Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 30 - Evidence - June 2, 2015
OTTAWA, Tuesday, June 2, 2015
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-46, An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act, met this day at 5:24 p.m. to give consideration to the bill.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Richard Neufeld. I represent the province of British Columbia in the Senate and I am chair of this committee. I would like to welcome, honourable senators, any members of the public with us in the room and viewers across the country who are watching on television. As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the sen.parl.gc.ca website. You may also find more information on the schedule of witnesses on the website under "Senate Committees.''
I would now like to ask senators around the table to introduce themselves, and I will begin by introducing our deputy chair, Senator Paul Massicotte from Quebec.
Senator MacDonald: Michael MacDonald from Nova Scotia.
Senator Black: Doug Black from Alberta
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
The Chair: I would also like to introduce our staff: Lynn Gordon, the clerk; and our two Library of Parliament analysts, Sam Banks and Marc LeBlanc.
Bill C-46, An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act, was amended in the House of Commons and passed third reading on May 6, 2015. The bill was read for the first time in the Senate on May 7, 2015, and referred to our committee on May 14, 2015. Today is our third meeting to examine this legislation.
I am pleased to welcome, from the Assembly of First Nations, Cameron Alexis, Alberta Regional Chief; and Stuart Wuttke, General Counsel.
Thank you, gentlemen, for being with us today. The floor is yours. I believe you have a presentation and then there will be questions.
Cameron Alexis, Alberta Regional Chief, Assembly of First Nations: Thank you, senators. In my language isiyés means "thank you.'' Thank you for allowing me to come here to speak to you today with my colleague on the right, Mr. Stuart Wuttke. Thank you for the opportunity to present to you tonight on Bill C-46, the pipeline safety act. My name is Cameron Alexis. I am the outgoing Assembly of First Nations Regional Chief for Treaties 6, 7 and 8 of Alberta and the AFN Portfolio holder for Energy and Natural Resources Development.
The AFN supports measures that will strengthen the safety and security of pipelines. However, there are some necessary measures that should be included in relation to First Nations, ensuring that the process for compensable claims is available to First Nations and ensuring the bill fully takes into account and protects First Nations' constitutionally protected rights.
All legislation, regulations, policies or delegated decisions related to pipeline safety must adequately consider and protect First Nations rights and title as required by the Constitution Act, 1982, and must be consistent with articles 26, 28 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples. In particular, article 32 of UNDRIP states:
1. Indigenous people have the right to determine and develop priorities and strategies for the development or use of their lands or territories or other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
The National Energy Board Act requires substantial amendments to respect First Nations' rights to determine and develop priorities and strategies for the development of our territories and to create avenues for good faith consultation and cooperation processes to secure the free, prior and informed consent of First Nations governments.
The pipeline safety act is focused on redress and mitigation of the potential impacts of pipeline development. At a minimum, the PSA should ensure that First Nations receive "just and fair'' redress for damages incurred to First Nations' inherent and treaty rights, including our property interests in traditional territories as a result of pipeline spills. This must include appropriate measures to mitigate adverse environmental, economic, social, cultural and spiritual impacts of pipeline operations.
In addition, the pipeline safety act and the National Energy Board Act more generally should ensure a process of "good faith'' consultation with First Nations government to ensure that First Nations' free, prior and informed consent is secured prior to the development of any pipeline project that could impact their lands, territories and resources, including aquatic resources.
The act should mandate the mobilization of both information and financial resources to First Nations so that they are capable of responding to pipeline spills and are aware of pipelines that might impact their lands, territories and resources.
First Nations are often directly and profoundly impacted by pipeline spills that occur in remote areas that go unreported for days before a company is even aware of any event. On some occasions, First Nations harvesters have been the first people to discover a spill; for example, harvesters for management proponents, if you will.
Moreover, when spills occur in rivers, the geographic scope of the spills might be broad and far-reaching. Even when the First Nations are notified of a spill, past practice has been to involve only those First Nations proximate to the source of the spill, even if the spill may dramatically impact the aquatic resources and livelihoods of First Nations far removed.
This is the unfortunate experience of First Nations in Alberta. In just one example, in April 2011, the Rainbow Pipeline, owned by Plains Midstream, an American company, leaked 4.5 million litres of light crude about 30 kilometres from the Lubicon Cree community of Little Buffalo. This was felt directly by community members who were sick with nausea, burning eyes and headaches. There were extreme environmental impacts throughout the watershed. That's the second time for this company. The community waited for years with little attention or action from the company or the provincial government.
There have been several other major incidents in the last decade, including Rainbow Lake and Cold Lake, Alberta, as examples. However, the PSA remains silent on issues related to First Nations concerns and would not likely lead to a change in current practice. The PSA does not address First Nations' capacity to respond to spills.
The AFN suggested in 2013 that the federal government undertake a needs assessment of First Nations' capabilities to respond to hydrocarbons spills, an action the federal government declined to consider. Even worse, the PSA would not result in disclosure to First Nations of the material passing through pipelines. Often, companies will add chemical diluents to increase the viscosity of hydrocarbon products. Some of these diluents may pose human health risks to first responders or to others who are exposed to oil spills. In addition, chemical diluents may have unknown and undisclosed impacts on the local ecology, the same local ecology harvesters rely upon to practise their constitutional rights.
Additionally, we are concerned with the provisions of the PSA on protection of pipelines against individuals coming into contact with them. For instance, my family has a fur management area that crosses over multiple pipelines. It is our responsibility to manage that resource, but this act puts the responsibility in jeopardy and inflates the protection of the pipeline above all other interests on the land.
I have provided this committee with concerns and recommended amendments outlined to the House of Commons committee along with AFN's 2013 submission regarding the bulk transport of hydrocarbons. Questions on these more technical matters can be fielded to my colleague, AFN General Counsel Stuart Wuttke.
What I want to impart on you this evening is the critical condition for First Nations' rights and interests to be recognized and incorporated in the PSA. Additionally, the invisibility of First Nations is a systematic problem with the National Energy Board. As a result, the AFN, in addition to specific amendments to the pipeline safety act, the committee is urged to recommend that Parliament immediately undertake both a review and a reform of the National Energy Board Act — and the unfinished business in the 1938 Natural Resources Transfer Act that transferred responsibility for resource regulation to three Prairie provinces — without the involvement or consent of First Nations. It is also known as NRTA in the Western provinces.
Aboriginal rights and title are clearly affirmed in the Constitution Act, 1982, and repeatedly by Canadian courts, most recently the Tsilhqot'in decision of the Supreme Court of Canada, also known as the William case, but Parliament continues to pass laws that do not include or respect these rights. This must change, and I call on this committee to make these clear recommendations for change, especially today, as the Truth and Reconciliation Commission releases its findings and calls us all to work on reconciliation.
With that, respectfully, chair and members of the committee, I thank you very much for allowing me to speak here. I also provided to everyone in an appendix a copy of just a sample of spills that have occurred in Alberta in the past couple years. I offer that as an example. Thank you.
The Chair: Thank you very much. I'll defer first to the deputy chair, Senator Massicotte.
Senator Massicotte: Thank you, both of you, for being with us today. It's much appreciated, and your point of view is quite important to us.
There could be a question about whether this is the right place to — the right amendment, the right act — make your point clear, but I think our committee would agree that we have no issue with the constitutional rights of the Aboriginal people, and we certainly have no dispute with the need to consult in a real sense. I think some Supreme Court judgments have made it clear that we haven't always been very real in that respect, but the government is trying to convince us all the time that its interests are real and that its intent is to achieve mutual terms.
But from your presentation, you're not convinced of that. You think the current bill should be amended to make it stronger, and you also make a comment that, to date, the consultation has not been adequate and we need to change the current practice.
Could you give us some examples of that? Why this bill, as opposed to the whole relationship with Aboriginal people, which is probably a separate issue? Why should we amend this bill? Give me specific examples that the NEB has not done the work, as you see it.
Mr. Alexis: Thank you very much for the question. I will answer it in part and then turn to my learned friend on the right.
When we talk about consultation, in my observation, I have not seen any finite policy or documentation that specifically speaks to how we consult, act by act, within federal legislation. I think it's important that we all sit down in the first instance to fully consult with one another as per the Supreme Court decisions. Oftentimes, sir and members of the Senate, we observe that we're consulted after the fact, when everything is already in motion. Our observation is that we're supposed to be equal partners, and we should be working in the very first instance and moving ahead cohesively. That would better relations and also address issues of consultation.
Yes, there are issues relative to provinces and territories, as well, that have to work together with First Nations. And, yes, other provinces have some consultation policies, such as Alberta. However, the position of the chiefs has always been that we need to be consulted in the first instance, and we don't always fully participate in the development of policies. I hope that answers some of your question.
Senator Massicotte: Has there been an instance in recent memory of pipelines being built on your lands or some of your people's land where you were not in agreement and the federal government ran roughshod over you and said, "I don't care if you agree or disagree; we're going to do it our way''?
Mr. Alexis: Thank you for the question.
With regard to the nation I come from, the Alexis Nakota Sioux First Nation, the TransCanada pipeline does go through our reserve lands. In history, a few decades ago, there was a spill. Even today, the spill is being cleaned up. That would be an example of the spills that do occur and how much time it takes to start to clean up the spills. Even today we're still testing the soil. Even today we're still removing soil to clean it up. That is an example. That is near Whitecourt, Alberta, about 85 minutes southwest of Edmonton.
Senator Massicotte: Farmers would probably have the same issue. I think they have the same right as you do. If there's a spill on their lands, it is the pipeline company's responsibility to identify, repair and pay all claimants who suffered damages. In fact, I think this legislation has been amended to make sure that the damage you suffer is also included in the calculation of damages. What else would you wish? What are you asking that the farmers aren't getting, let's say?
Mr. Alexis: Respectfully, I wouldn't compare myself to a farmer. I do believe I'm a treaty Indian of this country, and we have treaty rights that are supposed to be protected by the Constitution. I do believe we have a bit of a difference there in terms of how we do business. One of the things that I see here is there is no specific way of First Nations inclusion in these specific situations. I think those are some of the things we need to start looking at.
Senator Mitchell: I really appreciate your presentation. Are you paid some form of compensation for the pipeline being across your land, or is it just paid for in the initial building of the pipeline? Is there rent or something like that?
Mr. Alexis: Thank you very much, senator. Good question.
There are IBAs, and a certain amount of mill rates are included. Keep in mind that mill rates are not included in First Nations impact benefit agreements. I'm just using that as an example. However, we try to use the rates of the area to have some fair compensation. We do work with some industry groups very well and others not so well.
Senator Mitchell: What's the distinction that's implied by the point you just made about the agreement, the mill rates not being included in that form of agreement? What is the importance of that? Is it weaker? On the other hand, can it be changed? I'm just trying to understand.
Mr. Alexis: That's a good question, because we all know in this country, if a pipeline, whether it's provincial jurisdiction or federal jurisdiction, goes through a municipality, the municipality gets a negotiated mill rate. In the case of First Nations, we have to sit down and negotiate IBAs to try to get fair compensation that's equitable to perhaps a mill rate. That's what happens in the province that I come from, as an example, sir.
Senator Mitchell: I come from there, too.
I think you've implied that you feel that some companies would be more inclined to give you what a municipality would get than other companies. You say you work well with some and not so well with others. Why wouldn't you get what a municipality gets?
Mr. Alexis: That's a good question. I have don't have that answer. I wish I did, and then we'd have a better partnership in this country.
Senator Ringuette: Would the federal government get this mill rate from the pipeline instead of you in the first instance? Is that what you're saying?
Mr. Alexis: First Nations, by majority, do not get mill rates.
Who gets it? Usually if a pipeline is going to go through a specific area, the local municipality will negotiate the mill rate, whereas the First Nation will not get the mill rate so we have to negotiate an agreement to get some fair compensation.
Senator Ringuette: You negotiate with the pipeline company?
Mr. Alexis: Yes.
Senator Ringuette: Therefore, the pipeline company is not giving this rate to the federal government for passing through your land. There's quite a difference here. If a rate is paid by these companies to the federal government and then you have to request to the federal government that that rate be provided to your communities, that's one option. The other option is that no rate at all is being paid for the right to pass through that territory in comparison to what would be paid to a municipal or provincial government. That's another story.
What is the actual situation? The pipeline company would not at all be paying the federal government for that section of territory that is within Native land?
Stuart Wuttke, General Counsel, Assembly of First Nations: I can try to answer your question.
If there's any project on First Nation lands, there are a number of factors that come into play. The reserve land itself, of course, belongs to Her Majesty held in trust, so there are a number of matters that the Department of Indian Affairs negotiates or is supposed to negotiate with companies.
When it comes to IBA agreements, impact benefit agreements, and those types of arrangements, sometimes help or guidance is provided by the federal government and sometimes it isn't. Generally there's a view now that First Nations are entitled to arrange their own agreements and, if they negotiate a bad agreement, it's sort of their fault. If they negotiate a good agreement, it's good.
The way I understand a lot of how the First Nations operate, many times, when negotiating these agreements, they operate in a vacuum. There are a lot of confidentiality provisions when a pipeline is working with one First Nation versus another. Even though it may be the same pipeline, the different communities may not be getting the same benefits as a result of the various negotiations they have. It's a funny way of doing business, but it's generally what's available to First Nations.
Senator Seidman: Thank you very much, Chief Alexis, for being with us today.
You made a submission to the committee entitled "Environment Submission on Hydrocarbon Transportation,'' dated June 27, 2013. I would like to ask you about a couple of the recommendations that are made in the submission. One of them says:
In order to ensure consultation is meaningful and that adequate engagement occurs in the designation of plans and priorities, all relevant information must be disclosed by transporters, handlers and the Government, including information that may be considered confidential (e.g., proprietary information); and
Mr. Wuttke, you already started talking about this is response to Senator Ringuette, but I would appreciate it if you could help me understand what that recommendation means.
Mr. Alexis: Thank you very much. I will defer that to Stuart again because I did not submit that. It was submitted by the AFN in written text, but no one actually became a witness to it.
Mr. Wuttke: I did touch on part of that in my earlier answer to the question.
As I mentioned, when it comes to First Nations negotiating agreements with various proponents, a lot of the information is proprietary. They go into negotiations and a lot of the discussions are confidential. In many cases, First Nations act on the information that's actually shared with them, but not all the information may actually get to them. There may not be full disclosure, for instance.
Senator Seidman: What kind of information are we talking about? When you say it's proprietary, are they corporate secrets? I'm not sure what you mean.
Mr. Wuttke: Some of it could be corporate secrets. Some of it may be confidentiality with respect to the rates they're paying. They don't want other people to know exactly what they're paying you, so they have to keep that in confidence. Another First Nation a few miles away may be negotiating the same agreement. You can't interact with them or share information with them, tell them how much you're getting. So you have no idea whether or not you're getting a fair agreement or a bad agreement until the deal is done.
Later on, after they're actually in operations and compensation is being provided and audited statements are going to the First Nations disclosing how much they receive in royalties, for example, it's only then, at the very end, that people can acquire information on what the arrangements are with other groups. At that time you may determine whether or not you actually have a fair agreement or not.
Senator Seidman: The other recommendation that I'd like you to help me understand is the last one on that page, if you're looking at the same page I'm looking at. It's not numbered so I can't even tell you the number of the pages.
In order to ensure the integrity of the consultation process and of safety plans, adequate resources should be afforded for First Nations to maintain capacity to engage in fully informed dialogue.
What does "adequate resources'' mean?
Mr. Wuttke: At this point, First Nations receive funding mainly from the federal government, or if they have own- source funding. In many cases First Nation communities may lack human capacity to negotiate certain agreements or to look at various, as we say in here, safety plans should something go wrong. There may not be biologists in the community, for instance, to take samples. There may not be chemical engineers who can provide expertise or some advice to First Nations. The capacity they have is limited, and the resources to get that advice from outside sources or from the industry may be impaired as well because they may not have a lot of money with respect to band support. In those cases, they're engaging in some of these activities or negotiations with proponents and they don't have a whole room of advisers that they can rely on, unlike industry or the federal government.
For instance, if Environment Canada could provide expertise on a gratuitous basis to First Nation governments, that would be a step forward. Right now that advice and help does not exist, so First Nations go into these negotiations operating very blindly.
Senator Seidman: So you're talking about experts who could help you figure out what's important?
Mr. Wuttke: Exactly. You may get some information from a proponent and sometimes you have to take that at face value because you have no expertise to actually test the theories or the presumptions that the proponent is offering or suggesting. They may be erroneous calculations or their findings may not be very compelling, but a First Nation wouldn't know that unless they were able to hire experts to assess what's being proposed, the impacts and make recommendations. Basically they have no way of testing the science.
Senator Seidman: Thank you very much. That has been very helpful.
The Chair: I have a few questions with regard to the sharing of information. In my experience in the province I come from, most First Nations actually want the confidentiality held. They don't want the company to go out and actually tell everyone else what they're getting, the other First Nations. That's what I'm used to. It's quite common to hear First Nations say, "You've struck this deal with us, but that's between us. That's not for anyone else to know.'' So companies are held to that.
Is that what you're familiar with in Alberta? I can't imagine it's much different.
Mr. Alexis: Thank you very much, Mr. Chair. Good question. I'm glad that you asked it because if you look at a pipeline that's going to go across the country, you will find that negotiations take place with every individual nation, as you suggested, and every one of them has a closed-door agreement in the IBA, and some are better than others.
At the same time, those negotiations take place behind closed doors because there is no specific policy or act that says this is how you shall negotiate with every nation across this specific pipeline,, so every one of them becomes a negotiation case by case, nation by nation. Oftentimes the company also wants it that way; it's not just the First Nation. But if we had something finite in place, saying that this is how we should be dealing with this, I think it would help everyone.
The Chair: So what you're saying is that the federal government should create a law that says every First Nation shall be treated exactly the same if a pipeline is going across the country. Do you actually believe that that would be accepted by all First Nations where that pipeline would cross?
Mr. Alexis: Not necessarily, but I think it would be a good place to start thinking about this. For example, there have been discussions about pipelines going east. If you do that you'll go over many provincial boundaries, municipalities and, of course, First Nation ancestral lands. The question is how you want to deal with it as you progress across the lands. If you had a systematic, clear policy or act in place that addresses this, it might serve everyone better.
The Chair: I appreciate that and will take that advice. That would be something that your group maybe, with representatives across Canada, would have to start working with all First Nations to actually accomplish.
The other question I have is with regard to the spills you've given us here, the Rainbow Lake pipeline in your notes. Are they provincial or NEB responsibility?
Mr. Alexis: Thank you for asking that question. It's an interesting one because the NEB has jurisdiction across Canada if they're going to go from province to territory to territory. Provincially, yes, there's a responsibility for provinces to deal with spills internally but, at the same time, some of these pipelines feed into a bigger pipeline. Then there's also an issue relative to NRTA across the Western provinces, which has not been dealt with either. So at what point, in which jurisdiction and whose authority do we actually work with? That remains a question because the NRTA, for example, is unfinished business.
The Chair: The National Energy Board is responsible for those pipelines that cross borders internationally or across Canada, so that's their responsibility. It maybe gets more difficult.
When you talked about developing legislation, I appreciate that you talk about input into the legislation. This piece of legislation would and will, if there's a pipeline built from the absolute East Coast to the West Coast, affect a lot of First Nations across the country. Where would the federal government go to negotiate or consult about how the legislation should be drafted? Who would be that overseeing group for all of those different First Nations that would be affected in the whole country? They're all individual, and rightfully so. I think many of them have their own ideas about what should happen.
The difficulty I see is that when you try to work out legislation, who do you go to and say, "This is the group that is going to represent everybody,'' and then everybody's happy and in touch with how you negotiate that?
Mr. Alexis: I'll perhaps answer in part and then I'll turn to Stuart.
The way business is conducted in First Nations is nation by nation, you are correct. However, First Nations come together at annual general assemblies of the Assembly of First Nations, and from there the chiefs — much like governments — debate resolutions. Once an AFN resolution is passed, it is basically a marching order to continue advocating and lobbying for the best interests of the parties. It's not a perfect system, but usually that's how it works.
In other places such as Alberta, if you are coming through the Treaty 6 territory, for example, you would be negotiating with the Treaty 6 chiefs. As you can see now, if you go into another province — for example, Saskatchewan — you might be dealing with Treaty 4 or another numbered treaty. Or if you come to northern British Columbia, you would be dealing with a modern day treaty of the Nisga'a.
Mr. Wuttke: The only thing I would add is that the paradigm we exist in now is really a creation of the federal government. When you look at the 636 First Nations across Canada, they are essentially bands that were set up under the Indian Act. That is really a federal creation, so the federal government created the band system for whatever purposes. Unfortunately, that's the system we have to operate within. When it deals with consultation issues now, in the 21st century, those are the rights holders that the federal government is going to have to negotiate with.
In the past, obviously First Nations had much larger collectives or aggregate governments, whether it's the Ojibway people or the Iroquois Confederacy or the Cree Nation, for instance. They were larger groups, but that traditional governance system has been largely replaced by the Indian Act.
Some First Nations are going back to rebuilding some of their nations, such as the Nisga'a. A number of the bands got together and created a self-governing body, so you do see reunification of a lot of nations taking place.
In all fairness, I know it's a daunting task to consult with all of these First Nations, but the federal government created that system, and unfortunately they're stuck with it and now have to live with it.
The Chair: I come from northeastern British Columbia. I can't speak for the First Nations, but I know the seven First Nations there would never say that the AFN or some other group represents them. Never. At least that has not been my experience in the many years I have worked with them.
So it would be quite a challenge to actually deal with all 600 nations to develop a piece of legislation. I think all of us know the length of time it would take to get something like that done while we're waiting to try and rectify some things that aren't working right.
Thank you very much for those answers.
Senator Massicotte: I'm not very experienced in your affairs, so I wanted to understand a little more. When I read your presentation as well as the more generic one we received, there is a disappointment. There is nearly anger with how you have been treated by the NEB and with the lack of consultation by the federal government.
Let me be more specific, and you can educate me on this. Let's say there is a pipeline going through your territory. From what I read in the press, the pipeline companies and the governments are very much respecting your rights to those lands and are seeking your approval. From what I've read so far, nobody has superseded your authority to say, "I don't care if you don't agree; here's what's going to happen.'' There seems to be a lot of authority being delegated to seek your approval. Is that the case?
If that is the case, where companies are trying to reach an agreement with you, obviously you then have all the negotiating power to have in the agreement some of the points you have raised today relative to your rights. That's part of contractual negotiations. What am I missing? Or is that not the right picture?
Mr. Wuttke: I can answer your question. Really, when you're dealing with lack of consultation — I know that efforts have been made to date to seek First Nations' permission for resource development. Not too long ago that wasn't the case, and that's largely as a result of Supreme Court rulings. A number of projects in the past were developed, such as hydroelectric projects in various areas across Canada, where there was no consultation. They just built them and there was significant damage to First Nations ecosystems, but now we have a process where an effort is being made.
We always hear on the other hand, though, for instance, what is called for in the United Nations Declaration on the Rights of Indigenous Peoples regarding resource development and projects that happen on traditional lands. The federal government has stated consistently that First Nations do not have a veto right on any projects. That provides a signal to many First Nation communities that if they don't actually negotiate an agreement through this approval- seeking process that you mentioned, there is always, in the end, the threat or the possibility that the federal government may still build a project or authorize the construction of a pipeline despite First Nations' opposition to it.
I think it is fair to say there are efforts being made to accommodate First Nations' interests. Do they go far enough? That's debatable, but in the end, I think in reality the federal government could still authorize various permits and ignore First Nation wishes.
Senator Massicotte: Given what I know from previous witnesses, that's certainly the position of the federal government. With regard to their interpretation of your rights — in other words, the need and obligation to consult — I heard some of your people say that "consult'' means you must have an agreement. I think the federal government says they will consult, consult, consult, but the way they interpret the Supreme Court judgment is that they have the right in the end to decide if they actually did consult, sincerely so. I'm not a constitutional lawyer. You are disappointed you don't have that federal veto right, but that's the law of the land as they define it.
If that is the case, then, when I read your points and your issues — for instance, going over the lands with a tractor and so on — most of these things can be negotiated in a contractual agreement as, to use the comparison, farmers do relative to their lands. There is a generic agreement, but a lot of stuff can be resolved in your direct negotiations. It's very difficult to have an act of Parliament cover all the angles and all your interests, so I strongly encourage you to get these things out front when you are negotiating these deals. Do you have any comments?
Mr. Wuttke: The only thing I would say is when you talk about lands, you have to be conscious of which lands you're talking about. If you're talking about reserve lands, First Nations have certain obligations and rights.
When you look at more of the traditional territories that are covered under the treaties, some of which may not be reserve lands but are still being used for traditional purposes, such as harvesting and fishing, those types of activities become more of a grey area for a number of people, so you may not have the actual authority to control what happens on your lands in those cases. There may be more resistance by other individuals.
The only thing in a contract, while the relationship is good and things operate very well and people are more accommodating, there may be issues that pop up in the future that for now you may be able to drive your tractors over pipeline lands. But the relationship could sour and they could always point back to the legislation and say, "The legislation says you're prohibited from doing this,'' in which case you come up with a legislative regime. That puts a First Nation in a position they may not necessarily like to be in or should be in.
Senator Massicotte: Point well taken.
The Chair: I have no more questioners on the list.
Thank you to both gentlemen for coming and presenting your thoughts. We appreciate it very much. We will take what you have said into account as we deal with this bill.
(The committee continued in camera.)