 | Indian Act's Section 28(2) and First Mile Telecom Developments |
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The attached docment is the draft Permit that AANDC officials sent to Bell Aliant in Dec 2011 when they were requested to provide one First Nation with a copy of the Permit that the Minister would issue to Bell Aliant once the First Nation and Bell Aliant negotiated the terms of the Section 28(2). A lawyer recommended that the First Nation understand "the language of the Permit" being requested by the corporation so the First Nation is able to properly and adequately address and negotiate the First Nation requirements to protect and access local resources and services within the BCR being requested by the corporation to utilize the First Nation lands and resources. I hope this helps ... Brian |
 | Re: Indian Act's Section 28(2) and First Mile Telecom Developments |
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Thank you Brian For general information I will paste the text of our discussion so far. Norm Norm the pubications I mentioned are available on the First Mile site at this link. The policy article is the first one listed with Rob as the lead author:
It is available at http://meeting.knet.ca/mp19/mod/forum/discuss.php?d=4002 (you might need to LOGIN to the meeting place to access the discussion forums depending on how it has been set up) … I do want to wish you good health and happiness during this special time of the year. Brian Beaton, K-Net Coordinator From: Norm Leech [mailto:Norm.Leech@FNTC.INFO]
Thank you Susan, You make some excellent points to consider. The First Mile article would be worth reading I’m sure. It sounds like we could use a shared webspace to post some relevant documents and outline a strategy and perhaps help scope and definition for a legal opinion.
Would you be able to share the wording of the AANDC permit Brian? I can ask a local chief for the BCR that was supplied to him for the First Nation to consent to the installation in his community. It would refer to Telus in this case.
Right now our approach is considering multiple prongs: · Duty to consult and accommodate Aboriginal Title and Rights in relevant areas · First nations management and regulatory and taxation jurisdiction over reserve lands and traditional territories · First Nations right to benefit from facilities and infrastructure that operate within, across, through, over and under territories. · The granting of Row’s, permits, rights, licenses, etc to private interests that impact First Nations and effectively lock them out of any benefits beyond the right to be a customer. · The assertion of title over spectrum, frequencies, etc. The Maori have successfully advanced this claim and received frequencies. · The authority to tax fibre, and other transmission media through territories. · The authority to tax the value of the transmissions through the fibre or cables in a territory. · The authority to regulate and manage the facilities and transmission lines through territories. · The need for a technology and innovation investment fund to assist First Nations to gain a foothold in the telecom related industry fields · The idea of a First Nations telecom company to better serve our unique needs and provide an alternative to big telecom. · All this in relation to multiple federal and provincial strategies including: 21st Century learning, BC Jobs strategy,
Norm
From: Susan O'Donnell [mailto:susanodo@unb.ca]
Hi everyone,
Tim / Kevin / Susan / Rob … I asked Norm if I could share this discussion with everyone …
Brian Beaton, K-Net Coordinator From: Norm Leech [mailto:Norm.Leech@FNTC.INFO]
Yes more heads means the headache gets shared. ;o)
Norm … I agree with everything you write about government and the telecom corporation they fund and support with both their funding along with their procurement processes. .
Finding the right legal advice with telecom experience along with a willingness to think outside the box so remote and rural communities are put FIRST in understanding and presenting the information in a language that makes sense to these communities and their leaders. The more work we do with the First Nations and their networks,
In my mind, as a First Nation organization, we need to be convincing the people (both corporate and government) who are making these decisions to treat everyone as if they are living an urban environment where there is lots of competition and choices that a different model or business case is required to ensure remote and rural communities are able to provide their own services working with their own partners.
Lots to think about here.
With your permission, I would like to expand this discussion to include Kevin, Tim, Susan and Rob because I think the First Mile work that we are doing really fits all these thoughts. What do you think?
Brian Beaton, K-Net Coordinator From: Norm Leech [mailto:Norm.Leech@FNTC.INFO]
Thanks Brian So then it seems similar to what we see here in BC. My overall sense is that Regardless of title and rights, consultation and accommodation, potential impact benefit agreements, business opportunities, taxation issues, etc. My sense is that somehow big telecom has such a privileged position with government that they are willing to throw First Nations interests under the bus to protect the telecom interests. So we are crafting a scope for a legal opinion on how Aboriginal Title can be asserted over various aspects of telecom. From RoW issues, spectrum, taxation of data flow, taxation of fibre, and whether the duty to consult and accommodate extends to the installation or expansion of telecommunications services through First Nations territories. It feels like big telecom is a Crown corp. which it is not, but the behaviour is so familiar. Thoughts? Advice? Observations?
We are working on making sure the fat pipe is installed at our conference so the webinar from your end will be lifelike. Have you decided on a topic of discussion? Regards, Norm
From: Brian Beaton [mailto:brian.beaton@knet.ca]
Norm … Over this past year, I learned to never be surprised when in yet another discussion or meeting and someone tosses another bomb shell into the process [smiles] … the bottom line … this piece of legislation epitomizes the paternalistic reality of the Indian Act, as you will see in response to your questions below. The really interesting thing about all of this is that the Atlantic AANDC office is treating these requirements differently than the
1 is the potential for the Minister to grant a permit without the approval of a chief and council.
At a meeting 2 weeks ago in Winnipeg a lawyer who has done a lot of work Section 28(2)’s in the past indicated (for the FIRST time to us), that the minister is able to grant a corporation an interim permit for up to a one year period so they can start the work while the First Nation and the corporation “negotiate” the terms of the BCR.
At the same meeting, this same lawyer told the Chief and his council that the first thing EVERYONE requires is the draft of the permit so the language of this permit can be reviewed and negotiated with the corporation. So for the first time, after working with Bell Aliant for more than a year on trying to get these BCRs, we requested a copy of the Permit from AANDC and Bell Aliant. We just got that this week (13 pages) and we sent it to the lawyer for his review. As it turns out, I did see this permit earlier in the year from another First Nation who had sent in a modified BCR. When they got their copy of the permit, they found that AANDC had ignored their modified terms and issued the permit as they had prepared it with Bell Aliant. The First Nation is now appealing this permit but it sounds more and more like it does not matter what the First Nations are requesting and all the decisions are being made between AANDC and Bell Aliant.
2. And another is the difficulty in getting approval for a permit.
The biggest challenge experienced in this region is the inappropriate terms that Bell Aliant is requiring. They want access to EVERYTHING to be able to do just about ANYTHING. There are clauses in the Section 28(2) that MIGHT give the First Nation some say over what Bell Aliant can do BUT the reality is that Chief and Councils change every two years and any new council will be starting all over again trying to figure everything out. Over a ten or 20 year period, so much of this stuff is forgotten or lost and then Bell Aliant is left with the opportunity to do whatever they please.
It sure is not pretty … Brian Beaton, K-Net Coordinator From: Norm Leech [mailto:Norm.Leech@FNTC.INFO]
No problem Brian I think a comprehensive strategic approach is unfolding as more information becomes available. I am interested in better understanding the specific issue of Section 28(2)
It seems there are separate but related concerns. Perhaps even conflicting.
1 is the potential for the Minister to grant a permit without the approval of a chief and council. This would affect communities wishing to negotiate benefits in exchange for a RoW permit. And that being undermined by the granting of the permit.
And another is the difficulty in getting approval for a permit. This would affect communities wishing to have the services as soon as possible but with no additional benefits. And that being held up by the bureaucratic requirements of issuing the permit.
Is this correct or am I misunderstanding the issues? Norm
From: Brian Beaton [mailto:brian.beaton@knet.ca]
Thanks for sharing this Norm …
Brian Beaton, K-Net Coordinator From: Norm Leech [mailto:Norm.Leech@FNTC.INFO]
Hi Brian, I hope you have been well and that climate change is not all bad in your region.
I am attaching copies of a resolution and related briefing note that was passed recently here in BC. The resolution is public information but the briefing notes are for internal use only.
This seems to relate well to some of the AFN activity around Broadband and spectrum. And may also inform your planned webinar at our conference February 23-26.
I would like to schedule a time to discuss these items with you when you have time. Norm
Norm Leech Executive Director First Nations Technology Council 1108 - 100 Park Royal South
Tel: 604 921 9939 Fax: 604 921 9979 Toll free: 888 921 9939
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 | Re: Indian Act's Section 28(2) and First Mile Telecom Developments |
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Hi Brian/Norm/anybody else. Can you give us an update on where things are headed with Section 28(2) and telecom services? Brian.. I read the Bell Aliant AANDC permit for "telecom distribution" facilities on reserve. Does it have any bearing on the communities that own cable networks connected to Bell Aliant PoPs? I'm guessing no. Also, I noticed that this permit does not include "telecommunications transmission" (between interexchange points). Do you have examples of permits for when a carrier's transmission network crosses over reserve lands? Seems that would have more relevance to the bitrate taxation ideas discussed in BC. I'm just wondering about what something like this Bell Aliant AANDC permit actually means in practice... apart from paperwork having to be filed with AANDC... How is the standard permit fee determined? What about compensation for things like property damage on reserve? The inclusion of municipal taxes and levies looked intriguing: Section 5 - The Corporation shall pay and discharge all taxes, duties, tolls, imposts and levies of general application, whatsoever charged, imposed or assessed by any municipal, provincial or federal authority, now charged, imposed or assessed or that may be hereinafter charged, imposed or assessed during the continuance of the Permit hereby authorized respecting occupancy of the Permit Area on the Reserve by the Corporation or its Works. but aren't reserves left out, given their relationship with the Crown? What's the latest on Band authorities and taxation? Also... because the permit fee (ostensibly to the Band) has to be made out to the Receiver General of Canada, I'm wondering how the Band gets access to whatever funds are collected? Here's the full section (2) - The Corporation shall pay, on or before the execution of this agreement, the sum of ($) Dollar(s) to the Receiver General for Canada in lawful tender of Canada(the receipt and sufficiency of which payment is hereby acknowledged) for the use and benefit of the Band and as further consideration for the issuance of this Permit the Corporation shall make telecommunication service available to residents of the Reserve upon payment by the applicant of the applicable service installation charges. The little statement above, "shall make telecommunication service available to residents..." is potentially interesting. What kind of telecommunication service? Guess "applicable service installation charges" is where the real negotiations begin.  Compared to some of the last mile build agreements I've seen (e.g., between Blair Electronics and FN reserves in Ontario), this doesn't include other considerations like hiring local crews for brush clearance or construction... Could a FN stipulate the inclusion of local contractors for maintenance work done on reserve lands...? Just wondering how far a Band could push section 28(2) for economic development purposes... cheers, Adam |
 | Archive of AFN E-Communities Webinar on Section 28(2) |
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This year's ICT Summit was held in Vancouver, B.C. Feb 23-25, 2012. The Assembly of First Nations ICT Working Group hosted a session about the Indian Act's Section 28(2). You can view this archived session here. [ http://breeze.knet.ca/p27815389/] |