Association

Property taxes No

Community Well-Being Index* N/A

Parcel Fabric Index** 71

Active registered transactions 4,937 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 17,484 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

Certificates of Possession (CP) and other Evidence of Title (EOT) Lands 89%

Licensed/Permitted Activity 0.1%

89%

Individual Buckshee Long- Term Leases 1%

4% Unregistered Band Use Lands* 2%

2% Unused Band Lands 4% 1%

0.1%

*240 remote sites being used by part-time residents -112- KAHNAWÁ:KE

INTERVIEW REPORT

August 18, 2010, 1:30 to 4:30 PM

Dennis Diabo, Kahnawake Jurisdiction Development Carol Goodleaf, Land Management Coordinator

A) Kahnawá:ke's Reserve Land Management Experience

The following 12 key events or periods were identified.

1. Reserve Creation according to the Indian Act (1800s)

2. Highway Expropriations (1800s)

3. New York Central Railway Expropriation (1800s)

4. CP Rail Expropriation (1890)

CP had only asked for a right-of-way, but INAC gave them the land, which is also true of another expropriation for CSX Rail 1888 A survey plan done at the time includes a notation from an engineer about the Saint Lawrence Seaway that was to be built 40 years later, but the community didn't know about these plans. The Indian Agent in charge of the expropriation sat on the CP Board of Directors and there was "a lot of friendship going on."

5. Kahnawá:ke Golf Course Lease 1910 - Present

CP Rail executives wanted to build a golf course on the reserve. To that end, they leased land from seven Occupation Ticket (OT) holders and some Band land.

As a result of the passage of time, today there are 67 undivided interests in the golf course. The leases provided for a very low rent and the amount of consultation that preceded their signature is not clear. The fact that a number of OT holders signed with an "X" raises questions about the extent of their understanding of what was going on, especially since "the Indian Agent living in the community arranged all these deals."

6. Hydro Towers Expropriation (early 1900s)

Four Hydro Québec power lines cut through the reserve today, but Lines 3 and 4 are no longer used. Hydro-Québec has a mandate to reach agreement with the community on Line 1, which carries 80% of the power coming into Montreal, but "is holding Lines 3 and 4 hostage." Thirty years ago the Mohawk Council of Kahnawá:ke (MCK) asked Hydro Québec to return the lands under those lines, on which homes were built and for which people will want their CPs because their mortgages are paid off.

Line 2A was expropriated, whereas Line 2B was subject to an easement, so Hydro Québec has no responsibility to the community for that one.

There were more expropriations for power line purposes after the Seaway was built.

7. City Gabage Dumping on Reserve (late 1940s to late 1970s) -113- The Indian Agent gave letters to CP holders saying that it was OK for them to accept garbage disposal on their CP land. The existence of six contaminated sites on reserve has been confirmed through completion of Phase 3 of the Contaminated Sites Assesment Process, and low-level radiation has been detected in three of the six. Block F has the most contaminated sites and the site with the highest level of contamination is under one of the golf clubs. Environment Canada is currently working with Health Canada to carry out more tests, "and there's other stuff" with respect to environmental contamination on reserve.

MCK is doing groundwater monitoring, which is important for both housing and economic development. MCK is also working with CP holders on these issues, which is a challenge because they don't want to be told that contamination is limiting their economic development potential.

MCK now has a Landfill Department, which ensures that only Grade A & B material is coming into the community to prevent the dumping of contaminated soils or other materials. That continues to be a problem because "contractors think there are no laws in place" on the reserve, in spite of MCK's adoption of a Sanitary Conditions Law.

8. INAC LTS Office Opens in the Community (around 1940)

There is both duplication and lack of communication between INAC's local Lands and Trust Services (LTS) Office on the reserve and MCK's Lands Department, because the former is not responsive to the latter's requests for information and cooperation, according to Kahnawá:ke representatives.

This allows community members to shop for the answer they want between the two. It also prevents the resolution of the seven major outstanding land issues in Kahnawá:ke: - undivided interests, - lands requiring surveys, - lack of access roads, - unsettled estates, - lands under lease, - ownership of roads and - easements, right of ways and utilities.

None of these issues is resolved in spite of the fact that INAC has been aware of them for some time, and they all block economic development.

Speaking of the INAC LTS Office, Carol Goodleaf, Kahnawá:ke's Land Management Coordinator, said: "They won't give me information on estates, but we got them to stop doing transfers, so now they want information on transfers. We're being asked by INAC to resolve outstanding land issues but INAC policy related to the registration of lands prevents them from being resolved. INAC has no flexibility."

As a result of this disfunctional relationship between the two offices, "a CP holder tried to pull a fast one by transfering his land twice in the same day (to the Caisse populaire in one office and to his sister in the other) because the opportunity to do so exists," said Ms Goodleaf. Moreover, she continued, "it costs 50-60% more to pay for a survey on reserve than off reserve, because we have to seek the mandate from NRC, who issues the mandates for legal surveys on reserve, we and the surveyors then have to work directly with a community member and the standards are higher, i.e., the survey can only be done by a Canada Lands Surveyor. As a result, community members are put at a disadvantage before they can get a loan for a house or business. They have no support -114- when they need to sub-divide their land and the process is both timely and expensive. It costs them $2,000 to $5,000 to get the survey done, so it's frustrating for them."

9. Seaway Expropriation (early 1950s)

This was the largest expropriation in Kahnawá:ke's history, which "tore the community in half" and from which the federal government managed to save the church and the Kahnawaki Golf Club.

While the combination of expropriations for the Seaway, railroads, the bridge, the highway, the golf club, Bell and the hydro lines is very complex, the Seaway "was the most devastating: the RCMP took people out of their homes if they didn't agree to leave. That led to a lot of mistrust of government and made our fight for our sovereignty and jurisdiction even stronger."

Years later the Seaway gave back some of the expropriated land, not to the community but to the Jacques Cartier Bridge Corporation (a federal Crown corporation), the Québec Department of Transportation and CP Rail. In other words, "all the non-Native parties were compensated."

Moreover, dredging waste was dumped onto Saint Lawrence Seaway lands that were given back to MCK in the 1970s with no environmental assessment and no environmental clean-up. As a result, "mountains of contaminated soils in proximity to the highway prevent commercial development." The hydro towers similarly limit the reserve's development potential.

10. Three Quarries Established (1950s)

All three quarries had to go through INAC. One of them remains in operation, while the other two are full of water. One of those two was forced to shut down by the community because of improper management and irregularities.

"INAC did not exercise due diligence, was not carrying out its responsibilities and didn't get fair market value for Kahnawá:ke across all these deals," said the First Nation's representatives. In their view there was a pattern of dereliction of fiduciary duty on INAC's part throughout all the previously mentioned events and periods.

11. Trust Agreements Established (1987)

The Kahnawá:ke Caisse Populaire (credit union) has a Board of Trustees, which negotiated a Trust Agreement with INAC outside the MCK. This agreement allows CP holders to transfer their CP to three bank trustees to garantee repayment of their loan. This "opened up a lot of businesses" and the Caisse populaire is now doing the land transactions, i.e., transferring the CPs from the CP holders to the trustees.

INAC's decision in 2005 to cut survey funding "had a big impact, because if you have to give half an acre from your CP as a garantee for a loan, you need to survey that land." At the same time INAC changed the order of surveys and transactions, which used to be done in the reverse order.

Another problem with the trust agreements is that they have no provisions in the event of the death of one of the three trustees, so all lots in which a trustee has a one-third interest upon his death get caught up in his estate unless he has a good will. If he doesn't, the CP holder may be prevented from getting his land back until the estate is -115- settled, which can take years. "Council knows little about these agreements that impact our work," said Kahnawá:ke representatives.

The INAC local LTS Office sends to Council transactions they receive from the Caisse Populaire as a courtesy to the Band. Council is not always involved, or informed in a timely manner, of these transactions. In effect, the Caisse is now involved in land transactions. The trust arguments are through an agreement between INAC and the Caisse. It‟s not a negative for the community, but the way it‟s set up creates more confusion with managing lands within the Territory because no cooperation agreement exists to share information.

People could use loans to build a house, which would mean economic development for contractors, or open a business. This requires them to show clear title to the land to be used (which is not always possible), and then to turn it over to a board of trustees at the Caisse. Moreover, a lack of infrastructure in the community creates more obstacles to economic development, because people with good ideas to start a business can't access lands they need. The lack of infrastructure may take the form of lack of access roads to the land in question or lack of servicing.

12. Kahnawá:ke Takes Over Leasing (1990s)

MCK started taking over leases after they expired and is no longer asking INAC to do them. "INAC says it's illegal, but we're just doing it," said Kahnawá:ke representatives. MCK took this decision because of the problems caused by INAC management of its leases, which are ongoing to this day: - no fair market value; - improper procedures being followed, e.g., no Ministerial signature when leases change hands; and - "questionable things being done." For example, the close relationship between the Indian Agent and the executives of Kanawaki and Hydro appear to have facilitated these land transactions at the expense of the land holders, as illustrated by the low lease rental the CP holders receive.

Kahnawá:ke representatives explained that "when we look at all these things, INAC won't let us see their files because they're protecting themselves and don't want to be held to account for previous wrongdoing. We're taking over because of mismanagement and doing things improperly and illegally, so we don't trust INAC with the management of our land."

"Unsettled estates are also a problem," they added, "because INAC isn't doing anything about it."

Kahnawá:ke representatives also expressed concern about the land records lying in the basement of the INAC local office, which could be destroyed by a flood or fire "and our history would disappear. We're not getting good cooperation from the Church and State, i.e., INAC, who are still working against us. If these records are destroyed, there will be an even bigger quagmire than the one we're already in and we'll never be able to sort it out."

To illustrate the current state of land-related affairs, Kahnawá:ke representatives explained that a land transfer was rejected by INAC because of a wrong band number, so the transfer was sent back to the INAC local office to fix it, and five years later it still hasn't been fixed. "This is one we found out about from the manager of the INAC local -116- office. So how many others are there like it that they have not informed us about?", they asked.

Members come to Ms Goodleaf, she tells them "sorry, you're not even a land owner because transactions have been left unregistered, and they freak out," she said. "A review should be done to update the registration of lands within the Territory. If they're not registering the transactions they're supposed to be registering, where's the accountability? Why does INAC have an office here? We want them to solve our seven types of land issues and to put in place a process for resolving them," she concluded.

B) The main factors that contributed positively to Kahnawá:ke's reserve land management, in declining order of importance

1. MCK Resolve

Reflecting the community's resolve, Council decided that "these kinds of things done to us by INAC will never be allowed to happen again."

The First Nation is pursuing a higher degree of control over this positive factor of its reserve land management.

2. Exercise of MCK Authority

"We're not asking for authority, we have authority and we're exercising it," said Kahnawá:ke representatives. That notion cuts across everything MCK does, including land management matters but also elections, community involvement and the different ways, formal and informal, that Council gets guidance from the community. Kahnawá:ke's overriding objective is "recognition and implementation of our jurisdiction and authority."

Returning to land management, Kahnawá:ke representatives said: "We ask the INAC Regional Office in Québec City questions and they don't reply because they don't know what they're doing. Somebody has to know what they're doing, so it might as well be us. This is about implementation of our authority."

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Reconnecting with the Culture

Kahnawá:ke's employees are required to take classes in language and culture, and encouraged to regularly ask themselves: "From a cultural perspective, what do we have to do to implement culture in our procedures and operations?"

Kahnawá:ke's Legislative Coordinating Committee is tasked with "incorporating identity into governance," which means moving away from Indian Act-based processes to the Mohawk way, traditions and ceremonies.

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Education and Hard Work

-117- "How families were treated during the Seaway expropriation gave them resiliency and strength," said Kahnawá:ke representatives. "Today we have a youth centre, a sports program, an arena, our own grade school, our own high school, our own water and sewer system, our own curbs and paveds roads, our own hospital and our own caisse populaire. We wouldn't have this entire infrastructure if community members hadn't educated themselves, taken the initiative in these areas, and worked hard. Maybe they were the little kids who were removed from their homes and so have a lot of hatred for INAC because of the way INAC treated this community and they decided to take more control over their affairs."

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Kahnawá:ke's reserve land management, in declining order of importance

1. Indian Act and Other Legislation Proposed by INAC

Kahnawá:ke sees all land-related legislation proposed by INAC as contributing negatively to its land management because, once INAC creates a legislative "option" for First Nations to work around the Indian Act, that "option" becomes the only way to do so. For example, in 2005 MCK examined the First Nations Land Management Act (FNLMA) and concluded that it didn‟t meet its needs. It therefore proposed to INAC the adoption of a Kahnawá:ke Land Management Act. INAC refused, saying the only alternatives to the land management provisions of the Indian Act were FNLMA and Self-government.

In addition, existing problem areas remain unresolved and passing new legislation further complicates the resolution these issues.

The First Nation has no control over this negative factor of its reserve land management.

2. CPs

"CPs were put here because INAC didn't want to have to deal with the community," said Kahnawá:ke representatives. "It made their job much easier, like building a golf club for the next 200 years. They implemented a specific land regime here to get what they wanted."

The First Nation has a low level of control over this negative factor of its reserve land management.

3. INAC

"INAC has no flexibility and no creativity," said Kahnawá:ke representatives. "They are afraid of taking decisions to fix things that can be fixed but require cooperation." Kahnawá:ke representatives added that INAC employees have no accountability to First Nations and no knowledge of First Nations history. They also noted the lack of authority of INAC officials (and officials of third parties) dealing with First Nations.

The First Nation has no control over this negative factor of its reserve land management.

4. Québec Regional Office and All Past Indian Agents

-118- The Regional Office does not take a proactive approach in resolving land issues in Kahnawá:ke, does not consult with this community and is not accountable to this community. Past practices by Indian Agents raise concerns over apparent conflict of interest where third parties are involved.

The First Nation has no control over this negative factor of its reserve land management.

5. All the Corporate Entities who Managed to Get a Foothold in the Community through INAC

The First Nation has a low level of control over this negative factor of its reserve land management.

D) Kahnawá:ke's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Kahnawá:ke assesses its success as a 3.

2. Success in using its reserve land for economic development purposes

Kahnawá:ke assesses its success as a 3.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Kahnawá:ke assesses its success as a 0, as the Indian Act is more of a hindrance than a help.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Kahnawá:ke assesses its success as a 3.

5. Kahnawá:ke's priorities for the management of its reserve land over the next five years

i) Implement our Land Code to manage our own lands without any outside interference

E) Kahnawá:ke's Recommendations

i) Development and implementation of land laws and a land code

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

-119- i) Adopt a rights-based approach instead of a regulatory approach in dealing with First Nations ii) Take steps to recognize First Nation authority and jurisdiction

Approved by Chief John Dee Delormier November 2, 2010 -120- KINGSCLEAR FIRST NATION

STATISTICAL INFORMATION

Location 25 km from Fredericton, in the province of New Brunswick, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 657 members (72%) on reserve, 256 members (28%) off reserve, total 913 30 non-member residents on reserve

Reserve land 374.70 hectares (925.90 acres), two reserves, riverfront

Reserve land management legislative and regulatory framework Indian Act - First Nations Land Management (Inactive)

Reserve land management staff membership in a professional association National Aboriginal Land Managers Association

Property taxes No

Community Well-Being Index* N/A

Parcel Fabric Index** N/A

Active registered transactions 60 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 217 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

Certificates of Possession (CP) (217 acres) and No Evidence 0.2% 0.9% of Title Issued (NETI) 26% Lands (20 acres) 26% Licensed/Permitted Activity 0.2% 35%

Unregistered Band Lands Used for Housing (8 acres) 0.9%

Registered Band Use Lands 35%

Unused Band Lands 38.71% 38.71%

-122- KINGSCLEAR FIRST NATION

INTERVIEW REPORT

September 16, 2010, 9:45 to 11:25 AM

Joe Sabattis, Lands Manager Roger Paul, Director of Public Works Francine Francis, Assistant to Chief Tomer

A) Kingsclear's Reserve Land Management Experience

The following 10 key events or periods were identified.

1. World War II and Korean War Veterans Come Home (1945 and 1953)

Kingsclear First Nation (KFN) representatives explained that their veterans "were given land they already owned: 300 by 600 feet plots all over the reserve. About six of these plots are left; all the others were given back to the Band through estates because you could only build an eight by ten shack because the lots were an hour‟s walk away from the main community. This was a slap in the face, because they fought for our country and that's what they got. Non-Native veterans got 10 acres and full title."

2. Church Cemetery Encroachment (1947)

The Government of Canada bought a 6.77 acre property from the Roman Catholic Church for an addition to the reserve in 1947. The church cemetery encroaches on reserve lands through a 0.52 acre parcel that is an integral part of the cemetery. During the purchase of the lands from the Roman Catholic Church there was apparently some thought given to a transfer of this parcel to the Bishop of St. John in exchange for other lands, but this was never done. KFN representatives said that this demonstrated that "the federal government failed to do the proper fiduciary duty due diligence." As a further example of this failure, they cited the fact that a road going through the reserve is owned by the diocese of St. John.

Both of these issues, along with several others, were raised by the 2004 Legal Description Report prepared under the First Nation Land Management (FNLM) Initiative. Shortly after receipt of that report, KFN offered the Diocese to negotiate a permit under Section 18(2) of the Indian Act to confirm the graveyard's status, but the Diocese refused.

3. Riverfront Erosion (1983-today)

KFN negotiated and signed an agreement in 1983 with the New Brunswick Electric Power Commmission (NBEPC) under which it got $250,000 in compensation for Riverfront erosion caused by the Mactaquaq Dam. Clause 2 of the agreement said that the Band shall provide riverfront access to NBEPC for the purpose of maintaining riverbank protection so as to prevent erosion, which NBEPC failed to do. As a result, KFN has since lost another 0.65 acres of riverfront and a cove on the St. John River in front of the reserve has disappeared. KFN met with NBEPC, INAC and DOJ to discuss this issue in 2008, and asked for free power for as long as the reserve exists in compensation for the eroded land. The First Nation is still waiting for a proposal from NBEPC two years later.

-123- 4. Wint Lewis Property Addition to Reserve (1996-2010)

KFN purchased the Wint Lewis property in 1980 and has been trying to add it to reserve for the last 30 years. The formal ATR process began in 1996, 16 years after the purchase. There was no clear process to add land to reserve at that time, so for KFN it was like "a shot in the dark, learning by trial and error."

On June 11, 2004 INAC wrote to KFN that "the Phase I Environmental Report has been completed" and that

- "the underground fuel storage tanks associated with the former service station have been removed" and

- "groundwater on site meets the [relevant] guidelines".

INAC concluded from the report that "the site should be suitable for development where municipal water services will be utilized. No further environmental work is recommended."

On this basis, Conditional Approval in Principle was granted on November 22, 2005. The ATR file got to Minister Andy Scott's desk shortly thereafter, but he didn't sign it because Parliament was dissolved and he was no longer Minister.

On June 6, 2006, ten years after the ATR process had begun, KFN adopted a Band Council Resolution accepting "the imposed condition", i.e., "that any new buildings on this property will be serviced by the band supply well or by municipal water services."

On February 12, 2007, INAC wrote to KFN that "our ATR policy is to have an Environmental Site Assessment (ESA) no more than two years old. Through Public Works and Government Services Canada we requested an update to the Phase I ESA (...) dated June 2004 (...) as it is greater than two years old. PWGSC advised further environmental work is required on this property. This is disappointing given our correspondence dated June 11, 2004 wherein we advised you that no further environmental work was recommended. (...) We directed PWGSC to proceed and perform the additional environmental work required. (...) We will advise you of the outcome once we receive the updated report."

KFN's comment on that letter was that "if the process had been quicker it would not have had time to get too old."

Three years later and 30 years after the initial purchase, KFN is still waiting for further word from INAC to complete this ATR.

5. Land Management Training Program (1999-2000)

Joe Sabattis took the LMTP training course across the country, graduated in 2000 and KFN started to manage its own land, even though there was no legal authority for it to do so. He said that "INAC pushed us into FNLM to be the first in Atlantic Canada after Saint Mary's opted out. They shoved us out their door and into the First Nations Lands Advisory Board (LAB)."

KFN didn't have the benefit of previous participation in either the Regional Lands Administration Program (RLAP), the 53/60 Delegated Authority Program (53/60) or the Reserve Land and Environment Management Program (RLEMP), nor did it get funding -124- from any of those programs. In 2009 it asked INAC for admission to RLEMP or 53/60 and was denied because it didn't have enough transactions. INAC said that KFN had only 11 transactions in the last year but KFN representatives said that the real number is 30. They added that "only 10 First Nations got into RLEMP this year and it all went out West."

6. Putting in Place a Lands Program (2001-2004)

7. Land Dispute with a CP Holder (2004-2006)

In 1995 the Band signed an agreement with a CP holder to obtain access through his land to create an apartment unit and put in a permanent road for this purpose. When the Band received the FNLM Legal Description Report in 2004 it realized that the road violated the agreement, which only allowed the building of a temporary road. INAC and Natural Resources Canada (NRCan) initially recommended that the Band settle the dispute and get the roadway transferred as Band land, but then reneged on their promise to provide full surveys of the reserve, saying "sorry, no money." In 2006 the Band settled the dispute by buying the lot through which passes the road from the CP holder.

8. Illegal Water Main (2006)

A Canadian National (CN) railroad track runs through the reserve, pursuant to an OIC dated June 6, 1914 that grants the sale of a right-of-way to the St. John and Québec Railway Company. However, there is no permit or lease for a 12 foot-wide water main, with a capacity of one million gallons a day that runs alongside the railroad bed near the riverfront and has provided water to the Mactaquaq Hatchery since the railway ceased to operate.

KFN brought up this issue in 2006 with NBEPC, which became responsible for the water main and the railroad tracks after CN left. KFN asked for an unspecified amount of monetary compensation for the illegal water main and is still waiting for a proposal from NBEPC four years later.

9. Land Code Development Begins (2007)

KFN representatives said that in developing their Land Code they were acutely aware that "once you're out of the Minister's kitchen, you can't go back."

10. First Nation Election (2008)

The new Chief and Council put the Land Code aside because it wasn't on their priority list.

KFN representatives explained that "the LAB said if you don't vote, you're parked," i.e., considered inactive and therefore no longer being funded. "They're not talking to us anymore; they dropped us like a hot potato, same as Saint Mary's who we had replaced because we were the only First Nation in the Atlantic with a fully trained land manager."

B) The main factors that contributed positively to Kingsclear's reserve land management, in declining order of importance

1. Training

-125- Joe Sabattis took the LMTP training in 1999-2000 and the RLEMP training in 2008 and that "opened a lot of doors." Land management training was "beneficial because you learn a lot about the legal aspects of what you're dealing with, what to look for and fiduciary obligations."

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Land Use Plan

KFN representatives said that their Land Use Plan is still in draft form and "we do it as we go along. It's constantly being updated because we're growing here. The land use plan helps organize where a sub-division goes and where to put the senior care facility. We can set aside land for the general welfare of Band under Section 18 for whatever uses we want."

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Proper Documentation

CPs and designations are done legally and on paper, according to KFN representatives, and this facilitated housing and infrastructure, including putting in water and sewer lines, and fire hydrants.

The First Nation has a medium degree of control over this positive factor of its reserve land management, because of funding constraints.

C) The main factors that contributed negatively to Kingsclear's reserve land management, which are equally important

1. Lack of Adequate Funding from INAC

For example, KFN representatives said they lack adequate funding to upgrade their water and waste water infrastructure, which is old and led to several Boil Water Advisories over the years, including the last one that has been in force since August 2010. Moreover, "we don't know where the pipes are because we need Global Positioning Systems technology to know where they are and pinpoint problems."

"The new Indian Lands Registry Upgrade Project (ILRUP) was supposed to include Global Information Systems technology, but we're still waiting for it," they continued. Joe Sabattis took the first block of ILRUP training in 2007, "but after that it died because of some Privacy Act issue," he said. "I raised it at the time and they said I was crazy, but I told them: It'll come back to bite you."

"I made a proposal to INAC for GIS and they were all for it in principle, but they dropped it like a hot potato when they found out the cost, which was $90,000," said Joe Sabattis. He got GIS training through the Atlantic chapter of the National Aboriginal Land Managers Association (NALMA) in Cornerbrook, Newfoundland in 2009, "because it's not included in the RLEMP training, but it should be." Six First Nation land managers got that training, but they can't use it because most Bands can't afford GIS, although "Eskasoni got it and it's the cat's meow. It really helps. For example, you just type in "water", all the water shut-offs show up and you just print the map."

-126- As a further illustration of the consequences of inadequate funding from INAC, Mr. Sabattis explained that "I'm paid to do Band membership out of Band Support Funding, so I'm doing Estates and Lands for nothing. I would have been happy to get the RLEMP funding, because I'm doing all the Lands and Trust Services work."

The First Nation has no control over this negative factor of its reserve land management.

2. Location

KFN is not in Fredericton, although the city limits could be extended. "Who's going to come all the way 25 kilometres from the city to buy gas?", asked KFN representatives. "That's why our gas has to be three cents cheaper than whatever's posted."

The First Nation has no control over this negative factor of its reserve land management.

D) Kingsclear's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Kingsclear assesses its success at 3.5.

2. Success in using its reserve land for economic development purposes

Kingsclear assesses its success as a 2, because the convenience store and gas bar is the only economic development on reserve. The store is open seven days a week, is very successful and employs about 30 people.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Kingsclear assesses its success as a 4.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Not applicable.

5. Kingsclear's priorities for the management of its reserve land over the next five years

i) Planning housing sub-divisions. We're trying to get one right now and trying to get surveys done at the same time as engineering designs, because that's more cost-effective.

ii) Settlement of land disputes (with NBEPC on the water main and with a CP holder)

iii) Putting in place GIS technology. The Chief wants it because of the shared benefits it will provide for both the Lands and Public Works Departments.

E) Kingsclear's Recommendations -127-

i) If you're going into FNLM, seriously look at the pros and cons, because once you leave the 25 land management sections of the Indian Act, you can't go back. Under the Indian Act at least we have protection for the decisions we make, like Directors' insurance in the corporate world. If we're under FNLM, people have a right to take us to court.

ii) A Legal Description Report should be done in all cases, not just under FNLM. We didn't know about issues affecting our reserve land before we got it, because the INAC Regional Offices keep their stuff so close together, i.e., they're not sharing information with First Nations, that we find out after the fact. We never would have known about these land disputes and outstanding issues if we hadn't had the Legal Description Report.

iii) Keep networking to find out what other First Nations are doing, because getting out of the Indian Act is a serious thing. Why does INAC want us to do that? We start losing the Indian Act and pretty soon we won't be Indians any more.

2. To be acted upon by the Government of Canada over the next five years to meet It’s commitment to modernize reserve land management

i) Give us the money to do it. For example, we need enough money to pay for separate positions for Lands, Membership and Estates. Surveys are also a problem. INAC was responsible for all surveys on reserve until 2005 (and January-March was the best time because INAC had extra money). Since then First Nations have been responsible but there's no funding, so go back to the way it was before.

ii) Provide more training in specialized areas like GIS

Approved by Joe Sabattis October 25, 2010 -128- KITIGAN ZIBI ANISHINABEG

STATISTICAL INFORMATION

Location Next to Maniwaki, in the province of Québec, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 1,567 members (57%) on reserve, 1,184 members (43%) off reserve, total 2,751 Number of non-member residents on reserve unknown

Reserve land 18,437.6 hectares (45,560.3 acres), one reserve, woodland and riverfront

Reserve land management legislative and regulatory framework Reserve Land and Environment Management Program (Operational)

Reserve land management staff membership in a professional association National Aboriginal Land Managers Association

Property taxes No

Community Well-Being Index* 74

Parcel Fabric Index** 96

Active registered transactions 1,134 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 5,261 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

Certificates of Possession (CP) 46% 46%

Buckshee Short-Term Usage (CP and Band land) 2% Licensed/Permitted 2% Activity (all on Band land) 2% 2% Unregistered Band Use Lands 49%

Registered Band Use Lands (school and 1% cemetery) 1%

49% -130- KITIGAN ZIBI ABISHINABEG

INTERVIEW REPORT

August 9, 2010, 9:00 AM to 4:00 PM

Chief Gilbert W. Whiteduck Nick Ottawa, Lands Administrator Rebecca Printup, Business Development/Marketing Officer

Disclaimer: The following is to confirm that the fact that KZA has participated in this interview in no way implies endorsement of any eventual conclusions or recommendations related to any present or future purpose of this interview.

A) Kitigan Zibi's Reserve Land Management Experience

The following 19 key events or periods were identified.

1. Reserve Creation (August 9, 1853)

Kitigan Zibi Anishinabeg (KZA) traces its origins to Oga and other parts of its traditional territory, which was a summer gathering place for Algonquins (of which KZA forms part), Nipissings and Mohawks.

The pursuit of confirming territory for certain families established at Oga was lead by Antoine Pakinawatik who became the first Chief for Kitigan Zibi, after reserve creation. The Oblate missionaries on their part wanted a reserve set aside for them in trust for the KZA Indians. While the Province of Lower Canada claimed title to the reserve, 200 acres of it were given to the Oblates from day one.

The reserve was surveyed at the time. INAC wanted people to stay on it, but it was too small to hunt and trap, so KZA members continued to occupy their traditional territory.

2. Surrenders (1853-1910)

A series of reserve land surrenders were orchestrated by the Indian Agent, which KZA's research indicates were predominantly fraudulent. For example, the Indian Agent made a habit of waiting for most KZA men to be gone to call and chair Band Council meetings to pass surrender resolutions. There were also frequent abuses by the Indian Agent of KZA trust funds. Such funds were improperly used to build the court house and the bridge in what had become part of Maniwaki as a result of an illegal taking of reserve land. In the face of all these injustices, KZA members steadfastly defended their rights, for example by refuting the validity of these illegal surrenders.

3. Lumber Permits on Reserve (mid-1800s to 1940s)

Two lumber mills were established on reserve and the Indian Agent gave lumber permits to non-First Nation companies from Maniwaki. Limited wood dues were set by INAC to maximize company profits, which went to the Band's revenue fund, but the companies took "the cream of the available logs."

KZA did not consent to any of this and tried to stop it. Their petitioning finally worked in the 1940s and the companies left the reserve.

-131- 4. The Indian Agent Imposes the Chief-and-Council Model of Governance (1895)

5. Provincial Game Laws Enforced on Reserve (late 1800s-early 1900s)

People were arrested for shooting wildlife both on and off reserve. In all cases the product of their hunt was confiscated and not returned.

6. Location Tickets (LTs) and Certificates of Possession (CPs) (1800s)

The Indian Agent issued LTs and CPs, which was not a community decision. INAC was pursuing a combination of goals in doing so. The first was to force First Nation people to stay on reserve, because "it was a problem that they were continuing to occupy the traditional territory." The second was that INAC was trying to develop the concept of individual ownership to replace collective ownership. This sowed the seeds of a "this is mine" mentality, contrary to the traditional concept of "the Creator owns it and you are the caretaker."

7. INAC Management of the Land (early 1900s to late 1960s)

There was a great push by INAC to force people onto the reserve through a variety of means with the intent of having a captive audience for purposes of Christianization and to impose mainstream education with its worldview. The objective was to assimilate with the goal being termination and total annihilation. For example, people wouldn't be put on the Band list if they didn't reside on the reserve, services would only be provided on the reserve and some people, such as some families that moved from Baskatong, were humiliated through an INAC process that had them prove their ancestry to establish their right to live and get services on the reserve.

Trapping was prohibited unless the trap lines were registered with the Quebec government. Family trap lines were chopped up and given to non-Natives. Whereas KZ trap lines were traditionally large (300-400 square kilometres), today they average less than 50 or 55 square kilometres.

Throughout this period significant constraints were imposed on KZA's use of the land, to the point of arrest, for exercising rights on and occupation of the traditional territory.

8. Non-First Nation Attempts to Appropriate the Reserve (1908 onward)

Encouraged by the recent acquisition of lands from the Desert River, in 1908 a group of Maniwaki business people, who were prospering from lumber, made "a huge attempt", including a petition, to divide the reserve in 150-acre lots that would be bought.

While that didn't happen, there continued to be periodic attempts by local non-First Nations to buy large parts of the reserve. Encouraged by the Indian Agent, the local paper would report from time to time that "we think some Red men are willing to sell."

9. A Reaffirmation of Rights (around 1927)

In what Chief Whiteduck described as "one of several watershed moments," a group of visionary KZA members attempted to go back to traditional forms of governance and take back control of their ancestral lands beyond the reserve. INAC and the Church pushed back, staged a crisis and spread rumours/misinformation which led to turmoil in the community. INAC, with partners who had personal interest, took action to regain control that they felt they were losing. -132-

KZA people were asked to leave the church they had built on the 200-acre part of the reserve that the federal government had initially allowed the Oblates to occupy and benefit from, in exchange for “taking care of the Indians,” and that had been subsequently surrendered, and to build another church on former reserve land. INAC had control of what limited funds were available and used legal and illegal means to maintain a stronghold on the membership.

Chief Whiteduck noted that news stories of the day clearly reflected KZA's concept of the land and that "the government is trying to take away something fundamental in our ideology, i.e., you can't own land."

10. Affirmation (1930s onward)

In the late 1920s - early 1930s, there was increased direct movement in the community to restore the traditional forms of government and occupation of the territory, in defiance of the restrictions imposed by the federal and provincial government. In the 1940s, Jules Sioui launched and got strong support for the establishment of a Native North American Government regrouping all the First Nations and including governance over citizenship and territorial occupation. "Today's generation," said Chief Whiteduck, "is saying this is all our land, within or without of the reserve."

Ninety-five year old Dr. William Commanda, OC, Algonquin Elder, is the current Keeper of three wampum belts in which the history of the Anishinabe (Algonquin) Nation is woven. These wampum belts continue to inspire and confirm KZA‟s affirmation of its ancestral rights.

11. Highway Expropriation (1960)

A dirt road went through the reserve and it was expropriated to turn it into a highway. A Band Council Resolution (BCR) consented to a right-of-way on condition that affected CP holders are adequately compensated. The expropriation should have been "only to the extent necessary," i.e., a right-of-way, consistent with the BCR, but it purported to reflect surrender. Based on the expropriation documents and letters patent to the Province, INAC and the Province both say the road is no longer reserve land, but KZA disagrees.

12. Program Devolution (1970s)

The last non-First Nation Indian Agent left in 1970. As a result of program devolution, the Chief became the Band manager and was provided space in a government office above the post office. The Chief was in charge of delivering INAC's few programs. Politics and administration, including accounting, were all mixed up, as encouraged by INAC.

13. KZA Starts Working on Lands (late 1970s)

Under the direction of Chief and Council, KZA staff started working on lands, in and out of the scope of the Indian Act. They had to deal with land parcels on reserve because

CPs had been passed down and needed to be surveyed and sub-divided. "There's still debate in the community as to whether they're a good or a bad thing," said Chief Whiteduck. There was a lot of work to be done on CPs, which make up about half the -133- reserve, and, to a lesser extent, land disputes. In addition, work was done outside the Indian Act on issues related to the traditional territory.

According to Chief Whiteduck, "that's when everything started to roll. Attitudes changed with respect to lands, both on and off reserve, on a community-wide scale." Affirmation increased and became more overt.

14. Land Management Plan (1990)

KZA, through proactive community input, developed a management plan for commonly held lands on reserve, including reforestation and other regulations. A new version of the plan will go forward soon and will allow for some logging, but will be a lot more stringent than provincial laws. The plan will provide for selective cutting and be more eco-friendly. It's "an attempt to get it right" and, while allowing members to collect stove wood, will provide for buffers around lakes and rivers. The plan will also regulate maple syrup production, which has been going on since 1999 on community-owned land, where fortunately the trees weren't cut down. It will generally reflect the community's view that environmental protection is more important than economic development.

15. Court Battles and Legal Harassment (2005 until today)

Since 2005 the community had been carrying 13 cases in three different courts of "illegal" hunting and fishing in its traditional territory, which had led to huge legal fees. Four "sample" cases were going to be prosecuted and had cost the community $500,000 that it didn't have. The First Nation was pretty certain it was going to win and was informed in 2009 that charges were dropped in all 13 cases. KZ representatives asked a lot of people for the reasons for that decision but couldn't get an answer. Chief Whiteduck concluded that the attitude of the provincial government seemed to be "if we can't hinder them legally, let's hinder them financially."

The Supreme Court of Canada decided in the 1996 Côté-Decontie case that KZA had a right to hunt and fish on its traditional territory without having to acquire a provincial licence. It cost the First Nation $1.5 million to obtain that decision, which is still not generally respected by the Province. Last year the same kind of harassment started all over again, when a young KZA member was fined with only a fishing pole and no fish. Chief Whiteduck shared this with the Québec Minister of Natural Resources as an example of a recurring pattern that needs to be addressed. The Chief also proposed to the Minister the development of a relationship based on an agreement on how the Québec government and KZA will work together to address all issues related to its traditional territory. Litigation is not the way to go, according to Chief Whiteduck, because it forces KZA to go on "spending money that could be better spent on economic development, education or something else." However, the Chief stressed that “KZA will do whatever we have to do to ensure that our rights are respected.”

The Chief said he had "asked the INAC Regional Office for help to avoid a confrontation and work together to find sustainable sustainable solutions for our people to use the land and put in place collaborative arrangements where our rights are respected, but there was no interest, so we won't twist anybody's arm."

"I'm not sure the young generations will be as patient," he said, "because we argue these things (Highway 105, etc.) but we're getting nowhere. We have a limited number of people and a limited number of funds, we want economic development, but we're embroiled in all these things, so there's not enough time. The Outaouais has generally been an economically depressed area that has primarily relied on forestry as the -134- foundation for its development and sustainability. The many challenges continuing to face the KZA community in regards to the occupation and resource extraction by the Crown are of critical concern. Something is going to explode some place and land is at the core of everything. As Betty Davis once said in a movie in which she appeared, “Fasten your seatbelts, it‟s going to be a bumpy night.”

16. KZA Takes a Stand (2008)

In recent years KZA has taken a series of stands to assert its rights over its traditional territory. The most recent one involved the Société des établissements de plein air du Québec (SEPAQ), a provincial crown corporation that tried to impose regulations on KZA's use of its traditional territory in the Parc de La Vérendrye. KZA brought a group of young people from the community to a camping site in the park and advised SEPAQ that they didn't need its permission and wouldn't pay to use it. Contrary to what KZA had expected, there were no police when they showed up, but "we had to push the envelope," said Chief Whiteduck.

Periodically SEPAQ has sent KZA an invoice for the use of fishing camp sites in the Parc de La Vérendrye. The invoices were initially for $17,000. In return, KZA sent SEPAQ an invoice for $1,000,100 "for late fees" due to illegal use of its unceded traditional territory. Several of these invoices were exchanged back and forth, nobody paid and KZ considers that SEPAQ still owes it money. KZA asked SEPAQ for cooperation but they refused, so the community took a stand.

17. Lack of Support from INAC (ongoing)

"Most if not all of our community well-being has been achieved in spite of government policy," said Chief Whiteduck. For example, "since 1985 KZA's high school is one of only two First Nation high schools in Canada (the other being Khanawa:ke‟s Survival School) to issue its own high school diploma, which is recognized by the Collèges d'enseignement général et professionel (CEGEPs) in Québec and community colleges in Ontario. INAC said our education fund would be cut if our high school diploma was not a Ministère de l'Éducation du Québec (MEQ) diploma, i.e., your teachers need to be certified by the government of Québec. KZA refused and said, go ahead, take us on and remove the funding from a school that's succeeding. When INAC controlled KZA education in the local white school, we had a 90% drop-out rate."

"The same is true in housing," he added. "INAC's capital envelope is very limited, so the community had to be very creative, realized savings and tightened management, all of which helped to improve things. We wouldn't have the houses we have today if we depended on INAC."

"Now a new funding arrangement is going to be implemented in April 2011, based on a national template over which we have no say, which we believe will take us back to the late 1970s when INAC nickled and dimed us on everything, e.g., no, you don't need 40 pencils, you need 30 pencils and 10 pens. In other words, we're going back to a lot more control."

"We know planning is important", he continued. "We don't need anybody to tell us that. We may now be required to rethink how we're going to change something that was successful. For example, INAC will tighten up our Social Assistance Program in a way that will take away our possibility of leveraging it with other resources to create employment. We'll have more reporting, less flexibility and the same amount of dollars with no increase. Good management is not rewarded and a surplus is not seen as a -135- sign of good management. We're told instead to spend it all and even to go into deficit, but not beyond 8% or we'll be put in third-party management. Crossing over between siloed programs is frowned upon."

Chief Whiteduck also spoke about the health challenges in the community, where, for example, "natural uranium prevents potable water use in our houses and we have 200 houses with a radon gas problem."

"As an INAC representative, I will never trust you", he concluded.

18. Land and Environment (1853 until today)

Chief Whiteduck said there is a continuous stream in KZA Council minutes about the importance of the land. The Council was constantly "defending, wondering why, trying to reclaim, going beyond the reserve, sending petitions to INAC to clarify, asking why aren't we in control, this is our land, why are we so regulated and controlled?"

Environmental protection or the lack thereof, was also a constant preoccupation: "it's being polluted, we're losing it all, and we were misled" are other recurring themes in the minutes. For example, in the 1940s Maniwaki's raw sewage was pumped directly into a small lake on reserve. In 1961 an overflow pipe was built through the reserve, carrying the untreated waste from Maniwaki to the river. The pipe was "totally neglected" and it broke, polluting the river. The cost of repairing it is estimated at $7 million.

The Band had given its consent at the time, the trade-off being that certain houses on reserve would be connected for free to Maniwaki's water and sewer system, but that didn't happen. According to Chief Whiteduck, "INAC knew full well that raw sewage was going into the swamp on reserve, which is now totally contaminated. Federal and provincial environmental people failed to prevent this. Maniwaki is responsible but refuses to raise taxes to fix something on reserve. Unless we're guaranteed that repairs will be done by our people, we'll call in the TV cameras and plug up the pipe with cement, which could potentially cause sewage to backup into Maniwaki."

19. Exploitation and Racism (1853 until today)

Chief Whiteduck said that the Church, INAC and the Royal Canadian Mounted Police, which was an instrument of Indian Agent control, supported external business people who wanted access to land and resources being spent for the Band. Moneys in the Band Fund were used primarily as program funds when there were no programs. For example, Council would dip into it to buy a stove for a destitute widow from a store in Maniwaki. Such "relief" would come in the form of a purchase order signed by the Indian Agent for, say, $25, but the store owner would only give the widow $15 for it. There was similar "exploitation by a multitude of people," said Chief Whiteduck and their attitude seemed to be: "What the hell, they're just Indians and we can put them in jail if we want to."

Similarly, when the time came to collect seed money (literally, money for seeds), the Indian Agent, who resided in town, wasn't around, so people had to go into town to get what was owed to them and store owners in Maniwaki cashed in. Interest dollars from our Band funds were distributed twice a year and KZA families‟ spending stimulated the local non-First Nations economy. "Half the town of Maniwaki used to be part of the reserve and its economic development was always the priority," said Chief Whiteduck.

-136- Economic relations between the two communities take different forms today, he explained. For example, when a hardware store was being built on reserve, there was "complete blockage from townspeople afraid of losing jobs." Similarly, when KZA built a school in the 1970s and bought things outside Maniwaki to get the most competitive prices, the reaction in Maniwaki was: "Those little Indians don't have a right to do that," because they were supposed to be a captive market for Maniwaki suppliers. More generally, Maniwaki business people's attitude towards KZ seems to be: "We'll do everything we can to ensure your economy never takes off, because if it does we'll lose jobs," said Chief Whiteduck.

"This is more true today than it used to be," he added, "because we've had some small victories in our community, so they see us as more of a threat to them. They now know they have to be careful because we have jobs and we're spending money in town. They're not as overtly racist because we have a lot of economic power if we choose to exercise it."

"There is a lot of concern about an old burial ground in front of the Château Logue (i.e., in town) reverting to the reserve," said Chief Whiteduck, "and we had to go through the Specific Claim process just to confirm that it never stopped being reserve. We offered the town payment in lieu of taxes but they refused. We're now waiting for the Order-in- Council to complete the Additions to Reserve process."

Chief Whiteduck mentioned another unresolved issue that pits KZA interests against those of Maniwaki, concerning a 66-foot stretch of reserve land that was never surrendered along the Desert River and now lies underneath a road and a boardwalk.

He noted that KZA's population is only about 2,700 people and that, exercising their individual choice, very few KZA members vote in provincial and federal elections. Local federal and provincial Members of Parliament have cited this to Chief Whiteduck as a factor in their relationship with KZA, in regards to discussions the community had concerning its occupation of and exercise of its rights in its traditional territory. Local officials of the Québec Ministry of Natural Resources told Chief Whiteduck "you'll get nowhere sending resolutions and calling meetings." Finally, said the Chief, "the federal government is not supporting us in talking about the territory. We're trying to cooperate, but it's not working. Meanwhile, the richness is being taken away. There are solutions, but there's no willingness at all. We can't even be civil and honest, because they don't want to come and meet us on an honest basis."

Chief Whiteduck spoke about what he sees as the refusal of the provincial and federal governments to take their responsibilities by telling KZA it has to negotiate with its neighbours and refusing to get involved. "Municipalities are the creation of the Province," he said. "We are the descendants of the first peoples that occupied this land. We are affirmed and recognized in the Canadian Constitution, so we refuse to be treated as a party of interest, local club or municipality." He regretted that, despite his repeated attempts, he could never meet with Minister Strahl to discuss land related issues.

As a result of all of the above, Chief Whiteduck told politicians, journalists, his community and the media a year ago: "Governments that represent their citizens are leaving us no choice and are forcing us to take action on the ground. There is not a political willingness to find positive solutions. The regressive status quo seems OK with governments but it is not for this generation or future generations. We will do what we have to do. What actions will we take? Just watch us.”

-137- B) The main factors that contributed positively to Kitigan Zibi's reserve land management, in declining order of importance

1. Stable Leadership and the Drive of Members to Stay in the Community

Chief Whiteduck related this factor to the main findings of the Harvard Project on Native American Economies.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Continued Effective Management

KZA representatives noted that KZA is a community whose lands are 50% CP, which means that chains of title have to be effectively managed, which they were until 2005.

The First Nation had a high degree of control over this positive factor of its reserve land management until INAC cut survey funding in 2005 (see the third factor contributing negatively in Section C below).

3. Determination

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Experience of Those Who Came Before

Chief Whiteduck said that the Elders "caution us as we move forward in our relations with the federal and provincial governments, who have consistently shown that they say one thing and do another, and are not trustworthy. The Elders tell us that they were misled by Indian Agents and that they were lied to."

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Kitigan Zibi's reserve land management, which are all equally important

1. Absence of a Land-Use Plan

KZA representatives said that INAC is pushing for a land-use plan but they have neither the time nor the money to produce one. The Reserve Land and Environment

Management Program (RLEMP) would give them an extra $5,000 a year in funding if they had such a plan, but producing it would require employing someone for one or two years, holding many community consultations and hiring experts like biologists and foresters.

The First Nation has no control over this negative factor of its reserve land management, because of the absence of adequate funding.

2. CPs

-138- "The CP system was imposed on our Band membership," said KZA representatives. "There's controversy and variance of opinion" as to whether CPs are good or bad, "but for the most part the system is pretty much rolling. We can only effectively manage our lands under one regime.

The First Nation has no control over this negative factor of its reserve land management.

3. INAC Rules and the Cost of Surveys

An essential element of KZA's continued effective management of its reserve land up to 2005 was surveys, which are an essential tool for land instruments, estates and economic ventures. A great many of these have been pending since INAC's decision to stop funding surveys five years ago. That decision made it very hard to manage reserve land, since "there's no way to keep track of our lands," and it "forced us to work outside the Indian Act," said KZA representatives.

In addition to cutting funding, they added that "INAC set the bar so high that it costs a lot of money to do surveys," that "what triggers a survey on reserve doesn't compare to the situation off reserve" and that surveys on reserve "often cost two to three times what the land is worth, which becomes a hindrance to doing anything with the land."

KZA representatives said they understood that INAC was looking at funding surveys all across Canada again and heard a dollar figure mentioned that, divided by 633 First Nations, would work out to about $26,000 per community. Noting that there are about 150 transfers held up in KZA alone because of the absence of surveys, they said that "this is not going to solve our problem, it will just serve their promotion of economic development with lands as the latest cure-all. We are also of the understanding that this will be a one-time survey funding to update the new Indian Lands Registry."

KZA representatives strongly condemned INAC's survey policy: "INAC is going totally backwards. It was far from a perfect system, but they've made it worse. It's almost as if INAC said “how can we throw wrenches in First Nations' land management systems?” This is a nightmare. We're losing control of Registry documents because of the survey issue."

The First Nation has no control over this negative factor of its reserve land management.

4. Capacity Development

According to KZA representatives, there are 634 First Nations in Canada and maybe a third of them have a Lands Officer. INAC doesn't provide for Lands Officers' salaries. Moreover, "after taking the RLEMP training they usually get enticed by more money and work for others, usually INAC. First Nations are then left with no one and they can't send someone else to take the training. It's a joke. First Nations need manpower and money for geographic information systems (GIS) just like any municipality. They need to be competitive with other municipalities, but Council can't pull this money out of the air."

"INAC says it's committed to economic development," said KZA's Lands Manager. "We don't need half-baked commitments, we need real commitments. Otherwise," he concluded, "I just see things getting worse."

The First Nation has a medium degree of control over this negative factor of its reserve land management.

-139- 5. RLEMP Funding Formula

This formula "doesn't work and has to be totally relooked at," according to KZA representatives. The formula is based on transactions and therefore "on First Nations doing residential and commercial leasing to non-Native businesses or corporations or cottages, but there's a lot more land management than that."

"Funding arrangements revolving around leasing and permits give money to First Nations who are already making money from their leases and permits, and penalize those who don't lease or permit land," they stressed. "Leasing isn't allowed in Québec because of the Star Chrome decision, but INAC has never looked at alternative arrangements for Québec First Nations. It's a different playing field here, so you can't compare us to these Bands."

Speaking about the level of INAC support for reserve land management more generally, they concluded that "the bad far outweighs the good."

The First Nation has no control over this negative factor of its reserve land management.

6. Need for More Human Resources

The First Nation has no control over this negative factor of its reserve land management, because of the absence of adequate funding.

7. Lack of Monitoring and Compliance with All Land-Related Laws

KZA representatives gave environmental assessment as an example of the types of laws that are not properly enforced on reserve, "because we're stuck in the office with too much work, so we can't go out on the land and see what's actually happening."

The First Nation has no control over this negative factor of its reserve land management, because of the absence of adequate funding.

D) Kitigan Zibi's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Kitigan Zibi assesses its success as a 2, because most of its reserve land is under CP.

2. Success in using its reserve land for economic development purposes

Kitigan Zibi assesses its success as a 2.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Kitigan Zibi assesses its success as a 3.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

-140- Kitigan Zibi assesses its success as a 3.

5. Kitigan Zibi's priorities for the management of its reserve land over the next five years

Chief Whiteduck prefaced his remarks by noting that the following priorities are about "the evolution of devolution" and not necessarily limited to the next five years, nor are they only tied to reserve land.

i) Develop employment opportunities from tourism, instead of extracting resources to the same extent as those who have been doing so up to now. KZA intends to move into the Forêt de l'Aigle and create a connection with its Cultural Centre. Chief Whiteduck has held meetings with several Embassies in Ottawa and hopes to sign Memoranda of Understanding with these countries "if we can maintain momentum." Discussions are ongoing with France and Germany on tourism, Norway and Sweden on linking innovative ways of managing the forest with traditional knowledge, and Mongolia on the export of wood products and beaver pelts.

ii) Establish a commercial centre with retail space that would promote economic development. Discussions have begun around a larger complex that could be explored over time and would include a business development centre/incubator, a bank and a pharmacy. The objective is to attract back to the reserve KZA‟s young people, many of which are completing training and need opportunities and facilities with a fair rent.

iii) Access a share of revenues from the traditional territory. Chief Whiteduck explained that some of KZAs priorities are dependent on revenue sharing. KZA's plans for the Forêt de l'Aigle therefore include some logging to generate revenues to reinvest in the community. To sell logs to a mill you need a pass and "lower level people" have encouraged KZA to issue its own pass. "We'll take a photo when we cut down the first tree," said the Chief, adding that "the people who exploited Eagle Forest cut, cut, cut where they shouldn't have. We told them to stop or we would put up a roadblock." Negotiations ensued and led to certain understanding, which was then taken off the table. This was a major setback, explained the Chief, because "we need to generate revenue to pay for marketing, while creating employment opportunities for our people in the short term."

iv) Talks about establishing a residential Centre of Excellence for First Nations vocational training. Discussions had previously focussed on a Centre of Excellence for First Nations health care in Eastern Canada. "We almost had it," said Chief Whiteduck, "but it unravelled because Maniwaki wanted it in town."

v) Funding. Chief Whiteduck stressed that financial constraints are a constant challenge in all of the abovementioned endeavours. It has taken multiple meetings with Embassies for KZA to learn about exports, tourism and trade. "Opportunities are waiting," he said, "but we need to be resourced up front to go beyond putting in a scenario and making it happen. Our own people can do it, so we don't need to rely on consultants. Getting our fair share, in the form of a “redevance” (royalty) from our traditional territory is key and would make a world of difference -141- to enhancing these ideas that are still in the early stages. We need to get our foot in the door, but there is no door, it's closed."

vi) Strengthening our governance. "It's going to take a while," said Chief Whiteduck, "because it's still too fragile, for us and for many other First Nations." He spoke of "molding the relationship between politics and the bureaucracy outside of the Indian Act constraints" and of the need for stability based on a foundation of rules that are commonly accepted because people were involved in designing them.

E) Kitigan Zibi's Reflections

1. Addressed to other First Nations, who may wish to consider them over the next five years to maximize the contribution of reserve land management to the achievement of their community control and economic development goals

i) Every reserve should have a Lands Officer and an Economic Development Officer

ii) Remember what we were founded on, which is the land, and maintain it, don't overexploit it

iii) Help individuals to believe in themselves

iv) Challenge the status quo. Hearing a "no" should fuel you even more to go even further.

v) Don't be intimidated. Our ancestors weren't intimidated when the immigrants from other lands arrived. Some leaders have periodically been muzzled by threats and promises.

vi) Governments are the enemy who have tried to eliminate us and are continuing to do so through their policies. We have resisted and we will continue to resist. Don't believe in their interest in supporting our continued existence as a distinct people.

vii) INAC employees proudly show off graduation pictures of their children in their offices, while First Nations struggle to send their kids to college and university. As long as we're in poverty, the monster is alive and will never allow itself to be killed. The chain of colonial control is what needs to be broken. Our poverty feeds into a machinery. The post-White Paper movement of the early 1970s created an awakening, but we've been lulled back to sleep by the many policies and reports that have overwhelmed us.

viii) How do you plan for the future? The critical piece is really doing it, not just paying lip service, and for that you need the time, resources and people.

ix) Unemployment is high, graduation is low and other social issues haven't been addressed. INAC's Education Department went from 20 to 30 people in just one or two years. We asked why and got no answer. These people have never been to our communities.

-142- 2. Addressed to the Government of Canada, who may wish to consider them over the next five years to meet its commitment to modernize reserve land management

i) Demonstrate concretely that you can be trusted and that you speak with only one tongue, the tongue of respect and truth. It cannot be done in isolation from our traditional territory or from the people. The Comprehensive Claims Policy process or certainty process is not acceptable, because we will not, nor can we extinguish our rights and responsibilities to our ancestral land which was provided to us (Algonquins-Anishinabe) by the Creator. Both the Federal Crown and the Provincial Crown have a fundamental moral and constitutional responsibility to come to the table with KZA and the Algonquin- Anishinabe Nation representatives to address our land issues.

ii) Simplify all INAC processes that have anything to do with land, including the ATR process. Streamline them, make there geared to move forward at a quicker pace. Make them responsive to our needs. There cannot be a cookie-cutter approach. The biggest hindrance to all business proponents is timelines. The potential is there, but it's too complex for nothing.

iii) Don't just look at First Nations doing well. Ask all First Nations in reserves that are having a more difficult time what's hindering their progress. They must have ownership of any changes; otherwise change will only bring about frustration and negative results.

Confirmed by Chief Gilbert W Whiteduck, Nick Ottawa, Lands Administrator, and Rebecca Printup, Business Development/Marketing Officer November 3, 2010 -143- LITTLE SHUSWAP INDIAN BAND

STATISTICAL INFORMATION

Location 58 km from Kamloops, in the province of British Columbia, the nearest service centre to which it has year-round road access, Zone 2, i.e., rural

Population 231 members (72.9%) on reserve, 86 members (27.1%) off reserve, total 317 Number of non-member residents on reserve unknown

Reserve land 3,112.7 hectares (7,691.64 acres), cinq reserves, waterfront

Reserve land management legislative and regulatory framework Regional Land Administration Program

Reserve land management staff membership in a professional association No

Property taxes Yes

Community Well-Being Index* 76

Parcel Fabric Index** 74

Active registered transactions 700 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 461 active CPs registered in the ILR, the FNLR or the SGFNLR

*The Community Well-Being (CWB) Index is a method of assessing socio-economic well-being in Canadian communities. It combines census data on income, educational attainment, labour force activity, and housing into well-being “scores”, on a scale of 0 to 100 for each of the several thousand communities in Canada. CWB Index scores are derived from Canada‟s Censuses of Population, which are conducted every five years.

DISTRIBUTION OF LAND PATTERNS

Certificates of Possession 6% 18% 5% Band Buckshee Leases 2% 1% Individual Buckshee 2% Leases 1%

2% Licensed/Permitted Activity 2% Designated Land Leases 18% 6% Un-registered Band Use Lands 5% Unused Band Lands 66%

66%

-145- LITTLE SHUSWAP INDIAN BAND

INTERVIEW REPORT

June 15, 2010, 9:00 AM to 1:30 PM

Chief Felix Arnouse Tess Tomma, Councillor Brian Finlay, Councillor Stewart Adamson, Lands and Resource Manager Randall Martin, Band Administrator

A) Little Shuswap's Reserve Land Management Experience

The following 15 key events or periods were identified.

1. First "Leases" (1958)

Half-acre cottage lots were auctioned off for terms of less than 25 years under permits. No proper appraisals were done to establish fair market value.

Bigger blocks were surveyed and a Mr. Schouten, one of the original lessees, divided up his permitted land and allowed others to occupy lots on Little Shuswap Lake.

2. First Conditional Surrender (1962)

This vote regularised the original cottage permits and converted them to leases. Only men could vote at the time.

3. First Designation Vote (1982)

This vote marked the beginning of leases for terms of more than 25 years.

4. The Leighton Case (1985)

Mr. Leighton, a lessee, sued INAC over a rent review and won. Rents were rolled back to pre-review rates.

INAC had instructed its appraiser to appraise groups of "similar" lots, as opposed to appraising each lot individually. This was inappropriate and caused INAC to lose the case.

The First Nation suffered significant economic loss as a result of INAC's error, for which it was never compensated. INAC is supposed to protect First Nations' interest, but the net effect of its actions was to assist the lessees instead.

5. Designation Vote (1990)

This vote enabled the lease of the Quaaout Hotel site.

6. Section 35 Expropriations (1990)

Part of the reserve was expropriated by BC Highways to build a bridge over the Trans- Canada Highway. The First Nation received a cash transfer as compensation. -146- In 2003 the Supreme Court of Canada ruled in the Osoyoos case that expropriations must not result in a net loss of reserve land. INAC therefore told BC Highways and the First Nation to negotiate replacement land, which will have to go through the Additions to Reserve (ATR) process. The First Nation is concerned that it will have to pay taxes on that land for as long as the ATR process lasts.

7. Property Taxation (1992-93)

The First Nation opted into Indian Act Section 83 and began collecting taxes on leased properties.

8. RLAP (1995)

The First Nation joined the Reserve Land Administration Program and began to assist in writing its own leases.

A few years later it decided not to move into the 53/60 Delegated Authority Program because it was told by INAC that if it did it would have to bear the legal costs associated with court challenges to rent reviews.

9. Designation Vote (1995)

This vote reorganized the lots at Quaaout resort, including the golf course.

10. BC Riparian Area Guidelines (2000)

The provincial government adopted rules for the protection of streams, initially in the form of guidelines. The general rule was that no work was permitted within 30 metres of the ordinary high water mark, creating an area known as a setback. The guidelines provided for reducing the setback to 15 or 10 metres in specified circumstances.

The guidelines did not apply to reserve land, which is under the exclusive jurisdiction of the federal government, nor did they apply to lakes, as opposed to streams.

11. FNLM (2003)

The First Nation passed a Band Council Resolution requesting admission into the First Nations Land Management Regime. That request was not accepted and the First Nation feels that it has been "continuously overlooked" ever since. It considers itself progressive in matters of land management and is frustrated that, seven years later, it has not even been allowed to begin the FNLM process.

12. 75-Year Pre-Paid Leases (2005)

The First Nation's decision to issue these leases enabled it to raise enough capital to build the Quaaout golf course and renovate part of the space in the hotel, all with its own money.

13. BC Riparian Area Regulations (2007)

The 2000 BC guidelines became regulations and INAC told the First Nation it had to comply with them "because the Department of Fisheries and Oceans (DFO) likes them". Moreover, INAC refused to apply the more limited 15 and 10 metre setbacks in the -147- circumstances specified by the regulations.

This makes no sense because

- reserve lands are under exclusive federal jurisdiction,

- the BC regulations are intended to apply to streams, not lakes,

- DFO's jurisdiction does not extend to upland properties that support no fish,

- the effect of INAC's application of these regulations to Little Shuswap land is to wipe out half of some of its lakefront properties, which are only 60 metres deep and therefore become unusable,

- most reserve land in BC is within the 30 metre setback, so INAC's application of these regulations could prevent any economic use of that land.

14. Rent Review (2010)

INAC has determined that, based on fair market value, the rent on leases coming due should double on average. Knowing that some lessees are waiting to receive the notice to challenge the rent review, the First Nation asked INAC if it could negotiate a lesser increase with the lessees. INAC refused to allow the First Nation to do so.

The First Nation asked INAC if, in the event of a successful challenge to the rent set by INAC at a rate higher than the First Nation was prepared to accept as part of a negotiated settlement, which INAC is preventing, it would compensate the First Nation for the difference between the amount decided by INAC and the amount set by the Court. INAC said it would not.

15. RLEMP (2010)

In February of this year the First Nation received an invitation to join the Reserve Land and Environment Program, which would require it to send a member of its land management staff to the University of Saskatchewan for two weeks in April and for one week out of every month for almost a year after that. Given the need to deal with the fallout of the rent review, the First Nation can't afford to have a staff member out of the office for such an extended period. It therefore passed on the invitation and told INAC it would take it up next year, and hopes it will still be available.

B) The main factors that contributed positively to Little Shuswap's reserve land management, in decreasing order of importance

1. Foresight, Vision and Reputation

Little Shuswap has an enviable reputation, with both its tenants and its federal, provincial and municipal government interlocutors, as a progressive First Nation that is easy to deal with. It attributes this reputation, as well as the successful land management that both underpins and is enabled by it, to the foresight and vision of its Chief, who has been in place for the last 33 years, and his predecessors.

The First Nation has a high degree of control over this positive factor of its reserve land management.

-148- 2. Designations

The 1988 Kamloops amendment to the Indian Act had a very positive impact on Little Shuswap by enabling economic development on its reserve lands without surrendering them. This produced "a strong emotional benefit", since conditional surrenders previously took land out of the reserve for the term of the surrender and members were extremely reluctant to consent to "taking away their land". This problem disappeared with designations, since designated lands retain their reserve status.

The First Nation has some control over this positive factor of its reserve land management, since it can choose to avail itself of the designation option.

3. Limited CP Land

The bulk of Little Shuswap's reserve is composed of Band Land and very little of it has been allocated under Certificate of Possession.

The First Nation doesn't attempt to exercise any jurisdiction on CP land, over which it considers it has no control.

The First Nation has some control over this positive factor of its reserve land management since, while it is living with the decisions of previous Councils to allocate some land under CP, it is no longer doing so.

4. Property Taxation

This has been extremely beneficial by creating an ongoing revenue stream and Launching the virtuous circle of taxation: tax revenues lead to infrastructure investments, which lead to more development, which leads to more tax revenues...

The First Nation has a high degree of control over this positive factor of its reserve land management.

5. Long-Term Leases

These leases greatly contributed to the First Nation's development by creating a pool of capital to build the Quaaout resort.

The First Nation banked this pool of capital for ten years, during which its membership agreed to forego their annual dividends to finance the hotel and the golf course.

The First Nation has a high degree of control over this positive factor of its reserve land management.

6. Location

The Little Shuswap people have been occupying the lands in this area since time immemorial. What is today the reserve was initially set aside for their use and benefit around 1887 and formally acquired reserve status some time later.

The First Nation considers itself fortunate to have an abundance of desirable lakefront property on both Little Shuswap Lake and Big Shuswap Lake.

-149- The First Nation has no control over this positive factor of its reserve land management, which it considers the least important among those factors.

C) The main factors that contributed negatively to Little Shuswap's reserve land management, in decreasing order of importance

1. Designations

Designations require the intended use of the land to be specified, which restricts the First Nation's options for the future. "Designated for leasing" should be a sufficient description of the intended use. The First Nation should also have the option of designating the entire reserve, which INAC's BC Regional Office has refused to allow it to do, even though entire reserves have been designated in other Regions.

All of these restrictions would disappear if the First Nation held its reserve land in fee simple, in which case it could do whatever it wanted with it whenever it wanted. This is why it passed a Band Council Resolution supporting the First Nations Property Ownership Act (FNPOA) proposed by the First Nations Tax Commission.

The First Nation has no control over this negative factor of its reserve land management, since it can't get into FNLMA and FNPOA doesn't yet exist.

2. INAC Takes Too Long

INAC takes too long to move on everything and investors can't wait for that length of time. That's why the First Nation's golf course project sat on the books for ten years and only came about when the First Nation did it itself, without partners.

INAC now says designations will take two years. This illustrates that, as bad as things were, they're getting worse.

The First Nation has no control over this negative factor of its reserve land management.

3. INAC's Denial of its Fiduciary Duty

The First Nation was shocked to hear senior INAC officials deny the existence of a fiduciary duty on the part of the Department to manage its reserve land in a manner that ensures the First Nation's use and benefit.

From the First Nation's perspective, INAC seems exclusively preoccupied with the goal of "indemnifying Her Majesty".

INAC's position seems incoherent to the First Nation, since the risk of the Crown being successfully sued by the First Nation, against which INAC seems to be constantly wanting to protect itself, depends on the existence of a fiduciary duty, which INAC denies.

The First Nation has no control over this negative factor of its reserve land management.

4. Absence of Lease Templates

The First Nation has long been frustrated by INAC's lack of templates for its leases, each one of which has to be drafted from scratch. From 2003 to 2005 the First Nation -150- invested (and retrospectively considers that it wasted) a lot of time and effort in a series of discussions with INAC that were supposed to result in lease templates but didn't.

In the course of these discussions the First Nation proposed to include a mediation clause in all its leases, relying on a Treasury Board Directive to all government Departments and Agencies to provide for the use of alternative dispute resolution procedures whenever possible to avoid the time and expense associated with litigation. INAC refused and gave no explanation for its refusal. The First Nation speculates that INAC wants to use the time and expense associated with litigation as a deterrent against rent review challenges from lessees.

The First Nation has no control over this negative factor of its reserve land management.

5. INAC's Insistence on the First Nation Following INAC's Tendering Process

The First Nation wanted to manage a capital project and INAC refused to let it do so, insisting that the INAC tendering process had to ne used. This led to the contract being given to the lowest bidder, who began to execute the contract and then went bankrupt. The ensuing mess took a lot of time to untangle and ended up costing the First Nation a lot of money.

The First Nation has no control over this negative factor of its reserve land management.

6. Last Mile Fibre Optic Connectivity Programme

$40 million were set aside for this programme and “are just sitting there”. When the First Nation found out about the existence of the program, which INAC hadn't brought to its attention, it proved impossible to access in a timely fashion. A cable company was laying fibre optic cable near the reserve and the First Nation ended up paying for the high speed Internet connection itself in order not to miss the opportunity. The First Nation's efforts to get reimbursed for at least part of the cost were similarly unsuccessful.

These kinds of infrastructure investments are essential for land-based economic development and INAC provided no assistance whatsoever. The First Nation sees this particularly frustrating episode as typical of a broader trend, which is that INAC seems to be acting or, more to the point, not acting in the expectation that if it waits long enough on any First Nation project or request, the First Nation will eventually get pissed off and do it on its own.

The First Nation has no control over this negative factor of its reserve land management.

D) Little Shuswap's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Little Shuswap assesses its success as a 2.

2. Success in using its reserve land for economic development purposes

Little Shuswap assesses its success at 3.5.

-151- 3. Success in using its reserve land with tools and procedures under the Indian Act

Little Shuswap assesses its success as a 4.

4. Success in using its reserve land with tools and procedures outside the Indian Act

Little Shuswap assesses its success as a 1.

5. Little Sushwap's priorities for the management of its reserve land over the next five years

i) Ownership of the land in fee simple and permanent jurisdiction over it, with a Land Title System to replace the Indian Lands Registry. This would move its success in using its reserve land both for community control purposes and with tools and procedures outside the Indian Act to a 5.

E) Little Shuswap’s Recommendations

1. To be acted upon by other First Nations over the next five years to maximize the contribution of reserve land management to the attainment of their community control and economic development goals

i) Continuity of elected officials and staff

ii) Vision and planning

iii) Persistence and patience

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Leave us alone and let us do our own thing.

We have been successfully managing our reserve land for 15 years, so give us the delegated authority and don't tell us we have to go to school to get into RLEMP. We know more about reserve land management than INAC's Lands Officers, who we're forever training because they‟re forever changing jobs.

Other First Nations may need this training but we don't. Wake up and give us an equivalency based on demonstrated competence. Make an exception and don't hold us back. Recognize our strengths and stop treating all First Nations the same.

Same thing for tendering: we can do this, so let us do it.

End paternalism. If you don't recognize you have a fiduciary duty, why are you micro-managing us? We want to get out from under the Indian Act as soon as possible but, in the interim, you should recognize your fiduciary duty and act accordingly.

-152- No matter what we do with INAC, it's always a fight. INAC is always dreaming up obstacles to throw in our way. We get along fine with other federal departments, like Health, but INAC's service delivery is getting steadily worse, including in Lands and Economic Development. ii) Help us set the stage for economic development partnerships with the private sector by:

- making more money available for infrastructure projects like water and sewer,

- accelerating the leasing process or giving us control over it,

- letting us do blanket designations for all lands identified for development, and

- creating a tax credit for investment on First Nation land to encourage outside investment in an environment that is less well known and perceived as more uncertain.

Approved by Stewart Adamson August 5, 2010 -153- MILLBROOK FIRST NATION

STATISTICAL INFORMATION

Location Inside the limits of the town of Truro, in the province of Nova Scotia, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 850 members (58.62%) on reserve, 600 members (41.38%) off reserve, total 1,450 350 non-member residents on reserve

Reserve land 445.3 hectares (1,100.36 acres), seven reserves, urban, suburban, rural and waterfront

Reserve land management legislative and regulatory framework Indian Act

Reserve land management staff membership in a professional association No

Property taxes Yes

Community Well-Being Index* N/A

Parcel Fabric Index** 57

Active registered transactions 213 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 59 active CPs registered in the ILR, the FNLR or the SGFNLR as of October 21, 2010

DISTRIBUTION OF LAND USE PATTERNS

Certificates of Possession (CP) and Other Evidence of Title (EOT) 2% 15.96% Permitted Activity 0.005%

63.98%

0.005% Designated Land Leases* 15.96%

Un-registered Band Use Lands* (704 acres) 63.98% 2.00%

Unused Band Lands 18.055%

18.055%

*for non-residential use: 25.6 acres in Cole Harbour, 150 acres in Truro

*60 acres for recreational use in Truro, 5 acres for the Band Office and Health Centre, 5 acres for the Church, Community Hall and burial grounds, 1 acre for the Day Care, Pre- School and Gymnasium, and 633 acres for residential purposes -155- MILLBROOK FIRST NATION

INTERVIEW REPORT

September 15, 2010, 9:00 AM to 1:15 PM

Chief Lawrence Paul Barry Gloade, Councillor David English, Millbrook Band Solicitor Alex Cope, Band Administrator

A) Millbrook's Reserve Land Management Experience

The following 12 key events or periods were identified.

1. Craft Shops (late 1800s)

Millbrook First Nation (MFN) members set up shops along #2 Highway to sell baskets and other First Nation crafts, and traffic stopped to buy them. This was an early form of economic development.

2. Highway Construction (1965)

Negotiations were conducted for the construction of a limited access highway through the reserve. MFN Council, which at the time was composed of only two Councillors and a Chief who was himself a basket maker, allowed it on condition that a slip on-slip off shoulder be built on both sides of the highway to facilitate basket purchases. Three shops were subsequently set up on the north side of the highway and three on the south side. The Lombard property was given in exchange for the surrender of reserve land to build the highway.

3. Trailer Park (1970)

INAC had money left over at the end of the fiscal year and suggested that MFN use it to build a trailer park. A $25,000 "forgivable loan" was provided to get the land ready for the trailer park, i.e., for water, sewers and a roadway. INAC later wanted to collect the $25,000 but Chief Paul refused to pay, saying "this was your idea in the first place and you said it was a forgivable loan."

4. Abenaki Motor Inn Opens (1975)

This 56 unit hotel was owned by four Band members who built it on reserve on the side of the highway going north towards the town of Truro. Chief Paul explained that INAC objected, saying "the slip on-slip offs were for basket and other First Nation crafts and that's all you can sell."

The hotel subsequently became a problem because it should have been built on the south side of the highway going to Halifax. In the absence of a nearby exit, people heading north had to go to Brookfield to get to the Abenaki Motor Inn (AMI) and by that time it was too far to come back. Chief and Council asked the Province of Nova Scotia to change the north slip off to get traffic from Halifax to drive by the AMI. However, that resulted in the loss of that slip on-slip off after the twinning of the highway.

-156- The AMI didn't work out. It had different managers but things kept going down. As Chief Paul put it, "their employees robbed the owners blind," for example by selling their own alcohol to customers instead of AMI's. After a while only the lounge was still in operation and "only the riff-raff was left," according to Chief Paul. INAC said the Band owned the hotel after the Band took it over from the owners and that the Band therefore had a $385,000 debt to INAC. Lawrence Paul became Chief in 1984 and told INAC "you made a deal with the Band Economic Development Committee, which is a different entity," so the Band never had to pay. AMI's assets were sold (bureaus, beds, etc.). The building was leased by the Band around 1985 and turned into the Townsview Estates Seniors Care Facility.

5. Supreme Court of Canada Simon Decision (1985)

This decision recognized the Micmacs' hunting and fishing rights under the Treaty of 1752.

Chief Paul described relations between MFN and the federal and provincial governments as "kind of stalemated after that." INAC, the Province and the Department of Justice (DOJ) tried to restrict the reserve to basket and various craft making, but MFN decided to build a gas bar and convenience store called Treaty Gas, which sold cigarettes and gas on the south side of the twinned limited access highway.

6. Gaming Agreement (1986)

In the mid-eighties there were "gray", i.e., illegal, video lottery terminals (VLTs) all over Nova Scotia, including on reserve. An agreement was signed between the Province and MFN saying that for every 100 Band members MFN would get 10 machines. The machines could only be installed in licensed establishments, thus limiting access to those 19 or older, except that on reserve you didn't need a liquor licence. This agreement created the equity component necessary for economic development by allowing the First Nation to generate some own source revenue (OSR). MFN ended up with 120 machines, most of them operated by the Band, and the right to hold six giant bingos (i.e., with no limit on the grand prize) per year. An administrative fee per machine is paid to the Province.

Other First Nations started to follow the same model. Eskasoni and Horton First Nations had signed gaming agreements before MFN. As part of the deal, 12 Nova Scotia First Nations get half the profits from the Cape Breton Casino in Sidney, one of two in the Province, the other being in Halifax.

In signing these agreements the Province had two goals: eliminate unregulated VLTs and prevent a First Nation casino from opening. "If we didn't have that VLT we wouldn't be where we are today," said Chief Paul. He also noted that, back in the 1990s, First Nations had to put in 36% to fund economic development projects and INAC put in 64%, and that "it started out easier" before that.

7. Truro Power Centre (mid to late 1990s)

MFN was looking for new economic development opportunities and concluded that it had to designate reserve land for that purpose. It was difficult getting 50% plus one of its voters just to vote, because more than 50% of them live off reserve across Canada and

-157- the United States. The First Nation had to get land surveys and other documents mailed out to its off-reserve members and called them often to ask them to send in their vote..

MFN succeeded on the first vote three times. The first vote was held in 1986 and the next two were held after the Supreme Court of Canada's (SCC) Corbiere decision, therefore requiring the participation of off-reserve members.

MFN had previously spoken to other First Nations who had held designations to learn what had worked for them and what hadn't, as well as about relations with members and developers, and sources of revenue other than rentals, such as taxation.

Wall-Mart was the first potential tenant to approach MFN. They wanted land cleared and an overpass. An oral agreement was reached to that effect, as the work was going to be done anyway. MFN hired a very senior planner to design the overpass and the Economic Development Committee convinced INAC to pay for it, "because they had split our land in two and created a safety hazard for our people crossing the highway," said Chief Paul, who had told INAC that "if they get killed, we're going to sue you." Shirley Serafini, then Deputy Minister of INAC, visited the reserve, saw people dodging cars to cross the highway and gave instructions to get everything ready for the overpass.

Chief Paul was working at the time with Bill Montour, and then INAC's Atlantic Regional Director General, and had Minister Robert Nault's home phone number. He called Minister Nault, who had recently put $75 million on the table for First Nations economic development across the country, at home at 5:30 AM Ottawa time. Shortly thereafter Chief Paul and Mr. Montour were called in to a meeting in Minister Nault's office at 7:30 AM, at which the Minister approved $7.4 million in infrastructure money, representing 100% of the cost of the overpass. This allowed traffic access to the Truro Power Centre, MFN's large retail outlet site.

Wall-Mart backed out of the oral agreement after the designation vote and during overpass construction. MFN representatives "taught them that you need to be honourable by appealing their application to the Utility Review Board on a planning matter. We stopped them in their tracks for two years," they said. The development Wall-Mart had decided to pursue off reserve was going to have a negative impact on MFN because it failed to consider traffic skewing, pedestrian traffic and environmental considerations relating to a brook that MFN had enhanced as a fish spawning ground. MFN described their motivation in appealing Wall-Mart's application as "a combination of spite and good reasons." In the end Wall-Mart paid for a sidewalk and proper traffic studies.

With Wall-Mart backing out, MFN needed tenants for their Power Centre, so they initially got a Tim Hortons and an Ultramar. MFN also tried to get the Sobey's Group, the second largest food chain in Canada, as an anchor tenant, given that Sobey's had done it before on a Québec reserve. MFN representatives explained that problems arose with INAC and DOJ, who wanted Her Majesty to accept zero liability, which doesn't exist in the business world. As a result, negotiations with DOJ on terms of a head-lease lasted almost two years and "it was like pulling teeth." In the end a collateral agreement between MFN and TRA Foods, a division of Sobey's, had to be signed to get around DOJ's objections.

"It wasn't easy," said Chief Paul. "There were so many things we had to do and we were new kids on the block. We had to convince tenants that our leases were just as binding as those they signed in Halifax, Montreal or Toronto. Sobey's signing opened the door."

-158- MFN continued to put in place the conditions for economic development by adopting a taxation by-law in 1986, with the help of Chief Manny Jules and the Indian Taxation Advisory Board. At this time MFN also obtained a Canada Revenue Agency (CRA) ruling that the Band‟s corporation that leased and sub-leased designated land to third parties would be treated like a municipal corporation for tax purposes.

Other by-laws on signage, hours of operation (at a time when nobody was allowed to open on weekends), construction and zoning had all been put in place before. MFN had also concluded a Policing Agreement with the Royal Canadian Mounted Police (RCMP) and a Service Agreement with the Town of Truro for sewer and water, to get everything in place for the Truro Power Centre. Despite all this work by MFN, Chief Paul said, "all three levels of government thought this wasn't going to work. Some saw this would be good for everyone, but the naysayers didn't."

8. Housing Program (mid to late 1990s)

"We have a subsidy to help Band members build their own houses on reserve and members get an unsecured loan for the balance," MFN representatives explained. "Off reserve we provide a subsidy towards their down payment. CPs are only issued if requested, but that's not a big deal because we respect the holder's and occupier‟s wishes when they pass," whether there's a CP or not.

9. Cole Harbour (late 1990s)

MFN has a satellite reserve in Cole Harbour, next to Dartmouth, which is now part of the Halifax Regional Municipality, comprising 25.6-acres of designated land. Chief Paul explained that "when we did the first land designation, INAC said the only length possible was 49 years. Later we found out you can designate land for leasing for 99 years, so a referendum was subsequently passed to increase the maximum duration of the land designation to 99 years. We sold it to members by saying we can undesignated it by an ordinary Band Council Resolution if land is needed for housing or another public purpose, and that gave members comfort."

Today there are 53 VLTs in Cole Harbour, a gas bar and convenience store, and two apartment buildings for rent but built to condominium specifications (one with 49 units and the other with 56), a General Dynamics Software Support facility for the new Maritime Helicopter project, as well as the Atlantic Policy Congress of First Nation Chiefs office building.

10. SCC Marshall Decisions (1999 and 2005)

Following these decisions, the federal government appointed a negotiator. As a result of the negotiations, MFN ended up with substantial fisheries assets, including licenses, vessels, fishing gear, wharves and training dollars.

11. Gas Bar and Convenience Store Established on the Sheet Harbour Reserve (early 2000s)

12. Fee Simple Land Purchase (mid-2000s)

MFN bought over 1,000 acres to own all of the land on the south side of the reserve fronting the highway. This land is not yet reserve, which gives more flexibility.

-159- B) The main factors that contributed positively to Millbrook's reserve land management, ranked in three categories of declining order of importance, with the first three factors in the most important category, the next three in the second most important category, and the last five in the third most important category

1. Community Support

MFN is interested in improving the standard of life of its members. For the last several years, Chief and Council have made available through application two Millbrook Enterprise Grants, one of $1,500 and another of $1,000, per year for every MFN member. This applies to both on and off reserve members and was done before the SCC's Corbiere decision. The grant is paid to members who are 19 years or older and to a trust for younger members. Chief Paul said that this "grant process is key in maintaining community support because members should receive some benefit from Millbrook enterprises that improves their standard of living. Revenues from Millbrook enterprises have also provided additional funds to support health care, education, new housing, renovations to existing housing and infrastructure for residential and commercial purposes."

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Own Source Revenue

The 1986 Gaming Agreement expires in 2015 and negotiations have already commenced for its renewal.

The First Nation has a medium degree of control over this positive factor of its reserve land management.

3. Location

Chief Paul described MFN's location as "ideal" and "the hub of the Province", situated as it is on one of the two major connector highways and the busiest highway in Nova Scotia. This is illustrated by the fact that 25,000-30,000 cars go to the Truro Power Centre every day, and over 45,000 on weekends.

The First Nation has little control over this positive factor of its reserve land management, other than to entice motorists to stop with appropriate signage along the highway.

4. Good Leadership

Chief Paul has a record of more than 30 years of consistency, having been Chief for the last 28 years and a Councillor for four years before that.

MFN also has a very well informed and very well educated Council, the majority of whose members either have university degrees or have been engaged in different activities besides politics. "They've been pretty consistent over time and they're not likely to panic if something goes wrong," said Chief Paul.

"Some Chiefs steal from their people to line their pockets," he added. "There's a lot of graft out there. I don't do those things. They pay me a salary and I'm content with that. -160- I don't know how they get away with it, because if I tried to do anything like that I'd be booted out."

The First Nation has a high degree of control over this positive factor of its reserve land management.

5. Good Governance

MFN has a Land Use Plan, by-laws, policies and policing, and pays for two RCMP officers over and above what the tripartite policing agreement provides. In addition, "when people get more educated, they know their rights," said Chief Paul.

The First Nation has a high degree of control over this positive factor of its reserve land management.

6. Strong Administration

Large contractors in the area had bad previous experiences with other First Nations, so MFN's Economic Development Committee deposited $500,000 in a solicitor‟s trust account that was available to contractors if a bill was not paid when due. "We only had to do that once," said Chief Paul. "We pay our bills before they're due, because we normally get a 2% discount for doing that. We created confidence and stability, not just for ourselves but for other First Nations too. Business is business, we tell our partners: you have a contract and it will be honoured." MFN also makes its general contracts (with commercial confidential information removed) available to assist other First Nations.

The First Nation has a high degree of control over this positive factor of its reserve land management.

7. Partnerships

MFN tries to work in partnership with INAC. "We're all in this," said Chief Paul, "so how can we make it work?" In his view MFN has developed a very good rapport with INAC, the Province and local municipalities. In his experience, "if you're reasonable and you show people this is a win-win," they'll work with you.

The Chief also noted that a majority of the people employed in the Power Centre are non-members. MFN's only requirement in this respect is that its tenants hire the First Nation person if a First Nation person and a non-First Nation person have equal qualifications.

The First Nation has a high degree of control over this positive factor of its reserve land management.

8. Good Relations with Financial Institutions

Jim Prodger, MFN‟s Financial Manager, built a really good relationship with Terry French, Commercial Loans Officer at the Royal Bank of Canada (RBC), so much so that MFN moved its account twice to follow Mr. French when he moved, first to the Canadian Imperial Bank of Commerce and then back to RBC.

The First Nation has a high degree of control over this positive factor of its reserve land management. -161- 9. Education

MFN tests kids in pre-school to diagnose learning disabilities early. The First Nation had 19 high school graduates in 2009, 80 to 90% of which are now in university or community college. "Education and economic development are the lifeline of our people," said Chief Paul.

10. Independence

As an illustration of this factor, Chief Paul said that "we have educated people in our community, so we negotiate our own tuition agreements with the local school board."

"The federal government wants to get out of its fiduciary duty," the Chief continued, "but that won't happen tomorrow. We've only got a small toehold in economic development, so we're not ready yet. Our gaming agreement expires in 2015 and we'll try to get another one. If we depended on INAC for our economic development dollars, we'd be dead in the water, because Bands have to come up with their equity."

The First Nation has a high degree of control over this positive factor of its reserve land management.

11. Legal Expertise

David English, Millbrook's Band Solicitor, has been working with MFN for 22 years.

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Millbrook's reserve land management, in declining order of importance, the first two of which are equally important

1. Designation Approval Process

"Whatever you do, there's always a degree of risk," said MFN representatives, "so there has to be an acceptable degree of risk in the designation process. INAC and DOJ's cookie cutter approach doesn't take into account the different abilities of different First Nations." In their view, the 50% plus one requirement should not apply. There should only be a requirement for one vote and you should only need a majority of those who vote for a positive result.

The First Nation has no control over this negative factor of its reserve land management.

2. Band Council's Lack of Legal Personality

MFN's Band Council doesn't have all the legal powers of a natural person who is a Status Indian. As a result, it cannot own land in its own name. It has to create a corporation to own land and that corporation is not treated as a government.

MFN representatives said that they could lose some development because they have no flexibility and their only choice is between fee simple and reserve land. In their view, giving Band Councils all the legal powers of a natural person who is a Status Indian is "the key to give all First Nations who don't have a good location the ability to have economic development." -162- The First Nation has no control over this negative factor of its reserve land management.

3. INAC's Attempts to Back Out of its Fiduciary Duty

"Whatever the government wants," said MFN representatives, "we find it's not good for us, it's just to cover their asses. We know they want to get out of their fiduciary duty, but they can't. We don't trust them."

The fact that the First Nations Land Management regime was created without any consultation with First Nations east of Ontario was cited as one example of why "whatever the government comes up with, we don't trust."

In their view, fiduciary responsibility is in Section 35 of the Constitution, so "the only way they can get out of it is if we voluntarily give it up or the provincial Premiers agree to change the Constitution."

As a result, "they've got to consult with us and they've got to have our input. If we say it's not good for our people, they should listen to us, not like John Munro saying on Bill C-31: "I'm going ahead over your objections." In Delgamuuk the Supreme Court of Canada said that before you go to court you should try to negotiate something, so we have to do it ourselves."

"It's going to take a long time before we reach self-sufficiency, and some First Nations in isolated communities don't have a chance." In contrast, MFN hasn't had a suicide on reserve for over 10 years and only one in the past 30 years, because "we're giving our young people hope that things will be better for them than for their fathers."

Chief Paul recalled that he worked for INAC on economic development in the 1970s and that to succeed in that area you've got to have

- location, - supply, - market and - advertising.

The First Nation has no control over this negative factor of its reserve land management.

4. Racism

MFN representatives explained that when they go on the market to buy land, they have a numbered company and they use a real estate agent from outside the area to buy for them, for two reasons: "racism and they'll think we're loaded."

Chief Paul recalled that a lady whose land MFN was trying to buy in the early 2000s declared in the local newspaper: "I'd rather go on welfare than sell to Indians."

MFN representatives noted that some whites will either say "look at those good-for- nothing Indians on welfare" if they're poor and "look at those pesky Indians taking jobs away from us" if they're not. "You can't win, so to hell with them," they concluded.

Chief Paul gave as an example of this negative factor MFN's desire to donate 25 acres for a new hospital. The hospital decided to buy a $1.7 million piece of land instead, because the Mayor of Truro had said that he would not help with any fundraising if the hospital accepted MFN's offer. "There was no other credible reason for refusing an offer -163- of free land than racism," explained the Chief. "They were grasping for straws because they didn't want to say: "We don't like Indians," so they created a requirement for an additional access with conditions that couldn't be satisfied.”

The First Nation has no control over this negative factor of its reserve land management.

5. Perception of Less Legal Security On Reserve than Off Reserve

"We have better luck dealing with national corporations than individuals because of that," said MFN representatives. That's "part of racism, which is still there even though it's generally very subtle." However, "they'll forget themselves sometimes when they're talking to whites who they don't know are our employees" and say what they really think about Indians, which isn't pretty.

The First Nation has no control over this negative factor of its reserve land management.

6. Lack of Flexibility in Federal Policies to Account for Regional Differences

MFN representatives gave two examples of this negative factor. The first was INAC's head-lease template, which they were told had to be the same right across the country. "We spent two years on that head-lease and had to put in a collateral agreement with sub-leases because we couldn't change some things. INAC has to approve sub-leases, so that's why we have a collateral agreement, which is enforceable but not registered in the Indian Lands Registry."

The second example concerned the Harmonized Sales Tax. MFN didn't want to make Band members subject to that, but the Department of Finance said no because "we have a national policy and it has to be the same across the board."

The First Nation has no control over this negative factor of its reserve land management.

D) Millbrook's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Millbrook assesses its success at 2.5.

2. Success in using its reserve land for economic development purposes

Millbrook assesses its success at 1.5.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Millbrook assesses its success as a 1, "because we couldn't get to where we are using only the Indian Act. We had a lease that nobody would sign."

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Millbrook assesses its success at 2.5.

-164- 5. Millbrook's priorities for the management of its reserve land over the next five years

i) A $30 million indoor water park on reserve, with a minimum of 30,000 square feet of wet area, connected to a new hotel with 100 plus rooms

ii) Melford Terminal, a brand new port facility in its traditional territory. MFN is a small investor in this $300 million project, but on the same level as the promoters in terms of risk and exit strategy.

iii) A new restaurant on reserve, which could become the flagship for others off reserve

iv) Deer Lake Hotel-Motel Complex, in which MFN is a partner

v) Three Super 8 Hotels, one in New Brunswick and two in Nova Scotia, in which MFN is also a partner

vi) A US investment

vii) A possible Factory Outlet Mall on reserve, after the water park and hotel make Millbrook a tourist destination

viii) VLTs. MFN representatives explained that "if we weren't under the Indian Act, we wouldn't have VLTs, so the Province has to deal with us to avoid gray machines. Profits from VLT machines continue to make possible what we're planning to do, for which we generally need at least 40% equity for each economic venture."

E) Millbrook's Recommendations

i) We don't give advice to other First Nations unless they ask

2. To be acted upon by the Government of Canada over the next five years to meet It’s commitment to modernize reserve land management

i) If you want to see First Nations reach self-sufficiency some time in the future, you've got to put your money on the table. If you have a tight money policy, First Nations will still be stagnating 10 years from now because of their location.

If we depended on our own population we'd be down the tubes. We depend on the non-Native population. We have our financial controls in place, so we know where every quarter is spent. If you don't have financial stability and your reputation is you don't pay your bills, it'll be hard to get tenants on the reserve. You also have to have stability in government.

Spend money now and you'll have money in the future, but they don't want to work themselves out of a job. -165-

We need a pot of money available for economic development, especially for First Nations with a bad location. ii) Give First Nation Councils all the powers of a natural person, at a minimum, and preferably with Indian Status, to purchase land in good locations close to big population centres, because the vast majority of First Nations don't have good locations. iii) Keep your fiduciary responsibility in place. They're trying every which way to get out of fiduciary responsibility and we're hell-bent on preventing them because of Section 35 of the Constitution. iv) Continue providing First Nations access to the Indian Lands Registry and create the ability for e-filing by a First Nation v) Speed up all your paper processes and e-file everything, including environmental assessments vi) Simplify the designation process

Approved by Alex Cope October 22, 2010 -166- MONTAGNAIS DU LAC-ST-JEAN

INFORMATION STATISTIQUE

Emplacement A 10 km de Roberval, dans la province de Québec, le centre de service le plus près auquel la réserve a accès toute l‟année, zone 1, c‟est-à-dire urbaine

Population 2,031 membres (40.9 %) sur la réserve, 2,943 membres (59.1 %) hors-réserve, total de 4,974 250 résidents non-membres sur réserve

Terres de réserve 1,522 hectares (3,760.94 acres), une réserve, riveraine et agricole

Cadre législatif et réglementaire de la gestion des terres de réserve Programme de gestion de l‟environnement et des terres de réserve (opérationnelle)

Personnel de gestion des terres de réserve membre d’une association professionnelle Association nationale des gestionnaires des terres autochtones

Impôts fonciers Non

Indice du bien-être des collectivités* 72

Indice de trame parcellaire** 90

Transactions actives enregistrées 2,042 transactions actives enregistrées dans le Registre des terres indiennes (RTI), le Registre des terres des Premières nations (RTPN) ou le Registre des terres des Premières nations autonomes (RTPNA) de 1999 à 2009

Certificats de possession (CP) actifs et enregistrés 6,705 CP actifs et enregistrés dans le RTI, le RTPN ou le RTPNA au 9 mars 2010

RÉPARTITION DES TENDANCES QUANT À L’UTILISATION DES TERRES

65%

Certificats de possession 65% Utilisation à court terme avec bail au noir 10% Activité associée à une licence ou un permis 5% Baux au noir individuels à long terme 1% Terres non enregistrées utilisées par la bande 10% 5% Terres enregistrées utilisées par la bande 5% Terres inutilisées par la bande 5%

10% 1% 10% 5%

-168- MONTAGNAIS DU LAC-ST-JEAN

RAPPORT D’ENTREVUE

Le 12 août 2010, 9:00 à 14:00 heures.

Dave Casavant, Coordonnateur Affaires extérieures Adèle Robertson, Responsable Habitation Danielle Paul, Responsable Approvisionnement et services Alexandre Paul, Planificateur communautaire Édouard Robertson, Directeur général de la Société de développement innue

A. L'expérience de gestion des terres de réserve de Mashteuiatsh

Les 17 événements ou périodes clés suivants ont été identifiés.

1. Création de la réserve (1856)

Deux terres avaient été réservées pour les Montagnais du Lac Saint-Jean en 1851. Ceux-ci ayant fait pression pour les regrouper, une seule réserve fut créée en 1856, comprenant 23,000 acres, soit un canton complet ou environ 40 kilomètres carrés.

Des billets de location (BL), qui seraient éventuellement remplacés par des certificats de possession (CP), furent émis peu après. La communauté était alors composée à la fois de sédentaires et de nomades, et ces derniers continuaient d'occuper le territoire. Il est plausible que certains détenteurs de BL ou de CP aient trouvé leurs terres occupées par d'autres au retour d'un séjour prolongé à l'extérieur de la réserve.

2. Première cession (1869)

Cette cession portait sur les Rangs 1 à 9, sauf un résidu des Rangs 4, 5 et 6, soit 80% de la réserve.

3. Deuxième cession (1895)

Celle-ci portait sur le résidu susmentionné. À partir de là, la réserve ne consistait plus que des Rangs A, B et C, d'une superficie totale de quatre kilomètres carrés, soit 10% de sa surface initiale.

4. Expropriation en faveur du Canadien National (1910)

La construction du chemin de fer scinda la réserve en deux. Il ne coûtait rien au CN pour passer dans les communautés.

5. Inondation du Lac Saint-Jean (1926)

La compagnie Duke-Price inonda le lac pour produire de l'électricité pour l'industrie forestière. Celui-ci devint un réservoir, maintenu au niveau des hautes eaux du printemps. La réserve perdit des lots entiers, qui font l'objet d'une revendication particulière en cours. La responsabilité de l'inondation de 1926 est aujourd'hui attribuable à la compagnie Rio Tinto.

6. Premiers chalets de villégiature (1960) -169- Des chalets furent construits par des détenteurs de CP. Ceux-ci conclurent des baux pour les louer à des non-membres quelques années plus tard et des chalets furent construits aussi par des non-membres sur des terrains loués par des détenteurs de CP.

La gestion de ces baux de villégiature par le ministère des Affaires indiennes et du Nord canadien (MAINC) a été déficiente. Le MAINC se lave aujourd'hui les mains de la pollution causée par les locataires sur les terres de CP, en dépit du fait que les baux qu'il à lui-même signé prévoyaient la remise en l'état initial de ces terres à la fin du bail. Le gouvernement canadien s'est montré incapable de donner un appui à la Bande en matière d'environnement, parce qu'il s'appuie lui-même sur le gouvernement provincial, dont la réglementation est inapplicable sur réserve. Il en résulte un vide juridique en ce qui concerne la protection de l'environnement sur réserve.

7. Nouveau programme d'habitation de la Bande (1977)

Ce programme permet l'accession à la propriété aux détenteurs de CP, ce dernier étant transféré au Conseil en garantie d'un prêt à l'habitation, le Conseil garantissant lui- même le remboursement du prêt auprès de l'institution financière qui l'a consenti. La sécurité foncière est ainsi assurée au prêteur agréé en cas de défaut de paiement. Ce mécanisme permet de contourner les problèmes posés par l'article 89 de la Loi sur les Indiens, qui prévoit l'insaisissabilité des biens d'un Indien sur réserve.

En vertu de ce programme le Conseil donne une partie de la contribution du MAINC en subvention au détenteur de CP et une partie en prêt remboursable sans intérêt, "pour responsabiliser les membres."

Le programme d'habitation a aidé au démarrage des entrepreneurs en construction de la communauté. Le Conseil a joué un rôle d'incubateur en organisant des formations pour ses membres sur les chantiers et en gérant un projet de construction de 31 logements pour personnes âgées.

Les garanties ministérielles de prêt ont commencé en 1980-81 avec le programme d'accès à la propriété et le programme de logement social de la Société centrale d'hypothèque et de logement.

8. Projet de loi C-31 (1985)

Suite à l'entrée en vigueur du projet de loi C-31, les argents supplémentaires promis par le MAINC étaient bien inférieurs à la hausse du budget qui aurait été nécessaire pour fournir aux nouveaux membres le même niveau de services jusque là fourni aux anciens. Les nouveaux membres ont exigé que ces argents supplémentaires leur soient exclusivement réservés. Le Conseil a refusé parce qu'il voulait utiliser l'ensemble des argents fournis par le MAINC dans le meilleur intérêt de l'ensemble de la communauté.

9. Planification communautaire (1993)

10. Règlements d'urbanisme (1994)

Ces cinq règlements portent sur

- le zonage,

- la construction,

-170- - le lotissement,

- les tarifs et l'administration des permis, et

- la création du comité consultatif d‟aménagement.

Le plan de zonage est adapté aux besoins de la communauté et inclut une zone industrielle. En revanche, les représentants de Mashteuiatsh ont décrit cette règlementation comme insuffisante.

11. Troisième cession et règlement d'une série de revendications particulières (2000)

Il s'agissait de toutes les revendications relatives aux deux cessions précédentes, plus le Rang 9 qui avait été oublié et était cédé contre une compensation de $4 millions, plus le passage de la route 169. Le règlement comprenait un engagement à accélérer le processus d'ajouts de terres à la réserve pour les vingt prochaines années, donc jusqu'en 2020. Les représentants de Mashteuiatsh y travaillent toujours et ont déposé un avis d'intention à cet égard en 2009. Certains lots ont été achetés, mais pas encore tous ceux que la Bande veut inclure dans l'ajout de terres à la réserve, qui sera le premier de son histoire.

12. Prise en charge par la Bande de la gestion des terres (2004-2005)

Jusqu'en 2004 le MAINC louait un bureau au Conseil de bande et embauchait un membre de la Bande qui gérait à la fois les terres et le membership selon les règles établies par le MAINC.

13. Entente de principe avec le Canada et le Québec dans la négociation territoriale globale (2004)

Cette entente prévoit un agrandissement de la réserve et un changement de régime juridique. Dans le cadre de l'autonomie gouvernementale envisagée, il n‟y aurait plus de terres de réserve, mais ce seraient des terres en pleine propriété, plus proches d'un type de propriété privée que de l'usufruit. Le chapitre sur la fiscalité de cette entente ouvre la voie à la discussion en prévoyant que la communauté puisse se doter d'un régime fiscal. L‟entente contient également un important chapitre sur le régime territorial.

14. Nouveaux règlements administratifs relatifs à l’urbanisme (2008)

Ceux-ci concernent la sécurité des piscines (d'inspiration provinciale) et l'évacuation et le traitement des eaux usées. Ce dernier règlement en remplace un de 1994 qui avait été calqué sur le règlement Q2R8 du Québec mais n'avait pas évolué comme lui. On a réglé ce problème dans le nouveau règlement en effaçant celui de 1994 et en prévoyant que les éventuels amendements au Q2R8 s'appliqueront au fur et à mesure de leur adoption. Le nouveau règlement exige des rapports d'ingénieur.

15. Révision de la planification communautaire de 1993 (2010)

La planification communautaire couvre 5 volets : économique, communautaire, villégiature, résidentiel et territorial.

16. Révision du programme d'habitation de 1977 (2010)

-171- Comme nouveauté, le programme révisé prévoit un soutien financier du Conseil de Bande sous forme de prêt sans intérêt aux promoteurs pour développer le logement locatif sur les terres de réserve détenues par les détenteurs de CP.

17. Mise en place d'un parc industriel (2010)

Les travaux doivent commencer à l'automne 2010.

B. Les principaux facteurs qui ont contribué positivement à la gestion des terres de réserve de Mashteuiatsh, qui forment un tout intégré

1. Discrimination positive en faveur des entreprises de la communauté

"On garde l'argent dans la communauté (il n‟y a plus de fuites)."

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

2. Le programme d'habitation et de soutien financier à la construction résidentielle

Ce programme permet à la fois de construire des maisons et "aux gens de devenir autonomes, au lieu d'être dépendants du MAINC.

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

3. L'administration publique compétente de la Première nation

C'est là un "facteur passe-partout," qui contribue positivement tant à la gestion des terres de réserve qu'à de nombreux autres aspects du bien-être communautaire de Mashteuiatsh.

La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

4. La proximité des villes avoisinantes

Cette proximité fait que la communauté est moins limitée dans l'accès aux services (banques, caisses populaires, notaires, avocats, comptables, etc.). Le coût des matériaux et des travaux de construction est aussi moins élevé et les écoles sont plus proches si on compare à plusieurs autres communautés.

La Première nation n'a aucun contrôle sur ce facteur positif de sa gestion des terres de réserve.

5. Le fait d'être situé dans une zone touristique intéressante

La Première nation a un degré de contrôle moyen sur ce facteur positif de sa gestion des terres de réserve, puisqu'elle contribue à l'offre touristique de la région.

6. Le fait que le programme d'habitation réponde aux besoins de tous les membres, tant à l'aise que démunis (logement social)

-172- La Première nation a un degré de contrôle élevé sur ce facteur positif de sa gestion des terres de réserve.

7. La présence du MAINC dans la communauté jusqu'en 2004

Ce facteur a surtout joué jusqu'en 1980, auquel moment s'est amorcée une transition longue de transfert de responsabilité. Il était plus facile à l'époque de régler les problèmes sur place, plutôt que de devoir les référer à Québec ou à Ottawa.

La Première nation avait un degré de contrôle moyen sur ce facteur positif de sa gestion des terres de réserve.

8. Les Certificats de Possession

D'après les représentants de Mashteuiatsh, les "propriétaires" des terres de réserve ont plus d'intérêt à les faire fructifier, ce pourquoi le secteur privé est plus dynamique sur leur réserve que dans des communautés où il n'y a pas de CP. La qualité des constructions y est meilleure et celle de la vie aussi du fait de l'intérêt individuel dans les terres de réserve. Le marché de l'habitation sur réserve est restreint, puisque les maisons ne peuvent se transiger qu'entre membres, mais les maisons ont quand même une valeur. Le projet de loi C-31 a fait grandir ce marché. Plusieurs maisons sont en vente et se sont vendues jusqu‟à $200,000, donc "ça bouge." Tout ça "crée de la job et de l'engouement pour le développement, et moins de dépendance pour les détenteurs de CP face au gouvernement fédéral."

La Première nation n'a aucun contrôle sur ce facteur positif de sa gestion des terres de réserve.

C) Les principaux facteurs qui ont contribué négativement à la gestion des terres de réserve de Mashteuiatsh, dont les deux premiers sont également importants et les cinq suivants ont une importance moindre mais égale

1. La concentration des CP en peu de mains

Selon les représentants de Mashteuiatsh, le Conseil paie aujourd'hui pour racheter des terres qui ont été données, à savoir des terres agricoles qu'il n'a pas reprises lorsqu'elles ont cessé d'être utilisées à cette fin par les détenteurs de CP qui les avaient obtenues pour faire de l'agriculture. Une part substantielle des terres en bordure de lac ont été par la suite utilisées à des fins de villégiature. Des baux de villégiature de $500 à $1,500 par année pour des petits terrains sont payés aux détenteurs de CP.

De plus, "le CP va à l'encontre de l'esprit communautaire. Les CP se sont transformés de facto en certificats de propriété totale, sans discussion ni accord, et par conséquent la Bande a perdu de l'intérêt collectif dans les terres de réserve. Les prix demandés par les détenteurs de CP sont faramineux, ce qui bloque le développement de la communauté. Beaucoup de terrains demeurent vacants et sont détenus par les détenteurs de CP pour les générations futures."

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

2. L'inaliénabilité des terres de réserve et l'insaisissabilité qui en découle

-173- On ne peut ni acheter ni vendre les terres de réserve à un non-membre. Il en résulte un marché restreint pour les habitations sur réserve, qui entraîne à son tour une valeur réduite pour celles-ci. L'inaliénabilité et l'insaisissabilité ont aussi des conséquences pour le développement économique, puisqu'elles rendent plus difficile l'accès au financement pour les détenteurs de CP.

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

3. La petitesse de la superficie de la réserve

La Première nation a un degré de contrôle moyen sur ce facteur négatif de sa gestion des terres de réserve.

4. L'absence d'exercice du pouvoir de taxation du Conseil

Mashteuiatsh ne taxe présentement ni ses membres ni les non-membres résidant sur réserve, mais se prépare à donner suite au chapitre sur la fiscalité de l'entente de principe de 2004.

Entretemps la communauté fait l'objet de beaucoup de pressions de la part des gouvernements du Canada et du Québec, qui tentent d'élargir leur assiette fiscale sur la réserve. Actuellement, le Conseil des Montagnais travaille de concert avec la Société de développement économique il nu a une démarche permettant l‟établissement éventuel d‟un cadre d‟intervention fiscale qui respecte les compétences gouvernementales de la Première nation et celles des gouvernements.

La Première nation a un degré de contrôle moyen sur ce facteur négatif de sa gestion des terres de réserve.

5. Absence d'accès direct à la route régionale 169

Cette absence d'accès a un impact économique, y compris pour le tourisme. La construction d'une telle route d'accès est projetée pour 2011 sur des terres acquises qui feront éventuellement l'objet d'une demande d'ajout à la réserve.

La Première nation a un degré de contrôle moyen sur ce facteur négatif de sa gestion des terres de réserve.

6. Le chemin de fer

Le chemin de fer sépare en deux la réserve, qui comporte 12 traverses routières (huit privées et quatre publiques). Le Conseil doit payer des droits au Canadien National pour raccorder ses réseaux téléphoniques et informatiques des deux côtés du chemin de fer, ainsi que ses réseaux d'aqueducs, etc., en compensation pour les servitudes de services publics que le CN lui a accordées. Le train traverse en outre les plus belles terres de la réserve avec la plus belle vue. Pout toutes ces raisons, Mashteuiatsh a la volonté et le projet de déménager le chemin de fer.

La Première nation a un degré de contrôle faible sur ce facteur négatif de sa gestion des terres de réserve.

7. Absence de financement du MAINC pour les services aux non-membres

-174- La réserve comporte 500 chalets de villégiature, dont environ 350 font l'objet de baux à des non-membres.

Même si ces baux sont en principe à des fins de villégiature, certains locataires y résident à l'année. Les détenteurs de CP perçoivent seuls les revenus de ces baux, qui ne bénéficient donc pas à la communauté, mais celle-ci doit financer seule les services à ces résidents non-membres.

La Première nation n'a aucun contrôle sur ce facteur négatif de sa gestion des terres de réserve.

D) La situation actuelle de Mashteuiatsh et ses voies d'avenir

Cette section mesure le succès sur une échelle d'un à cinq.

1. Succès à utiliser ses terres de réserve à des fins de contrôle communautaire

Mashteuiatsh évalue son succès comme un 3.

2. Succès à utiliser ses terres de réserve à des fins de développement économique

Mashteuiatsh évalue son succès comme un 3.

3. Succès à utiliser ses terres de réserve avec des outils et procédures prévus par la Loi sur les Indiens

Mashteuiatsh évalue son succès comme un 2.

4. Succès à utiliser ses terres de réserve avec des outils et procédures qui ne sont pas prévus par la Loi sur les Indiens

Mashteuiatsh évalue son succès comme un 4.

5. Les priorités de Mashteuiatsh pour la gestion de ses terres de réserve au cours des cinq prochaines années

i) Agrandissement de la réserve

ii) Construction d'une route d'accès à la route régionale 169

iii) Mise en place du parc industriel, y compris la réflexion sur le droit superficiaire, collectif ou individuel

iv) Autonomie gouvernementale

v) Prise en charge par le Conseil de l'émission et de la réglementation des baux de villégiature

vi) Mieux gérer l'environnement dans l'ensemble de la communauté

E) Les recommandations de Mashteuiatsh

-175- 1. À mettre en œuvre par les autres Premières nations au cours des cinq prochaines années pour maximiser la contribution de la gestion des terres de réserve à l'atteinte de leurs buts en matière de contrôle communautaire et de développement économique

i) Développer des programmes qui favorisent l'autonomie des membres face à la communauté pour favoriser l'initiative privée

ii) Rejeter les règles non autochtones: "Ça veut pas dire le Far-West ou le chaos, tu peux te servir de ce qui existe et l'adapter."

iii) Bonne planification et gestion moderne des terres de réserve

iv) Tenir compte des besoins du milieu

v) Établir les objectifs que tu veux atteindre d'abord

vi) Réparer les erreurs du passé le plus rapidement possible, ne plus attendre 40 ans

vii) Favoriser l'utilisation de l'actif que constituent les terres de réserve en étant créatif pour contourner les obstacles posés par la Loi sur les Indiens

2. À mettre en œuvre par le gouvernement du Canada au cours des cinq prochaines années pour tenir son engagement de moderniser la gestion des terres de réserve

i) Rénovation cadastrale par le ministère des Ressources naturelles du Canada pour créer des lots entiers et faire du ménage. Suite à cette rénovation, "le gouvernement du Canada doit tenir ses affaires à jour pour ne pas que les communautés héritent des conséquences de sa gestion déficiente, par exemple

- des croquis au lieu de plans officiels d'arpentage,

- des transactions sur des terres de bande qui ne sont pas enregistrées,

- des maisons construites sur des lignes, donc en partie sur le CP du voisin,

- des morceaux de rues qui appartiennent à des CP,

- des lotissements enregistrés par le MAINC sans le consentement du Conseil et en contravention de sa réglementation: à quoi sert de permettre aux communautés d'avoir des règlements si le MAINC fait tout par en arrière?"

Les représentants de Mashteuiatsh ont souligné que le Québec a procédé à une rénovation cadastrale tout le tour du Lac Saint-Jean mais que la réserve en a été exclue en raison de son statut de terres fédérales. Ils ont insisté sur le fait que, six ans après l'entente de principe pour le règlement de la revendication territoriale, "il faut qu'on prenne quelque chose de clean" et ont estimé que l'attitude du gouvernement fédéral à -176- cet égard est "carrément irresponsable: on était là pour vous gérer, on vous a mal géré, maintenant organisez vous." ii) "Le MAINC a signé des baux de villégiature, alors qu'il paye pour l'infrastructure, c'est-à-dire remplacer les fosses septiques par des égouts." Rappelant que certains locataires restent à l'année sur la réserve, les représentants de Mashteuiatsh ont ajouté qu'en l'absence de services l'augmentation de la densification augmente la pression sur l'environnement. iii) Resserrer les règles environnementales iv) "Que le gouvernement fédéral applique ses propres règlements, par exemple sur le stockage des produits pétroliers, plutôt que d'en laisser l'application aux communautés." Les représentants de Mashteuiatsh ont ajouté que cela exige du gouvernement fédéral à la fois de la volonté et des mécanismes d'application. En matière environnementale, le gouvernement fédéral doit aussi cesser de faire une discrimination contre les terres détenues par des CP, par exemple en ce qui concerne le remplacement des fosses sceptiques défectueuses. v) Amender la Loi sur la gestion financière et statistique des Premières nations pour permettre aux Premières nations qui ne sont pas inscrites par décret du Conseil au registre prévu par cette Loi d'accéder quand même aux services de l'Autorité financière des Première nations, et ainsi corriger une conséquence imprévue que le MAINC a reconnue d'une modification de dernière minute au projet de loi vi) "Développer une meilleure approche avec les Premières nations du Québec. C'est très anglophone, Ottawa, et les communautés anglophones ont de l'information privilégiée avant nous. Quand tu le sais six mois d'avance, tu te prépares, mais quand tu le sais quinze jours d'avance, on n'a plus le temps. Il faut une approche équitable." vii) Élargir la définition du développement économique, par exemple en ce qui concerne l'infrastructure: "Quand on est en plein développement, on a besoin d'un coup de pouce un peu plus facile, ce qui veut dire inclure le développement de l'économie au sens large, par exemple la route. Quand l'économie va mal, les gouvernements font de la route. Si j'ai une usine, je crée de l'emploi, et si je crée de l'emploi, je crée de l'économie."

Approuvé par Dave Casavant le 7 octobre 2010 -177- OSOYOOS INDIAN BAND

STATISTICAL INFORMATION

Location 56 km from Penticton, British Columbia, the nearest service centre to which it has year- round road access, Zone 1, i.e., urban

Population 363 members (67.58%) on reserve, 154 members (32.42%) off reserve, total 475 87 non-Indians and 80 Status Indians from other Bands resident on reserve

Reserve land 13,052.30 hectares (32,252.93 acres), two reserves, waterfront

Reserve land management legislative and regulatory framework Regional Lands Administration Program - First Nations Land Management (Inactive)

Reserve land management staff membership in a professional association First Nations Alliance 4 Land Management

Property taxes Yes

Community Well-Being Index* 78

Parcel Fabric Index** 97

Active registered transactions 855 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 560 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

** The Parcel Fabric Index (PFI) was developed by the Surveyor General Branch of Natural Resources Canada to measure the current status of parcel fabric on reserve on a scale of 0 to 100 by comparing it to the as-built environment (houses, structures, land clearing and agricultural development). -178- OSOYOOS INDIAN BAND

DISTRIBUTION OF LANDS USE PATTERNS

0.00032% 0.0032%

2% 5%

0.5% Certificates of Possession (CPs) 10% 10% Buckshee Short-Term Usage 0.5% Permitted Activity 2%

Band Buckshee Short-Term Leases (1 acre) 0.00032% Designated Land Leases 5%

Registered Band Use Lands (10 acres) 0.0032% Unused Band Lands 82.5%

82.50%

-179- OSOYOOS INDIAN BAND

INTERVIEW REPORT

July 19, 2010, 9 AM to 1:30 PM

Chief Clarence Louie

A) Osoyoos’ Reserve Land Management Experience

The following 40 key events or periods were identified.

1. Reserve Creation (1877)

The first Okanagan reserves were marked out by W. G. Cox, Gold Commissioner, in 1861 and were much larger than today‟s reserves.

The Osoyoos Indian Band (OIB) reserve was about 40,000 acres.

2. Allotment System (1861 onward)

Reserves were part of a broader “system” conceived by James Douglas, the first Governor of the Colony of British Columbia. The ultimate objective of this system was the disappearance of “Indians as Indians”, as was being pursued at the time on the other side of the Rockies by the government of Upper Canada. As soon as Indians were fenced in a reserve, consistent with that system the colonial government encouraged the allotment of parcels of reserve land to individual First Nation members. Individual allotments were to lead to “enfranchisement”, i.e., the loss of Indian Status. To that end the reserve system sought to make individual land owners out of Indians, just like non- Native Christian people. Upon enfranchisement the former Indian would continue to occupy the same plot of land, which would cease to be part of the reserve. The ultimate aim of the system was thus the disappearance of both Indians and Indian reserves.

This system, which the Department of Indian Affairs (DIA) was created to administer, has negatively impacted most reserves in Canada by creating “me-ism”, i.e., greed, arguing and internal fighting about land, haves and have nots, and a checkerboard pattern of unregulated lands on reserve.

Implemented by Certificates of Possession (CPs), this system is also the principal source of internal conflict, corruption and power-based families and politics among First Nations, and is contrary to their traditions of not owning land as individuals.

On reserve today some families own multi-million dollar properties that they did not buy. They took them out of Band control into individual control, in collusion with the Indian Agent.

The Indian Act sought to break up reserves into individually owned plots so that Indians could become just like white people. The Act also allowed the elected Chief and Council, which the colonial administration created for the express purpose of undermining the authority of traditional Chiefs, to allot CPs. That was a recipe for corruption and greed, and that‟s exactly what happened on most reserves: Chiefs allotted all of the best property to themselves and their sons.

-180- The DIA allowed this rampant conflict of interest to go on until the mid-1970s, when they started saying: “Wait a minute; you can‟t sign your own Band Council Resolutions granting yourself and your family hundreds of acres of reserve land or multiple pieces of property.” By that time it was too late, because the damage was already done.

The Osoyoos Indian Band (OIB) is lucky that the allotment system didn‟t take all its best land for contemporary economic development, as was the case on some other reserves. In Osoyoos, taking occurred in the middle of the reserve at a time when economic development meant ranching and farming. That‟s why all the lands on either side of the two creeks that go through the reserve are individually owned. The last CP allocations in Osoyoos happened in 1982.

3. First Reserve Cut-Off (1862)

Shortly after white settlers began occupying land around the reserves, they started putting pressure on the colonial administration to have access to reserve land as well, arguing that the Indians had more land than they “needed” because they weren‟t farming it all.

In 1862 J. C. Haynes became Gold Commissioner and Customs Officer in the Okanagan. Responding to pressure from the settlers, he recommended that reserves be cut down in size. As a result, the best agricultural land at the bottom of the OIB reserve was cut-off and opened for sale to settlers. OIB lost access to the Okanagan River and to more than 4,000 acres where the town of Oliver now sits.

4. Second Reserve Cut-Off (1924)

In 1912 a joint federal-provincial commission was established to investigate reserve allotments in BC, in an effort to manage continuing unrest among the Indians and white settlers on land issues. The McKenna-McBride Commission heard representations from BC Indians, who argued for the recognition of aboriginal title to their land (which most of them had never surrendered), their right to govern themselves (as all of them had done for thousands of years) and the size of reserves (which in most cases was too small to meet their needs). The Commission ignored all the arguments of the Indians, did what the settlers wanted it to do and reduced the size of reserves across the province. A further 100 acres, approximately, of reserve land were lost in the Okanagan as a result. OIB lost all of Indian Reserve #2 at Okanagan Falls.

5. Easements and Rights-Of-Way (1870s to 1970s)

Over a period of some 90 years OIB's reserve land was repeatedly subjected to a series of easements and rights-of-way for highways, power lines and an irrigation ditch, which cut the reserve in half several ways. Like other First Nations in similar situations, OIB either received cheap compensation for these restrictions on the possible uses of its reserve land or no compensation at all.

6. Amendments to the Indian Act Make It Illegal for First Nations to Hire a Lawyer to Advance Land Claims (1927)

"DIA knew it was stealing our land, so it denied us access to the court system to uphold our rights. Not being able to hire lawyers also made it more difficult for us to oppose DIA decisions we didn't agree with, like granting easements and rights-of-way on our reserve land", said Chief Louie.

-181- 7. First Lease (1962)

"Buckshee" leases, i.e., informal arrangements between the Band or a CP holder and a non-member for the use of reserve land, had existed up to this point.

The first formal long-term lease of reserve land was issued in 1962 to establish the Cherry Grove Golf Course and Motel, the first economic development project on OIB's reserve land.

8. Inkameep Vineyards Established (1968)

This economic development venture, probably the first by DIA in BC, was likely in response to a proposal by Andres Wines (later Peller Estates) to lease OIB reserve land to grow grapes and ship them to a winery off reserve. DIA put up the money to hire the vineyard manager, clear the land and put in place an irrigation system.

The official opening was in 1970, but the original grape growing contracts were probably signed around 1966 or 1967.

Throughout the 1970s, Nk‟Mip Vineyards never made money. DIA kept sinking in money (in both loans and grants) year after year and the DIA manager kept promising he‟d make money but never did. OIB decided they had had enough and changed the composition of the Board to Chief and Council in the early 1990s, a move that DIA fought all the way.

9. Cherry Grove Trailer Park Established (early 1970s)

10. OIB Band Office Opens on Reserve (1972)

Up until this point the Indian Agent would come down from Vernon whenever white people wanted something done on the Osoyoos Reserve, including but not limited to things related to the land. He would convene a meeting of the elected Chief and Council that DIA had created and influence the decisions they made.

OIB people worked in the orchards and followed the fruit down to Washington and into California. There was no Band Office, no Band Administrator, no Educational Coordinator, etc.

The opening of the Band Office on reserve in 1972 marked a major step forward in OIB‟s development. This was OIB‟s first contemporary form of governance, which gave it the capacity to say “no” to DIA decisions it didn‟t agree with, like granting easements and rights-of-way on its reserve land.

11. Vernon DIA District Office Occupied (1975)

All seven Okanagan Bands occupied the DIA Office in Vernon to protest cuts in budgets for education, bands and land claims. The Bands wanted their files and they wanted to take control of federal funding and programs that were supposed to be for their benefit. They also wanted the District Office shut down and it was within a year.

12. Cherry Grove Estates Trailer Park Established (1975)

This second trailer park of more than 100 units is the biggest leased trailer park on the reserve today. -182- 13. Inkameep Campground Established (mid-1970s)

The campground started in the early 1970s with no infrastructure and irregular collection of camping fees by the Band. It was leased out to non-Native people later in the 1970s. The Band took it over in 1984, when it became the second Band-owned business on reserve after the vineyards.

14. Brights Wines Lease (1979-80)

This lease with Brights Wines, which later became Vincor, enabled the construction of the first winery on a First Nations reserve in North America. OIB built the building with INAC loans and grants. The original lease was extended and the winery is now the biggest source of jobs and income on the OIB reserve.

15. Okanagan Falls Land Claim Settlement (1982)

OIB received $998,000 as a Specific Claim Settlement for loss of Reserve #2 in Okanagan Falls, a 71-acre former salmon fishing site that had been cut-off from its reserve land as a result of the McKenna-McBride Report.

This entire settlement amount was distributed to Band members on a per capita basis over a couple of years. While, in retrospect, it's unfortunate that none of it was invested, it forced the Band to find out who were its members living off reserve. Nobody had ever contacted them before because they couldn't vote in Band elections. Many didn't even know they were OIB members or that there could be benefits to being a member. Some of them moved back to the reserve and have been living there ever since.

16. Chianut Farm Lease (around 1982)

This lease was for 500 acres of irrigated fields on reserve and was once again made possible by INAC loans and grants. It only lasted a couple of years because the company went bankrupt. OIB had to take over the lease and the associated debt, which was about $1 million. The Band tried to grow hay and lost hundreds of thousands of dollars because the hay rotted. It then bought cattle and lost more money running a cattle feed operation.

17. Band Takes Over Operation of Nk'Mip Vineyards (1984)

Once Clarence Louie was elected Chief in 1984, his priority was dealing with the problems at Nk'Mip Vineyards. The manager DIA had appointed in 1968 had never turned a profit and had become accustomed to DIA pouring in more money every year instead of letting the operation go bankrupt. Every other vineyard in the Okanagan was making money except the one on the OIB reserve. In spite of the trade protection that existed at the time, Nk'Mip Vineyards was losing about one to two hundred thousand dollars a year. In his second year in office Chief Louie fired the manager. DIA fought the decision because they thought "we know best what's good for the Indians and if we let them decide they'll fail."

Within two years Nk'Mip Vineyards made money for the first time in its history. OIB had established that it could make money with the vineyards but it couldn't carry the debt accumulated by the loans that had been rolled over since the 1970s and never been paid back because the vineyards had never made any money to pay them back with. In -183- 1986 OIB therefore got DIA to write off a good portion of those loans (about two hundred thousand dollars).

18. OIB Takes Over Nk'Mip Campground Lease (1984)

19. Inkameep Construction Established (1986)

Inkameep Construction was founded to take over the construction and renovation of homes on reserve. Before that OIB didn't have a single journeyman-carpenter; now they have 6 to 8 and have stopped hiring non-Native home builders.

Inkameep Construction has built over 100 homes on OIB reserve lands. They now build homes for other First Nations and hire journeymen-carpenters from other First Nations.

20. Zosel Dam Land Claim Settlement (1992)

OIB received $391,000 through a Specific Claim Settlement for loss of land due to increased water levels at Osoyoos Lake. This time there was no per capita distribution. The funds are still in a trust account and the Band uses only the interest.

21. OIB Taxation By-Law (1994)

This by-law, adopted under section 83 of the Indian Act, transferred the right to tax leases on the reserve from the Province to the Band. It's now one of OIB's biggest sources of revenue (the other being leasing).

There were big divisions in the community at the time of this decision: roadblocks, fear- mongering and nasty politics, as is usual on reserve, only worse.

Indian politics have been generally nasty ever since reserves were created. Sitting Bull was killed as a result of divisions in the tribes caused by Indian Agents and missionaries. "Hang-around-the-fort-Indians" were another product of the DIA/missionary system, because you got bigger rations if you were assimilated or Christianized. When asked about his religion, Chief Louie likes to answer "I'm a born-again savage" because he's proud of not being an assimilated Indian.

22. First Purchase of Off-Reserve Property (1995)

OIB bought the Lazaroff property, a 225 acre parcel on the northwest border of the reserve, because it was a prime hunting and bedding area for deer and Band members wanted it protected from development.

23. Band-Earned Revenues Surpass Federal Transfers (1995)

24. Gas Line Easement (mid-1990s)

OIB received $3 million for this easement. None of it was subject to per capita distribution and all of it was invested in Band businesses: the creation of Nk'Mip Cellars and the expansion of the golf course from 9 to 18 holes.

25. Industrial Adjustment Service (mid-1990s)

-184- This service was intended to facilitate labour force adjustment to changing market conditions. It provided funding to analyse and develop business models, and the cost was shared three ways (federal and provincial governments and OIB).

The IAS Committee brought outsiders from the business community looking into OIB operations, to which only DIA had previously been privy. These were outside advisers from the business world, “not tainted by the Indian Agent syndrome.” Even the federal representative on the Committee was not from DIA.

A first IAS report on the vineyard was produced and then a second one on all Band operations. Three or four such reports in a row were done in total, and they informed the community visioning exercise that followed.

It was in this context that OIB met Chris Scott, who years later would become the Chief Operating Officer of its Development Corporation, a position he occupies to this day. Similarly, Dave Sutherland, the BC representative on the IAS Committee, spent 5 to 8 years working with OIB on economic development and governance issues, such as conflict of interest and other rules, policies and procedures, manuals and employee handbooks.

26. Vincor Leases (mid-1990s)

Vincor wanted to lease 1,000 acres to grow grapes. OIB got those leases through and they quickly became a huge source of jobs and lease revenue.

27. Haynes Land Claim Settlement (1997)

OIB received $11 million through a Specific Claim Settlement with both the federal and provincial governments for 4,215 acres wrongfully purchased by J. C. Haynes in 1879. Provincial participation in the settlement was a rare occurrence.

A “big civil war” ensued because most people in the community wanted a per capita distribution of the settlement. Most of it was accordingly given to OIB members in two $10,000 cheques. The share of members 18 years of age and under was put in a Youth Trust Account. The balance was used to purchase land off reserve that was put through the Additions to Reserve (ATR) process to enable more economic development.

28. Nk’Mip Gas and Convenience Store Established (1997)

29. OIB Development Corporation Established (1998)

OIBDC‟s Board of Directors is composed of Chief and Council, and business advisors.

30. Full-Time Economic Development Officer and Chief Financial Officer Hired (1998)

OIB used the $39,000 a year provided by INAC for an EDO and contributed the rest of the position‟s salary.

31. Oliver Ready-Mix Purchased (2000)

This was OIB‟s first off-reserve business purchase.

32. OIB Takes Over Cherry Grove Golf Course Lease (mid 1990s) -185- The owners of the golf course wanted to renew their soon-to-expire lease for another 30 years. OIB said no, bought out the last remaining years and has been running the golf course as its own business since. It was run as a 9-hole course until the 18-hole Canyon Desert Golf Course opened.

33. Canyon Dester Golf Course Opens (2001)

While the golf course is still not making money, OIB expects it to do so once a planned housing development is built up around it. Not all businesses make money quickly. The golf course‟s operating deficit is currently in the order of a couple of hundred thousand dollars a year, but it‟s manageable, according to Chief Louie.

34. Nk’Mip Cellars Opens (2001)

This was North America‟s first aboriginal-owned winery. Today more than one-fifth of BC‟s vineyards are on the OIB.

35. Nk’Mip Desert Cultural Centre Opens Temporary Buildings (2001)

36. South Okanagan Land Irrigation Canal Case (2004)

OIB wins this Supreme Court of Canada taxation case, which confirmed that the federal Crown retained the underlying interest in part of the reserve that had been expropriated to the Province to build the canal, and that OIB could therefore collect property taxes on it.

37. Sonora Dunes Golf Course and Spirit Ridge Vineyard Resort and Spa Opens (2004)

OIB used DIA and Aboriginal Business Development Canada economic development funds for the resort, the winery, the cultural centre and the golf course, as well as for an expansion of the campground to create a recreational vehicle park.

38. Nk’Mip Desert Cultural Centre Opens New Interpretive Centre (2006)

39. Housing Development Referendum (2009-2010)

This successful referendum will allow the construction of a multi-million dollar housing development around the golf course.

40. Senkulmen Industrial Park (2009-2010)

B) The main factors that contributed positively to Osoyoos’ reserve land management, in decreasing order of importance

1. Most of the Reserve is Band Land

Chief Louie noted that the Band is the biggest land owner on reserve and said that "we wouldn't have the economic development we have today if most of the land was owned individually."

The Band has limited control over this positive factor of its reserve land management.

2. Jobs and Money -186-

Band purchasing power contributes to Osoyoos' successful reserve land development. Its members have nice homes and most have nice cars and a good standard of living. First Nation members from other First Nations want to transfer in because "we're not poor, we have jobs." OIB employs people from 38 other First Nations in BC, the Yukon and the Prairies.

OIB's prosperity allows it to buy both off-reserve property and on-reserve property (i.e., CP land) as it becomes available to convert it to Band land. It also helps the Band address the housing shortage in the community by buying residences on and off reserve.

Money comes from the land and it pays for everything, including: - education, - health, - seniors' pensions, - seniors' health, - youth trips, - language programs, - cultural programs and - recreational programs.

In other words, economic development pays for social development.

While the Band has a relatively high degree of control over this positive factor of its reserve land management, Chief Louie sees control as a fight that has been ongoing ever since the Band Office opened in 1972. In his view, DIA still has too much control over reserve land management, especially the Species At Risk Act (SARA) and the ATR process.

3. Using Land-Based Revenues for Non-Financial Purposes

Cultural, heritage and environmental protection programs are all funded through own source revenues, virtually all of which are land-based, i.e., they are mostly lease and tax revenues, with some business profits.

The biggest piece of land OIB bought off reserve was to prevent its development by a white developer and thereby protect the only access to the northern half of its hunting grounds. In Chief Louie's words, "we didn't buy that land to make a dime, but it we didn't have a dime we couldn't have bought it. I'm not in love with money, I'm in love with opportunity and money creates opportunity."

The Band has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Osoyoos' reserve land management, in decreasing order of importance

1. DIA

DIA is not business friendly. Leases take much too long. DIA's processes force OIB to spend too much money on lawyers and environmental issues Most of OIB's investors are used to dealing with municipal regulations and they are experienced business people, but they can't believe DIA rules. -187- The Band has no control over this negative factor of its reserve land management.

2. SARA

The Band has no control over this negative factor of its reserve land management.

3. The ATR Process Is Too Slow to Add Land to Reserve

The Band has no control over this negative factor of its reserve land management.

4. The Specific Claims Process Is Too Slow to Resolve Land Claims

The Band has no control over this negative factor of its reserve land management.

D) Osoyoos' Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using reserve land for community control purposes

Chief Louie assesses Osoyoos‟ success as a 3.

2. Success in using reserve land for economic development purposes

Chief Louie assesses Osoyoos‟ success at 3.5.

3. Success in using reserve land with tools and procedures provided by the Indian Act

Chief Louie assesses Osoyoos‟ success at 3.5.

4. Success in using reserve land with tools and procedures not provided by the Indian Act

Chief Louie assesses Osoyoos‟ success at 1.5.

5. Osoyoos' priorities for the management of its reserve land over the next five years

i) Improve OIB‟s financial strength, make more money for the Band and create more jobs

ii) Build the housing development around the golf course

iii) Attract more tenants to the business park

iv) Grow all Band-owned companies

E) Osoyoos' Recommendations

-188- i) Make the economy your #1 issue. The economy pays for everything, so leadership has to focus on jobs and money, but on making their own money, not just hollering for more government money.

ii) Push the issue with the Government of Canada to overcome the obstacles to successful reserve land management

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Overcome the factors that contribute negatively to First Nations reserve land management, i.e.,

- make INAC more business friendly,

- amend SARA,

- accelerate the ATR process, and

- accelerate the Specific Claims process.

ii) Invest in economic development on reserve to reduce the need for social spending

Approved by Chief Clarence Louie October 22, 2010 -189- SIMPCW FIRST NATION

STATISTICAL INFORMATION

Location 130 km from Kamloops, in the province of British Columbia, the nearest service centre to which it has year-round road access, Zone 2, i.e., rural

Population 245 members (37.6%) on reserve, 406 members (62.4%) off reserve, total 651 18 non-member residents on reserve

Reserve land 1,500.7 hectares (3,708.31 acres), five reserves, waterfront

Reserve land management legislative and regulatory framework Regional Lands Administration Program

Reserve land management staff membership in a professional association No

Property taxes No

Community Well-Being Index* 83

Parcel Fabric Index** 81

Active registered transactions 93 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 105 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

5.1% 34.4% Certificates of Possession 8.3% (1,287.419 acres) 34.4% No Evidence of Title Issued (NETI) (192.742 acres) 5.1% 2.4% Notice of Entitlement (311.352 acres) 8.3% 3.3% Buckshee Short-Term Lease (91.428 acres) 2.4% 3.3% Licensed/Permitted Activity 0.2% (123.552) Band Buckshee Long-Term 0.03% Lease (123.552 acres) 3.3% Un-registered Band Use Lands (0.988 acres) 0.03% Registered Band Use Lands (8.648 acres) 0.2% Unused Band Lands (2,036.148 acres) 54.4%

54.4%

-191- SIMPCW FIRST NATION

INTERVIEW REPORT

July 26, 2010, 9:30 AM to 3:30 PM

Chief Keith Matthew Rita Matthew, Councillor Fred Fortier, Councillor Kerri-Jo Fortier, Community Planner Steven Patterson, Lands Manager Doug Brown, Administrator

A) Simpcw's Reserve Land Management Experience

The following 31 key events or periods were identified.

1. First Contact (early 1800s)

Contact with whites led to a smallpox epidemic that decimated the population. The epidemic in turn caused population movement as survivors regrouped in a smaller number of villages than had been previously inhabited. This was the first of three major epidemics that would continue to decimate the population: the second was influenza around 1900 and the third tuberculosis around 1930.

2. Laws Defining Indians (1850 onwards)

Under the colonial laws women marrying out lost their Indian Status. This affected who had the right to live on reserve land and their heirs.

Colonial laws also sought through various means of enfranchisement to either put pressure on Indians to "voluntarily" renounce their Indian Status or deprive them of it without their consent.

These laws threatened the reserve land base because of the reversionary interest of the Province in reserve land under the 1871 Terms of Union with Canada, if there were no more Indians left.

Women who came back to the reserve after living away were called "trying to act as white people" and treated as if they had no right to be there. As a result their knowledge, including knowledge of the use of the land, was lost to the community.

3. Residential Schools (starting around 1858)

Simpcw children initially attended the Kamloops Industrial School on a voluntary basis, but residential schools soon became mandatory and some children had to be taken away.

Over time residential schools led to loss of knowledge of the land. In the 1930s all the children, representing about 50% of the population, were gone ten months out of the year, so knowledge of use of the land was limited to the two summer months.

-192- The government also took away the celebrations that passed on knowledge of the land and its uses through the generations (the Elders, the middle people and the little people) and suppressed the language that described the territory.

All of this amounted to a "cultural Holocaust. Can you imagine a village with no children?"

4. Indian Act (and its pre-1876 predecessors)

These Acts replaced Simpcw customary law on everything: social issues, spiritual practices and traditional forms of land ownership and of passing on rights to use of the land, such as trap lines, berry picking, hunting and fishing.

Before these Acts the Simpcw had an allegiance with the Hudson's Bay Company through trapping. Places like the Little Fort trading post were hubs for the fur trade, which was the top of the Simpcw economy at the time.

5. CN Rail Line (1910s)

Construction of the railroad brought major changes to the Simpcw, both good and bad. On the one hand, trade opportunities increased as they were allowed free transport from the places were they picked berries in the north to railway stations all the way down the line where they could sell them. On the other hand, the DDT that was sprayed along the tracks killed the birds and contaminated the berries. Blasting through the mountains to build the railroad also destroyed a rock face where people came for healing and ceremonies. All the archaeological sites along the river were dug up and destroyed.

6. Gold Rush (1858)

Additional rights-of-way for the railway crossed the reserve.

The Gold Rush led to the creation of reserves because miners, who came primarily from the United States, wanted to get the Indians off the land.

7. Reserve Creation (around 1897)

The purpose of reserve creation was to remove the Indians from their traditional territory without their consent.

Before reserve creation the Simpcw had a long-standing tradition as very capable traders and hunters, and a prosperous economy. All of that depended on continued access to the traditional territory.

Moreover, resources were stripped off the reserves. For example, the Simpcw were never transferred coal rights on Indian Reserve #1. Similarly, Boulder Creek Reserve was "granted" to them with the exception that CN took a timber berth for railroad ties.

Coal mining changed the use of the land and settlers hired Simpcw people to clear the land they called "theirs" because they held it under land script.

Chief Andre made a detailed request for the limits of the Simpcw reserve but got less than what he asked for.

-193- Reserve creation and the pass system, whereby Indians couldn't leave the reserve without obtaining a pass from the Indian Agent, limited the sense of belonging among the Shuswap people, of which the Simpcw were a part. This sense of belonging was more fluid before.

8. Disappearance of Traditional Foods (1875-1900)

Elk, which was a major food source, started disappearing as a result of ranching, mining, over-hunting by white people and the different land management regime under the Province. Caribou also started disappearing for the same reasons.

Around this time the Province started going after Indians for "illegal" hunting. The pass system was also enforced by the Indian Agent as a means of preventing Simpcw men from providing for their families.

9. Memorial to Sir Wilfrid Laurier (1910)

According to the Secwepemc (Shuswap) Museum in Kamloops, "soon after the establishment of the first Indian reserves, following the establishment of the Crown Colony of British Columbia in 1858, representatives of the interior tribes pressed for legal and political solutions to the land issue and the question of Aboriginal title and rights. By the early 19th century a series of petitions had been made to the Provincial and Federal governments that included trips to Victoria, Ottawa and London."

The Memorial to Sir Wilfrid Laurier is one of several historic documents that outline the Aboriginal lands and rights issues as they affected First Nations in BC. It was drafted by the Chiefs of the Secwepemc, Nlaka‟pamux (Couteau or Thompson) and Okanagan nations, and presented to Laurier, then Prime Minister of Canada, during his pre-election campaign visit to Kamloops in August 1910. In it the Chiefs describe the first contact with fur traders, the arrival of gold miners, the gradual encroachment of the land by white settlers and the establishment of reserves. The following quote is representative of their complaints against the Province:

"They say they have authority over us. They have broken down our old ways and customs (no matter how good) by which we regulated ourselves. They laugh at our chiefs and brush them aside. Minor affairs amongst ourselves, which do not affect them in the least, and which we can easily settle better than they can, they drag into their courts. They enforce their own laws one way for the rich white man, one way for the poor white and yet another way for the Indian. They have knocked down the posts of all the Indian tribes. They say there are no lines, except what they make. They have taken possession of all the Indian country and claim it as their own."

The following quote is representative of the terms in which the Chiefs requested Laurier's help:

"We expect much of you as the head of this great Canadian Nation, and feel confident you will see that we receive fair and honourable treatment. Our confidence in you has increased since we noted of late the attitude of your government towards the Indian rights movement of this country and we hope with your help our wrongs may at last be righted.

We speak to you more freely because you are a member of the white race with whom we first became acquainted, and which we call in our tongue "real whites." [The Secwepemc Museum in Kamloops explains that this expression refers to the fur-traders -194- of the Northwest and Hudson‟s Bay companies. As the great majority of these companies' employees were French-speaking, the term latterly came to designate the whole "French race".] The "real whites" we found were good people. We could depend on their word, and we trusted and respected them. They did not interfere with us nor attempt to break up our tribal organizations, laws, and customs. They did not try to force their ideas of things to us to our harm. Nor did they stop us from catching fish, hunting and so on. They never tried to steal or appropriate our country and treated our chiefs as men. They were the first to find us in this country. We never asked them to come here, nevertheless we treated them kindly and hospitably and helped them all we could."

The Secwepemc Museum in Kamloops explains the outcome of the Memorial as follows:

"Laurier pledged to help the Indians, and then returned to Ottawa. However, he lost the federal election the following year and the interior tribes were faced with the need to reiterate their complaints to the new government.

The Federal Government‟s answer to the political petitions and legal initiatives of the Indian People of Canada was the enactment of Section 141 of the Indian Act in 1927. This section prohibited Indians from either raising money for advancing a land claim, or prosecuting claims to the lands, or retaining lawyers for theses purposes. While this section was abandoned with the revised Indian Act of 1951, it was never formally repealed."

10. Changes to the Indian Act (1927)

In addition to preventing Indians from hiring lawyers to press their land claims, the 1927 amendments also banned the potlatch and forbade other Indian spiritual activities. A church was built on the Simpcw reserve in 1912 and missionaries were pushing Catholicism on the Simpcw people, which influenced their culture. The Churches and the government were working hand in hand to assimilate the Indians.

11. Depression (1929-1939)

By this time Indian Affairs had been promoting gardening for 40 or 50 years and had changed the Simpcw lifestyle. Residential schools (at which attendance was compulsory up to grade 8 until the 1960s, when it went up to grade 12) taught boys to become ranchers and farmers, and girls to become homemakers. This program was aimed at both at the domestication of women and the promotion of living on reserve. Only subsistence agriculture was promoted, however, not the farm business, and the Simpcw could only survive the Depression because they continued to be hunters and gatherers.

The Simpcw were seen as poor but they didn't see themselves that way because they could still feed themselves. They didn't have a lot of money but they were self- sustaining. They had large families and were rebuilding their population.

12. Certificates of Possession (mid-1940s)

Notices of Entitlement, which were later replaced by CPs, began to be allocated as a result of INAC decisions, which Chief and Council ratified. Aided and abetted by the Indian Agent, Chiefs and Councillors divided the best beach-front land among themselves.

13. World War II (1939-1945) -195- Indians could not be conscripted because they were considered "wards of the state", but 17 Simpcw men enlisted voluntarily. Enlistment was attractive for a variety of reasons. "With a uniform on, you were considered and could get into the bars", at a time when it was illegal for Indians to consume alcohol. Enlistment also met needs for adventure, belonging and a regular pay cheque. Promises of access to loans and additional lands were also made as a inducement to enlist. As a result, the core of the community lost its providers.

When the Simpcw veterans returned, they found that they had to enfranchise, i.e., give up their Indian Status, to receive what had been promised to them.

14. Wage Economy (post-World War II)

The economic changes that followed the end of the war intensified the separation of the Simpcw from the land, because "you can't hunt and gather with a 9 to 5 job."

15. Cattle Farming (beginning in the 1950s)

The Band bought a herd of cattle and grazed it on the CP land of different families on a rotating basis. This led to a lot of fencing projects, but not all the families were equally successful and a lot of problems came up.

16. Access to Alcohol (1951)

The amendments to the Indian Act had a huge impact on the Simpcw by giving them access to alcohol. In the 1940s bootleggers brought in alcohol and that led to the beginning of alcoholism in the community. The 1951 amendments intensified this phenomenon.

17. White Paper (1969)

The revolt against the federal government's White Paper on Indian Policy, exemplified by the Red Paper response tabled by the Alberta Chiefs, marked the beginning of "the modern age" for Indians in Canada. This is what led to the recognition and implementation of the inherent right to self-government, and entrenchment into the Constitution of Aboriginal and treaty rights.

18. Ball Park Moves On Reserve (1969-early 1970s)

The Simpcw had a ball park off reserve. Rita Matthew's father donated part of his CP land to the community to move the ball park on reserve. According to Mrs. Matthew, her father did this "for the greater good, because he didn't see land as something to be hoarded, but thought that it should be shared."

19. First Band Office (1972)

The first students to graduate from Barriere High School, including Eddie Celesta, one of Simpcw's longest-serving Band Managers, started working in the Band Office when it opened.

20. Raspberry Farm (1970s to 1986)

This was Simpcw's first economic development project, which got about $15,000 from INAC to start. It did not go well. -196- 21. Occupation of the INAC Office in Kamloops (1974)

The 1974 occupation of the INAC Office in Kamloops (which led to its closing in 1975) was a major "decolonization" event. This led Tribal Councils to come into their own when INAC transferred program delivery to them and Tribal Councils in turn decentralized it to the Band level.

22. Chinook Cove Co-operative Hay Farm (early 1980s)

This co-operative's members were all CP holders. It was not managed right and did not go very well. The CP holders wanted the Band to put money in the co-operative but the Band said no because, while such an investment would have benefited the CP holders, it would not have benefited the community as a whole.

23. Pasco Court Case (1985)

The Band sued CN for dumping rocks in the river. CN was twin-tracking by moving to the inside of the track that followed the river.

24. Band Logging (around 1985)

The Band got into the logging business and hired both an Economic Development Officer and a Forester. It was involved in horse logging (i.e., pulling felled trees out of the forest with horses) both on and off reserve, and secured contracts off reserve from Tolko and Weyerhaeuser. This didn't go well and the Band got out of the business.

The Band also got involved in silviculture projects. They were not run as a business, there were productivity issues and market forces came into play.

25. Community Planning (1989)

A Band meeting was held in 1989 to launch the community planning process, which is still ongoing.

26. Church Burns Down (early 1990)

Elders cried and youth rejoiced, illustrating the different views about the impact of the Church on the community.

27. Sawmill (early 1990s)

A Simpcw Development Corporation was created to hold a forest licence from the Province and operate a sawmill, which was built on "industrial land" on reserve that had been neither designated nor leased. The sawmill lost a lot of money, in which economic factors played a role.

28. Grants In Lieu of Taxes (2006)

CN has been paying $2,000 a year in grants in lieu in taxes. BC Hydro's amount to $46,000 a year.

29. Promoting Rights and Title through Occupancy of the Traditional Territory (since 2007)

-197- To this end Simpcw has built a hunting lodge and a pit house off reserve.

30. Consultation and Accommodation Guidelines (2006)

Following the Supreme Court of Canada's decision in the Delgamuuk case, Simpcw adopted a set of guidelines outlining how it expects to be consulted and accommodated by proponents of development projects in its traditional territory.

31. Benefit Impact Agreements (2008)

Simpcw concluded BIAs with two companies promoting development projects in its traditional territory: a pipeline and an independent power producer. The First Nation set up a trust to manage the ongoing revenues flowing from these agreements. Simpcw representatives saw this move as "breaking out of the reserve box" because it is "not under the Indian Act and not a tightly controlled creation of the Government of Canada," as is the reserve. In that sense Simpcw sees the "supposed Crown lands" of its traditional territory as "diametrically opposed" to reserve land.

The First Nation has used the own source revenue generated by its BIAs to pay for programs not funded by INAC, including language, culture and history.

B) The main factors that contributed positively to Simpcw's reserve land management, in declining order of importance

1. Education

The return to the reserve of high school (e.g., Eddie Celesta) and university (e.g., Nathan Matthew) graduates marked a new generation in the early 1970s. Since that time, willingness to take up the challenge of higher education has increased with greater community support. Local control of local education from K to 12 also started in the 1970s.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Control of Administration

The creation of the first Band Office in the early 1970s gave impetus to kicking the Indian Agent out of Kamloops in 1975 because it got Simpcw and other interior First Nations moving towards self-government.

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Strength, Knowledge and the Work Ethic

Over the last three decades people in the community have stabilized their lives through gaining awareness of the problems caused by alcoholism and stopping drinking. By creating stability in their family lives in the 1970s, they began to go back to the old ways and to build back up the strength of the community. As a result, traditional knowledge of land use could once again be passed on to current generations.

From the early 1970s to the mid-1980s, the majority of Simpcw funerals were the result of alcohol and drug-related deaths. A policy shift occurred in 1985 when Council -198- stopped holding functions at which alcohol would be served and a philosophy of self- reliance began to take root in the community.

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Simpcw's reserve land management, in declining order of importance

1. Indian Affairs

Reserve creation was extremely detrimental to the Simpcw way of life, as is the fact that control over reserve lands rests with Ottawa. This led to a paradigm shift in the community's lifestyle because it was forced to move from living extensively on the land (i.e., the traditional territory) to living intensively on the land (i.e., the reserve). Simpcw representatives referred in this context to Hugh Brady's book "Maps and Dreams" for a fuller explanation of the change from a hunter/gatherer to an agrarian society.

They stated that "INAC was never designed to hand over the keys to the kingdom" and referred to the 1910 Memorial to Sir Wilfrid Laurier. In that document the Chiefs of the Shuswap, Okanagan and Couteau or Thompson tribes explained that "just 52 years ago the other whites [i.e., miners and settlers, as opposed to the fur traders or "real whites"] came to this country [and] soon [...] commenced to enter our "houses", or live on our "ranches". With us when a person enters our house he becomes our guest and we must treat him hospitably as long as he shows no hostile intentions." Referring to this part of the Memorial, the Elders say that the whites found the Simpcw living in their house and forced them to live in the closet or the bathroom.

Simpcw representatives stressed the inherent unfairness of the Indian Act, one aspect of which is the non-mortgageability of reserve land, which means "you can't turn land into capital". While ways around this have been developed, such as the First Nations Agricultural Lending Association, that institution‟s interest rates aren't pegged to real rates and currently stand at around 12% because it's a lender of last resort.

Setting up a lease on reserve takes two to three years, so money goes off reserve. The Department of Justice's "Cover Your Ass" obsession with liability is another obstacle to entrepreneurship.

Moreover, said Chief Matthew, "the government has abandoned First Nations Land Management, how can you argue otherwise?"

The First Nation has no control over this negative factor of its reserve land management.

2. The shift from Living Off the Land to a Wage Economy

The Simpcw no longer need to use the land for sustenance and to gather foods to barter.

Residential schools were also a major inhibitor of the traditional way of making a living. Simpcw representatives attributed much of the responsibility for their plight to Prime Minister John A. Macdonald and Duncan Campbell Scott, the Deputy Minister of Indian Affairs who famously declared in 1920 that "Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian Department." -199- Rita Matthew summed up the effect of this paradigm shift by recalling the advice she had received from her parents, who had struggled with alcoholism. Because they were lacking the necessary knowledge and experience, they didn't see a need to develop reserve land and recommended getting a job off reserve instead.

The First Nation has a medium degree of control over this negative factor of its reserve land management.

3. Location

Development opportunities aren't there because Simpcw's reserve is in a rural area. The First Nation is building a tool box to create opportunities, but it's hard because the economies of scale also aren't there. It nevertheless hopes that putting in place the opportunities for leasing and local control will lead to economic development. For example, Simpcw is getting out of social housing and moving toward a mix of market- based development. Part of that involves building equity, which is why it passed a Band Council Resolution calling for the adoption of a First Nations Property Ownership Act, as proposed by the First Nations Tax Commission.

The First Nation has no control over this negative factor of its reserve land management.

4. CPs

All the good land on the reserve is under Certificate of Possession. While there's some Band land that's good for housing and meeting the First Nation's immediate needs in this respect, there's not enough to meet future needs. Band lands are further reduced by erosion caused by the North Thompson River. A potential investor had to go to each CP holder to get a lease because there wasn't enough Band land.

While some CP land is being used for economic development purposes such as hay production, CPs prevent economic development-type activities requiring larger tracts of land. While CP land was imposed on the Simpcw after World War II and generated some revenue at the time, that is no longer the case for most CPs, which are used for residential purposes.

All the land that could be allocated has been and the Band Council is considering buying back CP land.

Simpcw representatives noted that the traditional economic driver on their reserve was agriculture, which meant that large tracts of land had to be allocated under CP to be viable. With agriculture no longer playing that role, there is now not a lot of Band land available for other forms of economic development.

5. Limited Financial and Human Resource Capacity

The First Nation has limited control over this negative factor of its reserve land management.

6. Lack of Capital Funding

INAC capital funding is generally insufficient and infrastructure, e.g., irrigation for agriculture, is required to develop reserve land, as is funding for ongoing operations and maintenance. Grants in lieu of taxes partially address that need because they fund infrastructure. -200- Moreover, INAC capital funding is at times misguided because it requires too high a standard for what could and should be more simple undertakings. For example, the development of the Simpcw water treatment plant was so over-engineered that the funding mainly went to external engineering companies instead of creating economic development opportunities for the First Nation.

The First Nation has a medium degree of control over this negative factor of its reserve land management.

7. Lack of an Economic Development Plan, including a Land Use Plan

Such a plan would allow the First Nation to be proactive, rather than just respond to referrals from companies wanting to set up businesses in its traditional territory.

The First Nation has limited control over this negative factor of its reserve land management.

D) Simpcw's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Simpcw assesses its success as a 1 on reserve and as a 2 in its traditional territory.

2. Success in using its reserve land for economic development purposes

Simpcw assesses its success at 0.5 on reserve and as a 3 in its traditional territory.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Simpcw assesses its success at 0.5.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Simpcw assesses its success at 0.5.

5. Simpcw's priorities for the management of its reserve land over the next five years

i) Complete the ongoing Status of Lands Report

ii) Put in place policies and procedures for reserve land management

iii) Negotiate compensation with the BC Ministry of Transportation for a road that goes through the reserve

iv) Put in place a land-based economic development plan

-201- v) Put in place a land use plan for the traditional territory, starting by mapping its current uses

E) Simpcw's Recommendations

i) Take inventory on the reserve. Build your own ownership database instead of relying on the ILR. Run a report in the ILR, download the Natural Resources Canada digital survey database and reconcile the two. Errors will pop up and you should approach INAC to clear things up.

ii) Put in place a community-driven planning process. Develop community awareness of community development needs.

iii) Determine the highest and best possible land uses

iv) Focus on education and, in that context, place a high value on your culture, language and history, i.e., don't forget who you are

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Give local control over local land management

ii) Get rid of the Indian Act by creating a First Nations Property Ownership option that would at least recognize the First Nation title that underlies the federal title over reserve land, thus getting rid of the reversionary provincial interest if there are no more Indians, so that First Nations can register it in a Torrens system

iii) Provide First Nations with the necessary resources to manage their own reserve land. For example, the Simpcw Land Manager position is unfunded and Simpcw needs to manage the lands fallout of its members dying intestate, which currently lingers on for 10 to 15 years. "The present system only funds the bare bones of everything."

iv) Give rural First Nations the support they need for leasing and infrastructure, including clean water. Don't just help the bigger and successful First Nations who can afford to wait until March 31 to be reimbursed by showing receipts to help INAC avoid lapsing funds in March Madness. This system is unfair because it leads to the rich getting richer and the poor getting poorer. "Help us move from dependency to independence."

Approved by Chief Keith Matthew October 25, 2010 -202- SKIDEGATE, HAIDA GWAII

STATISTICAL INFORMATION

Location 198 km from Prince Rupert, British Columbia, the nearest service centre to which it has no year-round road access, Zone 4, i.e., isolated

Population 714 members (48.5%) on reserve, 758 members (51.5%) off reserve, total: 1,472 112 non-member residents on reserve

Reserve land 841.8 hectares (2,080.13 acres), 11 reserves, waterfront and forested

Reserve land management legislative and regulatory framework Indian Act

Reserve land management staff membership in a professional association No

Property taxes Yes

Community Well-Being Index* 78

Parcel Fabric Index** 94

Active registered transactions 101 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 364 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

(UNAVAILABLE) -204- SKIDEGATE, HAIDA GWAII

INTERVIEW REPORT

July 15, 2010, 9 AM to 5 PM

Robert Mills, Chief Councillor Duane Alsop, Councillor James Cowpar, Councillor William Wilson, Councillor Godfrey Williams, Councillor Paula Larson, General Manager, Gwaalaga Naay Corporation Rose Russ, Former Councillor Barbara Stevens, Band Manager Trent Moraes, Housing Administrator

A) Skidegate’s Reserve Land Management Experience

The following 22 key events or periods were identified.

1. First Whites Come (1774-1878)

Perez encountered the Haida in 1774. Captain George Dixon, Captain of the HMCS Queen Charlotte, arrived in Haida Gwaii, the combination of land and sea that the Haida have inhabited and used for thousands of years, in 1787. He named it the Queen Charlotte Islands and thereby purported to lay claim to what he thought he had discovered. The Haida knew they had discovered the whites in their inlet.

Francis Poole, the first surveyor, came in 1878 asked the Haida: "Where are your stakes?" The Haida answered: "Our totem poles are our stakes and they're all over Haida Gwaii."

The Haida had a sophisticated system of property rights before the whites arrived. Different areas of the islands belonged to different Chiefs: for example, a patch of berries belonged to a certain family and a river belonged to another family. Seasonal use varied and landmarks enabled knowledge of and respect for these property rights. Every single part of Haida Gwaii had a name and still does, because "Haida Gwai is ours and always was."

2. Assimilation, Expropriation, Summer Camps, Disease and the Establishment of the Church (late 1800s)

The Haida were boxed into small reserves by the colonial authorities. Indian Reserve #1, the main reserve on which the whole Skidegate community was expected to live, was smaller than the ranch given to a single white man on the same island in Tlell.

As a result of contact with the whites, disease wiped out most of the villages of Haida Gwaii. The population of Skidegate, which has been estimated at about 15,000 pre- contact, dwindled to about 300. Other Haida villages were similarly decimated. The survivors regrouped in a smaller number of villages.

The resulting centralization of population was accelerated by the United Church, who wanted the Haida close by to carry out its mission of religious conversion and cultural assimilation. -205- 3. Potlatch Ban (1884)

Amendments to the Indian Act ban the potlatch, one of the central practices of Haida life. The origin of the ban was the antipathy of the missionaries, who saw the potlatch as one of the greatest obstacles to their Christianization efforts. It was accompanied by a prohibition on Indians gathering in groups of three or more.

The potlatch involved the distribution of vast quantities of food and gifts at monumental feasts. An offshoot of Haida material wealth and leisure, the potlatch served several purposes, including registering important events, reordering status relationships and redistributing material wealth, all of which are summarized by the phrase "to make my name good."

In the words of Rose Russ, the potlatch is "such a beautiful concept", the ethos of which is the antithesis of the materialism and competitive accumulation that underlie white society. The Chief was the richest man because of what he gave away," she said. "Imagine if the potlatch was extended internationally, we could solve world hunger in seven years."

Russ noted that it was easy for the missionaries to put the fear of God in the Haida because they were dropping off from disease at an alarming rate. She summarized the close link between the work of the missionaries and the dispossession of the Haida from their lands by quoting Skidegate Elder Ambrose Collinson: "The Church told us to close our eyes tight and pray, and while we were doing that they stole everything."

4. Residential School Starts (about 1914)

The Indian Agent writes to Haida families to inform them that their children will be taken away from them and sent to residential school outside Haida Gwaii. These decisions are enforced by the Royal Canadian Mounted Police in "scoops" of Haida children, which start attending Coqualeetza Residential School.

At the school, having been wrenched away from their parents, brothers and sisters are prohibited from associating with each other. All children are prohibited from speaking their language, wearing their traditional clothing or engaging in their sacred ceremonies.

The separation of families begins to weaken them, consistent with the government's stated intention to "take the Indian out of the Indian" and take over the land and its resources.

5. Prosperity and Loss of Status (1939-45)

World War II was good for the economy of Haida Gwaii. Air Force bases were established at Alfred Bay and Masset. Sitka spruce logs were transported on a specially built rail line to make Mosquito bombers. The fish camps were vibrant and Haida people were working in them, sometimes even running them. The Haida had jobs but didn't receive a cent for all the timber and fish that was being taken from their lands and their waters.

Moreover, government interference was once again reducing their numbers. Haida people had to renounce their Indian Status to join the army or get educated, and a few did, but the greatest damage was done by the Indian Act stipulation that an Indian woman who married a non-Indian would lose her Indian status: both she and her children would cease to be Indians and lose their right to annuities and band -206- membership. This had a direct impact on Skidegate's reserve land management because Non-Status Indians lost their right to live on the reserve, as well as their children, grand-children and later descendants.

Rose Russ remembered that as a Status Indian girl she had to be on a boat in order for her mother, who had lost her Indian Status, to be legally entitled to eat herring roe, one of the traditional foods she loved so much. This memory was particularly poignant in light of the Haida view that "our food is our medicine."

Loss of status for women marrying out was a gross interference in Indians' management of their internal affairs generally, and particularly galling for matrilineal societies like the Haida. In Chief Mill's opinion, this discriminatory provision reflected the British view at the time that women were not persons but chattel. It was because a woman had become the "property" of a white man by marrying out of the community that she lost her Indian status.

A Non-Status Haida community therefore developed at Skidegate Landing and gave its inhabitants a sense of belonging and safety. Discrimination was never far away, however, particularly for children growing up as not Indian enough in the eyes of the Indians and not white enough in the eyes of the whites.

According to Chief Mills, "it's all about forming new policies to get Indians off the land base," an effort he saw as "somewhat successful" in light of the fact that today 51% of Skidegate's membership lives off reserve. He added that "a lot of people would love to live here if there was more employment through control of our resources and education." While this was "not yet" the case, he noted. Alluding to the Haida Nation's title case before the courts, he expressed optimism that it soon would be, "once we get the dominant society to recognize that all of Haida Gwaii, including the waters, is ours."

6. Return of Residential School Survivors and Resource Boom (after 1945)

After the War residential school "scoops" continued. RCMP officers would drag Haida children away from their parents kicking and screaming, and ship them off to Edmonton.

Many residential school survivors came back with spiritual and emotional damage that is still evident today, as the scars were passed on from one generation to the next. Progress nevertheless began to emerge because they also brought back with them tools to work with the white man's system if possible, and against it if necessary.

This period saw the passage of the Haida from an oral to a written society. It also coincided with a resource boom: there was lots of fishing, lots of logging and lots of jobs, including for the women in the canneries. As Rose Russ put it, "everything calmed down for a while."

Despite this job-related prosperity, the Haida continued to receive no compensation for the value of the resources now being extracted from their lands and waters in unprecedented quantities. As Barbara Stevens noted, "nothing was ever given to us - no swimming pool, no hockey rink, nothing - they only took. They will never be able to compensate us for the value of everything they have taken."

Trent Moreas contrasted the magnitude of this resource grab with forestry company Macmillan Bloedel's standard response to every Haida request for a donation, whatever the project, event or occasion: "no more than $500."

-207- 7. Stolen Spirits Retrieved (1950s)

As detailed in the film The Stolen Spirits of Haida Gwaii, after the Haida were forced by disease to abandon some 35 of their ancient villages, their islands became a paradise for the relic hunters of the 20th century, greedy for the totem poles and masks that were - and are - desired by museums all over the world. Unbeknownst to the Haida, these adventurers also dug up graves and looted mortuary poles, taking away hundreds of skeletons.

In the 1950s the Haida hired a private detective to find one of the totem poles that had been taken from eight of their "abandoned" villages. His efforts were successful and the totem pole in question can now be seen in the Haida Heritage Centre at Kaay Llnagaay.

According to Chief Mills, this event was relevant to Skidegate's reserve land management story because the land where the totem poles and ancestral remain had been stolen "was reserve land and we had no control over it."

8. Indian Agent Is Gone (1960s)

Over time INAC withdrew its Indian Agents from Haida Gwaii and progressively closed the satellite offices it maintained throughout British Columbia, concentrating its operations in Vancouver.

The Indian Agent had exercised enormous power, "including the power to send us away," noted Willard Wilson, himself a residential school survivor. The Indian Agent had therefore had a huge impact on all aspects of Haida life, he said, including but not limited to land-related matters.

The Indian Agent's disappearance led to a sense of empowerment and enabled the Band Council to begin to take for the First Nation the kind of decisions that the Indian Agent used to make.

9. Creation of the Council of the Haida Nation (1974)

The Council of the Haida Nation was formed outside the INAC system to give the two Haida Bands of Skidegate and Masset a united voice on issues of common interest. Its first mandate was to pursue the Nation's land claims. The Haida's boundaries are the sea, so they are unaffected by the problem of overlapping claims that has bedevilled many BC First Nations on the mainland. Nevertheless, more than 30 years after they initiated their land claims process, it is still ongoing.

10. UNESCO Recognition (1981)

The United Nations Educational, Scientific and Cultural Organization recognize SGang Gwaay as a World Heritage Site. This site near the southern tip of Haida Gwaii features an outstanding example of a west coast First Nation village with standing poles.

11. Athlii Gwaii (Lyell Island) (1985)

After a hundred years of seeing the forest resources of Haida Gwaii exploited without its consent, and alarmed by the unsustainable practice of clear-cut logging, the Haida Nation decided to take a stand to bring this kind of activity to an end through peaceful and respectful protest on Lyell Island, which lay some 100 kilometres south of Skidegate. The Elders approved the plan to end logging and preserve the Nation's -208- ancestral home for Haida and non-Haida people for all time. They also asked to be first on the protest line. It was winter and the Nation used boat, planes, helicopters and "every which way to get our people down there," said Willard Wilson, who added that at times the place looked like a scene from Apocalypse Now.

Everybody pitched in and the whole community mobilized. "The ravens warned us when the police were coming," said Rose Russ, "and our ancestors were right smack beside us."

The protest quickly rang up a hefty deficit. Working in conjunction with the Islands Protection Society and other non-Haida friends, the Nation succeeded in drawing national and international attention to its struggle. "People and money started coming in when North America and the world found out and it wasn't long before we stopped having money problems," said Willard Wilson.

The forest company obtained a court injunction ordering the Haida to end their protest. The Haida stayed on the road, thus becoming the first First Nation ever to refuse to comply with a court injunction. According to Rose Russ, "nobody had challenged the system like this before and nobody knew what would happen." The Haida invited two of their members serving as RCMP Native Special Constables, including Robert Mills, who years later would become Skidegate's current Chief Councillor, to witness the peaceful nature of their protest and to minimize the risk of violence erupting as they continued to prevent the loggers from working.

The protesters, especially those among them who like Rose Russ had small children, were concerned that they might end up in jail for contempt of court. They all breathed a sight of relief when 65 mischief charges were laid instead. Russ said this was an implicit recognition by the forest companies and the provincial and federal governments that "they knew they couldn't win." Twelve charges of contempt of court were also laid.

The protest, which had lasted about five or six months, "turned out to be good in all ways," in the opinion of Willard Wilson. One of those ways was that the protesters started communicating among themselves in Haida on short-wave radio so the RCMP didn't know what they were planning to do.

Another way was that First Nations across the country supported them. The Cree had said they would come to help the Haida and there would be "a Cree behind every tree."

Other beneficial outcomes of the protest include the creation of

- Gwai Hannas (which means "Place of Wonder") National Park and Haida Heritage Site, which is jointly managed by the Haida Nation and Parks Canada, the administrative offices of which are on the Skidegate reserve. This co-management regime is ecologically based and has led to sustainable and selective logging, which the Haida eventually agreed to because "this is our land;"

- Gwai Trust, which was set up by the federal government after it began compensating the logging company and the Haida asked to be compensated as well. Gwai Trust received an initial endowment of $38.3 million and, combined with Gwai Forest, is today worth $90 million; and

- Gwaii Forest, which was set up with initial contributions of $12 million each by the federal and provincial governments, and grew to $106 million in the following 8 to 10 years. Gwaii Forest grew out of the South Moresby Forest Replacement Account, the -209- purpose of which was to compensate the island economy for the cessation of logging on South Moresby. Both have provided training and funded projects to employ displaced loggers, both Haida and non-Haida.

12. Bill C-31 (1985)

The same year as the Lyell Island protest, the federal government passed Bill C-31, which reinstated Indian Status for Indian women having married out of their communities and their children. This had a huge impact on Skidegate First Nation, whose population almost tripled, going from 310 at the time to over 900 today.

Skidegate welcomed all their people back to the reserve and began building new houses for them. This created pressure to increase the reserve land base.

According to Skidegate representatives, "INAC made tons of money available to First Nations across Canada on a first come, first served basis and proposals started flying."

At about the same time, the natural resources that sustained logging and fishing started disappearing, and Skidegate moved from a period of high employment to high unemployment.

13. Economic Development on Reserve (1990s)

The Longhouse Gift Shop and Jag's Beanstalk Nursery and Coffee Shop were the first economic development ventures on reserve land to be authorized by Council.

14. Increased Band Control over INAC Funds (1996)

INAC changed its funding formula, which gave the Skidegate Band Council more financial control, including over big capital projects.

Taking advantage of the increased discretionary spending and capital funding that block funding made possible, Skidegate put in place a state-of-the-art water treatment plant and sewer system.

15. Reserve Expansion (1997)

The reserve's surface roughly doubled as a result of an addition to reserve that had been started shortly after Bill C-31 created the need for an expanded land base. It had taken 12 years to get it done.

16. Construction Starts on the Haida Heritage Centre (2004)

A ground-breaking ceremony was held in June 2004, during which the future centre's totem poles went up. The building was finished in 2006 and officially opened in 2008. This project started a cultural boom all over Haida Gwaii.

17. Gwaii Forestry Goes Dormant (around 2006)

Gwaii Forestry had lost too much money too fast because of the recession. Its Board therefore decided to put it on hold and transferred Gwaii Forestry funds to Gwaii Trust to protect them.

18. High-Speed Internet (2007) -210- Gwai Trust and Service Canada together created Gwaii Tel, which connected the rest of the world to Haida Gwaii.

High-speed internet connections have improved communications with INAC by enabling the transmission of large files that dial-up connections couldn't handle. This has in turn enabled corrections to the Indian Lands Registry. Google Earth, with a Canada Lands overlay, has become a key tool for land planning.

19. Canoe Project (2007)

In 1986 artist Bill Reid had built the first Haida ocean-going canoe in 50 years and a Haida crew had paddled it all the way down the coast to Vancouver for Expo 86. This was a great cause of pride in the Nation because, as Trent Moraes put it, "it reaffirmed we were masters of the sea.

In 2007 and for the first time in more than twenty years, Skidegate built three more ocean-going canoes, which was once again a great source of pride in the community.

This time there was a land-related twist, however: to cut down trees to build canoes on their own land, Skidegate had to establish "cultural use of wood" and apply to the BC government for a "free use permit.‟‟

There was also a federal aspect to this bureaucratic incongruity: Skidegate had to register the canoes with Transport Canada so tourists could go in them.

20. Land Use Plan (2008)

In January 2008 a Land Use Plan was signed between the Haida Nation and the BC government for all of Haida Gwaii, including Skideate's 11 reserves and Old Masset's 22. According to Chief Councillor Miller, this is a significant event because it will facilitate integrated land use planning and management. For example, it will make it easier to control the impact of logging around the reserves on waterways and watershed protection.

21. Tree Farm Licence 39 (2010)

Skidegate First Nation is becoming actively involved in the forest industry, buying out forest companies and acquiring forest tenure. Through Tree Farm Licence 39 it has recently increased its timber quota to 120,000 cubic metres. While, according to Chief Councillor Miller, this is "about a barge worth and peanuts compared to what the forest companies get, there is a lot of fear-mongering among non-Haida who fear that we're going to treat them as badly as they treated us."

Skidegate representatives saw this as an illustration of the fact that "today we decide, in our Councils but not in isolation," albeit "as per the guidelines of Indian Affairs."

22. Creation of Gwai Hannas Marine Protected Area (2010)

Skidegate representatives saw this as significant because "our land includes the sea."

B) The main factors that contributed positively to Skidegate's reserve land management, in declining order of importance

1. Determination -211- Skidegate representatives see themselves as "not good at being victims." They know the past but don't dwell on it. They are strategic and politically savvy.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Learning from our Experiences

Skidegate has drawn lessons and grown as a result of all its experiences, good and bad.

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Doing our Homework

As Chief Councillor Miller put it, "chance favours the prepared mind" and "we hope for the best but prepare for the worst". Skidegate has been prepared to seize opportunities as they present themselves. For example, Council always has a project on the shelf to use INAC year end funds, which free up every year.

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Creativity

"Given the constraints we faced," said Chief Councillor Miller, "we found creative ways to get our needs met," for example in working with INAC funding, and policies and guidelines. Skidegate representatives saw the Lyell Island protest as another illustration of their creativity, saying "we were pioneers in protecting First Nation resources, both in dealing with the bureaucracy and in getting our message out to the world."

The First Nation has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Skidegate's reserve land management, in declining order of importance

1. First Contact

Disease, which wiped out most of the Haida population, was the first result of contact with whites.

The second was loss of control. As Chief Councillor Miller put it, before contact "there was a system in place to manage the land in a sustainable manner," but "Captain Dixon naming the Queen Charlotte Islands began to take away control of our land management."

The First Nation had no control over this negative factor of its reserve land management.

2. Reserve Creation

"Reserves were created to keep us out of the rest of Haida Gwaii," said Chief Councillor Miller.

-212- The First Nation had no control over this negative factor of its reserve land management.

3. Insufficient Land Base

Chief Miller said: "Our difficulty is we don't have much land to use right now.” Skidegate is once again at the end of its residential lot capacity, just as the results of the McIvor case are about to create another wave of reinstatees. While this time INAC is not planning to provide additional funding to First Nations, Skidegate has made clear that INAC vastly underestimated the number of C-31 reinstatees and that it will expect compensation once the number of McIvor reinstatees is known.

Trent Moraes illustrated the lack of available land by noting that, while initially residential lots on the reserve were 200 by 150 feet, now they're down to 60 by 90.

While the First Nation currently has limited control over this negative factor of its reserve land management, it considers it a work in progress.

4. Forced Centralization

Band members from other villages than Skidegate can't go home, because INAC only provides funding for them to stay in Skidegate. Houses can't be built in Copper Bay or Skedans because there is no water, no sewer and no INAC housing grants.

The First Nation can't develop its 10 other reserves, because it doesn't have the money to do so.

The First Nation has no control over this negative factor of its reserve land management.

D) Skidegate's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Skidegate assesses its success as a 5.

2. Success in using its reserve land for economic development purposes

Skidegate assesses its success as a 4.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Skidegate assesses its success as a 3.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Not applicable, as Skidegate does not use such tools and procedures.

5. Skidegate's priorities for the management of its reserve land over the next five years

-213- i) Building a hotel to support its Heritage Centre. "Everybody involved made money off it except us. We're operating at a deficit and need to get it off our backs," said Chief Councillor Miller.

ii) Reserve expansion. "As long as we're in the box, we need a bigger box," according to Chief Councillor Miller.

E) Skidegate's Recommendations

1. To be acted upon by other First Nations over the next five years to maximize the contribution of reserve land to meeting their community control and economic development goals

i) "Come spend time with us. We'll show you our water and sewer systems, and share our secrets with you. Bands don't share information even though we're all in the same boat, being thrown scraps," said Chief Councillor Miller.

ii) Identify needs and set priorities. For example, put in a water treatment plant before you build a hotel.

iii) Planning. Take time to figure out where you want to go and how you're going to get there.

iv) Be prepared, because timing is everything. That's how Skidegate got its water and sewer (W & S) systems. Today Chief Councillor Miller asks W & S consultants what more they can do to upgrade those systems and the answer is: "Nothing, you've done it all.” BC Ferries is currently funding a feasibility study to see whether they can connect with Skidegate's W & S system to meet the needs of their ships.

v) Develop Aboriginal tourism. "Don't take your every day life for granted," said Chief Councillor Miller, "people will pay money to experience it."

vi) Don't take no for an answer. "You need to be politically savvy," according to Chief Councillor Miller. "When you hear no, ask who's your boss, and who‟s his boss?"

vii) Governance. For example, said Chief Councillor Miller, "we care for all people within these reserve boundaries, including non-members, even though INAC doesn‟t give us money for that." The Chief Councillor added that the First Nation had recently started billing the BC government for health services it provides to non-members.

viii) Collaboration, including sharing information, within First Nations, among First Nations and outside First Nations

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Pay the rent. The Haida Nation never surrendered any of its land and the rent is now overdue.

-214- ii) Streamline INAC processes, for example for the funding of economic development projects iii) Provide funds to make our other reserves habitable. They're not "abandoned", as INAC classifies them. The survivors of disease congregated to re-establish community. Now that we have that, we want to repopulate our other villages and we need infrastructure to do it. iv) Increase training funds v) Promote INAC employee loyalty so they'll stay in their jobs longer vi) Reduce INAC staff and increase funding to First Nations. Noting that Skidegate gets $5.9 million a year out of INAC's $9 billion budget, Chief Councillor Miller said: "Caring for Indian people is an industry in Canada and INAC soaks up so much of it that First Nations only get a trickle at the bottom of the pipeline."

Approved by Chief Councillor Robert Mills November 3, 2010 -215- SONGHEES NATION

STATISTICAL INFORMATION

Location 6.4 km from Victoria, in British Columbia, the nearest service centre to which it has year- round road access, Zone 1, i.e., urban

Population 343 members (67%) on reserve, 168 members (33%) off reserve, total 511 1,200 non-member residents on reserve

Reserve land 138.1 hectares (341.25 acres), four reserves, waterfront

Reserve land management legislative and regulatory framework First Nations Land Management (Development)

Reserve land management staff membership in a professional association No

Property taxes Yes

Community Well-Being Index* 80

Parcel Fabric Index** 22

Active registered transactions 560 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 248 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

65.00%

Certificates of Possession 65% Permitted Activity 2%

Individual Buckshee Long-Term Leases 15% Designated Land leases 3% Registered Band Use Lands 25% Unused Band Lands 5% 5.00%

2.00%

25.00% 15.00% 3.00% -217- SONGHEES NATION

INTERVIEW REPORT

August 20, 2010, 9:30 AM to 2:00 PM

Jackie Albany, Director of Operations Kathy Deo, Cedar Law

A) Songhees' Reserve Land Management Experience

The following 15 key events or periods were identified.

1. Douglas Treaties (1850)

Representatives of Songhees family groupings signed four of the 14 "Conveyances of Land to Hudson's Bay Company by Indian Tribes" that later became known as the Douglas Treaties (Chilcowitch, Chekonein, Swengwhung and Teechamista).

The Treaties implicitly acknowledged the rights of the Songhees people to the land they were selling. They explicitly provided that their "Village Sites and enclosed Fields are to be kept for our own use" and that, while "the land itself, with these small exceptions, becomes the Entire property of the White people for ever, (...) we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly."

The lands conveyed by the Treaty extended from Ten Mile Point to Albert Head and had previously been family owned.

2. Forced Relocation (1911)

Families were uprooted as the Songhees were forcibly relocated from the James Bay- Inner Harbour area to what became New Songhees Indian Reserve #1A. The size of the new reserve was determined by the population at the time and based on only about two acres per family head (i.e., less than other British Columbia reserves) "because they had access to fishing."

There were several reasons for the relocation: - to build the provincial Legislature on the former Songhees lands, - because the Songhees people, their longhouses and canoes were "unsightly" in the eyes of the white colonists, and - because they were occupying prime land on the waterway and thereby standing in the way of white economic expansion.

CPs were issued after the forced relocation as part of the government's plan for the assimilation of Indians, under which reserves weren't meant to last.

3. Nomadism (1911-1950s)

The Songhees were very nomadic and remained so after relocation. In the summer they would go hop and berry picking in the Yakima area of Washington state. This nomadic lifestyle ensured their basic survival, which was not possible on the reserve because there was no way to make a living there. There was also a lot of logging and fishing work off reserve.

-218- 4. First Leases (early 1950s to late 1960s)

Wong Hong Giao first leased CP lots totaling about a third of the main reserve for vegetable gardens that became known as the "Chinese fields."

Then came two leases of Band land to allow Cigas to establish a propane gas distribution facility and CKDA radio to build a transmission tower on Chatham Island, and another lease on CP land for a corner store and gas station.

5. First Mobile Home Park (late 1950s)

The Wildwood Mobile Home Park (MHP) was the first of a series of MHPs to be established on the main reserve, the most recent of which was the Songhees Retirement Park around 1995. Today there are 17 MHPs, all of which are on CP land except for a recreational vehicle park on Band land.

This type of development occurred, in Songhees and other First Nations, because mobile home manufacturers approached Bands and CP holders and offered to lease reserve land to build and operate the parks. The manufacturers were motivated by the absence of regulations on reserve concerning things like road width, zoning, including density and setbacks, and infrastructure standards for things like water and sewer sytems, roads and lighting.

Songhees' total population in the 1960s was only about 200 people, so it seemed to members that there was "lots of room" on reserve and these offers were generally accepted. Not everybody agreed the parks were a good idea, but the general attitude was "what can you do, it's CP," meaning the Band has no control.

6. Start of Administration on Reserve (mid-1960s)

The Indian Agents stopped coming down from Duncan and the first Band Office was set up in the old church that former Chief John Albany had renovated. Prior to those renovations, meetings were held in the homes of the Chief or Councillor of the time. The "band secretary" was a volunteer position as there were no funds for First Nations to run their affairs, since the Indian Agent took care of those details.

7. Leasing Intensifies (late 1960s)

Chief John Albany, who was continuously in that position from 1955 to 1991, encouraged leasing because he wanted to keep people off welfare. Before going into politics he had been a foreman for hop and berry picking. As a result of that experience he knew the importance of keeping the people busy and well, and he didn't want them to be a burden on society.

8. Pacific Village Multi-Family Development 1 and 2 (mid-1980s)

This development, based on 99-year leases of CP land, included condos in one section and rentals in another.

9. Property Taxation (1995)

Chief Albany was very angry when he found out that the province was collecting property taxes on reserve and mailing tax notices, not to the CP holders, who wouldn't have paid them, but directly to the tenants, who did. The province wasn't providing any -219- services on reserve, "so it was just a money grab." The province was collecting a rural tax as it did in rural areas where there was no municipality. The tax bills were itemized and included charges for things like the mayor's office and library access, none of which the province provided.

When Norman George succeeded John Albany as Chief in 1991, Robert Sam was a Councillor (and was to become Chief in 1993). Chief Sam, who is currently on the Board of the First Nations Finance Authority, had long been interested in economic development and it was at his initiative that began the learning process that led the Nation to exercise its taxing jurisdiction under section 83 of the Indian Act in 1995.

The first Songhees tax cycle was in 1996 and the province and the surrounding municipalities "were in an uproar." The province still taxes any non-Native businesses and residents on reserve unless they have a certificate under the BC Indian Self- Government Enabling Act. Even on the reserves of the approximately 80 taxing First Nations in BC, the province still taxes any interest in reserve land not held by the Band or a Band member, such as phone lines and cable drops.

10. Entry into the BC Treaty Process (1995)

Songhees entered this process to get more lands for housing and economic development. The Nation is now at Stage 4 of this 6-stage process as part of the Temexw Treaty Group, but "stages 4, 5 and 6 take the longest and there's no end in sight."

11. First Nations Land Management (2003)

Songhees signed an Adhesion Agreement to the Framework Agreement on FNLM because it wanted to get out of the Indian Act. The delays and red tape associated with that Act's land management provisions had led to buckshee leases (i.e., not using the tools and procedures provided by the Indian Act) and the Nation wanted to take control of its lands, which was seen as a big component of economic development.

The move toward FNLM also reflected the Nation's dissatisfaction with the way in which INAC was managing its land. Songhees representatives explained that "INAC kept missing rent reviews and this led to huge losses because leases were automatically renewed at the old rate, not at fair market value."

A vote on the Nation's Land Code was held in 2006 but did not pass because "people didn't understand." The Land Code is being revised to ensure compliance with the FNLM Act. The Nation hopes to hold another vote as soon as possible, possibly in combination with the planned vote on its Constitution, although that's still in discussion.

12. Cooper Estate Case (2003)

Irene Cooper was initially a non-member First Nation person and the Common Law spouse of George Cooper, a Band member. She had CPs for eight lots on reserve that were leased to third parties. The rents were collected by INAC and paid to her. She made a will in which she left her interest in the lots to three heirs, none of which were Songhees members and none of which could therefore live on the reserve. After Cooper's death, her interest in the lots was therefore subject to Section 50 of the Indian Act, which provides that in such circumstances the right of possession in reserve land has to be offered for sale to individuals who live on the reserve and, in the absence of a sale to such individuals, the right reverts to the First Nation. -220- Pending the Section 50 sales, Canada paid the rent to Cooper's heirs. Songhees took action against Canada because it considered that it was the repository of the rights to the lease payments between the date of death and the date of either the sale or the reversion. The trial judge agreed, as did the BC Court of Appeal in dismissing the appeal by Canada.

Moreover, Songhees representatives said that "INAC sold the land to members and made millionaires out of non-members," i.e., Cooper's heirs, who received the product of the sale. The Band considered that the CP land should have reverted to it instead of being offered for sale to members.

In addition, Songhees representatives continued, "INAC gave the CPs to the non- member former Common Law spouse, who applied for Band membership to get the land and was accepted by the Band because she was a respected Elder. CPs are part of the assimilative enterprise. We have so many of our people who need land and to get off welfare."

13. James Bay Settlement Agreement (2006)

A ten-acre piece of land was surveyed out to be a reserve under one of the 1850 Douglas Treaties, but taken by the provincial government to build the Legislature. Songhees had launched an action with the Esquimalt Nation to be compensated for this taking. Both Nations shared a $35 million dollar out-of-court settlement.

Another Section 50 land sale then came up on Lot 9. The non-Native grand-children of the deceased lived in her house rent-free. Songhees representatives explained that "INAC forced a Section 50 sale on us again. We thought it should revert to the Band, but INAC had to pay $1 million to make non-Native millionaires."

Part of the settlement money was also used to buy back CP land from a member.

14. New Tax Law and Financial Administration Law (2008-2009)

In 2004 Songhees sumitted a Band Council Resolution to be added to the Schedule of Participating First Nations to the First Nations Financial and Statistical Management Act (FSMA), which was adopted in 2005. The Schedule of Participating First Nations entered into force on January 1, 2008.

On April 2, 2008, Songhees Council signed Canada's first FSMA Local Land Revenue Laws: the Songhees First Nation Property Taxation Law and the Songhees First Nation Property Assessment Law, both of which were approved by FNTC on May 15, 2008.

The FSMA and these two laws have provided greater taxpayer certainty, stronger enforcement provisions and participation in the BC Home Owner Grant program.

On December 15, 2009, the First Nations Financial Management Board (FNFMB) approved the Songhees First Nation Financial Administration Law, the first Financial Administration Law passed under the FSMA. This was the result of an huge effort on the part of a Financial Administration Law (FAL) Team composed of the Songhees Chief and Council, Legal Counsel, Director of Operations, Senior Finance Officer, Finance Officer, Property Tax Administrator and Human Resource/Policy Consultant. The FAL Team held five months of weekly meetings, working with the FNFMB Sample Law and adapting it to Songhees' needs across a broad range of issues.

-221- The Nation's objectives for all these laws are i) getting jurisdiction and control over its own destiny by generating its own revenue and moving toward self-government, and ii) generating economic development by demonstrating to investors and developers that Songhees is a good place to invest, by showing that its financial standards and tax laws on reserve are comparable to those off reserve (which is more true of the new tax law than it was of the old one).

15. Songhees First Nation Taxpayer Representation Law (2010)

This law provides a mean by which Songhees taxpayers may represent their interests to the Chief and Council on issues that affect them, to be known as the Songhees Taxpayer Advisory Committee. The law was developed with a Committee of Taxpayers and approved by the FNTC on June 15, 2010, becoming the first such law to be enacted under the FSMA.

B) The main factors that contributed positively to Songhees' reserve land management, which the Nation sees as equally important

1. Importance of Culture

Songhees representatives said that "culture helps determine what type of development will go forward on reserve. The ultimate goal is not just the dollar. We want a healthy community, spiritually, emotionally and physically."

"We knew how to take care of the lands before," they added. They referred to the global warming caused by industrialisation, which they contrasted with the "soft environmental footprint on the land" of their traditional ways. "We had it right the first time," they concluded.

The Nation has a high degree of control over this positive factor of its reserve land management.

2. Continuity of Leadership

John Albany was Chief for 36 years. Robert Sam, the current Chief, has been either Chief or Councillor since the mid-1960s. There has also been a lot of continuity among other Chiefs and Councillors.

There are five main family groups on the reserve and somebody from each one usually gets nominated and elected. Prior to contact leaders were called Family Heads. Songhees is still running its affairs as it was before the Indian Act model of governance was imposed on it.

There is also a lot of continuity among the Nation's staff.

The Nation has a high degree of control over this positive factor of its reserve land management.

3. Leadership Vision

-222- Chief Sam has a background in finance and economic development. Political stability allows leaders to take a long-term view and that is what Songhees leaders have done.

Stability also enables the leadership to make tough decisions even if they're unpopular with the community. For example, some community members wanted to have a say in who gets hired by the Nation or whether they should get raises, but the leaders said "that's why you elected a Chief and Council."

The Nation has a high degree of control over this positive factor of its reserve land management.

4. Chief and Council Control and Community Control

Songhees representatives said that "we're listening to the members on how they want to be self-sufficient." They also quoted with approval the concept that "governments exist to improve the quality of life of their citizens." Against this background, they explained, "when INAC negotiates our leases the money goes to our trust fund. In order to access the funds held in the Ottawa trust, the Chief and Council must submit a Band Council Resolution and wait for approval from HQ before it is released."

Chief Sam insists with staff that Songhees laws and regulations must meet or beat federal laws and regulations, and be good enough to stand up in court.

The Nation has a high degree of control over this positive factor of its reserve land management.

5. Location

Songhees representatives described the location of their main reserve as "highly commercial, adjacent to downtown and on a major commuter route," adding that "if we were up north, we wouldn't have 2,600 people wanting to live here."

They explained that the mobile home parks were initially populated by retired and semi- retired people, and that "we provide a service to greater Victoria in the form of low income housing" for these people. Songhees representatives made this point when they asked Capital Regional District representatives what they would do if suddenly 1,500 to 2,000 people currently living in 82 apartment dwellings on reserve, where most of them pay month-to-month buckshee rent, suddenly all needed another place to live.

The Nation has no control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Songhees' reserve land management, which the Nation sees as equally important

1. Size

The Songhees reserve is one of the smallest in Canada, which is why the Nation entered the BC Treaty Process.

The First Nation has no control over this negative factor of its reserve land management

2. Present Use of Reserve Land is Not the Highest and Best

-223- Chief and Council are preparing to hire an individual to do a study on the highest and best use of reserve lands. Songhees representatives said that lack of INAC funding prevented them from doing zoning and planning 40 years ago, which would have prevented their reserve land from being put to sub-optimal uses.

"INAC first creates dependence," said Jackie Albany, the daughter of former Chief John Albany, "then it creates poverty. We didn't even have a Band office in the 1960s, Council met in Dad's house. In the mid-60s our administration budget was $300 a year and INAC wrote asking for an audit.

The First Nation has a limited degree of control over this negative factor of its reserve land management, because it can only try to influence the CP holders.

3. INAC

Referring to the limited documentation on INAC reserve land transactions, Songhees representatives said that "INAC files were and remain a complete mess," so much so that for them the INAC acronym has come to mean "I Need Another Copy", a refrain they regularly hear from INAC staff. Based on their experience, they are convinced that INAC would be incapable of complying with the Songhees Financial Administration Law.

Songhees representatives saw this as "part of the plan to prevent progress from being made. Whenever you make progress with anyone in INAC, it takes six months and they're gone, because the government wants to keep control, i.e., keep Indians in a subservient position." They gave as an example of this pattern the fact that "we had a great Funding Services Officer, we built a relationship and then we had to train another one."

"It usually takes six to nine months to fill a position," they continued, "and then they show up and they don't know what they're doing," a situation they contrasted with the continuity of Songhees Chiefs, Councillors and staff.

"It's really the whole 'taking care of us thing', the fiduciary duty, and they haven't done that," according to Songhees representatives. They said they were told by an INAC employee, who they assumed was unconcerned by the risk of losing his job for being so candid, that "we don't do rent reviews anymore, because we don't have the people or the money, so we just wait until we get sued."

They then gave another example of what they consider to be INAC's lack of compliance with the most basic requirements of its fiduciary duty to manage reserve land: "A CP holder called INAC to say our rent review is coming up in six months. It was a registered lease [i.e., not buckshee], so the CP holder couldn't renew it. The 90 day notice period went by and INAC did nothing, so the lessee said "great, I don't have to pay the rent increase for the next five years" and INAC had to pay the CP holder the difference between the old rent and fair market value over five years. This happened twice again, for a total of three times, to the same locatee. The lessee was just laughing." Songhees representatives expressed concern that "this could be a huge problem for property tax, because if BC Assessment doesn‟t take into account the INAC top-up, this could affect assessed values, and therefore tax revenues."

Songhees Director of Operations Jackie Albany said: "I've dealt with other federal departments and they're generally on the ball, so this must be part of the plan."

-224- Songhees representatives continued to provide examples of INAC mismanagement of their reserve lands: "INAC withheld payment of the rent on a registered lease to a locatee even though the lessee was paying the rent to INAC for a Mac's convenience store. INAC said the gas tanks were leaking. Clean up work on the tanks was ongoing and the rent had been paid, so the locatee couldn't figure out why INAC was withholding payment."

"FNLM funding is not paid on time" was another problem. When Songhees representatives asked INAC why, they were told 'because we changed the release date, " but without giving First Nations notice of the change. Then another payment date was missed because INAC sent Songhees another form to fill out, but neglected to say that it had to be returned by 4 PM on the same day it was received.

Songhees' conclusion from all these examples was "it's so crippling to wait on INAC to do something. Even when you're dealing with good people, they're powerless. You're just better off taking care of it yourself."

The Nation has no control over this negative factor of its reserve land management.

4. Limited Capacity

Songhees representatives said this negative factor limits the Nation in general and in the Lands Department specifically. In their view, INAC's Reserve Land and Environment Management Program (RLEMP) training is "hugely expensive and pretty much useless." They noted that "it's hard for people to stop their work and go to Saskatchewan, so it would be better to put it on line."

The First Nation has a medium degree of control over this negative factor of its reserve land management.

5. Limited Support from the First Nations Lands Advisory Board (LAB)

In the view of Songhees representatives, the LAB and its Resource Centre (RC) "spend way too much time and energy on the political work, so not enough is left for the practical work" of supporting First Nations in the FNLM regime.

"The First Nations Tax Commission (FNTC) is the gold standard of how it should be done," in their view. "FNTC provides great service, they have sample laws for everything, they bring in people for focus groups and they have a better understanding of what First Nations need on the ground."

In contrast, Songhees representatives noted that the first group of FNLM Land Codes were almost identical, to the point of having "wrong commas in the same places," which didn't seem to reflect the particular needs of each First Nation. Moreover, those Land Codes didn't comply with the FNLM Framework Agreement and Act. For example, there are incompatibilities between these Land Codes with the estates provisions of the Indian Act, which still apply to FNLM First Nations.

Songhees representatives brought these inconsistencies and problems to the attention of the LAB, who refused to point them out to FNLM First Nations "unless they asked," because " it was not our place to tell First Nations what they could and couldn‟t include in their Land Codes," regardless of whether the First Nations were complying with the Framework Agreement, the FNLMA or the Indian Act. In the view of Songhees -225- representatives, "this 1970s political correctness is setting up those First Nations for multi-million dollar lawsuits."

The First Nation has very little control over this negative factor of its reserve land management.

D) Songhees' Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Songhees assesses its success as a 1.

2. Success in using its reserve land for economic development purposes

Songhees assesses its success at 3.5.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Songhees assesses its success at 1.5.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Songhees assesses its success at 3.5.

5. Songhees' priorities for the management of its reserve land over the next five years

i) Improving infrastructure (i.e., water, sewer, roads, sidewalks and lighting), including but not limited to the mobile home parks

ii) Identifying a transition from the parks to other uses with higher rates of return

iii) Increasing the land base

iv) Increasing tax revenues beyond property tax, i.e., development cost charges, local improvement charges and service charges

v) Building a Recreation and Wellness Centre

vi) Providing more economic development opportunities, both individual and collective

E) Songhees' Recommendations

i) Property taxation -226-

ii) Manage the Band as a business, including

- accountability and transparency

- separation of politics and administration

- conflict of interest rules

- management of housing as an asset, not as part of social assistance

iii) Put in place a Financial Administration Law

iv) Enact a Land Code and get a very highly qualified Land Manager who understands - legislation - zoning - appraisals - surveys and - the community and its members.

v) Take every step you can towards becoming self-governing, grab whatever is within reach to take control of your lands

vi) Bring in highly qualified consultants as needed

vii) Become savvy and strategic about funding opportunities, e.g., elevate yourself beyond where you are even if you're not going to complete the process, such as signing up to draft a Financial Administration Law under the FSMA

viii) Get a Comprehensive Community Plan in place, involve the community in designing it and revisit it every six to twelve months

ix) Put in place a Human Resources (HR) Plan that identifies the positions you will need and the training people will need to fill them, and includes succession planning for retiring employees. Include mentoring in your HR Plan and use economic development revenues generated on reserve to transition out of the wage differential on and off reserve to hire and retain the people you need from among your members.

x) Involve youth in community decision-making and increase post-secondary education, because low graduation rates make it more difficult to get youth involved and we need more doctors, lawyers and surveyors

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Start dealing with our Douglas Treaty aboriginal rights and title, and honour the terms of the Treaty, e.g., on hunting and fishing rights

ii) Increase capital development funding, e.g., Professional and Institutional Development funding

-227- iii) The FNLM regime needs a lot of work: make it more accessible and less expensive, and provide more assistance in the form of training for both First Nation land managers and INAC staff, as well as advice and templates, similar to what FNTC does iv) Clean up the survey mess on reserve and pay to fix INAC mistakes, don't make First Nations pay for them v) More accessibility and helpfulness on the part of INAC employees: don't just answer our questions, tell us if these are the questions we should be asking vi) More continuity among "the good people" in INAC

Approved by Chief Robert Sam November 3, 2010 -228- SQUAMISH NATION

STATISTICAL INFORMATION

Location 14 km from Vancouver in the province of British Columbia, the nearest service centre to which it has year-round access, Zone 1, i.e. urban

Population 2,400 members (65%) on reserve, 1,307 members (35%) off reserve, total 3,707 number of non-member residents on reserve unknown

Reserve land 2,120 hectares (5,238.6 acres), 24 reserves, mountainous

Reserve land management legislative and regulatory framework Reserve Land and Environment Management Program (Operational) First Nations Land Management (Developmental)

Reserve land management staff membership in a professional association No

Property taxes Yes

Community Well-Being Index* 84

Parcel Fabric Index** 30

Active registered Certificates of Possession (CPs) 264 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

Custom Allotments (200 acres) 3.82%

Certificates of Possession (150 acres) 2.86% 1.91% 7.64% 0.57% 0.19% Buckshee Short-Term Usage (200 acres) 3.82% 0.95% 4.77% Licensed/Permitted Activity 3.82% (50 acres) 0.95%

2.86% Individual Buckshee Long- Term Lease (30 acres) 0.57% 3.82% Band Buckshee Long-Term Leases (250 acres) 4.77%

Designated Land Leases (400 acres) 7.64%

Unregistered Band Use Lands (100 acres) 1.91%

Registered Band Use Lands (10 acres) 0.19% 73.47% Unused Band Lands (3,848.6 acres) 73.47%

-230- SQUAMISH NATION

INTERVIEW REPORT

July 22, 2010, 9:00 AM to 12:30 PM

Chief Gibby Jacob Chief Bill Wiliams Toby Baker, Senior Operating Officer, Project Negotiation and Development Jason Calla, Fiscal Realities Economists

A) Squamish's Reserve Land Management Experience

The following 34 key events or periods were identified.

1. Before Amalgamation

Squamish people live in villages throughout their traditional territory.

2. Reserve Creation (1870s)

Reserves are allotted to Squamish Indians but they do not recognize the collective nature of land ownership in Squamish culture.

3. Pacific Great Eastern Acquires Squamish Reserves (1913)

The Railway acquires several Squamish Reserves in the Squamish Valley. The areas were deemed to be of value to the Railway and plans for “Newport” (as it was then called).

4. Removal from Sénákw (1913)

Squamish people were gathered on a barge, money was paid to them and they were told: "Now we've bought your land. Go away and find yourselves another place to live." The Province acquired lands but due process was not followed.

5. Amalgamation (1923)

The loss of land at Kitsilano and in the Squamish Valley created concerns among the Squamish people. Eight years of discussions resulted in an amalgamation: “the only solution for the good government of the tribe is the amalgamation to the several.”

Land was therefore the reason why the 16 Squamish villages decided to amalgamate. All villages put their land in common to counter the "me-ism" that was being fostered by the Indian Act. All future land transactions would go through the Nation.

Hereditary chiefdoms were replaced by elected Chiefs and Council. This was a decision taken by the Squamish people, not imposed by Indian Affairs as it was elsewhere.

The new Nation also offered its members living off reserve the right to vote in 1980, long before the Supreme Court of Canada‟s decision in the Corbiere case would extend this right to the off-reserve members of all First Nations in 1999.

6. Indian Agent Land Transactions (1950s) -231- Leases of Squamish land were negotiated by the Indian Agent without the Nation's involvement. Typically these leases provided for declining rent values as the lease term got closer. Several Indian Affairs senior officials negotiated cheap waterfront leases and built cabins for themselves a residential development on the Ch‟kw‟elhp reserve on the Sunshine Coast.

7. Lion's Gate Driving Range and Park Royal Shopping Centre Established (late 1950s)

These were the first two land-based economic development projects on Squamish reserve land. The Park Royal Shopping Centre was also the first shopping mall in Canada.

8. Council Kicks Out the Indian Agent (1960’s)

The Squamish Council was sick and tired of the Indian Agent chairing their meetings and told him to leave. Once he was gone Council started taking over Indian Affairs programs in social affairs and education, and the management of its lands. It also started investigating what had happened to its reserve lands and to reacquire parcels that had been improperly cut-off.

9. Application for Blair Range (1968)

Council applies to Canada for acquisition of Blair Range lands, which are to be purchased by developing portions of other North Shore reserves. Council hopes, through this plan, to address “insufficient and low standard housing.”

10. No More Surrenders for Leasing (1972)

This decision was taken by the membership, who told Chief and Councils to “develop all the land that's already available to the highest and best use and then come back to us.” Leasing revenues plateaued as a result.

11. Omnibus Trust Filed (1977)

Membership had given a priority at that time to re-claim IR No. 6 and other lands that had been improperly taken.

12. Conspiracy of Legislation (1986)

Chief Joe Mathias and Gary Yabsley author a paper called Conspiracy of Legislation documenting the suppression of Indian Rights in Canada through federal, provincial and colonial law.

13. Treaty Process Established (1991)

The modern day treaty-making process is established. Chief Joe Mathias, Prime Minister Brian Mulroney and Premier Mike Harcourt sign documents at the Nation‟s recreational center at Capitano that has just opened.

14. Assertion of Aboriginal Title (1993)

-232- Membership approves the “Squamish Nation Assertion of Aboriginal Title”, an important step to set out the area of the Nation‟s traditional territory and the basis of treaty negotiations.

15. Squamish Nation Asserts Jurisdiction in Property Tax (1993)

Using authority established by 1998 amendment to Indian Act, Squamish Nation begins to collect real property taxes from lessees at Capilano, Seymour and Mission.

16. Delgamuukw (1996)

An inescapable economic component to aboriginal title is identified in this court decision.

17. Family Dinner Meetings Conclude (1996)

Twenty-one meetings with family groups were held to indentify priorities and the vision of the membership for the future of the Squamish First Nation.

18. First Nations Land Management Act Receives Royal Assent (1999)

Squamish Nation is a proponent. This legislative initiative enables a First Nation to replace portions of the Indian Act with its own land code.

19. Umbrella Agreement (2000)

Between BC Rail, BCR Properties, British Columbia and the Squamish Nation. The Agreement protected the Squamish estuary, provided the Nation with opportunities to acquire land and confirmed provincial support for additions to reserve.

20. Xay Temixw (2001)

A land use plan for the Nation‟s traditional territory is developed. It indentifies four types of land use zones, including: forest stewardship zones, sensitive areas, restoration areas and wild spirit places.

21. Kitsilano a Squamish Reserve (2002)

A railway right-of-way at Sénákw is determined to be a Squamish Reserve. About 12 acres are returned to Squamish Nation.

22. Shared Legacies Agreement (2003)

The Squamish/Lil‟wat Protocol enables this agreement to be completed. Key elements of the agreement include lands for economic development, skills and training legacy, naming and recognition, Squamish Lil‟wat Cultural Centre, economic opportunities and Aboriginal Youth Sports Legacy.

23. Sea to Sky Highway: Aboriginal Interest and Use Study (2003)

The Nation conducted a study to articulate its interests along the corridor of the proposed upgrade to the Sea-to-Sky Highway. This work led to an accommodation agreement including land, cash and employment opportunities.

24. Capilano Master Plan (2004) -233- Building on the work of the family dinner meetings, this planning process focused on the Capilano Reserve. The process considered Squamish member community needs, potential long term economic development and environment preservation. It considered how vacant areas might be developed and if these areas should be devoted to community use or to revenue generation.

25. Garibaldi at Squamish (2004)

Squamish Nation takes proponents and provincial government to court over proposed ski resort at Nch‟kay.

26. Squamish Nation Acquires TFL 38 (2005)

The Nation purchased this Tree Farm License (TFL) and gained more influence throughout a large portion of its traditional territory. The Nation is now the largest forest licensee in the Squamish Forest District.

27. First Nations Fiscal and Statistical Management Act (2005)

The Nation is a proponent of the FSMA, legislation that enables First Nations to pass laws related to taxation and financial administration. The act also contemplates access to long-term public infrastructure finance through capital markets. The First Nations Financial Management Board is established by the Act and locates its head office at Capilano.

28. First Nations Commercial and Industrial Development Act (2005)

The Nation is a proponent of FNCIDA, legislation that enables First Nations to use modern, sophisticated regulatory regimes for specific economic development projects on reserve.

29. Membership Priorities Survey (2006)

The Trust commissions a survey of Squamish membership to determine whether priorities have changed since 2000. Housing is a priority identified by most members.

30. Ch’kw’elhp and St’a7mes Designation (2008)

Designation of Ch‟kw‟elhp will enable a market housing project to be developed. Parcels at St‟a7mes are designated for an entertainment center and gas station.

31. Urban Design Project (2009)

An urban design project is undertaken to build on the work of the Capilano Master Plan. The design is to incorporate all elements of sustainability, including environment, economic and social.

32. Amendments to FNCIDA (2009)

On December 10, 2009, proposed amendments to FNCIDA were introduced into the House of Commons at the request of the Squamish Nation.

33. Sénákw Designation (2010)

-234- Membership designated about 8.6 acres at Kitsilano IR No. 6 for leasing.

34. Amendments to FNCIDA re-introduced (2010)

Prime Minister Harper prorogues Parliament after Christmas; the proposed FNCIDA amendments are re-introduced as Bill C-24 on May 12, 2010.

B) The main factors that contributed positively to Squamish's reserve land management, in declining order of importance

1. Consistency of Leadership

To this day the Squamish leadership continues to pursue the vision set out in its 1968 letter to INAC applying for acquisition of the Blair Range lands.

The Nation has a high degree of control over this positive factor of its reserve land management.

2. Kicking Out the Indian Agent

Land was one of the main reasons why Squamish leadership kicked out the Indian Agent in 1960. The Indian Agent used to wield tremendous power, convening and chairing Band Council meetings, preparing agendas and Band Council Resolutions and getting them passed without Council's informed consent. A prime example was leases of reserve land with declining rent values as the expiration date approached.

After the Indian Agent was gone, the Squamish leadership hired lawyers who started to look for ways to break those leases. The Nation bought back all the leases on Seymour Indian Reserve #2 and let the leases at Ch‟kw‟elp expire.

The Nation had a high degree of control over this positive factor of its reserve land management.

3. People who Came Home Educated

People who had been studying and working off the reserve, like Joe Mathias (law), Bill Williams (business) and Harold Calla (accounting), came back and put their skills in the service of the Nation. These people had been on Council before and had both a corporate memory of where the Nation was coming from and a clear understanding of where it wanted to go. They allowed the Nation to create a new history, slowly but patiently.

The Nation had a high degree of control over this positive factor of its reserve land management.

4. Ability to Hire a Lawyer

Following the1951 amendments to the Indian Act, on September 17, 1963 the Nation hired a lawyer for the first time. Up until then the Indian Agent had been covering the federal government's ass and only telling the Nation what it couldn't do. The Nation and its members didn't know the Common Law that applied to all Canadians and needed to learn about it.

-235- Legal research led the Nation to file its omnibus court case in 1977, which covered 22 land parcels or issues. Some of the parcels were extracted from the action following successful negotiations.

The Nation had a medium degree of control over this positive factor of its reserve land management.

5. Relations with Local Governments

Today local governments see the Nation as financially autonomous and therefore as potential partners. The Squamish are prepared to pay what they should rightfully pay, just like everybody else. They and their municipal neighbours need to use the same infrastructure and provide the same services, so they all need to know what each other's doing to be able to work together (but see below under Section C the fourth main factor that contributed negatively).

The Nation has a high degree of control over this positive factor of its reserve land management.

6. Location

The Nation's reserves on the North Shore of Vancouver are strategically located, but without the first four factors the Squamish would still be poor.

The Nation has no control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Squamish's reserve land management, in declining order of importance

1. Indian Act

The Nation has no control over this negative factor of its reserve land management.

2. Constitution of Canada

The Constitution gives authority to the federal and provincial governments, but does not envision First Nation governments. First Nations are winning in the Courts but the federal and provincial governments are working together to inhibit First Nation governance outside the reserve base.

The Nation has no control over this negative factor of its reserve land management.

3. Funding

Squamish and INAC need to agree on a clear set of objectives, which should then be funded appropriately. Squamish representatives were in INAC's BC Regional Office a couple of years ago and saw boxes of flat screen TVs all over the place. When asked why so many TVs had been bought, INAC officials replied: "Because it's the end of the fiscal year and if we don't spend the money we'll lose it." The Squamish representatives, who were constantly arguing with INAC for more funding and being told "sorry, there's no money", were shocked. Squamish doesn't want to spend INAC money just because it's "March Madness". Funding should follow agreement on objectives, not on the basis of INAC saying "we decide how much you get and you have to do it our way," as is the -236- case now. Throne Speeches have for years included a line or two about First Nations, if at all, which demonstrates that "there's no priority for our people."

The Nation has no control over this negative factor of its reserve land management.

4. Local Governments

While today relations with local governments contribute positively to Squamish‟s reserve land management, this was not always the case. They used to prevent our access to services, which was a huge inhibitor in our history. We turned it around out of necessity, but nobody came to table willingly, they had to be constrained by the Courts.

The Nation had a medium degree of control over this negative factor of its reserve land management.

D) Squamish's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Squamish assesses its success as a 4.

2. Success in using its reserve land for economic development purposes

Squamish assesses its success at 3.5.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Squamish assesses its success as a 1.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Squamish assesses its success as a 1.

5. Squamish's priorities for the management of its reserve land over the next five years:

i) Develop tools outside the Indian Act using the First Nations Land Management Act (FNLMA), the First Nations Fiscal and Statistical Management Act (FSMA), and the First Nations Commercial and Industrial Development Act (FNCIDA)

ii) Kick up success in using our reserve land with tools and procedures not provided by the Indian Act to a 3

iii) Kick up success in using our reserve land for economic development purposes to 4.5

iv) Conclude service agreements with neighbouring municipalities

-237- v) Work with the Province to develop regulations under FNCIDA incorporating by reference the Land Title Act and the Strata Title Act

vi) Build our own environmental assessment process under our Land Code

vii) Create a Treasury Department to manage our land-based wealth instead of depending on INAC programs and services

E) Squamish's Recommendations

i) Practice Aboriginal procurement to create economies of scale through cooperatives in construction, transportation, etc.

ii) Put together a long-term community plan that will survive the election of the next Chief and Council and deal with things like providing homes and creating economic wealth. Start working at taking control and seizing opportunities, both under and outside the Indian Act.

iii) Do a SWOT (Strengths, Weaknesses, Opportunities and Threats) analysis to understand what you have before you start

iv) If you hire consultants, have them shadowed by your members so that they get trained to develop your internal capacity

v) Join forces with other First Nations to create a list of preferred consultants so you are getting the work done and on time and on budget and with a quality project at the end of the day.

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management:

i) Develop regional First Nation economies, i.e., help First Nations practice Aboriginal procurement to create economies of scale through cooperatives in construction, transportation, etc.

ii) Change the term of Chief and Council from two to four years

iii) Discuss with First Nation leadership why all the previous reports have not been implemented. We need to understand because, for example, implementing the recommendations of the recent report on the cost of First Nations health would generate savings that could be reinvested in education, culture, etc.

iv) The federal government thinks in silos. First Nations see everything in a circle. You can't modernize reserve land management in isolation, it has to be part of the bigger picture.

v) Enable business decisions to be made in the time that business needs them to be made. For example, the Squamish proposal to lease reserve -238- land to put up billboards took 26 months to go through INAC's regional and national decision-making processes. During that time three different companies were waiting to create the opportunities we knew existed. Land appraisals are another example: why should it be up to someone in Ottawa to say if conditions are right or wrong? vi) Fund the First Nations Land Management initiative and in particular fund: (a) environmental work required to understand the environmental condition of land; (b) negotiations and finalization of individual transfer agreements; (c) operational funding and implementation training (i.e., land law development such as land use, zoning, building and development permit processes). vii) Everything in INAC is statutory and the Indian Act just says "you can't do this, you can't do that". Create opportunities for progressive First Nations to opt in. Change decision making to bring it back to the people who need those decisions made, such as the First Nation's Economic Development Council or Chief and Council. viii) Take small steps to avoid stagnation ten years down the road. It's taken Squamish 87 years to where we're now and we're just starting to bring about change. ix) The fallacy of the Indian Act is that it treats all First Nations the same. There needs to be an opportunity to develop a new historical document, not a treaty, but principles providing freedom, a new Opt-In Indian Act. x) We don‟t want the federal government involved in all aspects of the Squamish Nation government but there are some areas where the federal government does have a responsibility. An example is education. Another is health care. xi) We need a bilateral Self-Government Agreement xii) The comprehensive Community Planning process should be better funded. The Squamish Nation is in a fortunate position to be able to fund its own activities but other communities are not so fortunate.

Approved by Chief Gibby Jacob October 27, 2010 -239- TK’EMLÙPS INDIAN BAND

STATISTICAL INFORMATION

Location Across the river from the City of Kamloops in the province of British Columbia, the nearest service centre to which it has year-round access, Zone 1, i.e., urban.

Population 628 members (57%) on reserve, 476 members (43%) off reserve, total 1,104 Number of non-member residents on reserve unknown

Reserve land 21,448.3 hectares (52, 999.9 acres), six reserves, waterfront, forested and mountainous

Reserve land management legislative and regulatory framework Reserve Land and Environment Management Program (Delegated Authority)

Reserve land management staff membership in a professional association First Nations Alliance 4 Land Management

Property taxes Yes

Community Well-Being Index* 80

Parcel Fabric Index** 86

Active registered transactions 3,203 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 1,448 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

2.20%

13.54%

Certificates of Possession 13.543% Designated Land Leases 2.2% Unused Band Lands 84.257%

84.26%

-241- TK’EMLÙPS INDIAN BAND

INTERVIEW REPORT

July 27, 2010, 10:30 AM to 1:30 PM

Chief Shane Gottfriedson Rosanne Casimir, Councillor Connie Leonard, Councillor Jeanette Jules, Councillor Fred Seymour, Councillor

A) Tk'emlúps' Reserve Land Management Experience

The following 30 key events or periods were identified.

1. Colonial Division (1811)

At one time the Secwepemc people occupied one large traditional territory covering approximately 145,000 square kilometres. In 1811 the colonial government divided the Secwepemc into 17 distinct groups with specific parcels of land designated to each.

2. Fraser Canyon War (1858)

The United States attacked British Columbia, much as it had Canada in 1812. There were very few whites in BC at the time and the Indians won the war.

3. Reserve Creation (1862)

The Kamloops Reserve land base was established under the direction of Governor James Douglas.

4. Trutch Cut-Off (1864)

5. Memorial to Sir Wilfrid Laurier (1910)

The Memorial is one of several historic documents that outline the Aboriginal lands and rights issues as they affected First Nations in BC. It was drafted by the Chiefs of the Secwepemc, Nlaka‟pamux (Couteau or Thompson) and Okanagan nations, and presented to Laurier, then Prime Minister of Canada, during his pre-election campaign visit to Kamloops in August 1910. In it the Chiefs describe the first contact with fur traders, the arrival of gold miners, the gradual encroachment of the land by white settlers and the establishment of reserves.

The following quote is representative of their complaints against the Province: "They say they have authority over us. They have broken down our old ways and customs (no matter how good) by which we regulated ourselves. They laugh at our chiefs and brush them aside. Minor affairs amongst ourselves, which do not affect them in the least, and which we can easily settle better than they can, they drag into their courts. They enforce their own laws one way for the rich white man, one way for the poor white and yet another way for the Indian. They have knocked down the posts of all the Indian tribes. They say there are no lines, except what they make. They have taken possession of all the Indian country and claim it as their own.”

-242- The following quote is representative of the terms in which the Chiefs requested Laurier's help:

We speak to you more freely because you are a member of the white race with whom we first became acquainted, and which we call in our tongue „‟real whites.‟‟ [The Secwepemc Museum in Kamloops explains that this expression refers to the fur-traders of the Northwest and Hudson‟s Bay companies. As the great majority of these companies' employees were French-speaking, the term latterly came to designate the whole "French race.”] The "real whites" we found were good people. We could depend on their word, and we trusted and respected them. They did not interfere with us nor attempt to break up our tribal organizations, laws, and customs. They did not try to force their ideas of things to us to our harm. Nor did they stop us from catching fish, hunting and so on. They never tried to steal or appropriate our country and treated our chiefs as men. They were the first to find us in this country. We never asked them to come here, nevertheless we treated them kindly and hospitably and helped them all we could."

The Memorial continued with an offer to share the land with the newcomers:

"These people wish to be partners with us in our country. We must, therefore, be the same as brothers to them and live as one family. We will share equally in everything - half and half - in land, water and timber, and so on. What is ours will be theirs and what is theirs will be ours. We will help each other to be great and good."

Tk'emlúps Indian Band (TIB) representatives summarized that vision as "good hosts, good guests" and it continues to inspire them to this day.

They recalled what it was like before the second wave of whites came: "We had our land management. We looked after Mother Earth and she provided food for us." They described the Memorial as a request for the recognition of their sovereignty.

They noted that some Elders still gather medicines and food on the land, but that they're harder to find nowadays because of non-First Nation use of the land and economic development. For example, the Sun Peaks residential development "was one of our major places but now there's nothing there for us," said Chief Gottfriedson.

The Secwepemc Museum in Kamloops explains the outcome of the Memorial as follows:

-243- 6. First Lease (1927)

The first lease on Tk'emlúps reserve land was for a radio station.

7. Agricultural Leases (1931)

Approximately 37.03 acres of land were surrendered for agricultural purposes. These lands now form part of the Mount Paul Industrial Park.

8. Sewage Treatment Plant Surrender (1935)

A portion of the Sewage Treatment Plant Lands comprising approximately one acre was surrendered for an agricultural lease.

9. Surrenders for Leasing (1948 to 1988)

In 1948, approximately 1.85 acres near the CN Junction.

In 1956, approximately 20.367 acres around Chief Louis Way.

In 1988, approximately 10.433 acres in the Halston area.

10. Tk’emlups Indian Band (TIB) Hires First Employees (1961)

These were a secretary and an accountant.

11. First Industrial Park on Reserve in Canada (1965)

In 1965, approximately 420 acres of land were surrendered for leasing purposes for the first planned development of the Mount Paul Industrial Subdivision, Phase 1. A series of parcels surrendered in 1954, 1955, 1956 and 1980 now form part of this industrial park, the latter for its Phase 2 expansion.

12. First Attempts to Collect Taxes (1960s)

Chief Clarence Jules met with the Province to attempt to collect the property taxes that were being collected on the lessees at the Mount Paul Industrial Subdivision, but to no avail.

13. Forced Amalgamation Reversed (1973)

The NDP government of BC had passed a law forcing the amalgamation of several Indian Reserves with neighbouring municipalities. TIB challenged the forced amalgamation of its reserve with the City of Kamloops and got it reversed by the courts.

14. Delegation of Authority under Section 69 of the Indian Act (1973)

To collect lease revenues.

15. 70-year Head-lease between the Kamloops Indian Band Development Corporation (KIBDC) and Mount Paul Industrial Park (MPIP), Phase II (1980)

The lease was mortgaged.

-244- 16. Paving of Roads and Construction of Water System in MPIP (1980)

17. Attempts to Collect Taxes Starts Again (1980)

In the 1960‟s Chief Clarence Jules met with the province to attempt to collect the property taxes that were being collected on the lessees at the Mount Paul Industrial Subdivision, 1965.

18. Leonard Case (1985)

KIB takes the Province to court over taxes collected on surrendered lands. The BC Court of Appeal ruled, and the Supreme Court of Canada agreed in refusing leave to appeal that Parliament has deliberately distinguished for the purpose of creating exemptions from tax, between reserve and surrendered lands. Under paragraph (a) of Indian Act Section 87(1), both reserve and surrendered land are held for the benefit of Indians and are exempt from taxation. Under paragraph (b), however, only personal property “situated on a reserve” is exempt. Personal property purchased by an Indian from a non-Indian business on conditionally surrendered land is therefore subject to sales tax.

19. TIB Commences Changes to the Indian Act (1985)

TIB received 115 Band Council resolutions in support of the changes it was promoting.

20. Delegation of Authority under Section 60(1) of the Indian Act (1986)

To exercise control and management over reserve lands.

21. Kamloops Amendment (1988)

Bill C-115, which enabled reserve land to be designated for leasing without losing its reserve status, was the first Indian-led change to the Indian Act and was initiated by TIB.

22. TIB Initiates Injunction on Scheidam Flats & Court Proceedings on Specific Claim (1989)

23. Delegation of Authority under section 53 of the Indian Act (1991)

To manage surrendered and designated lands.

24. TIB Initiates Own Taxes on Tobacco, Gas and Liquor Sales on Reserve to Cover Land Claim Costs (1994)

25. Addition to Reserve (1995)

Schiedam Flats, approximately 320 acres.

26. Delegation of Authority under Section 53 of the Indian Act Amended (1996)

27. Designation for Leasing (1996)

In 1996, approximately 915 acres of land were designated for leasing purposes. These lands included further parts of the Mount Paul Industrial Park, Phases I and II, the Sun Rivers Development and the first phase of the Seven Mile Subdivision Lands. -245- 28. Harper Ranch Purchase (1999)

TIB purchased Harper Ranch, now known as Spiyu7ullucw Ranch Corporation, which added 44,000 acres of fee simple land and Crown leases for resource development and other economic opportunities.

29. Designations for Leasing (2005)

Chief Louis Center Lands, 12,396 hectares (30.63 acres). Chief Louis Way Lands, 0.74 hectares (1.829 acres). Mount Paul Industrial Park Lands, 4.96 hectares (12.256 acres). Seven Mile Subdivision Lands, 69.0 hectares (170.497 acres). Sewage Treatment Plant Lands, 14.105 hectares (34.854 acres). Total area: 101.201 hectares (250.066 acres).

30. Community Economic Developer of the Year Award from the Council for the Advancement of Native Development Officers (2008)

B) The main factors that contributed positively to Tk'emlúps' reserve land management, in declining order of importance

1. Vision, Leadership and the Community Perspective on Rights and Title

TIB asserts its responsible ownership of and title to its un-ceded lands. The Band intends to continue to stand up and fight for its rights through the courts, negotiation and advocacy, and by creating its own policies, by-laws and processes.

The Band has a high degree of control over this positive factor of its reserve land management.

2. Relationships, Partnerships and Trust

The Band has a medium degree of control over this positive factor of its reserve land management.

3. Education

The Band has had a high degree of control over this positive factor of its reserve land management since 1970 and began to have a medium degree of control in 1965.

4. Its People

All TIB initiatives are put forward with the consent of the TIB people.

The Band has a high degree of control over this positive factor of its reserve land management.

5. Knowledge of Its Land

The Band has a high degree of control over this positive factor of its reserve land management.

6. Elders' Guidance

-246- The Band has a high degree of control over this positive factor of its reserve land management.

7. Governance

TIB has put in place a comprehensive system of governance, policies, procedures and administration, including structures and systems, to manage its reserve land. These include by-laws, an Approval Board, Chief and Council processes, permitting and lease laws.

The Band has a high degree of control over this positive factor of its reserve land management.

8. Property Taxation

The Band has a high degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Tk'emlúps' reserve land management, in declining order of importance

1. Indian Affairs Training our People

The result is that KIB people come back thinking like INAC people, as per our delegation of authority: “The exercise of this authority shall be in accordance with applicable Departmental policies and procedures in force from to time.”

The Band has no control over this negative factor of its reserve land management.

2. Colonial Greed

The Douglas reserve was established in 1862 and was considerably smaller than the Tk'emlúps traditional territory. Then Joseph Trutch, Chief Commissioner of lands and works from 1864 to 1871, came along and cut-off part of that reserve. The TIB has been fighting to get back the land it lost ever since and still hasn't gotten it all back.

The Band has no control over this negative factor of its reserve land management.

3. Racism

Racism is rooted in and reinforced by a lack of education. It translates into a lack of resources and the lack of an equitable funding base.

The sign in the TIB Band Offices inviting readers to become Partners Against Racism illustrates that this is very much a current preoccupation.

The disgraceful treatment of Indian veterans, who were told by the government they had to enfranchise, i.e., renounce their Indian Status, as a condition for obtaining the land they had been promised before enlisting, is but one example of the institutionalized racism with which TIB members, like all Indians in Canada, have long had to contend.

The Band has no control over this negative factor of its reserve land management.

4. Bureaucracy -247- The designation and additions to reserve (ATR) processes are too slow, as is the leasing process for both Band and CP land.

The Band has no control over this negative factor of its reserve land management.

5. Oppression

"Someone is always micro-managing you," said TIB representatives, before giving a list of examples:

- “the Indian Agents through which TIB started getting dictated to in 1877,

- residential schools,

- Spanish flu,

- Smallpox,

- Tuberculosis,

- the 1969 White Paper, and

- all the legislation.”

The Band has no control over this negative factor of its reserve land management.

6. Current Genocidal Policies

Bill C-31, and Bill C-3, which is "still aimed at getting rid of the Indians", show "the government has no sympathetic understanding of Aboriginal people in their entirety."

The Band has no control over this negative factor of its reserve land management.

7. Sixties Scoop

This refers to the "scooping up" of Indian children on reserve by the RCMP, taking them away from their families and off to residential schools in the 1960s. The Band had no control over this negative factor of its reserve land management.

8. Discrimination Against Women and the Process of Genocide that Eliminated the Children

The Band has no control over this negative factor of its reserve land management.

D) Tk'emlúps' Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Tk‟emlúps assesses its success at 2.8.

2. Success in using its reserve land for economic development purposes

-248- Tk'emlúps assesses its success at 1.5.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Tk'emlúps assesses its success at 0.5.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Tk'emlúps assesses its success as a 3 and in so doing refers to the governance, policies and procedures it has put in place.

5. Tk'emlúps' priorities for the management of its reserve land over the next five years

i) Help our people be good and great

ii) Pass a Band Council Resolution authorizing the Band to sign leases for up to 49 years. Under our current delegation of authority, the Band can only sign leases for up to 25 years. Over that, INAC must sign off. We are undergoing an amendment to our section 60 delegation of authority for signing authority up to 49 years. We were trying for 99 years but no other First Nation in Canada has this type of delegation of authority. We have waited for INAC Headquarters policy on this matter for two years and cannot wait any longer.

iii) Follow the 25 year land use plan adopted by our people

iv) Conduct a traditional use study

v) Accelerate the leasing process

vi) Press for adoption of the First Nations Property Ownership Act (FNPOA) as proposed by the First Nations Tax Commission

E) Tk'emlúps' Recommendations

i) Use leases and taxation

ii) Emphasize business development

iii) Stabilize your organizational structures, by-laws and policies

iv) Register all interests in your reserve land. Registered leases are better than buckshee for monitoring and compliance, including compliance with environmental laws, regulations and policies, and enforcement, as well as for property taxation and making sure lease are on the roll.

v) Put in place a land use plan -249-

vi) Make education, mentoring and training a priority

vii) Assert with governments and industry your Aboriginal rights and title within your traditional territory

viii) Put in place a communications plan to communicate with your members

ix) Establish good relations with neighbouring governments, including through networking

x) Educate your membership on the whole land management process

xi) Ensure community involvement every step of the way

xii) Make an inventory of what you have

xiii) Talk to communities who have comparable things for ideas

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Work from a government-to-government perspective

ii) Stop being paternalistic

iii) Be more ethical. Develop legislation in a respectful, government-to- government way, not through machinations in the Senate and House of Commons as you did on matrimonial real property (MRP) despite First Nations opposition.

iv) Practice good communications, be open, don't blindside First Nations as you did when you imposed block funding without asking if we wanted it

v) People making decisions should be educated in First Nations history, on what this country has and hasn't done, and on the impacts on First Nations people and taxpayers in general. If the average taxpayer knew what's happening because of INAC not doing what it's supposed to be doing, they'd be horrified.

vi) Provide more continuity within government (i.e., get INAC employees to stay in their jobs longer)

vii) Provide us with the resources you've been stealing so that we can grow

viii) Set up the system to collaborate for success, stop setting it up for failure

ix) Put more capital in First Nation capital plans and honour them

x) We know what's best for our community, so don't move authorities away from Bands and into provincial courts, as your MRP bill would. Stop trying to impose a colonial legal standard on us and ignoring our own legal standard.

-250- xi) If you had consulted First Nations before introducing Bill C-3 (to implement the McIvor decision of the BC Court of Appeal) it would have gone a lot further. Now provide First Nations with adequate implementation funding. xii) We need joint management, monitoring and review boards. The report on Reserve Land and First Nations Development is a good example: if we're going to be studied to death, we need monitoring to ensure the report's recommendations are successfully implemented. xiii) Membership codes have a huge impact on reserve land use and citizenship xiv) Respect our traditions and customary law, for example on how to settle the estates of our members who die intestate

xv) Get out of the game that you don't know, e.g., on estates. We want local control over local issues and local jobs for local people, so give us those jobs. xvi) Be real and transparent about what the agenda is: What is your vision for First Nations? Where are you headed? What does modernizing reserve land management mean? xvii) Accelerate INAC reserve land management processes. Six years ago there was only one clerk to register our leases, so we wrote a letter because bridge financing was becoming a problem for lessees until their lease actually got registered. xviii) Pass the First Nations Property Ownership Act as proposed by the First Nations Tax Commission xix) Adequately fund the First Nations Land Management regime and open it up to more First Nations. KIB is currently at our cap for funding under RLEMP. We still have 1,200 residential units to be built at Sun Rivers, the 195 acres at the 7-Mile Subdivision, the Chief Louis Centre and other future developments that have not been designated yet. Do we start sending the excess leasing and sub-leasing to INAC to process work? We are underfunded for staffing and professional fees. xx) Consider all the resolutions adopted by the Assembly of First Nations on reserve land management and economic development over the last 30 years xxi) Speed up the Additions to Reserve process xxii) Accelerate the leasing process

Approved by Chief Shane Gottfriedson October 28, 2010 -251- TSAWWASSEN FIRST NATION

STATISTICAL INFORMATION

Location 21.1 km from Vancouver in the province of British Columbia, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 191 members on Tsawwassen Lands (47.16%), 214 members (52.84%) off, total 405 310 non-member residents on reserve

Treaty land 724 hectares (1,789.04 acres), waterfront, including two water lot leases. TFN also owns 62 hectares in fee simple, not subject to its land management framework.

Land management legislative and regulatory framework Modern treaty

Land management staff membership in a professional association No

Property taxes Yes

Community Well-Being Index* 90

Parcel Fabric Index** 97

Active registered transactions 943 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009. From the Treaty Effective Date (TED) on, Tsawwassen Lands and transactions on those lands are registered in the provincial land title office.

Active registered Certificates of Possession (CPs) CPs were replaced on the TED by Tsawwassen Fee Simple Interests, of which approximately 81 are registered in the provincial land title office.

** The Parcel Fabric Index (PFI) was developed by the Surveyor General Branch of Natural Resources Canada to measure the current status of parcel fabric on reserve on a scale of 0 to 100 by comparing it to the as-built environment (houses, structures, land clearing and agricultural development). -252- TSAWWASSEN FIRST NATION

DISTRIBUTION OF LAND USE PATTERNS

5% 30%

10% Member Owned Fee Simple Interest Lands 30% Buckshee Short-Term Usage 5%

TFN Land Leases 10%

Registered First Nation Use Lands 55%

55%

-253- TSAWWASSEN FIRST NATION

INTERVIEW REPORT

August 30, 2010, 9:30 AM to 1:00 PM

Chief Kim Baird Andrew Bak, Manager of Environment Colin Ward, Policy Analyst Valerie Cross-Blacket, Manager of Government Services

A) Tsawwassen's Reserve Land Management Experience

The following 30 key events or periods were identified.

1. First Attempt to Have Land Set Aside (1865)

Before colonization, the Tsawwassen people occupied a large traditional territory. During colonization, they were legislated off that territory. An urban environment grew up around them, which led to pressures and exclusion. Documentation started in 1865, when the Chief had Father Fouquet write a letter to the Colonial Lands Administration asking for land to be set aside for the Tsawwassen First Nation (TFN).

2. Reserve Creation (1881)

A first survey was carried out in 1871 on the land that, ten years later, would be set aside as the Tsawwassen Indian Reserve.

In 1881, the reserve had 58 people and 640 acres of land. The town of Delta was created not long after and initially had almost the same population, 57 people, but 30 times as much land.

The reserve population was divided into six family groupings and most of the land was held under location tickets (LTs). TFN's 640 acres quickly became a "hard cap", according to Chief Baird, because the LTs were too small to provide for the families' needs. "If the intent was to create wealth from agriculture," as was ostensibly the policy of the Department of Indian Affairs (DIA) at the time, "there just wasn't enough land in the original reserve." As Harry Joe told the Indian Agent, "the Tsawwassen tribe wanted more land because what land they had could not produce enough grain to pay for all the needed things for the house and for all the urgent needs."

3. McKenna-McBride Royal Commission (1913)

When the Commission came to TFN, Harry Joe made a detailed presentation against being given such a small reserve and submitted a petition asking for more lands. The request was denied.

TFN also tried to get access to a common reserve in which it had an interest, along with Musqueam and Coquitlam, two other Coastal Salish First Nations, all of whom regarded it as a traditional fishing ground. INAC did away with the common reserve "to solve the problem." As a result, there is now a landless New Westminster First Nation that claims to be the descendants of the people who lived there (as did TFN's hereditary Chiefs when they participated in the fishery).

-254- 4. Attempt to Get Outright Ownership (1925)

TFN petitioned INAC to own its reserve. INAC ignored the request.

5. New Survey (1951)

TFN's reserve is situated at the mouth of the Fraser River, which naturally leads to significant accretion and erosion. Following the 1951 survey, accreted lands were added as one lot and the rest of the reserve was divided into 23 lots, which were formalized into CPs.

Pre-existing leases, likely dating back to the 1920s, were recognized by the survey. There was very limited Band land at the time, the result of a combination of donations by individual members, reversions after members died intestate and accretion.

6. Tsawwassen Bluff Sale (1956)

A portion of the south end of the reserve, held by the Band, was sold to a developer to raise money to purchase access to electricity. The money from the sale was distributed to members for this purpose. This was before outright sales of reserve land were stopped in the 1960s.

7. George Massey Tunnel Opens (1959)

The opening of the Tunnel led to increased development pressure south of the Fraser River, ultimately leading to the sub-urbanization of the area surrounding Tsawwassen‟s pre-Treaty reserve, and likely contributing to the siting for construction of the BC Ferries Terminal and associated causeway, and siting for the construction of the Roberts Banks Coal Port and associated highway links.

8. BC Hydro Sub-Station 999-Year Lease (late 1950s-early 1960s)

This lease was signed after outright sales of reserve land were stopped. According to Chief Baird, this was "another example of our history being about land continuing to shrink through major transportation and infrastructure developments of benefit to the Province and to Canada, but of no benefit to TFN. We didn't get even a single job at BC Ferries or the Delta Port."

9. Tsawassen Ferry Causeway Construction Begins (1960)

TFN's traditional Longhouse is torn down to make way for Highway 17, which becomes the causeway that leads out to the ferry terminal.

10. Beach Lot Leases (1960s)

These were attempts by CP holders to generate some economic development. The leases were initially informal and got formalised very recently into 99-year pre-paid leases.

11. Roberts Bank Coal Port Opens (1970)

This facility, located just northwest of the Tsawwassen Ferry Terminal, was officially opened as a coal terminal (now known as Westshore Terminal). TFN raised concerns about the potential impacts to the foreshore of building not only the port but the -255- causeway, to it. The port causeway, coupled with the BC Ferries causeway, would significantly alter the foreshore, but TFN‟s protests were to no avail. The consequences were devastating to sustenance practices (e.g, crab fishing along the foreshore).

12. Addition to Reserve for Lot 2 (1971-1972)

13. First Water Supply Agreement (1976)

The Municipality of Delta and INAC agreed to supply water to TFN "for domestic purposes only." Delta charged TFN for access to the water supply at a rate that was double what Delta residents paid. TFN was not able to access water directly from the regional district‟s water supply.

14. Blockade (late 1970s-early 1980s)

TFN was trying to develop man-made accretion lands that had resulted from the construction of the two causeways. The first causeway cuts across the reserve to the BC Ferry Terminal. Construction for the causeway and terminal began in 1958, on reserve land that was sold under threat of expropriation, and ended in 1960.

The second goes to the Roberts Bank Superport and was built in the late 1960s-early 1970s right outside the reserve boundaries to avoid the need for expropriation. It's angled in front of the reserve, so it prevents the harvesting of all marine products and changes the patterns of accretion from the Fraser River. It blocks both ocean currents from the South and sediments from the North, creating a "piston" of shallow water that is welcoming to invasive species. This phenomenon is aggravated by the fact that the surrounding agricultural lands are drained through the reserve. This leads to a lot of nutrient loading and an increased risk of eutrophication, because the part of Roberts Bank in front of the reserve can't be washed out.

The oldest archaeological records on the former reserve, which is now the Ferry Terminal, and in the immediately adjacent area are respectively 4,200 and 8,000 years old, demonstrating that the Tsawwassen have successfully survived in this area for millennia. In the second half of the 20th century, the causeways fundamentally changed the environment and, as Chief Baird put it, "altered our ability to sustain ourselves, along with the surrounding urban development."

Against this background, TFN members on horseback stopped provincial construction machinery from entering the man-made accretion that resulted from the ferry causeway development. This was the beginning of a protracted legal dispute over the ownership of these lands, which TFN eventually won.

15. New Survey (1980s)

Several accretions that had occurred over time were recognized by this new survey. Accreted lands were to be added to the reserve, as had been done in the past, but weren‟t.

A marsh had been promised and a dyke was being built next to the reserve. At the eleventh hour a break-water was made and the dyke was not enclosed. As a result, the accreted lands that had been dried up by the dyke were flooded and not added to the reserve.

16. Stahaken (1985) -256-

This was a TFN venture that took the form of a 99-year pre-paid lease of Band land to build 83 single-family homes for non-members. The lots were removed from the reserve, put into the BC Land Title and Survey Authority (LTSA) Registry and transferred back to the reserve through the additions to reserve process while remaining in the LTSA Registry, and hence with a marketable title. It's difficult to gauge the positive impact of that marketability, because these are still 99-year leases, accompanied by 99- year agreements entered into by the municipality of Delta with the individual lessees for the provision of municipal services. These agreements gave Delta "jurisdictional control through contract," as Chief Baird put it, and there was therefore no conflict with TFN.

17. Membership Code Approved (late 1980s)

This was done in response to the adoption of Bill C-31 in 1985, which increased TFN's membership.

18. Comprehensive Land Claim Starts (1990)

The federal government's policy at the time was that it would negotiate only one land claim per province at a time and TFN was tenth in line in BC. The Nisga'a had been negotiating for almost 20 years so, by extrapolation, TFN would have to wait 200 years.

19. BC Treaty Commission Established (1992)

This changed federal policy and First Nations who submitted a statement of intent (SOI) to negotiate a treaty could now start doing so. On the day the BCTC opened its doors in 1993, TFN tabled its SOI.

The BCTC provided for a combination of land claim and self-government negotiations, so TFN's comprehensive claim got wrapped up in the treaty process. First Nations who had not previously pursued a self-government agreement (SGA) could no longer do so without a comprehensive land claim. This made the new process much lengthier and more complicated. Westbank was the only exception and it concluded a bilateral SGA with Canada because its process got grand-fathered.

20. Tsatsu Shores (1995)

This 86 unit condo development for non-members did not follow the Stahaken precedent, which TFN had concluded was too complicated and too expensive. The new model called for re-creating the BC Condominium Act on reserve and required the use of expensive lawyers to form a corporation for the tenants, but it worked.

The purpose of the development was to raise capital to build a marina and it was supposed to have three phases. It only got to Phase 1 because of complications with Delta, which refused to sign a municipal services development agreement because it "wanted to control the density of our development," according to Chief Baird.

As a result of Delta's refusal, TFN built a combined reverse osmosis water and tertiary sewer treatment plant. The Department of Fisheries and Oceans laid criminal charges against TFN for siting the plant in fish habitat. TFN had built the plant in the location it did because it did not believe DFO‟s assessment that it was in "red zone habitat". TFN pled not guilty to the charge on that basis and was successful in defeating the charge.

-257- Delta tried to withhold fire protection services to kill the project. TFN took Delta to court and didn‟t lose any ground, according to Chief Baird, because the judge said "work it out" and that didn't happen, so Delta couldn't terminate fire protection services.

Before TFN broke ground on the condo development, on Canada Day 1995 site a "bus full of privileged white people," mostly from Delta, staged a protest on the reserve, brandishing "Save the Heron" signs and screaming "No More Handouts to Indians."

As Andrew Bak put it, "that left us pretty pissed off, choked but still friendly, in the mid- 90s."

According to Chief Baird, Tsatsu Shores was different from Stahaken in Delta's eyes "because they refused to recognize that our jurisdiction was outside theirs. They assumed we were part of Delta and refused to believe otherwise. This was the beginning of the war of control and a major impetus for TFN's pursuit of a Treaty, which was seen as the alternative to going cap in hand to Delta."

21. Tax Power (1996)

22. Community Plan (1998)

TFN submits an official Community Plan to Delta, who said it needed it before it would give water. Delta is not happy with the plan and refuses to supply water for economic development.

23. Impact Benefit Agreements (1999-2006)

TFN concluded three major IBAs: one with the Province on Roberts Bank in 1999, one with Port Metro Vancouver in 2004 and another with BC Rail in 2006. Chief Baird noted that, while TFN originally based these agreements on its asserted rights in its traditional territory, it has been basing them on its Treaty since April 3, 2009, the Treaty's effective date.

24. TFN Agreement in Principle Signed (2004)

25. Land Code Approved (2004)

This was the culmination of the First Nations Land Management process, which TFN had initiated in 2000.

26. Election Code Approved (2005)

Chief Baird noted that, like power over taxes, land management and membership, this was another illustration of TFN taking on more jurisdiction when opportunities arise.

27. TFN Final Agreement Signed (2006)

28. Second Water Supply Agreement (2006)

After years of negotiation with Delta, TFN gets Delta's agreement to supply a limited amount of water to the reserve for unspecified purposes. TFN shuts down the operation of its costly water treatment plant. The second water supply agreement reduced the rate at which TFN was being charged (though the rate continues to be more expensive than what Delta pays to access water from the regional district), but flow rates are still limited -258- by the existing infrastructure, which continues to restrict development activity. Treaty negotiated access to the regional water supply will provide TFN with the ability to bypass Delta and sufficient supply at equivalent rates for economic development. Once new infrastructure is built to handle the increased capacity requirements, TFN will no longer require water from Delta.

29. Treaty Vote (2007)

TFN descendants vote on a Treaty 142 years after their ancestors first attempted to get land.

30. Treaty Entry Into Force (2009)

EIF was no mean feat, requiring as it did the signing of 6,000 land conveyances, which started at midnight and lasted until 4 AM. It also required creating a town out of thin air and a transfer of federal land into something the LTSA would recognize.

A whole new land regime entered into force on the Effective Date, consisting of - the Constitution, - 22 laws on land and finance, and - a self-government regime that has an important land component.

The Intergovernmental Relations chapter of the Treaty makes TFN like a municipality for purposes of integration in the Regional Governance Structure of the Lower Mainland. This gives TFN legal access to water and overcomes the obstacle posed by Delta's 1976 agreement with INAC to provide water to TFN for residential use only and its refusal to do so for economic development purposes.

When that happened INAC said that "economic development's not part of our fiduciary duty." In other words, as Chief Baird put it, "if you're not a bunch of dehydrated Indians, we don't have to intervene, and if we don't have to, we won't." Mediation attempts failed. It was clear that only the Province had jurisdiction to force Delta to give TFN access to the conventional water system, and it didn't. TFN forced the issue in the Treaty process, which was likely the only way to overcome the impasse that had persisted with Delta since the Tsatsu Shores episode. This was a major step forward, since TFN's efforts going back to the 1980s at land use planning (LUP) and community engagement on LUP and economic development, on what Chief Baird described as "an awesome piece of land for economic development," had always been stymied by the lack of access to a municipal water supply.

The Treaty also removed about half of the new TFN Treaty Settlement Lands (i.e., the increased land base, as opposed to the former reserve) from the BC Agricultural Land Reserve (ALR) designation that had previously encumbered these lands. This was another facet of what TFN has been trying to do pre and post-Treaty. Chief Baird explained that "provincial removal of these lands from the ALR designation was a game changer, because all our land is CP and the Province wanted to give us only farm land that we could only farm, which would really hamstring our economic development opportunities by limiting the use of the land to agriculture and a short list of other permitted uses, like drainage and greenhouses." The ALR designation removal was therefore as important as access to municipal water in terms of unleashing the potential of the land.

B) The main factors that contributed positively to Tsawwassen's land management, not ranked in order of importance -259- 1. Location, Location, Location

The First Nation has a high degree of control over this positive factor of its land management because "our ancestors were very smart: they picked this location and now we're benefitting from it."

2. Jurisdiction, Control and Final Decision Making

The First Nation has a high degree of control over this positive factor of its land management now, but it had none before the Treaty.

3. Leadership Capacity, Continuity and Vision

Chief Baird has been Chief for 12 years and spent 6 years as a Councillor before that. In her view, "the role of leadership is instilling the vision" and other TFN representatives confirmed that is what she has done.

The First Nation has a high degree of control over this positive factor of its land management now, but it had none then.

4. Comprehensive Community Engagement Process

The First Nation has a high degree of control over this positive factor of its land management.

5. Professional Bureaucracy with the Skills They Need to Do Land Management

The First Nation has a high degree of control over this positive factor of its land management now, but it had none before the Treaty because of the inadequate level of funding support it received from INAC.

6. Institutional Development with a Focus on Welcoming Investment to Our Lands

For example, TFN has been certified by the First Nations Financial Management Board, which will give comfort to anyone interested in investing on its lands. Another example is TFN's use of the BC LTSA to register interests in its lands.

Chief Baird noted that the LTSA still recognizes TFN's uniqueness as a First Nation and that TFN's use of its services does not mean assimilation. Similarly, she continued, "we're pretty unique around the table as a member of the Greater Vancouver Regional District." Andrew Bak characterized TFN's post-Treaty situation as "laughing more, choking less," while Chief Baird summarized it as "negotiated integration, as opposed to assimilation."

The First Nation has a high degree of control over this positive factor of its land management now, but its level of control before the Treaty was abysmal.

7. Political Support from Other Levels of Government

"The Treaty has created a whole new partnership, especially with the Province," said Chief Baird. She explained that TFN was recently the only First Nation in Canada to get stimulus money under transportation from the Building Canada Fund. "Because of our new municipal-like status, BC was our biggest advocate. The feds first said no, we had to apply for funds specifically reserved for First Nations, which were for domestic needs -260- rather than economic development. With the Province's support, we were able to make a case that we were no longer an Indian Act Band." As a result, TFN got $3 million in federal funds and another $3 million from the Province.

TFN is the first Treaty First Nation under the BC Treaty Process and the second BC First Nation to have signed a modern treaty (after Nisga'a). Chief Baird reflected on the contrast between TFN's recently changed circumstances and those in which the vast majority of First Nations continue to struggle. Referring to the limited INAC view of the extent of its fiduciary duty she had previously mentioned, she said: "There are so many dehydrated Indians, so how do you get beyond basic needs, for example the lack of infrastructure? There is such a huge infrastructure gap in First Nations that it's hard to quantify, so we're just set up to fail. You need to take care of your more mundane needs, i.e., survival, before you can go on to any kind of kind of economic development or governance."

TFN has also convinced the Federation of Canadian Municipalities that it should be equivalent to a municipality for purposes of funding available to municipalities in Canada generally. Chief Baird summarized this factor as follows: "The Treaty process has given us access to various pots of money that are not normally accessible to First Nations, but it's been no slam dunk and we've had to argue the case pretty hard."

The First Nation has a high degree of control over this positive factor of its land management now, but its level of control before the Treaty was abysmal.

8. Sound Relationships with Non-Native Lease Holders

These relationships have evolved over time into a new model. Lease holders now get to vote on tax rates and any permissive exemptions (from taxes for certain land uses for certain periods). They also enjoy a limited form of representation, which is not just an advisory role as in Westbank. Tsawwassen's Property Taxation Authority (PTA) is composed of both member and non-member residents. It is a public TFN institution that has a direct role on property tax rates and a right to review and make recommendations on permissive exemptions, as well as access to a robust dispute settlement mechanism pursuant to TFN's legal obligation to consult the PTA provided in the Treaty.

Chief Baird said that "we're confident in the effectiveness of that model, but time will tell, especially after our tax exemption for members runs out in ten and a half more years." During that period tax rates are tied to Delta's. Chief Baird said that fears of discrimination after that period are "irrational, because members will be taxed the same as non-members." The Real Property Tax Coordination Agreement, which is a side agreement to the Treaty, is an agreement between BC and TFN. It permits TFN to apply property taxes on non-Members, provided that the conditions set out in that agreement are met. Once the tax exemption for Members has been phased out, TFN must meet equality provisions in the application of taxes and if these are not met, the agreement could be terminated.

The First Nation has a medium degree of control over this positive factor of its land management.

9. Determination

Andrew Bak described this factor as "being committed until you're committed." More seriously, Chief Baird said that "we haven't yet had economic development. We're in massive gear-up mode. A lot of development around us has happened without our -261- involvement or benefit, but it has created opportunities that we are now poised to seize. We're a work in progress. Step 1 was all the factors that contributed to getting TFN out of the Indian Act. Step 2 is these same factors contributing to our future success in creating economic development and sustainability."

The First Nation has a high degree of control over this positive factor of its land management.

C) The main factors that contributed negatively to Tsawwassen's land management, not ranked in order of importance

1. Indian Act

The First Nation had no control over this negative factor of its land management.

2. Government Interference

Every now and then governments still constitute a negative factor, said Chief Baird.

The First Nation has no control over this negative factor of its land management.

3. Racism

Chief Baird defined this factor as "the assumption that we're inferior or that, at best, our motives are suspect, or that we don't know any better, all that stuff."

The First Nation has no control over this negative factor of its land management.

4. Lack of Capital and of Access to Capital

The First Nation has a medium degree of control over this negative factor of its land management.

5. Lack of Infrastructure

The First Nation has a low degree of control over this negative factor of its land management.

6. Lack of Jurisdiction Prior to the Treaty

The First Nation had a low degree of control over this negative factor of its land management.

7. Lack of an Adequate Land Base Prior to the Treaty

The First Nation had a low degree of control over this negative factor of its land management.

8. Lack of Capacity in Finance, Human Resources and Other Areas of Expertise

The First Nation has a low to medium degree of control over this negative factor of its land management.

D) Tsawwassen's Current Situation and Future Directions -262-

This section measures success on a scale of 0 to 5.

1. Success in using its land for community control purposes

Tsawwassen assesses its success as a 4.

2. Success in using its land for economic development purposes

Tsawwassen assesses its success at 3.5 and notes that any limits on its success in this regard are because of the level of community control the First Nation has given its members. For example, the community only approved two of the three economic development projects presented since the effective date of the Treaty. The community also made clear that it doesn't want disposition of Tsawwassen lands to non-members, even though fee simple tenure is allowed by the Treaty. As Chief Baird noted, "these tools, checks and balances, which balance competing interests, temper what we can do, e.g., when comes time to get financing."

3. Success in using its land with tools and procedures provided by the Indian Act (i.e., pre-Treaty)

Tsawwassen assesses its success as a 2, despite having "really pushed the envelope," because "success was always pulled out from under us." For example, anticipating the delays inherent in the process of designating land for leasing, Tsawwassen held a pro-active referendum before reaching agreement with a developer. The referendum was based on language INAC had suggested and it passed, but INAC rejected it. Given the difficulties caused by the tools and procedures provided by the Indian Act, in Tsawwassen's experience "2 out of 5 is as good as it gets."

4. Success in using its land with tools and procedures not provided by the Indian Act (i.e., post-Treaty)

Tsawwassen assesses its success at 3.5.

5. Tsawwassen's priorities for the management of its land over the next five years

i) What We Are Working Toward: Tsawwassen First Nation will be an ideal location to raise a family and a working model of an environmentally sustainable, self-sufficient and culturally proud First Nation‟s community. Tsawwassen First Nation Government will, at all times, be oriented towards serving our membership, and will exercise the self-government powers of the TFN Treaty.

ii) Our Vision for The Future: In 2020, Tsawwassen First Nation will be a safe and accessible community, with infrastructure and services that make it the perfect place to raise children and to live. Our community will be close-knit, with elders and youth at the core of the community. Our people will be proud of our culture, traditions, and stories and the Hunq‟um‟i‟num language will be enjoying a revival.

Industrial and commercial development will be active and growing, and will provide significant revenue to Tsawwassen First Nation and CP -263- holders. However, development will not intrude on the environment, views, and idyllic location of TFN lands. Jobs will be plentiful, and businesses owned by our members will be thriving, assisted by a successful, innovative education program.

Tsawwassen Government will be responsive and transparent to our members. It will deliver programs and set laws and regulations that protect and enhance the liveability of our community. Important services will be provided in the centre of the community. Our population will be growing as a result of the young population, and from members returning to live on TFN lands.

E) Tsawwassen's Recommendations

i) Establish a common community vision

ii) Develop a land use plan that supports that vision through a bottom-up community consultation process, starting with an assessment of your assets

iii) Do anything you can to increase your autonomy from government

iv) Do the community work to ensure the community is ready to support you in taking up opportunities. For that you need checks and balances, i.e., more community control, as opposed to only First Nation government control.

v) Never stop trying to build up relationships with local governments, including by using private sector allies

vi) Be pragmatic, don't let the perfect be the enemy of the good

vii) Continue building the capacity of both staff and leadership. As that capacity evolves over time, require more specialization.

viii) Just do it. Don't let anybody tell you that you can't, because there's always a way to find solutions for the "no" doors.

ix) Planning is good, but be prepared for the unpredictable

x) Implementation is tough, but don't be dissuaded. TFN's real work is just beginning.

xi) You need a long-term commitment that transcends political terms. That's why you need a community vision, which can't be tied to one particular leader or group.

xii) Instead of being afraid of talent within your own First Nation, enhance it. Don't feel threatened by your smart members, use them. Fight brain drain. Don't let them be lost to the community. See them as a resource. -264-

xiii) Culture is key. Uphold cultural values, no matter what, because in the end that's what we're doing it for, that's who we are, it's everything that was taken away from us. We can't be successful by denying who we are. Culture is what keeps us grounded. Develop your community's resources in a way that respects culture.

xiv) Accept a tolerable level of risk, because there's no reward without risk. There's also a risk to not doing anything.

xv) Be prepared for resistance to change, internally and externally, i.e., from other First Nations and the non-Native public. For example, there were First Nation protesters at the legislature on Treaty legislation introduction day. They were accusing us of selling out, which was surprising. One group said that any treaty is bad because it fetters sovereignty. Another said that we settled for too little, so we were setting a bad precedent. A third group said that we settled for too much and now they wouldn't be able to get what we got. The non-Native public had different reasons for opposing our Treaty: they didn't want the ALR removal, they didn't want a First Nation in their backyard raising land use and economic development issues, or they didn't want a "race-based government."

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Get out of the way. Lots of First Nations are ready to advance and often government's a barrier. Fiduciary responsibility has turned into a massive ass covering exercise, instead of helping First Nations. With a minority government it's really hard to get anything done to help First Nations, everything's very challenging and protracted.

ii) INAC's role is not clear. It's applying the Indian Act controls on Indians, but to what end? The government should clarify to First Nations what its role is, if any, in economic development. That should involve setting measurable and tangible goals with First Nations to overcome poverty. Education is a major thing you have to support to do that.

iii) Building institutional and governance capacity should be a strategic priority for INAC, because it's linked to economic success, as demonstrated by the Harvard Project. With governance capacity First Nations are able to maximize opportunities.

iv) Jurisdictional transfer must accompany ownership transfer. You can't only give half-tools, as INAC did post-White Paper in the 1970s when First Nations ended up with all the responsibilities and none of the tools. Arguably the transfer of jurisdiction is more beneficial to economic development pursuits than is the transfer of fee simple ownership of land. The Harvard Project on American Indian Economic Development and the experience of Westbank First Nation (who were transferred a significant suite of self-government tools, but whose land remains reserve land) highlight how a community can make use of self-government tools to pursue economic development. As noted on the Harvard project‟s website (http://hpaied.org/), “When Native nations make their own decisions about what development approaches to take, they consistently -265- out-perform external decision makers - on matters as diverse as governmental form, natural resource management, economic development, health care and social service provision.” v) Do whatever you can to improve relations between First Nations and their neighbours, in particular the Provinces. vi) First Nations are so at the margins of Canadian society, not just economically but also from a legal rights and governance perspective, there should be some form of guaranteed First Nations representation in the Parliament of Canada, as was done for the Maori in New Zealand and indigenous people in Ecuador.

Approved by Chief Kim Baird October 28, 2010 -266- TZEACHTEN FIRST NATION

STATISTICAL INFORMATION

Location Within the boundaries of the City of Chilliwack, in the province of British Colombia, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 234 members (49%) on reserve, 240 members (51%) off reserve, total 474 1,600 non-member residents on reserve

Reserve land 358.9 hectares (888.86 acres), three reserves, rural/urban and agricultural

Reserve land management legislative and regulatory framework First Nations Lands Management

Reserve land management staff membership in a professional association First Nations Alliance 4 Land Management

Property taxes Yes

Community Well-Being Index* N/A

Parcel Fabric Index** 82

Active registered transactions 1,924 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 123 active CPs registered in the ILR, the FNLR or the SGFNLR as of October 20, 2010

DISTRIBUTION OF LAND USE PATTERNS

98%

Certificates of Possession 98% Licensed/Permitted Activity 18%

1% Individual Buckshee Long-Term Leases 5% Designated Land Leases 1% Registered Band Use 1% Lands 1%

18%

-268- TZEACHTEN FIRST NATION

INTERVIEW REPORT

September 10, 2010, 8:30 to 11:15 AM

Chief Joe Hall Glenda Campbell, Office Administrator/Councillor Valerie Sam, Lands Manager

A) Tzeachten's Reserve Land Management Experience

The following 11 key events or periods were identified.

1. Reserve Creation (1960s or 1970s)

A 700 acre reserve was created for the Tzeachten First Nation (TFN), a relatively new community that had governed itself separately for about 80 years before being officially recognized.

The Skowkale and Yakweakwioose First Nations agreed with the Indian Agent at the time to the creation of the new reserve, which used to be a wood lot for them, and passed resolutions to allow the separation. Their reserve was smaller than TFN's, whose Chief had been recognized by INAC in the early 1900s.

2. Custom Election Code (1992) and Membership Code (1993)

TFN determined that jurisdictional control was required for it to achieve anything, so it undertook to take any and all opportunities to that end. The first such opportunity was creating its own election rules, so TFN adopted a custom election code and a membership code. The latter is not tied to status or blood quantum, but to blood lines.

3. Property Taxation (1991)

TFN decided to exercise property taxation powers and chose to collect such taxes from non-members. "We saw an opportunity to expand our jurisdiction by taking over from the province and the municipality, and we jumped on it," said Chief Hall.

4. Zoning By-law (around 1990)

This was an opportunity for TFN to both expand its jurisdiction and better protect its reserve land from detrimental uses than was possible under the Indian Act alone. It resulted from the honesty and cooperation of a CP holder who was considering using his land for a bio-medical waste incineration facility. Although he had no obligation to do so under the Indian Act, the CP holder came forward and sought the Band‟s views on his project. The Band advised against it and the CP holder agreed not to proceed with the project, although once again he didn't have to under the Indian Act. The Band developed the zoning by-law shortly afterwards and the community supported it because it provided controls over future developments on reserve.

-269- Under the by-law's terms, the entire reserve was committed to a Special Development Zone, so all existing uses were approved but any variation had to go through a re-zoning application. The by-law also demonstrated to TFN‟s neighbours that it had controls in place, coming as it did after another member had put up a sign on his CP land saying "Any Zoning Possible Here." By building confidence with the City of Chilliwack, the by- law facilitated the conclusion of a Servicing Agreement.

5. Servicing Agreement (around 1995)

TFN needed this agreement to ensure that services would be provided for future developments, because the City of Chilliwack controlled its access to the necessary infrastructure. While it couldn‟t deny TFN the opportunity, Chilliwack was concerned that economic development on TFN lands would mean “competition" and "rob jobs" from established businesses. While a balance of interests was eventually found, the negotiation of this agreement proved to be a very difficult, lengthy and taxing exercise.

6. Lease to a Tzeachten–Owned Company (around 1997)

This lease on designated Band land arose out of TFN's determination that commercial development was needed to move away from financial dependence on INAC, from which 99% of its revenues, or about $80,000, used to come (today INAC funding represents less than 10% of TFN's total income for core operations). TFN therefore decided to develop a piece of its reserve for a commercial plaza that it would own. Owning, rather than leasing it out, turned out to be a fantastic decision because the shopping centre is very successful.

The southwest corner of TFN's reserve was in a desirable location, since Vedder Road is the major traffic artery that goes through the centre of Chilliwack and Promontory Road is a major collector road for a development on a neighbouring hillside that was built in the last 10 years. Vedder Crossing Plaza (VCP) was built at the intersection of these two major roads. TFN created a wholly-owned subsidiary that owns VCP and contracted with the Gulf Pacific Company to manage it.

VCP is a major revenue generator and has good tenancy support, having attracted such prominent tenants as Save-On-Foods, the Royal Bank and Tim Hortons. The ability to secure these types of tenants elevated TFN‟s stature in the Chilliwack business community, which started seeing it in a new light, i.e., as a participant in the local economy.

7. First Nations Sales Tax (around 2000)

Revenue Canada offered TFN the opportunity to take over the three "sin taxes", i.e., alcohol, tobacco and fuel. This was another opportunity for TFN to expand its jurisdiction. It also provided a significant additional source of own source revenue. TFN is currently exploring the possibility of further expanding its taxation jurisdiction to include the full Goods and Service Tax.

8. Regional Lands Administration Program (1999-2000)

9. Ch-Ihl-Kway-Uhk Forestry Operation Established (2004)

This operation, named after the tribe of which TFN forms a part, is co-owned by seven First Nations and is already generating revenue. The same First Nations are currently -270- planning a future run-of-the-river electrical power generating operation. Both projects are in TFN‟s traditional territory.

10. First Nations Fiscal and Statistical Management Act Adopted (2005)

Chief Hall was very involved in the work leading up to the adoption of the FSMA and was subsequently named Chair of the First Nations Finance Authority (FNFA), one of the four institutions the Act created.

The FNFA will enable First Nations to save money by pooling their borrowing needs, just like the BC Municipal Financial Authority does for municipalities. TFN has a need for a sanitary sewer system and can‟t wait for INAC funding. It is therefore looking to be part of the FNFA‟s first bond issue.

11. Land Code Passed (2008)

The adoption of the Land Code under the First Nations Land Management regime was a natural progression from RLAP.

B) The main factors that contributed positively to Tzeachten's reserve land management, in declining order of importance

1. Strong, Stable and Consistent Leadership

TFN's leadership is also business minded and forward thinking.

Joe Hall has been on Council for nearly 30 years and Chief for 12. There is also a lot of continuity among other Council members.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Need and Desire to Become More Autonomous

Chief Hall defined this factor as "absence of complacency: we want to do something, we want progress and we want to improve ourselves." He added that "good working Councils" contributed to this factor, as did the former Land Code Advisory Committee, which was composed of a cross-section of membership, worked very well and has since become the Tzeachten Land Advisory Committee.

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Community Involvement

TFN's membership is kept apprised of everything. Some of the community decisions Chief Hall is proud of include

- pay GST to receive GST,

- abolish social housing (no more "social" in "housing") and

- the establishment of Committees to remove the perception of "isolated" Council decisions. Another example is the Family Advisory Committee, on which each family -271- has a representative. This Committee started with choosing the housing list and the priority list, and moved on to other things after that.

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Establishment of TFN's Stature in the Business Community

The First Nation has a medium degree of control over this positive factor of its reserve land management.

5. Provision of Opportunity for Us to Take Over Jurisdiction

The First Nation has no control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Tzeachten's reserve land management, in declining order of importance

1. INAC and the Indian Act

"They seem to throw up roadblocks," said TFN representatives. "They're changing tools we use and that work for no good reason," they continued, pointing out that the Indian Lands Registry Upgrade Project (ILRUP) "will make it worse and will slow us down." While INAC showed the proposed new system to First Nations, "they didn't allow any input and only justified their reasons" when problems were pointed out to them.

The First Nation has no control over this negative factor of its reserve land management.

2. Small Land Base

The First Nation has no control over this negative factor of its reserve land management.

3. Transmission Line and Pipeline

Both of these limit possible land uses.

The First Nation has no control over this negative factor of its reserve land management.

4. Land Is So CP'd

CP holders are resistant to change and the CP system creates inequity in land holdings, according to TFN representatives. For instance, TFN had to purchase a 10-acre and a 5-acre parcel from CP holders to house its members.

TFN representatives said that they have a very small land base and a very small proportion of that is Band land, so any land that is added to the reserve in the future will be Band land. "We will issue CPs only once mortgages are paid off and probably only for housing," they added.

The First Nation has no control over this negative factor of its reserve land management.

5. Very Poor Past Planning

-272- For example, the location of housing and roads was poorly planned "and we have to live with that," said TFN representatives. One housing development is a pie-shaped lot with only three houses, which is "just stupid." It's very difficult to make things more efficient in such circumstances. Undersized water lines are another example, "so you can't tie into them and there's a heavier cost to all that."

The First Nation has no control over this negative factor of its reserve land management.

6. A Large Percentage of Non-Reserve Land Around Us is Already Developed

TFN representatives noted that this limits their possible land uses, especially since there's "not enough consideration or care on non-reserve lands." For example, the surrounding City of Chilliwack allowed variances from set-back requirements on properties adjoining the reserve. As a result, if TFN allowed the building of houses up to the reserve boundary, "they could reach across and touch hands."

7. Resistance from Outsiders, i.e., Local Governments and Businesses

TFN representatives said that "municipalities were reluctant to embrace any growth on reserves in BC." They described this negative factor as "difficult, like swimming upstream, trying to win that confidence, with business feeding off the resistance from municipalities."

The First Nation has no control over this negative factor of its reserve land management.

8. Location of the City Dump Landfill

The Chilliwack city dump landfill is next to the southeast corner of TFN's reserve, which stinks and limits possible land uses. The landfill has contaminated the groundwater in the area of the sports field, which can still be used to irrigate it but not for domestic use.

The First Nation has no control over this negative factor of its reserve land management.

9. Traffic Patterns

Traffic flow had increased a lot on Promontory Road because of a residential development on the hillside. Increased traffic on this and other roads has created dangerous situations for pedestrians, cyclists and residents.

The First Nation has no control over this negative factor of its reserve land management.

10. Offsite Drainage Problems

Chilliwack's storm water drainage has increased and rendered a good part of the southeast corner of the reserve soggy and unworkable, which takes out about 10 acres from potential economic use.

The First Nation has no control over this negative factor of its reserve land management.

D) Tzeachten's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes -273- Tzeachten assesses its success as a 5.

2. Success in using its reserve land for economic development purposes

Tzeachten assesses its success as a 5.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Tzeachten assesses its success at 2.5, because those tools and procedures are so slow and cumbersome.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Tzeachten assesses its success as a 5.

5. Tzeachten's priorities for the management of its reserve land over the next five years

i) More housing for members

ii) More employment opportunities for members

iii) Acquire more land. For example, TFN is involved in a case related to Canadian Forces Base Chilliwack that is currently before the BC Supreme Court. The Yakyeakwioose First Nation, the Skowkale First Nation and TFN are sharing expenses for this case, which has been ongoing for about four years and will hopefully be decided within another five.

iv) Pursue the BC Treaty Process (which will likely take more than five years)

E) Tzeachten's Recommendations

i) Get Council and the community on side

ii) Do the foundational work, i.e., generate confidence, increase information sharing, involve members in the affairs of the community and deliver on your objectives

iii) Be very careful about giving away opportunities, e.g., become a partner rather than a landlord

iv) Take whatever jurisdiction you can

v) Remove outside jurisdictions, because they'll come back and bite you

vi) Avoid the paralysis, delays and procrastination that too often set in as a result of working under the Indian Act -274- 2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) Seriously look at providing opportunities for communities to

- become more autonomous,

- generate revenue and

- expand governance

ii) Don't legislate change, because some First Nations aren't ready

iii) Fiduciary has its role, but the fiduciary blanket is suffocating

iv) Revisit how you're providing capital dollars to communities and for what use

v) Increase funding for First Nation programs and tie it to needs

v) On social assistance, look at preventive work and deal with the core problem, i.e., dependency instead of feeding it.

vi) Be more flexible. The big problem is that the government is reluctant to make changes that will work in a region but won't work nationally. This is tunnel vision, because what works in the Atlantic won't necessarily work in the Prairies. INAC is in paralysis for fear of creating a precedent that they'll have to offer in Ontario. You've got to have flexibility. Different areas require different remedies.S

vii) Stop blowing your own horn with aggregate numbers, which aren't real. For example, when the government announced $2 million dollars for family violence prevention nationally, I asked how much that meant for TFN and what would it buy. The answer was $1,700 and three hours of therapy.

viii) Be more pro-active. These are foreign words to INAC, which is not creative, and always trying to cure the symptoms but not healing the problem. There needs to be an emphasis on proactive and preventive work.

The government is sitting and waiting for an uprising to get rid of INAC. It's the same people who are supposed to get First Nations ready to do that, but their jobs are on the line, so they have no incentive to work diligently with First Nations to work themselves out of a job.

There is a gap between the politicians, who say wonderful things on the news, and the bureaucracy, who don't implement the Minister's wishes on the ground.

How many studies are still sitting on the shelf today?

"Are we being paternalistic? Are we being helpful?" Look at yourself in the mirror and ask yourself those questions. Be truthful; just answer them -275- by yes or no. If you're being paternalistic, ask yourself: "What can we do to be helpful?"

Approved by Chief Joe Hall October 21, 2010 -276- WHITECAP DAKOTA FIRST NATION

STATISTICAL INFORMATION

Location 26 km from Saskatoon in the province of Saskatchewan, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 270 members (48%) on reserve, 279 members (52%) off reserve, total 562 84 non-member residents on reserve

Reserve land 1,902 hectares (4,700 acres), one reserve, rolling sand dunes and river plateau

Reserve land management legislative and regulatory framework First Nations Land Management (Operational)

Reserve land management staff membership in a professional association Yes

Property taxes Yes

Community Well-Being Index* 74

Parcel Fabric Index** 95

Active registered transactions 284 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 0 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

10% Custom Allotements (600 acres) 12.82%

12.82% Licensed/Permitted Activity (468.1 acres) 10% Land Leases (3,028 acres) 64.68%

Registered Band Use Lands (1,014.71 acres) 21.68%

64.68% 21.68%

*Granting agricultural interests to individual Band members

** Commercial (1,000 acres identified, half of which is leased out), residential (108 acres) and agricultural leasehold interests (1,920 acres, half of which is used by the Band and half by Band members and non-members)

**** Residential construction (640 acres), special use, i.e., cemetery, sweat lodge sites and cultural sites (160 acres) and resource conservation areas (214.71 acres) -278- WHITECAP DAKOTA FIRST NATION

INTERVIEW REPORT

September 1, 2010, 9:00 AM to 12:45 PM

Chief Darcy Bear Frank Royal, Councillor Warren Buffalo, General Manager Tony Kuchapski, Director, Self-Government Denis Kammerer, Director of Finance

A) Whitecap Dakota's Reserve Land Management Experience

The following 26 key events or periods were identified.

1. War of 1812

The Dakota were military allies of the British. Over the years their military service to the British Crown had been rewarded with medals, flags and promises of protection. As a result, there was always animosity between them and the young American republic. During the War of 1812, the British expanded their territory into Minnesota, which was part of the Dakotas' traditional territory.

2. Treaty of Ghent (1815)

This marked the end of hostilities between the US and the UK. Under the terms of the Treaty, whatever lands the British had gained during the conflict reverted back to the US and each party promised not to invade the other's territory. "We ended up being on the new lands in Minnesota," Chief Bear explained.

3. Canada-US Border Established at the 49th Parallel (1818)

4. Fort Laramie Treaty (1851)

This Treaty with the US promised land to a number of tribes, including the Dakota.

5. Dakota Uprising (1862)

The Dakota took up arms against encroachment by white settlers on lands that had been promised to them, because the Fort Laramie Treaty wasn't being honoured.

Traditionally, the Dakota, Lakota and Nakota had a Seven Council Fires governance structure. They had their own lands and trade routes, which extended northward into present-day Alberta, Saskatchewan, Manitoba and Ontario.

Following the 1862 uprising, US authorities executed 34 Dakotas after a 5 minute trial and President Lincoln had to intervene to prevent more hangings. Not all Dakotas participated in the uprising, but the US government offered a $25 bounty for every dead Dakota. Bounty hunters didn't bother ascertaining tribal allegiance; they just shot Indians on sight.

With their people's lives in danger, Dakota Chiefs Whitecap, Standing Buffalo and Little Crow decided to lead them to safety into Canada, following their Souris River trade -279- route. They crossed the border bearing their medals and flags and reminded the British of their promises of protection. They knew that the US Cavalry couldn't pursue them because of the promise in the Treaty of Ghent not to invade each other's territory. They initially occupied Southern Saskatchewan and part of Southern Manitoba, all of which was part of their traditional territory.

6. No Treaty (1870s)

When the Canadian authorities began negotiating Treaties to open up the West to settlement, they refused to sign one with the Dakotas, saying that Treaties were only for "British Indians" and that they were US refugees. "We helped create the 49th parallel," said Chief Bear. "How much more of a British Indian can you be than that?"

Chief Whitecap was present at the signature of Treaties 4 in 1874 and 6 in 1876. He wanted to sign a Treaty to avert a US-like future of broken promises for his people, but the Canadian government refused. "This was our territory," said Chief Bear, "so why should they treat it differently?" The government decided to "give" the Dakotas a reserve and Treaty Commissioner French was quoted as saying that they would sign a Treaty later. They never did.

7. Settlement (1878)

The Whitecap Dakota First Nation (WDFN) settled on the lands that would later become their reserve. An Order-in-Council (OIC) was passed in 1873 setting aside 80 acres of land per family of five and saying how Canada would treat them. The OIC specified that more land would be added as needed („‟But that due allowance for inferior land not adapted for Agriculture and provision likewise for some excess over 80 families, should be made – and recommending that a Reserve be set apart for them, to contain about 12,000 acres with the understanding that an additional quantity will be reserved should their actual members require it‟‟.) Chief Bear noted that, with the ensuing population increase, the reserve is now below 80 acres of land per family of five.

8. Reserve Creation (1889)

An initial survey was carried out in 1881. A second survey was carried out in 1889 that both added and took land away from the first.

Land quantum was a problem: WDFN is in the Treaty 6 area, in which other First Nations got 640 acres per family of five, as opposed to 80. Precedents had been set in which Canada had signed treaties with a number of First Nations who had previously had treaties in the United States and they also got 640 acres per family of five. European settlers could immigrate to Canada and get 640 acres per family of five As a result, WDFN ended up with a smaller land base than other First Nations and was disadvantaged from the start with respect to economic development. A claim on Dakota Reconciliation is currently being pursued in this respect.

Land quality was also a problem. Chief Bear explained that "the government always gives the military the worst land and we're right next to the Dundurn military base. The reserve has lots of sand, it's situated in a flood plain and the soil is alkaline. They gave us farming implements, but you couldn't grow anything here."

"We took to ranching," the Chief continued, "because we were great horsemen. At one point our herd included over 500 Herreford and we had access to 10 sections of Crown -280- land. In the 1930s the Natural Resources Transfer Act was passed, those 10 sections were taken away from us and we had to sell off the herd."

"It was never intended that First Nations would become successful," said the Chief, "because settlers didn't want competition. All our work was done by hand, with no mechanization.” The Chief noted that First Nations were left out when the quota system was introduced and quotas were given out for free, most recently in Newfoundland after its entry into Confederation. As we go forward, he argued, First Nations should be allowed free quotas as well.

"The Indian Act was never meant to allow us to be part of the economy. It was meant to segregate us from society. Residential schools took away our youth and our culture. Today there are a lot social ills in First Nations because of the cycle of dependency that was created. First Nations Land Management has allowed us to be part of the economy and create the independence we want for our people."

9. Chief Whitecap Meets John Lake (1882)

John Lake, who wanted to settle a temperance colony, was looking for an administrative centre. He came to see Chief Whitecap, who picked out the location of the future City of Saskatoon. There was nothing there at the time. The settlers came and WDFN helped them survive.

The meeting between Chief Whitecap and John Lake was the start of good neighbourly relations between the WDFN and the City of Saskatoon that endure to this day. A monument was recently erected in Saskatoon to commemorate the meeting at the origin of the city and the people of Saskatoon appreciated WDFN bringing this information about their history to their attention. Today Chief Whitecap is fully recognized as one of the founding fathers of the City of Saskatoon.

10. The Riel Resistance (1885)

Chief Whitecap accompanied some of his young warriors in what used to be called the Northwest Rebellion and has more recently become known as the Riel Resistance. The rebels wanted to attack Saskatoon but Chief Whitecap advised them to leave the temperance colony alone. In the aftermath of the rebellion/resistance, Chief Whitecap was arrested and shackled, but George Willoughby from the settlement of Saskatoon testified on his behalf and he was released. "We were here as a peaceful nation," said Chief Bear.

11. Lost Economic Activity (1930s)

WDFN members were very successful as cattle ranchers, winning first place in cattle shows. Indian Agents wrote about how they were a productive and hardworking community. "We always prided ourselves on being hardworking and keeping busy," said Chief Bear. "All the families had horses and cattle when we were kids, but we never had infrastructure: we had wood stoves and outhouses (the water and sewer plant only opened in 1996)."

Economic activity peaked in the 1930s and then declined after WDFN lost access to the 10 sections of Crown land it had used for grazing.

Chief Bear's grandfather needed a pass to leave the reserve to go get supplies and permits from the Indian Agent for cutting his own wood to keep warm or selling his own -281- livestock or crops. "In a free country, under the Indian Act we lived under a dictatorship that allowed the Indian Agent to control the community,” the Chief said. “We were not allowed to be part of the economy."

12. The Vote and Welfare (1960s)

Indians got the right to vote in 1961 and welfare came soon after. "That was meant to create even more dependence on the government," said Chief Bear, "and it worked. When I became Chief in 1994, the unemployment rate here was more than 70%."

That's changed a lot in the last 16 years. The week before the interview WDFN had issued only eight welfare checks, some for people who can't work. The unemployment rate is now less than 5% "and we're pushing 3%," said the Chief.

13. Series of ATRs (1989-early 1990s)

WDFN wanted to rely on the promise in the 1873 OIC that more land would be added as needed. INAC said "we don't do that any more" and insisted that its Additions to Reserves (ATR) process had to be followed, which "makes it more difficult," according to Chief Bear.

14. Financial Problems (1991)

According to Chief Bear, "to get into economic development you need to first get your own financial house in order and put in place systems of accountability, transparency and good governance," to build confidence among both your membership and outside investors. None of that existed when he was elected to Council in 1991 as a student in the College of Commerce. He almost quit the next day after seeing the state of WDFN's finances: no money, an overdraft at the bank, $250,000 in accounts payable, an annual budget of $800,000 and no policies to manage it. Anybody could make purchases on behalf of the Band and there was no financial reporting. "We were being pushed to the brink of third-party management," said the Chief. "As a poor student, I had more money than my community."

Councillor Bear didn't quit, because he believed that "if you're going to get involved in leadership, you have to accept the challenges that go with it. For us, that meant assessing our debt, putting in place a financial management plan, approaching a bank to consolidate the debt and working with INAC on a remedial management plan to avoid third-party management."

15. Putting the Financial House in Order (1994)

Once elected Chief, Darcy Bear "pushed INAC to fund a professional accountant, because Band Support Funding doesn‟t look at human resource capacity and is purely formula driven. INAC needs to look at the core services a small First Nation needs, a medium First Nation needs and a large First Nation needs. You also need to compensate those professionals for the services they provide, because who‟s going to work for you for half the pay? WDFN is a living example of that. Time and again, First Nations in remedial management or third-party management are there because they can only hire a clerk and you get what you pay for. They‟re limping along because their financial resources are inadequate, so they have no professional capacity, so they have inadequate reporting. How can you make good decisions without good financial information? Minister Flaherty needs good financial information to make good financial decisions and so does every other organisation, whether it‟s a business or a federal, -282- provincial or municipal government." Tony Kuchapski added that INAC should provide funding to First Nations to meet the minimum requirements for professional expertise, not based on a formula. For example, to work in a financial capacity for a municipality in Saskatchewan you need a municipal government diploma.

WDFN‟s accountant put in place formal banking arrangements, monthly financial reports to Council, cheque requisitions, etc. As a result of these and other tools and procedures, WDFN has had 18 years of unqualified annual audits, with budgets that were all either balanced or in surplus. Chief Bear said that the First Nation has paid off all its 1991 debt and is "cumulatively in the black. You can't move forward in any capacity without that. There is an annual presentation of the audit to members and they pass a resolution approving it. Our people are proud to hear we're financially sound."

16. Focussing on Infrastructure (1995)

Having gotten the First Nation's finances under control, Chief Bear started looking at infrastructure. WDFN members were living all over the reserve with individual wells and septic tanks and wanted water treatment.

INAC was pushing members to regroup into a residential sub-division and said it would fund WDFN for a water treatment plant if they did. This implied "a whole different way of living," so Chief and Council sought guidance from the community. The discussion largely turned around the question of "how hard is it to be a neighbour?" Pros and cons were assessed and the community voted to accept INAC's proposal.

INAC approved the plan to build the infrastructure for the sub-division, i.e, roads and water and sewer. WDFN engaged the Canada Mortgage and Housing Corporation (CMHC) to build affordable rental housing under Section 95 of the CMHC Act. Construction started on a water treatment plant, member housing on fully serviced lots and a school.

17. First Steps in Economic Development (late 1990s)

WDFN had turned a corner and started talking about economic development. The first thing they did was to hire a professional land planner to do a land use plan, identifying highest and best use for every part of the reserve.

A designation vote on a head-lease was held in 1999 for the golf course and failed by one vote. A second vote on the head-lease passed because it was held on Election Day. Chief Bear concluded that killing two birds with one stone this way was the best thing to increase turnout and reduce costs.

With its head-lease in place, WDFN moved ahead with the golf course as the first business under its land use plan, but had no capital. Chief Bear wanted the course to respect the features of the land as much as possible and approached a golf course architect, who visited the proposed site and was impressed with its natural beauty. Aboriginal Business Canada and the INAC Major Capital Fund helped out, contributing $1.39 million of the $5 million total project cost in 2000. “The INAC Major Capital Fund worked very well, said Chief Bear. "Too bad INAC stopped it." WDFN got $860,000 for infrastructure, which paid for part of the cost of water and sewer, three-phase electrical power, natural gas and telecommunications. The rest of the project costs were funded through debt financing.

-283- The Canadian Imperial Bank of Commerce charged WDFN and its golf course partners $70,000 to educate them on how a head-lease works under the Indian Act (community vote, Ministerial sign-off and registration in the Indian Lands Registry), and then charged them 2% more in interest than they charged off reserve for similar projects. WDFN therefore wants to go to Toronto to educate the major banks on how the FNLM regime and the WDFN Land Code work. This is very important, not just for WDFN but also for its commercial tenants as it goes forward with its economic development plans.

Residential leases on the WDFN reserve provide for a reviewable 99-year term. Nevertheless, Chief Bear said that "Section 89 of the Indian Act is still a problem because an Indian can't own real property on an Indian reserve. I need to create a corporation to be a homeowner because a corporation is seen as a non-Indian. That‟s a disadvantage other Canadians don‟t have, because of the costs of keeping a corporation alive in the Canadian corporate system. You can go to the bank and get a mortgage. As an Indian, I can‟t do that. I have to incur an extra expense to be a homeowner in my own country and on my own land. Whether it‟s under self-government or not, there should be an option for a First Nation to opt out of Section 89 of the Indian Act to empower our own people to be homeowners. A number of our people have the ability to take out a mortgage but this extra step of creating a corporation deters them."

18. Leasing Provincial Lands (around 2000)

WDFN leased provincial Crown lands abutting the reserve, including accreted lands from the South Saskatchewan River.

19. FNLM (2002)

WDFN passed a Band Council Resolution requesting its admission in the First Nations Land Management regime in 2002 and had its name added to the Schedule to the FNLM Act in 2003. The First Nation saw the potential for economic development and wanted to get out of the Indian Act, which Chief Bear described as "an archaic piece of legislation. FNLMA eliminates 25% of it and gives you self-government over your land, so that made it very attractive to us." In November 2003 the Land Code was approved by 89% of voting members. "FNLM opened up WDFN for business," said Chief Bear. "We've zoned all our land, with development standards in each zone. Community beliefs are important and were reflected in the Land Code, which for example gives Chief and Council authority to enter into 49-year commercial leases with a renewal clause, to grant 99-year residential interests and to do re-zoning. FNLM has done wonders: it‟s opened up the economy and given our people opportunities to become contributing members of our community. It‟s an important part of our whole empowerment strategy of breaking the cycle of dependency."

20. Golf Club Opens (2004)

Following the entry into force of the Land Code, the golf course head-lease and all the other head-leases were replaced with WDFN's own commercial leasehold interest. Ministerial approval, which used to take two to three years to obtain, is no longer required. This represents a great step forward because, as Chief Bear put it, "the Indian Act was never meant for us to be part of the economy."

21. Real Property Tax By-law (2004)

The exercise of taxation powers under Section 83 of the Indian Act was important because "we were able to start to act like a government," said Chief Bear. “We want to -284- attract business, so we have to be very seamless with businesses around us. For example, the University of Saskatchewan has issued 49-year commercial leasehold interests in land to which it holds title under big-box stores at Preston Crossing. We contract the provincial government to do our assessments, so we give our tax notices and apply our mill-rate, just like the City of Saskatoon. Business sees a regime they‟re used to, because it‟s practically harmonized with surrounding jurisdictions.”

22. Awards (2005-2007)

In 2005 the Dakota Dunes Golf Course won Golf Digest's Best New Course in Canada Award. That same year the golf course won the Saskatchewan Tourism Business of the Year Award, the Federation of Saskatchewan Indian Nations' Circle of Honour Award and the Saskatoon Business Excellence (SABEX) Business of the Year Award. In 2007 WDFN won the Canadian Association of Native Development Officers' Economic Developer of the Year Award.

23. Casino Opens (2007)

Construction had begun two years earlier, following the rejection of a plebiscite on whether a casino should be allowed to open within the city limits of Saskatoon. That was the preferred option of the Saskatoon Tribal Council, whose Plan B was to open the casino on the WDFN reserve. In Chief Bear's view, "we would not have been able to have the casino here if it hadn't been for FNLM, given the delays inherent in the Indian Act and the federal government's reluctance when it comes to gaming. We also had to renegotiate part of the golf course lease to site the casino, which is another thing we couldn't have done under the old system because of delays."

24. New Water Treatment Plant Opens (2007)

WDFN had to open up a water utility corporation to provide potable water to all its commercial tenants, which it does by operating a reverse osmosis plant. The water is metered and the corporation is self-sustaining and profit-making. The community water plant, built in 1996, is currently being upgraded to reverse osmosis. WDFN has certified Level 2 operators in both plants.

25. Second Generation Land Code (2009)

After six years of operating under its 2003 Land Code, WDFN held a successful referendum on amendments to it. Technical changes had been requested by lending institutions and CMHC, some of them related to CMHC‟s mortgage insurance, to provide more comfort to lenders in case of default.

26. Infrastructure Financing Issues (Ongoing)

After putting in a $60 million casino facility, a stable government, land management authority under FNLM and a real property tax bylaw, WDFN invested another $12 million in more infrastructure (water, sewer, storm water drainage, high speed internet, telecommunications, roads, street lighting and three-phase power), bearing in mind the need to overbuild to allow for future business development. Since the federal government only gave $2 million, the First Nation had to raise the other $10 million and put in place a Development Cost Charge (DCC) Agreement with the Casino in 2005 to contribute to doing so. The Casino paid the DCC and WDFN debt financed the rest, guaranteed by the real property revenue stream.

-285- "These are 50 to 70 year assets," said Chief Bear, "but we have to pay them off after 12 years because that's what the lenders demand. This creates a cash flow issue and those funds could be better used for other purposes. This disproportionately crowds out our revenue streams. We need the banks to understand." While the First Nations Finance Authority offers a potential solution to these problems, it won't be ready for another three years, as Chief Bear understands it. WDFN can't wait that long and wants assistance and recognition from the federal government to access the bond market if it meets the criteria for doing so. “We need to have the same ability as towns and cities to go to the bond market to raise money for infrastructure,” said Chief Bear. “We need to work together to set up a system that works for First Nations with a solid revenue stream.”

B. The main factors that contributed positively to Whitecap Dakota's reserve land management, the first two of which are the most important and the next seven of which are of lesser but equal importance

1. Governance

"Without good governance, you're going nowhere," said Chief Bear. Among other things, that means political stability, what kind of laws you have and the availability of redress. As an example of the latter, the provincial government does of all WDFN's tax assessments and there's an appeal process. As a result of all the good governance measures WDFN has put in place, "going from one jurisdiction to the next is seamless," according to Chief Bear.

Capitalizing on the investor confidence that this kind of seamlessness generates, WDFN has commissioned a feasibility study for a high technology business park, with financial support from Western Economic Diversification. Lockheed Martin and Boeing publicly expressed interest in the project in 2009, following which eight other companies from Saskatoon called to say they wanted to move their operation to WDFN lands.

The First Nation has a high degree of control over this positive factor of its reserve land management.

2. Accountability and Transparency

"Without accountability and transparency, you have no credibility," said Chief Bear, "and it takes a bit of time to build that kind of reputation."

The First Nation has a high degree of control over this positive factor of its reserve land management.

3. Land Use Plan

"You need to know what you have," said Chief Bear. "Are you close to a highway, a railroad or a body of water? What are the highest and best uses for your reserve land? Are you close to an urban center?", he asked, recalling that Chief Whitecap planted the seeds for what became the City of Saskatoon.

The First Nation has a high degree of control over this positive factor of its reserve land management.

4. Education

-286- "How can you make good decisions without an educated community?", Chief Bear asked. "You need to focus on youth retention and get them to stay in school, because they're your future. There's no better role model than Mom and Dad getting up every day to go to work. We're now seeing peer pressure among our kids, who ask each other: why aren't you working or going to school? You need to assess the skills and needs of your people, because an educated labour force is a huge asset."

The First Nation has a high degree of control over this positive factor of its reserve land management.

5. Partnerships

"We don't work in isolation," said Chief Bear. "To move things forward, you have to work with those around you."

WDFN worked with the City of Saskatoon, four regional municipalities and two towns to create the Chief Whitecap Trail, a tourism corridor project that extends from Saskatoon to Lake Diefenbaker, which "shows we can all create opportunity together," according to Chief Bear. "There are 1.4 million visitors a year to our casino. If ten percent of them went to visit Lake Diefenbaker, that's 140,000 people. Looking for tourism and recreational opportunities starts to diversify the economy of rural Saskatchewan, and all goods and services that tourists purchase are in urban centres, so we all win by working together, all along the Trail. We can create a win-win by not working in isolation."

WDFN also has a partnership for fire protection with the City of Saskatoon, which provides all training and back-up service for any fire in the community. A joint communications system enables fire trucks to turn around in case of need and that‟s happened. The City of Saskatoon‟s first First Nation firefighter was on the first page of the Star Phoenix newspaper for saving a life on his first call. “This is the kind of role model our kids need to see,” said Chief Bear.

WDFN has another partnership with the Saskatoon Public School Division for grades 7 to 12 (kinder garden to grade 6 students stay on the reserve) and a Student Counsellor ensures a smooth transition for the seventh graders.

WDFN is involved in Water Wolf, a new organisation formed by a group of municipalities that is starting up in Saskatchewan for the environmental protection of river lands.

WDFN has an employment partnership with the Saskatchewan Institute of Technology and the Saskatchewan Construction Careers Program, through which it obtained 40,000 First Nation man-hours of work on its $60 million casino construction project, which was delivered ahead of schedule and under budget. Several members from WDFN and other First Nations who got their first construction work experience on that project are now in their second and third year of apprenticeship.

Thanks to its partnership with the Saskatchewan Department of Finance, WDFN became the first First Nation in Canada to occupy a provincial consumption tax. Under the agreement signed by the Chief and the provincial Minister of Finance, the Whitecap Dakota Liquor Consumption Fee replaces the Provincial Liquor Consumption Tax in a status-blind way (i.e., it applies to both First Nation members and non-members on reserve). Under a similar partnership with the federal Department of Finance, the Whitecap Dakota Community Improvement Fee replaces the Goods and Services Tax. These taxes are respectively collected by the provincial and federal governments and remitted monthly to Whitecap Dakota's account, subject to settlement at year end. -287-

The First Nation has a high degree of control over this positive factor of its reserve land management.

6. Land Management Capacity

Participation in the FNLM regime allowed a WDFN staff member to take the Professional Lands Management Training Program, which was helpful.

The First Nation has a medium degree of control over this positive factor of its reserve land management, because of scarce government resources.

7. Human Resource Policies

For example, WDFN has a salary grid and its employees have pensions and other benefits.

The First Nation has a high degree of control over this positive factor of its reserve land management.

8. Economic Development Grants

An economic development grant from INAC contributed to getting the golf course off the ground and it was a big help. “Without that $1.3 million,” said Chief Bear, “the Dakota Dunes Golf Course probably never would have gone forward, we never would have had the Casino and we never would have attracted businesses‟ attention. It‟s too bad it was cut, because First Nations need access to seed money.“

The First Nation has no control over this positive factor of its reserve land management.

9. Looking at Best Practices in Other First Nations

WDFN didn't want to reinvent the wheel, so its representatives toured successful First Nations, looking at their best practices, including their mistakes and successes, bringing them home and adapting them to WDFN's needs.

The First Nation has a medium degree of control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Whitecap Dakota's reserve land management, the first two of which are the most important and the next four of which are of lesser but equal importance

1. Lack of Environmental Protection and Enforcement on Reserve

"There is a maximum penalty of $1,000 dollars under the Indian Act to contaminate our land," said Chief Bear, “with no ability to litigate reclamation with the perpetrator of the crime, so there‟s no environmental protection for the land. Provincial legislation has teeth and allows holding the violator responsible for all clean-up and reclamation. In the absence of a federal First Nations Environmental Act, one possibility is working with the province to utilize their laws as an interim solution."

The First Nation has no control over this negative factor of its reserve land management.

-288- 2. Lack of Understanding by Banks of Reserve Land Management

This factor applies under both the Indian Act and the FNLM regime and explains why all of the First Nations' loans are now with Credit Unions or the Peace Hills Trust (PHT), not the major banks (WDFN got PHT to buy out its loan with the CIBC).

The First Nation has a medium degree of control over this negative factor of its reserve land management.

3. Indian Act Section 89

The fact that an Indian's property on reserve can't be seized means that an Indian has to create a corporation to own a home on reserve. There should be an option for a First Nation to opt out of Section 89 to enable its members to be homeowners without this extra step.

The First Nation has no control over this negative factor of its reserve land management.

4. Lack of Resources from INAC

"Developing infrastructure or land are huge expenses," said Chief Bear. "INAC's formula-based funding only pays for a registry and a land officer, not the actual cost of land management, such as surveys, appraisals, by-laws and capital building projects.” INAC should also provide funding to First Nations to meet the minimum requirements for professional expertise, not based on a formula.

The First Nation has no control over this negative factor of its reserve land management.

5. Lack of INAC Funding for GIS Capacity

"As we continue to urbanize, it‟s very important for us to know what‟s under the ground,” said Chief Bear. “Not just our own infrastructure, but that of others as well, so if a water main breaks we know where it is. We asked for a pilot project, but INAC said nobody else is asking for it. We‟re operating with businesses and we need to have this."

The First Nation has no control over this negative factor of its reserve land management.

6. Lack of Federal Support on Erosion and Accretion

Erosion and accretion occur as the South Saskatchewan River shifts. Federal policy says the reserve loses eroded land and benefits from accreted land, but provincial policy says accreted land accrues to the Province. "Federal policy should supersede provincial policy," said Chief Bear. "We need to get the feds to take on the Province as part of their fiduciary duty.“

The First Nation has no control over this negative factor of its reserve land management.

D) Whitecap Dakota's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Whitecap Dakota assesses its success as a 4. -289-

2. Success in using its reserve land for economic development purposes

Whitecap Dakota assesses its success as a 4.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Whitecap Dakota assesses its success as a 1.

4. Success in using its reserve land with tools and procedures not provided by the Indian Act

Whitecap Dakota assesses its success at 4.5.

5. Whitecap Dakota's priorities for the management of its reserve and other land over the next five years

i) Conclude a tripartite Environmental Management Agreement (EMA) with Canada and Saskatchewan

ii) Make our Land Code better and stronger as we move forward to almost mirror fee simple lands

iii) Gaining more control over our fee simple lands. First Nations should have the power to annex or buy Rural Municipality land and pay them compensation consistent with whatever towns and cities are paying when they annex land. We own about 1,100 acres adjacent to the community. Why can't we annex that land, just like a city or town, and, once annexed, it would remain fee simple land under the jurisdiction of the WDFN government? People occupying those lands would pay taxes to us and our laws would apply to them. Our laws would be similar to those of neighbouring jurisdictions, with which they would be harmonized. That would be expanding both our land base and our jurisdiction.

iv) A Master Plan for the resort community we want to build in and around the golf course. There are currently 600 jobs in the community, 400 of which are filled by people who commute daily. Of those 400, 330 would like to live here, which is the impetus for building rental properties. We're building a 49 unit sub-division for which the infrastructure has just been put in. The sub-division will also include three apartment buildings with a total of 85 units, which will be a first step in meeting staff housing needs. If that phase goes good, there'll be a second and a third phase, because we want to be sure both the apartments and the single-family units will sell before we commit to building more.

v) Part of the Master Plan will be looking at the river and the possibility of passive recreational uses that will have a light environmental footprint and leave it natural, like trails for bird-watching, horseback riding and cross- country skiing.

vi) Complete the high technology industrial park feasibility study and, if it's feasible, move forward with construction for our two key tenants and the other eight who have expressed interest. This would add a -290- manufacturing sector to the WDFN economy, which would no longer be just tourism and gaming.

vii) Continue discussions with the Province to buy more provincial Crown lands

viii) Buy any fee simple land in our area that becomes available

ix) Conclude a land swap with a neighbouring farmer involving two quarter sections each one of us owns that are not prime for us but are for the other

E) Whitecap Dakota’s Recommendations

i) Good governance, transparency, accountability and communications are key. In order for the community to support new initiatives, they must be informed. Policy belongs to the community, so make sure they are involved in policy development.

ii) Strategize. Do a SWOT (Strengths, Weaknesses, Opportunities and Threats) analysis on the overall organization of your community and build an action plan from there on how you address each area.

iii) Bring in a professional land developer to develop a Land Use Plan, in cooperation with the community to ensure its values and objectives are respected, e.g., by identifying areas for development that will not intrude on the daily lives of community members.

iv) Look at zoning. Identify residential, agricultural, commercial and specially protected areas, in cooperation with the community.

v) Using the previously mentioned information, look at the pros and cons of staying under the Indian Act or going under FNLM to manage your own land, including issuing your own leases, etc., without seeking approval from the Minister of Indian Affairs.

vi) If you decide to become self-governing with respect to your lands, build your human resource capacity with the necessary software (i.e., GIS technology, land registry and data base), network with financial institutions and educate the local business community. All this is necessary and doesn‟t happen overnight.

vii) Once you have marketable land (under either an Indian Act head-lease or FNLM), you need infrastructure, i.e., water and sewer, three-phase electrical power, gas, roads and telecommunications, including high speed internet.

viii) Hire qualified and certified people to run your water and sewer system

-291- ix) Economic development should be driven by profit. As profit is attained, it will sustain the employment generated.

x) Hire the best people to run your businesses to ensure that the #1 goal of profit is attained

xi) Implement apprenticeship, mentoring and job shadowing programs to build up your internal capacity over time

xii) Evaluate economic development opportunities carefully, using a rigorous screening process as required

xiii) Reinvest your profits back into further economic development opportunities, as opposed to per capita distribution. This will create more employment opportunities.

xiv) Stress the importance of education and deliver certified education and training programs to give your members the human resource skills to become employable and contributing citizens, and to increase their quality of life.

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management:

i) Reinstate a grant program for major economic development projects, because First Nations lack capital and need seed money. The program criteria should require the First Nation to put in its proportionate share, to ensure that risk is shared and due diligence is performed.

ii) Increase the Rolling 30 (i.e, 30 First Nations developing a Land Code at any one time) in the FNLM regime, because it's not enough. Provide adequate resources to ensure that First Nations who have the capacity to move under that regime receive adequate funding. FNLM opens up First Nations for economic development. Attracting business to your land creates employment, hope and opportunity for community members. FNLM is a good investment because it allows First Nations to be a part of the economy and contribute to Canada‟s GDP.

iii) We need an infrastructure program for First Nations. We're still in the infancy of opening our communities for business. Towns and cities in Canada have had 100 years to develop. We need an initial injection of resources for infrastructure.

iv) On bond markets, look at ways and means of assisting First Nations in accessing long term financing at competitive rates. To do so First Nations would have to meet certain criteria, such as fiscal responsibility, unqualified audits, competent management and good governance.

v) Explore the opportunity for First Nations to receive free quotas for eggs, poultry and dairy

vi) Create an opportunity for First Nations to opt out of Section 89 of the Indian Act to allow First Nation people to own their own -292- vii) Honour your obligation under the Framework Agreement on FNLM to fund Environmental Management Agreements viii) Put in place a new program for the GIS mapping of First Nations infrastructure ix) Resolve the conflict between federal and provincial policies on erosion and accretion

Approved by Chief Darcy Bear October 25, 2010 -293- WHITEFISH LAKE FIRST NATION

STATISTICAL INFORMATION

Location 20 km from Suddbury, in the province of Ontario, the nearest service centre to which it has year-round road access, Zone 1, i.e., urban

Population 402 members (40%) on reserve, 626 members (60%) off reserve, total 1, 028 25 non-member residents on reserve

Reserve land 17,704.50 hectares (43,748.77 acres), one reserve, lakefront, woodland with rock outcrops

Reserve land management legislative and regulatory framework First Nations Lands Management

Reserve land management staff membership in a professional association National Aboriginal Land Managers Association

Property taxes No

Community Well-Being Index* 78

Parcel Fabric Index** 98

Active registered transactions 291 active transactions registered in the Indian Lands Registry (ILR), the First Nations Lands Registry (FNLR) or the Self-Governing First Nations Lands Registry (SGFNLR) from 1999 to 2009

Active registered Certificates of Possession (CPs) 169 active CPs registered in the ILR, the FNLR or the SGFNLR as of March 9, 2010

DISTRIBUTION OF LAND USE PATTERNS

96% 3%

Certificates of Possession 1% Unregistered Band Use

1% Lands 3% Unused Band Lands 96%

-295- WHITEFISH LAKE FIRST NATION

INTERVIEW REPORT

September 3, 2010, 9:00 to 10:45 AM

Chief Steve Miller John Vallely, Councillor

A) Whitefish Lake's Reserve Land Management Experience

The following 9 key events or periods were identified.

1. Establishment at Whitefish Lake (late 1800s-early 1900s)

Whitefish Lake First Nation (WLFN) was not always situated in its current location. The Atikameksheng Anishnawbek (which means "people where the whitefish are") were nomadic, living off the land and using waterways for travel. Their main village and strategic hub was situated on the shores of Panache Lake, but they occupied a vast traditional territory, which they used for its maple stands, hunting, fishing and medicine picking.

With the arrival of colonisation, the Atikameksheng Anishnawbek moved north to congregate on Whitefish Lake, probably because of the fur trade, since a Hudson's Bay Company (HBC) trading post was set up there. The CP rail line was also built around that time.

2. Move to Naughton (1920s and 1930s)

The HBC trading post moved from its original location on Whitefish Lake to a site across the train station in Naughton. WLFN moved again to follow its trade partners, this time to its current location. This moved benefitted the First Nation by ensuring the continuing convenience of trade.

3. Housing Development (1950s and 1960s)

Following the 1951 amendments to the Indian Act, WLFN fell under the Indian Act model of governance and housing development started to happen for members. Ten to 15 houses were built, most of which are still standing because they were built well.

WLFN was operating under the Indian Agent regime. Chief and Council were a comfort for the people, but still very restricted as to what they could and couldn't do, all of which was dictated by the Indian Act.

There wasn't too much economic activity at the time. Logging became the main activity after the fur trade died. Quite a few members were employed in housing when it started and then moved to operating machinery. There was also a little bit of employment through gravel extraction, such as truck driving.

4. Cottage Leases (1950s)

INAC leased Band land lots at Panache Lake to cottagers as a revenue source to WLFN. This was the first use of its reserve land for economic development purposes.

-296- 5. Exploring Other Economic Development Opportunities (late 1970s-early 1980s)

Chief and Council started to explore partnership opportunities and individual business opportunities for Band members, and hired WLFN's first Economic Development Officer (EDO). Logging operations expanded and Chief and Council supported individual members in buying equipment.

Logging partnerships with other First Nations led to the creation of two corporations. Through the Swakomok Forestry Company, five First Nations co-owned an EDO. The North Shore Tribal Council, composed of seven First Nations on the north shore of Georgian Bay and Lake Huron, created the Robinson Huron Forestry Company. Both companies were formed to explore forestry opportunities in the traditional territory of the First Nation parties to the 1850 Robinson Huron Treaty.

6. Increase in Personal Businesses (1990s to the present)

A first gas station and convenience store opened in the early 1990s and another six convenience stores followed, for a total of seven today.

7. Industrial Park and First Nations Land Management (1998-2008)

In 1992-1993, WLFN‟s Economic Development Committee developed the idea of an industrial park. Steve Miller, who was a member of that Committee, was elected to Council in 1998 and pursued the idea. In 2001 a feasibility study, preliminary drawings and surveys were funded by Fednor and INAC.

The industrial park concept was presented to the community, which had a lot of questions about designating reserve lands and leases to non-members. There was concern once members found out that the First Nation had to surrender or designate the land to enable the creation of the industrial park. This concern arose because INAC controlled the leases at Panache Lake and WLFN had minimal say over that activity, so the First Nation wanted more control over what happened on its reserve land.

WLFN's decision to consider moving under the First Nations Land Management (FNLM) regime was therefore initiated by the confusion and uncertainty about how INAC went about designating land for leasing. INAC made up the lease agreements and determined the rental rates and all other terms of the leases, with very minimal consultation of Chief and Council, whose role was limited to passing a formal Band Council Resolution (BCR). Chief Miller explained that "the Indian Act was so boxed in, it didn't give us any leeway because it tells us what we can and cannot do, so FNLM was looked at."

Chief and Council met with other First Nations under FNLM, such as Nipissing. Following these meetings, Chief Miller made presentations on the FNLM regime to the membership and recommended it. Community consultations were held and "we saw that we could get more control over our lands." The initiation of the industrial park was put on hold and a BCR was passed in 2002 seeking entry into the FNLM regime.

After years of developing the Land Code and community processes, a vote was held in 2008 and the Land Code and Individual Transfer Agreement passed the first time, "because we really communicated the advantages and disadvantages to the community and gave them a balanced view. As a result, the community was well informed and could see the growth opportunities."

-297- 8. Atikameksheng Anishnawbek Boundary Claim Negotiating Team Created (2008)

AABCNT was set up following the Supreme Court of Canada's decisions on the duty to consult and accomodate. It sits down with companies interested in setting up mining, aggregate development and other natural resource businesses in WLFN's traditional territory. Companies have been very accomodating in talking about their interests on the land and want to cooperate to make their business a success with the help of First Nations. "So it's not just about knowing what's going on out there," said Chief Miller, "it's about business opportunities and partnerships."

The Chief described this effort as still "in the infant stage." WLFN got funding from the Province for a full-time secretary for the team, which is comprised of Council and community members, but its goal is to generate revenues to support a full department. Policies and procedures also need to be established. "Somewhere down the line, we would like the Land Code to encompass the traditional territory," the Chief said.

9. New Lease Agreement and Other Opportunities under the Land Code (2010)

A new lease agreement with the Panache Lake cottagers was developed. The leases were up for renewal in 2009 and it took a year to develop the lease and talk to the cottagers about its impact. WLFN proposed a 25 year term, because the Land Code stipulates that no leases for more than 25 years can be entered into without a community vote.

The Land Code opens many opportunities that are still in their infancy, like the creation of a Natural Resources Department. WLFN has hired an intern to look at hunting, fishing, waterways and the waters themselves for hydro-electric power generation. The Land Code creates a new Land Department and WLFN's organisational structure has changed twice in the last year. The most recent version was approved by Chief and Council in the spring of 2010. It includes a Natural Resources Intern, a Natural Resources Coordinator and a Lands Manager, responsible for both the development and implementation of the Land Code. The Lands Department used to include Membership Registration, but the two are now separate because the Lands function is more important.

WLFN is looking for economic development opportunities for its membership through its future industrial park, which is regulated by the Land Code. "We need to update the industrial park files, including the feasibility study, and we'll see what direction that takes us in," said Chief Miller. "We're looking at passing zoning by-laws as provided by the Land Code, because members tend to set up businesses in their homes and we're hoping that will stop, but we need to get their consent."

B) The main factors that contributed positively to Whitefish Lake's reserve land management, in declining order of importance

1. Panache Lake Lots Leased by INAC in the 1950s

This generated revenues that were deposited in WLFN's trust account and distributed as needed by Chief and Council for things like well built houses, logging equipment for members and road and other public works to start developing infrastructure.

The First Nation has minimal control over this positive factor of its reserve land management.

-298- 2. Proximity to Sudbury

This allows members to benefit from employment off reserve, as well as local services, education and telephone and other communications technologies.

The First Nation has minimal control over this positive factor of its reserve land management.

C) The main factors that contributed negatively to Whitefish Lake's reserve land management, in declining order of importance

1. The Indian Act

The Indian Act tells First Nations what they can and cannot do. For example, sales of natural resources are controlled by INAC, it's hard to follow the specific processes for the development of reserve land and the concept of reserve land not being owned by the First Nation is problematic.

The First Nation has no control over this negative factor of its reserve land management.

2. Proximity to Sudbury

WLFN can't compete with the attractiveness of wages in Sudbury. For example, if a job pays $10 an hour in town, FLFN may only be able to pay $6, so it's hard to keep members on reserve and working for the community.

Education is also a double-edged sword, according to Chief Miller: "We didn't have our own school, so we transported our children off reserve, which contributed to the loss of language and culture. Our members also went to residential schools in Spanish and North Bay. We had one classroom here in the 1950s, but it closed in the 1960s because of the need to fund the Lady of Fatima School in Naughton."

The First Nation has minimal control over this negative factor of its reserve land management.

D) Whitefish Lake's Current Situation and Future Directions

This section measures success on a scale of 0 to 5.

1. Success in using its reserve land for community control purposes

Whitefish Lake assesses its success as a 3.

2. Success in using its reserve land for economic development purposes

Whitefish Lake assesses its success as a 2.

3. Success in using its reserve land with tools and procedures provided by the Indian Act

Whitefish Lake assesses its success as a 3, because Certificates of Possession provide a benefit through individual businesses.

4. Success in using its reserve land with tools and procedures not provided by the -299- Indian Act

Whitefish Lake assesses its success as a 3.

5. Whitefish Lake's priorities for the management of its reserve land over the next five years

i) Complete construction of a new community sub-division that began in March 2010 and will provide housing for members. Planning for this sub- division began in 2002 because WLFN's main village is land-locked by swamps, rock and mountains. Investigation of where to develop another sub-division led to the adoption of a BCR in 2005 designating the Whitefish Lake Hill site, not very far from the main village. The first step will consist of 23 lots for single-family dwellings. The next step will add 18 more lots.

ii) Complete the updating of the 2001 industrial park feasibility study

iii) Sign cottage lot leases on Panache Lake

iv) Support Band member initiatives. There is currently a lot of interest in tourism partnerships, including with the City of Sudbury.

E) Whitefish Lake's Recommendations

i) Either investigate or contemplate the possibility of moving out from under the Indian Act and developing your own laws on First Nation land. You can negotiate with the Canadian government on what part of the Indian Act you want to move out from under, because the Canadian government sees First Nations as capable of moving out from under that control and setting up their own futures. FNLM is an example of how to do this and a key factor is stepping back and looking at the potential.

ii) Communicate with your community. You have to make sure the correct information is provided so they can take informed decisions on where they'd like to see themselves. It hasn't been easy, because there will always be a group of people who understand and a group of people who are opposed. It's very challenging to bring them to see the benefits of a proposed new direction if you don't have that public communication. There's lots of resistance to change and some people don't see the need to change for future generations.

iii) Your financial capacity has to be assessed and strengthened. Government funds are restricted in their uses. First Nation development services are sometimes at a minimum capacity, so they need to be topped up with own source revenues (OSR). These revenues are often stretched to the limit, so present evidence to the government showing that funding is inadequate to provide services to members. If INAC can provide more for services to members, the First Nation can use its OSR for economic development. We've been successful in going after both -300- federal and provincial governments to make our case for additional resources for services to members.

iv) You need strong leadership that is dedicated and informed about First Nation issues. First Nation leadership is not always comparable to mainstream leadership, for example with respect to education, such as knowing how to negotiate and set up meetings. That type of understanding has to be a main factor for moving forward. Chief and Council need to find the resources to educate themselves on the political aspects of governance.

2. To be acted upon by the Government of Canada over the next five years to meet its commitment to modernize reserve land management

i) More investment in infrastructure, such as buildings to house the Lands Department. Many First Nations have inadequate buildings, poor services, including no high speed Internet and no cell phone service, and lots of difficulties.

We're not looking for a handout, we're looking for an obligation to be fulfilled. We wouldn't be having this conversation if Treaty obligations were being met, and you wouldn't be flying all over the country.

Governments in general (federal, provincial and First Nations) are always offering services to their members at a minimal level. For example, a new hospital opened in Sudbury last year, but we don't have doctors, we're still waiting in line and nothing's changed, so we need to provide a service that's adequate for the need.

Education is our biggest concern. We always ran a deficit and funded it from our OSR, though education falls under the 1850 Robinson Huron Treaty. Services to members are there, but they're running at maybe 60% of what they should be. Our education deficit affects everything else. For example, we need a new building but we can't afford it because Treaty obligations aren't being fulfilled.

Approved by Chief Steve Miller October 13, 2010