Andrew Beynon, Additions-to-Reserve,Ep.58

Andrew Beynon is on a mission to support Land Code First Nations who want to overhaul Canada's flawed Additions-to-Reserve process.

Mandated by Lands Advisory Board leadership, Beynon is working through layers of provincial and federal contacts to impress upon them the economic value of Nations moving more quickly to add lands to their reserve base.

The system can be painfully show, often taking years, if not decades, to add land that would drastically improve a Nation's economic development, environmental stewardship and cultural protection.

If you would like to support our efforts by taking part in case studies proving the economic value of a better ATR process, please contact Andrew (email below.)

LINKS:

Andrew Beynon's email: andrew.beynon@labrc.com

First Nations Land Management Resource Centre

Transcript

SPEAKER_02: 0:00

Andrew, let me start with a quote. Additions to reserve, or ATRs, Canada's process of allowing land to be added to a First Nations reserve land base, it can be a long, frustrating, and inefficient process. Your take on that?

SPEAKER_00: 0:16

I would agree that there's unbelievable levels of frustration from First Nations and First Nation leadership over this process. terribly slow process for adding lands to reserve. Typically, people are talking about three to five years or much worse, sometimes decades, to get the job done. It's not just a frustration over a slow process. A lot of things involving the government are slow. The problem with additions to reserve is that it's harmful delays because First Nations are not in a position to move at the speed of business on ATRs land code First Nations can move at the speed of business on everything else. And when you can't move at the speed of business and the process is out of your control, you lose economic opportunities. The critical reason that leadership is pushing us so hard and rightfully so to replace the additions to reserve process is because of the harm that it causes.

SPEAKER_02: 1:18

Is this something that can eventually be overtaken or consumed by First Nations themselves and managed by them? We're

SPEAKER_00: 1:28

actually proposing to Canada two steps. One, that we take some beginning steps where there would be a First Nation organization having a much greater degree of responsibility for executing the process. We can do it faster. We'll have to see after the federal election whether there's traction for what would really be the the biggest change to the process and one that we're convinced would make the biggest difference is maybe the time has come for Canada no longer to make the decision on whether to add lands to reserve. I will say, I've said it On the public record, I'm inspired by experience that I had over the years with the evolution of First Nation authority over taxation laws. And just briefly, when I was a young man so many years ago in the Federal Department of Justice, I used to provide the legal advice to the minister's office on whether to accept or disallow a First Nations taxation bylaw under the Indian Act. And after a while, there was a newly created Indian Taxation Advisory Board, ITAB. They also became an advisor to the minister, should we accept or reject a proposed bylaw. So for a while, we were the twin advisors to the minister. And eventually, I was told, from now on, the minister is going to rely exclusively on the advice from the Indian Taxation Advisory Board. thanks for doing your work, but you don't need to do it anymore, which was fine. And then many years later, I was involved with working with the Indian Taxation Advisory Board and others, and it eventually led to the creation of the First Nations Tax Commission. And the tax commission, as you may know, They make the decisions in respect of taxation laws. Under the right conditions, you can have an approved taxation law. And it doesn't go to the minister or to Canada anymore. That's a revolutionary change on taxation, and it seems to me that I'm hoping after the election that the incoming government realizes instead of having Canada's worst land acquisition process that, as you said from your question, is unbelievably frustrating but is also causing economic harm, missed economic opportunities, make the real change decision to have somebody other than Canada make the decision on these additions to reserve.

SPEAKER_02: 4:12

Yeah. We've spoken to leaders today from Chiatkin, Mississauga, and Member 2, and there's a common theme in that we don't have the land we need to expand, whether it be for economic or social or cultural reasons, and it's killing their chances by being held up, and they can't go at the speed of business.

SPEAKER_00: 4:33

Yeah. Yeah. It's interesting that That's not just one First Nation, you're hearing from three examples, but I hear it all across the country. I think it has several dimensions. Canada's history of reserve creation, if you go back in time, there were promises made in the treaties to set aside lands as reserves, and there was a practice across the country of doing it. Two things happened, and this is 100 years ago or more. One, sometimes Canada didn't live up to its promises even to set aside the amount of reserves that they said they would, creating treaty land entitlement, or perhaps even worse, there were times where Canada set aside some land, but then either took it all back and moved First Nations onto more marginal land or cut off lands from reserve. There was a tendency to take up the reserve lands for purposes other than the First Nations to whom they were reserved. So if you look back at the history, 20th century in particular, even up until now, very often First Nations have overcrowded or marginal lands that are not in the good locations for economic activity. The third failing of the additions to reserve process is that it's too slow and it's preventing First Nations from seizing upon economic opportunities and overcoming the legacy of the past. So now is a time when I think more and more Canadians are paying attention to the economy. And one of the things that we've been trying to say This is an important issue to First Nations, but for those who are interested in trying to create a stronger Canadian economy, we take the position, I think justifiably based on the success of land code First Nations, that when you add lands to reserve, especially for First Nations with land code authority, you're increasing economic opportunities for everyone. It is not the creation of new liabilities for Canada.

SPEAKER_02: 6:47

It's interesting to hear one example from Jatkin where they went out and bought land for I think$23 million because it was an opportunity and you have to strike at the speed of business, but then they have to go through the ATR process to attach that to a reserve.

SPEAKER_00: 7:03

I think, you know, I've spoken with Chief Derek Epp on that many times. If he could count on a process that had deadlines and that could deliver on its promises for a relatively quick decision-making process, he wouldn't be facing what he faced of taking the risk of acquiring lands with no idea as to whether or not that would take six months or six years to add to reserve. And you know, there are some land code First Nations who in the past, when they were under Indian Act land management, they had economic opportunities because of the good reputation of the First Nations. And when Developers said, OK, we would like to work with you. How long is it going to take to finalize a lease? Can't answer that question. It depends on the federal department on Canada. Business leaders walk away. So it's not that you're suffering the frustration of delays. That's an example of losing an economic opportunity. I'd like to see a situation going forward where on additions to reserve, there's a known timeframe and conditions at the front end. Under these conditions, you would have land added to reserve either X days or Y days, a predictable timeframe. If there's a predictable timeframe, then you can attract business investment and financial investment at the front end, right? That would make, I think, a huge difference in terms of

SPEAKER_02: 8:38

economic opportunities. It's interesting to see from a high level, many pieces fit together. The tax code you mentioned, the registry that's being developed now and which you're playing a big part in. the ATR thing, and it all seems to be part of the puzzle to solve and to create economic opportunity or growth of some other fashion, which should be a win-win, right? Not only for nations, but surrounding areas, provinces.

SPEAKER_00: 9:07

Yes, I agree strongly with that observation. It's interesting. The Lands Advisory Board, based on interactions with leadership, has three priorities. Improving enforcement of laws, replacing the addition to reserve process, and building the new First Nation registry, First Nation-led land registry. I think the economic value of an effective, accurate, modern registry is pretty obvious. The land acquisition process, if it can be made to be speedy and reliable, the economic contribution I think is also obvious. We've said partly that fixing enforcement is actually an economic tool. I'll give you a quick example. Imagine if you were considering investing in a business within a small retail complex on First Nation land. What if we told you, okay, you can't be sure that if the business next door to you illegally dumps things or carries on illegal activities or fails to comply with any fire codes, that anybody's going to be able to enforce that and stop it. you're going to think twice about investing in that business. So with some of the federal political parties now, I think they're getting that understanding that everything we're driving at could create better economic circumstances. I'll just quickly add, not everything is about business, right? For land code First Nations, resuming their governance authority over lands can have vital cultural purposes or they can be traditionally important lands to the community. But We still think that even as you rectify that, if you don't address the economic opportunities and create the toolkit that Chief Derek Epp spoke of, then you're doing a disservice to First Nations and the Canadian public in terms of the economy.

SPEAKER_02: 11:08

Yeah, in fact, yesterday we met with Chief Kelly LaRocca at Scugog Island First Nation, and she said culture was their number one reason for wanting to add to the land base because they were stuck in this... marshy area that isn't great for agriculture or other purposes, but yeah, language retention and culture. It doesn't have to be about having a gas station on the reserve. That's right.

SPEAKER_00: 11:31

But even if it is, or perhaps even especially if it's for cultural purposes, very often in those cases, there's no objections from neighboring communities to what may have been a former burial site for a First Nation or culturally important lands. Get on with it. Get it done. The delays are offensive to the culture of First Nations and those other economic opportunities. If I could just mention as well, though, Richard, I was just thinking you mentioned our work to build the registry and how things are so much connected to each other. We have to turn to First Nation leadership at our annual general meeting this year, but one of the things that we're proposing is let's use... the skills and capacities which we're building in the registry to contribute to an effective ATR process. The registry is all about electronic, high-speed, accurate document tracking sophisticated mapping, surveys, and the registration of all interests affecting particular parcels of land. Those are all the typical issues that arise for consideration in the ATR process. So we're saying to Canada, as we've seen the emerging success of this registry, for efficiency reasons alone, there's a First Nation organization that could be relied upon. So one lens that Some First Nations can look at from the value of an additions to reserve is that they may not necessarily just be acquiring the lands on which they're going to execute a high quality economic development activity, but immediately adjacent to that, they can control areas that are very sensitive for environmental protection and so on. And if lands are owned in fee simple by a First Nation, but they're under a municipal government, the First Nation can't be as sure when they're deciding on what type of development to undertake, what's going to happen on the neighboring lands. If they have the governance powers, then they can balance in the right places areas for environmental protection or cultural protection public facilities relative to the development areas. And it creates a more cohesive approach as

SPEAKER_02: 14:02

well.

SPEAKER_01: 14:02

Okay.

SPEAKER_02: 14:03

And I'm wondering if some smaller communities on the ATR issue, whether or not they're at a disadvantage because they might not have capacity, the resources, the specialized staff to put an ATR application through.

SPEAKER_00: 14:16

Well, right now, the current additions to reserve process, which, as I've said, I think is arguably the worst land acquisition process in Canada, it's frustrating because it takes so long, but it chews up huge amounts of resources. First Nations staff, hired lawyers, surveyors, sometimes appraisers, provincial officials, municipal officials, and federal officials. For First Nations that's relatively small or doesn't have access to that capacity, it's an enormous challenge in terms of the resources expended. In fact, I've heard that for some First Nations, where they have managed to pull together the financial resources to acquire a parcel of land, the ATR process has been more expensive than the market value of the land. No way.

SPEAKER_02: 15:12

Really?

SPEAKER_00: 15:12

Yeah. So imagine that, right? That just doesn't make sense in terms of the scale of things. Not even close. No developers, no municipalities would run things that

SPEAKER_01: 15:22

way,

SPEAKER_00: 15:23

right? And I don't think the Canadian public would expect that First Nations should face that kind of a situation. For heaven's sakes, if it's relatively small parcels of land or or in areas that are remote from other areas of land, and especially where the First Nation doesn't have a huge amount of human resources to devote to the activity, we've got to get on with the ATR and its completion. Because it's only after you have a confirmation that the lands are under the First Nation's jurisdiction that you can unleash all the governance powers and attract the investments which can get you out of being a low capacity, low economy First Nation. You can't do it at the front end. And Richard, if I may, I've seen sometimes in the past where some First Nations entering into land codes, there's been a question around, well, do you have the capacity to take on land code governance? And to me, that's the same as saying, do you have the capacity to take on an ATR? If you don't take on the ATR or you don't take on land code governance, you're likely to forever be in the trap of being low capacity, missing opportunities and so on. So we have to get the sequence of things in the right order.

SPEAKER_02: 16:49

How serious is the backlog? I understand there are so many sitting in the hopper right now that it might take years to clear that.

SPEAKER_00: 16:56

I don't think the federal government would like to admit that there's a backlog. They're doing their best to try to go through ATRs and to go faster. Personally, I would say there's a backlog. Because if you total up across the country using the current additions to reserve process, all of the treaty land entitlement obligations and all of the ATRs that are known, you would probably be at hundreds of years in some locations to get the ATRs done. That's just simply far too slow, far too expensive, and that is why we're saying to Canada, there's no way that you can refine the existing process or add enough trained personnel to it to get the outcome that all of us want. So I'll share something with you, Richard. You don't often hear ministers of the government of Canada say that their own process is broken. Former Minister Miller, as the Minister of Crown Indigenous Relations, that was one of the things he said on the record in front of parliamentary committees. And my comment, at least, is when government ministers say that a government process is broken, it's not that it's slow. Most government processes are slow. It's that it's not achieving the outcomes that the government wants. So I think there's an emerging realization. We have to go faster in order to achieve the results that are needed for First Nations and all Canadians. both of us commenting on how old we are, a lot of the staff that I deal with now weren't born when I was first pulled into discussions about how to finally tackle the issue of treaty land entitlement in Canada. That's 30 plus years ago. And when I was a much younger fellow and working on the important treaty land entitlement in Saskatchewan and Manitoba, for example, if you would have told me that in the year 2025 that there would still be outstanding treaty land entitlement and it might take another 50 or 100 years to fix it, I wouldn't believe you. It's unacceptably slow. It doesn't make sense to go so slowly. And there's a faster and less expensive way to do it And all of that would contribute to a better economic development for First Nations and

SPEAKER_02: 19:32

Canadians. It's too bad that the larger Canadian public couldn't become an ally to try to support the efforts of First Nations to advance and succeed. I'll say on that

SPEAKER_00: 19:43

front that I think more and more there's many Canadians who are seeing that There may historically have been a past when a lot of reserve lands were lagging behind the rest of the economy with very poor housing conditions and so on. In the past, partly because of the history of reserves created on marginal lands or reserves that were created and then lands taken away, and especially because of the failures of the Indian Act, For a lot of the Canadian public, when asked about reserve lands and should we expand them, I think the reaction is, well, why would you do that? You're just piling failure on top of failure. And what Canadians see on TV, for example, is there's no drinking water, or there's declarations of emergencies, or there's evacuations of First Nations from their lands. But what unfortunately I think isn't well known to a lot of Canadians is that in more modern times where there's been successful additions to reserve, which are on lands that are not marginal or disconnected from the economy, the success in some cases is to the point where the First Nation is as successful or more successful than a neighboring municipality in attracting high quality economic development. So I attribute that, I think, mostly to a different history, and the more that Canadians become familiar with the success stories, hopefully the stronger

SPEAKER_02: 21:29

the support will be. That's one good thing about the series, and I'm glad the Resource Centre initiated the series, because I think it'll help change that narrative about what's going on across the country.

SPEAKER_00: 21:39

I hope so as well. But I think we also have a duty to be able to explain We believe that this will be a success and then going forward prove that it is a success. So I'm very confident that the First Nations leadership are very careful in the lands that they want to see added to reserve because once it is added as land of that community, the accountability for success or failure lies

SPEAKER_02: 22:11

with them. Thank you for spearheading this effort and being part of the team doing that and for being on the podcast. Thank you, Andrew. Thank

SPEAKER_00: 22:17

you, Richard.