Indigenous and Northern Affairs Committee on Dec. 12th, 2012

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Chair.

Thank you to our witness for coming today.

The Surface Rights Board deals with a host of.... Well, as you accurately indicated, it hasn't really dealt with a tremendous volume of files. I think somewhere in the neighbourhood of 10 have made applications, and then one actually went to the board.

The board would review other land access issues, such as land ownership, for various enterprises such as outfitters or wilderness tourism operators and so on as well. Is that correct?

[Laurie A. Henderson]

There may be opportunities, depending on the facts, for individuals other than first nations to go to the board. I'm not aware of any applications that have been made in that regard, though.

[Ryan Leef, Conservative, Yukon, YT]

Do you have any additional information in terms of what has kept the Surface Rights Board applications low in the territory?

When I think about my experience with the outfitting industry, as an example, the Umbrella Final Agreement outlines pretty clearly the conditions that require initial consultation with the affected parties first.

Does that system seem to be what helps keep the applications from going to the Surface Rights Board? Are there specific obligations spelled out in the Umbrella Final Agreement that direct that consultation between parties that have dispute?

[Laurie A. Henderson]

My comments on this would be purely anecdotal, because there is not—to my knowledge, anyway—any study or investigation on this.

You are correct that in many instances, particularly under the final agreements, there is a requirement for something to happen before it goes to the Surface Rights Board. It is the same as under the quartz and placer acts. Someone will make a decision. The parties are encouraged to work together. If that cannot be resolved by the parties, then an application can be made to the board.

[Ryan Leef, Conservative, Yukon, YT]

Then, presumably on the strength of that application, could they say there hasn't been enough consultation or there hasn't been sufficient exploration of the facts, and the board could either turn those back or bring it right up to a hearing?

[Laurie A. Henderson]

While the board has the authority to call a hearing, my understanding of their processes is that they encourage mediation between the parties beforehand. That is not in the statute in all instances, but I think that is the practice of the board, yes.

[Ryan Leef, Conservative, Yukon, YT]

So really the changes in this legislation to the Surface Rights Board, or a fair bit of them, are just about red tape reduction and some common sense amendments. You noted that the Yukon government didn't have a lot of substantive comments in respect to the changes that are being made.

Nonetheless, maybe I could get you to comment on the unique challenges, I think particularly in northern rural and remote Canada, around trying to find appointees to these sorts of boards, whether that's due to capacity issues or conflicts of interest, and where the changes to the section reducing liability for decisions made in good faith might help facilitate recruitment to the board.

What's your perspective on that?

[Laurie A. Henderson]

I think it's a useful addition to the statute. In the case of the Surface Rights Board, I don't think they have faced this before, but I think any individual who is contemplating being appointed to this board would be advised to think of this and find protection in this clause, or find some comfort in this clause, anyway.

[Ryan Leef, Conservative, Yukon, YT]

Would that partly be because if something did come up to the board in the Yukon, there's potential that land access issues could result in decisions involving either long-standing historical rights or significant economic benefit that could generate some serious monetary impacts?

[Laurie A. Henderson]

I suppose it's possible, but absent a fact scenario for where this has happened, it's difficult to comment on it. Certainly in the present situation, all board members would be wise to think about this type of protection being provided when they are acting in good faith.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

You did touch on members' terms expiring and how this change would now allow hearings to continue with the members who started the hearing, essentially, so we wouldn't need to restart them at additional cost.

Again, I appreciate the fact that there just haven't been a lot of these done.

Do you have a general comment or an estimation of what these sorts of things cost and what it would cost taxpayers if a hearing had to be restarted? I know there is complexity to the hearing and that it all depends on situational variables, but maybe there are some ranges. Do you have some comments specifically on that aspect of the change?

[Laurie A. Henderson]

I think it's reasonable to conclude that on a complex hearing, which some of these certainly could be—complex from a factual standpoint—it could costs upwards of thousands of dollars if you had to start over.

As well, there is the time of both parties to the dispute, one of whom obviously has a financial interest, for example, in terms of the mining activity they wish to undertake, which would be even harder to estimate. With the time it takes just to get the hearing together, I wouldn't have any doubt that to reschedule a hearing would very quickly climb upwards of tens of thousands of dollars for a complex hearing.

[Ryan Leef, Conservative, Yukon, YT]

Do the board set their own schedule? Would they set their own timelines, then, or are the timelines for results and conclusions set out in legislation for them?

[Laurie A. Henderson]

I believe the board has rules that speak generally to timelines and how they proceed from having an application in front of them through to going to mediation or to a hearing, if one is held.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

[The Chair, Conservative, Chris Warkentin]

We'll now turn to Ms. Bennett for seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you very much.

Just to follow up on my colleague's question, this is a new thing for me that somebody, after their appointment was terminated, would continue to be able to render a final decision on hearings they've been part of.

Was that a recommendation from you? Had there been examples of board members leaving matters unresolved and others having to pick up their responsibilities even though they hadn't been at the hearings?

As well, has there been a high turnover on the board? Is there any reason for that? I'm just not sure where this came from, and I've not seen it before.

[Laurie A. Henderson]

With respect to the activities of the Surface Rights Board, I think you would have to direct that question to them.

I don't believe there has been a high turnover. I think this issue of board terms coming to expiry for one reason or another or ending for one reason or another has been an issue confronted in Yukon on a wide variety of boards that are appointed, and it has resulted in costs. I think this has been put forward as a useful provision, because absent this provision, if the member's term does expire, I would think that procedural fairness would suggest that you would have to restart the hearing in those cases.

While I do not believe this has been a crucial concern for the Surface Rights Board in terms of its practice, it has been an issue with a number of other boards and committees, and I think it is a reasonable thing to provide for the Surface Rights Board should this situation arise in the future.

[Carolyn Bennett, Liberal, St. Paul's, ON]

This was part of the consultation. Obviously there were extensive consultations, as we heard, in Nunavut. I assume there was some consultation in Yukon.

You're saying the Surface Rights Board has been operating since the mid-nineties. Is this just a good idea, or is it something that's come out of the experience of the board that this would be a good thing to put into legislation? Was this your idea or the government's idea?

[Laurie A. Henderson]

I do not believe it was the Yukon government's idea. I think it was an initiative that was advanced by the federal government, in part, I anticipate, motivated by the work they were doing in Nunavut and the NWT, bearing in mind that many of the boards and committees that are still active in the NWT are active now in Yukon, but pursuant to Yukon legislation as opposed to federal legislation.

I think the board has asked for these types of amendments in the past. I do not believe that the Yukon government was the initiator of them, but it's certainly supportive of these changes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Exempting board members from any liability, though, if it's determined they acted in good faith, is not something I've seen often before. Have there been civil suits against some of the members of the Surface Rights Board? What would be the legal test for knowing that somebody had been acting in good faith?

[Laurie A. Henderson]

To my knowledge, there have been no actions initiated against the Surface Rights Board members in the Yukon. It would be a fact-based test based on behaviour and on whether they could demonstrate bias and on how the board members individually or collectively were operating in good faith in terms of the nature of the decisions they made according to the rules of procedural fairness and natural justice.

[Carolyn Bennett, Liberal, St. Paul's, ON]

In talking with people about this bill, I have heard some concerns about the proposed changes to the Oil and Gas Act in the territory that would repeal the need for Yukon first nations to consent to new oil and gas dispositions in their traditional territory, which was actually part of the devolution agreement in 1997. People are concerned that we're doing this at the same time they have concerns about the territorial legislation going in, which actually says there doesn't have to be free, prior, and informed consent on traditional lands.

Can you explain that, or can you get back to me as to what I should be saying when somebody raises this kind of a concern about first nations traditional lands?

[Laurie A. Henderson]

The issue of the Yukon Surface Rights Board amendments in Bill C-47 is totally unrelated to what the Yukon government has advanced in its bill with respect to amendments to the Oil and Gas Act. The Yukon government has indicated that it has undertaken and will, in all respects, continue to undertake and implement all those consultation requirements with first nations as required by law.

[Carolyn Bennett, Liberal, St. Paul's, ON]

But that doesn't mean consent?