Indigenous and Northern Affairs Committee on Dec. 10th, 2012

[John Merritt]

One feature of the bill that you'll notice is that there are time limits in relation to decision-making, and not just time limits for management bodies but also government officials, which is an important feature. It's important that public sector participants play by the clock, as well as private sector investors and organizations and other people. That's a feature of the bill that you won't see in the land claims agreement. The land claims agreement doesn't have that level of detail.

There was consensus in our working group that it would be useful for everybody to have some time limits, in terms of making sure that everybody can make management decisions within a rational world. I don't think that's just a gain for Inuit, for developers, for government. I think that's a gain for the people of Canada, having a system that's going to be more effective. Insofar as that makes economic development easier, that's a benefit coming out of a creative process where two parties themselves try to add value to the bare minimum set of rights that the land claims agreement entails.

[Blake Richards, Conservative, Wild Rose, AB]

Good. Thank you.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Richards.

We'll turn to Ms. Bennett now, for seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Like my colleagues, I was a bit surprised to receive your 32-page document and 13-page appendix in terms of amendments.

As you said in your testimony, the concern in the three party negotiations was that if there were an area of conflict, the Nunavut agreement would prevail.

Is the disagreement a matter of interpretation as to whether it conflicts with the Nunavut agreement? Did you see it when the drafters were finished with it and comment then? Do you believe that if push came to shove, certain parts of Bill C-47 would be struck down based on its inconsistency with the Nunavut agreement?

[John Merritt]

We haven't taken our analysis that far in the sense of predicting specific legal problems that could ensue.

As a general proposition, it's very important that new laws, particularly laws that are there precisely to help implement the treaty, are developed in such a way as to support and give further effect to that treaty rather than introduce doubts in places where there's a divergence in wording.

Whenever there's a divergence in wording, there's a potential for conflict. We know that just as a general proposition. We wouldn't have lawyers and lawsuits if that weren't a reality.

For example, we've had explanations brought back to us that legal drafters employed by the Department of Justice prefer certain wordings to others. Our view is that whatever the conventions of drafting in other arenas, when you're giving effect to an agreement, whether it's a domestic treaty or an international agreement, it's important to preserve what the parties themselves negotiated.

The fact that somebody later on might think there's a preferable or an advantageous way of phrasing something, or the fact that somebody might be appealing to conventions used elsewhere, is beside the point. To honour the agreement is to honour the words the parties chose.

On those things, we don't think we're proposing amendments that are bad for anybody. We don't view this as a zero-sum game. We're not suggesting something in these amendments that we think would somehow be adverse to the interests of the people of Canada or to peace, order, and good government in Nunavut. We're making suggestions that we think strengthen this bill, and we invite you to make those amendments accordingly.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Maybe you could carry on with the example, which was around the technical amendments, the possible gaps, your discomfort with the narrow definition of departments and agencies. Maybe you could expand what you were doing before, in terms of the potential impact on that in creating a national park or a marine protected area.

[Richard Spaulding]

Sure. One of the earlier questions was whether there were points of agreement on the design of the bill. One of the most difficult places to get points of agreement was with respect to how planning and the results of an environmental assessment will be implemented. Several key design features in the bill reflect the consensus that was clearly reached on those points. Some were mentioned in Ms. Hanson's presentation. For example, proponents themselves will commit an offence if they act in a way that's contrary to the term or condition of a project certificate. It's stipulated in the bill that an authorization that can be issued by a regulatory agency may not be issued if the assessment process in the bill has not been completed.

Those are examples of where what's needed to implement planning an environmental assessment is spelled out in the bill. One of the features of that nature is the clause that says that departments and agencies are responsible for conducting their affairs in accordance with land use plans. That's the general provision that has to be relied upon to implement the terms of land use plans vis-à-vis the establishment of national parks, marine conservation areas, and a whole range of other conservation areas.

NTI asked about, looked for, and hoped to get more specificity on that front in the bill. NTI proposed that there be a specific clause stating how conservation areas and parks would be implemented once the Planning Commission had done its job. We didn't get it. We had to accept the general language, which is in clause 68, indicating that, in general, departments and agencies that have powers in relation to land use plans have to act in accordance with the land use plans. That's the provision being counted on, but when you go to the definition of a department or agency, you find that it is written in an exclusive way. There's no definition of a department or agency in the agreement. You find it used in different phrasing. All government departments and agencies, for example, is a typical phrase in the agreement, but in the bill, it's defined as being the public service, essentially.

We inquired. We said that surely there must be a way to interpret that to include cabinet. The answer we got back was no. There's an acknowledgement on the part of federal officials that the Governor in Council, when establishing these conservation areas and so on, will not be caught. That's a gap in the design of the act, in NTI's submission.

[The Chair, Conservative, Chris Warkentin]

Thanks, Ms. Bennett.

We'll now turn to Mr. Wilks, for seven minutes.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Chair.

I thank the witnesses for coming here today to testify again. I'll try to get through the four questions I have for you.

The bill establishes Nunavut Tunngavik as a signatory to the land use plans, which is not a specific requirement of the Nunavut Land Claims Agreement. Can you explain to the committee the significance of this?

[John Merritt]

We think that's a strength of the bill. The practice in land use planning in Nunavut since 1993 has been that the two governments and Inuit sign on to any new proposed plan. There are a lot of good reasons for that, not least of which is that the Inuit own 20% of the land. Insofar as one wants a plan that governs all land use, including land use on Inuit-owned lands, the political accommodation is such that you really want both levels of government and Inuit signing up to the same rule book, in effect.

The land claims agreement didn't explicitly say that Inuit had to approve a plan in advance of it coming into force. This bill actually enshrines the practice that has been in place since 1993, if I can put it that way. In that sense, we think that's a very strong feature of the bill. It's an important example of how parties to treaties don't have to check their imaginations once they sign. Treaties are floors, not ceilings, and insofar as willing parties can adapt those treaties and make them stronger, make them win-win for both the crown and the aboriginal party, there's a great opportunity with legislation like this. That's a very good example of how it can be done.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you very much.

The minister and the president exchanged letters committing them to pursue amendments to the Nunavut Land Claims Agreement on four topics: the single-entry point, the transboundary shipping of persons or goods, the definition of “project”, and responses to emergency situations.

In order to ensure the agreement and the Nunavut planning and project assessment act will be consistent, can you comment on what effect, if any, your submission has on that commitment?

[Richard Spaulding]

NTI's submission and request for changes to the bill before the bill is enacted are consistent with those undertakings. The understanding is that the intention of the parties is to develop a bill that is in all respects consistent with the land claims agreement. Again, it's in that same spirit that NTI is asking the committee to make the clarifications that it seeks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

The bill fulfills the last outstanding legislative obligation of the federal government related to the Nunavut Land Claims Agreement. Do you feel that this legislation will enable greater local autonomy for land use planning within Nunavut?

[John Merritt]

On your first point, I know a lot of people believe this is the last piece of implementation legislation. I think, in fact, it's not. There's a large project involving implementation legislation in relation to fisheries in Nunavut that has not yet been completed. That legislation may be such that it can be done through regulation as opposed to statute, but it's still a major piece of work. I'm just flagging that for the future.

I'm sorry, what was the second part of your question?

[David Wilks, Conservative, Kootenay—Columbia, BC]

Do you feel this legislation will enable greater local autonomy for land use planning within Nunavut?

[John Merritt]

The bill doesn't actually focus on local land use planning. Local land use planning is governed by territorial legislation in relation to municipalities. I think it clarifies a little bit of the world that unfolds when local plans and the broader Nunavut and regional plans interact, so it probably helps a little bit, but it doesn't rob municipalities of the fact that they're primarily responsible for land use planning within their boundaries.

[David Wilks, Conservative, Kootenay—Columbia, BC]

It's no different from any other community.

[John Merritt]

Correct.

[David Wilks, Conservative, Kootenay—Columbia, BC]

The bill empowers the Nunavut Impact Review Board to review and assess projects outside of the Nunavut settlement area. In your view, does this address concerns regarding the potential impact of out-of-area projects on Nunavut?

[Richard Spaulding]

I have a short answer: yes. The agreement also provides for that, so in that respect the bill is implementing the agreement, and the conditions in which Nunavut can play that role are when those outside projects have significant impacts within Nunavut.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you very much, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Wilks.

We'll now turn to Mr. Bevington for his five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, witnesses, for being here today.

When we had the Nunavut government in front of us, they characterized these differences between NTI and the Nunavut government as wording issues. Looking back over these recommendations that you've made to us, I was taken by recommendation 3, on clause 141 and related provisions, dealing with significant modifications.

What you're attempting to do here is more than simply a wording change. It's a very important distinction of how you come to understand the nature of an assessment. I sat on an environmental assessment board for years. The idea that the proponent does not have to forward the sufficient modifications to the commission seems to me to be an error in the legislation.

Perhaps you could comment some more on that. I don't view that as simply a wording issue. I see it as a very fundamental issue about how you conduct environmental assessments.

[Udloriak Hanson]

That might have been the way the Government of Nunavut characterized our proposed amendment. I'll pass it over to Dick after I speak, because again, he was on the working group.

They're more than just word changes, wordsmithing. There are changes recommended that would change the design features and basic processes.

When the comment is made about how big this written submission is, as large and as technical as it may look, really there are 12 recommendations that have been broken down into different sections. I think that very easily describes how the committee can make these changes, with the explanations, all of which make up the other 40 pages.

To respond more specifically to your question, I'll hand it over to Dick.

[Richard Spaulding]

Yes, that suggestion is for more than a wording change to the bill. It is for a process change.

Essentially, it is not to add to the burden on the proponent that the bill would place in relation to significant modifications. In fact, if anything it would reduce the burden because among the changes we're proposing is the proponent need not get it absolutely right in deciding whether the modification to its project description is, within the language of the bill, a significant modification to the project. We're suggesting that it's only if that kind of change may be in the ballpark of what could be viewed as a significant modification that the responsibilities under the bill would be triggered.

The key change that's proposed there is that regulators who have relevant knowledge about what's going on should contribute to the process. By adding responsibilities on the proponent in the design of this bill to come forward to the commission when it's bringing a project into the stream of assessment, we don't think the bill necessarily needs to be designed so as to leave regulators out of a cooperative process.