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					                    CITY OF KINGSTON
                    REPORT TO COUNCIL

                                                                     I         Report No.: 06-232
                                                                                                                 I
TO:                        Mayor and Council

FROM:                      Lance Thurston, Commissioner, Community Development Services Group

RESOURCE STAFF:            Mark Fluhrer, Director, Culture & Recreation Department
                           Robin Etherington, Manager, Culture & Heritage Division

DATE OF MEETING: 2006-10-03

SUBJECT:                   Belle Island Cultural Heritage Site Protection Strategy


EXECUTIVE SUMMARY:
In 2001 Council passed a resolution acknowledging Belle Island as a site of significant aboriginal cultural
heritage (see map as Exhibit “A”), and directed staff to meet with representatives of the First Nations
communities and other interested parties to examine possible options and implications for the long-term
preservation and protection of cultural heritage resources on Belle Island. Staff has worked closely with
representatives of the First Nations and other agencies through the intervening years to develop a long-
term strategy for securing the stewardship of the cultural heritage of the island. Council was briefed in
2004 on the general nature of the evolving strategy at that time and staff has proceeded with this initiative.

A strategy has been formalized through negotiation with representatives of local First Nations
communities and is embodied in the proposed agreement attached as Exhibit “B”. The agreement sets out
specific actions and commitments by both parties for implementing and maintaining the island’s sanctity
within the City’s parks portfolio. Staff is recommending adoption of the agreement and the establishment
of a team to oversee its implementation. This is a unique opportunity for the City to forge a strong and
enduring partnership with our local First Nations communities. It is also an opportunity to show
leadership in recognizing the historic and continuing aboriginal use of these lands. The proposed
framework would establish a heightened standard for municipal relations with our First Nations
communities, which will assist in other areas of shared interest such as planning and development. It will
also provide an opportunity to develop positive relationships, as well as significant cultural exchanges,
with the City’s aboriginal community.


RECOMMENDATION:
THAT Council endorses this report and authorizes the Mayor and Clerk to execute an agreement with the
Mohawk Nation Council of Chiefs as appointee of the local First Nation communities, the form and
content of which is satisfactory to the Director of Legal Services, for the long-term joint stewardship of
Belle Island, including the following elements: joint ownership of the island, physical stabilization of the
island; protection of known burial areas; measures to enhance the island’s natural grace and dignity; and,
ongoing maintenance.
                                                                                                    -                1
REPORT TO COUNCIL.                                                         Report No.: 06-232
Belle Island Burial Remains and Protection of Site - Protection Strategy
                                                      - Page 2 -


                 h




Lance Thurston, Commissioner, Community Development Services Group




GlerLaubenstein, Chief Administrative Officer




                                                                                                2
                                APPENDICES TO REPORT NO.06-232
                                          2006-10-03
                                            Page 3

OPTIONS/DISCUSSION:

Background

Belle Island is part of Cataraqui Park (PLAN WGCR L PT FARM 2B61).It is a 37.5 acre parcel of land
that protrudes out into the Great Cataraqui River. Please see the attached map (Exhibit ‘A’).

In 1988 buried human remains were discovered on Belle Island. The City had a preliminary salvage
survey conducted. The site is “an important prehistoric seasonal camp” dating AD 300-900.

In 1988, the City of Kingston’s Archaeology Master Plan, pending adoption, recognized the site as a
native and French Mission site and the location of early Loyalist Farms - at that time there were
recommendations made that further work on the 19th Century remains be completed.

On March 7, 1989, Council passed a resolution that the portion(s) of Belle Island be registered as a
cemetery and the City follow the Province of Ontario Cemeteries Act guidelines.

On May 16, 1989, Council passed a resolution to award Tender No. 89-48, Proposals for Salvage
Mitigation of Shoreline Areas-Belle Island.

On December 1,2000, the interment of the remains and a ceremony took place at Belle Island. As part of
the re-interment process, a Stage 2 archaeological assessment of the burial site was conducted.

On November 20,2001, Council passed a resolution stating that Belle Island is known to encompass First
Nations cultural heritage resources and directed the Commissioner of Community Services and designates
to meet with representatives of the interested parties. Consultations with local First Nation communities
were undertaken.

Between 2001 and 2005, the City of Kingston, through the Department of Community Services and the
Legal Services Division, has been in discussion with the Tyendinaga Mohawk, the Algonquins of Sharbot
Lake and Ardoch, the Algonquins of Golden Lake and the Huron, as well as provincial representatives of
the Ministry of Consumer and Business Services (Cemeteries Act) and the Ministry of Culture with
regard to the history and protection of the site. On November 30,2004, staff briefed Council on the state
of discussions and the emerging long-term management strategy being considered.

In addition to direct discussions with local First Nations community representatives, City staff worked
with Mr. Paul Williams of Grand River Territory, Ohswekan, Ontario, who has served as the lead
representative or facilitator for many local First Nations communities across North America. He is a well
known and respected First Nations legal counsel from the Mohawk community. In time, the Mohawk
Nation Council of Chiefs was appointed as the First Nations representative partner under the proposed
management strategy. The Mohawk Nation Council of Chiefs is the traditional government of the
Mohawk people. The Haudenosaunee Confederacy, also known as the Iroquois or Six Nations
Confederacy, recognizes and sanctions the Mohawk Nation Council of Chiefs as the official government
of the Mohawk or Kahniakehaka.

As part of this initiative staff contacted various Provincial and Federal Government Departments to advise
them of the Belle Island situation and to seek advice. The City received responses from these agencies and
has been mindful of their comments in developing our strategy. The Mississauga who are and have been
residents for sometime to the east of the region of Kingston have been made aware of this proposed           3
                                                                  COUNCIL MEETING2 1OCT 0 3 ‘06
                                   APPENDICES TO REPORT NO.06-232
                                             2006-10-03
                                               Page 4

arrangement for Belle Island. The staff of the Department of Community Services has also consulted
broadly with various City Departments potentially involved in the long-term use of the island.

Legal Framework

The Legal Services Division has participated throughout the discussions with our local First Nations
communities. The presence of an aboriginal burial site in this matter gives rise to consideration of those
rights which apply to the First Nations living in Canada. In the case of Belle Island, there is clear evidence
of the burials and continuing respect and recognition of the burial site by all local First Nations. This
gives rise to the recognition of a right of use but not a right to sole ownership of the land due to the
available evidence that this area historically was at many times an area of transition or used by more than
one First Nation.

The attached draft terms has been circulated among local First Nations communities through the
facilitation of Mr. Williams and has received their consent. This agreement provides a means both to
recognize the right of use which the burial site constitutes and also to protect the site in a way that is
respectful of both the right of use and the cultural facts relating to the burials as well as maintaining the
City’s interest as land owner within the portfolio of City parks. Through partnering with the Mohawk
Nation Council of Chiefs, the City acknowledges its selection by our local First Nations communities as a
traditional governing body for one of the major First Nations communities connected to the Kingston
area.

Issues

Within this legal backdrop, staff and First Nations representatives have developed a respectful and
productive relationship while exploring the issues that may have a bearing on a strategy chosen for
protecting the Island and its cultural heritage. These issues may be summarized generally as follows:

   1. Provincial/Federal legislation- Cemeteries Act, Ontario Heritage Act, Federal heritage designation,
       Rideau Canal plans
   2. Municipal Land Use and Development Controls - Planning Act, Provincial Policy Statement,
       Official Plan, Zoning, Cycling and Pathways Study, Inner Harbour
   3. Environmental Considerations - former Belle Park landfill, water quality, shoreline stabilization,
       re-establishing the island
   4. Archaeological Considerations - extent of burials, other archaeological features
   5 . Operational Considerations - recreation programming, pathways, golf course changes required,
       emergency access and maintenance/insurance/securitycosts
   6 . Cultural sensitivities
   7. Ownership of the Land - retain, sell, co-ownership

Implementation Framework

City staff and the First Nations representatives have negotiated and suggested a management framework
for implementing and maintaining a long-term strategy for protecting the island’s sanctity within the
City’s portfolio of parks. The proposed framework includes:
   9
         Agreeing as a matter of first principle, to set the island apart as a place of peace and reflection, to
         be left, as much as possible in its present and natural state (as noted in Clause 2 of the draft
         agreement);                                                                                               4
                                                            COUNCIL MEETING2 I OCT 0 3 '06
                             APPENDICES TO REPORT NO.06-232
                                       2006-10-03
                                         Page 5


    Establishing an Implementation Team of six (6)persons comprised of three (3) members of staff
    representing the Corporation of the City of Kingston and three (3) representatives of the First
    Nations of interest to undertake the elements of this proposed framework (see Clause 3);
.   Agreeing that within five (5) years the City will take a number of steps to set the island apart
    physically (see Clause 4:
                            )

        o Modifylng the road bridge to the island so that it will not be passable by motor vehicles
          other than emergency vehicles;
        o Reducing the width of the road on the Island to become and be maintained as a walking
          path capable of emergency vehicle passage;
        o Removing connections between the mainland and the island, other than the bridge, so that
          the island will once again be surrounded by water;
        o Removing those portions of the golf course situated on the island and replanting these
          areas with indigenous plants and allowing these areas to return to their original natural
          state.

.   Agreeing that within two (2) years, the City will prepare and register a deed so that the island will
    be jointly owned by the Corporation of the City of Kingston and the Mohawk Nation Council of
    Chiefs (see Clause 5a);

.   Agreeing that within two (2) years of this agreement the City will take the necessary steps to
    impose such land use planning restrictions as will ensure the future protection of the island and its
    natural and human values (see Clause 5b);


.   The Implementation Team would also be responsible for the following (see Clause 6):

        o Creating a plan for the protection and landscaping of the known Burial Area that will
          protect the burials from erosion and disturbance;
        o Creating a plan for the future use of the island that will protect and enhance its natural
          grace and dignity;
        o Exploring the merits of designating the island pursuant to Part VI of the Ontario Heritage
          Act;
        o Exploring the merits of designating the island pursuant to any Canadian or other national
          heritage laws;
        o Considering whether a plaque or other official explanation, information or recognition
          should be placed on the island;
        o Considering the appropriateness of officially renaming the island; and
        o Reviewing and monitoring the progress made on the implementation plan.

    Agreeing that the island shall remain within the land use jurisdiction of the City and that the City
    shall retain responsibility for insurance, services and security as may be required.



                                                                                                            5
                                                                                          I
                                                                 COUNCIL MEETING2 1 OCT C ’ ’06
                                APPENDICES TO REPORT NO.06-232
                                          2006-10-03
                                            Page 6

Staff Comment

Staff supports the First Nations’ right of use to Belle Island and shares in their desire to respect and
protect the island as a place of reverence. Working with the representatives of our local First Nations
communities in developing and implementing a preservation plan for the island is appropriate and
necessary. A formalized framework to define and guide this working relationship is desirable to ensure
clarity of intentions, expectations and roles/responsibilities. The fi-amework being suggested poses a
number of significant policy questions and has potentially significant financial implications that will
require careful consideration by Council.

The most notable elements that Council will need to consider are:

    1 . Ownership- the First Nations of interest suggest that to properly secure and maintain the island as
        a place of reverence, it is their desire to co-own the island, through the Mohawk Nation Council of
        Chiefs as a representative traditional governing body, with the City and therefore have a voice in
        any future activities on the island. While they are supportive of other measures designed to protect
        and preserve the island, such as the Official Plan policy, zoning changes and heritage designations,
        only ownership or co-ownership would secure their abiding interest in these lands. They suggest a
        two (2) year time flame in which to make the change in title. Community Development Services
        staff is supportive of agreeing to co-ownership as the basis for an ongoing stewardship
        arrangement with the First Nations. It is important to note that the agreement stipulates that the
        island is to remain within the land use jurisdiction of the City and that the City would retain
        responsibility for insurance, security and servicing the island.

   2. Physical Changes to Island - a number of physical changes to the island are needed to protect it
      and to return it to a more natural state. The implementation group will investigate each of the
      measures more critically over the next few years and determine the feasibility and costs of each.
      This investigation will be based on awareness of the financial implications of some of the desired
      physical changes and recognizes that not all changes are possible within the short or medium term,
      if even feasible at all.

The City has a unique opportunity in the proposed implementation framework for Belle Island to establish
a strong partnership with our local First Nations communities through adopting a practical recognition of
historic and continuing aboriginal use of these lands. If approved, the proposed framework would
establish a heightened standard for municipal relations with the First Nations which will assist in other
areas of shared interest such as planning and development. It will also provide an opportunity to develop
positive relationships, as well as significant cultural exchanges, with the City’s urban aboriginal
community.

EXISTING POLICY/BY LAW:
On March 7, 1989, Council passed a resolution that the area around the known burial site be designated as
a ‘native cemetery’ under the Cemeteries Act, Ontario Ministry of Consumer and Commercial Relations.

On November 20,200 1, Council directed the Commissioner of Community Services to meet with the
interested parties’ representatives to discuss options of long term protection of Belle Island.

NOTICE PROVISIONS:
NIA                                                                                                            6
                                                                COUNCIL MEETING2 1OCT 0 3             ’06
                                APPENDICES TO REPORT NO.06-232
                                          2006-10-03
                                            Page 7

ACCESSIBILITY CONSIDERATIONS:
N/A

FINANCIAL CONSIDERATIONS:
Long-term costs to stabilize and protect the island in a manner satisfactory to the parties are not known at
this time. As outlined in the proposed partnership fi-amework it will be the responsibility of the
implementation team to research and itemize these costs, as well as identify resources and options on how
to pay for them. The team will develop a detailed implementation plan that includes, costs, funding
sources, timelines and accountabilities, among other things for Council’s consideration. The team will
also provide Council with regular updates on the development of this plan.

A formalized partnership with the First Nations, as is being proposed, may provide opportunities to access
federal funding for which the City otherwise would not be eligible. The First Nations has indicated a
desire to work with the City in pursuing such opportunities in future. Identifying and facilitating the
application for grants would be part of the implementation team’s work.

CONTACTS:
Mark Fluhrer, Director, Culture & Recreation Department                        6 13-546-4291 ext. 1342
Robin Etherington, Manager, Culture & Heritage Division                        613-546-4291 ext. 1255
Alan McLeod, Senior Legal Counsel, Legal Services Department                   613-546-4291 ext. 1237

DEPARTMENTWOTHERS CONSULTED AND AFFECTED:
The following have been consulted in the preparation of this report and the attached proposed partnership
arrangement. Comments received were incorporated as appropriate.

City staff in all departments potentially affected including Environment, Legal, Culture and Recreation,
  Public Works, Planning and Development, Building and By-law, Risk Management, Clerks, Finance.
Claims Research and Assessment Directorate, Claims and Historical Research Centre, Indian and
 Northern Affairs Canada
Research, Policy and Research Directorate, Indian and Northern Affairs Canada
Land Operations, Ontario Region, Indian and Northern Affairs
Secretary for Native Affairs, Ontario Native Affairs Secretariat
Eastern Municipal Services Office, Ministry of Municipal Affairs
Provincial Registrar of Cemeteries, Ministry of Consumer and Business Services (Cemeteries Act)
Ministry of Culture
Ministry of Tourism, Culture and Recreation
The Algonquins of Golden Lake
The Tyendinaga Mohawks
Mr. Paul Williams on behalf of:
The Haudenosaunee
The Algonquins of Ardoch
The Algonquins of Sharbot Lake
The Mohawk Council of Akwesasne
The Wendat of Wendake
The Council of the Mohawks of the Bay of Quinte
Commissioner Beach, Sustainability and Growth
Commissioner Segsworth, Public Works and Emergency Services
                                                        COUNCIL MEETING2 1OCT 0 3 '06
                            APPENDICES TO REPORT NO.06-232
                                      2006-10-03
                                        Page 8

Commissioner Hunt, Finance and Corporate Performance
Commissioner Leger, Corporate Services
Jim Keech, President, Utilities Kingston


EXHIBITS ATTACHED:
EXHIBIT A: Map Showing Belle Island & Surrounding Area
EXHIBIT B: Draft Agreement between First Nations and the City of Kingston




                                                                                        8
                              COUNCIL MEETING2   1 OCT 0 3 '06
      EXHIBIT 'A' TO REPORT NO.06-232
                   2006-10-03
                     Page 9

Map Showing Belle Island & Surrounding Area




                                                                 9
                                EXHIBIT ‘B’ TO REPORT NO.06-232
                                            2006-10-03       COUNCL MEETiNG2                             1 OCT O 3 ’06
                                              Page 10

       Draft Agreement between First Nations and the City of Kingston
This Agreement is made this           day of         2006

Between:

                                      The Haudenosaunee or
                                 The Mohawk Nation Council of Chiefs

                                      The Algonquins of Ardoch

                                   The Algonquins of Sharbot Lake

                                 The Mohawk Council of Akwesasne

                           The Council of the Mohawks of the Bay of Quinte

                                       The Wendat of Wendake

                                                 -and-

                                The Corporation of the City of Kingston

Whereas:

      Human beings have “used and occupied Belle Island, or Kahwennodiio, in the Cataraqui
      River for thousands of years;

      Over a thousand years ago, people gathered at the banks of the river to bury their dead on
      the Island with dignity, love and respect;

      The governments that have joined their minds together in this agreement have already joined
      in the reburying of the remains of some of those dead people on the Island with the same
      dignity, love and respect in which they were originally placed in the Earth;

      These governments have joined their minds together as one in a desire to protect the Island
      for the future, to preserve its natural grace and peace, and its forests and wetlands, and
      safeguard the burial places from any future disturbances;


Therefore the parties agree as follows:


1.         In this Agreement,

      a.      “Burial Area” means the portion of the Island outlined in red in the map attached hereto
              as Appendix “A”;
      b.      “Island means Belle Island or Kahwennodiioas set out on the map attached hereto as
              Appendix “A;                                                                                     10
                         EXHIBIT ‘B’ TO REPORT NO.06-232
                                      2006-10-03
                                       Page 11        COUNCIL MEETING2 1OCT                              0 3 ’06
      c.     “Kingston” means the Corporation of the City of Kingston; and
      d.     “Parties” mean the governments whose representatives have signed this Agreement,
             their heirs, assigns and successors.


2.        The Parties agree that the Island shall be set apart as a place of peace and reflection, to
be left, as much as possible in its present and natural state.


3.       The Parties will form an ImplementationTeam of six persons comprised of three
representativesof the Corporation of the City of Kingston and three representatives of the other
Parties. Decisions of the ImplementationTeam require the consensus of all six votes. Each
person on the ImplementationTeam will be appointed permanently except if a person so appointed
is no longer able to participate or is replaced by the appointing Parties in which circumstance that
person shall be replaced by a new appointee.


4.       Within five years of the signing of this Agreement, the Corporation of the City of Kingston
will take the following steps to set the Island apart physically:

      a.     the road bridge to the Island will be modified so that it will not be passable by motor
             vehicles other than emergency vehicles;

      b.     the road on the Island will be reduced in width to become and be maintained as a
             walking path capable of emergency vehicle passage;

      c.     connections between the mainland and the Island, other than the bridge, will be
             removed, so that the Island will once again be surrounded by flowing water; and

      d.     the parts of the Island that are being used as part of a golf course shall be replanted
             with indigenous plants and helped to retain their original natural state.


5.       The Corporation of the City of Kingston will take the following steps to set apart the Island
legally:

      a.    within two years of the date of this agreement, prepare and register a deed so that the
            Island will be jointly owned by the Corporation of the City of Kingston and The Mohawk
            Nation Council of Chiefs; and

      b.     impose such land use planning restrictions as will ensure the future protection of the
             Island and its natural and human values.

6.      The ImplementationTeam will meet as frequently as necessary to implement the terms of
this Agreement in the spirit of respect and trust that has governed the Parties in their work
together. In particular, the ImplementationTeam will, in consultation with whatever advisors they
may choose:


                                                                                                             11
                        EXHIBIT ‘B’ TO REPORT NO.06-232




      a.    jointly create a plan for the protection and landscaping of the Burial Area which will
            protect the burials from erosion and disturbance;

      b.    jointly create a plan for the future use of the Island which will protect and enhance its
            natural grace and dignity;

      C.    consider whether the Island should be designated pursuant to the Ontario Heritage
            Act, and submit a report on that question;

      d.    consider whether the Island should receive designation pursuant to any Canadian or
            other national heritage laws and submit a report to the Parties on that question;

      e.    review the progress made by the Corporation of the City of Kingston in physically and
            legally setting apart the Island, submitting interim reports to the Parties with
            recommendationsfor resource allocation from the Parties or any other reason if any
            required, and a final report once the process has been completed;

      f.    consider whether a plaque or other official explanation or information or recognition
            should be placed on the Island; and

      g-    consider whether the Island should be officially renamed and how.


7.    Except as stated herein, no Party shall apply for any special designation for the Island or
      construct any permanent structures on the Island without the consent of the other parties.


8.    All Patties commit themselves to be stewards of the Island and as such participate in the
      protection and maintenance of the property by providing on consent the resources available
      to each of them. The Corporation of the City of Kingston shall continue as one of the
      stewards of the Island and, as part of that stewardship, the Island shall remain within the
      land use jurisdiction of Kingston, which shall retain responsibility for insurance, municipal
      services and security. If the work of the Parties and the Implementation Team is not
      completed by the dates defined herein, the time for that work may be extended.


9.   The parties shall make such arrangements as are necessary to ensure that this agreement
     does not result in tax liability for any Party.

10. The Parties acknowledge that the determinations and obligations of the Implementation
    Team are subject to reporting to and instruction from the Parties and are also subject to legal
    obligations beyond the jurisdiction of the Parties.

IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals as duly
attested to by the hands of their proper signing officers authorized in that behalf.



                                                                                                        12
                       EXHIBIT ‘B’ TO REPORT NO.06-232
                                    2006-10-03
                                     Page 13        COUNCIL MEETING2               1OCT 0 3 ’06

SIGNED, SEALED AND DELIVERED         ) THE CORPORATION OF THE CITY OF
                                     ) KINGSTON
        in the presence of           ) Per:
                                     )
lNve Have the Authority to Bind      1
the Corporation                      1
                                     ) Harvey Rosen, Mayor
                                     1
                                     )
                                     1
                                     ) Carolyn Downs, Clerk
                                     1
                                     1
                                     1
                                     ) The Haudenosaunee
                                     ) Per:
                                     )
                                     1
                                     1
                                     ) The Algonquins of Ardoch
                                     ) Per:
                                     1
                                     1
                                     1
                                     ) The Algonquins of Sharbot Lake
                                     ) Per:
                                     )
                                     )
                                     )
                                     )
                                     ) The Mohawk Council of Akwesasne
                                     ) Per:
                                     1
                                     1
                                     1
                                     1
                                     ) The Council of the Mohawks of the Bay of Quinte
                                     ) Per:
                                     )
                                     )
                                     1
                                     ) The Wendat of Wendake
                                     ) Per:


                                                                                           13

				
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