Question re: Oil and gas development in Kaska traditional territory – March 27, 2013

Mr. Silver: Last fall, the Government of Yukon passed legislation to try to strip the Kaska of its veto over oil and gas development in its traditional territory. The Government of Yukon also signed an MOU with the Kaska in 1997 that spoke to the issue of consent and vetoes. The minister has thus far been completely silent on the ongoing enforceability of section 5.1 of the MOA, even with section 13 of the Oil and Gas Act having been repealed. I’m looking for a clear answer as to the government’s position at this point.

Will the minister confirm that the consent requirement for the issuance of new oil and gas dispositions in Kaska traditional territory, which the parties agreed to in good faith and confirmed in paragraph 5.1 of the January 1997 MOA, will continue to be honoured by the Government of Yukon? It’s a simple yes-or-no question.

Hon. Mr. Cathers: Mr. Speaker, if the Member for Klondike was here and listening last fall — I know he was here and I hope he was listening — he would recall that we had extensive debate on this during the amendments to the Oil and Gas Act. We then identified that the preceding condition in the 1997 MOA identified that all parties were agreed that the highest priority was placed upon the conclusion of land claims at the earliest date. We have indicated, in tabling the amendment to the act and passing it through this House, that the requirement for the Kaska will be the same as for all the 11 First Nations that have concluded land claims, that being the government will have a common-law obligation to consult with them and to consider their opinion on certain matters relating to oil and gas dispositions and rights.

Mr. Silver: Mr. Speaker, I appreciate the answer from the minister, but I have a specific question today, and I know he is listening to it. I want a yes or no on 5.1. It’s disappointing that the minister won’t answer a simple yes-or-no question. There is an MOU in place that says that Kaska consent is required before oil and gas rights are issued in southeast Yukon. Will the government honour this commitment? Yes or no?

The Kaska are certain of the view that, even with the repeal of section 13 of the Oil and Gas Act — which was done last fall — the government still has a legally enforceable obligation under section 5.1 of the 1997 MOA to obtain consent before issuing new oil and gas dispositions in the Kaska traditional territory.

What is the government’s position? Does the minister believe that the Government of Yukon, having amended the Oil and Gas Act, can now issue oil and gas dispositions in Kaska traditional territory without Kaska consent? Yes or no?

Hon. Mr. Cathers: I believe I actually answered that question for the member. I didn’t think I needed to state it in the very simplest possible terms for him to understand, but the simple answer to that is, as I indicated in my previous response and as we indicated last fall, the advice that we have received from Land Claims and Implementation Secretariat staff and from our Justice legal counsel is that the Yukon government’s obligations, now that the Oil and Gas Act has been amended, for the Kaska are the same as for all 11 First Nations that have concluded final agreements. That is, when we are dealing with oil and gas dispositions in their territory, we have an obligation to consult with them and to consider their opinion, particularly with regard to any potential impacts on treaty rights or asserted aboriginal rights. What we have done is create a level playing field for all 14 First Nations.

Mr. Silver: I don’t know, Mr. Speaker, if you can help me with this — if that was a yes or if that was a no — because I am still unclear.

Last fall, the Government of Yukon amended the Oil and Gas Act to try to take away the Kaska’s veto. There is potentially a major problem with the minister’s plan. Changing the legislation does not do away with the government’s commitment under section 5 of the MOU. Maybe the government doesn’t think that it’s bound by this MOU. It’s impossible to know because the minister has repeatedly refused to answer that question last fall and he again refuses to answer that question today.

Is it the government’s position after the repeal of section 13 of the Oil and Gas Act that it is not bound by section 5.1 of the 1997 MOA?

Hon. Mr. Pasloski: I rise today to again state that this government believes that Yukon resources belong to all Yukon people and it is important that we do in fact treat all First Nations equally and that we will continue to meet and exceed our obligations to consult with First Nations, not only under the Umbrella Final Agreement, but all other agreements that we have, and for many other reasons that we continue to consult with First Nations.

In the last 10 years, this government invested millions of dollars trying to reach a consensus agreement with Liard First Nation and the Kaska, and we will continue to work toward reaching an economic agreement with them, because this is really about the people who live in southeast Yukon. It’s an opportunity for the people who live there to have a future, so kids coming out of school know that there will be opportunities for good jobs so they can stay in their community. This government is committed and focused to look after the people who live in that area so they have a bright future.