Transcript from Webinar Jan 18th, 2013
Chief and Council have gone out and initiated and engaged a firm from Dalhousie University, the Cities and Environment Unit and they have been in our community for several sessions and there are some session that are coming up very soon. So the LMG is out there trying to ensure that the community is well informed on the Comprehensive Community Planning process.
Q. How many acres were taken away or given back to the community?
A. The disputed lands consisted of five different parcels of land with a total of 3,481 acres. This was what we were claiming mapping was one of the issues that we went through, we spent a lot of time going back and forth trying to establish boundaries because historical documents are not always crystal clear. So the best interpretation that we had we agreed that the boundaries were 3,481 acres.
- Mann Frasier – 2,520 acres
- Busteed – 853 acres
- Mission Property – 100 acres
- Few small pieces of Highway 132 Interprovincial Highway
As for the second part of the question as to how much land was given back there was no land returned there was an “Addition to Reserve” or ATR that took place which consisted of 25% of the original part of the disputed lands.
Q. Will the Busteed lands be privatized due to the changes in the Indian Act regarding Bill C-45?
A. Buried in Bill C-45 is a set of amendments which as you know is the “Omnibus Bill” or “Mammoth Law” one of the two big pieces of legislation that the Federal Government has brought in, and which they have amended a whole series of laws that are in line to do things that are in their priority, and one of those is changes to the Indian Act. The specific change with C-45 is the amount of majority needed to lease lands, so there is no direct effect that Bill C-45 will allow the Busteed lands to be privatized.
Therefore no, Bill C-45 will not allow this land to be privatized.
Q. Are these lands in our hands now?
A. it did achieve royal ascent as of June 19th, 2012, and the LMG was notified as of September 10th, 2012. So the land formerly known as “Busteed” is now Listuguj Reserve Lands.
Q. what about the right of way or servitudes that are located on the former Busteed land
A. A servitude is a Civil Law term used to describe a right of way. The former Busteed lands have all the usual types of servitudes such as power lines, drainage and could have fought for many more years to have the Federal Government remove these servitudes so that for example TransportQuebecwould no longer have the right for the water of the 132 drain across to reserve lands. It was decided that to have this process move long the decision was made to accept the lands subject to those servitudes.
In reference to the Hydro Quebec Transmission lines that is a completely different issue, and there is at least one right of way that Hydro Quebec is not using and that can be negotiated to have them renounce their servitude and have it removed in the future. It is also possible to gain compensation from those servitude holders as well.
Q. Why wasn’t the community asked to ratify the ATR of Busteed?
A. To get the land back in our hands we didn’t need to have it ratified, the land is in our hands and we are trying to move forward for the community. We felt that the servitude infringement is small enough that it doesn’t hurt us but we did put pressure on the Government and told them that in reference to Hydro Quebec it will be perused at a later date, and we did provide the community with information on how we moved forward. Also with the federal governments procedure it does not require ratification for an ATR process.
In reference to the loss of use of the Busteed lands that is still part of the land claim that has to be ratified by the community.
Q. Why do we need a “trust”?
A. In circumstances like this,Canadawill provide two options; , The first option is to place the settlement proceeds in to a revenue account withCanadawhich would put any money under their oversight. The second option is for the community to create a trust which provides the community the ability to create its own rules on how the settlement property will be handled going forward.. We should talk about what a trust is; by definition it is a right of property held by one or more persons or group for the benefit of others. The individuals that hold the trust property are referred to as the trustees which can be a combination of community members (on and off reserve) and/or a corporate trustee which is generally represented by a Trust Company. The beneficiaries of the trust are the community members of Listuguj. The trust property is the compensation that will be paid byCanada. And finally, a trust agreement is developed which represent the rules that govern the management of the monies including the oversight and distribution of the trust property, and it will be the membership, together with leadership, that determines the wording of the trust agreement and how it is to be managed.
Trusts are intended to last a long long time and it can be expected that they will last beyond changes in leadership which will help ensure and secure the long term ability to have funds available for generations to come and to carry out the objectives of the community.
Another benefit of the trust is that it is creditor proof which means if the band got into financial difficulties, creditors will not be able to go after and claim those settlement proceeds.
As mentioned, the trustees who look after the money are not Chief and Council but are generally represented by on/off Reserve Listuguj members and/or a corporate trustee (e.g. the Trust arm of one ofCanada’s banks. The trust agreement that will be developed will state what the money can and can’t be used for which then becomes the trustee’s role to protect and safeguard to ensure the money is used according to the rules of the trust. Uses of trust property may include (but are not limited to) housing, education, economic development, maintaining the Listuguj culture, language, training, community infrastructure, distributions etc. which are all uses that will benefit the community both today and over generations to come.
Q. How will a per capita distribution work? Some of the community members are saying “I want my share” so if there is a per capita distribution whether it’s 100% or a different percentage how would that occur?
A. The potential for a Per Capita and the amount has yet to be decided yet will be determined through community consultation combined with the input of leadership. Generallly speaking, these settlements represent the past, present and future with the need to ensure both present and future generations are able to benefit. With respect to any payments to minors (persons under the legal age of 18 years), typically the minor’s portion of the Per Capita would be held in the trust until the minor is of legal age. There is an obligation on behalf of the trust to ensure that the money is protected and it grows. This is to say, if a child was 1 year old at the time of settlement, their money would stay in the trust and grow until they reach the age of majority.
Q. Are off reserve members able to have a say in this ratification vote?
A. They have constitutional rights for sure, and the courts have told us that people off reserve have to be included in this ratification process. If there is any Per Capita distribution they will also be included and if you are under the age of 18 that distribution will be places in a trust until the individual reaches the age of majority. Individuals that turn 18 on the day of ratification will be eligible to vote.
So on reserve and off reserve Listuguj Mi’gmaq will be able to vote.
Q. Does having a trust mean that this band council has already decided what is going to happen with this settlement?
A. Absolutely not, we have hammered home here that the trust agreement is what decides the rules, and we have to prepare for this and again Canada will give you two choices either place it in a trust or place it in a revenue account with Canada, and a trust is something that the rules of a trust have not been decided yet (Because there is no trust at this time) therefore there are no plans for the settlement.
Q. What happens when the administration changes in two years?
A. I think that what this relates back to is who is really in charge of this trust. The individuals that are in charge of the trust are going to be the trustees. Chief and Council will not be controlling this trust as it is an independent entity to that of the community government. With the rules that are put into the trust it will be the trustees that will decide and not chief and council therefore when administration changes in two years the trust will remain the same which is one of the benefits for the long term of this trust for the community, if the community decides that is the direction they wish to go.
Q. Can Chief and Council Change the trustees when administration changes?
A. Within the trust agreement the rules will state and guide how a trustee is changed or replaced in any circumstances. So the administration will not be able to appoint who they want to run the trust each time the administration changes.
Q. How do I become a trustee?
A. It’s an elected process that will be described within the trust agreement and that process must be followed for any trustees that are to be elected.
Q. Who is going to decide the ratification question?
A. We are sitting with Canada and we are going through the ratification protocol on what this ratification will look like who gets to vote, when will it take place, if there is an appeal mechanism. So we are dealing with Canada on that itself, we haven’t gotten to the position yet where we are actually designing the question part of that will come from the Comprehensive Community Planning process. If the community is clear that they want to do specific things with these monies then it will be included within the question.
So to be direct the question will be greatly determined by the community as they voice their opinion. Also the question will be put forward to the community months before the ratification day takes place to gain insight and to make sure that all community members have the opportunity to read and understand what they will be deciding upon on that ratification day.
Q. What is the timeline and will trustees be determined before the ratification process and when will this take place?
A. Typically the ratification has to be the first step in the process and what the ratification is doing is stating that the majority of the community either agrees or disagrees with the wording and rules of the trust. It is after the ratification is complete that the trustees will be determined because there must be a trust in order for there to be trustees.
What will happen is a series of community meetings as this evolves to outline all the terms of the trust. It is the obligation of the LMG to make sure everyone is well informed of the question and the trust itself will be delivered to the community when it is final so the membership will understand the terms and conditions of that trust agreement and all the terms and conditions of the settlement.
Q. Did those who were initially sued by Busteed have to sign off the on the second court case too?
A. There are defiantly two cases, in the Busteed lawsuit the Busteed family sued Chief and Council, and then sued various individual members, and also an economic development company because their truck was involved in shipping the gravel off the property. There were these various parties and yes these individuals were asked to sign the discontinuance of the case in the Superior Court that is they accepted the end of the case and accept to end the counter suit.
In the second case which was the case in the Federal Court of Canada that Listuguj initiated the 100 million dollar law suit for the loss of use, damages, and value of the five parcels of land in the federal court for breach of fiduciary duty. At that time there was a legal position that band councils did not have the right to conduct a law suit in their own name, so what we did was sue in the name of the band as well as sue in the name of the Chief and Council at that time, therefore the chief and council at the time were the ones had their names on the law suit to ensure that it was valid on behalf of the community. they were later asked to remove their names from the law suit so that there could be no further action taken after this out of court settlement is finalized.
Q. Yes that is the case but that process had Mr. Busteed gain significant monetary compensation, if we vote no does he retain it?
A. that law suit is in the history books, that is a done deed Mr. Busteed is no longer owner of the property anymore and the Federal Government bought the land from the Busteeds which in turn made it crown land and it became addition to reserve.
Q. Does Listuguj have any outstanding debt that will affect the 64.5 million dollar settlement?
A. The band council will always have an outstanding debt that is normal for any band council but this settlement is not going to be given over to the band council for them to pay off their debt. There is some part of the settlement allocated to cover certain administrative costs but other than that there is no other dollars to pay off any of the bands debt. The band is to notify the community and tell them how much it has cost for their administrative fees and only that amount will be taken from the part of the settlement that is already set aside for these costs.
Q. How much of these settlement dollars are going to pay these “overpriced lawyers”?
A. In terms of these over prices lawyers, it is a good and fair question but the years since the Government of Canada has given us the first offer of 21 million dollars, and to get it from 21 million to 64.5 million we have spent 780,000$ doing research and doing the historical analysis of the compensation and the value of the land, there was also money spend on traveling to meet with Canada as you said Franklyn we have gone 19 times already and going for a 20th. So that is what we spent up to march 31st and a little more after that, and you asked the question and I would like to make it clear that there is no one sitting here that is getting any percentage of the settlement they are paid by the hour there are individuals at the band that ensure that the costs are kept as low as possible, and again when the settlement is finalized there is no percentage that is set aside, that is Listuguj money for Listuguj. Also in reference with the trust person sitting here with us he is not there to manage the trust after that, he is the person who is giving us advice until the point of ratification and after ratification the money would go into a trust with the rules and guidelines that are described in the trust agreement.
While at the negotiating table we negotiated an amount around 2.5 million dollars for administrative costs so even if we hit the 1 million mark that cost has already been negotiated into the 64.5 million.
Q. Is this money going towards an elders lodge?
A. We are not in a position to answer that but this information and that decision will come from the Comprehensive Community Planning process. If the community feels that it is important that an elders lodge be built then it will be presented within the ratification question or in the trust agreement.
Q. What steps are the LMG taking to ensure that there is no conflict of interest or bias when presenting the issue to the community?
A. When the question is being put together the community input will have a huge impact on how the question is presented. So the community will already have spoken in saying what they want to see happen so when the question is put forward to the community and it will consist of a lot of what the community has said they wanted. Then when it is time for the ratification vote the LMG will simply ask the community to vote.
The only thing that the LMG will provide is information on what each choice entails whether it’s’ yes or no.
Q. There have been settlements in the past in different areas that have been settled at a much higher payout, why can’t we do the same?
A. One major thing is that it is the value of the land that plays a huge role in how much compensation there will be. The value of the land out here in Atlantic Canada is far lower than other parts of Canada such as Ontario or British Columbia.
Q. The threshold for the ratification decision to be made which is 25% +1 is too low. Can we increase this threshold?
A. This is the bare bones and the minimum amount of people that are required to come out and vote for the ratification to be accepted. This means that if 25% +1 of the eligible voters on and off reserve voted then this ratification would be passed. However it is the intent of the LMG to have as many community members vote as possible, the ideal goal would be a 100% of the eligible voters come out to vote. Now if this is a community concern then it can be brought forward to Chief and Council and actions could possibly be taken to increase this threshold.
There was a misunderstanding when explaining the answer to this question and further explanation is found below:
A2. In order for the Ratification Vote to be accepted the number of “Yes” votes received must represent at least twenty-five percent (25%) plus one (1) of all Eligible Voters, and the total of the “yes” votes is greater than the total of the “No” votes; in other words if the total amount of eligible voters is 4,000 people, at least 1,001 of those 4,000 voters have to vote yes and there must be more “yes” votes than “no” votes.