AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 4, 1997

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[Translation]

The Chairman (Mr. Guy Saint-Julien (Abitibi, Lib.)): We are ready to start. First of all, let me read you the Order of Reference dated October 28, 1997.

ORDERED, - That Bill C-8, An Act respecting an accord between the Government of Canada and the Yukon Territory relating to the administration and control of and legislative jurisdiction in respect of oil and gas be now read a second time and referred to the Standing Committee on Aboriginal Affairs and Northern Development.

The 3rd item on the agenda reads as follows: Pursuant to Standing Order 75(1), consideration of the preamble and Clause 1 of the Bill is postponed.

So we are going to review Clause 2.

Let me introduce our witnesses today. We have, from the Department of Indian Affairs and Northern Development, Ms. Mimi Fortier, Acting Director, Northern Oil and Gas Directorate; Mr. Normand Tremblay, Economic Policy Analyst, Northern Oil and Gas Directorate; Ms. Mary Douglas, Legal Counsel, Legal Services; Mr. Hiram Beaubier, Director General, Natural Resources and Environment Branch; and Mr. Harmit Bajaj, Director, Fiscal Relations Directorate.

Ladies and gentlemen, good morning. I am happy to welcome you to the committee. I understand you have a presentation for us. So the floor is yours.

Ms. Mimi Fortier (Acting Director, Northern Oil and Gas Directorate, Department of Indian Affairs and Northern Development): Thank you, Mr. Chairman. I am going to start in English.

[English]

Mr. Chairman, members of the committee, we are pleased to have the opportunity to meet with you today to discuss Bill C-8, an act to implement provisions of the Canada-Yukon Oil and Gas Accord.

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The Canada-Yukon Oil and Gas Accord was signed on May 28, 1993. The federal government is committed to introduce legislation consistent with the terms of the accord to transfer to Yukon the additional legislative powers necessary to undertake the management of oil and gas resources.

Following the direction given by the accord, signed by both the federal and territorial governments, these new legislative powers will not impair or diminish the capacity of the Government of Canada to fulfil federal responsibilities such as the resolution and implementation of aboriginal land claims and the creation of national parks and defence installations, and to fulfil its mandate with respect to international obligations, national security, and the environment.

The proposed legislation was previously introduced in Parliament on June 14, 1996, as Bill C-50. It died on the order paper with the election call. Very minor amendments to the previous version were introduced with Bill C-8, all aimed at responding to first nation concerns regarding the settlement and implementation of aboriginal claims.

Once the transfer of administration and control of oil and gas is completed, the federal government will vacate the field in relation to the management and regulation of oil and gas resources in Yukon and complete another important transfer of federal responsibility to territorial jurisdiction.

[Translation]

Mr. Normand Tremblay (Economic Policy Analyst, Department of Indian Affairs and Northern Development): This bill is divided into three main parts. The first amends the Yukon Act by devolving additional legislative powers to the Yukon government; the second amends the implementation scope of oil and gas federal laws to take into account the transfer of additional responsibilities to the Yukon government; and the third provides for interim arrangements for the transition from federal to territorial control of oil and gas.

The first part amends the Yukon Act to confer powers to the commissioner in council of the territory to pass oil and gas laws.

When the transfer is complete, the Yukon government, through its own legislation, will manage and regulate oil and gas activities—including the exploration, development, production and conservation of these resources—environmental and safety issues and the determination and collection of resource revenues. These new powers are equivalent to those conferred to the provinces in respect of non-renewable resources, under Section 92A of the 1867 Constitution Act.

The second part of the bill redefines the area where oil and gas federal legislation may be enforced in frontier lands so that such legislation becomes non applicable in Yukon once the transfer is completed.

Also, most of the provisions in the third part of the bill are of an interim nature and aim to protect third-party rights under federal laws, once the transfer is completed. Afterwards, Yukon laws will apply to these titles, without in any way diminishing the rights attached to these interests.

[English]

Ms. Mimi Fortier: The bill was developed with the full participation of the Government of Yukon. Consultations were held with numerous stakeholders, including the Canadian Association of Petroleum Producers, the Yukon Chamber of Mines, and the Yukon Chamber of Commerce. A great deal of effort was expended to consult with first nations, particularly the 14 Yukon first nations.

While in the past the 14 Yukon first nations focused discussions on the timing of devolution versus the settlement of all aboriginal land claims, the first nations now seem to be satisfied with the protection measures put in place to allow for the resolution of claims. Indeed they have written to the Minister of Indian Affairs and Northern Development to indicate their support.

Also leading to the Yukon first nations' support for the oil and gas transfer seems to be the signing in January 1997 of a set of agreements among the Government of Yukon, the Council of Yukon First Nations, Kwanlin Dun First Nation, the Liard First Nation, and the Kaska Tribal Counsel. These included agreements on the oil and gas transfer that provide for aboriginal participation in the development of the territorial legislation that will govern the administration and regulation of oil and gas.

Mr. Chairman and members of the committee, this concludes our presentation on Bill C-8. If you have any comments or questions, we'll be pleased to address them.

[Translation]

The Chairman: Thank you, Ms. Fortier and Mr. Tremblay. Who wants to start the discussion? Mr. Fournier, you have 10 minutes.

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Mr. Ghislain Fournier (Manicouagan, BQ): With your permission, I am going to start with a short preamble. I have always said that in this country, there should not be two or more classes of citizens. There should be, all discrimination set aside, only one class of citizens. They should all be treated as equals, as far as taxation is concerned, as far as services are concerned, and as far as all the benefits we can enjoy in this country are concerned.

I am told that this Yukon bill will have an impact on 14 first nations, which I truly respect because there are Aboriginal people in our area, in the town of Sept-Îles. I would like you to describe in detail why these amendments are made and what is the bill's objective. I would also like to know whether you are really confident that these changes respond to any concerns that Yukon first nations may have concerning the negotiation of their individual land claim arrangements and selection of lands.

Could you, first, give me some assurances on these two issues I am concerned about.

[English]

Ms. Mimi Fortier: You're talking about the amendments from the previous version, is that correct?

[Translation]

Mr. Ghislain Fournier: I fail to understand the fundamental underpinning of these amendments or what you are aiming at with this bill. Do you want first nations to be self-sufficient, is the objective self-government? I don't understand. Can you tell me which section of the bill spells out the benefits of the legislation for the Aboriginal people living in Yukon?

[English]

Mr. Hiram Beaubier (Director General, Natural Resources and Environment Branch, Department of Indian Affairs and Northern Development): Mr. Chairman, I'll try to respond to that question.

The bill is intended to provide powers and authorities to all residents of the Yukon to manage resources in their own yard. This includes the territorial government and first nations. The bill is widely supported in Yukon as attested to by correspondence submitted by the Yukon first nations.

With respect to their interest in resource management, they flow from the Yukon final agreement, the land claims agreement. Under that agreement and subsequent self-government agreements, Yukon first nations have the ability to have powers transferred to them from the federal and the territorial governments. It would allow them to manage resources within their settlement region. They would benefit from the passage of this bill in the sense that they would be able then to have greater influence on decisions that are made in the Yukon by Yukoners. If they choose to draw down under self-government agreements, under the programs services transfer agreement, they could draw down these powers and other resource powers through discussions with the federal and the territorial governments.

We think this bill goes a long way to meeting the objectives the member brought forward in terms of providing equity of opportunity and fair treatment to all Canadians wherever they reside.

[Translation]

Mr. Ghislain Fournier: For instance, article 4.5 of the Canada-Yukon Oil and Gas Accord provides that in the period of negotiation or prior to ratification of the land claim agreement with Aboriginal peoples, the governments of Canada and the Yukon will consult with representatives of Aboriginal peoples on all significant oil and gas decisions affecting lands within the Aboriginal peoples' traditional territory, as determined through the land claims negotiation process.

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How is this commitment being met by the federal and territorial governments? What is meant by "consultation" in this context?

If you want, I can add another question. Do the provisions of Bill C-8 in any way reaffirm or detract from section 4.5 of the Canada-Yukon Oil and Gas Accord?

[English]

Ms. Mimi Fortier: Thank you.

Article 4.5 of the accord is a longstanding policy of the federal government. It is one that is consistently implemented, particularly in any reviews of authorizations of any oil and gas activity, or any federal initiative to issue lands in Yukon. We've not been very active in that area. Oil and gas activities have been fairly quiet in Yukon, but when there has been an application the federal government has consulted with the Yukon first nations whose traditional territory is affected. The provisions of the bill are consistent with that obligation and that policy. The federal Minister of Indian Affairs and Northern Development has written with his commitment to that policy. I also understand that the Government of Yukon has adopted that policy and actually implemented it in their draft Yukon oil and gas laws.

[Translation]

Mr. Fournier.

Mr. Ghislain Fournier: When Bill C-50 was before the House of Commons, the Inuvialuit Regional Corporation—please forgive my pronunciation—represented the signatories to the Inuvialuit Final Agreement.

[English]

A voice: With practice it gets easier to say.

[Translation]

Mr. Ghislain Fournier: In the northwestern Northwest Territories, there was opposition to the transfer of administration and control over oil and gas in the adjoining area. It was argued that the adjoining area was part of the Yukon North Slope, which falls within a special conservation regime established under the Final Agreement. The Inuvialuit were therefore concerned that the transfer could pose a threat in this area.

The Department of Indian Affairs and Northern Development notes, in its Chronological Summary of Consultations on Bill C-8, that consultations were held with Nellie Cournoyea, Chair of the Inuvialuit Regional Corporation, on July 23, 1997.

How are the concerns of the Inuvialuit Regional Corporation being addressed? In your view, does Bill C-8 recognize the obligations undertaken by Canada under the Final Agreement with this nation? Has the Inuvialuit Regional Corporation indicated its support for Bill C-8?

[English]

Ms. Mimi Fortier: Thank you.

The Inuvialuit are concerned with the accord provisions of transfer of some areas that are considered offshore. Bill C-8 implements the provisions of the accord. First, part of the offshore, as the president of the Inuvialuit Regional Council pointed out, is within a national park, and, as you may be aware, the federal National Parks Act prohibits oil and gas exploration development within park boundaries. Furthermore, any territorial laws are subject to federal laws, so any conflict between the laws will be resolved in favour of parks legislation.

I might also add that, above all, the land claim agreement settlement acts are entrenched in the Constitution. Therefore, in the case of a conflict or inconsistency with this proposed federal transfer or the territorial oil and gas legislation, the settlement legislation will prevail.

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The concerns of the Inuvialuit were addressed with minor amendments to Bill C-50, which you see in Bill C-8. One is to ensure that the federal government can designate areas where no oil and gas activity and no rights issuance can take place if it interferes with the implementation of the Inuvialuit Final Agreement. Furthermore, because the federal Territorial Lands Act remains a federal responsibility, the withdrawal order provided for under chapter 12 of the Inuvialuit Final Agreement has been protected in section 22 of Bill C-8.

So we feel we have tried to address any outstanding concerns regarding the protection of the federal commitments in the Inuvialuit Final Agreement. And may I just point out again that the Yukon government itself is a signatory to the Inuvialuit Final Agreement.

The Inuvialuit Regional Corporation has not extended their full support, but I have heard from their chief operating officer that they are pleased with the amendments we have made to address their concerns.

[Translation]

The Chairman: Thank you, Ms. Fortier. Thank you, Mr. Fournier. I want to mention that Mrs. Nellie Cournoyea has sent us a letter on behalf of the Inuvialuit Regional Corporation that you have in your hands right now in English and in French. It's in your documents. This letter is appended to the witnesses' list.

I now turn to the next member. Mr. Konrad, you have 10 minutes.

[English]

Mr. Derrek Konrad (Prince Albert, Ref.): Thank you, Mr. Chairman.

I'd like to state at the outset of course that I also believe in the equality of all persons and that colour is my every question, or how I respond to an answer to a question.

Proceeding with some notes we have on questions to ask you, it appears the Canada-Yukon Oil and Gas Accord includes a complex set of financial provisions, and I'm sure they are for better resource revenue-sharing and offset arrangements. I'd like you to provide the committee with a brief explanation of the revenue-sharing arrangements, and I'd also like to know just who is involved in it specifically.

Mr. Normand Tremblay: In the accord it was specified; there were three sections dealing with resource revenue.

First, the federal government did include a one-time payment of $750,000 to the Yukon government to assist them to set up their own organization.

Secondly, a payment of $1.1 million was rolled into the formula financing, and it's there ad vitam aeternam.

Thirdly, there is a section that says the first $3 million collected from the Yukon government will go directly to the Yukon government, and whatever revenues over the $3 million will be shared with the crown, or the federal government, at a ratio of 60:40—60% for the federal government and 40% for the Yukon government. That amount will escalate until it reaches 80%.

Mr. Derrek Konrad: Thank you.

Can I pass my question to him?

[Translation]

The Chairman: No problem.

[English]

Mr. Grant McNally (Dewdney—Alouette, Ref.): I'm just trying to get up to speed. You obviously have worked on this at great length.

Further to Mr. Konrad's question about the sharing of revenues, 60% after the $3 million would go to the federal government?

Mr. Normand Tremblay: Yes, the incremental amount.

Mr. Grant McNally: You mentioned up to an amount of 80%.

Mr. Normand Tremblay: Yes.

Mr. Grant McNally: That's 80% of what?

Mr. Normand Tremblay: It follows the Income Tax Act, the way the rate is shared with the crown. It goes step by step. Whenever there's an increase of 5% in the amount collected, in percentage of the formula financing, the higher share goes to the crown, so it goes to 65%. It could go up to 80%.

Mr. Grant McNally: So in other words, the higher the revenues—the more money taken out of that area in this field—the greater the share that would go to the federal government, the lesser share to the Yukon?

Mr. Normand Tremblay: Yes.

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Mr. Grant McNally: Is there any input from local government on that?

Mr. Normand Tremblay: The Yukon government?

Mr. Grant McNally: Right.

Mr. Normand Tremblay: Well, they were signatories of the accord and they were satisfied with the sharing agreement. They acknowledge that it's consistent with the equalization policy in Canada, which is that whenever they have an increase in revenue, a higher rate goes to the federal government. They were never opposed to that notion of sharing.

Mr. Derrek Konrad: Can I follow that up with another question? Does the agreement go beyond stating the split between the Yukon and the federal government? In other words, is there a portion dedicated to first nations?

Mr. Normand Tremblay: Yes, but not in the accord. The sharing of the revenues comes out of the land claim agreement, and it's a subagreement that the Yukon government has with the Yukon first nations. It says that 50% of the first $2 million received by the Yukon government goes to the first nations and 10% of the incremental amount beyond $2 million.

Mr. Derrek Konrad: And how many people benefit from the 50% of the $2 million?

Mr. Normand Tremblay: I don't have the—

Ms. Mimi Fortier: We'll have to look up that number.

Mr. Derrek Konrad: I'd like to know the answer to that, please.

Mr. Normand Tremblay: That was a commitment made by the Yukon government at the time they were doing the umbrella final agreement. It was a side agreement between the Yukon government and the first nations.

Mr. Derrek Konrad: Okay.

Mr. Grant McNally: We'll continue to play a little tag team here, back and forth, if that's okay.

[Translation]

The Chairman: To follow up on Mr. Konrad's question, we'll have an answer today. Will it be this afternoon? When?

Ms. Mimi Fortier: This afternoon.

The Chairman: Thank you.

Mr. McNally.

[English]

Mr. Grant McNally: Again, just to follow up on that 50% of the $2 million, what would be the maximum share that would go back to the first nations people of the area? Would it be the $1 million and then the 10%?

Mr. Normand Tremblay: There's a cap on the amount that can be shared with the first nations, but I don't know the exact limit.

Mr. Grant McNally: Could we find that out?

Mr. Normand Tremblay: Yes, we could.

Mr. Grant McNally: Maybe you mentioned this earlier; pardon me for being a little late. I was wandering around, going the wrong way on the street.

I'm just wondering about the process with the first nations people of that area in the formulation of the bill and this procedure. I'm wondering if you could briefly explain what the process was for their involvement in sitting down and developing this accord. Was it just through their regional representatives, or was there any consultation with membership of the bands at large?

Mr. Normand Tremblay: The drafting of the bill was done in collaboration between the Yukon government and the federal government. That was the mandate we got from cabinet at that time.

Once we had a draft of the legislation, we did propose to set up consultations with first nations to seek their views and to seek their position on any need to make any amendments to the draft legislation.

Mr. Grant McNally: So basically it was an accord between the Yukon government and the federal government first, and then first nations people were consulted on their views afterwards?

Mr. Normand Tremblay: At the time we were doing the negotiation of the accord, the Yukon government was the representative of the Yukon first nations.

Mr. Grant McNally: Oh, okay.

Mr. Normand Tremblay: It was their responsibility to consult with the Yukon first nations.

Ms. Mimi Fortier: And that is provided for in the umbrella final agreement.

Mr. Grant McNally: The consultation process?

Ms. Mimi Fortier: The consultation process, yes.

Mr. Grant McNally: Okay.

Maybe I need to be asking this to our witnesses later this afternoon, but do you know just how that process worked with the regional representation, with their own people? Maybe you don't have an insight on that. Maybe I should save that question for later.

Mr. Normand Tremblay: I guess we'll leave that to the Yukon government.

Ms. Mimi Fortier: Or the Council of Yukon First Nations.

Mr. Grant McNally: Okay.

Mr. Derrek Konrad: Do we still have some time left?

[Translation]

The Chairman: Yes, you have three minutes left.

[English]

Mr. Derrek Konrad: I want to go to a couple of other questions. How far along is the devolution initiative, where we're devolving powers down?

Mr. Normand Tremblay: When did it start, you mean?

Mr. Derrek Konrad: No, not when did it start. Where are we along there now? Are you going to be completed by the target date, or will you be...?

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Ms. Mimi Fortier: Mr. Chairman, may we provide a written response to the member's question on the update of the broader devolution initiative undertaken by the federal government earlier this year?

[Translation]

The Chairman: No problem. We all agree.

[English]

Mr. Derrek Konrad: I have no problem with that. Will you include in your answer, though, which powers and programs remain to be transferred, and if there is additional federal legislation required to complete the process?

Ms. Mimi Fortier: We will.

[Translation]

The Chairman: Ms. Fortier, will you provide us with a written answer today or tomorrow?

Ms. Mimi Fortier: Can we send it along tomorrow?

The Chairman: Okay. No problem.

Ms. Hardy, you have 10 minutes.

[English]

Ms. Louise Hardy (Yukon, NDP): I won't need 10 minutes. I just want to know if this agreement will be setting a precedence for further devolution.

Ms. Mimi Fortier: I'm sure that's more than likely. We have already seen a lot of praise from Yukon first nations in terms of the agreement they've established with the territorial government to develop their legislation for oil and gas. We've seen an interest from Yukon first nations to continue those types of working relationships.

Ms. Louise Hardy: Thank you.

[Translation]

The Chairman: I would like to come back to the answers you are going to provide us with. You are going to forward them to our clerk as soon as possible, right? Thank you very much.

Mr. Keddy, you have 10 minutes.

[English]

Mr. Gerald Keddy (South Shore, PC): I have a couple of questions. The first one relates to your comment that the federal government can designate areas where no oil and gas exploration can take place. I would assume that this also means they can designate areas where oil and gas exploration will take place.

Ms. Mimi Fortier: I think that's understood in the transfer, that it will be Yukon's decision.

Mr. Gerald Keddy: There's part of this that I don't understand, and it seems to be where the Inuvialuit Regional Corporation comes in with their complaint. It's explained a bit in some of the information you've given us, but when we go to the final page of their discussion with Ivvavik National Park, including Shoal Bay and the beluga whale harvesting area, it says:

The failure of the Act to specifically recognise the responsibilities of the Government of Canada in the Yukon North Slope remains a major flaw.

The part of this I don't understand is that this is a national park, and I would assume that there would automatically be no oil or mineral exploration within the boundaries of that national park.

Ms. Mimi Fortier: That's correct.

Mr. Gerald Keddy: Therefore, any concerns or worries they have, now or in the future, should be covered there. So what's the concern?

Ms. Mimi Fortier: I'm not sure what concern remains outstanding in the national park. As you stated very correctly, the federal National Parks Act itself prohibits the development. We also have pointed out to the Inuvialuit that federal laws take precedence over territorial laws.

Mr. Gerald Keddy: To come back down from the withdrawal from the disposal order, it says:

The legislation now appears to have recognised that the Government of Canada may have obligations under settled land claims which are inconsistent with a transfer of jurisdiction as contemplated by the Act. The provisions allowing the Government of Canada to designate certain lands where the exercise of oil and gas rights would be incompatible with the settlement of aboriginal land claims goes some distance to satisfying Inuvialuit concerns.

As I understand this, it's an open-ended process that both parties have accessability to. The land claims, as stated very clearly in the legislation, take precedence.

Ms. Mimi Fortier: That's right. The land claim provisions take precedence.

Mr. Gerald Keddy: So I'm still coming back to the question of why that's a major concern at this stage. Is there something here that someone else at the table has knowledge of that I don't? What are we missing? If we've addressed the concerns, then what have we missed that there's still a concern there?

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Mr. Hiram Beaubier: I think the concerns the Inuvialuit are addressing here relate to the status of the North Slope. The North Slope was withdrawn by a federal order in council, both surface and subsurface rights, in the late 1970s for the purposes of settling the Inuvialuit land claim. That land claim was settled in 1984, and part of it called for a management regime to be developed and put into place for the North Slope.

A goodly component of that management regime related to the creation of parks and the protection of the Porcupine caribou herd. The two parks were created specifically to deal with the sensitive areas associated with caribou, and since that time there's been a regular co-operative effort between the federal government and the two territory governments.

The Inuvialuit developed a management regime for the North Slope. That work is ongoing.

The withdrawal order remains in place, and I think what you're seeing there is just an expression of concern that until there's finality to that management plan they want comfort that the withdrawal order would be respected. We have given that assurance in the bill. The Yukon government have given that assurance within their approach to their legislation.

I think that the Inuvialuit are simply underscoring their sensitivity to that point, that they do want to make sure that those conservation measures are kept in place until there's a final decision with respect to the management and the resource values of the North Slope.

Mr. Gerald Keddy: That's exactly the interpretation that I'm taking from reading the act. However, they state that a deficiency is that there's no requirement to axe...and they're talking about the federal government.

As I understand it—and correct me if I'm wrong—the precedent should be that there is no mineral or oil and gas exploration in a national park. Because this is in a territorial government, there's some question of jurisdiction. The jurisdiction goes back to the feds, but is there anything different about that?

Mr. Hiram Beaubier: There are two elements that I would respond with here.

First, you're quite correct that the precedence of the national park is very clear and there cannot be development within the national park.

Beyond that, the obligations and the requirements for the federal government, territorial government, and Inuvialuit to do something, to act, flow from the Inuvialuit Final Agreement. You would look to the land claims legislation to lay out the kinds of obligations, activities and actions that will be directed towards that portion.

The oil and gas legislation has to be compatible with those superior bits of legislation, and we think it is compatible in the sense that it keeps in place the withdrawal orders.

So we would look to those other bits of legislation to address the kinds of concerns that the Inuvialuit are putting forward. We think it would be duplicative to build those into the act.

Mr. Gerald Keddy: So we're stating, on the government side certainly, that the Yukon North Slope will be subject to federal control, because the last statement in the complaint is that the Yukon North Slope will be subject to the discretionary actions of the Yukon and federal government officials. Again I'm going back; I'm repeating the same thing, but I don't see any room for discretion here. I think there's a very accurate set of guidelines that are already set down.

Am I incorrect in that assessment?

That would be so in relationship to the national parks, certainly. There may be some room for discretion on behalf of land claims throughout the rest of the territory, but as they apply within the boundaries of the national park, there's no room for a set of guidelines there.

Mr. Hiram Beaubier: We go back, sir, to the superior documents, which you rightly pointed out are the National Parks Act with respect to the park and the Inuvialuit Final Agreement, which is the 1984 signed agreement between Canada and the Inuvialuit. That agreement commits Canada and the territorial government whose signature is on that to certain actions and responsibilities with respect to the North Slope. Part of that is the withdrawal order. Part of it will be the management plan that will have to be developed for that region.

So those bind the actions of the federal government and the territorial government in the North Slope area.

Are we missing something here, sir?

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Mr. Gerald Keddy: Yes, we're still missing something. I still don't understand the total flow of this document. There is something there I can't put my finger on. Maybe it's something about the Inuvialuit Final Agreement and the National Parks Act. You said they came in 1984.

Mr. Hiram Beaubier: The final agreement. Yes.

Mr. Gerald Keddy: Are they still waiting for the withdrawal order from that area?

Mr. Hiram Beaubier: No. The withdrawal order was put in place in 1978, I believe. It applied for all of the North Slope north of the Porcupine River, I believe. I can't be quite sure of that. From that, the areas that created the two national parks on the coast and in the British Mountains were passed under the National Parks Act. The remainder of the area is still under the withdrawal order. The withdrawal is referenced in the Inuvialuit Final Agreement.

Mr. Gerald Keddy: So that's the concern. It's not within the boundaries of the park, it's within the remainder of their land settlement claims.

Mr. Hiram Beaubier: That is correct.

[Translation]

The Chairman: Thank you, Mr. Keddy and Mr. Beaubier.

Mr. Finlay, you have 10 minutes.

[English]

Mr. John Finlay (Oxford, Lib.): Thank you, Mr. Chairman.

I want to follow up on Mr. Keddy's line of questioning for a minute. The Inuvialuit Final Agreement was signed in 1984 and I believe you just said it calls for the need to develop a management plan for the North Slope. It is now 1997, 13 years later. Are we going to wait another 13 years? Why has this management plan not been put into effect? Are we working on it and just waiting?

Mr. Hiram Beaubier: No, we are not just waiting. Elements of that are in effect. As I mentioned, a good portion of that related to the Porcupine caribou management herd and the creation of the national parks. That took a number of years to negotiate and put into effect.

Since that time, either annually or every three or four years, there's a North Slope conference where all the parties come together to talk about the management regime and updates that would be appropriate for the North Slope.

That's been a living document. There were, until recently, ongoing land claim discussions with the Vuntut Gwitchin from Old Crow, who border right on that area. Putting management plans in place is slow because we have to consider the various interests. The Gwitchin, who also border on that area, signed in 1993. So a number of imperatives with respect to other aboriginal interests that have a relationship to the North Slope have certainly been a factor in terms of determining what to do with that area.

Mr. John Finlay: It seems there was something in the news not too long ago with respect to Alaskan and American interests in the area, which add a complicating factor, I guess, for the Inuvialuit.

Mr. Hiram Beaubier: The issue with respect to the American interest was the development or the proposed development for the Arctic National Wildlife Refuge, the so-called 1002 lands. There is a strong development lobby that wishes to open the 1002 lands for oil and gas exploration. Those lands contain a significant portion of the core calving grounds for the Porcupine Caribou Management Board. The position of the federal government is that those lands should not be opened for exploration and development and should receive the same kind of protection the calving grounds in Canada have received.

The Vuntut Gwitchin of Old Crow have been very active in their lobbying of the American interest to bring to the attention of the American people the desirability and indeed the necessity of protecting those 1002 lands.

I'm not aware that the Inuvialuit have expressed a particular view on that, although I think they are supportive of protection for caribou.

Ms. Mimi Fortier: If I may just further point out, it is a common belief that the petroleum potential of the American and Alaskan wildlife refuge is much greater than those areas that are encompassed in the Inuvialuit settlement region. The geology is very different and petroleum potential is very low on the North Slope of Yukon.

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Mr. John Finlay: Thank you.

I have another question on timing too, I'm afraid. I read in the notes that this legislation was forecast at the time of the signing of the accord, which according to my notes was May 29, 1993, and it said we were to transfer administration and control of oil and gas to the Yukon within 18 months of the signing of the accord. By my calculation that would have been November 1995. We're now at November 1997, so we're two years off the pace. What has held them up? Did we just make a bad calculation on how quickly this could be done?

Mr. Hiram Beaubier: It was a couple of elements. First, it's a fairly complicated bit of legislation. We developed it in consultation with Yukon, and that always adds time. There were also a couple of elections, both federal and territorial, that interceded their own agendas into these processes.

Mr. John Finlay: I think it's high time we got it done, anyway.

Mr. Hiram Beaubier: We agree.

Mr. John Finlay: My last question is about the statement here that individual agreements will provide each first nation with a share of the total settlement lands for all Yukon first nations, and it will amount to 41,000 square kilometres—I didn't bring my atlas, so I can't make any judgment about how much of the Yukon territory 41,000 square kilometres amount to—of which 25,900 square kilometres include mines and minerals. I presume that means of the 41,000 square kilometres that will figure in the total settlement lands, 25,900 square kilometres give the rights for mines and minerals to the first nations. But then somebody is maintaining the rights for 15,100 square kilometres. Am I right in that?

Mr. Hiram Beaubier: Yes.

Mr. John Finlay: That was agreed upon, or that was part of the umbrella final agreement.

Ms. Mimi Fortier: Yes.

Mr. John Finlay: Should I speculate that the 15,100 square kilometres reserved I presume for the Government of the Yukon or the federal government were those which were the most geologically productive of the 41,000? How was that distinction made?

Mr. Hiram Beaubier: The process of negotiating land claims and making selections is a fairly complicated one, as you can appreciate. The process basically had the first nations coming forward, first of all, to negotiate the quantum. That was finally determined. Once that quantum is decided, there is a 120% withdrawal so you don't complicate the land they are interested in by third-party interests staking interests over top of it. Then it's a matter of negotiating down to final selection; and it's always trying to strike a proper balance between high-grading and providing opportunity.

I think there was an equitable sharing of potential between the parties. I think if we saw there was not we wouldn't have final agreements.

Mr. John Finlay: Give me an idea of what 41,000 square kilometres would amount to.

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): It's 25,000 square miles.

Mr. John Finlay: Okay, but of the total land mass of the Yukon, are we talking 10%—

Mr. Hiram Beaubier: Yes.

Mr. John Finlay: —2%, 15%, 20%?

Mr. Hiram Beaubier: We'll get you an accurate number, but I believe we're talking in the order of 9% to 12% of Yukon.

Mr. Hermit Bajaj (Director, Fiscal Relations Directorate, Department of Indian Affairs and Northern Development): Mr. Chairman, it's roughly 9%. Again, the calculation could differ depending on whether you count the mountains and the lakes or just the land mass.

Mr. John Finlay: The adjoining lands and the offshore?

Ms. Mimi Fortier: Not including.

Mr. Hermit Bajaj: No.

[Translation]

The Chairman: Thank you, Mr. Finlay. Mr. Patry wanted to use the two minutes left to Mr. Finlay. Mr. Patry, go ahead.

[English]

Mr. Bernard Patry: I have a question on the comment from Mr. Konrad on devolution for the Yukon. At the end of the briefing book the schedule and timing of devolution for Yukon. You have it in your book, just to let you know that. It will save our witnesses from having to give us an answer on this.

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I have two issues to ask our witnesses about. First of all, my colleagues talk about the North Slope. They talk about two things. I would like to ask, first of all, a question about the aboriginal issues. Why is it that there is no non-derogation clause? The second one is regarding environment. I want to be sure that all the environment will be protected after the transfer of the responsibility for all oil and gas to the Government of Yukon. Thank you.

Ms. Mimi Fortier: The bill does not include a non-derogation clause, since aboriginal rights, land claim settlements, and future settlements are protected. The transfer of legislative authority in the bill does not affect those rights.

As I mentioned in the case of the Inuvialuit settlement, all agreements, all legislation implementing aboriginal land claim agreements, are entrenched in the Constitution and take precedence. The land claims and the self-government agreements contain detailed provisions protecting first nations in relation to oil and gas activities, including their control of oil and gas over the settlement lands. The Yukon Surface Rights Board Act exists to settle disputes over access for third-party mineral rights holders on settlement lands. An environmental assessment process with Yukon first nation participation is anticipated to be legislated in 1998 so as to ensure that the environmental assessment process of all development activity in Yukon has first nation participation.

The self-government agreements allow the Yukon first nations to displace Yukon petroleum management laws for settlement lands in which the Yukon first nation owns both the surface and the sub-surface.

Interim arrangements with the first nations whose claims are still under negotiation include the withdrawal orders that Mr. Beaubier just mentioned so that the first nations can ultimately select lands that are not encumbered by third-party rights.

I would also mention that the development assessment process envisaged by the final agreements, as I mentioned, is not legislated yet. Until that time the accord provides that the Yukon territorial government will embed in their own legislation, be it in their own oil and gas laws or their environmental laws, provisions that mirror the Canadian Environmental Assessment Act.

[Translation]

The Chairman: Thank you, Ms. Fortier. You have run out of time.

We will now have five-minute rounds of questioning. Mr. McNally.

[English]

Mr. Grant McNally: I have a couple of questions following on Mr. Finlay's comments about the sharing of the 41,000 square kilometres. It was mentioned that there was an equitable split of that land. Were there geological reports that were tabled on both parties' parts? How was it decided which group would get which lands?

Mr. Hiram Beaubier: All information we had was made available to people who were interested in selecting lands. I didn't participate personally in the negotiations so I don't know exactly how the final division occurred. I would point out that the final settlement is a fairly complex mix of benefits associated with land, with co-management resource regimes, cash and other compensations. So it's going to be very difficult to make a categorical statement with respect to the lands and their values within the context of the settlement. But it was an open process.

Ms. Mimi Fortier: Mr. Chairman, may I offer that the current federal negotiator will be on the videoconference later this evening and may have more information for the member as to how those land selection negotiations take place.

Mr. Derrek Konrad: With respect to those things, I wonder, more for my own information, was there unanimity on the selection process or close to unanimity in terms of who was in and who was out? Was there was a clear-cut border that could be established and agreed to, whereby we're not going to see other actions, other claims within claims, by other groups that may or may not have been represented? Because people have a tendency to not live according to property lines with fences in places like that.

• 1200

Ms. Mimi Fortier: You're quite right. This is very complicated and I don't think there are any clear-cut lines.

Again, I think the chief federal negotiator would have far more experience in past and current negotiations to let you know how those divisions of land take place.

Mr. Derrek Konrad: Is there now finality to this agreement?

Ms. Mimi Fortier: No. Only six of the fourteen Yukon first nations—

Mr. Derrek Konrad: No, I mean the ones we're talking about now that have completed. Is this final now?

Ms. Mimi Fortier: Oh, definitely. The six that are finished, yes.

Mr. Derrek Konrad: They're not open to renegotiation or court action or anything like that?

Ms. Mimi Fortier: We all hope.

Mr. Derrek Konrad: Just one other question. How is land defined—by reference to latitude and longitude or by what?

Ms. Mimi Fortier: Often by natural features—

Mr. Derrek Konrad: Metes and bounds.

Ms. Mimi Fortier: —as well as latitude and longitude, yes.

Mr. Grant McNally: Just going back to this point about the Inuvialuit concerns about the process, it seems that in that last sentence they have concerns about the discretionary powers or possible actions of the Yukon and federal governments. It seems to be that perhaps they have, as has happened in other areas.... I know that in B.C. provincial treaty negotiations are going on right now with the provincial government and the federal government, and quite often the municipal government. I know. I've talked to the municipal governments. They basically have observer status and don't have direct input. I'm wondering if this is the same kind of process, where we have the Yukon government and the federal government basically getting together, making an accord, an agreement, and then they're gone and the people in the area, the Inuvialuit, are left with this pact that perhaps they don't have as much input onto.

Do you see that as a possibility, as one of their concerns? Has that question been addressed to you from them?

Mr. Hiram Beaubier: The agreement is between the federal government and the Yukon government, so it is a federal-to-territorial or provincial type of arrangement.

Mr. Grant McNally: Right.

Mr. Hiram Beaubier: There was broad-based, widespread consultation with all interested parties on the accord and on the formulation of the legislation that flowed from that, and that included the Inuvialuit. I believe that also involved copies of the legislation, so they saw what was coming and had an opportunity to comment on it.

Mr. Grant McNally: If I could just stop you for a second, I guess the concern—and I can understand the concern—is that when a provincial or territorial government and the federal government make an agreement affecting people of a general area, they basically have no say in what could happen down the pike.

Mr. Hiram Beaubier: Let me go on to say that I come back to the comments we made earlier, that the arrangements or the relationship among the federal, territorial and the Inuvialuit peoples is embodied in the Inuvialuit Final Agreement. That is the document that will specify how those three parties will interact, and all the obligations that we have, federally or territorially, must be respected within the agreement. So there is a constitutionally protected overlay that should really address the concerns of the Inuvialuit.

[Translation]

The Chairman: Thank you, Mr. McNally.

Mr. Fournier, you have five minutes.

Mr. Ghislain Fournier: First of all, I would like to know if I heard correctly. Did you mention an agreement between Aboriginal peoples and Alouette, an aluminum plant in Quebec? Did I get that wrong? No, you haven't? All right.

Regarding Bill C-8, is it based on the legislation enforced right now in the provinces, for instance? Did you follow these regulations or these laws? I would like to give you an example which might be a bit off the subject, but which concerns the same nations or the same peoples.

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In Quebec, there is a titanium deposit in Natashquan— Mr. Vigneault's country, a very beautiful region—and we do not seem to be able to reach an agreement about this deposit with the Aboriginal peoples living in Pointe-Parent.

I have personally met the band council and right now, I wonder whether the bill is going to reflect the laws and regulations enforced in Quebec and in the other provinces. You are going to transfer responsibilities regarding the management of oil and gas resources. Therefore, the issue is the management of natural resources in this part of the country.

I am not saying that I am against the bill, but what concerns me is whether you have indeed reviewed the provincial management regimes concerning natural resources and compared those to what is proposed for the Yukon.

[English]

Ms. Mimi Fortier: In this exercise the federal government has not looked at other provincial regimes in oil and gas legislation. However, the accord provides that the Yukon territorial government will introduce oil and gas laws that are compatible with other oil and gas laws in Canada. We know for a fact, and you may discuss this with the Yukon government this afternoon, that they have looked at other provincial models on which to base the development of their own territorial and gas laws.

[Translation]

Mr. Ghislain Fournier: Do you feel confident that you will be able to do something at the national level to facilitate relations between the various nations as well as the development of our natural resources? I have always said that in any country, sub- surface resources belong to the residents. So, here, it belongs to the federation's citizens. In Quebec, we often say that we are not part of the federation, but as long as we do belong, we'll go by the regulations because we believe in democracy and we respect what is at stake. Can we expect this accord to be used as a model for other agreements struck across Canada and within the provinces?

Mr. Normand Tremblay: It was agreed with the Yukon government that they would benefit from the fees and the revenues generated by this activity. The first nations are going to be able to benefit as well. On top of that, the federal government will also benefit. So, each of the three interested parties will get its fair share, if I may say so.

We cannot really say whether this model will be applicable everywhere across Canada, because it is an agreement with the Yukon government, but it could be used as an example for the negotiation of agreements with the Northwest Territories. Regarding the provinces, it's difficult to say.

The Chairman: Thank you, Mr. Tremblay. Thank you, Mr. Fournier. Ms. Hardy, you have five minutes.

[English]

Ms. Louise Hardy: This is often described as provincial-like powers that are being devolved. What parts of it aren't provincial-like?

Ms. Mary Douglas (Legal Counsel, Legal Services, Department of Indian Affairs and Northern Development): One example is the authority to designate certain areas. We haven't retained that authority with respect to provinces, but I think that is largely because for provinces we have not retained authority over any of the resources.

• 1210

In the Yukon at the moment, we're just passing responsibility for oil and gas over, but we are, for the moment, retaining responsibility for the rest of the resources. So it's a little more complicated as long as we have this split of resources.

Ms. Louise Hardy: As long as the Yukon's a territory and depends on the seven premiers, I think, to give us any hope of provincial status, what are the long-term implications of this devolution of power?

Ms. Mary Douglas: The devolution doesn't legally create provincial status. We were just talking about the types of powers they will be exercising. For the most part, in relation to oil and gas, they are equivalent to those exercised by provinces, but from a constitutional status point of view this doesn't change them from a territory into a province.

Ms. Louise Hardy: No, it doesn't, but it builds a sense that there could be a province there. But mainly it means that what's given can be taken away.

Mr. Hiram Beaubier: I guess in theory that's correct. Both Yukon and Northwest Territories are acts of Parliament, and Parliament can do as it will, but politically I think that's an impossibility. When you convey powers and authorities to a jurisdiction, it is virtually impossible politically to remove those, nor would there be any desire to do so.

As bureaucrats, we don't know where the government's going in terms of its long-term objectives for the north, but it's clearly wanting to cede to northerners the authorities and powers that are enjoyed by other Canadians with respect to resources and to cede to them the decisions that relate to them and that affect them most directly. It's a very clear statement of intent to move that way.

It has to be done in harmony with the settlement of land claims, of course, because another set of obligations there flows to first nations. Those two have to go very closely together.

There's no doubt that the willingness to move federal powers over natural resources to the two territories is seen as an opportunity for political development in the two territories and the yet-to-be third territory.

Ms. Louise Hardy: Thank you.

[Translation]

The Chairman: Thank you, Mr. Beaubier. Mr. Keddy.

[English]

Mr. Gerald Keddy: I have just one very quick question about a closer definition of.... I assume, I think correctly, that for the definition of the land boundaries, there will be an onground survey by science Canada...there would be a physical boundary.

Ms. Mimi Fortier: Yes, that's right.

Mr. Gerald Keddy: The same as for any other area.

The Chairman: Mr. Bryden.

Mr. John Bryden (Wentworth—Burlington, Lib.): I have a question or two, Mr. Chairman.

Is the control the first nations will have over the resources allocated to them essentially the same type of legal control the Yukon will have over its oil and gas resources that are allocated to them?

Mr. Hiram Beaubier: Yes, that's correct. They would have title to those lands and resources.

Mr. John Bryden: So in fact they'll be a province within a province or a territory within a territory in terms of their legal status with respect to oil and gas or whatever resources are allocated to them.

Mr. Hiram Beaubier: Yes, but it's a fairly complex interplay among federal, provincial, and aboriginal management. They have to fit within the framework of the federal government and its laws and applications and within the framework of the territories as well, but they would have the right of deciding how they would dispose of these rights and benefits. That would be a management decision.

Mr. John Bryden: I'm just trying to find my way. Is it sort of equivalent to a company owning the mining rights to a certain territory?

Mr. Hiram Beaubier: That's correct. A lot of the aboriginal groups—indeed, I think they all are—are forming corporations to hold and manage the land and resources for them.

Mr. John Bryden: Yes, the aboriginal groups themselves, are they equivalent to a corporation? I guess what I'm trying to drive at—

Mr. Hiram Beaubier: No.

Mr. John Bryden: Are the aboriginal nations in the Yukon another level of government with respect to the resources that have been allocated to them? Are we creating a fourth level of government ownership or of government owning the resources? Is this what's occuring or not? It may not be.

• 1215

Ms. Mary Douglas: I think in the first instance they are authorities over oil and gas in the parcels where they own the oil and gas, and, as you indicated, only some of them carry the oil and gas with it, or other minerals. For those their authorities are, in the first instance, those they have as an owner, as if a corporation had actually been given full ownership over minerals instead of just the lease arrangement.

But we have also entered into self-government agreements. We don't describe them as a third order of government per se—

Mr. John Bryden: Actually, a fourth order of government.

Ms. Mary Douglas: —or a fourth—but we do describe in those agreements the types of powers they can exercise in relation to these resources and the relationship between whatever laws they choose to pass and those of the territorial and federal governments.

So we have worked out a fairly complex relationship. I guess it's up to you or up to the first nations to try to self-describe whether it's more governmental or ownership or whatever, but we did try to describe in those agreements at least which law prevailed in which situation.

Mr. John Bryden: Finally, what might be helpful, at least in my instance, because I'm new to the committee and I have to find my way through complex territory.... I wonder if there's some documentation that can give me an insight into the reasoning that has gone into setting up this type of arrangement when we are dealing with first nation self-governments, particularly with resources.

It has the potential to be a great issue. I notice there was quite an interesting television article on Senator Twinn's band and what was happening to the exploitation of resources on that particular first nation reserve.

Mr. Hiram Beaubier: Sir, I just don't know offhand whether we can find that, but we will certainly look for the documentation.

I would point out that there is a huge difference between reserve lands under the Indian Act, how they are managed and all the different authorities which go with that, and what is being developed under the land claims settlement. They are fundamentally different. A different relationship is struck between the government and aboriginal people under those two instruments.

We'll see if we can help you.

Mr. John Bryden: The philosophical underpinning is what I'm looking for, so I know where you guys are coming from.

[Translation]

The Chairman: Thank you, Mr. Bryden and Mr. Beaubier. Does anyone else wish to speak? Mrs. Karetak-Lindell.

[English]

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): I just wanted to know when the transfer agreement will be completed and when the Yukon government will begin to administer this under the agreement.

Ms. Mimi Fortier: Once this bill is enacted the Yukon commissioner in council has the power to make territorial oil and gas laws. Once the federal government has reviewed the territorial oil and gas laws to see that all the provisions in the accord are embedded in those territorial laws, then there will be an order in council effecting that transfer. On that very day the federal oil and gas laws no longer apply in Yukon and the Yukon territorial oil and gas laws apply.

Mrs. Nancy Karetak-Lindell: Is there an anticipated date?

Ms. Mimi Fortier: It depends on the parliamentary schedule, obviously, when this is enacted, and of course on the territorial legislative assembly. We would hope the transfer date would have occurred by next spring.

[Translation]

The Chairman: Thank you, Mrs. Karetak-Lindell. Mrs. Longfield.

[English]

Mrs. Judi Longfield (Whitby—Ajax, Lib.): I'm just following up on Nancy's comments. I think you had told us in a briefing the territorial governments are well advanced in getting this put together, so it's really just waiting for us and for them to submit their plans to us.

Ms. Mimi Fortier: We received their first draft just on Friday, and the Yukon government official will be visiting us this week to go over that draft. So we've just started that process of reviewing all the elements of the territorial oil and gas legislation. Not just their laws but their regulations have to be in place, and they are still formulating some of those regulations, as far as I understand it. It's well on its way.

Mrs. Judi Longfield: Based on what you've seen thus far, how long do you anticipate it would take for you folks to review what is in front of you?

• 1220

Ms. Mimi Fortier: There are some basic elements we have to look for in the accord, which shouldn't take too long at all. I have a sense that they're all there, from speaking with the Yukon government officials.

Mrs. Judi Longfield: Okay.

[Translation]

The Chairman: Thank you, Mrs. Longfield. Mr. Konrad.

[English]

Mr. Derrek Konrad: I have a couple, if I may.

The Chairman: You have five minutes.

Mr. Derrek Konrad: Why are resource transfers of oil and gas being split and not other resources? Supplementary to that, are other resources being eyed for transfer at this time?

Ms. Mimi Fortier: Pardon me?

Mr. Derrek Konrad: We were talking about oil and gas, but that isn't all of the resources that can be transferred. This is sort of background for me. I wonder why it's just oil and gas.

Mr. Normand Tremblay: You have to go back to 1988, when the governments of the Northwest Territories and the Yukon signed an agreement in principle seeking a transfer of oil and gas. That was agreed to at that time. It took a number of years to negotiate the accord, but the main purpose of the agreement in principle was to transfer oil and gas.

I'll let Harmit talk to you about the other activities that have taken place vis-à-vis other minerals.

Mr. Derrek Konrad: I guess this goes back to what I talked about in terms of finality.

Mr. Normand Tremblay: Finality is—

A voice: A relative term.

Mr. Derrek Konrad: Okay, carry on.

Mr. Harmit Bajaj: In 1993 the oil and gas accord was the only one at the time that was negotiated with the Yukon government. Currently the federal and Yukon governments are discussing the details of transfer powers for all other natural resource management from the federal government over to the territorial government. That's one undertaking we have made to provide you with the update on where we're at.

Mr. Derrek Konrad: Okay. I guess that's it.

[Translation]

The Chairman: Thank you, Mr. Konrad. Thank you, Mr. Fournier.

The meeting is adjourned until 6 or 6:15 p.m., after the 5:45 p.m. vote which is to take place tonight. We'll meet here, in Room 705 of the La Promenade building.