Indigenous and Northern Affairs Committee on March 12th, 2009

[John Dempsey]

It's not managed through the Indian Oil and Gas Act; it's managed through section 64 of the Indian Act.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Yes, I understand that.

What's the situation then about the third party in that particular case? Again, I don't have the legal case before me, but my understanding is that the first nations could be liable in this particular case because the federal government has applied for status there.

[Strater Crowfoot]

We're liable for the royalties, the verification of those royalties, and then the deposit of those royalties into the different trust accounts. That's our responsibility.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

That's your responsibility. So other questions around this really need to go to Indian and Northern Affairs, because it's under the Indian Act and not under IOGC.

In terms of the Hobbema case, you've done everything you needed to do and your obligations are fulfilled.

[Strater Crowfoot]

The collection of royalties is our responsibility. We fulfill that, yes. That hasn't been shifted.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I just want to touch on the consultation process, because I know that this has come up. Stoney Nakoda has provided us with some fairly detailed notes on the number of times they've raised issues in this process around the Indian Oil and Gas Act.

When we talked about it at the last committee meeting, I went back to the communications and outreach. Subsequently, of course, I took a second look at it and realized that nowhere in this communication document does it actually say that people agreed with the legislation. It says they agreed to support the process. It's a matter of language.

Did Stoney Nakoda and other nations actually agree to the draft legislation—not the process, but the draft legislation?

[Strater Crowfoot]

John Dempsey has been involved right from the start in the drafting of the legislation. But as I said, this process has been joint drafting with the first nations. There's been, I guess, compromise and concurrence with what was brought forward today.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

We have documents from Stoney Nakoda that demonstrate that a year ago they submitted substantial numbers of amendments on what had been drafted at that point. Those drafts subsequently changed, but again, they submitted more amendments.

[The Chair, Conservative, Bruce Stanton]

You're out of time, Ms. Crowder, I'm sorry.

Give a brief response, please.

[Strater Crowfoot]

There are other first nations that brought forward issues as well, and they were all discussed with the group—not only Stoneys, but other first nations—and this is what they agreed to put forward.

[The Chair, Conservative, Bruce Stanton]

We'll go to Mr. Clarke for five minutes.

Mr. Clarke.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

Thank you very much for attending here today.

I have a number of points that were raised by the chiefs this morning. Perhaps you could provide some comments or observations on the following.

First, I'd like to get some clarification. What were the linkages between the lawsuits such as the TOPGAS and Victor Buffalo and the proposed amendments?

[John Dempsey]

We have added into Bill C-5 a federal limitation period that was as a result of the TOPGAS lawsuit. It was found in that lawsuit that because there was no limitation period, the courts applied the provincial limitation period. In that case, I believe it was four years at the time in the province of Alberta; they recently lowered that down to two years. We thought that was not long enough in the regime we deal with, so we proposed a ten-year limitation period.

Originally it was proposed to seven years, actually, but through the work of the IRC it was put back to ten years.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Does Bill C-5 give the powers to adopt provincial statutes from Alberta?

[Karl Jacques]

Yes, it does. Actually, it does through the regulations in proposed section 4.1 of the bill.

This power is to incorporate laws of a province. But as you will notice, there are quite a few subjects on which regulations could made--there's (a) to (z). The incorporation by reference that is permitted is restricted to only certain areas--something like six of those subject matters. So saying that it's going to incorporate all of the laws of the province is not correct. Only some of those can be incorporated in the areas that have been specified, and that specification is in proposed subsection 4.2(1) of the bill.

Incorporation by reference does not off-load the responsibility of the province. Actually, incorporation by reference is a drafting technique. It only says it permits someone to take laws that are already adopted and written somewhere, and adopt them as if they were their own. So it's still the government making those regulations, but you're not going to see them in that form because they'll be published in the Alberta Gazette, as they are now, in Alberta.

It doesn't mean the federal government has the power to do everything that's permitted under provincial law either. These are regulatory powers, so the regulatory safeguards are still there, which means that it's still delegated legislation. We have to go through all of the legislation and see whether the incorporated sections or laws fit under the powers that are enumerated here.

There is also the power to adapt, and if you do that, you incorporate everything without having to make some adaptations to the reality of the situation, in this case.

Finally, because it's the Governor in Council, they can amend any of the regulations incorporating...or they could decide to repeal them, because the Governor in Council is making those regulations. If incorporation by reference does happen, that simply means these are still Canadian or government laws or regulations.

[The Chair, Conservative, Bruce Stanton]

You have one minute left, Mr. Clarke.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

Would one of you be able to comment on these definitions: downstream, refineries, exploitation?

[Karl Jacques]

Refining is basically something that's downstream. It's not the recovery of oil and gas resources. It's basically processing or selling. These are under provincial jurisdiction, under section 92 of the Constitution.

Trying to incorporate this would change the whole scheme of it. FNCIDA might be used for that kind of process.

Changing the definition in here would probably change the whole scope of the act. Basically, the definition is about taking resources, and not necessarily about the processing or refining of those resources.

[The Chair, Conservative, Bruce Stanton]

D'accord. Merci.

Now we'll have Monsieur Bélanger.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chairman.

I want to go back to the discussion that Mr. Clarke started. Here's my concern, Messrs. Jacques, Crowfoot and Dempsey.

With this bill, are we opening the door to the possibility of unequal treatment? You've just confirmed that various provinces may have different acts and different regulations. You're asking legislators to give the executive the authority to incorporate, by regulation, all these acts and all this provincial regulation. Are we thus opening the door to possible unequal treatment?

[Karl Jacques]

No. The Supreme Court of Canada has previously held that incorporating these kinds of situations for the purpose of harmonizing statutes would not create a distinction from province to province. The purpose is to harmonize legislation with existing legislation in each of the provinces, and that does not create any distinction.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

The purpose is to harmonize the act with that of each province. Can you conceive of any situations in which an act in a province would not be the same as in another?

[Karl Jacques]

Yes, absolutely. The Supreme Court of Canada has held that there is no justification for having these rules because the acts differ from province to province, and it is also entirely possible, through federal legislation, to harmonize the system in place for each of those provinces.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Good, that's it, but by harmonizing the act with that of a province, can we create an equality between provinces, thus between aboriginal communities?

[Karl Jacques]

The result would be that we would apply to Saskatchewan, for example, the laws in force in Alberta. That could also cause a problem. However, it could be done that way, but the purpose is not to incorporate the laws of a province in another.