Indigenous and Northern Affairs Committee on April 7th, 2008

[The Chair, Conservative, Barry Devolin]

I call the meeting to order.

Good afternoon, everyone. Welcome to the 22nd meeting of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development. Today we are continuing with our hearings dealing with Bill C-30, an act to establish the specific claims tribunal and to make consequential amendments to other acts.

Before I get to the witnesses today, I would like to welcome to our committee a new member, Rob Clarke, from Saskatchewan.

[Some hon. members]

Hear, hear.

[The Chair, Conservative, Barry Devolin]

Rob was recently elected from...I won't even try the name; I'll just say northern Saskatchewan. We welcome you.

Would you like to say hello?

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

Well, I'd like to thank everyone for greeting me here. It's an honour being here today.

I'm of first nations descent. I'm from Muskeg Lake First Nation. That's my home reserve.

I've very excited about working with this committee and representing first nations, but my main focus is working as a team together. I'm looking forward to that. With my RCMP background I see it as a team effort; we've all got to work together to get the job done.

Thank you again, and let's get at it.

[The Chair, Conservative, Barry Devolin]

Thank you. Let's hope that's the way it stays.

We have two groups of witnesses today. The first group I'll introduce in a minute. The second group will be appearing by video conference; Bill Erasmus and François Paulette from the Assembly of First Nations will be at 4:30 p.m., so we will take a short break between the two sessions because they'll need to get the teleconferencing set up properly.

For the first hour today, we are pleased to have Gordon Peeling and Pierre Gratton from the Mining Association of Canada. Welcome, gentlemen. If you would like to take ten minutes to make a presentation, we will follow that with a round of questions.

Go ahead, Mr. Peeling.

[Gordon Peeling, President and Chief Executive Officer, Mining Association of Canada]

Thank you, Mr. Chairman.

My name is Gordon Peeling and I am the President and Chief Executive Officer of the Mining Association of Canada.

With me is Pierre Gratton, the vice-president of sustainable development.

It's our pleasure to be here to talk about Bill C-30, the specific claims tribunal act. The Mining Association of Canada supports Bill C-30 and the accompanying political agreement between the Government of Canada and the Assembly of First Nations.

I would like to commend the government and the Assembly of First Nations for the development of the bill and the political agreement. We encourage the government to bolster this kind of approach with first nations in the spirit of garnering further constructive dialogue and tangible results.

The mining industry offers major opportunities for first nations peoples. We are making a significant contribution to aboriginal employment, business development, and growing education and skills levels, creating opportunities for all aboriginal peoples, but there is much more our sector can do with the right public policy framework.

Bill C-30 and the political agreement represent a positive step forward, but the federal government must complement this initiative with an effective implementation plan and progress in other areas.

With respect to our industry and first nations, Inuit, and Métis peoples, here are some of the facts.

Mining is the largest industrial employer of aboriginal peoples. We double the national average. And while some mines have aboriginal workforces that are 30% to 40% aboriginal, some are even higher than that. And these are good-paying jobs. The average income of aboriginal people in mining is twice the national aboriginal average. Aboriginal business procurement is also high. In just five years, for example, Diavik Diamond Mines purchased over $1 billion in goods and services from aboriginal-owned businesses. Cameco and Syncrude have also achieved this billion-dollar milestone, albeit in a longer timeframe.

This is what is happening, but let us also look at the future. There are 1,200 aboriginal communities that are located within 200 kilometres of producing mines and 2,100 exploration properties across Canada. For our industry, facing a major human resource shortage, and in a period of tremendous growth, first nations are critical to our future. First nations youth represent the fastest-growing population in Canada. By working to enhance access to training and education, the mining industry can complement federal investments in these areas. We can also be a critical partner in the economic and social development of first nations communities, but many hurdles remain.

Mining and exploration increasingly takes place on traditional aboriginal lands. In many parts of Canada land claims remain unsettled. In these circumstances it is much more difficult for industry to negotiate agreements with aboriginal communities, to navigate the regulatory process, and to advance new projects.

At times these underlying conditions undermine our ability to come to agreements, to partner and to develop together. Not surprisingly, for many first nations, respect and recognition of their rights and secure tenure are preconditions for their support for and interest in natural resource development on their traditional lands. We need only look at the pipeline negotiations and some recent controversies between first nations communities and exploration projects to see what can happen when rights are not recognized and land claims are not settled.

No one--not first nations, not industry, and not governments--benefits from the conflicts such as we have seen. What is in the collective interests of the first nations in the minerals industry are the kinds of industry-aboriginal collaboration and agreements we see involving mine development, such as Diavik in the Northwest Territories, Voisey's Bay in Newfoundland and Labrador, with the oil sands miners in Alberta, Cameco in Saskatchewan, at the Victor and Musselwhite mines in Ontario, and at many other operations across Canada. These outcomes are achieved through dialogue and respect, not through the courts and not through conflict, as was unfortunately the case recently in a dispute between the KI First Nation and mineral explorer Platinex.

We encourage the government to acknowledge the rights and interests that first nations have and to move forward on this basis, and Bill C-30 is a huge step in that direction, which will in actual fact improve the process. We can no longer delay. We need action on land claims and we need it now.

The Specific Claims Tribunal Act is a good step for resolving specific claims. It holds the promise of accelerating the resolution of specific claims, and with adequate investments and the timely and effective implementation of the political agreement, real progress can be made. But don't think this means the job is done. Comprehensive land claims not addressed by this bill can take and are taking decades to settle. In areas of high mineral interest, such as the Northwest Territories, the settlement of comprehensive land claims is urgent. Major claims such as the Dehcho and Akaticho require resolution.

Let me also touch on a related issue, the crown's duty to consult. While our industry recognizes that it is good practice to consult and accommodate aboriginal communities, industry actions are not a proxy for the crown. Exploration and mining projects have been held up or jeopardized because the crown has been found to not have fulfilled its consultation duties.

Supreme Court of Canada decisions have been clear about the crown's role in consulting with aboriginal peoples where rights may be infringed. We need government to do their duty, to clarify and implement its consultation obligations, and thus provide industry and first nations with certainty with respect to resource development.

We at the Mining Association of Canada recognize that we must also do our part. Our board has adopted a draft policy that lays out the industry's commitments toward aboriginal peoples through our award-winning TSM initiative, or towards sustainable mining initiative. We are currently consulting on this policy with first nations, Inuit, and Métis communities and organizations across this country.

We have been aided in our work by a national advisory panel that includes representatives from the Assembly of First Nations, Inuit organizations and Métis organizations, organized labour, the Canadian Environmental Network, mining municipalities, and the financial sector. A primary focus of the panel's work over the past few years has been on aboriginal relations.

As well, as many of you who participated in last year's Mining Day on the Hill would know, MAC signed a letter of intent with the Assembly of First Nations to enter into a partnership to address issues of mutual concern. The letter of intent will lead to a memorandum of understanding between the two organizations, and will contribute to increased first nations participation in Canada's mining industry. We have both targeted June of this year to finalize those discussions on the memorandum of understanding.

The letter of intent was initiated in part to respond to the AFN's corporate challenge program, which creates partnerships with corporate Canada to increase investments, procurement, and employment opportunities for first nations, and with the MOU will serve to strengthen MAC's towards sustainable mining initiative.

This new partnership would have been inconceivable for both our organizations a decade ago. It shows how times have changed and how we are changing. We need governments to change with us.

In conclusion, I want to reaffirm our support for Bill C-30 and the political agreement. The establishment of a specific claims tribunal through Bill C-30 and a commitment by the government to address the items outlined in the accompanying political agreement are, in our view, a step in the right direction--an absolutely essential step. They represent an important precedent for future legislative and policy initiatives. We urge its speedy passage without our losing sight of the many other important issues that I have raised with you today, some of which can come through the political agreement.

Thank you very much. Merci.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Peeling.

We're going to begin a round of questioning, seven minutes to each of the caucuses. The first questioner is from the Liberal Party.

Mr. Valley, you have seven minutes.

[Roger Valley, Liberal, Kenora, ON]

Thank you for allowing me to be part of this today. I did serve on this committee before, for 18 months, but after the last election I moved to veterans affairs. It's good to be back here.

Thank you for coming today.

Mr. Peeling, I want to thank you for your March 17 press release that mentions an issue that you've already brought up here today. That's the ongoing dispute between Kitchenuhmaykoosib Inninuwug and Platinex. I want to read a couple of your words at the end here, that these outcomes “are achieved through dialogue and respect, not the courts”. I wish that were the case with Platinex.

I'd just ask you to elaborate a little bit on the difficulties that are going on there. Your association has probably a lot to say about how we can improve these things. This dispute that you mentioned, and that I've just brought up from your press release, has the ability to blow everything out of proportion and make it very difficult for us to move forward.

[The Chair, Conservative, Barry Devolin]

Perhaps I can interrupt for a moment, Mr. Valley.

As you know, the topic of our discussion today is Bill C-30. I am certainly in the habit of giving wide range to committee members in terms of what they want to talk about, but I'd also like to say to the witness that we invited you here today to talk specifically about Bill C-30, and would appreciate certainly if you could answer any questions to do with that. If there are questions that are not to do with Bill C-30, you are certainly under no obligation to deal with those. And if that is the case, then we can move on.

[Roger Valley, Liberal, Kenora, ON]

Well, thank you, Mr. Chairman, but he brought up the issue. It definitely relates to Bill C-30. These are land claims that need to be dealt with. Bill C-30 is not going to move at any rate, with any great speed, until everybody works together.

[The Chair, Conservative, Barry Devolin]

I appreciate that. I said I wasn't disallowing the question, but I just wanted to say to the witness that if he feels that the questions go beyond dealing with Bill C-30, he's not obliged to answer them.

[Roger Valley, Liberal, Kenora, ON]

Okay, fair enough.

[Gordon Peeling]

I'll make a very general comment.

Part of the work we're doing as an association, namely the aboriginal relations piece—and community outreach is one of the major aspects of our “Towards Sustainable Mining” initiative— will be part of that. It is to ensure that when we enter onto the land for the first time, we have already consulted with first nations, Inuit, or Métis, whoever may be the important proprietor or have the land claim or traditional use of that area.

Bill C-30, by removing a lot of these concerns and resolving them quickly with respect to the specific claims, helps to remove those problem areas. So if we do our job properly because the government has done its job properly, and these issues have been resolved between first nations and the government, it makes it easier for us to do our job. What we see happening from time to time is that because there is an aggrieved party, we become somewhat the ham in the sandwich. We become the lever for raising an issue with the federal government.

That may not be the specific instance in this case. But the reality is in a settled situation, if we do our job properly in consulting, and the industry does its job properly in consulting, then these issues that resort to the courts don't apply. But as far as the need for the government to consult goes, there are a lot of laws on the books that have been on the books for many years prior to Supreme Court decisions. I think all governments are struggling at both levels, whether it's provincial, territorial, or federal, with finalizing how they will approach the discharge of the responsibility of the crown to consult. If there is a perception that the duty to consult has not been discharged appropriately, then we can get into very difficult situations.

As I mentioned, and first nations will certainly remind us, we are not a proxy for the crown. We cannot discharge the crown's responsibility and duty to consult, at least not in the appropriate terms. We have a different duty and requirement to consult that is not at that same level.

So my sense of Bill C-30 in this regard is that if we resolve these issues in a timely way, we are less and less likely to get caught in situations like those of Platinex and the KI First Nation. The present situation has resolved none of the issues that are at the heart of this.

[Roger Valley, Liberal, Kenora, ON]

I would go so far as to say that the present situation makes everyone's job that much more difficult, as we try to get Bill C-30, and we try to look at it through clearer light.

Is Platinex a member of your association? Do you know?

[Gordon Peeling]

No, it is not.

[Roger Valley, Liberal, Kenora, ON]

You mentioned earlier--and I'm going to touch on that quickly--the Musselwhite labour agreements that do provide a lot of employment. You mentioned you have a large component of first nations who work for you. With all due respect, the Musselwhite agreements were great at the start, but we don't have the ability to make them carry on and go further. So again, it brings everything back into question as to how much consultation or how much action on land claims is actually going to take place, because a lot of them feel that action on land claims without consultation or community involvement or agreement is going to be very difficult.

So what would be your impression of the consultation part, or the duty to consult at the point it is right now?

[Gordon Peeling]

I think that we as an industry are concerned that the government does not have a coherent policy across all departments on how it will discharge its duty to consult. It's true at the federal level; it's true at the provincial level.

We understand that policy guidance is coming forward, and I know that probably certain parts of the government have a very strong sense of how they have to discharge that responsibility. When you're talking to Department of Fisheries and Oceans officials over fish habitat issues and so on, what is their duty to consult, and how do they discharge it appropriately?

This is where I think additional guidance is required. It's something the industry has asked for, but we're not the only ones, obviously. It also helps us to understand the framework within which we have to operate. It lessens the chance that our issues and the opportunity we might identify through exploration or development gets diverted by a need and an opportunity.

I don't blame first nations at all. If there's an opportunity to raise their issue, and development is the lever to raise it, particularly for something that may have been outstanding for many years, if not decades, then they will do so. But it puts us in a not very enviable position.

For our part, with regard to sustainable mining, we are trying to make our processes of best practice in consultation and work with first nations consistent across our industry. I can only talk about 30 full-producing members of our association and another 40 companies that provide services to our industry, but even there we need to make them consistent across our membership. And that's one of our duties and challenges. It's what we hope to do with the Assembly of First Nations in that partnership.

We are not at a perfect state, either, in this process. As I said, Bill C-30 can help all parties move towards a much more positive outcome.

[The Chair, Conservative, Barry Devolin]

Thank you.

We're out of time. Do you have a quick comment, Mr. Gratton?

[Pierre Gratton, Vice-President, Public Affairs and Communications, Mining Association of Canada]

This is from a slightly different angle. I'll touch on it, because your next witnesses are from the Northwest Territories. For example, in the NWT, in the current context, without clarity on the duty to consult, what our industry is facing increasingly is a multiplicity of different consultation protocols from different communities, and that is extremely difficult to get your head around. I'm going to this community; what is it that they expect versus the community I just saw a hundred kilometres away?

Because there isn't any kind of consistency, it's making things extremely complex and extremely uncertain, especially for the exploration community. Again, it's all created by the fact that the crown has not yet figured out exactly what it's doing with respect to consultation and accommodation.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

Next is Monsieur Lemay, from the Bloc, for seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I am very familiar with the Mining Association of Canada as my colleague hails from the riding of Abitibi—James Bay—Nunavik—Eeyou and I am from Abitibi—Témiscamingue which is home to a great many mining and aboriginal communities.

The Mining Association of Canada is a national organization involved in exploration. I am especially interested in exploration. In order for a mine to be developed and exploited, exploration activities must first take place.

I do not wish to get into the legal details of consultations within the meaning of the Supreme Court. However, if a prospector engages in exploration on land which is being claimed by or which is the focus of talks with aboriginals, is the community consulted before entry into their territory to determine if any ore is present?

[Gordon Peeling]

First of all, the exploration side of the industry is organized through the Prospectors and Developers Association of Canada. My members tend to be in the production. We often buy properties after the exploration stage, although many of our members will also be in the exploration business.

Once you have filed claims before entry--and in some jurisdictions that can be done electronically, through map staking as opposed to physically being on the ground--usually at that point you will want to consult with the the first nations communities about where you're going to be, the nature of the work you're going to undertake, concerns they might have about trapping, cultural activities, and traditional use of the areas. It should absolutely be as early in the process as possible.

The Prospectors and Developers Association of Canada has an electronic database called “e3”, which is environmental excellence in exploration. It has a whole section on consultation with communities as early in the process as you can possibly do it without giving away confidential information prior to staking--where someone else may take the ground ahead of you.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I knew quite a bit about the Mining Association of Canada. You sent me a fairly substantial number of documents. I hope that everyone here at the table has had an opportunity to read them so that we do not cover the same ground. Two documents in particular caught my attention: a press release dated March 20, 2008 regarding the famous case that I do not wish to discuss in detail, and a letter of intent dated November 20, 2007 which I find quite intriguing.

What authority do you have over your colleagues? I know that Xstrata and Canadian Coppers, for example, are members of your association. Are they obligated to abide by this document in order to belong to the Mining Association of Canada?

[Gordon Peeling]

Yes, they do. That is a document that is intended to lead to a memorandum of understanding. We have produced, collectively, Towards Sustainable Mining, which also relates to our relations with first nations, Inuit, and Métis. As part of our initiative, we have community outreach and dialogue. That's a mandatory element of membership in the Mining Association of Canada. So this in fact will bind us, as an association, and our members, to work together.

For a larger body of the industry we have produced information toolkits with the federal government and the Prospectors and Developers Association, to put communities in a much more knowledgeable position to negotiate and consult with the industry about the implications of exploration.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Clearly, you have an interest in this. The Mining Association of Canada carries out exploration activities, in particular mineral exploration. Therefore, a great deal of money is at stake. We want to hear the truth, not fairytales.

Once exploration activities are completed and enormous potential mineral reserves have been found at a given site, what steps do you take next, and what steps should you take to involve the first nations community or the province or municipality concerned? In Quebec in particular, mining operations may be of concern to certain municipalities. Do all parties meet to work out an agreement or to set priorities?