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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, Ontario
13 April 2012

609 Redwood Avenue Ottawa Ontario Canada K2A-3E8.


Tel. 613.722.3268 email: sicani@sicani.ca

Table of Contents

PART I: BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reserves, and Additions to Reserves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Methodology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Historical Context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Geographic Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Establishment of the Kahnawake Reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Alienation / Return of Reserve Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Some Jurisdictional Considerations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1
1
1
2
2
3
5
6

PART II: CURRENT ATR EFFORTS AT KAHNAWAKE. . . . . . . . . . . . . . . . . . . . . . . . 8


Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Quebec. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Canada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PART III: ISSUES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Sault Ste. Louis Seigneury Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Quebecs ATR Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Canadas ATR Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Resources and Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Time Lines and Delays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Subsurface.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Highway 30 Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Land Management and Certificates of Possession. . . . . . . . . . . . . . . . . . . . . .
Authorities, Third Parties, and the Indian Act.. . . . . . . . . . . . . . . . . . . . . . . . . .
Last words: MCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12
12
13
14
15
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19
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 underlying
federal presumption in the immediate wake of Confederation was that the Reserve
system 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 the
ground (provincial and municipal governments, third parties) has made the issue of new
or expanded Reserves increasingly problematic.
Over time, the Reserve system in each region of Canada has evolved somewhat
differently, based on the existence or absence of land surrender treaties, federal provincial relations, and the differing relations between each indigenous nation and the
Crown.
The existing federal Additions to Reserve (ATR) policy made its first appearance in
1969, 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 First
Nations have acknowledged the fact that the prevailing policy is not working, and they
have 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. The
contractor also collected relevant data from documentary sources, and websites
affiliated with MCK, AAND, and Natural Resources Canada. Finallly, telephone
interviews were carried out with staff from Quebecs Secrtariat aux affaires
autochtones (SAA), Transports Quebec (MTQ), and Ressources naturelles et Faune
(MRNF), as well as AANDs Quebec Regional Office.

Kahnawake ATR Case Study - Draft of 13 April, 2012


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Historical Context.
Because of its long history of Aboriginal - European contact, the territory now known as
Quebec 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 different
methods by which Reserve lands have been set aside in the province, beginning in the
late 17th century. Moreover, aside from the JBNQA, the majority of the territory currently
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 is
known as the southern ring of the metropolitan community of Montreal.2 According to
the 2011 federal census, the population of the metropolitan community of Montreal is
over 3,800,000 people.3 (See Map No. 1 showing regional context.) Information posted
on the AAND website indicates that, as of 2010, the total population of the Kahawake
Mohawk 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 the
Mercier 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 18th century peace and friendship treaties,
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).
2

The latter term is meant to include the island of Montreal as well as Laval, Longeueil, the "northern ring"
and the "southern ring".
3

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

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

Kahnawake ATR Case Study - Draft of 13 April, 2012


Prepared by Sicani Research & Advisory Services, Ottawa, Ontario

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

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


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

Kahnawake ATR Case Study - Draft of 13 April, 2012


Prepared by Sicani Research & Advisory Services, Ottawa, Ontario

Kahnawake ATR Case Study - Draft of 13 April, 2012


Prepared by Sicani Research & Advisory Services, Ottawa, Ontario

After the conquest of the French by the English in 1760, some of these complaints were
addressed by the British Governor of Quebec and his Military Council. In 1762, the
Military Council recognized that the seigneury was held for the benefit of the Mohawk
people, 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,
1867.6 A federal government memo on Indian Reserves in Quebec, prepared in 1954,
confirms that the Royal Proclamation of 1763 applies to the Kahnawake Reserve.7
Continuing disputes regarding the portions of the original seigneurial grant which had
been alienated by the Jesuits are currently the subject of discussions between the
Mohawk 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 its
neighbouring municipalities have grown considerably, to the point where the Reserve is
literally surrounded by urban development. Because of its strategic location on the
south shore of the St. Lawrence River, it has been a target for expropriation, in order to
enable outside governments to construct and maintain critical transport and
communications infrastructure. It is impossible to consider Kahnawakes current efforts
at ATR without at least a brief review of the land alienations that took place between
1888 and 1956.
The original seigneurial grants measured approximately 45,000 acres (about 18,210
hectares).8 According to the Department of Aboriginal Affairs website, the Kahnawake
Reserve currently measures 11,888 acres (4,811 hectares) in size.9 From these
numbers, it is apparent that a significant amount of territory - approximately 33,112
acres - has been alienated from the Kahnawake Reserve.
As mentioned in the preceding section, the Jesuits were responsible for many of these
alienations 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
6

Jacqueline Beaulieu, Localization of the Aboriginal Nations in Quebec: Land Transactions. French
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.
7

9 November 1954: Memo re: Indian Reserves - Province of Quebec from HM Jones, Director, Indian
Affairs Branch, to the Deputy Minister. DIAND File 301/30-1 Vol.1 (1924-1957) - Surveys & Reserves - Quebec
General.
8

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


http://www.kahnawake.com/council/docs/Seigneury.pdf
9

Community profile, Kahnawake: http://www.aadnc-aandc.gc.ca/eng/1100100020108/1100100020112

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valuable and strategic locations. Virtually all of these transactions were coercive, relying
on 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 expropriation
approximately 13 times to forcibly remove lands from the Kahnawake Reserve.10 In
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).11 (See attachment No. 3, Excerpt from Beaulieu re: Kahnawake.)
In contrast, between 1867 and 1956 there has only been one surrender of Reserve
lands 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 reinclusion into the Kahnawake Reserve.13 However, there remain many parcels which
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, the
colony of Quebec, Canadian Confederation, and the Indian Act. Similarly, the internal
governance 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 the
Indian Act, and therefore often operate outside of them. As well, the Mohawks of

10

These expropriations were carried out by the Department of Indian Affairs through the expropriation
provisions of the Indian Act, or else by the St. Lawrence Seaway Authority.
11

Jacqueline Beaulieu, Localization of the Aboriginal Nations in Quebec: Land Transactions. French
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. This publication is not to be considered definitive, but is provided here to assist with context.
12

Jacqueline Beaulieu, Localization of the Aboriginal Nations in Quebec: Land Transactions. French
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.
13

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

Kahnawake ATR Case Study - Draft of 13 April, 2012


Prepared by Sicani Research & Advisory Services, Ottawa, Ontario

Kahnawake are party to a number of treaties14 which predate Confederation, but which
have found no agreed upon expression in the modern day framework of jurisdictional
arrangements that currently prevail.
An additional factor to consider is that, particularly during the late 19th and early 20th
century, much of the land on the Kahnawake Reserve was distributed to members by
way of Certificates of Possession (CP). During this period, the government of Canada
was anxious to transfer lands to individual holdings, in the hope that it would encourage
assimilation and advance enfranchisement. However, in its rush to establish the CP
system, the federal government neglected to set up the management capacity or
legislative / regulatory tools to enable individual communities to deal with the
consequences. Today, most of the Kahnawake Reserve is now covered by CPs. This
has a dramatic impact on MCKs management of Reserve lands.
The federal government, for its 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, its tools are the Indian
Act, and existing policies, programs and services (the latter of which are almost entirely
discretionary). There are other policy and legislative options which have been made
available by the federal government (ie, First Nation Land Management Act, or 53/60
delegated 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 it
has developed its own custom system largely outside of the Act, and frequently
operating 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 policy
territory that makes federal (and provincial) officials uncomfortable.
Quebec, for its part, brings its own historical and jurisdictional anomalies into the mix.
The province of Quebec has never consented to the patriation of the Canadian
Constitution. It is the only province (other than Newfoundland) which has not entered
into a federal-provincial agreement to address the inequalities arising from the Privy
Council cases of St. Catherines Milling and Star Chrome.15 To this authors knowledge,
it is the only province in Canada which has established legislative limits on the quantum

14

15

Including those made at Swegatchy and Kahnawake in 1760, and at Niagara in 1764.

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

Kahnawake ATR Case Study - Draft of 13 April, 2012


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of Reserve land that can be set aside within its boundaries.16 And, due to its historical
opposition to the setting aside of reserve lands, as of 1997, it also had the largest
number of landless Bands in Canada,17 even though it is home to less than 10% of
federally recognized First Nation communities in Canada.18
Kahnawakes 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 todays circumstances also
have an understandable influence on their perspective of the ATR process.
Taken together, these factors pretty much guarantee that any approach to ATR at
Kahnawake 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 ATRs that are
currently underway at Kahanwake: 1) Chateauguay, and 2) Highway 30. Both of them
fall under the federal governments Category 2, Community Additions.
These ATRs came about as a result of Quebecs decision, after the events of 1990, to
construct the Highway 30 bypass around the Kahnawake Reserve, in order to provide
an alternative to the existing Route 132/138 to Chateauguay, which passes through the
Reserve. 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.
Quebecs Highway 30 bypass has been in development since the mid-1990's and is
scheduled for completion in 2012.
Following Quebecs announcement regarding the Highway 30 expansion, MCK entered
into discussions with the province on this matter. Some time later, these discussions led
to an agreement between Grand Chief Mike Delisle and Quebec Minister Benoit
16

An Act to authorize the setting apart of Lands for the use of certain Indian Tribes in Lower Canada .
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 Councils
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.
17

Report on New Band and Landless Band Pressures presented to the Senior Policy Committee, Indian
Affairs (INAC, Ottawa: Registration, Revenues and Band Governance Branch, Lands and Trusts Services, 2 June
1997).
18

Peter Di Gangi, Some Notes re: Quebec Reserves and Landless Bands (Ottawa: Sicani Research &
Advisory Services, 14 November 2009)

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Pelletier (then Minister responsible for Aboriginal Affairs) which committed the province
to transfer lands that would become part of the Kahnawake Reserve. In a letter dated 2
June, 2008, then-Minister Pelletier appointed a negotiator and committed to a land
transfer. The process was to take place in two phases:
Phase I involves approximately 34 acres (13.76 hectares) of residential land in the
municipality of Chateauguay, adjacent to the western boundary of the Reserve (see
pink area on Map No. 4, ATR Lands). These lands had been expropriated from the
Reserve. MCK intends to use them as common land and for economic development.
Apparently at one point the municipality of Chateauguay was pressuring Quebec to
offer other lands instead. This created some delays, but did not in the end affect the
location of the lands subject to the ATR.
Phase II involves about 504 acres (204.24 ha) contained in a series of parcels adjacent
to the eastern portion of the Kahnawake Reserve, along provincial Highway 30, which is
currently under construction (see Map No. 4, ATR Lands, Kahnawake). The lots
covered in Phase II are variously zoned industrial, wetlands, and agricultural.
Almost four years after then-Minister Pelletier agreed to the land transfer, matters have
not yet been concluded. The following section will review some of the factors that have
been at play during that time.
There are a number of unique factors that single these ATRs out:

One parcel relates to provincial developments which lie inside a claim area, but
the 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

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10

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11

Quebec.
The government of Quebec organizes around ATRs based on which ministrys
interests are most affected. So, in the north, it is often MRNF that takes the lead; in
urban areas, it would likely be the Ministre dAffaires municipales, Rgions et
Occupation de territoire; etc. SAA is usually always involved, to play a coordinating role
and to manage communications for high level (ie, political) dialogue. The SAA will also
work to fill gaps in cases where specific ministries lack capacity, and, where possible, to
get the line ministries to adapt their rules to fit Aboriginal realities. In all cases, at the
end of the process MRNF is responsible for obtaining Cabinets final approval to
transfer the lands to Canada.
In MCKs case, the two main Quebec agencies involved are MTQ (because it owns the
land), and SAA. Once arrangements are finalized, the lands will be transferred to the
provincial Ministre des Ressources naturelles et Faune (MRNF), which will be
responsible for obtaining final approvals for the ultimate transfer of title to the federal
government.
Quebec appointed a political-level negotiator, not tied to the bureaucracy, who reports
directly to the provincial Cabinet. In principal this kind of arrangement should enable
communication directly with the provincial cabinet to resolve issues if there are
roadblocks at the bureaucratic level. From MCKs perspective, this has worked some,
but not all of the time. In certain cases the negotiator was able to break impasses that
had resulted from MTC officials taking a hard line. But in other cases, the bureaucrats
have 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 expressed
the view that the provincial negotiator could perhaps do more to get the Ministry officials
to deliver on their commitments in a timely manner. As with any process, it comes down
to 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 30
extension. Usually we dont need that special kind of help - negotiators are most often
appointed 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 First
Nation or Canada - for instance, consultations with the municipalities and third parties;
Environmental Assessments (EAs); archeological studies; and payments to the
affected municipalities for tax loss. This has relieved MCK (and Canada) of many of the
costs and responsibilities that they would otherwise have to shoulder as part of the ATR
process.

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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 passive
role, since Quebec is taking the lead, and AAND must wait for Quebecs 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
ATRs to date although according to SAA, the federal Department of Justice will be
signing 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 survey
plans using their own expertise, without having to rely on outside surveyors. NRCAN
has 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 idea
of 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, often
unspoken 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. The
province reports that it is involved in the Seigneury claim negotiations with respect to
the land component, but is coy about whether or not it would seek to have the lands to
be transferred to MCK in the current ATR process offset against any potential land
settlement on the Seigneury. It appears to be treading carefully because of the
sensitivities involved, feeling that it is best to focus on the ATR at hand, and accept that
each 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 from
Kahnawake Seigneury lands. MCK expressed some concern that some of the
municipalities have asked for replacement lands which might be taken out of the
Seigneury claim area. MCK has undertaken some educational work with the
neighbouring municipalities regarding the Seigneury claim, but the position of the
municipalities remains ambiguous.

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13

Quebecs 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 new
reserves on Crown Lands. This policy remains in effect today, but not all of the players
are aware of its contents, or even its existence (surprisingly, MCK and MTQ staff had
not been made aware of the policy). SAA and MRNF, on the other hand, confirmed that
the 1982 OC is still in force, and SAA provided a copy (see Attachment 4, Quebec OC
of 21 December, 1982).19 Officials from AANDs QRO were also aware of the policy.
Ostensibly, the policy only applies to Crown Lands, and not to privately - held parcels.
Quebecs ATR policy adds another series of bureaucratic and planning requirements to
those contained in the federal ATR policy, presumably increasing cost and the time
involved in assembling and implementing an ATR. But, perhaps more importantly, the
objectives 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 fact
that, on the one hand, the federal government has been emphasizing the importance of
ATRs to community economic development, and the role that ATRs can play in
improving the economic circumstances of First Nation citizens. In stark contrast to this,
Quebecs ATR policy states that ATRs will be for residential purposes only, implicitly
excluding economic development as a rationale.
This position is consistent with the province of Quebecs long hostility to the
establishment and / or enlargement of Indian Reserves, which was summarized in a
preceding section.
Officials from the QRO acknowledged that this contradiction affects their work on
ATRs, because they are stuck between AANDC HQ (which is actively promoting the
economic development component of ATR) and the government of Quebec (whose
policy states that ATR will be for residential purposes only). They said that they keep
having to explain their position to Quebec, which diverts time and effort from actually
moving ATRs forward. At the same time, in their experience this restriction has not
been 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 in
many instances.
QRO staff indicated that Quebecs policy is outdated and that its lack of consistency
with federal and First Nation objectives is a big issue. It was suggested that one

19

Order in Council Dcision 82-361, 21 dcembre 1982. Quebec, Les Fondements de la Politique du
Gouvernement du Quebec en Matire Autochtone (Quebec: march 1988): 25-26 (in French)

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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 to
play a role in this process of policy review and renovation.)
Quebec officials, on the other hand, had a different take on the origins and application
of their provincial ATR policy. One official stated that the policy itself was designed to
complement the federal ATR policy that was in place at the time, including the
restriction 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 Quebecs
historic approach to Aboriginal affairs: It is Quebec that would follow Canadas policy,
not the other way around.
SAA and MRNF staff agreed that the policy was old and in need of revision. It has not
been formally reviewed or amended since it was adopted three decades ago. A few
years 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, including
all 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 a
successful cabinet submission. Officials admitted that reaching consensus between
(and even within) ministries would not be easy. We all agree that Quebecs ATR
policy should be amended some day, but that is work that will need to be undertaken
some time in the future.
At the same time, however, officials at SAA and MRNF stressed that the fact we are
working 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 provinces flexibility, and evidence that they do not always adhere to the 1982
provincial ATR policy. However, they did acknowledge that this required additional
steps, since departures from the existing policy required cabinet review and approval on
a case by case basis. So if there was a new policy that was more flexible, we would not
have to go to Cabinet so often as we do now.
Despite Quebecs long and well documented history of being hostile to Reserves and
new Reserves, some officials insisted that, today, things were different: Quebec would
have no problem transferring lands to Canada for Reserves, but the province was
being prevented from doing so by federal policy.
Canadas ATR Policy.
Both MCK and Quebec officials provided animated commentary regarding Canadas
approach to ATR. They were of the view that Canadas approach was too rigid to
address the unique factors at play in Quebec. Policy dictators was one descriptor.
Provincial officials contrasted Canadas approach to their own. They suggested that
Quebec is not as policy driven as Canada regarding ATR. One stated that federal

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officials have a religious devotion to policy, and that the QRO follows the rules too
much. They made the point that authentic negotiations were supposed to be about
reaching agreement between the parties, and not simply a matter of one party forcing
the other parties to conform to its position and policy. Policy is a tool, but not should
dictate ... they think policy is law. Ministerial discretion is a key part of governance in
the Canadian system: Dont say that Ministers cannot act because of policy - Ministers
make policy, not the other way around.
Some ATRs in other regions of Quebec were cited by provincial officials, where the
province was ready to provide land, but it seemed that the First Nations were buried in
federal bureaucratic requirements (your report is not thick enough), only to find that
once they had fulfilled federal requests, AANDC priorities or policy had changed, new
justifications were required, or they were simply told they were no longer eligible for
ATR.
There was a convergence of views between MCK and at least some Quebec officials,
on a couple of points:

That the fact situation at Kahnawake (and in Quebec generally) required all
parties to look at alternatives outside of existing policy, and if necessary, outside
of existing jurisdictional arrangements. They felt that federal officials were unable
or unwilling to take this approach, and that this negatively affected the
negotiating environment.

That under a normal ATR, the federal government puts too much onus on the
First Nation to pay for or complete certain tasks. This was seen as a way of
discouraging ATRs. In fairness, QRO officials also indicated that they had far
too few resources at their disposal to effectively manage ATRs.

Resources and Capacity.


As already mentioned, the ATRs considered in this study are unusual, in that many of
the tasks normally carried out by the First Nation or Canada (EAs, archaeological
studies, consultations and payments related to loss of tax base) have been assumed by
the province of Quebec. Both MCK and QRO indicated that this has been a significant
benefit, since, in normal circumstances, there is a perennial lack of resources to carry
out these aspects of an ATR. Even under the current process, MCK is responsible for
the ATR costs related to capital and land use planning.
Given the onus that is normally put on First Nations by Canada in the ATR process, for
other communities, the issue of capacity and resourcing will remain a significant barrier
to ATR. Quebec and QRO officials confirmed this.
Both MCK and Quebec mentioned that frequent changes in personnel at the federal
level affected continuity and momentum in negotiations.

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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 they
are waiting for the delivery of various studies, and also that, although the province may
have 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 are
regular teleconferences and / or meetings, there is a lot of talk but not much is
happening, 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 ATR
related 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 would
speed things up.
Both MCK and QRO mentioned that Quebec appears to have been slow or reluctant to
act on MCKs request for on / off access to the Highway 30 bypass (see below).
For its part, MTQ says that it takes a long time for this ATR because there are many
things that need to be done, citing the various environmental and archaeological
studies that Canada requires. As well, they must deal with a some agricultural leases
within the ATR zone that needed to be terminated prior to their expiration dates (some
were valid until 2023). Apparently these tenants have been notified that their leases will
now 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 work
too well for them, partly because it is cumbersome and slow (too many committees, too
many people), with the result that, instead of one issue being dealt with fully at one
meeting so that things can move on, many issues are addressed in each meeting, and
none seem to get completed.
SAA indicated that part of the delays around the Highway 30 extension have to do with
the fact that MCK did not make a formal ATR request to Canada until the negotiations
were well advanced.
Other Quebec officials suggested that part of the problem is that the parties lose sight
of the main objective (to add land to the Reserve), and get bogged down in side issues
like infrastructure, third parties, etc etc. If the main objective is to add land to the
Reserve land base, this should stay front and centre. However, often this initial
objective becomes hostage to ancillary issues. At the same time, during negotiations,
long-standing grievances or intractable problems may come to the surface which dont
bear directly on the issue of the ATR itself. These may have to be set aside, or tabled in
the interests of resolving the issue at hand: You cant solve everything on the pretext of
an ATR.

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MCK officials acknowledged that delays can occur because their community was not
always prepared to comply with prevailing federal policy, meaning that it took more time
to work through some issues. But they also felt that if there was more flexibility on the
part of other governments, that things could move faster.
Subsurface.
The Judicial Committee of the Privy Councils decision in Star Chrome involved a
dispute at the beginning of the 20th century between Canada and Quebec over the
disposition of a mining lease.20 Since that time, Quebec has taken the position that
Reserve lands only include the usufruct of the surface, and do not include subsurface
rights.
MTQ confirmed that the ATRs they are currently working on at Kahnawake would not
include subsurface interests. MRNF reports Quebecs 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 position
to explain how their claim to the subsurface applied to Reserves that were created
before the existence of the state, or to lands that continued to be covered by
unextinguished Aboriginal title.
QRO describes Quebecs position on Star Chrome and on the subsurface as very hard
line. A Quebec official reported that Canada had acquiesced to the provinces policy in
this regard, and that the federal Department of Justice was expected to provide
confirmation in writing that the MCK ATR would only involve surface rights.
On the other hand, MCK has not reported any problems related to its ongoing use and
management of the subsurface on Reserve.
Highway 30 Access.
As already mentioned, a major objective for MCK in these ATRs is to provide economic
development opportunities for its members. With respect to Highway 30, on / off access
to the highway has been identified as a crucial aspect in meeting this objective, but so
far Quebec has held off from making any commitments in this regard.
Both MCK and QRO have suggested that Quebecs apparent reluctance is not
accidental. The fact that Quebecs ATR policy implicitly rejects economic development
as a rationale for reserve additions adds weight to this view.
When asked about the economic development aspect of the Highway 30 ATR, MTQ
said that they are not against economic development, but that their role is simply to
manage the transfer of the lands, not to promote economic development. MTQ staff

20

Star Chrome, decision of the Privy Council, [1921] 1 A.C. 401

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acknowledged that MCK had requested highway access, and that their Minister had
asked for an analysis and options, which are due to be delivered in the next few
weeks. At the same time, however, we cant do anything we want to a highway. On
the 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 the
parcels). They say that they have brought officials from the provinces economic
development 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 development
activity 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 Reserve
lands immediately adjacent to the Highway 30 bypass (and where Highway 207 meets
Highway 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 to
negotiate individual agreements with the affected CP holders, if those CP holders were
agreeable; or perhaps exchange lands with them; or purchase the lands. The question
of land exchange is problematic, however, since about 80% of the Reserve is already
held by CP.
MTQ, with no apparent sense of irony, has suggested that MCK should simply
expropriate the interests of those CP holders in order to gain access to Highway 30
from its existing lands. SAA also indicated that this would be an appropriate method to
employ (sometimes a government must take unpopular measures for the public
good).
Interestingly, although more than one Quebec official proposed that MCK use
expropriation as a tool to deal with its CP holders, they did not go on to suggest that
their own government would be prepared to do the same as a means of dealing with
non-Aboriginal third party interests.
MCK officials acknowledge the problem posed by the CPs. Their view is that CPs and
individual land holding are a alien system that was imposed on them, but without the
tools to manage effectively. Now, they are left to pick up the pieces, and the party
responsible (the federal government) has washed its hands of the matter. SAA reports
that MCK has suggested to them that Quebec should cover the costs of acquiring the
CPs 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 attention
in 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 would
make land use approvals, and land use planning, much easier. But the community
would 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 CPs , the appetite for
new land is significant, because the CPs take up so much land, there is not much
leftover for public use or management.
This author has heard similar comments about the effect of the CP system across
Canada. With respect to land management issues and the federal governments
fiduciary duty, this seems to be one of the (many) elephants in the room. As mentioned
at the beginning of this paper, in the late 19th and early 20th century, the federal
government put a high priority on imposing the CP system as a means to facilitate
assimilation and ultimately enfranchisement. Because the objective of the CP program
was to contribute to the elimination of the Reserve system, the federal government did
not provide the legislative or regulatory tools for communities to effectively manage
them. The result today, in some communities, has been likened to being left with a
Frankenstein of someone elses making.
An official from Quebec suggested that it should come as no surprise that Canada is
not 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, Canadas
record on land management is quite bad. Once the lands are turned over to the
federal government, the Indian Act land regime applies - a regime that is broken: What
sense 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 applies
to Kahnawake, in reality the community operates largely by custom and outside of the
strictures of the Act. This has been identified by all parties as a factor in the ATR
process, since it precludes reliance on some of the instruments that are commonly
used in other ATRs.
MCK officials indicated that their Council does not need Ministerial approval through the
Indian Act to exercise its authority over its territory, and point to the successful
conclusion and management of leases and other land related interests by way of
custom. MCK staff stressed that other governments should be prepared to accept the
uniqueness of their circumstances, and be prepared to work outside the box with
creativity and flexibility to find solutions. They add that what is really required to make
this work is political will on the part of Canada and Quebec. MCK feels that, although
QRO 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 conform
to cookie cutter policies without any recognition of their unique circumstances. We
feel like we keep getting dragged into the Indian Act (see discussion on federal ATR
policy, above).
The Kahnawake community is very conscious of their past history, and the federal
governments record with regard to expropriations and mis-management of lands.
There is the feeling that Canada needs to show more recognition of how its past
behaviour led to todays situation. To paraphrase:
The federal government created the current mess, but it cant fix it; MCK just
wants them to provide the resources, and MCK will fix it themselves, but instead
the federal government wants to impose its policies and rules - the same mind
set that created the problems in the first place.
QRO staff were well aware of MCKs position: We dont think they like Indian Act
instruments. They appreciate MCKs dislike of the Act, but say that their hands are
largely 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 Act
requirements, we don't have much margin to manouevre. We need to work
together to find solutions.
Finally, in a what must be a prize winning non-sequitur, We need to be working outside
the box, but within the Indian Act.
The pre-designation of lands has been put forward as one solution to some of the
impasses that now exist with respect to the interests of third parties on lands that are
the subject of the ATRs. QRO has raised pre-designation as an option, but MCK has
identified problems related to the procedures involved, and, ultimately, the requirement
of Ministerial approval.
QROs rationale is that if the First Nation could accept to have the 3rd party interests in
the 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 the
parties 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 that
it will be staying after the ATR). They said that this might alleviate some of the delays
now being experienced, and added that perhaps pre-designation could be combined
with the ATR process.

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MTQ, for its part, suggests that the ATR process would work faster if MCK were
prepared to use s 28(2) of the Indian Act to provide for leasehold interests.21 MTQ
understands that MCK does not like the Indian Act, and appears prepared to work to
find 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 into
place.
The matter of third parties rights is a big one which has been a thread that keeps
reappearing in this report. As noted by MRNF, there are very few places in the province
where third party rights do not already exist in one form or another, even short of fee
simple - snowmobile trails, rights of way, leases, etc. The few lands that dont have third
party interests arent attractive to First Nations (or anyone else, otherwise third parties
would likely be present). Because of this reality, Quebec officials felt strongly about the
federal governments insistence that ATR lands be free of all encumbrances. They say
this 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 that
were on the parcel, but for which Hydro Quebec never got an easement or right of way
from MTQ. The parties are trying to figure out the best method of addressing these to
satisfy Canadas stipulation re: no encumbrances.
Environmental Assessment, Studies and Standards.
MCK has indicated some conflict between prevailing federal and provincial standards
with 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 and
therefore subject to a more rigorous EA, but there is no agreement as to whether this
wetland is man made or natural. There are also other water related issues due to the
St. Lawrence Seaway cutting off access to the River, and contaminated water along
highway 207.
The issue of EAs came up more than once. QRO staff indicated that EAs took up a lot
of time, and asked, What level of contamination can we tolerate? They suggested that
there should be a sliding scale. We have to look at the use to which the lands will be
put. 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 adamant
about cleanliness of the land: why does the land transferred need to be so clean?

21

Minister may issue permits - The Minister may by permit in writing authorize any person for a period
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 it
make 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 related
to carrying them out, have all been mentioned by various respondents in connection
with 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 need


to be more flexible, taking First Nations individual and unique circumstances into
account.

Accept MCK authority to manage their territory

Land grievances (claims), ATRs, land management and community planning


are 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 be
the 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 significant
anomaly 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 its own box, and gotten the government
of Canada to largely concede the fact.
Once this is acknowledged, it should come as no surprise that communities like
Kahnawake are also outside the box - their circumstances require it, and they have
had to bring creativity and flexibility to bear, in order to ensure that their rights and
interests are acknowledged and addressed.
So it should also come a no surprise when MCK says that other parties must work
outside the box with them to resolve outstanding issues.
What seems to be missing, however, is that neither Canada nor Quebec appear fully
prepared to acknowledge that these unique factors demand unique solutions. This
needs to include a recognition that todays need for alternative approaches is rooted in
the 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 find
the appropriate ways and means of dealing with third parties and prior interests on
lands 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 a
flexible policy approach that allows for local realities to be taken into account and
accommodated. This suggests that despite the uniqueness of their situation,
Kahnawake also faces many of the same challenges that other First Nations face with
regard to ATR, and that therefore, some solutions may be found by looking at the
experience of other communities.
The challenge will be to find the right mix of creative approaches on the one hand, and
off 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 excerpts
from INACs 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 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.

4.

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