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Sicani Research & Advisory Services

Additions to Reserve (ATR) Case Study:

Kahnawake, Quebec

DRAFT FOR DISCUSSION ONLY

Prepared by Sicani Research & Advisory Services

for the AFN-Canada ATR Working Group

Ottawa, Ontario13 April 2012

609 Redwood Avenue Ottawa Ontario Canada K2A-3E8.Tel. 613.722.3268 email: [email protected]



Table of Contents

PART I: BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Reserves, and Additions to Reserves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Methodology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Historical Context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Geographic Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Establishment of the Kahnawake Reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Alienation / Return of Reserve Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Some Jurisdictional Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PART II: CURRENT ATR EFFORTS AT KAHNAWAKE. . . . . . . . . . . . . . . . . . . . . . . . 8Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Quebec. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Canada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

PART III: ISSUES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12The Sault Ste. Louis Seigneury Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Quebec’s ATR Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Canada’s ATR Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Resources and Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Time Lines and Delays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Subsurface.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Highway 30 Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Land Management and Certificates of Possession. . . . . . . . . . . . . . . . . . . . . . 18

Authorities, Third Parties, and the Indian Act.. . . . . . . . . . . . . . . . . . . . . . . . . . 19Last words: MCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

PART IV: CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ATTACHMENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23



Kahnawake ATR Case Study

Prepared by Sicani Research & Advisory Services, Ottawa, Ontario.

13 April 2012

PART I: BACKGROUND.

Reserves, and Additions to Reserves.

The Reserve system in Canada, as it has evolved in the period since Confederation,has largely been a creature of federal government policy and legislation. The underlyingfederal presumption in the immediate wake of Confederation was that the Reservesystem would disappear concurrently with the “advancement” of Indian people and their eventual enfranchisement and assimilation. For this reason, it has always been easier to surrender or expropriate Reserve lands than it has been to return lands to reserve

status, or establish new reserves. The growing number of adverse interests on theground (provincial and municipal governments, third parties) has made the issue of newor expanded Reserves increasingly problematic.

Over time, the Reserve system in each region of Canada has evolved somewhatdifferently, based on the existence or absence of land surrender treaties, federal -provincial relations, and the differing relations between each indigenous nation and theCrown.

The existing federal Additions to Reserve (ATR) policy made its first appearance in1969, and has undergone numerous revisions since that time. This fundamental basis

of this policy remains a prohibition on new or expanded reserves, with some exceptions(ie., community additions, lawful obligation). Recently, both Canada and the FirstNations have acknowledged the fact that the prevailing policy is not working, and theyhave committed to revising and improving it. As part of that process, the AFN - Canada

joint working group which is managing these discussions has commissioned a series of case studies in order to gather some factual information from each region. (See

Attachment 1, terms of reference, draft of November 25, 2012).

Methodology.

Field work took place at Kahnawake, March 5-6, 2012, which included meetings with

MCK staff, as well as travel around the Reserve and surrounding municipalities.Following this, additional background information was provided by MCK staff. Thecontractor also collected relevant data from documentary sources, and websitesaffiliated with MCK, AAND, and Natural Resources Canada. Finallly, telephoneinterviews were carried out with staff from Quebec’s Secrétariat aux affairesautochtones (SAA), Transports Quebec (MTQ), and Ressources naturelles et Faune(MRNF), as well as AAND’s Quebec Regional Office.



Kahnawake ATR Case Study - Draft of 13 April, 2012Prepared by Sicani Research & Advisory Services, Ottawa, Ontario

2

Historical Context.

Because of it’s long history of Aboriginal - European contact, the territory now known asQuebec contains many unique factors and policy anomalies with regard to Indian

Reserves. Not including lands set aside by the JBNQA, there are at least five differentmethods by which Reserve lands have been set aside in the province, beginning in thelate 17 century. Moreover, aside from the JBNQA, the majority of the territory currentlyth

occupied by Quebec is not covered by treaty, and remains subject to unextinguished Aboriginal title.1

Geographic Context.

The Kahnawake Reserve lies on the south shore of the St. Lawrence River, in what isknown as the “southern ring” of the metropolitan community of Montreal. According to2

the 2011 federal census, the population of the metropolitan community of Montreal is

over 3,800,000 people. (See Map No. 1 showing regional context.) Information posted3

on the AAND website indicates that, as of 2010, the total population of the KahawakeMohawk community was 9,796, with 7,635 people currently living on reserve.4

Reflecting its strategic location, today the Reserve is criss-crossed by municipal,regional and international transport and communications infrastructure, including theMercier Bridge, the St. Lawrence Seaway, railways and highways. (See Map No. 2,aerial photo of a portion of the Reserve).

The territory now occupied by Quebec is covered by a series of 18 century peace and friendship treaties,th1

and the Royal Proclamation of 1763, but there have been no land surrender treaties similar to the numbered treaties

on the prairies. For more background see the attached paper, Peter Di Gangi, Some Notes re: Quebec Reserves and

Landless Bands (Ottawa: Sicani Research & Advisory Services, 14 November 2009).

The latter term is meant to include the island of Montreal as well as Laval, Longeueil, the "northern ring"2

and the "southern ring".

http://www.cbc.ca/news/canada/montreal/story/2012/03/08/montreal-population-census.html3

4http://www.aadnc-aandc.gc.ca/eng/1100100020108

http://www.aadnc-aandc.gc.ca/eng/1100100020108

http://www.aadnc-aandc.gc.ca/eng/1100100020108




3

Map No. 1, Showing regional context (courtesy of AAND)

Map No. 2, showing aerial view of the Kahnawake Reserve (courtesy of MCK)

Establishment of the Kahnawake Reserve.

The Mohawk nation has had a long presence in the St. Lawrence River Valley, onewhich predates the establishment of the Kahnawake Reserve (formerly known as

Caughnawaga). The current Reserve has its roots in a seigneurial grant made by theFrench in 1680. This tract was known as the Seigneurie du Sault-Ste-Louis (easternand western parts). Following this, the Jesuits began handing out parcels to Frenchsettlers, which gave rise to ongoing complaints by the Mohawk people, and disputeswhich have continued to this day. (See Map No. 3 showing location of the Seigneury of 5

Sault St. Louis).

“Seigneury of Sault Ste. Louis” (2004, Mohawk Council of Kahnawake).5

http://www.kahnawake.com/council/docs/Seigneury.pdf






4




5

After the conquest of the French by the English in 1760, some of these complaints wereaddressed by the British Governor of Quebec and his Military Council. In 1762, theMilitary Council recognized that the seigneury was held for the benefit of the Mohawkpeople, and after Confederation in 1867, the Caughnawaga Reserve came under the

legislative responsibility of the federal government by virtue of s. 91(24) of the BNA Act,1867 . A federal government memo on Indian Reserves in Quebec, prepared in 1954,6

confirms that the Royal Proclamation of 1763 applies to the Kahnawake Reserve.7

Continuing disputes regarding the portions of the original seigneurial grant which hadbeen alienated by the Jesuits are currently the subject of discussions between theMohawk Council of Kahnawake (MCK) and the governments of Canada and Quebec.The lands in question are now largely occupied by municipal and third party interests.

Alienation / Return of Reserve Lands.

Since the establishment of the Kahnawake Reserve, the city of Montreal and itsneighbouring municipalities have grown considerably, to the point where the Reserve isliterally surrounded by urban development. Because of it’s strategic location on thesouth shore of the St. Lawrence River, it has been a target for expropriation, in order toenable outside governments to construct and maintain critical transport andcommunications infrastructure. It is impossible to consider Kahnawake’s current effortsat ATR without at least a brief review of the land alienations that took place between1888 and 1956.

The original seigneurial grants measured approximately 45,000 acres (about 18,210hectares). According to the Department of Aboriginal Affairs website, the Kahnawake8

Reserve currently measures 11,888 acres (4,811 hectares) in size. From these9

numbers, it is apparent that a significant amount of territory - approximately 33,112acres - has been alienated from the Kahnawake Reserve.

As mentioned in the preceding section, the Jesuits were responsible for many of thesealienations in the period prior to 1760. However, following the Jesuits, a number of other events led to additional alienations of Reserve lands and waters, many of them in

Jacqueline Beaulieu, Localization of the Aboriginal Nations in Quebec: Land Transactions. French6

version: (Quebec: Ministere de l 'Energie et des Ressources du Quebec, 1986); English version: Jacqueline Beaulieu,

Localization of the Aboriginal Nations in Quebec - Land Transactions (Quebec: Government of Quebec, 1998): pp.

122-125.

9 November 1954: Memo re: Indian Reserves - Province of Quebec from HM Jones, Director, Indian7

Affairs Branch, to the Deputy Minister. DIAND File 301/30-1 Vol.1 (1924-1957) - Surveys & Reserves - Quebec

General.

“Seigneury of Sault Ste. Louis” (2004, Mohawk Council of Kahnawake).8


Community profile, Kahnawake:9

http://www.aadnc-aandc.gc.ca/eng/1100100020108/1100100020112








6

valuable and strategic locations. Virtually all of these transactions were coercive, relyingon the expropriation provisions of the Indian Act and other federal legislation.

According to materials published by the government of Quebec, between 1888 and

1956 the federal government or its agencies used their powers of expropriationapproximately 13 times to forcibly remove lands from the Kahnawake Reserve. In10

total, over 1,540 acres (623 hectares) were taken from the Reserve in this way. All of these parcels were in strategic locations, and were used to locate critical infrastructure(railways, hydro electricity lines, the Mercier Bridge, and, most recently, the St.Lawrence Seaway). (See attachment No. 3, Excerpt from Beaulieu re: Kahnawake.)11

In contrast, between 1867 and 1956 there has only been one surrender of Reservelands at Kahnawake: 61.4 acres in 1911, which was apparently returned in 1945.12

Some of the expropriated lands referred to above were later transferred back to

Reserve status. According to Beaulieu, in 1966 and 1976 the St. Lawrence Seaway Authority transferred about 805 acres back to the Government of Canada for re-inclusion into the Kahnawake Reserve. However, there remain many parcels which13

have not yet been dealt with. In many cases, these outstanding parcels are no longer used for the purpose for which they were originally expropriated.

Some Jurisdictional Considerations.

As explained above, the Kahnawake Reserve pre-dates the conquest of the French, thecolony of Quebec, Canadian Confederation, and the Indian Act . Similarly, the internalgovernance structures of the community, and of the nation of which it is a part, have

ancient roots, that do not owe their existence or authority to Canada, Quebec, or theIndian Act , and therefore often operate outside of them. As well, the Mohawks of

These expropriations were carried out by the Department of Indian Affairs through the expropriation10

provisions of the Indian Act , or else by the St. Lawrence Seaway Authority.




122-125. This publication is not to be considered definitive, but is provided here to assist with context.




122-125.




122-125.




7

Kahnawake are party to a number of treaties which predate Confederation, but which14

have found no agreed upon expression in the modern day framework of jurisdictionalarrangements that currently prevail.

An additional factor to consider is that, particularly during the late 19 and early 20th th

century, much of the land on the Kahnawake Reserve was distributed to members byway of Certificates of Possession (CP). During this period, the government of Canadawas anxious to transfer lands to individual holdings, in the hope that it would encourageassimilation and advance enfranchisement. However, in it’s rush to establish the CPsystem, the federal government neglected to set up the management capacity or legislative / regulatory tools to enable individual communities to deal with theconsequences. Today, most of the Kahnawake Reserve is now covered by CP’s. Thishas a dramatic impact on MCK’s management of Reserve lands.

The federal government, for it’s part, has inherited very limited means by which to

manage the constitutional responsibilities for “Indians and lands reserved for Indians”that flow from Section 91(24) of the BNA Act, 1867 . Basically, it’s tools are the Indian

Act, and existing policies, programs and services (the latter of which are almost entirelydiscretionary). There are other policy and legislative options which have been madeavailable by the federal government (ie, First Nation Land Management Act, or 53/60delegated management authority pursuant to the Indian Act), but for a variety of reasons, these have not found favour at Kahnawake.

The result is that Kahnawake ostensibly operates under the Indian Act, but in reality ithas developed its own custom system largely outside of the Act, and frequentlyoperating independently of it. This includes land management, the issuance of leases,

and related matters. What this means is that issues like ATR end up operating in policyterritory that makes federal (and provincial) officials uncomfortable.

Quebec, for it’s part, brings its own historical and jurisdictional anomalies into the mix.The province of Quebec has never consented to the patriation of the CanadianConstitution. It is the only province (other than Newfoundland) which has not enteredinto a federal-provincial agreement to address the inequalities arising from the PrivyCouncil cases of St. Catherine’s Milling and Star Chrome. To this author’s knowledge,15

it is the only province in Canada which has established legislative limits on the quantum

Including those made at Swegatchy and Kahnawake in 1760, and at Niagara in 1764.14

This lack of agreement has the practical effect of meaning that in Quebec, reserve lands automatically15

“revert” to the province upon surrender, without any obligation to provide compensation. After the Star Chrome

decision in the early 1920's, thousands of acres of unsold surrendered reserve lands in that province were assumed by

Quebec without any form of compensation. In addition, the federal government, through special appropriation, had

to pay Quebec an amount equivalent to all of the monies received for Indian land sales up to that date.




8

of Reserve land that can be set aside within its boundaries. And, due to it’s historical16

opposition to the setting aside of reserve lands, as of 1997, it also had the largestnumber of “landless” Bands in Canada, even though it is home to less than 10% of 17

federally recognized First Nation communities in Canada.18

Kahnawake’s experience of land loss through coercive measures imposed by other governments provides an essential backdrop to their current efforts at having former lands returned to Reserve status. These prior events and today’s circumstances alsohave an understandable influence on their perspective of the ATR process.

Taken together, these factors pretty much guarantee that any approach to ATR atKahnawake will not stay “inside the box”.

PART II: CURRENT ATR EFFORTS AT KAHNAWAKE.

Background.

For the purposes of this case study, we will be looking at two related ATR’s that arecurrently underway at Kahanwake: 1) Chateauguay, and 2) Highway 30. Both of themfall under the federal government’s Category 2, “Community Additions”.

These ATR’s came about as a result of Quebec’s decision, after the events of 1990, toconstruct the Highway 30 bypass around the Kahnawake Reserve, in order to providean alternative to the existing Route 132/138 to Chateauguay, which passes through theReserve. Kahnawake was not properly consulted about this bypass, which lies within

the original Sault Ste. Louis Seigneury and is subject to an ongoing land claim.Quebec’s Highway 30 bypass has been in development since the mid-1990's and isscheduled for completion in 2012.

Following Quebec’s announcement regarding the Highway 30 expansion, MCK enteredinto discussions with the province on this matter. Some time later, these discussions ledto an agreement between Grand Chief Mike Delisle and Quebec Minister Benoit

An Act to authorize the setting apart of Lands for the use of certain Indian Tribes in Lower Canada .16

S.C. 14 & 15 Victoria, Cap.106: pp. 2096-97, enacted on 30 August, 1851, set an upper limit of 230,000 acres on

Reserve lands within the province. On 21 March 1922, following the Judicial Committee of the Privy Council’s

decision in Star Chrome, the province of Quebec adopted An Act respecting lands set apart for Indians, SQ 12 Geo

V, 1922. c.37. This legislation capped Reserve lands within the province at a maximum of 330,000 acres. The 1922

Act, and the cap on reserve lands, was folded into subsequent versions of the Lands & Forests Act .

Report on New Band and Landless Band Pressures presented to the Senior Policy Committee, Indian17

Affairs (INAC, Ottawa: Registration, Revenues and Band Governance Branch, Lands and Trusts Services, 2 June

1997).

Peter Di Gangi, Some Notes re: Quebec Reserves and Landless Bands (Ottawa: Sicani Research &18

Advisory Services, 14 November 2009)




9

Pelletier (then Minister responsible for Aboriginal Affairs) which committed the provinceto transfer lands that would become part of the Kahnawake Reserve. In a letter dated 2June, 2008, then-Minister Pelletier appointed a negotiator and committed to a landtransfer. The process was to take place in two phases:

Phase I involves approximately 34 acres (13.76 hectares) of residential land in themunicipality of Chateauguay, adjacent to the western boundary of the Reserve (seepink area on Map No. 4, ATR Lands). These lands had been expropriated from theReserve. MCK intends to use them as common land and for economic development.

Apparently at one point the municipality of Chateauguay was pressuring Quebec tooffer other lands instead. This created some delays, but did not in the end affect thelocation of the lands subject to the ATR.

Phase II involves about 504 acres (204.24 ha) contained in a series of parcels adjacentto the eastern portion of the Kahnawake Reserve, along provincial Highway 30, which is

currently under construction (see Map No. 4, ATR Lands, Kahnawake). The lotscovered in Phase II are variously zoned industrial, wetlands, and agricultural.

Almost four years after then-Minister Pelletier agreed to the land transfer, matters havenot yet been concluded. The following section will review some of the factors that havebeen at play during that time.

There are a number of unique factors that single these ATR’s out:

• One parcel relates to provincial developments which lie inside a claim area, butthe ATR is not explicitly connected to a claims negotiation or settlement

• They were initiated by Quebec• The province is taking responsibility for, and covering the costs of, related

studies, consultations, and payments to municipalities for tax loss• They are largely about economic development




10




11

Quebec.

The government of Quebec organizes around ATR’s based on which ministry’s

interests are most affected. So, in the north, it is often MRNF that takes the lead; inurban areas, it would likely be the Ministère d’Affaires municipales, Régions etOccupation de territoire; etc. SAA is usually always involved, to play a coordinating roleand to manage communications for “high level” (ie, political) dialogue. The SAA will alsowork to fill gaps in cases where specific ministries lack capacity, and, where possible, toget the line ministries to “adapt their rules to fit Aboriginal realities”. In all cases, at theend of the process MRNF is responsible for obtaining Cabinet’s final approval totransfer the lands to Canada.

In MCK’s case, the two main Quebec agencies involved are MTQ (because it owns theland), and SAA. Once arrangements are finalized, the lands will be transferred to the

provincial Ministère des Ressources naturelles et Faune (MRNF), which will beresponsible for obtaining final approvals for the ultimate transfer of title to the federalgovernment.

Quebec appointed a political-level negotiator, not tied to the bureaucracy, who reportsdirectly to the provincial Cabinet. In principal this kind of arrangement should enablecommunication directly with the provincial cabinet to resolve issues if there areroadblocks at the bureaucratic level. From MCK’s perspective, this has worked some,but not all of the time. In certain cases the negotiator was able to break impasses thathad resulted from MTC officials taking a hard line. But in other cases, the bureaucratshave prevailed on the basis that “we cannot do that” or “there is a policy or legislative

barrier”. AAND officials from the Quebec Regional Office (QRO) agreed, and expressedthe view that the provincial negotiator could perhaps do more to get the Ministry officialsto deliver on their commitments in a timely manner. As with any process, it comes downto political will.

Quebec officials stated that the appointment of a political level negotiator for the MCK ATR was a “very special case”, due to the political sensitivity of the Highway 30extension. “Usually we don’t need that special kind of help” - negotiators are most oftenappointed from within the bureaucracy.

Because Quebec initiated this ATR, the province has agreed to cover the costs and

take responsibility for a number activities that are normally the responsibility of the FirstNation or Canada - for instance, consultations with the municipalities and third parties;Environmental Assessments (EA’s); archeological studies; and payments to theaffected municipalities for tax loss. This has relieved MCK (and Canada) of many of thecosts and responsibilities that they would otherwise have to shoulder as part of the ATRprocess.




12

Canada.

The two main departments involved on the federal side are the Departments of Aboriginal Affairs and Northern Development (AAND) and Natural Resources Canada

(NRCAN). In the case of this ATR, AAND appears to have taken a relatively passiverole, since Quebec is taking the lead, and AAND must wait for Quebec’s completion of studies, etc, before it can proceed with certain aspects of the process.

Apparently other federal departments have not played a direct role in the Kahnawake ATR’s to date although according to SAA, the federal Department of Justice will besigning off on the subsurface issue (see below). QRO officials indicated that once the

ATR is complete, normal procedure requires that other federal departments be advised,in case the ATR affects their existing agreements or programs.

Both MCK and QRO had only praise for NRCAN staff and the support that they provide

in the ATR process with regard to surveys and mapping. MCK is able to produce surveyplans using their own expertise, without having to rely on outside surveyors. NRCANhas provided access to their historic orthophoto collection (for before and after views of land and water). MCK staff contrast NRCAN to AAND: “NRCAN has a much better ideaof what we will actually use the land for”.

PART III: ISSUES.

The Sault Ste. Louis Seigneury Claim.

This has been mentioned previously. The existence of this claim adds another, oftenunspoken dimension this ATR, since the Highway 30 lands are in the contested area.The Seigneury claim is being negotiated parallel to, and separate from, the ATRs. Theprovince reports that it is involved in the Seigneury claim negotiations with respect tothe land component, but is coy about whether or not it would seek to have the lands tobe transferred to MCK in the current ATR process offset against any potential landsettlement on the Seigneury. It appears to be treading carefully because of thesensitivities involved, feeling that it is best to focus on the ATR at hand, and accept thateach party will have a different position on the matter - “no point arguing over this now.”

At the same time, the municipalities, who are negotiating with Quebec for funds to

cover their projected tax losses, are arguing over taxes that are coming fromKahnawake Seigneury lands. MCK expressed some concern that some of themunicipalities have asked for replacement lands which might be taken out of theSeigneury claim area. MCK has undertaken some educational work with theneighbouring municipalities regarding the Seigneury claim, but the position of themunicipalities remains ambiguous.




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Quebec’s ATR Policy.

On 21 December 1982, the Executive Council of the province of Quebec adopted an

Order in Council which laid out a policy framework for additions to reserve and newreserves on Crown Lands. This policy remains in effect today, but not all of the playersare aware of its contents, or even its existence (surprisingly, MCK and MTQ staff hadnot been made aware of the policy). SAA and MRNF, on the other hand, confirmed thatthe 1982 OC is still in force, and SAA provided a copy (see Attachment 4, Quebec OCof 21 December, 1982). Officials from AAND’s QRO were also aware of the policy.19

Ostensibly, the policy only applies to Crown Lands, and not to privately - held parcels.

Quebec’s ATR policy adds another series of bureaucratic and planning requirements tothose contained in the federal ATR policy, presumably increasing cost and the time

involved in assembling and implementing an ATR. But, perhaps more importantly, theobjectives of the Quebec ATR policy are not consistent with those of the federal policy,or with First Nation objectives.

Key among the inconsistencies between the federal and provincial policies is the factthat, on the one hand, the federal government has been emphasizing the importance of

ATR’s to community economic development, and the role that ATR’s can play inimproving the economic circumstances of First Nation citizens. In stark contrast to this,Quebec’s ATR policy states that ATR’s will be for residential purposes only, implicitlyexcluding economic development as a rationale.

This position is consistent with the province of Quebec’s long hostility to theestablishment and / or enlargement of Indian Reserves, which was summarized in apreceding section.

Officials from the QRO acknowledged that this contradiction affects their work on ATR’s, because they are stuck between AANDC HQ (which is actively promoting theeconomic development component of ATR) and the government of Quebec (whosepolicy states that ATR will be for residential purposes only). They said that they keephaving to explain their position to Quebec, which diverts time and effort from actuallymoving ATR’s forward. At the same time, in their experience this restriction “has notbeen a show-stopper, because Quebec does not have a veto”. However, it seems that

since Quebec does control access to Crown Lands, it would have an effective veto inmany instances.

QRO staff indicated that Quebec’s policy is “outdated” and that it’s lack of consistencywith federal and First Nation objectives is “a big issue”. It was suggested that one

Order in Council Décision 82-361, 21 décembre 1982. Quebec, Les Fondements de la Politique du19

Gouvernement du Quebec en Matière Autochtone (Quebec: march 1988): 25-26 (in French)




14

potential solution might be a federal - provincial agreement on ATR. (However, in order for a meaningful resolution to be found, First Nations of Quebec would also need toplay a role in this process of policy review and renovation.)

Quebec officials, on the other hand, had a different take on the origins and applicationof their provincial ATR policy. One official stated that the policy itself was designed tocomplement the federal ATR policy that was in place at the time, including therestriction for residential purposes only and the requirement for an approved 25 year community plan. This was followed by a comment that seems at odds with Quebec’shistoric approach to Aboriginal affairs: “It is Quebec that would follow Canada’s policy,not the other way around”.

SAA and MRNF staff agreed that the policy was old and in need of revision. It has notbeen formally reviewed or amended since it was adopted three decades ago. A fewyears ago, SAA struck a working group to take a look at the policy and to see what

might be done to bring it up to date, but this did not lead to an official process of revision. For that to occur, there would need to be an interdepartmental effort, includingall of the main players within the provincial government system: MRNF, SAA, MTQ,Municipal Affairs, etc. There would need to be consensus between the ministries, and asuccessful cabinet submission. Officials admitted that reaching consensus between(and even within) ministries “would not be easy”. “We all agree that Quebec’s ATRpolicy should be amended some day, but that is work that will need to be undertakensome time in the future.”

At the same time, however, officials at SAA and MRNF stressed that “the fact we areworking with an old policy does not mean that we cannot be flexible”.They cited the

MCK ATR process (which is largely about economic development) as an example of the province’s flexibility, and evidence that they do not always adhere to the 1982provincial ATR policy. However, they did acknowledge that this required additionalsteps, since departures from the existing policy required cabinet review and approval ona case by case basis. “So if there was a new policy that was more flexible, we would nothave to go to Cabinet so often as we do now”.

Despite Quebec’s long and well documented history of being hostile to Reserves andnew Reserves, some officials insisted that, today, things were different: “Quebec wouldhave no problem transferring lands to Canada for Reserves”, but the province wasbeing prevented from doing so by federal policy.

Canada’s ATR Policy.

Both MCK and Quebec officials provided animated commentary regarding Canada’sapproach to ATR. They were of the view that Canada’s approach was too rigid toaddress the unique factors at play in Quebec. “Policy dictators” was one descriptor.

Provincial officials contrasted Canada’s approach to their own. They suggested thatQuebec is not as policy driven as Canada regarding ATR. One stated that federal




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Time Lines and Delays.

MCK and AAND seem most concerned about the impact of delays on the ATR process.MCK and the QRO both indicated that Quebec appears to be slow in delivering on its

commitments and moving things forward. Federal officials pointed to the fact that theyare waiting for the delivery of various studies, and also that, although the province mayhave completed its consultations with the various municipalities and other third parties,the results of these have not yet been disclosed. Although QRO confirms that there areregular teleconferences and / or meetings, “there is a lot of talk but not much ishappening”, and they feel that the lack of progress is delaying the ATR process.

QRO feels that it is important to try to streamline approvals. Right now for many ATRrelated issues, they have to get approval from the Minister, and HQ. They feel that if they could get some approvals delegated to the Regional Director General, this wouldspeed things up.

Both MCK and QRO mentioned that Quebec appears to have been slow or reluctant toact on MCK’s request for on / off access to the Highway 30 bypass (see below).

For it’s part, MTQ says that it takes a long time for this ATR “because there are manythings that need to be done”, citing the various environmental and archaeologicalstudies that Canada requires. As well, they must deal with a some agricultural leaseswithin the ATR zone that needed to be terminated prior to their expiration dates (somewere valid until 2023). Apparently these tenants have been notified that their leases willnow expire in 2012. MTQ indicated that Canada wants all encumbrances removed prior to transfer of the ATR lands.

MTQ also expressed the view that the way negotiations are structured does not worktoo well for them, partly because it is cumbersome and slow (“too many committees, toomany people”), with the result that, instead of one issue being dealt with fully at onemeeting so that things can move on, many issues are addressed in each meeting, andnone seem to get completed.

SAA indicated that part of the delays around the Highway 30 extension have to do withthe fact that MCK did not make a formal ATR request to Canada until the negotiationswere well advanced.

Other Quebec officials suggested that part of the problem is that the parties lose sightof the main objective (to add land to the Reserve), and get bogged down in side issueslike infrastructure, third parties, etc etc. If the main objective is to add land to theReserve land base, this should stay front and centre. However, often this initialobjective becomes hostage to ancillary issues. At the same time, during negotiations,long-standing grievances or intractable problems may come to the surface which don’tbear directly on the issue of the ATR itself. These may have to be set aside, or tabled inthe interests of resolving the issue at hand: “You can’t solve everything on the pretext of an ATR”.




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MCK officials acknowledged that delays can occur because their community was notalways prepared to comply with prevailing federal policy, meaning that it took more timeto work through some issues. But they also felt that if there was more flexibility on thepart of other governments, that things could move faster.

Subsurface.

The Judicial Committee of the Privy Council’s decision in Star Chrome involved adispute at the beginning of the 20 century between Canada and Quebec over theth

disposition of a mining lease. Since that time, Quebec has taken the position that20

Reserve lands only include the usufruct of the surface, and do not include subsurfacerights.

MTQ confirmed that the ATR’s they are currently working on at Kahnawake would notinclude subsurface interests. MRNF reports Quebec’s position as being that “the

subsurface belongs to the state”. When Quebec transfers lands to Canada, the transfer only involves usufruct of the surface. However, Quebec officials were not in a positionto explain how their claim to the subsurface applied to Reserves that were createdbefore the existence of the state, or to lands that continued to be covered byunextinguished Aboriginal title.

QRO describes Quebec’s position on Star Chrome and on the subsurface as “very hardline”. A Quebec official reported that Canada had acquiesced to the province’s policy inthis regard, and that the federal Department of Justice was expected to provideconfirmation in writing that the MCK ATR would only involve surface rights.

On the other hand, MCK has not reported any problems related to it’s ongoing use andmanagement of the subsurface on Reserve.

Highway 30 Access.

As already mentioned, a major objective for MCK in these ATR’s is to provide economicdevelopment opportunities for its members. With respect to Highway 30, on / off accessto the highway has been identified as a crucial aspect in meeting this objective, but sofar Quebec has held off from making any commitments in this regard.

Both MCK and QRO have suggested that Quebec’s apparent reluctance is not

accidental. The fact that Quebec’s ATR policy implicitly rejects economic developmentas a rationale for reserve additions adds weight to this view.

When asked about the economic development aspect of the Highway 30 ATR, MTQsaid that they are “not against” economic development, but that their role is simply tomanage the transfer of the lands, not to promote economic development. MTQ staff

Star Chrome, decision of the Privy Council, [1921] 1 A.C. 40120




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acknowledged that MCK had requested highway access, and that their Minister hadasked for an analysis and options, which are due to be delivered “in the next fewweeks”. At the same time, however, “we can’t do anything we want to a highway”. Onthe other hand, MCK staff have pointed out the fact that there are many off reserve

non-Aboriginal businesses that thrive based on their access to highway on / off ramps.

The economic development component of the negotiations has been taken up by SAA(“to see how we can cooperate in achieving some economic development on theparcels”). They say that they have brought officials from the province’s economicdevelopment agency to the table.

QRO has suggested that pre-designation of the Highway 30 lands would be one way of providing for the existing interests, and allow MCK to begin economic developmentactivity prior to the final conclusion of the ATR. However, this has not been pursued(see below).

Land Management and Certificates of Possession.

One factor that complicates the ATR issue is that most, if not all of the existing Reservelands immediately adjacent to the Highway 30 bypass (and where Highway 207 meetsHighway 30) are held by individual Band members through Certificates of Possession(CP). To gain access to the highway from the existing Reserve, MCK would have tonegotiate individual agreements with the affected CP holders, if those CP holders wereagreeable; or perhaps exchange lands with them; or purchase the lands. The questionof land exchange is problematic, however, since about 80% of the Reserve is alreadyheld by CP.

MTQ, with no apparent sense of irony, has suggested that MCK should simplyexpropriate the interests of those CP holders in order to gain access to Highway 30from it’s existing lands. SAA also indicated that this would be an appropriate method toemploy (“sometimes a government must take unpopular measures for the publicgood”).

Interestingly, although more than one Quebec official proposed that MCK useexpropriation as a tool to deal with it’s CP holders, they did not go on to suggest thattheir own government would be prepared to do the same as a means of dealing withnon-Aboriginal third party interests.

MCK officials acknowledge the problem posed by the CP’s. Their view is that CP’s andindividual land holding are a “alien system” that was imposed on them, but without thetools to manage effectively. Now, they are left to pick up the pieces, and the partyresponsible (the federal government) has washed its hands of the matter. SAA reportsthat MCK has suggested to them that Quebec should cover the costs of acquiring theCP’s needed to access to Highway 30. Quebec officials say that this is not their responsibility.




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This points to a related issue - land management - which also received some attentionin the interviews that were conducted as part of this case study.

MCK officials indicated that they would like to develop a comprehensive land

management plan, connected to a long term community development plan. This wouldmake land use approvals, and land use planning, much easier. But the communitywould still be faced with the fact that there is very little public land left to manage.

A Quebec official observed that, for communities with a lot of CP’s , “the appetite for new land is significant, because the CP’s take up so much land, there is not muchleftover for public use or management”.

This author has heard similar comments about the effect of the CP system acrossCanada. With respect to land management issues and the federal government’sfiduciary duty, this seems to be one of the (many) elephants in the room. As mentioned

at the beginning of this paper, in the late 19 and early 20 century, the federalth th

government put a high priority on imposing the CP system as a means to facilitateassimilation and ultimately enfranchisement. Because the objective of the CP programwas to contribute to the elimination of the Reserve system, the federal government didnot provide the legislative or regulatory tools for communities to effectively managethem. The result today, in some communities, has been likened to being left with aFrankenstein of someone else’s making.

An official from Quebec suggested that it should come as no surprise that Canada isnot enthusiastic about adding to the reserve land base. For one thing, there are all of the potential new costs for infrastructure and services. But on another level, Canada’s

record on land management is “quite bad”. Once the lands are turned over to thefederal government, the Indian Act land regime applies - a regime that is broken: “Whatsense is there in that?”

Authorities, Third Parties, and the Indian Act.

In a preceding section we noted the fact that although ostensibly the Indian Act appliesto Kahnawake, in reality the community operates largely by custom and outside of thestrictures of the Act. This has been identified by all parties as a factor in the ATRprocess, since it precludes reliance on some of the instruments that are commonlyused in other ATR’s.

MCK officials indicated that their Council does not need Ministerial approval through theIndian Act to exercise its authority over its territory, and point to the successfulconclusion and management of leases and other land related interests by way of custom. MCK staff stressed that other governments should be prepared to accept theuniqueness of their circumstances, and be prepared to work “outside the box” withcreativity and flexibility to find solutions. They add that what is really required to makethis work is political will on the part of Canada and Quebec. MCK feels that, althoughQRO staff are helpful, they do everything by the book and are inflexible, without




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creativity. They can be “policy dictators”. This means that they expect MCK to conformto “cookie cutter policies” without any recognition of their unique circumstances. “Wefeel like we keep getting dragged into the Indian Act” (see discussion on federal ATRpolicy, above).

The Kahnawake community is very conscious of their past history, and the federalgovernment’s record with regard to expropriations and mis-management of lands.There is the feeling that Canada needs to show more recognition of how it’s pastbehaviour led to today’s situation. To paraphrase:

The federal government created the current mess, but it can’t fix it; MCK justwants them to provide the resources, and MCK will fix it themselves, but insteadthe federal government wants to impose its policies and rules - the same mindset that created the problems in the first place.

QRO staff were well aware of MCK’s position: “We don’t think they like Indian Actinstruments”. They appreciate MCK’s dislike of the Act, but say that their hands arelargely tied:

We have to work with the Indian Act and we have to get approval of the Minister.We want to be creative and think outside the box, but with the Indian Actrequirements, we don't have much margin to manouevre. We need to worktogether to find solutions.

Finally, in a what must be a prize winning non-sequitur, “We need to be working outsidethe box, but within the Indian Act.”

The pre-designation of lands has been put forward as one solution to some of theimpasses that now exist with respect to the interests of third parties on lands that arethe subject of the ATR’s. QRO has raised pre-designation as an option, but MCK hasidentified problems related to the procedures involved, and, ultimately, the requirementof Ministerial approval.

QRO’s rationale is that if the First Nation could accept to have the 3rd party interests inthe land at transfer, and then negotiate and resolve or regularize that interest after the

ATR, instead of before, then this would save time. QRO staff also suggested that theparties need to look closely at what should be done before the ATR, and what should

be done after (ie., if a telecommunications tower is in place, and everyone accepts thatit will be staying after the ATR). They said that this might alleviate some of the delaysnow being experienced, and added that perhaps pre-designation could be combinedwith the ATR process.




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MTQ, for it’s part, suggests that the ATR process would work faster if MCK wereprepared to use s 28(2) of the Indian Act to provide for leasehold interests. MTQ21

understands that “MCK does not like the Indian Act”, and appears prepared to work tofind workable alternatives, but adds that negotiating outside the Act takes more time:

“MCK tells us to ‘think out of the box’, but new ways always takes time to put intoplace”.

The matter of third parties rights is a big one which has been a thread that keepsreappearing in this report. As noted by MRNF, there are very few places in the provincewhere third party rights do not already exist in one form or another, even short of feesimple - snowmobile trails, rights of way, leases, etc. The few lands that don’t have thirdparty interests aren’t attractive to First Nations (or anyone else, otherwise third partieswould likely be present). Because of this reality, Quebec officials felt strongly about thefederal government’s insistence that ATR lands be free of all encumbrances. They saythis makes it very tough to identify and secure lands, and that it adds many delays to

the ATR process.

One of the few remaining hurdles in the Chateauguay ATR are some hydro poles thatwere on the parcel, but for which Hydro Quebec never got an easement or right of wayfrom MTQ. The parties are trying to figure out the best method of addressing these tosatisfy Canada’s stipulation re: no encumbrances.

Environmental Assessment, Studies and Standards.

MCK has indicated some conflict between prevailing federal and provincial standardswith regard to Environmental Assessments (EA) and water - discrepancies between

DFO and MTQ. There have also been some problems with definitions - for instance,one area along Highway 30 has been designated as “wetlands” by Quebec andtherefore subject to a more rigorous EA, but there is no agreement as to whether thiswetland is man made or natural. There are also other water related issues due to theSt. Lawrence Seaway cutting off access to the River, and contaminated water alonghighway 207.

The issue of EA’s came up more than once. QRO staff indicated that EA’s took up a lotof time, and asked, “What level of contamination can we tolerate?” They suggested thatthere should be a sliding scale. “We have to look at the use to which the lands will beput. For some uses, the land may not need to be pristine, if it would not affect the use

of the land.”

Some Quebec officials appear to agree, but they said it was Canada that was adamantabout “cleanliness” of the land: “why does the land transferred need to be so clean?”

“Minister may issue permits - The Minister may by permit in writing authorize any person for a period 21

not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a

reserve or to reside or otherwise exercise rights on a reserve”.




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There were also questions about the archaeological studies: “What difference would itmake to acquisition?” (ie., the existence of an archaeological site might affect the use of the land, but not the acquisition of it).

The number of studies required, the time taken to complete them, and the costs relatedto carrying them out, have all been mentioned by various respondents in connectionwith this case study. One respondent simply said “there are way too many studies”.

Last words: MCK.

• Get the ATR process down to one year.

• There is no cookie cutter approach to claims or ATR - other governments needto be more flexible, taking First Nation’s individual and unique circumstances intoaccount.

• Accept MCK authority to manage their territory

• Land grievances (“claims”), ATR’s, land management and community planningare all interconnected. This needs to be accepted in any process.

• Negotiations are supposed to be give and take, but it often does not seem to bethe case. The other governments seem to just want to take.

PART IV: CONCLUSIONS.

One thing that emerges very clearly from the foregoing: Quebec represents a significantanomaly with regard to ATR. When compared to the other provinces of Canada,Quebec is entirely “outside the box” when it comes to treaties, Reserve creation, policy,and legislation. In effect, the province has built it’s own box, and gotten the governmentof Canada to largely concede the fact.

Once this is acknowledged, it should come as no surprise that communities likeKahnawake are also “outside the box” - their circumstances require it, and they havehad to bring creativity and flexibility to bear, in order to ensure that their rights andinterests are acknowledged and addressed.

So it should also come a no surprise when MCK says that other parties must workoutside the box with them to resolve outstanding issues.

What seems to be missing, however, is that neither Canada nor Quebec appear fullyprepared to acknowledge that these unique factors demand unique solutions. Thisneeds to include a recognition that today’s need for alternative approaches is rooted inthe past actions of both governments.




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Having said this, many of the same issues come up at Kahnawake as in other parts of Quebec and Canada: the need for adequate resourcing and capacity; the need to findthe appropriate ways and means of dealing with third parties and prior interests onlands which are the subject of an ATR; the need to promote economic development;

the connection between ATR and land management; and, most of all, the need for aflexible policy approach that allows for local realities to be taken into account andaccommodated. This suggests that despite the uniqueness of their situation,Kahnawake also faces many of the same challenges that other First Nations face withregard to ATR, and that therefore, some solutions may be found by looking at theexperience of other communities.

The challenge will be to find the right mix of creative approaches on the one hand, andoff the shelf or tried and true solutions on the other, that fits the circumstances.

ATTACHMENTS.

1. Case study terms of reference (draft of 25 November, 2011)

2. Peter Di Gangi, Some Notes re: Quebec Reserves and Landless Bands (Ottawa:Sicani Research & Advisory Services, 14 November 2009), including excerptsfrom INAC’s “Report on New Band and Landless Band Pressures”, 1997.

3. Jacqueline Beaulieu, Localization of the Aboriginal Nations in Quebec: Land Transactions. French version: (Quebec: Ministere de l'Energie et desRessources du Quebec, 1986); English version: Jacqueline Beaulieu,

Localization of the Aboriginal Nations in Quebec - Land Transactions (Quebec:Government of Quebec, 1998): pp. 122-125.

4. Quebec OC of 21 December 1982 (in French with English translation)

mohawk council of kahnawake addition to reserve case study 2012-04-13 final-s

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