Indigenous and Northern Affairs Committee on March 5th, 2009

[Geoff Regan, Liberal, Halifax West, NS]

Sorry. If you look on page 11 of this bill, just below the half point of the page, you will see--

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

Clause 2, proposed subsection 6(1.1).

[Geoff Regan, Liberal, Halifax West, NS]

That's right, (1.1), there.

The question I'm asking about is about the “may”, that the Governor in Council “may”, by regulation. There's also the proposal about the “or” now being changed to an “and”, but my first question is about the “may”.

As it stands, saying “shall” says the minister has to make regulations, and I guess in relation to each one of these developments the minister, before exercising power under this bill, would have to either have prior approval of the council, or consult with the council, or at the very least give prior notice to the council. What's being posed also of course is we change the “or” to an “and”, which would instead mean that he has to do all three. Once you say “and” there, it changes the meaning entirely. But sticking with the “or” for the moment, my question was wouldn't the minister, at any rate, have to do one of those things?

[The Chair, Conservative, Bruce Stanton]

Mr. Dempsey.

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

I'll answer that one.

There are many decision points right now in the Indian Oil and Gas regulations at which there is first nation consultation; there is first nation notice that goes out. But there are also a handful of areas where the government itself makes an arbitrary decision, one example being in the area of pooling.

What we've heard from first nations is that they have concerns about getting too involved in the technical decision-making side of it because of a perceived shift in the fiduciary obligations of Canada to a first nation, if it is involved in those decision points. This is something we have raised with first nations through our consultation process over the years. There have been a few suggestions for changes from first nations to involve them more, but as they have come to understand the implications of that higher-level involvement, in all cases they have pulled back their requests to Indian Oil and Gas Canada to become more involved.

[Geoff Regan, Liberal, Halifax West, NS]

I will ask one more question, if I may.

[The Chair, Conservative, Bruce Stanton]

Please, go ahead.

[Geoff Regan, Liberal, Halifax West, NS]

What confuses me is that they wouldn't want at least prior notice.

[John Dempsey]

That was an area that was talked about. Certainly first nations are involved at a very high level in the oil and gas operations right now on their lands, but we've had no requests from first nations for such an addition, not even in the area of prior notice.

[The Chair, Conservative, Bruce Stanton]

We'll go to Madam Crowder.

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

Thanks, Mr. Chair.

We didn't have it specifically proposed this morning, but on Tuesday we heard that we had had a request from a nation to talk about being able to cancel the leases.

I wonder whether you could comment on that. I don't have specific wording on it, but it's that the first nations themselves would be able to cancel leases.

[John Dempsey]

That was talked about on Tuesday as well by Mr. Crowfoot. The lease cancellation process is something that is used as a last resort for the government. We have a lot of mechanisms in place through which we deal with companies or deal with first nations to try to resolve an issue.

Ultimately, we do use that power. I think it was said on Tuesday as well that Indian Oil and Gas Canada won't cancel a lease, but we actually have cancelled leases over the years. It is something we don't use very often, because it's an approach that takes away the complete royalty from that first nation—it stops the leasing process. It stops everything in its tracks and removes the royalties from a first nation, at that point.

Often, in our discussions with first nations, that's not what they want. They're looking for a resolution to the issue, not a cancellation of the royalty stream.

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

When there is that kind of dispute, can you tell me what the dispute resolution process looks like?

[John Dempsey]

We don't have a formal dispute resolution process in place. That's part of the concern we have and part of the modernization of the regime. In addition to legislative and regulatory change, we're looking at a series of policy changes, such as an alternative dispute resolution process that would be brought in to address those types of issues.

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

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Crowder.

Mr. Lemay.

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

Mr. Jacques, feel free to correct my notions about administrative law which are anchored a little in the past. I have hardly ever seen a provision requiring the Governor in Council to do something. Generally he is invited to do something. This is why I was surprised by the position of the Assembly of First Nations because generally, we say: “The Governor in Council may, by regulation […]” He is not required to do it, but if he does it must be in the manner described in the Act. Am I correct in this interpretation of administrative law, so far?

[A voice]

Yes, good enough.

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

Let me look at the clause-by-clause analysis of the bill made by the department. Let me refer to the same section as my colleagues. For those who have the document, it is on page 25 of the French version. I am not sure on what page you will find it in the English version. It is about the interpretation of the proposed subsection 6 (1.1). It reads as follows:

The regulations will clearly spell out the Minister's obligations with respect to consulting with First Nations. The regulations will specify when consultation will occur in the form and manner of the consultation. This will provide clarity and certainty in respect of the consultative process. The regulations will clearly state when approval of the First Nation is required, when notice must be given and when the consent of the band member in lawful possession is required.

It continues:

[...] the regulations may provide for First Nations approval prior to the issuance of every oil or gas lease and every exploratory licence.

This seems rather general to me. Am I correct in thinking that it is in this spirit that the government will or almost commit itself to consult First Nations before making a regulation under this legislation?

[Karl Jacques]

Mr. Chairman, my understanding of that clause is that only the Governor in Council has the authority to make use of these regulations.

The content of the regulation is already provided for in paragraphs (a), (b) and (c). Thus, what the Governor in Council will decide under the regulation is in what circumstances prior approval and notification will be required. So, if the Governor in Council is compelled to use its regulatory power it loses its discretionary authority to determine in what circumstances it should use it. Furthermore, as was said in committee last Tuesday, consultations will be held with First Nations for the development of regulations. Thus, they won't do so blindly.

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

Correct me if I am wrong, but this section 1(1) is the same as in Bill C-63 which died on the Order Paper.

[Karl Jacques]

The bill has not changed.

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

Thus this section is the same.

[Karl Jacques]

It is the same.

[The Chair, Conservative, Bruce Stanton]

Thank you, Monsieur Lemay.

Now, Mr. Bagnell.