Indigenous and Northern Affairs Committee on April 7th, 2008

[Pierre Gratton]

The agreement negotiated between a mining company and a first nation is of a business nature.

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

In other words, both parties negotiate a contract.

[Pierre Gratton]

In Quebec, for example, Goldcorp and the Cree are currently in contract negotiations.

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

I see.

[Pierre Gratton]

There is no mine as of yet, only a potential mine. Stornoway Diamond Corporation is also negotiating a possible diamond mining operation with the Cree. The Cree have 30 years of experience in such matters. They know very well what to do.

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

They have experience at the negotiating table.

[Pierre Gratton]

It is much more difficult if they have not had any experience dealing in the past with the mining sector or with others. In some ways, it is easier in the James Bay area because land claim issues have been resolved. Furthermore, the community has experience with and is knowledgeable about these matters.

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

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Ms. Crowder, from the NDP, for seven minutes.

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

Thank you, Mr. Chair.

Thank you very much for appearing before us today. I appreciate both your statement and some of the material that my colleagues have referred to.

As you rightly pointed out on the situation with KI and Platinex, Platinex is not a member of your organization; and arguably, I'm not sure Bill C-30 would have resolved some of the difficulties with Platinex, because it seems that the province has a substantial role to play.

That leads me into the question I want to talk about. There are a couple of pieces in the legislation. One is that the provincial governments will only voluntarily participate in this process. So in the situation around KI and what not, if a specific claim were involved, if a province chose not to come to the table, they wouldn't be a player.

But the second piece is that in subclause 22(1), which is about notice to others—and I'm sure you don't have this down chapter and verse, so I'll read it to you—it says:

If the Tribunal’s decision of an issue in relation to a specific claim might, in its opinion, significantly affect the interests of a province, First Nation or person, the Tribunal shall so notify them. The parties may make submissions to the Tribunal as to whose interests might be affected.

I'm not entirely clear from that section whether a company whose interests might be affected by the specific claim would be able to make application, but in your view, do you see circumstances where mining companies might want to make interventions at a specific claims tribunal process?

[Gordon Peeling]

That's a very good question. I can certainly see where other first nations, particularly in an area of overlap or abutment, might want to enter into the process. In terms of how specific claims might play out with respect to existing actors on the land, I would hope there might be some space for their views to be heard, but I don't think we envisage that as a significant part of this.

Like you, I have some concerns about the voluntary side of the provincial engagement in this, because in many instances and at the heart of the KI issue is whether the provincial government has discharged its responsibilities correctly through its permitting system. So that is perhaps a flaw that might get addressed in the longer run in this process, because I would certainly like to see the provinces engaged and at the table in this where they have responsibilities to discharge.

For new projects where we have specific impact benefit agreements, socioeconomic agreements with first nations, Inuit, and Métis communities, I wouldn't see this being an issue, but when you retrofit into areas with long-standing operations that may ultimately be affected in some way, I would think that if some party's rights are impinged in a decision, there would be an opportunity to be heard.

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

In your presentation, I think you raised a couple of good points. One was around adequate resources, and of course, through this process, it has not been clear around resources. I'm not going to ask you to comment on governments putting resources in, because that's clearly outside of your mandate, but it is an issue, because one of the things we know is that this process could still take substantial periods of time. The minister and the parties have up to six years, and then it could go to the tribunal. It could go to the tribunal earlier, but there are no deadlines for the tribunal. So we're anticipating that there could be an expedited process, but without adequate resources and perhaps some guidelines around timelines for the tribunal, it might just shift the burden of work from one organization to another.

Could you comment on specific areas where you see that Bill C-30 will expedite a process that could mean more clarity around involvement with the mining industry, if there are actual specifics in this piece of legislation?

[Gordon Peeling]

Let me come at this sort of in the way we've been looking at Bill C-30. Our membership has not brought instances of specific claims that are an impediment to agreements so far. Our desire in the longer run is that if this could be an expedited process to deal with the backlog of specific claims, and in a world of limited resources at the federal level it would create more space to deal with the major claims, then that's really where we will start deriving a benefit.

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

Which could be years down the road.

[Gordon Peeling]

It could be years down the road, absolutely. Unfortunately many of these have been with us for years. We would hope that in certain instances—and Voisey's Bay is an example where a very large economic development brought people to the table to settle a claim--it would be nice if we could have large economic developments drive some of this process. But you really want it to go on its own accord, because there are rights at issue here, claims that need to be settled. Our hope is that by being more efficient in one area you free up resources elsewhere to deal with these other major claims.

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

This is, very quickly, on the consultation piece. Again, you've rightly identified a failure on the federal government level to develop, and you cannot delegate the responsibility from the crown. In your consultation process I noticed you listed a whole list of people, but I didn't see the federal government. Have they at all expressed an interest in the process you're going through?

[Gordon Peeling]

I'll say a few words, and Pierre might add to it.

Absolutely, first of all the agreements that we enter into have also become part and parcel of the environmental assessment process, which, quite frankly, I think is more of a sustainable development. We now have this social aspect of these agreements being literally essential to an environmental assessment outcome before governments will sign off. There is very strong support from government in a general sense for what we're doing. That's why we have partnered with the federal government to produce information for first nations communities to understand our industry better, so that they are in a more knowledgeable position to negotiate and enter into consultations with us on a knowledgeable basis. We're not there to take advantage of them. We're there to partner with them in opportunities.

[The Chair, Conservative, Barry Devolin]

Thank you, Ms. Crowder and Mr. Peeling.

We now go to the Conservative Party. Mr. Albrecht, you have seven minutes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

Thank you both for being here today.

Looking at the letter of intent, and your news release between the Mining Association of Canada and AFN, and years of experience, it's obvious you have modelled in many ways this idea of collaboration and working with first nations people in terms of trying to find some common ground, if we can use that term. I'm referring to your news release where you talk about collaborating and months of discussion between the two organizations. Chief Fontaine indicates that first nations and the mining community are natural partners and goes on to talk about true collaboration. You've indicated that it's the largest private sector employer of aboriginal people. I think we all agree around this table that to advance economic opportunities for first nations people it's certainly win-win for everybody involved.

I would like to ask a question on your first point in your letter of intent, where it refers to the fact that you're jointly advocating to the federal government for a clear, effective, appropriate federal consultation policy. At this committee we've discussed the issue of consultation many times. My question comes down to the idea of developing a policy for consistency as to what consultation is.

Is it realistic that the federal government, or any other organization for that matter, will get unanimity in terms of agreeing on what constitutes adequate consultation? I would be interested in your thoughts. As I said earlier, you've obviously done something right, and it's working. I'm not sure if you would call it consultation or collaboration or what statement you would like to make on that.

Thank you.

[Gordon Peeling]

Let me speak from the ideal, and then I'll give you the metric to tell you whether the government in actual fact has got to an appropriate level of policy on consultation.

First of all, the government has to come at this from the point of view that it needs to have a consistent policy. The Supreme Court requires that the government discharge its consultation requirement in honour of the crown. The government clearly must have some view as to how it will discharge that responsibility. Its challenge is how to take that view and make it consistent across all the actors of government that will come into contact in some way with aboriginal communities across this country. It's our understanding that the government is in the process, with legal advice, of preparing that sort of consultation policy. You will know whether it works by how often you end up in court.

Our problem is that the government may think it's discharging its responsibilities appropriately and we may be acting with an investment on the basis that indeed the government has done so. We may spend millions of dollars on an environmental assessment process, only to find out that someone is taking the government to court over not having discharged its responsibilities appropriately.

That's the frustrating part, because costs build. It makes it a very difficult situation for the business community, not to say the aggrieved party that feels responsibilities haven't been discharged appropriately. I think the government has to operate from the point of view that it can do this in a manner that will meet the test of the courts.

Unfortunately, the courts have not given a lot of direction as to what would necessarily constitute appropriate consultation, and that has made it a bit more difficult for the government. But we get caught as the ham in the sandwich when the government fails or is perceived to have failed in its duties, and that's the difficult part, from our point of view.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

On the timeframes indicated within Bill C-30--the three and three--and then hopefully to the tribunal for a fairly speedy resolution, do you see this as a move forward for the mining industry in providing some sense of certainty as to whether they can move ahead on exploring certain pieces of property?

[Gordon Peeling]

Absolutely. We're very much in favour of timelines. You have a front-end part of this process to get a claim to an appropriate level before it can enter into the tribunal process. There's a period before that when there are negotiations and discussions before one party or both decide that it should go to a tribunal process.

I think that is all positive. We are strong advocates of having reasonable timelines in the regulatory system, but reasonable timelines can only be met if there are adequate resources to meet them. If there are not adequate resources they serve no one's interest and timelines are a bit of a chimera. So to come back to an earlier point that I perhaps didn't respond to as well as I might have, adequate resources have to go with this process.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

But given adequate resources, are these timelines realistic?

[Gordon Peeling]

They're realistic and a positive step. The other very positive thing about this is that with the five-year review you have a very quick check as to how well this is working in real terms and whether there are significant changes. Five years will pass very quickly in this process, and I think it's always important to have a five-year opener on legislation in these sorts of processes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

A number of witnesses who have appeared before our committee have suggested certain amendments to Bill C-30, such as removing the cap or adding some elders to the tribunal. Do you suggest it's important that the committee and Parliament move this bill ahead quickly and implement it, rather than risk getting bogged down in endless amendments?