aInterim Report of the Chairperson Dec 07 Final Fin

7/29/2019 aInterim Report of the Chairperson Dec 07 Final Fin

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Interim Report

ChairpersonOf the

Implementation Monitoring Committee1997 Manitoba Framework Agreement

OnTreaty Land Entitlement

December 2007

..

Introduction:

In December 2006 when I was first contacted by Canadas IMC Representativeand asked to consider accepting appointment as Chairperson of theImplementation Monitoring Committee, I admit I was hesitant to do so. Overthe past 10 years, I had only minor formal involvement in one MFA matter, butlike all legal counsel and others involved in the negotiation of the 1997 ManitobaFramework Agreement (MFA) on Treaty Land Entitlement (TLE), I had remainedinformed about progress in the implementation of the Agreement.Unfortunately, the news on progress had not been good.

As of April 28, 2006, although the Entitlement First Nations (EFNs) had selected87.8% of their Crown Land entitlement only 27,336 acres involving 20 parcelsof land had been set apart as Reserve. Further, the EFNs with a right topurchase Other Land had purchased only 4.5% of that land and none of thatland had been set apart as Reserve. This was not a good record in MFAimplementation using Reserve creation as the performance measurement.

Parties informed about the process laid out a long list of issues impedingprogress in MFA delivery, including concerns about the financial and relatedadministrative capacity of the Treaty Land Entitlement Committee, the centralsupport and delivery agency for the EFNs, assertions of an overly technical andlegalistic approach to delivery by Manitoba and a general lack of organizationand support from INAC in the overall process. These were not my viewsnecessarily, but rather summary comments from individuals involved in variousaspects of the MFA process.


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Interim Report of the Chairperson - 2 - Implementation Monitoring CommitteeDecember - 2007

Indeed, a year earlier, in November 2005, the independent office of CanadasAuditor General (AG) had examined the management of the implementation ofTLE agreements in Manitoba and Saskatchewan and whether delivery by INACwas consistent with the legal obligations set out in those agreements issuing adetailed audit report. The AGs audit report affirmed, among other things, thatthe INAC lacked a management framework to deal with Reserve creation, a planto deal with outstanding selections in a reasonable timeframe, a means oftracking selections throughout the Reserve creation process, procedures andtools to guide its staff and deficiencies in many other areas of its responsibilityrequired to meet its implementation obligations.

Importantly, on August 22, 2006, the Minister of Indian Affairs had made acommitment to set apart 150,000 acres of land as Reserve in Manitoba (inclusive

of non- MFA TLE settlements) each year for the next 4 years. The Minister wassupported in his commitment by the Minister of Aboriginal and Northern Affairsfor Manitoba.

Incidentally and of some added significance, the second independentChairperson of the IMC had recently resigned his appointment in difficultcircumstances after one of the three parties of the MFA (the TLEC) essentiallyrefused to cooperate in the further operation of the IMC in direct contradiction oftheir obligations under the MFA.

On a more positive note, over the course of the last 9 months, we have all heard

each Party to the MFA, by its Ministers, President, Deputy Ministers, AssistantDeputy Ministers and Directors General expressly and clearly state theircontinuing commitment to the successful implementation of the MFA, a viewunderstood and repeated by the staff of all Parties involved in the day to dayadministration of the MFA implementation. Despite these assurances at thehighest level of government and a degree of progress on several fronts, theoverall procedure and dynamics of the implementation process have not yetchanged to a sufficient degree that any Party could confidently assert that it isnow meeting its MFA obligations, some 10 years after the date each Party madea solemn commitment to do so.

Terms of Appointment of Chairperson:

As a result of the public knowledge of ongoing problems being experienced withthe MFA implementation process, on December 6, 2006, I asked that the IMCRepresentatives and indirectly the Senior Advisory Committee that would makethe appointment, to commit to taking a number of preliminary steps essential forthe establishment or reconstruction of the IMC as an effective vehicle or tool to


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assist the parties in the process of implementation in the manner described inthe MFA (see Appendices A and B respectively).

Although the Parties are each fully responsible and liable for the dueperformance of their respective obligations under the MFA, the MFA prescribes aspecific role and list of duties for the IMC and the IMC Chairperson distinct fromthe roles and responsibilities of the Parties (e.g. Sections 34.07 and 34.09 of theMFA). It was evident from discussions with the representatives of each of theParties that the IMC was not functioning in the manner directed by the MFA to:

generally facilitate the implementation of the MFA, by among otherrequirements:

o monitoring of the progress in implementation;o making recommendations to the Parties for the resolution of and

issue or matter in dispute relating to the implementation of theMFA or any TEA referred to it by any Party or EFN; and

o considering the appropriate method of resolution of an issue ormatter in dispute;

in all respects supported by the general direction of the independent Chairpersonin (apart from his/her administrative role and Section 35/36 duties):

maintaining and distributing a record of decisions, awards and otherpertinent information:

o determining the sufficiency of information provided to the IMC inrelation to implementation;

o if necessary, requesting that appropriate steps be taken to provideinformation as may be deemed appropriate related toimplementation;

o in relation to the resolution of issues or matters in dispute,proposing time periods for responding to referrals directing thecompletion of reports, identifying strengths and weaknesses ofproposed solutions; directing IMC members to assist in resolving

issues of matters in dispute and proposing solutions;o retaining technical, special or legal advisors to provide advice,

guidance and opinions to assist in the proper discharge of theduties of the IMC, in dealing with implementation matters orhandling of issues or matters in dispute, with or without theagreement of the IMC;


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o recording of the means of resolution or inability of the IMC todetermine a means of resolution of an issue or matter in disputereferred to the IMC;

o referring any matter the IMC cannot resolve by consensus to theSAC along with a statement of the issue, means recommended forresolution by the Chairperson, summary of directions given andresponse of each IMC members to the recommendation; and

o preparing and tabling annual and other special reports to theParties on the overall state of implementation, including a summaryof issues addressed and resolved and recommendations forimprovement of any aspect of the MFA implementation process.

Preliminary Steps Taken in Relation to the Establishment of the Officeof the Chairperson and Role of the IMC:

The following is my general review and comment on the preliminaryorganizational steps taken since March 1, 2007, in relation to the re-establishment of the IMC in a manner that would enable it to assist the IMC indischarging its duties and ensuring the Chairperson has the ability to performhis/her role in support of the IMC efforts:

1. The Establishment of an IMC Office

Issue: The IMC did not have a sufficient administrative capacity to manage IMCmatters and ensure timely steps were taken toward the resolution of IMC issues,much less act as a coordinating body to monitor and direct a renewal of theMFA/IMC implementation process.

Up until June 1, 2007, the IMC Chairperson used the offices of the TLECand modest administrative support services provided by the TLEC. The past andcurrent Chairperson does not act full time, but on an as needed basis. In thesecircumstances, it was evident that, after 10 years of existence, that neither theIMC as a group, nor the Chairperson was able to commit the time or resourcesnecessary to effectively fulfill their respective duties and responsibilities as

summarized in the above paragraphs.

Action: Set up a separate office for the administration of the IMC and focus ofthe work of the Chairperson in relation to the general facilitation of theimplementation process.

With the support of the Parties and the approval of sufficient funding todo so, office space was obtained for a 5 year term (with an option to opt out


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after 2 years) at 200-400 St. Mary Avenue, office improvements were completed,furniture and equipment obtained and installed, systems set up and two supportstaff were recruited, employed and in training by mid-June 2007.

Funding for this initiative was for a single fiscal year only, that year endingMarch 31, 2008. Funding for the continuance of the new initiatives being takenmust be approved before that date. Accountable advance funding is beingprovided by Manitoba and the TLEC under the MFA framework. INAC funding isbeing provided under the terms of the Chairpersons service agreement on anaccountable advance basis for the first three quarters only, the last quarter on anas incurred basis. This minor administrative matter should be formally correctedby the Parties by an administrative amendment of the MFA during 2008.

Action: Set up a File/Information Management System.

Although active for 10 years neither the IMC, nor its previousChairpersons had created a comprehensive file management system suitable forIMC records maintenance, implementation monitoring, tracking of Reservecreation, treatment/resolution of issues or matters in dispute or generaladministration IMC matters. As part of establishing the IMC office, this was afirst priority. The IMC now has a useable file and information managementsystem in place. We expect to develop a further more detailed level of filecoding system next year based on our experience with the system now in place.

The IMC office has three key groups of files, one group includes all 36 filesdealing with issues or matters in dispute with 12 files classified as active andthe rest of these files classified as resolved or no longer at issue, howeverthat is not to say that these files are either complete or current (see thecomments in this regard below). The second group of files intended to deal withthe monitoring of Reserve creation, includes the many types of reports producedby and to be produced by the Parties. The third group is the IMC general officefiles covering all other subjects necessary to manage IMC matters.

2. Record or Referral of Issues or Matters and Dispute:

Issue: The IMC did not have a complete List of Issues or Matters in Disputeeither historic or current, nor a record of the means of resolution of any matters,such that it was difficult to determine the status of issues or matters in dispute,efforts by the IMC or Chairperson to define and resolve issues or any record of the means of resolution to assist the Parties in future cases similar in nature.

Although there were files of varying degrees of completeness, effortsduring 2006 to produce an agreed List of all matters referred to the IMC since


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1997 had proven fruitless. The records of issue resolution essentially produces aform of procedural manual to be added to other materials produced to assiststaff, EFNs and other parties in understanding how and why issues or matters indispute were resolved in the agreed manner in a given case on a certain set offacts. The lack of this record, required by the MFA, was the second priority dueto the ongoing importance of issue resolution for Reserve creation.

Action: Prepare a Preliminary List of the Issues or Matters in Dispute.

It was certainly rather startling to find that the IMC did not have anagreed List of the issues or matters in dispute that had been referred to the IMCto track these matters over the past 10 years. None of the members of the IMCcould definitively confirm the number of issues or matters in dispute that had

been referred to the IMC since the execution of the MFA in 1997, the exact issueas arising from the specific provisions of the MFA, the agreed means ofresolution of all issues, if any, or the exact nature and number of issues activelyunder discussion. The point here is there was no consolidated List, andaccordingly, no consolidated List tracking issues related to the MFA itemizingmeans of resolution over time. This information if it did exist at all wasmaintained by each Party alone and not necessarily in any agreed form, on a fileby file basis.

With the cooperation of the Parties, a working document was preparedand issued for review by the IMC Representatives in August listing all of the

issues or matters in disputes reflected in the files of the IMC as at that point intime. This Preliminary List of the Issues or Matters in Dispute was created in anattempt to recreate and confirm a complete record of and the issues or mattersin dispute by Party, by EFN, by issue and by means of resolution. It becameevident that most of the 36 files referring to issues or matters in dispute werelargely incomplete, some files containing 3 or 4 pages and other several hundredpages of correspondence. By incomplete, it is also meant the stated issue wasunclear, relevant information and documents were missing or incomplete, andthe means, if any, of resolution was not stated or could not be discerned fromthe documents in the files. In addition, there was no method of tracking themeans/attempts at resolution over time from the date of referral to the last

document in the file and it was therefore impossible to determine the status of amatter.

Certain staff, particularly at INAC, expressed a reluctance to commit timeand effort required to complete this record, in particular in relation to apparentlyinactive files, in light of other demands on their time. This is understandable,but should not inappropriately defer the completion of this historical record. It is


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important that IMC records be brought forward for completion regardless of theactive/inactive nature of the issue and this task becomes more difficult with thepassage of time. The continued cooperation of all Parties is important and willbe required in the future.

Reflecting the urgency of resolution of current matters, the staffrepresenting each Party, then agreed to focus on the estimated 12 agreed activeissues or matters in dispute that they identified as set out on the Preliminary Listattached as Appendix C.

This remains a work in progress, all Parties presently focusing on the 12active files first and then the remainder 24 inactive files. This work should becompleted by March 31, 2008 at the latest.

Completion of the List will have a number of positive results. It willproduce a historical record of issues and addressed under the MFA for thereference of all Parties to be applied in implementation today and into the future.It will also be an IMC monitoring and reporting tool to be maintained, as well asa public record of progress (or lack thereof) in the resolution of issues and therole of the IMC in support of that process.

3. Resolution of Issues or Matters in Dispute

Issue: The IMC had not developed nor maintained a procedure to deal withissues or matters in dispute referred to the IMC, their means of resolution orcurrent status over the last 10 years of its existence in spite of the extensivedirections in that regard set out in the MFA apparently resulting the low level ofresolution of issues by the IMC.

The files suggest there are many possible reasons for the low level ofresolution of issues, including in various instances:

o A lack of clarity in the definition of implementation issues both ingeneral discussions and upon formal referral to the IMC;

o A failure to affirm the linkage of the issue or matter in dispute to

the specific provision(s) of the MFA;o The lack of clarity of definition and linkage giving rise to differences

in understanding of the issue leading to a lack of consensus on theapproaches to issue resolution and arguments at cross purposes;

o A lack of consensus on the interpretation or method of applicationof the MFA on a given step in implementation;

o At times, a lack of forthright discussion and disclosure ofinformation pertinent to the issue or matter even when there was


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an acknowledgement of the need to address the issue or matter bythe IMC;

o An overly technical or legalistic approach to interpretation of theMFA;

o A failure to appreciate the nature of the Principles of Land Selectionand Acquisition as guidelines requiring further enhancement duringimplementation and flexibility in their application as anticipated bythe MFA; and

o A failure to appreciate the Treaty context of the MFA, the reasonsfor its existence and the relevant underlying legal obligations of theCrown;

which must and will continue to be matters for discussion among the IMC

Representatives.

Even so, in spite of the impact of these shortcomings on the approach of eachParty to issue resolution, the practical effect of a lack of an organized approachto and record of the Partys efforts in the resolution of issues or matters indispute either apart from or by way of the IMC, the existence of the IMC itselfmay have been impeding the development of a format for problem solving. Thatis, each IMC Representatives appears to have his or her own idea or approachresolution of referrals to the IMC and either did not take steps to develop aconsensus on how to do so or perhaps rely upon the Chairperson to handleeverything. Further, due to the lack of organization around issue resolution and

frustrations in implementation, issues were often referred to the IMC without thefullest of staff efforts to define and resolve issues undermining workingrelationships, complicating any efforts to organize the IMC based process.

Action: Development of a Guideline or Protocol for the Definition andEfforts at Resolution of Issues or Matters in Dispute.

Reflecting a perception of the various shortcomings of the referralresolution process, the IMC office undertook to develop a guideline or format forissue definition and resolution which was called the Protocol for the Referral andReview of an Issue or Matter in Dispute, or for short, the I/M Referral

Protocol, essentially an attempt at a standardized form for the submission of areferral which would also be used to define and track the review of the referralover time by the IMC. Ultimately, as submitted and then revised during the IMCreferral review process, the Protocol is to be used to first document the referral,then the steps toward resolution of the referred issue and its means ofresolution. If not resolved, it would contain the summary statement of theattempt of the Parties to resolve the issue upon referral of the matter to the SAC


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under the MFA. See Appendix D. The Parties affirmed the Protocol and haveused the format in their recent referrals and replies. The form will evolve asnecessary after a reasonable experience with its application, but shouldcontribute both to a better definition and understanding of the issue at theoutset, appreciation for the views of the other party(s) to the issue andencourage a more structured approach to problem solving over time.

Issue: The IMC itself seems to have evolved into a bottleneck of sorts for theresolution of issues and implementation procedure.

Each Party has the obligation to accept its responsibilities and dischargeits duties under the MFA in good faith with due diligence in keeping with theirstated Best Efforts, the terms, spirit and intent of the MFA. Each Party has the

obligation to do so on a day to day basis in regular communication with the otherParties and EFNs as necessary. Unfortunately, at times it appears that the TLEChas had a tendency, likely as a result of its frustrations with the Parties workingrelationship, openness in communications and general pace of implementation,to frame any issue or difficulty that arises as an issue or matter in dispute andrefer it to the IMC, before all Parties have exhausted reasonable efforts to dealwith the issue or difficulty. In addition, the Parties have shown a tendency to acton an issue or matter in dispute only upon and at IMC meetings once the matteris tabled before or referred to the IMC, thereby greatly delaying attempts atresolution. This practice should be discouraged by the IMC Representatives andeach Party act on its MFA obligations in the normal course of implementation

business with the full participation of all three Parties.

Action: The Chairperson has and will continue to encourage the Parties to makeevery effort to resolve implementation matters before making a referral to theIMC and when doing so, will expect the referral to reflect the fullest extent of that effort.

Action: Implement practices to affirm the MFA obligations of each Party.

In simple terms, this means each Party must assume its responsibilitiesassigned to it under the MFA. For example, for various reasons, the staff

capacity of TLEC is limited, certainly less than that of Canada, despite having agreater lead responsibility for EFN capacity building for local delivery. At thesame time that TLEC takes the lead role in this regard, the TLEC must be able torely on the fullest of INAC support of those efforts, including long termimplementation funding, staff training, staff secondments/exchanges and anincrease in cooperative discussions at parcel review and other workshop andplanning meetings. Further there appears to be insufficient guidelines preparedby any of the Parties to assist the EFNs and other Parties in appreciating the


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many steps in Reserve creation, a generalized task to which greater attentionshould be paid in the immediate, short term future by each of the Parties.

4. Building a Better Working Relationship:

Issue: Unfortunately, the working relationship among the Parties has not beenparticularly conducive to constructive dialogue and mutual problem solving,largely due to traditional intergovernmental attitudes (federal, provincial and FirstNation), the failure of federal and provincial policies and practices to evolve orshow more flexibility when required by the MFA, the recent increase in politicaltension as Aboriginal rights have been legally defined and resulting implicationson governmental status quo and politics, as well as personality conflicts amongimplementation staff. As a result, it has appeared to me that the IMC has been

perceived as an aggravation, an ineffective vehicle in implementation with theresult that information necessary to problem solving and implementation processis advanced belatedly and somewhat hesitantly if at all.

Action: Take steps to encourage a most constructive working relationshipamong the Parties in the interest of improving the timeliness of theimplementation process.

Action: Scheduling of Regular Focus Meetings

To their credit, the Parties have now instituted, as part of the IMCs effortsin resolving issues or matters in dispute, meetings apart from day to day affairsand formal IMC meetings which have been called focus meetings to discussspecific issues that are impeding the implementation of the MFA. In these focusmeetings, the Parties are encouraged to build upon rather than defend pastapproaches and take a constructive, rather than positional approach to problemsolving, to come to the table open to new perspectives and solutions in the spiritof cooperation as reflected in the MFA.

Regular, constructive communication is important to building a workingrelationship and sufficient confidence among the Parties conducive to aproductive, collective effort geared to positive progress in implementation.

Certainly the stops and starts over the last decade have tended to undermine thegood intent and spirit of cooperation that must support the constantcommunication necessary in this type of multi-faceted process.

Action: Revisit Operational Concepts that have Impeded Relationship Building

Concepts discussions are meant for the IMC Representatives to reviewand discuss concepts reflected in the MFA to ensure they are being reflected in


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the handling of issues at the IMC and by the Parties in their day to day practice.Subjects or provisions giving rise to MFA concepts requiring discussion would beidentified by either the Representatives or the Chairperson from time to time.These concepts are general topics that may improve understanding of the MFAand IMC support for implementation like the role of the IMC, ideas/plans forimprovements and the application of the concepts reflected in the MFAsettlement.

By way of example, Manitoba was asked to review its approach to thereview of Selections submitted by EFNs in light of concerns about the practice asit may or may not be in compliance with the directions reflected in the provisionsof the MFA and how the usual practice of the review may affect theresponsibilities of each Party. See the correspondence on the concept of

deemed ineligibility as had been reflected in Manitobas practice of review ofSelections, attached as Appendix E.

Action: Encourage open Discussion of Issues around Discussion Papers

In some cases, the implementation of the MFA is impeded by the Partiesconflicting interpretations of certain provisions of the MFA. Conflictinginterpretations and procedures employed by the Parties has impeded or stoppedthe process of Reserve creation in some cases. When there is sufficientunderstanding of the nature of the conflict, a discussion paper can be preparedby the IMC office based upon an understanding of the views of the Parties and

independent view of the directions or requirements of the MFA to assist theParties in consideration of a new perspective on the process of implementationthat will encourage evolution of the concept of right on questions ofinterpretation or procedure in relation to particular provisions of the MFA.

The first draft Discussion Paper on the question of treatment of Selectionsof Crown Land of less than 1,000 acres was prepared by the IMC and provided tothe Parties for consideration on October 26, 2007. See Appendix F. Theresponse of the Parties to this type of initiative will be a telling example of theextent of commitment to implementation so expressly and repeatedly advancedby Canada, Manitoba and the TLEC, the willingness of the Parties to move

forward positively in a way consistent with the MFA and the extent to which eachParty can incorporate modest changes in perspective into their thinking aboutinterpretation of the MFA, all in the interests of increasing the timeliness ofimplementation of the MFA.

The challenge for the Parties is to revisit the key process issues andconcepts relevant to Selections and the processing of the setting apart of thoseSelections as Reserve. This challenge if accepted by the Parties, involves a


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willingness to create a new dialogue which can deal with the weight of history(e.g. ongoing grievances in relation to the Nelson/Churchill River diversion,Manitobas traditional views on its constitutional and practical obligations to FirstNations, Canadas failure to fulfil its Treaty obligations and continuing failure tomeet its MFA obligations per the 2005 AGs Report, etc.).

4. General Observations:

Each Party has a unique approach to implementation under the MFAwhich has affected the establishment of a constructive working relationship.

Manitoba: Manitobas approach is presented in a more technical manner,which has appeared to be highly reliant on a legal interpretation of the provisionsof the MFA which has exhibited little room for compromise. Recently, however,Manitoba has conceded to some flexibility in certain applications of therequirements of the MFA to reach objective goals of setting land apart asReserve. Unfortunately, Manitobas working relationship with the TLEC is attimes strained. Manitoba should incorporate more direct orientation and traininginto its delivery planning becoming more involved in capacity building. Indeed,the many Third Party Interests impeding are established under provincialauthority, the means and methods of addressing and dealing with these TPIsbeing one of the major challenges in implementation. Manitoba could play astronger role in the education, liaison and resolution aspects of TPIs. Staff of theCrown Lands Branch in particular have shown a willingness and capacity for this

type of hands on support.

Among the Parties, Manitoba to its credit has the most comprehensive anduseable form of information management system to track the process ofSelection/Acquisition and Reserve creation which all Parties have and must relyupon.

TLEC: The TLECs approach is at times overtly political, evidencing afrustration with the technical process and working relationships with Canada andManitoba. Difficulties with insufficient staff capacity, (although somewhat relatedto an internal matter of management of the Implementation funding set apart

under the MFA as I understand), appears to have been impacted by aninadequacy in the original level of funding set aside for implementation relativeto the demands experienced and inertia it faced at the outset of implementationin the early years. As affirmed in the Auditor Generals Report of 2005, thefailure of Canada to dedicate sufficient staff and resources to MFAimplementation as required by the MFA aggravated the impact of thesecircumstances.


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In my view, it will likely take several years to reestablish the TLEC andINAC delivery capacity and the allocation of sufficient resources to both TLECand INAC to enable them to meet the challenges of implementation which arenow well understood. If not, the current pace and difficulties withimplementation are unlikely to change. Arguably, only after the TLEC supportcapacity is increased, will the capacity of the EFNs to respond be improved andthe overall process benefit as a result. The TLEC technical support to the EFNsmust thereby be improved, one of the key areas for improvement being theturnaround time from EFNs on steps/decisions that result in lengthy delaysduring the Reserve creation process.

On occasion, the TLECs frustration with the implementation of the MFAhas spilled over into IMC, focus and other meetings and communications, often

encouraged by the content of directions/frustrations of First Nations politicalorganizations that the EFNs are part of as part of a broader First Nations agenda,and as a result, makes for a rather strained relationship with Manitoba andCanada. Also due to its frustrations, the TLEC has tended to refer matters to theIMC for resolution where it is frequently more appropriate to continuediscussions/negotiations with the other Parties.

In terms of tracking of the Reserve creation process, TLEC can producesummary reports but does not have a consolidated information managementsystem to monitor and track the overall process yet. TLEC has contracted for thedevelopment of a software application to allow it track progress by EFN, by

parcel and overall progress that is in its advanced stage of development. Aworking application is expected to be operational by the end of January 2008.

Canada: As the 2005 Auditor General Report emphasized, Canada wasslow off the mark, failing to manage and organize it efforts to implement TLEagreements generally, the MFA specifically, for various reasons. Canada hasrecently added significantly to its staff capacity, but at risk of underscoring themore limited staff capacity of the TLEC. Canada had addressed theimplementation of the MFA by attempting to find solutions within the constraintsof its internal policies, in particular the Additions to Reserves Policy, oftenwithout appropriate regard for its obligations under and the requirements of the

MFA. For example, although the ATR policy has a significantly modifiedapplication under the MFA, Canada has not produced an analysis of the MFAmodified version of its application to date. It would be well advised to do so assoon as possible. With the clarification of the ATRP in 2001, it has not beendetermined if or how the new Policy might assist the MFA implementationprocess, if at all, and what elements of the 2001 version should be accepted forapplication by TLEC. Yet nationally, Canada is intent on an intensive review of


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the ATRP, at least to the extent that it should or should not be applied inmeeting Canadas legal obligations to set apart land as Reserve under Treaty orsettlements such as the MFA. This situation has and will produce confusion forall Parties and will not improve if a further another version of the ATR policy,having no application to the MFA, emerges without a full understanding of howthe 1991 Policy in fact applies to the MFA based Reserve creation process, muchless what elements of the 2001 version should be accepted as applicable byTLEC.

Practice wise, in certain respects it appears that Canada is at times tornbetween its internal and external pressures to accelerate the TLE implementationprocess which is reflected in the assignment of its priorities, the related workloadand its ability to deal with current issues in a timely manner, sometimes at odds

with its MFA and IMC obligations. INAC has made significant adjustments in itsstaff capacity of late and should increase its level of involvement with TLEC andthe EFNs accordingly.

In terms of a Reserve creation or other implementation/performancemeasurement reports, INAC maintains a file by file record and overall monitoringreporting system at best. It has no consolidated reporting system that tracksReserve creation or other related processes at this point, although again, INAC isin the midst of the development of the system, scheduled for completion in mid-2009.

Entitlement First Nations: Implementation success is in many ways highlyreliant on the performance of the EFNs. Files at the IMC indicate that some ofthe EFNs bear a significant responsibility for delay in the setting apart of theirSelections as Reserve. With the support of the TLEC and INAC, greater planningand research could be done in relation to Selections made, includingconsideration of the implications of Selections impacted by Third Party Interests,the size and location of Selections and other matters. TLEC, INAC and Manitobashould develop a plan to review existing Selections and assist EFNs inappreciating the implications of remaining Selections. Clearly, some EFNs arenot well equipped to respond to requests by the Parties for decisions ordirections. Non - MFA agendas or interests also seem to bear upon Selection

decisions in some cases, in particular continuing objections to hydrodevelopments in the North. The EFNs express a frustration with their perceptionof the lack of respect/accord for their Treaty and Aboriginal rights, all of whichresult in a difficult working context.


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6. Summary Remarks:

All three Parties want to move forward and improve the process of

implementation of the MFA. However, there exists a perceptible disconnect _

between MFA obligations and a common understanding of the terms of the MFA,between political direction and day to day practice of the Parties, between wordsof commitment and reality, between expected performance and capacity,between fact and perception and between the expectations of the Parties andactual results.

Since 1997, the Parties have made some compromises in the goal ofsetting land apart as Reserve, but the passage of time has served to harden thepositions of each Party on a number of issues that impede the Reserve creation

process some such positions closely held without fair review and reconsiderationfor 10 years. In these circumstances, there can be no satisfaction for any Party.The objectives of the MFA will not be met, now or ever, without a fundamental,concerted and sustained effort by all three Parties, including changes in policy,practice and approach by all three Parties.

By way of illustration of the results of the status quo, the James Bay andNorthern Quebec Agreement was executed in 1975, one of the first and mostcomprehensive land claim settlements in the history of Canada. Canada andQuebec failed so miserably in their efforts that they each were recently obligedto settle lawsuits filed by the Cree alleging that Canada and Quebec were in

breach of the terms of that Agreement for the combined sum of $ 4,900,000,000.00 (Yes, thats 4.9 billion dollars, see Appendix G). Surely, theParties do not want to be a historic footnote on a similar path. If not, workingtogether, the Parties must find a way to make substantial changes in theapproaches taken toward implementation of the MFA soon, likely beginning withthe attitudes of the Parties and nature of their working relationship, including themore timely resolution of issues and the construction of suitable performancemeasurement and reporting systems. This is the task of each of the Parties,undertaken by each of the IMC Representatives. I can only assist each Party,each IMC Representative in doing so, it will require your greater respectiveefforts, cooperation and true commitment.

In relation to interpretation of the issues referred to the IMC and in theprocess of implementation, including the initial review of Selections, it wasinteresting to note that each Party asserted a claim to right. That is, whicheverParty had the responsibility, that Party was always right in how that Partyinterpreted and applied the MFA. Of course, that is typically the case, each Partyassumes and trusts that it is doing it right and the process is self affirming


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internally. After 10 years of comfort in being right, and 10 years of strugglesto implement the MFA with only recent success, being right is not good enough;a new concept of right is required for substantial improvements in the natureand pace of implementation and relationship among the Parties. This requiresthe Parties to truly move forward with a renewed commitment, in a spirit ofcooperation in a manner that respects the terms of the MFA.

Perhaps the Parties should be reminded that the MFA is an agreementwhich essentially affirms Canadas failure to fulfil its original Treaty obligations, afailing that will only be compounded by a failure to implement the MFA in atimelier manner in accordance with its terms, spirit and intent.

Miigwetch.

James R. McLeod,Chairperson, IMC

List of Appendices:

A Letter McLeod to IMC- Terms of Appointment Dec. 6, 2006

B Letter IMC to McLeod Terms of Appointment Jan. 24, 2007

C Preliminary List of Issue and Matters in Dispute - December 2007

D Protocol for the Referral and Review of an Issue or Matter inDispute

E Letters Manitoba to IMC Chair (October 1, 2007) and IMC Chairto Manitoba (November 20, 2007) re Practice of Manitoba Reviewof Selections

F Discussion Paper Selections of Land Less than 1,000 Acres inArea

G Copy of Article The Lawyers Weekly September 21, 2007

Documents

aInterim Report of the Chairperson Dec 07 Final Fin