AANR Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS, NORTHERN DEVELOPMENT AND NATURAL RESOURCES

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES, DU DÉVELOPPEMENT DU GRAND NORD ET DES RESSOURCES NATURELLES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 22, 2001

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[English]

The Chair (Mr. Ray Bonin (Nickel Belt, Lib.)): I'll call the meeting to order. We are here today to deal with Bill C-37, an act to facilitate the implementation of those provisions of first nations claim settlements in the provinces of Alberta and Saskatchewan that relate to the creation of reserves or the addition of land to existing reserves, and to make related amendments to the Manitoba Claim Settlements Implementation Act and the Saskatchewan Treaty Land Entitlement Act.

We have with us today, from the Department of Indian and Northern Affairs Canada, Mr. Michel Youssef, director, special implementation projects directorate; Terry Henderson, director, special implementation projects directorate; Ralph Keesickquayash, legal counsel; Jim Sisson, director, claims and Indian government, Alberta region; and Evelyn Shalapata, director, treaty land entitlement. Thank you all for being here.

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We will begin with a short presentation, followed by questions from members.

Mr. Terry Henderson (Director General, Implementation Branch, Claims and Indian Government, Indian and Northern Affairs Canada): Thank you, Mr. Chairman.

For the record, I am Terry Henderson, director general of the implementation branch, under claims and Indian government, for the department. That's a correction to what you read out.

I have a number of colleagues with me, whom you've already introduced.

I'm happy to be here to address Bill C-37, the proposed Claim Settlements (Alberta and Saskatchewan) Implementation Act. Some committee members will be familiar with the provisions of this bill, having seen similar proposals when this committee studied part 2 of the Manitoba Claim Settlements Implementation Act in March 1999. By the way, I also had the pleasure of addressing this committee on the Manitoba bill.

Mr. Chairman and members of the committee, I suggest to you that Bill C-37 is a good news bill that will benefit first nations and other Canadians who have developmental interests on proposed reserve lands in Alberta and Saskatchewan. First nations will see economic development opportunities on their proposed reserve lands enabled even while the land is being added to reserves. In turn, third parties who hold existing interests in those lands, or who wish to enter into new ventures with first nations, will have commercial certainty in their deal-making. Finally, Canada will be better able to live up to its claims-based reserve expansion obligations.

While the bill is not a panacea for all the complexities of the additions to reserve process, it does provide a useful tool for the parties involved in the development of the proposed reserve lands. Specifically, the bill facilitates and accelerates implementation of reserve expansion commitments under Alberta and Saskatchewan claim settlements. It provides a variety of mechanisms for accommodating existing or proposed third-party interests on selected lands even before the lands have been purchased by the first nation.

In other words, first nations will be able to negotiate with third-party interest holders and conclude agreements with them at the same time as they are negotiating the acquisition of the land with the title holder. Members will readily appreciate the advantage of ensuring issues are dealt with in advance of investing money to buy lands.

Because the accommodation of third-party interests will be possible during the processing of lands-to-reserve status, it will also be possible to develop those lands during this same period. This will mean first nations will be able to select economically viable lands, perhaps lands that are already in development, instead of simply selecting lands that have the fewest third-party interests with which to contend.

In another time-saving measure unrelated to dealing with third-party interests, Bill C-37 also proposes to empower the Minister of Indian Affairs and Northern Development, rather than the Governor in Council, to confer reserve status on lands selected pursuant to such settlements. This will further streamline the reserve creation process.

To put the potential impacts of this bill in context, the 24 existing Alberta and Saskatchewan claim settlements amount to 2 million acres in unimplemented reserve expansion commitments, large amounts of which have been selected and are being assessed under the department's additions to reserves policy. Most selections, if not virtually all, are affected by third-party interests or new development proposals. These commitments, coupled with some 1.5 million acres under 14 existing Manitoba claim settlements listed in the Manitoba Claim Settlements Implementation Act, amount to 97% of Canada's outstanding claims-based reserve expansion commitments nationally. These activity volumes are what have led the Government of Canada to recommend prairie-based legislation.

It is also important to note that the bill's application will be triggered by individual first nations opt-in. First nations will be able to choose between adopting the provisions of Bill C-37 in relation to their claims settlements or continuing to use existing processes.

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For example, if a first nation has more than one settlement agreement, it might choose the Bill C-37 approach for one agreement and, for reasons of its own, the existing mechanisms for the other.

I would also point out that Bill C-37 does not give effect to the claim settlements; it merely facilitates their implementation. These settlements, both existing and future ones, have full force and effect as of their respective dates of execution.

Finally, I must point out that Bill C-37 is not similar in all respects to the Manitoba Claim Settlements Implementation Act, since the bill also includes amendments to other legislation, including the earlier Manitoba legislation. These amendments are intended simply to improve the language, clarity, and application of the affected legislation and to ensure complete consistency with Bill C-37, if and when it becomes law.

I thank you for the opportunity to address this committee on this important bill. My colleagues and I will now endeavour to answer any questions committee members may have. I thank you.

The Chair: Thank you very much.

We'll proceed directly to questions from members. We're not numerous, so we'll do five-minute rounds, which means five minutes for the question and the answer. If you see me reach over and turn on this light, it's because you're out of time. I invite everyone to conclude quickly after that, otherwise I'll do the job that I'm paid to do.

We'll start with Mr. Keddy.

Mr. Gerald Keddy (South Shore, PC/DR): Thank you, Mr. Chairman.

I'd like to welcome our witnesses here this morning.

I have a couple of questions on the development of Bill C-37. It's quite obvious there's a fair amount of consultation done with the Provinces of Alberta and Saskatchewan and with first nations involved. I'm not as clear on what other groups may be involved, and so-called third-party groups, including not only the local landowners and farmers, of course, but also municipal organizations and municipalities. Could you give me a little bit of background on that?

Mr. Terry Henderson: Okay, I'd be pleased to.

Perhaps I can turn to my colleague Mr. Youssef to respond.

Mr. Michel Youssef (Director, Special Implementation Projects Directorate, Indian and Northern Affairs Canada): Mr. Keddy, I can tell you that principally in Alberta, when these emerged from the Loon and Alexander treaty land entitlement settlements, they were lands that had third-party interests. In those settlements there was a commitment to recommend legislation of this nature, and the third parties were knowledgeable that these mechanisms would address their concerns.

In terms of broader consultations with third-party interest groups as organizations, that did not necessarily occur, but they are cognizant that these mechanisms are intended to give them deal-making certainty, which is what they've been looking for.

Mr. Gerald Keddy: The reason I asked the question is because I think it's important to have third-party consultations if you involve third parties in this process. We have a process here that you've explained allows third-party interest on lands that will become reserve lands. That's an interesting dovetailing of concerns. I think it's important and allows a lot more flexibility in the bill. Don't get me wrong; I support it. But I question how you go about involving that dynamic in the bill without actually involving the third-party interests ahead of time.

Mr. Michel Youssef: I can tell you, and I believe our colleagues in the regions would help me out here, over the years of implementing claim settlements, where third-party interests have been an issue, everyone realized that parties, first nations and the third party, were able to reach terms on what they wanted to put in place but had no legal capacity to put it in place. Everyone was cognizant, through the course of years, of what solutions needed to be brought to bear, so they've been expecting this.

In terms of consulting them on the draft itself, that did not occur, but everyone knew how these mechanisms were going to work and the general thrust of them, and they were supportive of that.

If I could turn to Evelyn Shalapata and Jim Sisson, from the regions...

Ms. Evelyn Shalapata (Director, Treaty Land Entitlement, Indian and Northern Affairs Canada): Thank you.

In the Saskatchewan region, when the settlements were done, there was full consultation with municipalities—

Mr. Gerald Keddy: Okay, good.

Ms. Evelyn Shalapata: —and with cities, with the people involved.

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In addition to reserve activities, we do have canvasses and stuff with the province, and letters are written to the RMs and municipalities when there are reserve creation activities in their areas. So there is full consultation.

The Chair: Thank you.

Anyone else?

Mr. Jim Sisson (Director, Claims and Indian Government, Alberta Region, Indian and Northern Affairs Canada): I would add, speaking from the Alberta perspective, that we do our consultations on a settlement-by-settlement basis, so the third parties are dealt with at that time.

What this bill does for us is it gives us more tools, and better tools, for having those discussions with the third parties.

Mr. Gerald Keddy: Can you explain the mechanics of that?

Mr. Jim Sisson: The basic point is that, for example, in Alberta, if you're dealing with subsurface oil and gas interests, at this point in time you have a change when the land comes over in a settlement, and it comes from the provincial system. It has to go through an Order in Council process where it's then turned over to the federal government. In the current system there is no mechanism by which we can transfer these interests seamlessly from one to the other. Effectively, you have a gap in the middle where a third party does not have a legal piece of paper that would protect their interests. So it creates some challenges in terms of trying to deal with this.

Part of what we've been doing now is using the federal Real Property Act as an intermediary step. This bill would allow us to go directly to a reserve land tenure document so you would be able to transfer a provincial land tenure document into an Indian reserve-based land tenure document.

The Chair: Does anyone on the government side have a question?

Mr. Godfrey.

Mr. John Godfrey (Don Valley West, Lib.): You can appreciate that perhaps some of us are not as well briefed as we ought to be, so you will have to bear with us.

I'm coming at this cold, and I'm trying to understand whether the amounts of land that have been designated or have been targeted as possible reserve areas are specific bits of land, or is it just land in general and then we're going to sort out the details later? How does that work?

Mr. Terry Henderson: I can answer generally, and then if there is more detail required I'll turn to my colleagues.

Typically, in a settlement that involves land, either land is selected and provided from provincial crown land, in these cases, or funds are provided to the first nation to go out and purchase lands on a willing buyer/willing seller basis. Once that purchase is consummated, those lands will move through the additions-to-reserve process and become reserve lands pursuant to the Indian Act.

What we are dealing with here is the ability of the first nation to acknowledge the third-party interests are there and to accommodate those third-party interests. In a normal situation the first nation would be obliged to buy out the third-party interest, but if a first nation doesn't desire to do so and the third party doesn't desire to do so—and the third party is clearly not obliged to sell out its interests—then the first nation will have a mechanism, a tool, to enable it to provide commercial certainty to the third-party interest holder that its interest will be respected once the lands have become reserve.

Mr. John Godfrey: Yes, that helps a lot.

What happens to the mineral rights? I think you were making some allusion to this, that since 1905 the rights in both Alberta and Saskatchewan have belonged to the province. If it becomes first nations land, do the mineral rights follow along, or do they remain with the province?

Mr. Terry Henderson: Mr. Youssef.

Mr. Michel Youssef: Again, minerals would fall under the category of willing seller/willing buyer. In other words, if the first nation is able to acquire, either from a private mineral title holder or from a province, the minerals, along with the surface lands, then those would be part and parcel of the addition. If it was just the surface that was being added, then the minerals would remain under provincial jurisdiction.

By and large, most of the lands that are being added, I believe, will be inclusive of minerals. My two regional colleagues could confirm or correct that, if that's wrong.

Mr. Jim Sisson: That's correct.

Mr. John Godfrey: My next question would be, before this bill came forward there was a process taking place, and there were transactions being made and lands being added without this bill, or was everything... In either Alberta or Saskatchewan over the last 20 years, how much land has actually been added to reserves through the old process?

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Mr. Michel Youssef: I will give you a general answer and then the specific details can be provided by my friends. In Saskatchewan we've had about eight years now under the Saskatchewan Treaty Land Entitlement Framework Agreement, which originally committed to setting apart approximately 1.5 million acres.

Because of the structure of that agreement, most of the initial lands were what we classify as shortfall acres, which had per-acre price limits, so they were picking mostly rural lands that had fewer third-party interests and they were larger chunks. They've set apart in the first five years, I believe, just under 300,000 acres, about 275,000 acres. Now as we're moving toward what they call equity acres, which have no price limits, they're getting more frequent small selections and that's multiplying the amount of work.

In Alberta, I believe, generally speaking, as Mr. Sisson indicated, the lands are identified at the time of settlement with the province, primarily when we're talking about treaty land entitlement. For those they're into an implementation phase almost right away, because at the point of settlement they've determined how they're going to deal with all interests. They could certainly have done so a little faster with these mechanisms, but they've managed to do this using things like the Federal Real Property Act, which aren't completely satisfactory, or certainly don't provide the certainty this does.

In terms of more specific numbers, maybe Ms. Shalapata and Mr. Sisson can provide you with more numbers.

Ms. Evelyn Shalapata: The numbers for reserve creation, let's say from 1992, are in excess of 434,000 acres in Saskatchewan.

Mr. John Godfrey: Out of a total target number of how many?

Ms. Evelyn Shalapata: About 2 million.

Mr. Jim Sisson: The situation in Alberta is that there are approximately 188,000 acres that have been designated as settlement lands in fee land entitlement agreements. We're going through a process of implementation as we've been moving forward, and there are a few agreements that are relatively recently signed where we're not finished that. So we have roughly 30,000 to 40,000 acres of land left to convert into reserve status.

The benefit of the legislation is that it gives us better tools to deal with that question and will speed the process up.

The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you.

My question is more general. We talk a lot about specific claims versus comprehensive land claims. First I'd like to know what are specific claims and then what are they in relation to a comprehensive land claim. When you talk about the land that's being acquired, is that in turn parallel to the treaty agreements, or is that part of the settlements you're working on, where you go along and you finally decide at the end what amount of land you're talking about?

Thank you.

Mr. Terry Henderson: I will attempt the answer on that one, Madam. The term “claim” is used for both, as you mentioned, the modern-day treaty or comprehensive land claim as well as specific claim and for treaty land entitlement, which is a type of specific claim. It's almost unfortunate that the same term is used because they are quite different undertakings.

A comprehensive land claim agreement is designed to clarify the use and ownership of lands and resources that had not previously been clarified through some prior treaty, so they do become in fact a modern-day treaty.

A specific claim relates more to a past infringement or difficulty, administrative error, and represents a grievance in fact of a first nation. So the Government of Canada, rather than dealing with those through the courts, is negotiating the settlement, the resolution, of these grievances through the specific claims process. We sometimes settle a specific claim through the writing of a cheque and on receiving full and final release. In some cases there is a cheque that's signed, but also there is a commitment that the first nation can go out and select land or buy land on a willing buyer/willing seller basis and we will convert that land to reserve status through that process.

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Is that helpful, or would you like further distinction of this?

Ms. Nancy Karetak-Lindell: I guess you're saying it's a specific grievance so it becomes a binding and final settlement and there's no opportunity for the band to expand. As their finances get better, can they go out and buy more land, or is there a final size associated with each of these specific claims?

In the willing buyer/willing seller concept, can they simply keep on buying as much land as they want because their finances allow them to? Or do you have a final size amount to go with each claim?

Mr. Terry Henderson: I could probably attempt an answer to this, but I suspect my colleague from Saskatchewan could do a much better job, so I'll turn to her.

Ms. Evelyn Shalapata: Most agreements have a definite amount of land they can purchase or turn to reserve.

In the Saskatchewan framework agreement they have a specific amount of land, which we call shortfall, that they have to purchase. This is the crown's obligation or Canada's obligation for the amount of reserve they were promised in their treaties.

They can, however, buy additional land up to what we call the equity amount, which is identified specifically in the framework agreement. Most agreements are identified in this way. Otherwise they have to go through the normal addition-to-reserve process. They have to identify Canada's obligation in moving land to reserve.

The Chair: Mr. Vellacott.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): I'll defer to Dave if that's possible.

Mr. David Chatters (Athabasca, Canadian Alliance): Okay.

I know historically that at least there's been a huge problem in Saskatchewan. We haven't faced this problem in Alberta yet, but we may. It may be coming. This process has removed... you talked about 1.5 million acres and some different figures. But clearly substantial amounts of land have been removed from the tax base of rural municipalities in Saskatchewan, creating some huge budgeting problems for rural municipalities in Saskatchewan.

Does this bill in any way address this problem and where we go? I know Alberta, up to now, at least, has transferred crown land to deal with these treaty land entitlements, but as we go forward, for reserves that are in fact surrounded by municipal or privately held land, and as we go to this willing buyer/willing seller system, we could face this same problem in Alberta. Is this addressed at all?

Mr. Terry Henderson: This bill does not directly address the question of tax loss, or tax loss compensation, or anything of that nature—I may turn to my colleague again for specifics—but we have an accommodation in the province of Saskatchewan with the provincial government. It was undertaken two to three years ago. The province of Saskatchewan is now accommodating the municipalities with respect to any tax loss they might be suffering.

Ms. Evelyn Shalapata: The framework agreement specifically identifies tax loss for rural municipalities. In regard to the urban municipalities, there has to be an agreement negotiated between the two parties on services and such. In the framework, it's 22 times their municipal tax base from the previous year they are funded for. Canada has a fund to address this.

Mr. David Chatters: Is the 22 years paid in a lump sum?

Ms. Evelyn Shalapata: Yes.

Mr. David Chatters: Then what's Alberta's position? Where are we going there?

Mr. Jim Sisson: In Alberta, we have not had to deal with this issue specifically yet.

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Where we have come close to having to deal with it—we're looking at actual purchase of land on a willing buyer/willing seller basis—we've taken the direction that the first nation has to work out a municipal services agreement in the tax law agreement with the municipality involved. Before it would be implemented, we'd have to have an agreement between the parties.

Mr. David Chatters: That's all for now.

The Chair: Anyone else in the first round who hasn't spoken yet?

Mr. Keddy.

Mr. Gerald Keddy: Thank you, Mr. Chairman.

On the issue of the third-party interest, I understand the bill doesn't allow for expropriation, given willing buyer/willing seller, but it doesn't specifically exclude it either. Am I correct?

Mr. Michel Youssef: The bill does not specifically exclude it. However, as was mentioned earlier, the settlements themselves specify whether it will be crown land or willing seller/willing buyer. That's the binding protection against expropriations.

And certainly in terms of third-party interests, this might be on any lands purchased. As well, the additions-to-reserve policy and the claim settlements require an accommodation to be reached with the third party. It has been the case when accommodations could not be reached that the particular land selection has been on hold and stalemated until we could resolve the problem. Oftentimes the problem has simply been the inability to give effect to their intentions to put a binding agreement in place.

So the short answer is the agreements do not permit expropriation. They require a willing seller/willing buyer and the policies and the agreements require accommodations of any interests.

Mr. Gerald Keddy: Okay. Following up on this, if there's no expropriation in moving lands to reserve, I would expect there's also nothing in this agreement that prevents lands being held by first nations outside of reserve lands. They could purchase lands that would still be held in the private interest, if you would—lands that would be taxable and would fall under all the rules and regulations of local governments and still be owned by the first nation. That's not prohibited.

Adjacency is the other issue. I understand the reserve lands don't have to be held in one contiguous piece; the adjacency principles do not need to be followed.

Mr. Michel Youssef: Again, given the quantum of land, particularly for TLE purposes, it would have been unrealistic to expect it to be contiguous. Also the nature of the obligation we're fulfilling, a treaty-based obligation affecting a treaty area... the right to choose wherever they could locate lands of economic viability or whatever their criteria might be for selecting lands allows them to pick anywhere.

Mr. Gerald Keddy: There are two principles in place here: the principle of a treaty land allotment that had not been fulfilled, where first nations had never been given their proper allotment of treaty lands; and then the principle of new lands that have been acquired being granted reserve status.

Mr. Michel Youssef: Yes.

Here's one example I could also give you. Specific claims, as Mr. Henderson indicated, often deal with a very specific grievance. For example, you might have poor, improperly followed procedures for the surrender of an older reserve. The settlements in these cases might provide that, given that we're replacing, if you will, a reserve in a particular location, they should look within this vicinity.

Sometimes the settlements do limit the geographic scope where land can be chosen based on the nature of the grievance being settled. I don't know if this helps at all.

Mr. Gerald Keddy: I just wanted to clarify it, to make sure this was correct.

Mr. Michel Youssef: Yes.

Mr. Gerald Keddy: Thank you.

The Chair: Mr. Vellacott.

Mr. Maurice Vellacott: Yes, thank you, Mr. Chair.

At second reading the minister said that Bill C-37 would, in his words, lead to partnerships between first nations communities and private sector interests of the provinces of Alberta and Saskatchewan. Since similar legislation is already in place in Manitoba—and I'm jumping off from the words he has used here—to what degree have new economic partnerships formed in Manitoba because of the “mirror” legislation there?

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Secondly, what do these partnerships look like? Will they be long term, or is it when a current lease runs out they're not going to be renewed?

It's an interesting statement. I guess I want to find out how much of an economic tool this bill actually is, as was said by the minister, or is it more an incidental thing and maybe should be given less emphasis than I'm reading into his comments?

Mr. Terry Henderson: That's a very good question and a difficult one to answer at this point in time.

The Manitoba Claim Settlements Implementation Act was just enacted, was brought into force in October 2000. Since that time it has not been needed per se. We've conferred with our Manitoba colleagues. There are a number waiting in the wings that will presumably be using these tools in the very near future, over the coming months, but to date there has not been one that has needed the provisions of the bill.

Mr. Michel Youssef: Perhaps I could add to that. In a sense the land selections that have been made in Manitoba, as I understand it—and I don't have our regional colleagues from Manitoba here—have been large amounts, I think, of about 400,000 acres selected under that Manitoba framework agreement. They are being assessed under the agreement terms and addition-to-reserve policy terms and have been dealing with other issues outside of third parties. So they haven't reached a point where they needed a pre-designation vote, for example, pre-reserve designation vote or permit under this bill. That's coming.

What I can say, to answer your question, is that we certainly heard anecdotal evidence that the first nations in Manitoba have now felt free to pick lands wherever they are, no matter what interests are on them, and have felt free to approach industries with a view to beginning the process of negotiating terms that will ultimately be part of a designation, part of a pre-reserve designation. So they're in the negotiation phases, if you will, while they're moving the lands to reserve.

I cannot give you concrete examples, but my understanding from our regional colleagues is that the lands that are in the process of being evaluated have developmental interests on them in many cases. That has been spurred on by the knowledge that they don't have to worry about how to put the agreements in place. When it comes to the point where they will need to put them in place, they have the tools.

I don't know if that helps.

Mr. Maurice Vellacott: Do I have a bit more time?

The Chair: Yes.

Mr. Maurice Vellacott: Maybe this has been answered. I'm sorry, I was late. I ended up at the wrong place.

In the consultation process, were municipalities, other parties and so on—we talked a bit about this the other day, I think. To what degree were they consulted? They were part of this process in some way, I gather, sat at meetings, and so on. Can you give us a sense of how that looked, and what were some of the concerns they were expressing? Have those concerns been addressed in the legislation?

Mr. Michel Youssef: Earlier on I mentioned that over the years of implementing settlements in the two regions, particularly in Saskatchewan, with the volumes in the 1992 framework agreement, municipalities and anyone having an encumbrance on lands have been involved in the discussions on how to accommodate those encumbrances. So they were very cognizant of the kinds of mechanisms needed, that are contained in this bill, and in that sense are advocating for mechanisms to better accommodate interests. But in terms of actually seeing the drafts of these bills, they did not.

When I mention municipalities, I want to be very clear that municipalities, like any third party, could have an interest in land. For example, back taxes that are not paid run with title, and you have to clear those before you get them.

There are also concerns such as future loss of taxes, municipal tax loss, reduction in their tax bases, or harmonization agreements. Those are dealt with under the additions-to-reserve policy and the claim settlements. They're not addressed by this bill, but they're certainly part and parcel of the process that applies separately.

I only mention that because those issues of municipalities would not have been part of these consultations. What would have been part of these consultations would have been the mechanisms for replacing agreements. Certainly, they've been cognizant of the need for these tools for many years now.

Mr. Terry Henderson: May I add? No third party is obliged to do anything as a result of this bill. This bill simply provides a tool that will enable first nations to accommodate third-party interests, and there's no guarantee.

What we are seeing here is a bill that is virtually a tool that will be an enabler. It will remove certain obstacles that exist right now in the reserve creation process, with respect to third parties and other kinds of things. It will enable the first nations to move forward economically. But there's no guarantee we will see socio-economic benefits as a direct result attributable to the bill.

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Mr. Maurice Vellacott: I want to ask a question, to get it on the record. I know we've asked this at briefings before. On the whole matter of why Bill C-37 was introduced, rather than amending the Indian Act, can you give us a statement about that again?

Mr. Michel Youssef: Of course, the Indian Act is national in scope. This bill, like the Manitoba bill, is regional in scope and claims-focused. To introduce these types of mechanisms, which are essentially parallel mechanisms in the Indian Act, would have made it very complex when we were trying to address and deal with the consultations and the focus in Alberta and Saskatchewan.

It made it clear that we were addressing regional issues, where the consensus was in Alberta and Saskatchewan, and to put them into the Indian Act would have clouded that distinction and scope. It would have made the drafting very difficult.

Mr. Maurice Vellacott: Would you have had more opposition? I guess I'm not totally understanding your answer. Are you saying if it had applied across the country, because it's more regional in focus in dealing and resolving issues, it might not have had application in other places, or there might have been some nuances, different things, in other provinces that would not have been factored into it?

Mr. Terry Henderson: It's difficult to say what might have happened across the country. It would have certainly added to the complexity of drafting the bill because there would have been far more consultation partners involved.

Clearly, what drove us to recommend a regional-based bill, a prairie-based bill, was need. I said in my opening remarks that about 97% of the claims-based additions to reserve occur in the three prairie provinces. We've already dealt with Manitoba, through the Manitoba bill that was enacted last October.

The support is there. On the consultations we had, we did not consult directly with third parties; we've acknowledged that. But certainly the first nations impacted by this, the provinces, and the other groups—clear, direct stakeholders to this—have been consulted and are supportive of the bill. Basically, that's why we proceeded with this.

Mr. Maurice Vellacott: Very quickly, what about bands that have treaties across borders, like Treaty 8 between B.C. and Alberta? How are they affected in this situation? I'm not sure if that's been posed yet.

Mr. Michel Youssef: Some of the treaty land entitlement settlements have clauses about being able to select lands in other provinces. For example, in the framework agreement in Saskatchewan, the Onion Lake First Nation may select lands in Alberta.

Under Bill C-14, the Manitoba Claim Settlements Implementation Act also has provisions for selecting lands on a willing seller/willing buyer basis in the neighbouring provinces of Saskatchewan and Ontario, with the consent of the provincial governments. So it depends on the terms of the settlements where they can select lands.

The Chair: This will conclude. I have about eight minutes, so we'll have Ms. Karetak-Lindell, then Mr. Finlay, and then we'll have closing remarks from our guests.

Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: Thank you. I just have a very short definition question.

I have a paper in front of me entitled “Treaty Land Entitlement First Nations” for Saskatchewan. It mentions shortfall acres, equity acres, and honour acres. I understood what you said about the shortfall, but perhaps you can further explain to me the equity and honour definitions of the acres that fall into those two categories.

Thank you.

Mr. Terry Henderson: I'll once again turn to my colleague from Saskatchewan to speak about the Saskatchewan Treaty Land Entitlement Framework Agreement, and the contents thereof.

Ms. Evelyn Shalapata: The framework agreement was a negotiated agreement. I don't have the calculations in front of me, but I can get you the calculations after. The amount of land they would have been entitled to is what we call the shortfall. Equity acres is an additional number of acres they can turn to reserve because of loss of use of that land. That's how that was calculated. It's based on the population numbers and things like that—the number of years they weren't entitled to that land.

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Honour acres was a Saskatchewan-based formula. The Province of Saskatchewan and first nations came up with that formula in 1987, and that's when the honour acres came into play. In the treaty land entitlement framework, if the honour acres were higher than the equity acres, then the honour acres were used.

Ms. Nancy Karetak-Lindell: I don't understand your last sentence about one being higher than the other. Could you just explain it a little?

Ms. Evelyn Shalapata: The equity formula was based on the honour formula, except they used a different population-type scenario. Where there was a higher acre amount through the honour acre formula, that's what was used in the framework agreement.

Ms. Nancy Karetak-Lindell: Thank you.

The Chair: Mr. Finlay.

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

I'm looking at page 5, Mr. Henderson, of your presentation to us. You've explained that in Alberta and Saskatchewan there are about two million acres of unimplemented reserve expansion commitments. That is, within the existing agreements there are two million acres yet to be defined, to be transferred.

Then you say that many are affected by third parties and:

These commitments, coupled with some 1.5 million acres under 14 existing Manitoba claim settlements listed in the Manitoba Claim Settlement Implementation Act, amount to 97% of Canada's outstanding claims-based reserve expansion commitments nationally.

I take it that refers to expansion commitments that have been agreed to, and most of the additional—check me if I'm wrong—would be in Ontario, Quebec, and the Maritimes. Surely if we get to B.C., it isn't only 3% that is left.

I know we aren't at the same stage in B.C., but can you just clarify for us why there is what looks like a big difference to me? I know we have a B.C. treaty commission and there are a lot of tables going on there, and it's going to involve land. What's so different? Is it because the land is held in right of the Queen in B.C. and not of Canada? It's not really crown land?

Mr. Terry Henderson: In B.C., we're largely talking about a different process. Ms. Karetak-Lindell asked for a clarification on the distinction between comprehensive land claim and specific claim. In B.C., the British Columbia Treaty Commission process is dealing with comprehensive land claims because there are virtually no historical treaties, except for a part of Treaty 8, which moves into part of British Columbia in the northeastern tip.

Because there are no historical treaties in British Columbia, pursuant to Supreme Court decisions of the past, the aboriginal right exists. It's been undealt with, unextinguished. There's a need for us to negotiate the clarity and certainly the use and ownership of those lands. That's not to say there are not specific claims. This bill deals with fulfilling reserve expansion commitments under specific claims and treaty land entitlement agreements, which are forms of specific claims.

There are a few specific claims in British Columbia, but the treaty land entitlement issue exists primarily on the prairies in Manitoba and Saskatchewan, and to a certain extent in Alberta. A bit of it shows up in Ontario, etc., but it's limited.

Is that helpful, sir?

Mr. Michel Youssef: I would add that you're quite right, Mr. Finlay, when you say the figures deal with settled claims. I suppose what skews it to 97% is that the treaty land entitlement settlements in the prairies have made that figure so high. There have been some specific claim settlements in Ontario and Quebec and the rest of the country, but when you couple those figures, those commitments, with the commitments in TLE and specific claims in the prairies, you arrive at a settled commitment, 97% of which is in the prairies.

Those volumes drove the consensus, if I can put it that way, in the prairies that everyone was very cognizant of the problems. The volumes led to understanding and consensus.

• 1150

Mr. John Finlay: That's yet to develop in B.C. to the same extent.

Mr. Michel Youssef: Again, we don't know what the treaty process in B.C. will result in, whether it will be reserve lands or whether it will be like the Nisga'a territory, which is not reserve lands. We don't know whether the treaty process there will require these types of mechanisms, but there will be some specific claims that will have reserve expansion written into them.

Mr. John Finlay: There are some treaties on Vancouver Island, right?

The Chair: We'll come back to our bill.

Mr. John Finlay: Thank you.

The Chair: Mr. Chatters, you may ask a short question.

Mr. David Chatters: We're just having a discussion here, and something is not quite clear to me. It is clear that what we're talking about here is treaty land entitlement, lands that are moved into the reserve. Does this bill also accommodate a situation where a band has, through other sources—resource income or whatever—enough wealth that they can go out and buy any amount of land as any other Canadian might through a willing buyer/willing seller transaction? Does this bill then allow them to move that land into treaty lands although it's not part of a treaty land entitlement?

Mr. Terry Henderson: The short answer is no. If the commitment or the desire to move lands is not pursuant to a commitment under a specific claim or a treaty land entitlement agreement, then this bill will not apply.

Mr. David Chatters: So currently there isn't a mechanism to do that, to turn land bought through a willing buyer/willing seller transaction into treaty land. Is that right?

Mr. Terry Henderson: There are mechanisms, but they are far more cumbersome and they would not benefit from the ability to accommodate third-party interest holders in the way this bill will allow us to. Perhaps I could turn to... if you would like some more precision on that.

Mr. Michel Youssef: Again, these mechanisms are superimposed over the addition-to-reserve policy as a facilitation for third-party interest and for ministerial reserve creation. Underlying the addition-to-reserve process and policy is that when a first nation came forward, they would not have these superimposed powers; they'd have the addition-to-reserve policy, whereby if there's no legal obligation on Canada to move the land, then there are other justifications.

As you say, first nations can, if they're willing, use their own funds to buy land. Then all the other conditions—environmental assessments, survey work, and dealing with the third parties—are dealt with by the first nation. If all those conditions are met and you reach agreement at the end of the day that all issues under the policy are satisfied, they would move. So there are processes. But if those lands had third-party interests on them, the first nation would have to, as Mr. Sisson indicated earlier, use things like the Federal Real Property Act or could maybe just buy out the interest on agreement with the third party and cancel it to get clear title. Those are the things they would have to do.

Mr. David Chatters: Thanks.

The Chair: You may have a one-minute closing remark if you need it.

Mr. Terry Henderson: I will pass on that, Mr. Chairman.

The Chair: We appreciate it, because we need five minutes for the technical people to revert to cameras and have everything ready for our next meeting. Thank you very much for being here with us. If we need to call you again, we will, but it seems as if everything is pretty straightforward.

Thank you very much.

Mr. Terry Henderson: Thank you, Mr. Chair.

The Chair: We will suspend proceedings for five minutes, and we will start in five minutes sharp.

• 1154

• 1203

The Chair: We will resume proceedings.

This is a very special meeting for all of us. Before I get into the formalities, I'd like to mention that I have invited to sit with us at our table Senator Ione Christensen, who is from the Yukon and who is a former Yukon commissioner. We're happy to have you sit with us as an observer. Unfortunately, we will not allow the senator to participate, but I know you will have an opportunity to participate in the Senate.

Because of the great honour we have today, I've asked our colleague Larry Bagnell, the MP for the Yukon, to formally introduce our very special guest.

Mr. Bagnell.

[Translation]

Mr. Larry Bagnell (Yukon, Lib.): Thank you, Mr. Chairman.

[English]

I'd just like to introduce Premier Pat Duncan of the Yukon. She's a lifelong Yukoner and a very integral part of our community and society there. She was elected in 1996, was leader of the opposition, and is now premier of the government. I know Senator Christensen and myself have appreciated the fact that she's come to Ottawa a number of times to help us fight for things for the Yukon since she was elected.

Welcome to Ottawa, Premier.

• 1205

The Chair: Thank you, Larry, and welcome, Premier.

Also with the premier we have Kirk Cameron, deputy minister, executive council; we have Bill Byers, deputy minister of justice; we have Bernie Funston, consultant, and Pamela Muir, legal counsel, Department of Justice.

At this point I would invite my colleagues to do a round table. I would appreciate it if you would introduce yourselves to our very special guests and to the people watching this on CPAC.

Mr. Maurice Vellacott: My name is Maurice Vellacott, the Canadian Alliance critic for the party. I had the privilege of meeting the premier yesterday.

Mr. Reed Elley (Nanaimo—Cowichan, Canadian Alliance): I'm Reed Elley, senior critic for Indian Affairs for the Canadian Alliance and member of Parliament for Nanaimo-Cowichan. Welcome.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques Cartier, BQ): My name is Richard Marceau and I represent the riding of Charlesbourg—Jacques Cartier for the Bloc Québécois.

[English]

Mr. Gerald Keddy: I'm Gerald Keddy, member of Parliament for South Shore for the Progressive Conservative Party, and I'm the PC/DRC Coalition critic for Indian and Northern Affairs and for Natural Resources.

[Translation]

Mr. Gérard Binet (Frontenac—Mégantic, Lib.): Good morning. My name is Gérard Binet and I'm the Liberal MP for Frontenac-Mégantic. I had the honour of meeting you when you were last here and I'm truly pleased to see you again.

[English]

Mr. Benoît Serré (Timiskaming—Cochrane, Lib.): I'm Ben Serré, parliamentary secretary to Mr. Goodale and MP for Timiskaming-Cochrane, and I love the Yukon.

Some hon. members: Hear, hear!

Ms. Nancy Karetak-Lindell: I'm Nancy Karetak-Lindell, member of Parliament from Nunavut. I am very pleased to see you here at this committee.

The Chair: Thank you very much.

We will proceed to the presentation for between 10 and 15 minutes. I am a very courageous chair, but I don't have the courage to interrupt a premier when she speaks, so if you go longer I will allow that. Please carry on.

Ms Pat Duncan (Premier of Yukon): You're very kind, Mr. Chair. Thank you very much.

[Translation]

Thank you and good morning.

[English]

It is with pleasure and pride that I appear before you today on behalf of the people of the Yukon and the Government of Yukon to convey our interests in seeing Bill C-39 enacted by Parliament.

This is a great moment for all Yukoners. This new Yukon Act recognizes the evolution of governance in the territory over the past century. It affirms our place within Confederation. I propose to briefly outline the strengths and limitations of the bill from the Yukon government's perspective, allowing plenty of time for questions on aspects that may be of particular interest to you.

Bill C-39 does not change the Yukon's constitutional status. We will continue to be a territory. There is a new five-year mandate for elected officials that is consistent with the charter, a change from the present four-year limit. With this new limit, Yukoners will have the same relationship with the elected representatives provincial residents now possess.

The Yukon government recognizes that Bill C-39 will not please all of the people all of the time. We believe the compromises that have been made are fair ones and that at the end of the day it's up to Parliament, including the Senate, to decide what is in the best interests of Canadians. Bill C-39 is the next logical step in the political evolution of the Yukon.

With your permission, Mr. Chair, I would like to offer credit to the leadership of the Prime Minister and of Minister Robert Nault, as well of course as to our member of Parliament, Mr. Bagnell, and our Senator Christensen, for their leadership and efforts in ensuring this bill came before you.

The Government of Canada worked very closely with the Yukon government and first nations in developing this legislation. We appreciated the opportunity to participate in the process. Despite the occasional frustration on either side, the final text is better for the collaboration.

The primary reason for our support of Bill C-39 is that it enables devolution, the transfer of the resource management responsibilities now held by the Government of Canada to the Government of Yukon. Bill C-39 allows the Yukon to have administration and control over public lands and the resources found in and on those lands, such as forests and minerals, as well as to have rights in respect of waters. Technically, it is the commissioner who possesses this power, subject to the consent of the executive council and in accordance with Yukon legislation. If it pleases the committee, however, I will simply say “the Yukon” from here on in, for simplicity's sake.

The northern affairs program of the Department of Indian Affairs and Northern Development, or NAP, is currently responsible for lands and resource management in the Yukon. With devolution, the programs and services now offered by NAP will be offered by the Yukon government in much the same form for the period immediately following the transfer.

• 1210

With increased control comes increased responsibility. Yukon politicians will be accountable for decisions that are made. This represents a huge step forward, and it will be welcomed by Yukon legislators and those who do business with the Yukon government. The days of decisions being made in far-off Ottawa are gone. The Yukon government will also have administration and control over most public lands, consistent with the principle of local control over local resources.

There are some exceptions, however, such as first nation category A settlement lands, the surface of category B and fee simple settlement lands, Indian reserves, and national parks and conservation areas. There are a number of specific sites excluded that are used by other federal departments and agencies that are listed in detail in the transfer agreement.

Local control allows for more responsive management. That, in turn, we expect, will enhance our economic and social development. Administration and control is the key, and with it the Yukon has beneficial use of lands and resources. The Yukon government will have the jurisdiction to manage the terrority's development. Local politicians will be responsible to those who voted them into office.

The second critical reason for our government's support of Bill C-39 is that it reflects our current system of responsible government. The law will line up with reality. Up until now the Yukon government has enjoyed the privilege of governing the territorial affairs without a legal framework to fully support the situation. Bill C-39 modernizes the language of the existing legislation to reflect current language, institutions, and practices—for example, renaming the territorial council and continuing it in law as the legislative assembly.

Change of this scale seems to happen every 50 years or so. The 1898 act was wholly replaced in 1952, and here we are 50 years later doing the same thing.

There's an interesting footnote I'd like to add as well. In 1970, the 100th anniversary of the creation of the Northwest Territories, the minister of the day, the Honourable Jean Chrétien, directed the commissioner to establish an executive committee in the Yukon, the predecessor of today's territorial cabinet.

This committee included two of the elected territorial council members and increased the term of elected members to four years from three. It is fitting that the vision the Prime Minister had then of a responsible government evolving out of these small but critical changes will be fulfilled in the weeks to come with the passage of Bill C-39.

First nations interests are protected in both the new Yukon Act and the Yukon Northern Affairs Program Devolution Transfer Agreement. There are numerous non-derogation provisions in the DTA in keeping with its status as a contractual agreement. Bill C-39 reaffirms existing constitutional protections for greater certainty, consistent with other federal legislation.

As part of our involvement in developing the Yukon Act, we initiated a public consultation process. While Bill C-39 captures much of what was proposed there are a couple of issues raised by the special commission on the Yukon Act in 1999 that have not been dealt with. For example, some see a problem with title remaining vested with Her Majesty the Queen in right of Canada. As a government, we do not. We recognize that having administration and control with the right to beneficial use of land and resources gives Yukon all the benefits one would expect with ownership without the need to resolve the question of ownership itself.

It's important to remember that when they were first carved out of the Northwest Territories in 1905, neither Alberta nor Saskatchewan had control over their natural resources, even though they were provinces. Having administration and control without provincial title is a better choice for Yukon at this stage in our political evolution. Furthermore, the Yukon government is not interested in constitutional and legal wrangling over this issue at this time.

Another issue raised by some is the status of Yukon's offshore boundary, which is unchanged from the present Yukon Act. I would note that the territorial government never intended to deal with the issue of offshore boundary as part of devolution. Instead, the Government of Yukon is pursuing its economic and jurisdictional interests in the offshore through means other than the Yukon Act.

• 1215

The Canada-Yukon Oil and Gas Accord, 1993, provides for an interim offshore committee for this purpose, with work underway to operationalize the committee.

In addition to the points raised as part of this special commission process, a number of compromises were made in developing Bill C-39 in response to first nations concerns. Most Yukon first nations support the devolution transfer agreement. They recognize the social and economic benefits for all Yukoners that will come with local control over local resources.

A few first nations oppose Bill C-39, however, on the grounds that it insufficiently protects the interests of those without settlement agreements. The primary source of protection for aboriginal rights is found in the Constitution. The non-derogation clause in Bill C-39 reaffirms this, consistent with other recent federal legislation. It is asserted by some that there may be aboriginal rights or interests that are not constitutionally protected. This issue may yet be resolved, but not through revising the Yukon Act. More likely, that will be an issue dealt with by the courts.

There has also been an effort by some to prevent devolution in the traditional territory of those first nations without settlement agreements. This position has not been recognized by either the federal government or Yukon government for numerous reasons, not the least of which that it makes no sense in practice. It's important to note that the transfer agreement itself contains extensive non-derogation provisions. The logic of not allowing devolution because it may affect aboriginal interests despite these protections is questionable.

As well, the Kaska Nation made it clear earlier to negotiators that it will not consider its interests sufficiently protected until a satisfactory amount of land quantum is provided in the transboundary claim of its B.C. members. This is a land claims matter, not a devolution matter.

I would also note that land claims negotiations have recently resumed after the Kaska have put into abeyance a long-standing litigation against the Government of Canada. Members should also be aware that two of the Kaska Nation's five members are located in the Yukon.

A significant compromise worth noting in Bill C-39 involves the powers of the commissioner to act on instructions from the federal minister. This power, which is now found in the Yukon Act, is carried over to Bill C-39, but with the provision for it to be repealed in 10 years' time.

The Yukon government acknowledges the emotional attachment of first nations to this provision, for the comfort that it affords the government obligations to them will be upheld. The inclusion of a 10-year time limit reflects the reality that 20 years after it was signed, land claims built upon the umbrella final agreement should be completed, with implementation well under way.

The Yukon government would prefer this power to be abolished immediately as it contradicts the principle of responsible government; however, the 10-year repeal clause is a fair compromise between Yukon government and Yukon first nation interests.

It is to the Government of Canada's credit that this solution found its way into the bill before you.

The Government of Yukon recognizes that Bill C-39, together with devolution, will bring new challenges and some very tough decisions. These are challenges that we are confident Yukoners can face successfully.

Our government recognizes that devolution will result in increased pressure on Yukon politicians. The fact is that we're under considerable pressure to resolve resource management issues now even though they're not within our jurisdiction. With devolution, the Yukon government will be in a position to actually do something about these matters rather than redirecting the problems to Ottawa.

Another challenge will be risk management. The Yukon is much smaller than the Departmen of Indian Affairs and Northern Development and it has less financial capacity to deal with catastrophic events. The devolution transfer agreement provides for risk sharing on fire suppression. It also provides for the ability to review a few key arrangements such as environmental clean-up measures, net fiscal benefit calculations, and risk sharing on fire suppression.

The Yukon government can also seek, through our formula financing agreement, federal assistance beyond that provided by the federal Office of Critical Infrastructure Protection and Emergency Preparedness in the event of extraordinary circumstances that are beyond our fiscal means.

I should also note that the devolution transfer agreement allows the Yukon government to retain up to $3 million annually in revenues raised from the management of lands and resources transferred under this agreement without any impact on our formula. Any excess resource revenues will reduce the annual grant on a dollar-for-dollar basis.

• 1220

One other challenge worth mentioning at this time involves human resources. The Yukon government is very interested in having a majority of the current northern affairs program employees accept our job offers. We will need staff familiar with the federal system on board to ensure a seamless transfer.

We intend to address this human resources challenge in collaboration with the Yukon regional office through the transition process. Considerable work has already been done on human resource matters, including the joint staffing strategy and the Canada-Yukon devolution working arrangements framework.

Bill C-39 is an opportunity we welcome. It captures many of the hopes and aspirations of Yukoners for our future and for the future of our country.

A new Yukon Act and all that it represents is a matter of importance to Yukoners and a key priority for our government. Bill C-39 will serve as a modern constitution for the Yukon, providing as it does for the establishment of the basic institutions of public authority, the powers possessed by those institutions, and the processes to be followed in exercising those powers.

The addition of a requirement for Canada to consult with the Yukon government on future amendments to the Yukon Act is significant in this respect. We do have a rocky history of unilateral changes to earlier versions of the act, such as the 1918 amendment that abolished the elected council. Indeed, past practice, both in policy and in case law, was too often to view the Yukon as an agency of the federal government.

Given our political evolution over the past 20 years, this is an offensive as well as an inappropriate view. With recent decisions such as Fédération Franco-Ténoise v. Canada, it is clear that the courts now share our outlook.

With the devolution of resource management, most provincial-like responsibilities, once held by the federal government in the territory, will now be held by the Yukon government. This increased range of powers truly makes us a responsible government in our own right.

Bill C-39 affirms the Yukon's place in a 21st century Canada. Devolution is a catalyst for positive change throughout the Yukon government not limited to resource management. The Yukon government has also undertaken a renewal process, initiated in large part because we anticipated devolution would come to pass.

In concluding these remarks, I'd like to emphasize that the new Yukon Act provides the basis for a more respectful, more cooperative, relationship between the Government of Canada and the Government of Yukon.

With our new ability to administer and control lands and resources, the Yukon government, in future, will be able to revise resource management legislation to allow for a comprehensive, consistent approach that reflects Yukon values and priorities.

With the capacity to manage the resources that drive our economy, the Yukon government is hopeful that our dependence on federal funding through the formula agreement can be reduced over time. The federal government will always have a special stake in the north.

Federal policy has recognized that this continuing role is due to the north's geo-strategic importance, to its aboriginal people, to its unique environment, and to the important contribution the north may make in the future of national energy. As a territory, as a proud member of Confederation, this is a relationship that the Yukon respects and embraces.

I'd like to thank once again all members of the committee for inviting me to appear before you today.

I would be delighted to answer your questions, Mr. Chair.

The Chair: Thank you very much, Madam Premier.

It's very fitting that this historical moment, having a premier appear before committee, takes place in this room. This is the room where the party in power has their caucuses. So, historically, whichever party forms the government, this is the room where all the big decisions are more or less made.

We will proceed to questions. We will entertain four to five minutes per question, and that includes the response. Again, I will not interfere when the premier speaks. But when we run out of time, I will turn on my light to give you an indication. We would appreciate brief questions, brief answers, so that we can get more of them in.

I will start with Mr. Vellacott.

• 1225

Mr. Maurice Vellacott: Thank you, Mr. Chair.

I'm grateful for the opportunity to be a part of the big decisions. I don't often get that opportunity, but I'm thankful for that today.

I have a question with respect to reservation and disallowance, as to whether the federal government, at points in the past, has moved in and made big decisions that haven't been to the liking of Yukoners, particularly under clauses 24 and 25 of the bill, where they have the authority to direct the commissioner to withhold or to assent to a bill, to disallow any bill passed by the Yukon legislature within a year of enactment. Do you know if the Governor in Council has ever disallowed any Yukon statutes over the course of time, and if so, what would the circumstances have been if that was ever the case?

Ms. Pat Duncan: To my knowledge, sir, it's never been used.

Mr. Maurice Vellacott: Okay. Are you concerned about that? How do you feel in terms of this disallowance part? Is that a problem for you?

Ms. Pat Duncan: No more than any of the provincial jurisdictions are concerned about it. No, I am not.

Mr. Maurice Vellacott: I guess my other question follows that up with respect to whether, with the enactment of Bill C-39, you understand the legislature's powers to parallel or be equivalent to those of the provinces under the Constitution Act. Can you summarize for us where those powers would differ from the powers of the provinces?

Ms. Pat Duncan: The short answer to your question is that on subject matters such as our past in provincial legislatures, our legislature would deal with the same issues and would pass them. The federal statutes can trump, if you'll pardon the colloquial, a Yukon piece of legislation, but we deal with much the same legislation that any province is dealing with at any point in time. For example, we follow, of course, the Canada Health Act.

Mr. Maurice Vellacott: Are there areas of significant difference that you would like to have as powers, sooner or later, as you head down that road?

Ms. Pat Duncan: No. The only sort of last item for devolution that could be discussed at some point in the future might be the crown attorney model and a director of public prosecutions model, such as they have in Nova Scotia. But that is some way down the road, and right now we do have the administration of justice.

Mr. Maurice Vellacott: I'll come back later.

[Translation]

The Chair: The floor is yours, Mr. Marceau.

Mr. Richard Marceau: Thank you very much, Mr. Chairman.

Madam Premier, once again, let me just say how delighted I am to welcome you here today.

During your presentation, you spoke of public hearings. What kind of public hearings were held and how many people participated in the process, given that this is an important piece of legislation?

Ms. Pat Duncan: Thank you for the question.

[English]

I regret that I am not able to respond bilingually to your question.

The point I would like to make with respect to public consultation is that in 1999 there was a special commission on the Yukon Act that dealt with an earlier draft of Bill C-39 that's before you. Perhaps the most detailed response we could give to your question, in terms of the number of people who attended and so on, is to provide you with the report, if you will.

There were town hall meetings. There was a phone-in show for Yukoners and so on. Yukoners have been most active in this debate, as you can appreciate, at the level of how it affects them individually and what it means in terms of things like land use permits, firewood permits, and timber harvest agreements.

• 1230

Yukoners have already seen the effects of some devolution with the transfer of, for example, oil and gas in 1998. In the three years that Yukon has had control, we have managed to work with first nations governments and our government in developing an oil and gas industry to the point at which it has generated $25 million in private sector investment in the territory. That's something the people see and appreciate and welcome, and that is what devolution in Bill C-39 means to people. There has been a constitutional-type forum and discussion and Yukoners have had an opportunity to input—

[Translation]

Mr. Richard Marceau: Who organized this forum? Was it the Yukon Government or the federal government, or was it in fact a joint effort?

[English]

Ms. Pat Duncan: It was organized by the previous Yukon government to ourselves.

Mr. Richard Marceau: Okay.

Ms. Pat Duncan: I should add that this has been work of the previous government, when I was leader of the opposition and was here in a supporting role to the previous government. And our government has continued it as well.

[Translation]

Mr. Richard Marceau: How long has this process been in the works, that is to say, how long have Yukon governments, not just your government, but your predecessors have well, been calling for devolution?

[English]

Ms. Pat Duncan: It has been discussed for some time with federal ministers. It was initiated with Mr. Ostashek, in about 1992, in a formal devolution-type way. But in terms of the evolution of responsible government, you can go back to the 1979 Jake Epp letter. So it has been for some time that Yukoners have felt the need to recognize our own locally accountable government.

[Translation]

Mr. Richard Marceau: Does this bill have the support of all parties represented in the Yukon Legislative Assembly?

[English]

Ms. Pat Duncan: Yes, the official opposition, the New Democratic Party, supports this bill. The Liberal Party, our party in government, supports the bill. There is one lone Yukon Party member who has asked several questions with respect to offshore boundary and crown-in-right and some other constitutional issues per se. It has not come to a vote in the sense of putting for or against on the record. They've asked some questions in the legislature, but whether those questions are of a non-supportive nature or a political nature—

[Translation]

Mr. Richard Marceau: It is my understanding that this bill does not change the Yukon's constitutional status. It would continue to be a territory. As such, it would continue to be subject to the provisions of the federal Official Languages Act and members of the Yukon francophone community would have access to the French language services to which they are entitled, much as if the territory were federally administered.

Ms. Pat Duncan: That's correct.

[English]

We are still recognized as a territory, and in terms of the official languages, yes, it is still respected. I'm just getting the exact reference in the act.

Monsieur Marceau, the answer is that we are not bound by the federal act but we have as a service agreement that we have negotiated and are working with

[Translation]

the AFY, or Association franco-yukonnaise

[English]

and that is provided for in the Yukon Act as well.

The Chair: Mr. Keddy.

Mr. Gerald Keddy: Thank you, Mr. Chairman.

I'd first like to welcome the Premier of the Yukon to committee.

Ms. Pat Duncan: Thank you.

Mr. Gerald Keddy: It's a pleasure and an honour to see you and your colleagues here. There are very exciting things going on all across northern Canada, with the devolution of federal powers to the people who actually live in the north, and I'd like to be on record as stating that certainly that is a process that's been supported both in the House and out of the House by the Progressive Conservative Party and now by the PC/DR Coalition members.

• 1235

I have a few questions about the specifics of the bill, understanding that it's mainly a housekeeping matter that will integrate and incorporate a lot of other bills already in existence, several of which I've been critic for and we supported as a party.

However, understanding the way this committee works—your second round is sometimes shorter than your first—I'd like to get some specifics on another issue that deals directly with the Yukon. That's the upcoming discussion and dialogue on a proposed pipeline coming either out of Alaska via the Mackenzie Delta and down the Mackenzie River or via the Alaska Highway route.

I think it's important for us as committee members for northern development and aboriginal affairs—and for those of us who sit on natural resources as well—to have an opportunity for the Premier of the Yukon to actually give her opinion and point of view on this. I think it would be important to hear it.

Ms. Pat Duncan: Thank you very much. I will be brief, that's for sure.

There are several points, but first of all, “two pipelines” is something I have been saying since first taking office in May of 2000. The fact is, Canadians didn't choose between Hibernia and Sable Island and Terra Nova, and neither should northerners be asked to choose. Alaska gas is ready for market. It's pipeline-ready and should be transported as the treaty signed by Canada in the 1970s outlined. It should be transported through the Yukon, down an existing transportation corridor—the Alaska Highway.

This is entirely in the Yukon, a private sector investment. An important point is that companies who were interested in this project and first proposed it in the seventies have rejoined and anticipate putting a proposal before the producers by the end of this year. They are anticipating the transportation of gas by 2008.

That does not preclude a Mackenzie Valley pipeline. We have always supported it and believe the Mackenzie Valley pipeline could and should be built. There is still exploration work to be done and infrastructure to be constructed in support of that pipeline.

The other point not often heard in the debate that I'd like to be sure to articulate for members is that the Alaska Highway pipeline is about far more than a construction project through the Yukon. The Yukon has 13 TCF of gas—and our sedimentary basins are largely unexplored; that's an estimate of the gas. We believe that gas should get to market. As well, Yukoners should have access to natural gas, and that is what the construction of the Alaska Highway pipeline allows for. Right now we're a net exporter.

I should say also, with reference to the Yukon Act and the devolution transfer agreement, that this legislation still respects the Northern Pipeline Agency as the regulator of the construction of an Alaska Highway pipeline, as articulated in the treaty.

Mr. Gerald Keddy: Thank you very much.

The Chair: Seconds?

Mr. Gerald Keddy: I would add, there's also an interesting point—and you can take an example from the Canada-Nova Scotia Offshore Accord or the Canada-Newfoundland Offshore Accord—that we're going to start sharing revenues. It's slightly different when you're simply transporting gas from another jurisdiction, but there's still the opportunity for gas liquids plants, for fractionation. Those are all benefits that would be due to the Yukon as well, as the transporter.

Ms. Pat Duncan: So noted. Thank you.

The Chair: Thank you.

For the benefit of the record, could someone clarify for me what TCF represents?

Ms. Pat Duncan: It stands for “trillion cubic feet”.

The Chair: Thank you.

Mr. Bagnell.

Mr. Larry Bagnell: Merci, monsieur le président.

When I asked to be on the question list ten minutes ago, I had six questions that had been brought to me by Yukoners and the member of the Yukon Party. The first one was related to the offshore boundary, the second to the title of the land, the third to first nations concerns, and the fourth to ten-year powers of the commissioner. You answered all those in your speech. My next question was on consultation, and my colleague from the Bloc party asked that.

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My last question was related to whether there was any reference in this bill to the French community and municipalities. My Bloc colleague partly asked that question too. If you have any further comments on any of those areas...

Some hon. members: Oh, oh!

Mr. Larry Bagnell: Someone asked all my questions.

The Chair: In spite of having five political parties in one committee and doing the work of two committees—because we also do natural resources—as you can see, our members are very compatible.

Do you wish to comment on any of these?

Ms. Pat Duncan: If I could just elaborate a little bit, I'm not certain I gave a full enough answer for Monsieur Marceau.

With respect to dealing with official languages, the new Yukon Act retains the provisions of the current act dealing with official languages and updates provisions with respect to justice and also financial accountability. This was quite a discussion point, I know, in the House of Commons.

The new act contains provisions that allow the Yukon government in the future to establish our own auditor general's office to assume duties currently carried out by the Auditor General of Canada. We appreciate very much and work well with the Auditor General of Canada, who currently does our financial work, but this is an area that has not been asked or answered yet. It does allow for it in the future, although it is a provision we don't, at this point, foresee enacting—appointing an auditor general.

I did want to clarify that the language provisions have been very well respected. We have a very strong francophone community in the Yukon and we have worked very closely with them.

The Chair: Thank you.

The second round will be four minutes.

Mr. Elley.

Mr. Reed Elley: Thank you very much, Mr. Chair. I want to once again say welcome to Premier Duncan.

I'm sure this must be a very satisfying day for you. All of you have worked very hard to bring this legislation to the House. Certainly we in this committee want to do all we can to expedite that and bring the Yukon in the fullest way possible into Confederation. I suspect that some day down the road we may be here, some of us, to talk about provincehood—and all that entitles along the way, too. So welcome; it's good to have you here.

However, I wish I could share your enthusiasm about this legislation meaning the federal government will no longer be making your decisions for you. I'm sure that's a wonderful ideal, but of course in truth it won't happen. The federal government will still have a huge impact in the Yukon, as it does in all of our provinces, with decision-making.

Particularly we in western Canada—and the north and the west are somewhat akin in this, I think; that's where most of our resource-based economies are now—have continuing concerns about the federal involvement in the natural resource base. We can't forget in western Canada the devastation of the national energy program, and what it did, and that it was a Liberal government that brought that in.

We continue to want to assert our rights and our desires to make sure the resource base is going to be something that brings economic prosperity to the people in the region, but also, of course, that can be shared with the rest of Canada.

Do you feel, Premier, that the way the bill is written now you in the Yukon are really going to be able to reap the benefits locally for your natural resource base? What do you see down the road in terms of the federal government's involvement.

Ms. Pat Duncan: Absolutely, I do feel we will be able to reap the benefits. The reason I say that is we have already transferred, as I've mentioned earlier, oil and gas. We've seen in a very real way the benefit to Yukoners through that.

Previous to that responsibility being transferred, there was not an oil and gas industry in the Yukon. In three years, we've had three land sales, and that is $25 million of private sector investment in the territory. In terms of forestry—it's a very good example—right now there are discussions around timber harvesting agreements and firewood cutting.

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All of the tough resource management questions are being redirected. Yukoners—and I'm among them—are lobbying the Minister of Indian Affairs and Northern Development. The forestry is a major issue in the Yukon right now. This act and the devolution transfer agreement transfer the management and resource responsibility to us.

In terms of resource revenue sharing with oil and gas, we have very clearly established a relationship. We have set out the resource revenue sharing mechanism with first nations governments as well as the Government of Yukon and the Government of Canada.

In terms of the overall financial benefits of all of the resource revenues, we would have to enter into a lengthy discussion, sir, about the formula financing arrangement. It is different from the equalization program.

The formula financing arrangement of the territorial government with the three territories has been in place since 1985. It's renegotiated on a three-year basis. It takes into account a number of factors, including things like population, the ability to gain resource revenue, and the amount the provinces are spending on infrastructure. It's a very complex formula and the negotiations with Finance take some time. Overall, the formula was designed, when it was initiated, for the territories to work toward standing on their own financially, with no penalties when we have hard times.

Mr. Reed Elley: It was going to be my second question, in terms of financial arrangements with the government now for payments to the Yukon. Are you saying that particular kind of arrangement has not yet been exactly hammered out but is still in the process of being hammered out?

Ms. Pat Duncan: No. I'm saying it has been hammered out.

Mr. Reed Elley: Has it been to your satisfaction?

Mr. Pat Duncan: Yes, it has.

Mr. Reed Elley: Will it decrease the amount of money the federal government pays to you because of increased natural gas royalties and other resource royalties? What is the arrangement?

Ms. Pat Duncan: No. Our resources and our ability to generate our own funding are taken into account so it reduces our dependence on federal expenditures. It's what I'm saying.

Mr. Reed Elley: Yes.

Ms. Pat Duncan: It's a very good formula. It's a very complex formula. There's an advantage, perhaps, to both of us in this discussion in that I also serve as the Minister of Finance. It has been the custom for the territory for the premier to also serve as the Minister of Finance. I'm very familiar with the formula. It's a good formula for the territories.

Mr. Reed Elley: Thank you.

The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: Thank you very much.

As a fellow northerner, I'm very pleased to see another act that recognizes that people in the north are capable of making decisions that affect the people of the north. I'm pleased to be part of the committee that, hopefully, will see this legislation pass.

I had the pleasure of being in Whitehorse last year during the Arctic winter games. I was very surprised to find the majority of the population of the territory is in one city. It was a very interesting fact for me.

I know you gave a lot of information on the technical benefits of this legislation. As a fellow northerner, I am very interested in what it means to the people of the Yukon and the small communities outside of Whitehorse and how they will benefit from this agreement. In going through the new territory legislation, I knew the technical benefits of the act were very different from what they meant to the people.

I'm very interested in hearing your personal feelings on this legislation, and what it means for northerners and the people of Yukon.

Ms. Pat Duncan: Perhaps I could address it best by speaking about three specific communities.

The community of Old Crow is the only community not accessible by road, as you're well aware. The Chief of the Vuntut Gwitchin in Old Crow supports devolution as it relates to the forest fire suppression discussions we have been able to have through the devolution transfer agreement. It means, as a self-governing first nation, he will deal directly with the Government of Yukon in discussions around fire suppression and how fire suppression is handled in the territory. It's what it means on the ground to that particular chief.

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In Watson Lake, a small community that has suffered a great deal economically in recent times, they have struggled with the potential of a forest industry for a number of years now. Part of the struggle has been the difficulty with the manager of the forest resource being 3,000 miles away. It has been a real difficulty. It will mean, on the ground to the people in Watson Lake, their discussions are local.

To the people in Dawson, where placer mining is a key concern, there are sometimes discussions on federal regulations and so on that they have a great deal of difficulty with. It's highly regulated mining with things like fuel tank storage handling regulations. There would be regulations developed in Ottawa that don't work on the ground.

The sorts of things being developed at the seat of government in Whitehorse, and working with communities, make a real difference to people on the ground. They're dealing with their elected officials when they see them at the arena, at the swimming pool, and at Tim Hortons. It makes a difference.

Ms. Nancy Karetak-Lindell: Thank you.

[Translation]

The Chair: Go ahead, Mr. Marceau.

Mr. Richard Marceau: Thank you, Mr. Chairman.

I have two questions for you. First of all, under the bill's provisions, the Yukon Government would assume new responsibilities which are now held by the Government of Canada. You also mentioned quickly in passing the transfer of employees from one level of government to the other.

Will a sufficient number of employees be transferred to allow you to fully assume the responsibilities that will be devolved to your government under this agreement?

[English]

Ms. Pat Duncan: This was a difficult chapter to negotiate in the devolution transfer agreement because there was a great deal of concern for human resources. Things like the discussion of a transfer of sick leave, holidays, and superannuation took some time. They were successfully negotiated.

The federal government employees now in the northern affairs program will receive a job offer from the Government of Yukon. It will then be up to them whether or not they come over to the Yukon government to administer the same programs and work with us. Part of the reason we undertook renewal at this stage in our mandate is so employees would feel very comfortable, could see their names on desks in the program, and could see opportunities within our government as well. We're very hopeful a number of them will come over.

[Translation]

Mr. Richard Marceau: I see. I have a second question for you. The English version of your submission is seven pages long. A full page is devoted to the subject of First Nations. You appear to respond to a number of statements made by First Nations representatives who are opposed to the devolution process. You note the following in your presentation:

[English]

“A few first nations oppose Bill C-39.”

[Translation]

You then go on to explain why they are wrong.

I'd like to know more about the consultation process that was undertaken. I hope you will send me some information on this before the bill is adopted. Did you engage in a different consultation process in the case of First Nations? I'm curious about the size of the Yukon's aboriginal population. What percentage of the population is opposed to devolution?

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[English]

Ms. Pat Duncan: The Yukon Act and the devolution transfer agreement was negotiated with not only Yukon government officials, but also with representatives from the Council of Yukon First Nations, as well as Kwanlin Dun, which is one Yukon first nation, and the Kaska.

You'll note in my presentation the Kaska nation I refer to includes five first nations, two of which are located in the Yukon, so it's a transboundary organization.

The overall final umbrella agreement includes the Council of Yukon First Nations, and that's what is referred to. The Kaska and the Kwanlin Dun are referred to separately, outside of that organization.

The CYFN, the Council of Yukon First Nations, have expressed their support. Of the entire Yukon population, we estimate roughly a third would be first nations. Of those first nations, the majority, represented by the Council of Yukon First Nations, have expressed their support.

The Kaska are specifically referenced in my presentation because they are transboundary. They have publicly expressed some sentiments that I have responded to. That's why they are specifically referenced.

[Translation]

Mr. Richard Marceau: Thank you.

The Chair: You have the floor, Mr. Binet.

Mr. Gérard Binet: Madam Premier, I have a question, in addition to a few comments.

My question is this: What is the total population of the Yukon?

[English]

Ms. Pat Duncan: It's 30,000.

[Translation]

Mr. Gérard Binet: Thirty thousand people.

What percentage of this population is of aboriginal descent?

[English]

Ms. Pat Duncan: About 25%.

[Translation]

Mr. Gérard Binet: I'm curious because I was involved in municipal politics before I was elected to Parliament. Since my arrival in Ottawa, I have been seated next to Mr. Bagnell. When you have a population of 30,000, it isn't easy to find individuals worthy of political office. Prior to becoming an MP, I served as mayor of a municipality.

I have to say that I was pleasantly surprised by your presentation, as I am by your MP. Mr. Bagnell is a worthy representative of the Yukon. He has friends not only in government, but also in all parties represented in the House of Commons. The Yukon has a bright future ahead of it because, in my estimation, it is well represented on the political front. Thank you for your brief letter. It was lovely. I don't know whether that's in fact gold on the paper, but it is indeed lovely. Thank you very much.

[English]

Ms. Pat Duncan: Thank you.

If I could just pay some respect to the Yukon politicians who have gone before, we have the distinction of having a deputy prime minister, Erik Nielsen as a member; Martha Black; Audrey McLaughlin, leader of the New Democratic Party; and of course our territorial leaders are well known as well. And they are all strong members of Parliament.

We share your view in the Yukon about our current member of Parliament and our senator, and we greatly appreciate their work.

One small point is that while we are few in number, we have a great many miles to cover. Perhaps that's what produces the strong politicians.

The Chair: Mr. Keddy.

Mr. Gerald Keddy: Thank you, Mr. Chairman.

I just want to go back to your comment on forestry in the Yukon. I had the privilege of being able to visit the Yukon and actually look at a sawmill operation. I remember at the time—I don't have the exact number in my head of the cubic metres they were sawing—but it was a very small percentage of the timber that had been affected by bark beetle.

I think it's important for other members to understand that the bark beetle was killing the trees in the Yukon. They couldn't even be salvaged, because of the delay in getting timber-cutting permits through the department. That's not necessarily a criticism of the department, although it is true in a small way.

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But there's an opportunity for expansion of that industry. I'd like it if you could tell the committee how much room there is to expand that industry and still maintain a sustainable forest industry.

Ms. Pat Duncan: That would take longer than what is allowed, and it would also take a lengthy discussion of the forest industry in the Yukon.

I think the key point of your comment is that there needs to be an ability to respond in a more timely manner, and in a more locally accountable manner. There's no disrespect meant to any minister of Indian affairs and northern development. It's simply as one commissioner said, you can't drive a team of horses with reigns 3,000 miles long. Ottawa sometimes is too far away for the type of response that's needed.

Mr. Gerald Keddy: I like the analogy.

The other question, which you spoke to briefly in your presentation, is the situation with human resources. We have a pool of individuals, many of whom live in the north now but work for the Indian and Northern Affairs Canada, and many more who are extended by that southern lifeline, if you will. I'm wondering, with the process and the change—more accountability and more responsibility—that will come with this act, how many of those individuals will be able to be employed directly in government in the Yukon, and what happens to the surplus?

Ms. Pat Duncan: As I mentioned earlier in a response to a question from Monsieur Marceau, the situation, as negotiated in the devolution transfer agreement, is that those who are currently employed in delivering the northern affairs program will be offered positions. The number, we estimate, is about 240. Those individuals will be offered positions. It is their choice whether they choose to accept or not. But certainly the human resource aspect of working with those individuals and their careers has been very well negotiated, and individuals' desires have been respected.

Mr. Gerald Keddy: Excellent.

Do I have any more time?

The Chair: You have half a minute—you had half a minute; you just used it up.

Mr. Vellacott.

Mr. Maurice Vellacott: I think it would be great, while we have the premier and her accompanying aids here, to propose that there be unanimous consent that we send this back to the House unamended, as quickly as we can. We talked, just very briefly, about it—Richard Marceau of the Bloc, Gerald Keddy of the PC/DR coalition, and the Liberal members, Larry and the others across the side—and we thought that would be a conciliatory thing to do, showing something of the spirit of our committee and how we work.

So I would like to propose we have unanimous consent to send it back to the House unamended, without necessitating clause-by-clause.

The Chair: I am accepting that and I'm requesting unanimous consent. We will do a very quick clause-by-clause after you agree.

Does everyone consent to the request?

Some hon. members: Agreed.

The Chair: The preamble is stood. Clauses 1 and 2 are stood.

(Clauses 3 to 14 agreed to)

(Clauses 1 and 2 agreed to)

The Chair: Shall the preamble carry?

Some hon. members: Agreed.

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry without amendment?

Some hon. members: Agreed.

The Chair: Shall I report the bill back to the House without amendment?

Some hon. members: Agreed.

The Chair: Shall we go for a beer?

Some hon. members: Oh, oh!

The Chair: Thank you very much.

Premier, the reason we were able to do this is because of the quality of the witness we had today. Thank you very much.

Ms. Pat Duncan: Thank you so much.

The Chair: The meeting is adjourned.