Interim Report

Chairperson Of the Implementation Monitoring Committee 1997 Manitoba Framework Agreement On Treaty Land Entitlement December 2007 ..
Introduction: In December 2006 when I was first contacted by Canadas IMC Representative and asked to consider accepting appointment as Chairperson of the Implementation Monitoring Committee, I admit I was hesitant to do so. Over the past 10 years, I had only minor formal involvement in one MFA matter, but like all legal counsel and others involved in the negotiation of the 1997 Manitoba Framework Agreement (MFA) on Treaty Land Entitlement (TLE), I had remained informed 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 selected 87.8% of their Crown Land entitlement only 27,336 acres involving 20 parcels of land had been set apart as Reserve. Further, the EFNs with a right to purchase Other Land had purchased only 4.5% of that land and none of that land had been set apart as Reserve. This was not a good record in MFA implementation using Reserve creation as the performance measurement. Parties informed about the process laid out a long list of issues impeding progress in MFA delivery, including concerns about the financial and related administrative capacity of the Treaty Land Entitlement Committee, the central support and delivery agency for the EFNs, assertions of an overly technical and legalistic approach to delivery by Manitoba and a general lack of organization and support from INAC in the overall process. These were not my views necessarily, but rather summary comments from individuals involved in various aspects of the MFA process.

Interim Report of the Chairperson

-2-

Implementation Monitoring Committee December - 2007

Indeed, a year earlier, in November 2005, the independent office of Canadas Auditor General (AG) had examined the management of the implementation of TLE agreements in Manitoba and Saskatchewan and whether delivery by INAC was consistent with the legal obligations set out in those agreements issuing a detailed audit report. The AGs audit report affirmed, among other things, that the INAC lacked a management framework to deal with Reserve creation, a plan to deal with outstanding selections in a reasonable timeframe, a means of tracking selections throughout the Reserve creation process, procedures and tools to guide its staff and deficiencies in many other areas of its responsibility required to meet its implementation obligations. Importantly, on August 22, 2006, the Minister of Indian Affairs had made a commitment 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 was supported in his commitment by the Minister of Aboriginal and Northern Affairs for Manitoba. Incidentally and of some added significance, the second independent Chairperson of the IMC had recently resigned his appointment in difficult circumstances after one of the three parties of the MFA (the TLEC) essentially refused to cooperate in the further operation of the IMC in direct contradiction of their 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, Assistant Deputy Ministers and Directors General expressly and clearly state their continuing commitment to the successful implementation of the MFA, a view understood and repeated by the staff of all Parties involved in the day to day administration of the MFA implementation. Despite these assurances at the highest level of government and a degree of progress on several fronts, the overall procedure and dynamics of the implementation process have not yet changed to a sufficient degree that any Party could confidently assert that it is now meeting its MFA obligations, some 10 years after the date each Party made a solemn commitment to do so. Terms of Appointment of Chairperson: As a result of the public knowledge of ongoing problems being experienced with the MFA implementation process, on December 6, 2006, I asked that the IMC Representatives and indirectly the Senior Advisory Committee that would make the appointment, to commit to taking a number of preliminary steps essential for the establishment or reconstruction of the IMC as an effective vehicle or tool to

Interim Report of the Chairperson

-3-

Implementation Monitoring Committee December - 2007

assist the parties in the process of implementation in the manner described in the MFA (see Appendices A and B respectively). Although the Parties are each fully responsible and liable for the due performance of their respective obligations under the MFA, the MFA prescribes a specific role and list of duties for the IMC and the IMC Chairperson distinct from the roles and responsibilities of the Parties (e.g. Sections 34.07 and 34.09 of the MFA). It was evident from discussions with the representatives of each of the Parties that the IMC was not functioning in the manner directed by the MFA to: generally facilitate the implementation of the MFA, by among other requirements: 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 the MFA or any TEA referred to it by any Party or EFN; and o considering the appropriate method of resolution of an issue or matter in dispute; in all respects supported by the general direction of the independent Chairperson in (apart from his/her administrative role and Section 35/36 duties): maintaining and distributing a record of decisions, awards and other pertinent information: o determining the sufficiency of information provided to the IMC in relation to implementation; o if necessary, requesting that appropriate steps be taken to provide information as may be deemed appropriate related to implementation; o in relation to the resolution of issues or matters in dispute, proposing time periods for responding to referrals directing the completion of reports, identifying strengths and weaknesses of proposed 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 the duties of the IMC, in dealing with implementation matters or handling of issues or matters in dispute, with or without the agreement of the IMC;

Interim Report of the Chairperson

-4-

Implementation Monitoring Committee December - 2007

o recording of the means of resolution or inability of the IMC to determine a means of resolution of an issue or matter in dispute referred to the IMC; o referring any matter the IMC cannot resolve by consensus to the SAC along with a statement of the issue, means recommended for resolution by the Chairperson, summary of directions given and response of each IMC members to the recommendation; and o preparing and tabling annual and other special reports to the Parties on the overall state of implementation, including a summary of issues addressed and resolved and recommendations for improvement of any aspect of the MFA implementation process. Preliminary Steps Taken in Relation to the Establishment of the Office of the Chairperson and Role of the IMC: The following is my general review and comment on the preliminary organizational steps taken since March 1, 2007, in relation to the reestablishment of the IMC in a manner that would enable it to assist the IMC in discharging its duties and ensuring the Chairperson has the ability to perform his/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 IMC matters 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 the MFA/IMC implementation process.
Up until June 1, 2007, the IMC Chairperson used the offices of the TLEC and modest administrative support services provided by the TLEC. The past and current Chairperson does not act full time, but on an as needed basis. In these circumstances, it was evident that, after 10 years of existence, that neither the IMC as a group, nor the Chairperson was able to commit the time or resources necessary 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 of the work of the Chairperson in relation to the general facilitation of the implementation process.
With the support of the Parties and the approval of sufficient funding to do so, office space was obtained for a 5 year term (with an option to opt out

Interim Report of the Chairperson

-5-

Implementation Monitoring Committee December - 2007

after 2 years) at 200-400 St. Mary Avenue, office improvements were completed, furniture and equipment obtained and installed, systems set up and two support staff were recruited, employed and in training by mid-June 2007. Funding for this initiative was for a single fiscal year only, that year ending March 31, 2008. Funding for the continuance of the new initiatives being taken must be approved before that date. Accountable advance funding is being provided by Manitoba and the TLEC under the MFA framework. INAC funding is being provided under the terms of the Chairpersons service agreement on an accountable advance basis for the first three quarters only, the last quarter on an as incurred basis. This minor administrative matter should be formally corrected by 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 previous Chairpersons had created a comprehensive file management system suitable for IMC records maintenance, implementation monitoring, tracking of Reserve creation, treatment/resolution of issues or matters in dispute or general administration IMC matters. As part of establishing the IMC office, this was a first priority. The IMC now has a useable file and information management system in place. We expect to develop a further more detailed level of file coding 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 files dealing with issues or matters in dispute with 12 files classified as active and the rest of these files classified as resolved or no longer at issue, however that is not to say that these files are either complete or current (see the comments in this regard below). The second group of files intended to deal with the monitoring of Reserve creation, includes the many types of reports produced by and to be produced by the Parties. The third group is the IMC general office files 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 Dispute either 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, efforts during 2006 to produce an agreed List of all matters referred to the IMC since

Interim Report of the Chairperson

-6-

Implementation Monitoring Committee December - 2007

1997 had proven fruitless. The records of issue resolution essentially produces a form of procedural manual to be added to other materials produced to assist staff, EFNs and other parties in understanding how and why issues or matters in dispute were resolved in the agreed manner in a given case on a certain set of facts. The lack of this record, required by the MFA, was the second priority due to 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 an agreed List of the issues or matters in dispute that had been referred to the IMC to track these matters over the past 10 years. None of the members of the IMC could 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 issue as arising from the specific provisions of the MFA, the agreed means of resolution of all issues, if any, or the exact nature and number of issues actively under discussion. The point here is there was no consolidated List, and accordingly, no consolidated List tracking issues related to the MFA itemizing means of resolution over time. This information if it did exist at all was maintained by each Party alone and not necessarily in any agreed form, on a file by file basis. With the cooperation of the Parties, a working document was prepared and 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 in time. This Preliminary List of the Issues or Matters in Dispute was created in an attempt to recreate and confirm a complete record of and the issues or matters in dispute by Party, by EFN, by issue and by means of resolution. It became evident that most of the 36 files referring to issues or matters in dispute were largely incomplete, some files containing 3 or 4 pages and other several hundred pages of correspondence. By incomplete, it is also meant the stated issue was unclear, relevant information and documents were missing or incomplete, and the means, if any, of resolution was not stated or could not be discerned from the documents in the files. In addition, there was no method of tracking the means/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 a matter. Certain staff, particularly at INAC, expressed a reluctance to commit time and effort required to complete this record, in particular in relation to apparently inactive 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

Interim Report of the Chairperson

-7-

Implementation Monitoring Committee December - 2007

important that IMC records be brought forward for completion regardless of the active/inactive nature of the issue and this task becomes more difficult with the passage of time. The continued cooperation of all Parties is important and will be required in the future. Reflecting the urgency of resolution of current matters, the staff representing each Party, then agreed to focus on the estimated 12 agreed active issues or matters in dispute that they identified as set out on the Preliminary List attached as Appendix C. This remains a work in progress, all Parties presently focusing on the 12 active files first and then the remainder 24 inactive files. This work should be completed by March 31, 2008 at the latest. Completion of the List will have a number of positive results. It will produce a historical record of issues and addressed under the MFA for the reference 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 as a public record of progress (or lack thereof) in the resolution of issues and the role 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 with issues or matters in dispute referred to the IMC, their means of resolution or current status over the last 10 years of its existence in spite of the extensive directions in that regard set out in the MFA apparently resulting the low level of resolution of issues by the IMC.
The files suggest there are many possible reasons for the low level of resolution of issues, including in various instances: o A lack of clarity in the definition of implementation issues both in general 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 the approaches to issue resolution and arguments at cross purposes; o A lack of consensus on the interpretation or method of application of the MFA on a given step in implementation; o At times, a lack of forthright discussion and disclosure of information pertinent to the issue or matter even when there was

Interim Report of the Chairperson

-8-

Implementation Monitoring Committee December - 2007

an acknowledgement of the need to address the issue or matter by the IMC; o An overly technical or legalistic approach to interpretation of the MFA; o A failure to appreciate the nature of the Principles of Land Selection and Acquisition as guidelines requiring further enhancement during implementation and flexibility in their application as anticipated by the MFA; and o A failure to appreciate the Treaty context of the MFA, the reasons for its existence and the relevant underlying legal obligations of the Crown; 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 each Party to issue resolution, the practical effect of a lack of an organized approach to and record of the Partys efforts in the resolution of issues or matters in dispute either apart from or by way of the IMC, the existence of the IMC itself may have been impeding the development of a format for problem solving. That is, each IMC Representatives appears to have his or her own idea or approach resolution of referrals to the IMC and either did not take steps to develop a consensus on how to do so or perhaps rely upon the Chairperson to handle everything. Further, due to the lack of organization around issue resolution and frustrations in implementation, issues were often referred to the IMC without the fullest of staff efforts to define and resolve issues undermining working relationships, complicating any efforts to organize the IMC based process.

Action: Development of a Guideline or Protocol for the Definition and Efforts at Resolution of Issues or Matters in Dispute.
Reflecting a perception of the various shortcomings of the referral resolution process, the IMC office undertook to develop a guideline or format for issue definition and resolution which was called the Protocol for the Referral and Review 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 a referral which would also be used to define and track the review of the referral over time by the IMC. Ultimately, as submitted and then revised during the IMC referral 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 of resolution. If not resolved, it would contain the summary statement of the attempt of the Parties to resolve the issue upon referral of the matter to the SAC

Interim Report of the Chairperson

-9-

Implementation Monitoring Committee December - 2007

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

Issue: The IMC itself seems to have evolved into a bottleneck of sorts for the resolution of issues and implementation procedure.
Each Party has the obligation to accept its responsibilities and discharge its duties under the MFA in good faith with due diligence in keeping with their stated 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 other Parties and EFNs as necessary. Unfortunately, at times it appears that the TLEC has had a tendency, likely as a result of its frustrations with the Parties working relationship, openness in communications and general pace of implementation, to frame any issue or difficulty that arises as an issue or matter in dispute and refer it to the IMC, before all Parties have exhausted reasonable efforts to deal with the issue or difficulty. In addition, the Parties have shown a tendency to act on an issue or matter in dispute only upon and at IMC meetings once the matter is tabled before or referred to the IMC, thereby greatly delaying attempts at resolution. This practice should be discouraged by the IMC Representatives and each 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 make every effort to resolve implementation matters before making a referral to the IMC 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 responsibilities assigned 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 a greater lead responsibility for EFN capacity building for local delivery. At the same time that TLEC takes the lead role in this regard, the TLEC must be able to rely on the fullest of INAC support of those efforts, including long term implementation funding, staff training, staff secondments/exchanges and an increase in cooperative discussions at parcel review and other workshop and planning meetings. Further there appears to be insufficient guidelines prepared by any of the Parties to assist the EFNs and other Parties in appreciating the

Interim Report of the Chairperson

- 10 -

Implementation Monitoring Committee December - 2007

many steps in Reserve creation, a generalized task to which greater attention should 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 been particularly conducive to constructive dialogue and mutual problem solving, largely due to traditional intergovernmental attitudes (federal, provincial and First Nation), the failure of federal and provincial policies and practices to evolve or show more flexibility when required by the MFA, the recent increase in political tension as Aboriginal rights have been legally defined and resulting implications on governmental status quo and politics, as well as personality conflicts among implementation staff. As a result, it has appeared to me that the IMC has been perceived as an aggravation, an ineffective vehicle in implementation with the result that information necessary to problem solving and implementation process is advanced belatedly and somewhat hesitantly if at all. Action: Take steps to encourage a most constructive working relationship among the Parties in the interest of improving the timeliness of the implementation process. Action: Scheduling of Regular Focus Meetings
To their credit, the Parties have now instituted, as part of the IMCs efforts in resolving issues or matters in dispute, meetings apart from day to day affairs and formal IMC meetings which have been called focus meetings to discuss specific issues that are impeding the implementation of the MFA. In these focus meetings, the Parties are encouraged to build upon rather than defend past approaches and take a constructive, rather than positional approach to problem solving, to come to the table open to new perspectives and solutions in the spirit of cooperation as reflected in the MFA. Regular, constructive communication is important to building a working relationship and sufficient confidence among the Parties conducive to a productive, collective effort geared to positive progress in implementation. Certainly the stops and starts over the last decade have tended to undermine the good intent and spirit of cooperation that must support the constant communication 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 review and discuss concepts reflected in the MFA to ensure they are being reflected in

Interim Report of the Chairperson

- 11 -

Implementation Monitoring Committee December - 2007

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 be identified by either the Representatives or the Chairperson from time to time. These concepts are general topics that may improve understanding of the MFA and IMC support for implementation like the role of the IMC, ideas/plans for improvements and the application of the concepts reflected in the MFA settlement. By way of example, Manitoba was asked to review its approach to the review of Selections submitted by EFNs in light of concerns about the practice as it may or may not be in compliance with the directions reflected in the provisions of the MFA and how the usual practice of the review may affect the responsibilities of each Party. See the correspondence on the concept of deemed ineligibility as had been reflected in Manitobas practice of review of Selections, 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 Parties conflicting interpretations of certain provisions of the MFA. Conflicting interpretations and procedures employed by the Parties has impeded or stopped the process of Reserve creation in some cases. When there is sufficient understanding of the nature of the conflict, a discussion paper can be prepared by 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 the Parties in consideration of a new perspective on the process of implementation that will encourage evolution of the concept of right on questions of interpretation or procedure in relation to particular provisions of the MFA. The first draft Discussion Paper on the question of treatment of Selections of Crown Land of less than 1,000 acres was prepared by the IMC and provided to the Parties for consideration on October 26, 2007. See Appendix F. The response of the Parties to this type of initiative will be a telling example of the extent of commitment to implementation so expressly and repeatedly advanced by 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 each Party can incorporate modest changes in perspective into their thinking about interpretation of the MFA, all in the interests of increasing the timeliness of implementation of the MFA. The challenge for the Parties is to revisit the key process issues and concepts relevant to Selections and the processing of the setting apart of those Selections as Reserve. This challenge if accepted by the Parties, involves a

Interim Report of the Chairperson

- 12 -

Implementation Monitoring Committee December - 2007

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 First Nations, Canadas failure to fulfil its Treaty obligations and continuing failure to meet its MFA obligations per the 2005 AGs Report, etc.). 4. General Observations: Each Party has a unique approach to implementation under the MFA which 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 provisions of the MFA which has exhibited little room for compromise. Recently, however, Manitoba has conceded to some flexibility in certain applications of the requirements of the MFA to reach objective goals of setting land apart as Reserve. Unfortunately, Manitobas working relationship with the TLEC is at times strained. Manitoba should incorporate more direct orientation and training into its delivery planning becoming more involved in capacity building. Indeed, the many Third Party Interests impeding are established under provincial authority, the means and methods of addressing and dealing with these TPIs being one of the major challenges in implementation. Manitoba could play a stronger role in the education, liaison and resolution aspects of TPIs. Staff of the Crown 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 and useable form of information management system to track the process of Selection/Acquisition and Reserve creation which all Parties have and must rely upon.

TLEC: The TLECs approach is at times overtly political, evidencing a frustration with the technical process and working relationships with Canada and Manitoba. Difficulties with insufficient staff capacity, (although somewhat related to an internal matter of management of the Implementation funding set apart under the MFA as I understand), appears to have been impacted by an inadequacy in the original level of funding set aside for implementation relative to the demands experienced and inertia it faced at the outset of implementation in the early years. As affirmed in the Auditor Generals Report of 2005, the failure of Canada to dedicate sufficient staff and resources to MFA implementation as required by the MFA aggravated the impact of these circumstances.

Interim Report of the Chairperson

- 13 -

Implementation Monitoring Committee December - 2007

In my view, it will likely take several years to reestablish the TLEC and INAC delivery capacity and the allocation of sufficient resources to both TLEC and INAC to enable them to meet the challenges of implementation which are now well understood. If not, the current pace and difficulties with implementation are unlikely to change. Arguably, only after the TLEC support capacity is increased, will the capacity of the EFNs to respond be improved and the overall process benefit as a result. The TLEC technical support to the EFNs must thereby be improved, one of the key areas for improvement being the turnaround time from EFNs on steps/decisions that result in lengthy delays during the Reserve creation process. On occasion, the TLECs frustration with the implementation of the MFA has spilled over into IMC, focus and other meetings and communications, often encouraged by the content of directions/frustrations of First Nations political organizations 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 and Canada. Also due to its frustrations, the TLEC has tended to refer matters to the IMC for resolution where it is frequently more appropriate to continue discussions/negotiations with the other Parties. In terms of tracking of the Reserve creation process, TLEC can produce summary reports but does not have a consolidated information management system to monitor and track the overall process yet. TLEC has contracted for the development of a software application to allow it track progress by EFN, by parcel and overall progress that is in its advanced stage of development. A working application is expected to be operational by the end of January 2008.

Canada: As the 2005 Auditor General Report emphasized, Canada was slow off the mark, failing to manage and organize it efforts to implement TLE agreements generally, the MFA specifically, for various reasons. Canada has recently added significantly to its staff capacity, but at risk of underscoring the more limited staff capacity of the TLEC. Canada had addressed the implementation of the MFA by attempting to find solutions within the constraints of its internal policies, in particular the Additions to Reserves Policy, often without appropriate regard for its obligations under and the requirements of the MFA. For example, although the ATR policy has a significantly modified application under the MFA, Canada has not produced an analysis of the MFA modified version of its application to date. It would be well advised to do so as soon as possible. With the clarification of the ATRP in 2001, it has not been determined if or how the new Policy might assist the MFA implementation process, if at all, and what elements of the 2001 version should be accepted for application by TLEC. Yet nationally, Canada is intent on an intensive review of

Interim Report of the Chairperson

- 14 -

Implementation Monitoring Committee December - 2007

the ATRP, at least to the extent that it should or should not be applied in meeting Canadas legal obligations to set apart land as Reserve under Treaty or settlements such as the MFA. This situation has and will produce confusion for all 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 how the 1991 Policy in fact applies to the MFA based Reserve creation process, much less what elements of the 2001 version should be accepted as applicable by TLEC. Practice wise, in certain respects it appears that Canada is at times torn between its internal and external pressures to accelerate the TLE implementation process which is reflected in the assignment of its priorities, the related workload and 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 its staff capacity of late and should increase its level of involvement with TLEC and the EFNs accordingly. In terms of a Reserve creation or other implementation/performance measurement reports, INAC maintains a file by file record and overall monitoring reporting system at best. It has no consolidated reporting system that tracks Reserve creation or other related processes at this point, although again, INAC is in the midst of the development of the system, scheduled for completion in mid2009.

Entitlement First Nations: Implementation success is in many ways highly reliant on the performance of the EFNs. Files at the IMC indicate that some of the EFNs bear a significant responsibility for delay in the setting apart of their Selections as Reserve. With the support of the TLEC and INAC, greater planning and research could be done in relation to Selections made, including consideration of the implications of Selections impacted by Third Party Interests, the size and location of Selections and other matters. TLEC, INAC and Manitoba should develop a plan to review existing Selections and assist EFNs in appreciating the implications of remaining Selections. Clearly, some EFNs are not well equipped to respond to requests by the Parties for decisions or directions. Non - MFA agendas or interests also seem to bear upon Selection decisions in some cases, in particular continuing objections to hydro developments in the North. The EFNs express a frustration with their perception of the lack of respect/accord for their Treaty and Aboriginal rights, all of which result in a difficult working context.

Interim Report of the Chairperson

- 15 -

Implementation Monitoring Committee December - 2007

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 words of commitment and reality, between expected performance and capacity, between fact and perception and between the expectations of the Parties and actual results. Since 1997, the Parties have made some compromises in the goal of setting land apart as Reserve, but the passage of time has served to harden the positions of each Party on a number of issues that impede the Reserve creation process some such positions closely held without fair review and reconsideration for 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 and Northern Quebec Agreement was executed in 1975, one of the first and most comprehensive land claim settlements in the history of Canada. Canada and Quebec failed so miserably in their efforts that they each were recently obliged to 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, the Parties do not want to be a historic footnote on a similar path. If not, working together, the Parties must find a way to make substantial changes in the approaches taken toward implementation of the MFA soon, likely beginning with the attitudes of the Parties and nature of their working relationship, including the more timely resolution of issues and the construction of suitable performance measurement 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 respective efforts, cooperation and true commitment. In relation to interpretation of the issues referred to the IMC and in the process of implementation, including the initial review of Selections, it was interesting to note that each Party asserted a claim to right. That is, whichever Party had the responsibility, that Party was always right in how that Party interpreted and applied the MFA. Of course, that is typically the case, each Party assumes and trusts that it is doing it right and the process is self affirming

Interim Report of the Chairperson

- 16 -

Implementation Monitoring Committee December - 2007

internally. After 10 years of comfort in being right, and 10 years of struggles to 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 nature and pace of implementation and relationship among the Parties. This requires the Parties to truly move forward with a renewed commitment, in a spirit of cooperation in a manner that respects the terms of the MFA. Perhaps the Parties should be reminded that the MFA is an agreement which essentially affirms Canadas failure to fulfil its original Treaty obligations, a failing that will only be compounded by a failure to implement the MFA in a timelier manner in accordance with its terms, spirit and intent.

Miigwetch.

James R. McLeod, Chairperson, IMC

List of Appendices:

A B C D E

Letter McLeod to IMC- Terms of Appointment Dec. 6, 2006 Letter IMC to McLeod Terms of Appointment Jan. 24, 2007 Preliminary List of Issue and Matters in Dispute - December 2007 Protocol for the Referral and Review of an Issue or Matter in Dispute Letters Manitoba to IMC Chair (October 1, 2007) and IMC Chair to Manitoba (November 20, 2007) re Practice of Manitoba Review of Selections Discussion Paper Selections of Land Less than 1,000 Acres in Area Copy of Article The Lawyers Weekly September 21, 2007

F G