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

[Laurie A. Henderson]

I think that's an issue the government is considering. The status of the MOA is one that first nations have taken a position on, but it certainly is not related to these amendments at all.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Bennett.

We'll now turn to Mr. Leef again.

[Ryan Leef, Conservative, Yukon, YT]

It goes by fast, doesn't it?

[The Chair, Conservative, Chris Warkentin]

It sure does.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair.

Maybe for the benefit of the committee you could differentiate between category A lands and category B lands as found under the Umbrella Final Agreement, and tell us what those terms mean in Yukon and what they mean in terms of access rights on the surface and subsurface. I know we're not talking about subsurface stuff here, but there is certainly a distinction under the Umbrella Final Agreement and the self-government agreements of each of the individual first nations in Yukon, so it might be helpful for us if you could break down the differences between the two and tell us what they actually mean under the UFA.

[Laurie A. Henderson]

Sure, I'd be happy to do that for you.

Across the Yukon there are a number of traditional territories identified that relate to each of the first nations, and some of these traditional territories overlap. For those first nations that have entered into land claim agreements with Canada and Yukon, identified in each of their final agreements is land that continues to be crown land, land that was identified as what's called category A settlement land. On that land, the first nation has the equivalent to fee simple title in the surface and the equivalent to fee simple title in the mines and minerals as well as the right to work the mines and minerals.

They also have parcels of land that are considered to be category B settlement land, and on that land they have equivalent to fee simple title for the surface of the land, but the interest in the mines and minerals and the right to work the mines and minerals continue to be held by government.

The third category is fee simple settlement land. The distinction there is that title has already been raised to those parcels of land, whereas a title may not have been raised to the category A and category B lands. On fee simple settlement land, again the surface is held by the first nation. The subsurface—the mines and minerals, and the right to work the mines and minerals—continues to be held by the government.

[Ryan Leef, Conservative, Yukon, YT]

Is it accurate to say there are also specific land site selections outside of, say, the government's category A and B selections within the traditional territory, and there are also specific selections by groups or individuals of that respective first nation?

[Laurie A. Henderson]

Each first nation has a number of site-specific selections. Some of those may be category A parcels or category B parcels. It also has some site-specific parcels, which are generally very small. They may relate to a trapper's cabin or a homestead cabin that has been used, but there's that additional identification.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

When we're talking about the surface rights, in particular a small site selection like a cabin, that would obviously be taken into consideration by the government when development projects or proposals are being looked at for permitting authority.

What other considerations and what other bodies of legislation would be involved in decision-making to allow subsurface access where there is a potential surface conflict, or what sorts of things would a group or individuals be allowed to present to be considered when they have surface rights to something, but not subsurface rights, and somebody wants those subsurface rights?

[Laurie A. Henderson]

Are you speaking specifically to land held by the first nation, or more generally?

[Ryan Leef, Conservative, Yukon, YT]

Well, let's talk about the first nation. I think there's some sense it would apply generally, but they certainly have specific rights and determinations under the Umbrella Final Agreement under which the Yukon Surface Rights Board has been developed, so let's just talk about that.

[Laurie A. Henderson]

Under chapter 18 of the Yukon First Nation Final Agreements, there are a number of provisions that speak in particular to mining rights. They vary, depending upon whether or not the mining right was obtained prior to entry into the final agreement, meaning before the land became either category A or category B settlement land. Access provisions are set out in that chapter that pertain to claims that were located prior to the settlement of the claim.

There are also access provisions that apply to new mineral rights, which would be ones that would be located after the land became settlement land, which means in this case that we're speaking only of category B land or fee simple settlement land. Those access provisions generally follow the pattern of, again, low-level activities that can occur either in accordance with the law of general application or with the consent of a first nation if it's a new mineral claim. If you exceed those levels, then consent is required, and if you can't obtain consent, that is when you would go to the Surface Rights Board.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

I think you outlined nicely the complexity of some of the decisions that would need to be made if there were a surface disagreement and it had to get to the point of the board.

Comparatively speaking, if you feel qualified to comment, with the Umbrella Final Agreement, self-government agreements, category A and category B lands, site-specific land selections, 11 different self-governing first nations, and a couple of non-self-governing first nations, how do you view Yukon's model of dealing with surface rights access and dispute resolution in terms of efficiency and fairness and being able to deliver this effectively? How does it compare with other jurisdictions in the country?

[Laurie A. Henderson]

I'd be somewhat hard pressed, I think, to compare it to other jurisdictions in the country. That said, I think that within Yukon it's a model that provides for many opportunities for resolution of disputes.

There is a provision in the final agreement that sets things out. The processes are all in place. There's considerable work, I think, undertaken by both first nations and the Yukon government. It is the Yukon government that's dealing with the mines and minerals and the oil and gas, but there is a lot of opportunity, particularly in the mines and minerals area, for ongoing discussions and arrangements being negotiated between the first nations governments and the Yukon government. We do have the opportunity in the final agreement, in addition to the provisions that are there, to negotiate terms and conditions of access between the Yukon government and individual first nations. That work has started with respect to at least one first nation.

I think many opportunities have been put in place, and the process as a whole, the regime as a whole, is one that should lead to positive solutions on some of these questions. At the end of the day, if people feel they need to go to the Surface Rights Board, there is an impartial body there that is able to assist in resolution of those disputes.

[The Chair, Conservative, Chris Warkentin]

Go ahead, Ms. Crowder, for five minutes.

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

Thanks, Mr. Chair.

Relating to issues around consent, I think you're probably aware that the Council of Yukon First Nations and the Kaska Dena have both issued public statements with regard to the Yukon government's proposed changes to section 13 of the Oil and Gas Act. My understanding is that there were some concerns about the consent provision over new oil and gas rights dispositions for the Kaska in their traditional territories.

How do you think the Yukon government's proposed legislation will interact with the Yukon Surface Rights Board?

[The Chair, Conservative, Chris Warkentin]

Ms. Henderson, I don't know if you can hear me, but it seems as though there's been a disconnection of our video. Not hearing from you, I'm assuming that your audio has been cut as well.

Colleagues, we'll suspend for just a moment.

[The Chair, Conservative, Chris Warkentin]

The meeting is resuming. We'll call the meeting back to order.

Go ahead, Ms. Crowder, for five minutes.

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

Thanks, Mr. Chair.

Ms. Henderson, my question was with regard to public statements by the Council of Yukon First Nations and the Kaska Dena's with respect to the Yukon government's proposed changes to section 13 of the Oil and Gas Act, specifically with regard to the consent provisions. My question had to do with whether or not those proposed changes will have an impact on the Yukon Surface Rights Board.

My understanding is that part of what the Yukon Surface Rights Board will hear would be cases in which first nations feel there is no consent. If there isn't that consultation provision, do you anticipate that the Yukon Surface Rights Board may see more activity, or, with that change in the legislation, will they actually be able to hear those cases?

[Laurie A. Henderson]

I think the answer to that question is no.

The consent provisions in the Oil and Gas Act that are under discussion right now in the Yukon Legislative Assembly are related to consent of a first nation before an oil and gas disposition is made in their traditional territories, which involves the Kaska, the unsettled first nation.

The Yukon Surface Rights Board Act is specific to disputes between surface rights holders and people who may have a subsurface interest that they want to deal with. Examples might be a mineral claim in which a third party owns the surface on category B land where we have settled first nations or category A land or those types of situations. The issues the Kaska are raising about consent would not affect the operation of the Yukon Surface Rights Board Act.

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

Is there another mechanism if they're not satisfied that they've been appropriately consulted? If the Surface Rights Board is not a place where they can take their complaint, is there another mechanism for them to deal with it? That's unsettled land, correct?

[Laurie A. Henderson]

It is unsettled land, so the options available to the Kaska if they feel that they have not been consulted in accordance with the law would be to seek redress in the courts. It's the same situation right now. There is nothing in the Yukon Surface Rights Board Act that has any bearing on the concerns that the Kaska have about the repeal of section 13.

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

For unsettled lands, their option—aside from the Kaska—is the courts.

[Laurie A. Henderson]

It's that, and the discussions they have with the government, but if they are of the view that the duty to consult that the government may have in an oil and gas disposition has not been met, this is the way for them to raise that concern.

That is the way it's been raised across the country in terms of concerns about a government not fulfilling its duty to consult. That's quite different from the issues under the Yukon Surface Rights Board Act.

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

I have a quick question about the appointment of board members.

For other territories, sometimes the appointment of board members hasn't been all that swift. Has that been a problem in the Yukon? Have there been gaps in appointments?

I'm not talking about the continuing cases, because you're right that it makes sense that if a tribunal member has started to hear a case, they should continue to hear the case. That's the case in other boards as well.

Have there been gaps in appointments?