Indigenous and Northern Affairs Committee on March 12th, 2009

[The Chair, Conservative, Bruce Stanton]

Good morning, ladies and gentlemen.

This is the 10^th meeting of the Standing Committee on Indian Affairs and Northern Development. This morning, we have on the agenda Bill C-5, an Act to amend the Indian Oil and Gas Act.

This morning we welcome our witnesses for consideration of Bill C-5, amendments to the Indian Oil and Gas Act.

We'll start with Chief Bruce Labelle from the Chiniki First Nation. Second will be Chief Clifford Poucette from the Wesley First Nation. Then we'll hear from Chief David Bearspaw from the Bearspaw First Nation.

Chiefs, we welcome you to our committee this morning. We're delighted that you could take the time to join us here on relatively short notice.

We normally provide 10 minutes for each presentation. With your agreement, and seeing that we only have one hour, I suggest you keep your opening remarks to about seven minutes each so we'll be through them in about 20 minutes. Then we will go to questions from members.

We'll start with Chief Labelle for seven minutes.

[Chief Bruce Labelle, Chief, Chiniki First Nation]

[Witness speaks in his native language]

Thank you, Mr. Chairman, for inviting us to appear before your committee today. We apologize that we were not able to appear before you last week. The timing was just too tight.

We do acknowledge that the Stoney Nakoda Nations have been directly involved in the consultations that Indian Oil and Gas Canada has been carrying out over the past two years with the Indian Resource Council. Mr. Snow, who is with us here today, has been our representative, and Chief Poucette, my fellow chief, is on the board of the IRC.

Those discussions, however, dealt only with the general principles behind the bill, not the details. We did not see the actual text of Bill C-5 until it was tabled in the House of Commons in February. We then immediately instructed our legal counsel to review Bill C-5 and to advise us in regard to it.

Our legal counsel then wrote to the committee on February 19, 2009. We would ask that this letter, our response to the minister—a clause-by-clause overview of the bill—be accepted as the submission of the Stoney Nakoda Nations.

We suggest that the committee request from the minister the correspondence and materials from the Indian Resource Council, and its joint technical committee, with respect to the issues that were identified and the specific amendments that were requested by the IRC at that time. Once this is reviewed, it will be clear that the issues we are raising are unresolved issues from the IRC process, not new issues, as has been suggested.

We are not proposing amendments designed to derail or to force a restarting of the process. We believe our proposed amendments to Bill C-5 are the conclusion of the consultation process started by the IOGC and the Indian Resource Council, not the beginning of a new process.

We were also disappointed to see that in the backgrounder and the speaking notes that accompanied Bill C-5, there was no mention whatsoever of the many lawsuits that have been brought by the major oil- and gas-producing first nations. We also have difficulty, from time to time, in obtaining information from Indian Oil and Gas Canada. But they should have advised you of the eight, at least, such lawsuits brought against the Government of Canada . The Supreme Court of Canada, two weeks ago, ruled in regard to only one small part of two of these lawsuits. The oil and gas royalty issues are still being litigated by the Stoney Nations and other first nations.

The amendments we are proposing would have the effect of facilitating resolutions of these issues, one way or another. And our proposed amendments would also conceivably save the Canadian taxpayer from having to pay out more money for royalty moneys that the IOGC has failed to collect .

Thank you for your time. Chief Poucette would now like to say a few words.

Ish nish. Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Chief Labelle.

Chief Poucette.

[Chief Clifford Poucette, Chief, Wesley First Nation]

[Witness speaks in his native language]

Thank you and good day, Mr. Chair.

I would echo the words of Chief Labelle in expressing our thanks for your inviting us here today.

I wish to say a few words about Canada's trust and fiduciary obligations to our first nations.

We do not object, in principle, to federal laws incorporating some of Alberta's oil and gas laws. However, Alberta's laws were not designed to address first nations issues, nor does the Government of Alberta feel it is its responsibility to assume Canada's trust and fiduciary obligations towards the Stoney Nakoda Nation.

To attempt to simply adopt Alberta's law with nothing further would therefore result in the abdication of Canada's obligations to us. We have therefore proposed an amendment that would insure that these obligations of Her Majesty continue.

I would like to read our proposed amendment:

4.2(8) In respect of an act or omission occurring in the exercise of a power or the performance of a duty by a provincial official or body under laws of a province that are incorporated by the regulations, the Minister's fiduciary and trust obligations to First Nations will continue as though the Minister has exercised a like power or performed a like duty.

I would ask you to give serious consideration to this proposed amendment.

Thank you for taking the time to hear me today.

Chief Bearspaw, the only one of us who does not have a French-Canadian last name, wishes to say a few words.

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Chief Poucette.

Now, Chief Bearspaw.

[Chief David Bearspaw, Chief, Bearspaw First Nation]

Thank you, Chairman.

Good morning, ladies and gentlemen. It's an honour to be speaking in front of you today.

I'm going to start by saying a few words in my own language.

[Witness speaks in his native language]

I would like to address the impact of Bill C-5 in terms of economic development and employment for the members of my first nation.

We met with Minister Strahl last July, in Calgary. He told us at that time that his priority is economic development and education. That is the same priority my great-great-great-grandfather had when he signed Treaty No. 7 in 1877. However, Bill C-5 does not appear to do much to support the minister's priority.

Specifically, Bill C-5 contains a definition for “exploitation” of oil and gas. This definition reflects a crown policy that the downstream operations, such as refining and processing, are to be excluded from the Indian Oil and Gas Act. It is from these downstream operations where most of the value-added benefits to my people will come, yet these downstream possibilities have been excluded from Bill C-5.

Why is that? We would ask that you consider an amendment to the definition of “exploitation” of oil and gas. We have provided draft wording in this regard, on page 2 of our clause-by-clause review, which was previously distributed to you.

Again, we wish to thank you in our language, “ish nish”. And we would like to invite each of you to the Stoney Nakoda Resort, where you can provide an economic stimulus to our people by gambling away your hard-earned money.

[Voices]

Oh, oh!

[Chief David Bearspaw]

Ish nish.

[The Chair, Conservative, Bruce Stanton]

Thank you, Chief Bearspaw.

I have a soft spot in my heart for resorts, because that's been the foundation of our family business for several generations. It's kind of you to offer that.

Now we'll go to questions by members. Let's start with Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good morning to each of the chiefs and to Mr. Snow, who I had the pleasure of meeting with a few days ago.

In terms of the invitation, I would say that particular invitation provides as much stimulus as many of the things that have been announced in the budget. We may have to take you up on that as we go forward.

[An hon. member]

Why don't you read it?

[Todd Russell, Liberal, Labrador, NL]

My colleagues across the way always are a bit touchy when we mention anything of a critical nature.

To get back to the bill itself, it seems, in speaking with Mr. Snow and some of your representatives, and listening to you this morning, that there are particular aspects of the bill you are disappointed with. But I get the sense that you are dissatisfied with the performance of Indian Oil and Gas Canada or with the performance of the federal government generally in living up to its current responsibilities, and that you are looking for greater assurances that in fact IOGC or the federal government will exercise its responsibility, fiduciary duty, in a much more respectful manner going forward.

Is that a fair statement generally? Is that what I'm hearing you say?

[Chief Clifford Poucette]

Yes, I guess that's where we're going. You're correct.

[Todd Russell, Liberal, Labrador, NL]

As I understand as well, you're not playing with the fundamental issue, though, of the trustee relationship with the federal government. You want to maintain that sort of trustee relationship where the federal government, or IOGC as an agency of the federal government, still has that fundamental responsibility. You're not toying with that fundamental relationship. Is that right?

[Chief Clifford Poucette]

I will confer with my legal counsel on that question.

Yes, we do like the trust and fiduciary responsibilities.

[Todd Russell, Liberal, Labrador, NL]

While you want to maintain that fundamental relationship, you do want to exercise a certain power. The power, for instance, is to cancel a lease if royalties aren't paid. You want that power because you feel the government won't exercise it. Is that right?

[Chief Clifford Poucette]

Yes.

[Todd Russell, Liberal, Labrador, NL]

I'm in a bit of a conundrum. You want the trustee relationship, but you also don't necessarily believe it's all working well. In some regards you want to opt out of it in the sense...to make that very fundamental decision around who has the power to cancel a lease.

From a technical perspective—maybe your lawyers will come to the table—if in fact we made that amendment, and I'm not sure if it would be in order or not, who would then be liable? Let's say a lease was cancelled by the first nation if the power was granted by the amendment under this act, and the company had a problem with that. Who would they then sue? Who would assume the liabilities, or where would the liabilities fall if that took place?

I'm just trying to get at the root of where we're at.

[Chief Clifford Poucette]

I'll refer that to my advisor, Mr. Snow.

[John Snow, Member, Wesley First Nation]

Thank you, Chairman.

First of all, I would like to thank the committee for providing time for the Stoney Nakoda Nations to make the presentation and make issues known.

This month is a very significant month in first nation history. This was the month, 40 years ago, that we first delivered the red paper in Ottawa, and I think it's quite poignant that we're still here 40 years later debating and dealing with a lot of these issues.

I make observation that we are concerned with our rights and we are concerned with the impact on our interests of these changes, and therefore it's critical that we understand each of these scenarios as they come forward. As you have indicated, Mr. Russell, we have a number of issues that are outstanding, and this is one of the reasons we need to look at this so carefully. There are trust and fiduciary issues that are ongoing. I don't think we have a problem with a fundamental trust and fiduciary relationship. We'd like to see that strengthened, if anything else.

The conundrum we find ourselves in is how do you as an institution—I'm throwing the question out there—regulate yet provide a trust or fiduciary responsibility? Those are two different things, and we've always had that discussion with the crown. You're either one or the other, and to do both is difficult at the best of times.

So I think we find ourselves in a variety of these conundrums, as you would say, and therefore we need to have careful consideration. I also would like to ask the legal counsel for some comment on that, because I think it would be appropriate at this time.

Doug Rae, I'd like to ask you to comment on that as well.

[The Chair, Conservative, Bruce Stanton]

Members, it's perfectly fine to have counsel answer on a technical question of that sort.

Mr. Rae.

[Douglas Rae, Lawyer, Chiniki First Nation, Stoney Nakoda First Nations]

Thank you, Mr. Chairman.

To answer your question, sir, you first must appreciate that oil and gas on the Stoney reserves and the oil and gas leases on the Stoney reserves are assets, not liabilities. So it's highly unlikely that an operator would allow a lease to go into default. But if that were to happen, simply the Government of Canada--as owner of the reserves, as owner of the resources, as owner of the oil and gas--would have the entire interest in the oil and gas, not simply the royalty interest. So to put a lease in default would result in a great benefit to the Stoney Nations, if that were to happen.

Does that answer your question, sir?

[Todd Russell, Liberal, Labrador, NL]

Not really, but....

[The Chair, Conservative, Bruce Stanton]

Unfortunately, Mr. Russell, we are out of time. Perhaps you want to follow up on that in the next round.

Now we'll go to Mr. Lemay, for seven minutes.

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

Thank you, Mr. Chairman. I'm going to let you pick up your headphones because I believe we're going to address the legal issue.

Thank you, chief. I am very much interested in the defence of your lands. First of all, I would like to know exactly where they are located.

That's a good question, isn't it?