Thank you, and good morning.
I want to thank the committee for giving me the opportunity to make a presentation today on behalf of the Assembly of First Nations and also on behalf of my own first nation, the Montana Cree Nation, located at Hobbema, Alberta.
I don't know if this is something that's required of me to do, but I just want to make a brief comment. I thought I would just point out very briefly to the committee that I was on the legal team on the Samson and Ermineskin cases, which were heard in the Supreme Court of Canada, and on which there was a ruling on February 13. I just wanted to point that out for your information, although my role in the trial did not extend to the oil and gas part of the case.
The first thing I would like to say on behalf of the Assembly of First Nations is that we believe this bill takes important steps with regard to the sharing of royalties and resource revenues for first nations and also perhaps provides for the employment of first nation workers on projects that are taking place within their traditional territories. The position of the AFN is that these are laudable goals and that this will set an approach for work on related matters in the future.
We also believe that the federal government has taken the right approach in developing this legislation with a thorough process, which was begun over 10 years ago and involved over 130 first nations in dialogue. The bill, as I understand it, was developed jointly with first nation leaders to ensure that the interests of those affected were addressed. The AFN has said repeatedly that this is how federal legislation must be developed. We further note the ongoing responsibility of the minister to consult with affected first nations, set out specifically in proposed section 6 of the bill.
However, having said all of that, the AFN does have a concern about Bill C-5, which we believe can and should be addressed by this committee.
One of the things I also wanted to say to the committee is that in my conversations with other first nations, before I travelled here to Ottawa, I heard that the position of some other first nations was that they would have liked to come here and make presentations to the committee, but that because of the whole process we weren't given a whole lot of time. They still would like to be heard by the committee with respect to their positions on this bill. I just wanted to raise that timing as an issue.
We are also wondering why this legislation is being hurried. At least, that's the way it appears to me and to some other first nations. We're wondering what the rush is. What we would have preferred is that this legislation would have been heard together with the regulations, because as I understand it, we still haven't seen what the regulations pursuant to this legislation will look like. We would have liked the opportunity to review the regulations pursuant to the bill.
I wanted to state that for the record: that there are other first nations that would have liked to come here and make a presentation before this committee.
First of all, with respect to the more technical aspects of the bill, the AFN's position is that where federal legislation purports to speak to the management of the environment or the economy--in this case, oil and gas development and the resulting revenues--it's important to be clear about the relationship between that legislation and any related provincial or territorial laws.
Moreover, as part of fulfilling its responsibility to support self-government by first nations, the federal government must plan for and support the efforts of first nation governments to make laws governing our own communities. This is a very important point for us. The federal role may be to facilitate harmony between first nation and provincial or territorial laws; it cannot be to prevent development by first nations by asserting either its own continuing jurisdiction or importing provincial or territorial jurisdiction into application in first nation communities.
I would direct the attention of the committee to proposed sections in the bill, specifically proposed new sections 4.2 and 4.3, which read in part as follows:
4.2 (1) Regulations made under subsection 4.1(1) — other than regulations made under paragraphs 4.1(1)(a) to (d), (f) to (r), (v) and (w) — may incorporate by reference laws of a province as amended from time to time, with any adaptations that the Governor in Council considers appropriate. (2) Regulations incorporating laws of a province may confer any power or impose any duty that the Governor in Council considers necessary on any provincial official or body, to be exercised or performed on behalf of the federal government in the same circumstances and subject to the same conditions as those governing the exercise of that power or the performance of that duty under the laws of the province. (3) The Minister may enter into an agreement with the government of a province, or with a public body established by the laws of a province, respecting the administration or enforcement on first nation lands of any laws of the province that are incorporated by the regulations, including the exchange of information related to administration and enforcement of those laws. ........... 4.3 Regulations made under this Act prevail over any by-laws or other laws made by a first nation under another Act of Parliament to the extent of any inconsistency between them, unless otherwise provided by regulations made under this Act.
This is a point I have particular issue with.
I would also like to point to clause 2 of the bill, amending former section 6 of the act, by adding the following language, as you know:
(1.1) The Governor in Council may, by regulation, (a) require that a power of the Minister under this Act in relation to first nation lands be exercised only if prior approval of the council of the first nation is obtained, if the council is first consulted or if prior notice is given to the council, as the case may be; (b) require that any such power of the Minister be exercised only if prior consent is given by any first nation member who is in lawful possession of the first nation lands; and
I'm reading this really carefully because I'm mindful of the time constraints. There is also a proposed new paragraph 6(1.1)(c), the notice provision.
AFN is of the position that this bill would be stronger and would set a better example for other legislation with two small amendments: in the first line of proposed new subsection 6(1.1) by deleting the word “may” and replacing it with the word “shall”; and under proposed new paragraph 6(1.1)(a) by deleting the word “or” and replacing it with the word “and” .
I don't know that it's necessary for me to read what the text would look like with these changes, but the small changes would greatly improve the otherwise fine work done by the first nations and the federal government in crafting this piece of legislation.
That's what the Assembly of First Nations has asked me to present to the committee.
Other first nations to whom I have spoken have said that they believe there could have been more and better consultation than occurred. Some of the first nations have said that the bill was presented to them as a sort of fait accompli before they even had a chance to speak to the issue or say anything about what amendments they would like to see in the legislation. It was instead given to them already drafted, and there was not a lot of opportunity for the first nations to exercise influence over the content of the bill. I know that some of my friends would disagree, but that is the position of some first nations, and I have been asked to relay it to the committee. Despite the fact that we know there was some consultation, and we are appreciative and mindful of that, the position of some first nations is that there could have been more and better consultation done.
Another issue that some have had is that in the existing legislation and regulations the IOGC already has a number of powers and abilities available to it. The question for some of us becomes this: since these powers already exist but aren't being enforced, we wonder how effective this new legislation is going to be, given that there were powers already available to but not exercised by the IOGC.
The other thing is that Bill C-5 doesn't increase first nation control or input into the decision-making process. That's a key element that we say is missing from this bill.
Since this legislation does not address these concerns from the perspective of some first nations, there's no rush to amend the existing act. Therefore we're asking that you take your time and perhaps do more consultation to make this legislation more effective.