Thank you, Mr. Chairman.
My name is Gordon Peeling and I am the President and Chief Executive Officer of the Mining Association of Canada.
With me is Pierre Gratton, the vice-president of sustainable development.
It's our pleasure to be here to talk about Bill , the specific claims tribunal act. The Mining Association of Canada supports Bill C-30 and the accompanying political agreement between the Government of Canada and the Assembly of First Nations.
I would like to commend the government and the Assembly of First Nations for the development of the bill and the political agreement. We encourage the government to bolster this kind of approach with first nations in the spirit of garnering further constructive dialogue and tangible results.
The mining industry offers major opportunities for first nations peoples. We are making a significant contribution to aboriginal employment, business development, and growing education and skills levels, creating opportunities for all aboriginal peoples, but there is much more our sector can do with the right public policy framework.
Bill and the political agreement represent a positive step forward, but the federal government must complement this initiative with an effective implementation plan and progress in other areas.
With respect to our industry and first nations, Inuit, and Métis peoples, here are some of the facts.
Mining is the largest industrial employer of aboriginal peoples. We double the national average. And while some mines have aboriginal workforces that are 30% to 40% aboriginal, some are even higher than that. And these are good-paying jobs. The average income of aboriginal people in mining is twice the national aboriginal average. Aboriginal business procurement is also high. In just five years, for example, Diavik Diamond Mines purchased over $1 billion in goods and services from aboriginal-owned businesses. Cameco and Syncrude have also achieved this billion-dollar milestone, albeit in a longer timeframe.
This is what is happening, but let us also look at the future. There are 1,200 aboriginal communities that are located within 200 kilometres of producing mines and 2,100 exploration properties across Canada. For our industry, facing a major human resource shortage, and in a period of tremendous growth, first nations are critical to our future. First nations youth represent the fastest-growing population in Canada. By working to enhance access to training and education, the mining industry can complement federal investments in these areas. We can also be a critical partner in the economic and social development of first nations communities, but many hurdles remain.
Mining and exploration increasingly takes place on traditional aboriginal lands. In many parts of Canada land claims remain unsettled. In these circumstances it is much more difficult for industry to negotiate agreements with aboriginal communities, to navigate the regulatory process, and to advance new projects.
At times these underlying conditions undermine our ability to come to agreements, to partner and to develop together. Not surprisingly, for many first nations, respect and recognition of their rights and secure tenure are preconditions for their support for and interest in natural resource development on their traditional lands. We need only look at the pipeline negotiations and some recent controversies between first nations communities and exploration projects to see what can happen when rights are not recognized and land claims are not settled.
No one--not first nations, not industry, and not governments--benefits from the conflicts such as we have seen. What is in the collective interests of the first nations in the minerals industry are the kinds of industry-aboriginal collaboration and agreements we see involving mine development, such as Diavik in the Northwest Territories, Voisey's Bay in Newfoundland and Labrador, with the oil sands miners in Alberta, Cameco in Saskatchewan, at the Victor and Musselwhite mines in Ontario, and at many other operations across Canada. These outcomes are achieved through dialogue and respect, not through the courts and not through conflict, as was unfortunately the case recently in a dispute between the KI First Nation and mineral explorer Platinex.
We encourage the government to acknowledge the rights and interests that first nations have and to move forward on this basis, and Bill is a huge step in that direction, which will in actual fact improve the process. We can no longer delay. We need action on land claims and we need it now.
The Specific Claims Tribunal Act is a good step for resolving specific claims. It holds the promise of accelerating the resolution of specific claims, and with adequate investments and the timely and effective implementation of the political agreement, real progress can be made. But don't think this means the job is done. Comprehensive land claims not addressed by this bill can take and are taking decades to settle. In areas of high mineral interest, such as the Northwest Territories, the settlement of comprehensive land claims is urgent. Major claims such as the Dehcho and Akaticho require resolution.
Let me also touch on a related issue, the crown's duty to consult. While our industry recognizes that it is good practice to consult and accommodate aboriginal communities, industry actions are not a proxy for the crown. Exploration and mining projects have been held up or jeopardized because the crown has been found to not have fulfilled its consultation duties.
Supreme Court of Canada decisions have been clear about the crown's role in consulting with aboriginal peoples where rights may be infringed. We need government to do their duty, to clarify and implement its consultation obligations, and thus provide industry and first nations with certainty with respect to resource development.
We at the Mining Association of Canada recognize that we must also do our part. Our board has adopted a draft policy that lays out the industry's commitments toward aboriginal peoples through our award-winning TSM initiative, or towards sustainable mining initiative. We are currently consulting on this policy with first nations, Inuit, and Métis communities and organizations across this country.
We have been aided in our work by a national advisory panel that includes representatives from the Assembly of First Nations, Inuit organizations and Métis organizations, organized labour, the Canadian Environmental Network, mining municipalities, and the financial sector. A primary focus of the panel's work over the past few years has been on aboriginal relations.
As well, as many of you who participated in last year's Mining Day on the Hill would know, MAC signed a letter of intent with the Assembly of First Nations to enter into a partnership to address issues of mutual concern. The letter of intent will lead to a memorandum of understanding between the two organizations, and will contribute to increased first nations participation in Canada's mining industry. We have both targeted June of this year to finalize those discussions on the memorandum of understanding.
The letter of intent was initiated in part to respond to the AFN's corporate challenge program, which creates partnerships with corporate Canada to increase investments, procurement, and employment opportunities for first nations, and with the MOU will serve to strengthen MAC's towards sustainable mining initiative.
This new partnership would have been inconceivable for both our organizations a decade ago. It shows how times have changed and how we are changing. We need governments to change with us.
In conclusion, I want to reaffirm our support for Bill C-30 and the political agreement. The establishment of a specific claims tribunal through Bill C-30 and a commitment by the government to address the items outlined in the accompanying political agreement are, in our view, a step in the right direction--an absolutely essential step. They represent an important precedent for future legislative and policy initiatives. We urge its speedy passage without our losing sight of the many other important issues that I have raised with you today, some of which can come through the political agreement.
Thank you very much. Merci.
I'll make a very general comment.
Part of the work we're doing as an association, namely the aboriginal relations piece—and community outreach is one of the major aspects of our “Towards Sustainable Mining” initiative— will be part of that. It is to ensure that when we enter onto the land for the first time, we have already consulted with first nations, Inuit, or Métis, whoever may be the important proprietor or have the land claim or traditional use of that area.
Bill C-30, by removing a lot of these concerns and resolving them quickly with respect to the specific claims, helps to remove those problem areas. So if we do our job properly because the government has done its job properly, and these issues have been resolved between first nations and the government, it makes it easier for us to do our job. What we see happening from time to time is that because there is an aggrieved party, we become somewhat the ham in the sandwich. We become the lever for raising an issue with the federal government.
That may not be the specific instance in this case. But the reality is in a settled situation, if we do our job properly in consulting, and the industry does its job properly in consulting, then these issues that resort to the courts don't apply. But as far as the need for the government to consult goes, there are a lot of laws on the books that have been on the books for many years prior to Supreme Court decisions. I think all governments are struggling at both levels, whether it's provincial, territorial, or federal, with finalizing how they will approach the discharge of the responsibility of the crown to consult. If there is a perception that the duty to consult has not been discharged appropriately, then we can get into very difficult situations.
As I mentioned, and first nations will certainly remind us, we are not a proxy for the crown. We cannot discharge the crown's responsibility and duty to consult, at least not in the appropriate terms. We have a different duty and requirement to consult that is not at that same level.
So my sense of Bill C-30 in this regard is that if we resolve these issues in a timely way, we are less and less likely to get caught in situations like those of Platinex and the KI First Nation. The present situation has resolved none of the issues that are at the heart of this.
I think that we as an industry are concerned that the government does not have a coherent policy across all departments on how it will discharge its duty to consult. It's true at the federal level; it's true at the provincial level.
We understand that policy guidance is coming forward, and I know that probably certain parts of the government have a very strong sense of how they have to discharge that responsibility. When you're talking to Department of Fisheries and Oceans officials over fish habitat issues and so on, what is their duty to consult, and how do they discharge it appropriately?
This is where I think additional guidance is required. It's something the industry has asked for, but we're not the only ones, obviously. It also helps us to understand the framework within which we have to operate. It lessens the chance that our issues and the opportunity we might identify through exploration or development gets diverted by a need and an opportunity.
I don't blame first nations at all. If there's an opportunity to raise their issue, and development is the lever to raise it, particularly for something that may have been outstanding for many years, if not decades, then they will do so. But it puts us in a not very enviable position.
For our part, with regard to sustainable mining, we are trying to make our processes of best practice in consultation and work with first nations consistent across our industry. I can only talk about 30 full-producing members of our association and another 40 companies that provide services to our industry, but even there we need to make them consistent across our membership. And that's one of our duties and challenges. It's what we hope to do with the Assembly of First Nations in that partnership.
We are not at a perfect state, either, in this process. As I said, Bill C-30 can help all parties move towards a much more positive outcome.
Thank you very much for appearing before us today. I appreciate both your statement and some of the material that my colleagues have referred to.
As you rightly pointed out on the situation with KI and Platinex, Platinex is not a member of your organization; and arguably, I'm not sure Bill C-30 would have resolved some of the difficulties with Platinex, because it seems that the province has a substantial role to play.
That leads me into the question I want to talk about. There are a couple of pieces in the legislation. One is that the provincial governments will only voluntarily participate in this process. So in the situation around KI and what not, if a specific claim were involved, if a province chose not to come to the table, they wouldn't be a player.
But the second piece is that in subclause 22(1), which is about notice to others—and I'm sure you don't have this down chapter and verse, so I'll read it to you—it says:
||If the Tribunal’s decision of an issue in relation to a specific claim might, in its opinion, significantly affect the interests of a province, First Nation or person, the Tribunal shall so notify them. The parties may make submissions to the Tribunal as to whose interests might be affected.
I'm not entirely clear from that section whether a company whose interests might be affected by the specific claim would be able to make application, but in your view, do you see circumstances where mining companies might want to make interventions at a specific claims tribunal process?
Thank you both for being here today.
Looking at the letter of intent, and your news release between the Mining Association of Canada and AFN, and years of experience, it's obvious you have modelled in many ways this idea of collaboration and working with first nations people in terms of trying to find some common ground, if we can use that term. I'm referring to your news release where you talk about collaborating and months of discussion between the two organizations. Chief Fontaine indicates that first nations and the mining community are natural partners and goes on to talk about true collaboration. You've indicated that it's the largest private sector employer of aboriginal people. I think we all agree around this table that to advance economic opportunities for first nations people it's certainly win-win for everybody involved.
I would like to ask a question on your first point in your letter of intent, where it refers to the fact that you're jointly advocating to the federal government for a clear, effective, appropriate federal consultation policy. At this committee we've discussed the issue of consultation many times. My question comes down to the idea of developing a policy for consistency as to what consultation is.
Is it realistic that the federal government, or any other organization for that matter, will get unanimity in terms of agreeing on what constitutes adequate consultation? I would be interested in your thoughts. As I said earlier, you've obviously done something right, and it's working. I'm not sure if you would call it consultation or collaboration or what statement you would like to make on that.
Let me speak from the ideal, and then I'll give you the metric to tell you whether the government in actual fact has got to an appropriate level of policy on consultation.
First of all, the government has to come at this from the point of view that it needs to have a consistent policy. The Supreme Court requires that the government discharge its consultation requirement in honour of the crown. The government clearly must have some view as to how it will discharge that responsibility. Its challenge is how to take that view and make it consistent across all the actors of government that will come into contact in some way with aboriginal communities across this country. It's our understanding that the government is in the process, with legal advice, of preparing that sort of consultation policy. You will know whether it works by how often you end up in court.
Our problem is that the government may think it's discharging its responsibilities appropriately and we may be acting with an investment on the basis that indeed the government has done so. We may spend millions of dollars on an environmental assessment process, only to find out that someone is taking the government to court over not having discharged its responsibilities appropriately.
That's the frustrating part, because costs build. It makes it a very difficult situation for the business community, not to say the aggrieved party that feels responsibilities haven't been discharged appropriately. I think the government has to operate from the point of view that it can do this in a manner that will meet the test of the courts.
Unfortunately, the courts have not given a lot of direction as to what would necessarily constitute appropriate consultation, and that has made it a bit more difficult for the government. But we get caught as the ham in the sandwich when the government fails or is perceived to have failed in its duties, and that's the difficult part, from our point of view.
Some may make it in under the $150 million; some may make it over the $150 million.
I guess the underlying premise here is that you want certainty as an industry, and you want clarity as an industry, in terms of not only larger specific claims, but comprehensive claims. I totally agree with you on comprehensive claims, that in fact we may have to look at some kind of process that not only talks about comprehensive claims in terms of resolving the outstanding ones--in terms of accepting them for negotiation and then going into negotiations--but there's a lot of talk about the implementation of comprehensive claims. Many times, even once a treaty is signed, the parties are bogged down in ongoing litigation about exactly what a clause means, or was intended to mean, and that type of thing. So I understand the need for clarity.
I just want to come back to your industry itself. In terms of the respectful relationship your organization is trying to engender between the mining industry and the minerals industry and aboriginal groups, it seems like one of the most problematic areas we have is the actual staking of claims, because there's a sense--and maybe I'm wrong--in the industry that the level of participation prior to staking is far less than the engagement they would have with an aboriginal community after staking claims.
What we have is a system where you can actually go in on the computer, as you said, and for a credit card that has a good limit on it, you can start staking out claims all over the map. Before you know it, a company--maybe one of your partners in this--has 200, 300, or 400 claims staked over aboriginal lands, or disputed lands in some cases, and even over lands that have been settled under treaty. For instance, I look at the Labrador Inuit in Labrador, the Métis in Labrador, the Innu Nation.
What kind of reasonableness test do you use in terms of your industry, in terms of the staking of claims? Because a lot of your Canadian mineral association people do stake claims, and you see it as part of the mining process.
I want to add to this point to illustrate, too, how the industry has been evolving, it's becoming increasingly commonplace now for companies to have on staff community liaison officers who actually come from the communities where they're operating.
They're the go-between, in a sense. They have to be careful sometimes; they don't want to be perceived by their community as having been co-opted. They play a very important role, because they know from their community's perspective, and can provide the company with advice on, how to go about talking to and working with the elders, the political chiefs, the women in the community, and the youth, and they know how to do it in such a way that it's not going to go against community norms. That's becoming an increasingly strategically important role within the mining industry.
You're seeing it more and more. At first I saw it in larger companies like Diavik, those engaged in some of the bigger projects. There's a little project in northern Ontario at Lac-des-Îles, a palladium mine, and they have a community relations officer now from the community. It's becoming very commonplace.
If I may, I also want to pick up on another point that was raised a few times about the fact that this bill is dealing with specific claims. While the specific claims are not the primary concern of the industry—it's around the larger, comprehensive claims—in the experience of working with first nations, there's a big difference when you go into a community that doesn't have pre-existing grievances with the federal government on anything. It's a lot easier to sit down, in practice, with communities like that. Being able to deal with these more expeditiously helps us get to a point where you have a much more hospitable environment to negotiate with. So there are other less tangible but nevertheless meaningful benefits that come from this.
My name is Barry Devolin, and I'm the chair of the committee. We would like to welcome you today.
This is meeting number 22 that we're holding regarding Bill C-30, an act to establish the Specific Claims Tribunal. We have heard from many witnesses over the past few weeks, and we are approaching the end of our hearings. We really appreciate that you gentlemen could make yourselves available today.
We will give you about ten minutes to make a presentation. I'm not sure whether one of you will present for the whole ten minutes or whether you will split that. I will leave the two of you to arm wrestle over the time.
After you've done your presentation, we will do a round of questions. I think we will probably only have time for one round of questions of seven minutes today. This is the first time I have chaired a meeting with a video conference, so I am hoping this will go well.
Gentlemen, if you could introduce yourselves first and then make your presentation, it would be greatly appreciated.
Okay. Thank you, again.
My name is Bill Erasmus. I'm the Dene national chief for the Dene in the Northwest Territories. We constitute 30 communities, ranging from Fort Smith in the south, to Aklavik on the Arctic coast. I'm also the regional chief for the Assembly of First Nations.
Thank you for the invitation to appear before your committee. As you're aware, the work leading up to Bill C-30 has happened over the years. In the early 1990s I was co-chair of the joint task force that originally started working on preparing a bill for the legislature. So I have some background and some sharing that I can do from that perspective.
I'm very pleased to see that over time we're at a point now where the bill is being prepared to come forward, and there's the political agreement that reads with it.
In the Northwest Territories we constitute about two percent of the specific claims that have come forward so far. That is because our people are at different tables. Some people have participated at comprehensive claims negotiations, some at self-government tables, others at treaty talks, and I think people have confidence in those particular tables. Very few specific claims have come forward.
It's fair to say that if those particular tables do not bear fruit, we would have many more specific claims that would come forward. So I think it's fair to make that comment.
As I mentioned earlier, we're pleased that the legislation is coming forward. We know we couldn't get everything in the bill, and the understanding is that the political agreement that comes with it has to be read in conjunction with the legislation. We want to insist that the political agreement be left as open-ended as possible, so that as we go along and as we learn from this experience we can add more to it. So I think that's important.
Over the years we have looked for an independent process, one that takes away from Canada being the judge and jury. I think this legislation goes far in developing that.
I was fortunate to be at the United Nations when the UN declaration on indigenous people's rights was passed in September. I think we can say that this process works within the meaning of that UN declaration, and that gives support to the whole process.
Again, this develops a new relationship between ourselves and Canada, and we're very hopeful this is a positive move. I think this legislation and the process involved is leading to a new relationship, and I think it can be extended with other practices when dealing with other legislation.
Now, I know my time is short. I want to make two comments, and I'm speaking in support of the legislation. If you were to make amendments, there would be two areas that I would suggest you look at. One area is a huge concern.
From the beginning, the whole process was not about money. It was about land. Our people would very much prefer to have land included in the process so that they are able to have access to lands they either lost or are no longer with them.
The other one is the big claims, and I'm sure you've probably heard this from other people. We are very concerned about the cap for claims that are over $150 million. Many of these people have waited a long time. We're talking of legal obligations on behalf of the crown. These are not situations in which you are giving to people who are not deserving.
We would much prefer that these larger claims be included in the overall package.
Thank you, Mr. Chairman.
I'll give time to Mr. Paulette now.
[Editor's note: The witness speaks in his own language.
I wanted to say my name is François Paulette. I'm a former chief. In the 1970s I became a chief when I was 21 years old. Around 1980, I resigned. I've been a regional chief. I've been involved with a number of treaty and aboriginal rights discussions north of the 60th parallel. I've been involved in the Indian Brotherhood, the Dene Nation, the Berger inquiry....
I just want to say I was involved in a court case, Paulette et al. v. The Queen. I claimed we had prior ownership of territory in the Northwest Territories of over 450,000 square miles of land. That milestone ruling opened a lot of doors for us in the discussion of how to settle outstanding claims north of 60.
I'm from the Treaty 8 area. I've also been involved with the Bourque commission, the constitutional development in the Northwest Territories. I've also been involved with the renewal commission of the AFN and I still continue to advise and work with the national chiefs.
Quite recently I've also been helping protect areas of the Dene north of 60, particularly the national park on the east arm of Great Slave Lake. I've been attending a lot of international conferences dealing with the environment and the protection of Mother Earth.
I've also been involved in this joint task force from the beginning. I must say that from where it's been to where it's at today, there've been a lot of compromises on the way, and we're dealing with legislation before us that may not meet where we left off with the joint task force report in the late 1990s. Treaties 8 and 11 in the Northwest Territories address very specifically that we were involved in non-extinguishment and non-surrender treaties by peace and friendship, that we are to live side by side. Also, people today, when we talk about our land, that's what we talk about. When we say this in my language, it means we cannot really put a price tag on this land we are talking about.
Land is foremost in importance to us. It's the centre of our civilization and our existence. North of 60, as you know, a lot of exploration goes on, and the first thing these big companies that come here want is land. Canada leased them permits to look for these rich resources north of 60.
I want to go back to the national chiefs issue. In Bill you talk about cash only. I think that really deviates from our principle of talking about land. There's a cap of $150 million. If there is a cap on that and we go over that, what are the options? What are the alternatives? One of the foremost for us is land. We need to go there. We need to be honest and up front, because this discussion on legislation is dealing with parts of treaties.
The other thing I must add is that provincial participation in this process is not there, and that will definitely create a lot of..... Particularly land needs to be addressed up front, because people south of the 60th parallel have to deal with provinces. Since NRTA 1930, the transfer of land has been in the hands of the province, and many times the provinces have a tough time surrendering these rich resources in their territory. So we need to look at that.
I also wanted to say that today we're going through Bill C-30, but if we had the political will, if Canada had the political will, we probably would have dealt with all these outstanding claims. But we're having to resort to legislation to review these outstanding claims.
With that, I just want to thank the committee for listening. I know that we have a very short time here. I want to thank you all for listening to me.
I would just add that in terms of the land, I think if you were to look at an amendment, the onus has to be on the federal government.
When the original land transactions took place, they were with the crown in right of Canada, and not with the provinces. Canada, within this exercise, has to take the lead.
They are now saying that the provinces are a third party. That might not be the case in the Northwest Territories and Yukon and Nunavut, but in other parts of the country it leaves our people in a very precarious situation.
So I think the way to do it is to put the onus on the federal government to take the lead with their section 91 powers over section 92 powers. That's what I would encourage, as well as leaving the door open so that people are able to select lands. And again, as Mr. Paulette said earlier, if the will is there, then we can get creative in developing that.
In terms of whether the minister has too much power, I think one of the things the joint task force was trying to do was to take us out of the minister's hands as much as possible. The fact that you have a tribunal suggests that the minister will either respond very quickly or will take action and move more quickly on the claims. In other words, you'll have fewer situations in which the minister will remain silent and have it go to the tribunal, because they really don't want it to go to the tribunal.
As you're aware, probably the biggest issue between first nations people and the crown is that land is at issue. There's a huge myth within the Canadian system that our people extinguished our rights to land; that somehow, without being defeated or conquered in war or by the military, we gave up all our lands and our rights to the crown. That's a myth that's been out there until very recently and that is beginning to turn around. Mr. Paulette talked about the court case he was involved in during the early seventies, which was a big part of turning the myth around, and also the Frank Calder case in British Columbia.
What our people really need and want is to have their original lands within their ownership so that they have a sound land base and can then develop their economy, their families, their nationhood, etc. They need the land base in order to survive. Money is necessary, of course, to function, but in most instances it's not the answer.
In terms of the larger claims.... Really, we shouldn't look at the question before us in terms of big or small claims; they're all important. A small piece of land is just as important as a large piece of land, depending on the peoples involved. For example, you're going to find people with different economies. There will be hunters and gatherers who have a certain attachment to the land; you'll have fishermen who are after lands they may have lost; you'll have people living along rivers, people in mountains, and so on. When you try to put a value to the claims, they come out to a dollar factor, and I think they should all be seen equally.
As I mentioned earlier, there are outstanding legal obligations on the part of the crown. There are more than 1,200 different claims before the government right now, and many of these have been sitting there for a long time. A cap is seen by many people as one way of continuing to keep the process under the control of the federal government .
With the huge surplus we have and good will, I think if you dealt with the cap differently, we could make a lot more progress. In the long run it will help all of us, because the sooner you deal with these claims, the more stability you'll have in our communities, and we can move forward.
Well, in my comments I wasn't directly suggesting that you make amendments. I was careful to say that in the event that you were open to amendments, those were the two areas I would suggest you look at.
Of course there's the danger of a lengthy process, especially with the sensitive nature of government as it is in a minority situation. The legislation may not get passed. It may die on the order paper.
That was partly why I was suggesting that the federal government needs to take the lead when dealing with the province and to develop creative ways so that the province is open to providing lands within the system.
We know that if a first nation is granted compensation in terms of money, it can then go to the province. I think the federal government could have a large part in convincing the province that it ought to open up lands when that happens. I was making suggestions to that effect.
In terms of the bigger claims, I think to some degree you may have some discretion on the part of the minister as to which agreements to deal with and what amounts of money. There's nothing stopping cabinet, for example, from using the authority it has to deal with larger claims and moving quickly on them.