Indigenous and Northern Affairs Committee on March 12th, 2009

[John Snow]

Thank you, Mr. Chairman, that helps me.

I think each first nation is different. Some of them are willing to deal with the province, therefore they do tripartite agreements. One example may be the social services delivery, such as child welfare, education, some of these others. If they have a tripartite agreement then they're in full approval and in favour of proceeding. But that's only if they have participation and the ability to decide for themselves.

We can't speak in a general manner, but if there's tripartite involvement, they have no problems. Where they see problems is if there are bilateral agreements, between federal and provincial, deciding on their rights, and it impacts them. That's when there are problems, and concerns arise.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Snow.

That will conclude this round.

I just have one question for clarification, if I could, for the chiefs and/or their representatives.

You had put forward a fairly thorough schedule of amendments, some 22 amendments in all. During the course of your presentation this morning, you made note of some specific amendments.

Is this a complete package and you want the committee to consider all of these, or are there some specific amendments that you give priority to? I'm not sure that was clear in the course of your discussion.

[Douglas Rae]

If I may, Mr. Chairman, in the materials that were provided to you, there was a one-page summary of four proposed amendments, I believe.

[The Chair, Conservative, Bruce Stanton]

Correct.

[Douglas Rae]

You're quite correct that in the accompanying chart, there were additional amendments.

[The Chair, Conservative, Bruce Stanton]

Correct.

[Douglas Rae]

Those two document comprise all the amendments we're proposing.

I might add that there is nothing in the chart that the Stoney Nations did not also put forward over the past year through the Indian Resource Council. So none of those amendments in the chart are new at all. Those were part of the Indian Resource Council process.

[The Chair, Conservative, Bruce Stanton]

But are you saying that the four listed on the one-page summary--amendments A, 2, 5, and 6--are your proposed priority amendments?

[Douglas Rae]

Yes.

[The Chair, Conservative, Bruce Stanton]

Thank you.

Chiefs, I appreciate your time here today. I would also note, before we take a brief suspension of our meeting and go to the next hour, that you might be interested to know, considering the overrepresentation of aboriginal people in World War II, that this was the room in which the war cabinet of the government of the day held their deliberations. So the decisions were taken in this room. I just wanted to pass that along for your benefit.

Members, we'll suspend for a few moments to get our next witnesses to the table and then we'll resume right after that.

Thank you.

[The Chair, Conservative, Bruce Stanton]

Members, we're pleased to welcome back Strater Crowfoot, the executive director of IOGC; Mr. John Dempsey, the director of policy at IOGC; and Mr. Karl Jacques, the senior counsel for the agency.

Members, at this point, we only have 45 minutes left in our time slot here this morning. I'm going to suggest that we proceed to questions, unless our witnesses have anything specific they want to address at the outset. If the committee is in agreement, we'll go to questions; and in light of the shortage of time, I'm going to suggest that we go just with five-minute questions, if we can.

We will start off with Mr. Bagnell, for five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Because time is short, I want to get down to the meat of the matter. I think the primary amendment is giving the first nation the ability to cancel leases, or the option to direct the minister to cancel leases. Considering the poor performance of the government to date in cancelling leases, which has cost the taxpayers a lot of money, it doesn't seem that the first nation could do any worse a job. In fact, it's on their land, and they're already being sued.

First of all, which of these two amendments would you prefer, if you had to have one of them? And second, would there be any problem if the committee added an amendment to that effect?

[Karl Jacques, Senior Counsel, Department of Indian Affairs and Northern Development]

I'm sorry, which two amendments are you talking about?

[Larry Bagnell, Liberal, Yukon, YT]

The amendment about giving the first nation the ability to cancel leases, or the amendment about their modification.

[Karl Jacques]

The one that directs the minister?

[Larry Bagnell, Liberal, Yukon, YT]

Yes. Which of those two would you prefer, if you had to have one or the other?

Second of all, what's wrong with the concept, considering that the government hasn't been doing a good job, and the first nation has been sued a number of times anyway, so it's not going to affect their liability? And if there's a chill on the oil and gas industry, who cares? It's the first nation that loses the money. They're not going to go around suing people indiscriminately if it's going to cost them money.

[Karl Jacques]

From the outset, I'd like to say that I'm not in a position to talk about any modifications that could be accepted. That's not my role; it's a policy decision.

The cancellation of leases, I think, has been touched upon this morning in terms of the fiduciary obligation. The problem is that we don't know what the shift of responsibility would be then. While the crown does have the responsibility of managing oil and gas, it would not have any power as to when the first nation would decide to cancel a lease. What is the crown's liability then? Because of fiduciary obligations, the crown would probably still be on the hook. So without having any kind of mechanism making the crown not liable for that, this wouldn't clarify any of the powers or any of the relationships between first nations and the crown.

Directing the minister would also be the same thing. Basically, the minister would be obligated to act when a first nation decides to. So I think the end result would probably be the same.

[Larry Bagnell, Liberal, Yukon, YT]

If you had to choose between the two, though, which would you choose?

[Karl Jacques]

Well, I can't make that choice. I think the end result would be the same.

[Larry Bagnell, Liberal, Yukon, YT]

Do you want to comment?

[John Dempsey, Director, Policy, Indian Oil and Gas Canada, Department of Indian Affairs and Northern Development]

Perhaps I could add some clarity to that.

We've been having consultations with first nations, as you heard, for about 10 years now. One of the overriding concerns we've heard from each and every first nation throughout this process has been this: don't change the fiduciary relationship; don't try to offload your responsibilities to the provinces. We keep hearing that over and over, and we've tried to craft a bill here that respects that preference of first nations.

This proposed change, in our view, would change that fiduciary obligation. It would shift it from Canada to a first nation, as they'd be making the decision to cancel a lease or to direct the minister to do so. They would still have some sort of obligation that would shift from Canada to them as a first nation.

So from our perspective, the great majority of first nations across Canada haven't asked for that. In fact, they've told us just the opposite: they don't want it.

[Larry Bagnell, Liberal, Yukon, YT]

They told you they don't want the ability to cancel a lease if they're not getting paid?

[John Dempsey]

They told us they don't want the fiduciary obligation or the responsibility that comes with any decisions made by a first nation, yes.

[Strater Crowfoot, Executive Director, Indian Oil and Gas Canada, Department of Indian Affairs and Northern Development]

If I could just add to your opening statement there, we do cancel leases. It's a process that we take very seriously. We work, as was said before, with first nations chiefs and councils, and if it's decided that we have to cancel a lease, then we will act to cancel a lease.

[Larry Bagnell, Liberal, Yukon, YT]

There are hundreds and hundreds of examples of where the Government of Canada has delegated responsibilities, programs, and services to first nations, and I don't think it's ever left the Government of Canada on the hook for liability. Those all work very well, very fine, and I can't imagine first nations not being in favour of that. Obviously, we have one...this would just be another example of that here. It certainly wouldn't reduce the federal government's fiduciary responsibility in other respects, but it would give the first nation an ability to be involved in that.