Indigenous and Northern Affairs Committee on March 3rd, 2009

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

I can answer that. It has been the case, for instance, in the First Nations Commercial and Industrial Development Act, where actually for economic development on first nations reserves, Parliament has granted power in regulations in order to adopt provincial legislation. That would be an instance where in fact it has been the case.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I'm not aware of that. So by inference I would say it's not a fairly common occurrence.

[Karl Jacques]

It's not that common, but it is happening more and more in areas where actually the idea is to provide harmonization between federal and provincial--

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I understand the advantages of harmonization, but I also understand that when Parliament cedes its authority to legislate the regulatory route, that may cause some imbalance in the way our governments and our society function. That's why I'm a little concerned about establishing, by regulation, legal authority.

My question is the following. Proposed subsection 4.2(3) of the bill says:

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,

I want to focus on “a public body established by the laws of a province” here. If we've established that provincial laws are incorporated into this bill by regulation, which Parliament will not necessarily approve or see, does it mean therefore that the public body established by laws of the province, into which you may enter into an agreement, will be totally outside the accountability loop?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

The first level of accountability, of course, is that regulatory development is done hand in hand with the Indian Resource Council.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Not with Parliament.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I guess it depends on your point of view. Parliament has oversight of the bill and it can call me on the carpet at any time. Eventually I think we have to say that first nations have an active role to play in this and we want to reflect that. That's why we've given that letter of comfort to the Indian Resource Council to let them know that's not going to be an arbitrary thing. The effort, if I can just finish the thought, is to try to replicate as much as possible the provincial regulations, because that is the best opportunity for first nations to maximize their returns so they don't get a regime where people give an Indian discount for saying, “I can do something that's half-baked.”

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Minister, I don't question in the least the desirability of cooperation and consultation with the aboriginal authorities, absolutely not.

By the way, could we have a copy of that comfort letter?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I think so, yes.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you.

Please keep in mind the question I just asked, and I'll refer you to the following section in the bill. Proposed subsection 4.2(4) does not at all address the matter of agreements that you might have entered into with public bodies established by the laws of a province. Is there essentially a hole here, whereby the government would have entered into agreements with public bodies established by provincial law that have been incorporated into our law by virtue of regulations, yet don't have to be accountable because they're not mentioned in proposed subsections 4.2(4) or (5)? That's the question.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

One moment, please. You're getting very specific, so we're going to have to get into the actual nitty-gritty of the bill now.

[The Chair, Conservative, Bruce Stanton]

We'll have a brief response if we can, Minister. We don't want to push the envelope here, but we're just about out of time. In fact, we are out of time.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Maybe we'll give just a general comment. Then for the very specific answers, I'll get you the answers for that.

[Strater Crowfoot]

Looking at the oil and gas regime that we have, if we had something that existed federally, we'd use it, but our act and regulations right now are so small compared to what the provinces have, so for us, we're looking at.... Where we need to fill a void, we will do so by looking at certain aspects of the provincial regime. That will make it consistent with reserve land and off-reserve land. The federal authority will still be retained by the federal government, but we'll just take certain aspects of the provincial legislation that we need and have that apply on reserve lands.

[The Chair, Conservative, Bruce Stanton]

Thank you.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

That's the point, Mr. Chairman. It's that basically we're asking Parliament to cede all authority, in a way. Anyhow, I understand we're out of time.

[The Chair, Conservative, Bruce Stanton]

I appreciate that, Monsieur Bélanger.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I'm sorry. I didn't twig to this earlier, but the regulatory process will still be gazetted, as is normal. The scrutiny of regulations committee can still go through the regulations. There's nothing to stop any of that from happening. Although we work closely with the Indian Resource Council and the affected first nations to develop the regulations, the regulatory process still continues.

The development of it is meant to be sensitive to those first nations, but it will still go through the gazetting process. The scrutiny of regulations committee could look at the regulations and ask questions about them. Nothing bypasses that. It's just that in the development of it, it's sensitive, I think in a special way, to first nations.

[The Chair, Conservative, Bruce Stanton]

Thank you, Minister.

We must move on now to Mr. Duncan for five minutes.

[John Duncan, Conservative, Vancouver Island North, BC]

Good morning. Thank you for being here and giving us such a complete explanation of things.

The energy business centres of excellence that have been set up in Alberta and Saskatchewan have a mission to provide oil and gas expertise as well as to identify and coordinate training and capacity development programs for first nations oil and gas managers. Is it anticipated that because of, I believe, their response to this commitment to a continuous change process, they will also be monitoring and recommending changes to the regulatory process as part of their mission?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

No. Unless my officials gave me something else that I haven't picked up on, the centres of excellence won't be making those sorts of recommendations. The purpose of the centres of excellence is more for just strictly the business options and potential they can give to oil and gas producing first nations as far as saying here's something to consider, or here's my legal advice, or here are the best practices that we've experienced, and so on. They're not the ones that will be doing that second part.

Mr. Crowfoot, you're jotting furiously, but I just want to make quite sure I got that right.

[Strater Crowfoot]

Yes, Minister.

Mr. Chairman, the development of the regulations for oil and gas will be conducted by committees that we've set up with the Indian Resource Council and with certain oil and gas expertise from each first nation that we feel has a lot of oil and gas production. Right now, we have two committees in place that are looking at the regulatory process and at helping develop the regulations.

[John Duncan, Conservative, Vancouver Island North, BC]

Thank you.

My next question is whether it is anticipated that there will be any first nations with producing conventional oil and gas wells that will choose to be outside of the Indian Oil and Gas Act and/or the First Nations Oil and Gas and Moneys Management Act.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I don't anticipate that. I think it's in their best interest to be part of it. They get the benefits of all of the things we talked about, a strong regime to manage everything from environmental protection to cultural, spiritual, and other things that may be important to them.

It also makes sure that they don't get.... This is something I heard quite often in Saskatchewan. The federation warned that on occasion corporations come in, promise the moon, hope to get around the regulations that are out there, and try to strike a deal outside the normal regulatory protection.

I think this will protect first nations; I anticipate they will all be part of this. Even though we're incorporating the provincial regulations by reference, nothing changes our fiduciary relationship with the first nations. There is still that fiduciary protection that exists between the first nations and the federal government.

The real protection and the real opportunity is by taking part in the Indian Oil and Gas Act. The actual moneys management part of it is another option, but it's not necessary to get the full benefit of this regulatory act that we are talking about here. But that is an option for them moving forward.

[John Duncan, Conservative, Vancouver Island North, BC]

So it's technically possible but unlikely, and it's at the first nations' option.