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

[The Chair, Conservative, Chris Warkentin]

Colleagues, I call this meeting to order. This is the 55th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today, colleagues, you know that we have a representative from the Government of Yukon with us. Ms. Henderson joining us from Whitehorse. She's a representative of the government and a member of the Department of Justice.

Ms. Henderson, thank you so much for joining us today. We apologize for the delayed start. We had a prolonged question period today, and it deterred some of our members from getting here on time. We appreciate your joining us. Then we will have a number of questions to ask you, and we look forward to that.

First we'll begin with your opening statement and then we'll turn to questions. Thanks again for being with us today.

[Laurie A. Henderson, Managing Counsel, Legal Services Branch, Department of Justice, Government of Yukon]

Thank you.

Thank you for providing the Yukon government the opportunity to comment on these changes.

By way of background, I will note for you that the Yukon Surface Rights Board Act has its origins in the Umbrella Final Agreement and the 11 Yukon first nation final agreements that have been signed into effect by the Government of Canada, the Yukon government, and 11 Yukon first nations.

Chapter 8 of these agreements established the framework for the Surface Rights Board legislation, and the Yukon Surface Rights Board Act came into force on February 14, 1995. Additional responsibilities of the board are established in other pieces of legislation, including two Yukon statutes: the Quartz Mining Act and the Placer Mining Act.

The amendments to the Yukon Surface Rights Board Act that are contained in Bill C-47 have been under discussion for some time. The Yukon government was first contacted about the amendments in the fall of 2011 by officials from Aboriginal Affairs and Northern Development.

In January of 2012 there was a meeting between federal officials and Yukon government representatives to discuss the proposed changes. That meeting was followed up a number of months later in August with a letter, wherein the federal government was actually seeking views on the specific changes that are now in the bill.

In September of this year, Yukon advised those federal officials that it had no substantive comments on the proposed changes. That continues to be the case today; the Yukon supports the changes and believes they will make board operations more efficient and cost-effective.

Two of the changes in Bill C-47, particularly the amendment of section 10 and the amendment of section 11, which authorize a member whose term has been terminated or expired to continue to act as a member until a decision has been made on the matter before the board, will ensure efficiency in resolving disputes. Without this provision—and we have certainly run into this situation with other boards and committees in the Yukon—if a member's term does expire or is terminated prior to rendering a decision, the hearing may have to be restarted, and that obviously would incur additional costs for both the proponents and the board officials. The Yukon government sees this change as quite positive, and it is welcomed.

The third change in Bill C-47 involves the amendment to section 23 of the Yukon Surface Rights Board Act. This one requires the auditor of the board to audit the accounts, financial statements, and financial transactions of the board each year and to report on the same to the board and the minister. In the Yukon's view, this change again will help ensure financial accountability and transparency in the board's financial management. As it does for the other amendments, the Yukon supports this change and sees it as an improvement over the past arrangement, whereby the financial statements were actually audited by the Auditor General of Canada.

In conclusion, we would like to reaffirm the Yukon government's support for these three changes. Thank you for the opportunity to appear today.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Henderson. We appreciate that opening statement.

We'll now turn to our colleague, Mr. Bevington, for the first seven minutes of questions.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Ms. Henderson. I appreciate your being here today. I'm sure that we'll get some valuable information from you about this process, which is a bill that contains acts that affect all three northern territories.

In the surface rights legislation of the Yukon, you have five members on the board. Two of them are appointed by the Yukon first nations. Is that correct?

[Laurie A. Henderson]

I believe that is correct, yes.

[Dennis Bevington, NDP, Western Arctic, NT]

What percentage of land in the Yukon is held by first nations under their comprehensive claims?

[Laurie A. Henderson]

I can provide that answer to you later. I don't have that off the top of my head. It is a relatively small proportion of the total land base.

[Dennis Bevington, NDP, Western Arctic, NT]

As a percentage, would it be less than 10%, less than 5%?

[Laurie A. Henderson]

As I said, I would be happy to give you an answer, an answer to the committee, even later today, but I don't know off the top of my head.

[Dennis Bevington, NDP, Western Arctic, NT]

Okay, very good.

You have yet to experience any claims in front of this board, is that correct?

[Laurie A. Henderson]

No, actually that is not correct.

[Dennis Bevington, NDP, Western Arctic, NT]

Okay.

[Laurie A. Henderson]

There was one hearing that the board was involved in a number of years ago, which involved a dispute between a mineral claim holder and the City of Whitehorse.

Subsequent to that hearing, although I am not familiar with the day-to-day operations of the board, I think it's fair to say its activity level is low.

[Dennis Bevington, NDP, Western Arctic, NT]

Do you have a free entry system in the Yukon for mine claims?

[Laurie A. Henderson]

Yes; for both quartz and placer mining, it is a free entry system.

[Dennis Bevington, NDP, Western Arctic, NT]

In your understanding of the surface rights legislation, if someone had a claim on a piece of land—had established a claim through the process of free entry—would this Surface Rights Board be utilized if there was a disagreement between the landowner on that claim and the people who wished to go onto the land to further explore that claim?

[Laurie A. Henderson]

There are a couple of ways in which the Surface Rights Board could become involved in those issues.

One is spoken to in the Yukon Surface Rights Board Act itself in terms of disputes involving settlement land, and that has to do with access and access conditions that could be imposed. I can give you an example under chapter 18 of the final agreements: for existing mineral claims and new mineral claims, there is a point where there is access as set out in legislation, and then there's a point where access requires consent of the first nation.

For example, if it is a new mineral claim, one that is staked after a land claim settlement has come into effect, low-level activities—activities that don't involve disruption or intrusion on the land any greater than hand labour methods—can occur. If you are going to do more than hand labour methods, you require the consent of the first nation that owns that land, the category B land in this case that I am using. If that consent cannot be attained, that's a matter that can go to the Yukon Surface Rights Board for conditions of access to be put on.

The second is under both the Quartz Mining Act and the Placer Mining Act, which again are Yukon statutes. If the mine recorder determines that security is required before a person enters onto, in this case, category B land, and the amount of security that the mine recorder determines is not acceptable to either the miner—the claim holder—or the first nation, that dispute can also be referred to the Surface Rights Board.

[Dennis Bevington, NDP, Western Arctic, NT]

Would that apply as well to municipally held land?

[Laurie A. Henderson]

The latter one I spoke to does. Whenever land is owned or occupied by another party, the provision applies that relates to security prior to entry applies to various types of land, not just to land held by first nations.

[Dennis Bevington, NDP, Western Arctic, NT]

Under the free entry system, you can go anywhere and make a claim. If you are on someone else's land and establish a claim, at one point in time or another you will pretty well be guaranteed access through this process. The Surface Right Board cannot turn down access requests; they can only set compensation and conditions. Is that not correct?

[Laurie A. Henderson]

I'm going to respond to you, but I will premise my comment by saying your sound is cutting out a bit. The question, I believe, was whether or not it was really an issue of access as opposed to whether you can enter on to the claim.

[Dennis Bevington, NDP, Western Arctic, NT]

That's right.

It was to enter on to the claim, because the free entry system allows claims to be made in very many locations. Is that not correct?

[Laurie A. Henderson]

Yes, the free entry system certainly.... In terms of, for example, the quartz act, where the mines and minerals are under the control and administration of the Yukon government and the commissioner, there is a right of entry set out in the Quartz Mining Act and in the Placer Mining Act.

There are some parcels of land that are subject to prohibition of entry other areas that are set out in the act that are not open for entry. In the places that are open for entry, the issue is one of access and resolving access disputes between claim holders and those who hold that land when that land is not held by the government.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you very much for those clarifications.

[The Chair, Conservative, Chris Warkentin]

We'll now turn to Mr. Leef, the member from Yukon, for the next seven minutes.