Thank you, Mr. Chair.
My name is John Gailus. I'm a partner with Devlin Gailus. We're a law firm in Victoria, British Columbia. We're lawyers. Please don't hold that against us. With me is my partner, Christopher Devlin.
By way of background, I'm a member of Haida Nation, Skidegate Band, which is pretty much as far west as you can get in Canada.
After law school, I spent four and a half years working as a land management leasing officer for what was then the Department of Indian Affairs and Northern Development. I ended up being promoted, if you can call it that, and was the senior land management leasing officer for the west coast of British Columbia.
During that time I had the responsibility of working on a great number of files dealing with land designations, leasing, and leasing disputes—that was the time of the Musqueam Park dispute—as well as additions to reserves and the creation of new reserves. I kind of carved out a bit of a niche and decided that I was going to use my law degree. I went into private practice in 1999 and have been doing that ever since.
We deal almost exclusively with first nations and first nations organizations. I hope we can share with the committee some of our experiences with the pitfalls and policy problems we see.
We think the work you're doing is extremely important. It's a fairly comprehensive study you're doing. I could probably speak for a lot more than 10 minutes. What I've tried to do today is look at this from, I suppose, 30,000 feet. We can take some questions and maybe provide you with some specific examples, if you have some questions on that.
First of all, I've looked at some of the evidence given by a number of the witnesses to this committee. We don't necessarily agree that the Indian Act is an impediment to economic development. The policies and maybe the application of those policies are really what lead to the delays. But that's common, I suggest, in any jurisdiction. With the possible exception of the federal government, you're usually going to have to seek approvals from some other level of government if you want to develop your land. Whether you're in a municipality or a province, you're going to have to get the necessary permits and approvals in order to do your project.
The problem, as I see it, is often with third-party proponents and lenders not being familiar with the process or not being willing to educate themselves.
The act is there, but the policies I see are kind of one-size-fits-all. There's no proportionality between the project and the policy. I'm sure you've probably heard that from a number of other witnesses. Essentially, whether you're developing a corner store or a shopping centre, you have to follow the same policy. If you want to do a gas station or an LNG plant, you still have to go through the same policy to get that approved.
So what do first nations do? Well, they don't follow the act. They go and just build it. They build the gas station. They build trailer parks. They don't have the proper permits in place. We see this non-compliance that comes about as a huge contingent liability for the first nation but also for the crown.
There are opportunities out there. And we've seen that in spite of the Indian Act, there have been many successful developments, in spite of the hurdles. We're in B.C., so an example I have would be Park Royal. The Burrard Tsleil-Waututh nation is developing a whole host of condominiums. The Musqueam, in spite of that dispute, is a very successful first nation. There are the Cowichan, with the Cowichan mall, the St. Mary's band, and the Campbell River band.
What these reserves all have in common is that they're near urban centres. When you're talking about economic development, geography is going to play a huge role when it comes to on-reserve development.
Isolated communities aren't going to have the same opportunities as the Musqueam and the Westbank. So we can't really apply their model to these first nations.
But, these first nations also have a number of off-reserve opportunities when you are looking at oil and gas, mining, forestry. There is economic development out there for these first nations, but oftentimes it's not on reserve.
We think the FNLMA is a good step forward, but first nations are often inheriting land management issues—legacy issues, we call them—that haven't been addressed by INAC. They spend much of their time dealing with land disputes amongst their members as to who has entitlement to this or that piece of land, without getting on with the business of economic development.
I want to speak briefly about additions to reserve. I know you have had an opportunity to hear from other witnesses. Clearly, the process is cumbersome. We're often dealing with the province—which wants to keep all the resources on the land—municipalities, and third-party interests. It can take a long time to disentangle all of those interests when you are dealing with ATRs. I did manage to complete an addition to reserve in three weeks, though, when I was working for the federal government. However, that was pursuant to a court order. Government can move quickly when it's told to.
When we are talking about social need, first nations have to do years and years of study just to get to the point of doing the actual negotiations to acquire the land. There are appraisals and environmental assessments. You may have these third-party interests you have to negotiate with. I see there is a problem with that process.
I want to speak just very briefly on the new band and new reserve policy. This would be a situation where either a group of members is looking to start their own band or break away from an existing band. That process, I submit, is set up for failure. The first nation has to fund the process themselves. They have to show there is not going to be any increase in the budget as a result. That is one glaring example of where the policy needs to be amended. There is a bit of a disconnect between one nation that can show a social need and get funded, whereas another one has to fund the process themselves.
What we're seeing in British Columbia is that ATRs aren't getting done if a first nation is in treaty negotiations. The treaties that have been negotiated to date have removed the reserve status from those lands—your Nisga'a, your Tsawwassen, and your Maa-nulth. The governments are saying, we're not going to bother doing the ATRs because you guys are going to have a treaty soon, and we're going to have to basically un-reserve these lands as part of the treaty process. Generally speaking, the policies, whether we are talking about designations, leasing, or additions to reserve, need to be responsive and flexible. That's often a challenge we have as lawyers. I can tell you, as someone who was working in the government, I had that challenge when I would have a policy that didn't seem to fit with the particular issue.
What's missing is that economic development. At least in terms of the Indian Act, economic development isn't a priority for AANDC. I think that's the right acronym now. Both human and financial resources aren't being allocated to deal with these sorts of issues. It's not necessarily the fault of the individuals who are there working away. They have heavy workloads. These human and financial resources need to be brought to task if first nations economic development is to be successful.
Those are my comments.