Bill C-15 (Historical)

Northwest Territories Devolution Act

An Act to replace the Northwest Territories Act to implement certain provisions of the Northwest Territories Lands and Resources Devolution Agreement and to repeal or make amendments to the Territorial Lands Act, the Northwest Territories Waters Act, the Mackenzie Valley Resource Management Act, other Acts and certain orders and regulations

Part 1 enacts the Northwest Territories Act and implements certain provisions of the Northwest Territories Lands and Resources Devolution Agreement. It also amends and repeals other Acts and certain orders and regulations.
Part 2 amends the Territorial Lands Act to modify the offence and penalty regime and create an administrative monetary penalty scheme. It also adds inspection powers.
Part 3 amends the Northwest Territories Waters Act to make changes to the jurisdiction and structure of the Inuvialuit Water Board, to add a regulation-making authority for cost recovery, to establish time limits with respect to the making of certain decisions, to modify the offence and penalty regime, to create an administrative monetary penalty scheme and to make other changes.
Part 4 amends the Mackenzie Valley Resource Management Act to consolidate the structure of the Mackenzie Valley Land and Water Board, to establish time limits for environmental assessments and reviews and to expand ministerial policy direction to land use planning boards and the Mackenzie Valley Environmental Impact Review Board. This Part also amends the administration and enforcement provisions of Part 3 of that Act and establishes an administration and enforcement scheme in Part 5 of that Act, including the introduction of enforceable development certificates. Moreover, it adds an administrative monetary penalty scheme to the Act. Lastly, this Part provides for the establishment of regional studies and regulation-making authorities for, among other things, consultation with aboriginal peoples and for cost recovery and incorporates into that Act the water licensing scheme from the Northwest Territories Waters Act as part of the implementation of the Northwest Territories Lands and Resources Devolution Agreement.

Northwest Territories Devolution Act

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, that is truly an excellent question from my esteemed colleague.

I am going to make a sad observation about the implementation of the budget, about Bill C-4, which we studied in committee.

Unfortunately, we had to review, examine and vote on 472 clauses. The opposition parties introduced over 60 proposed amendments to that bill, and they were systematically voted down.

That is not even to mention the government's particularly underhanded trick of amending the rules in committee to allow independent members to submit their proposed amendments to the committee instead of here in the House. That showed a lack of respect and it reduced the powers of independent members. Those powers are widely recognized and have been in effect for a very long time.

The government respects virtually nothing, and that completely undermines our trust.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I thank my colleague from Beauport—Limoilou for his brilliant and compelling speech.

I would like to quote Robert McLeod, the Premier of the Northwest Territories. He said, “This Assembly has a vision of a strong, prosperous and sustainable territory. Devolution is the path to that future. Responsibility for our lands and resources is the key to unlocking the economic potential that will provide opportunities to all our residents.”

Earlier, my Liberal Party colleague said that our position was a step in the right direction.

Why does my NDP colleague think that Liberal governments spent years ignoring the Canadian north and refusing to listen to the aspirations of northern residents?

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I thank my colleague for his question.

I must humbly admit that I cannot answer it, since I cannot read my Liberal colleagues' minds. All I can do is look at what has come out of their actions. I hope their unquenchable thirst for power is not making them forget other public considerations.

It is rather disappointing. The situation could have started moving forward a long time ago. Fortunately, this government is moving forward with the bill after being in power for almost eight years. We have to at least give the Conservatives that.

The Premier of the Northwest Territories will see part of his dream come true and will be able to be master of some of his own destiny. That is why the New Democratic Party will work in a positive and constructive way to pass Bill C-15.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I am happy to join the debate on Bill C-15, which sets the table for the—

[The Acting Speaker, Conservative, Barry Devolin]

Order, please. If I could interrupt, I remind all hon. members that we have reached the point in the debate where speeches will now be 10 minutes followed by five minutes of questions and comments.

The hon. member for Algoma—Manitoulin—Kapuskasing.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Again, Mr. Speaker, I am happy to join the debate and I am happy to say that my speech will be 10 minutes.

The debate is on Bill C-15, which sets the table for the meaningful devolution of federal powers to the Northwest Territories under the lengthy title, “An Act to replace the Northwest Territories Act to implement certain provisions of the Northwest Territories Lands and Resources Devolution Agreement and to repeal or make amendments to the Territorial Lands Act, the Northwest Territories Waters Act, the Mackenzie Valley Resource Management Act, other Acts and certain orders and regulations”. Who would think of having such a long title except the Conservatives, given the fact that we have seen all of the omnibus bills they have put through. This is basically an omnibus act, just about.

It is easy to tell by the length of the title that we are dealing with a large bill, so it is not surprising that the legislation would amend 42 acts as part of the process that would allow the Northwest Territories to take greater control of their own destiny, much the same way as provinces do. It is an important development that reflects the preparedness of the territories to take on a greater role in their administration and become more financially independent as well. We have heard over and over again from first nations, Inuit and Metis people who certainly want this. They want to be as independent as possible.

The New Democrats support the idea and are willing to work with the government on this legislation. We hope that some items can be tightened up at committee to address the concerns we are hearing from our partners in the Northwest Territories throughout this process and look forward to creating stronger legislation that makes sense to all involved, as well as an outcome that will be better than merely acceptable and would allow the Northwest Territories to grow into a more independent jurisdiction.

I want to repeat we hope to tighten this. Contrary to what the parliamentary secretary said a while ago, the witness in committee this morning did not say that he did not want any changes. It was very clear that he knew there should be some changes. However, what he said was that what was put forward by the government was basically the direction it had to take in order to move this forward at this point. He never said that he did not want any changes.

I want to be clear that we are not under the impression that this legislation does not have issues that require attention. There are items of concern that must be addressed and we are hopeful there is some willingness on the government side to work with Parliament to address outstanding stakeholder concerns. Again, it is not about just one witness, it is about many witnesses to come and hopefully the government will not to try to rush this stage of committee. This has been a challenge for the government in the past, but we remain hopeful at this point.

Certainly, the pan-territorial regulator for the environmental screening of industrial projects is potentially problematic. It does away with a number of regulatory boards and processes, which are known and understood, and replaces them with a single regulator that will supposedly be more responsive, but will also have fewer teeth. We have heard from the government benches today that working groups or subcommittees would be able to address more specific concerns. However, it does not require a leap of faith to imagine that subcommittees or working groups will have the same strength as the entities being replaced, such as regional land and water boards.

The New Democrats are strong supporters of the devolution of more power and authorities to the territorial governments. Although we have no intention of standing in the way of devolution, we are committed to work to ensure that Bill C-15 meets northerners' expectations, not the government's expectations. Many of the reservations we hear about have to do with the changes to regulatory regimes.

With respect to the single regulator, it is important to listen to dissenting voices who speak from experience, people like the Northwest Territories' MLA Bob Bromley, who said in February of 2012, “The federal government’s proposal to collapse the regional land and water boards into one big board is disturbing, unnecessary and possibly unconstitutional”. He went on to describe it as “a single board does nothing to meet the real problem: failure of implementation”.

We also have to recognize that the Conservatives have reserved control over appointments to the environmental review board and maintain control over the approval of licences. This is more like devolution with strings attached than it may seem at first blush. It may be more of a case of devolution in name only if the real power is still dependent on decisions from the minister's desk and his or her hand-picked appointees.

We can also ask if this superboard should not fall into place after outstanding land claims are settled. Is this a case of reaching further than necessary on one item and not challenging ourselves enough on another front? That said, devolution is an idea that has legs and that would give the Northwest Territories residents a greater voice in decisions related to their economy and environmental protection, even if it comes with strings attached. However, it would be best to fix those strings attached. I stress that we have to address ongoing concerns about the legislation in committee. That stage must be taken seriously by the government. It should not assume that we cannot improve the bill.

The proposed legislation would do some important work that is welcome. It would fix the current scheme so that the government of the Northwest Territories would start to receive revenues from resource development and would rely less on federal transfer payments and taxes to deliver public programs and services. Under the new agreement, the NWT would keep 50% of the revenues collected from resource development on public land, up to a maximum amount that would be pegged to their operating costs or their gross expenditure base. The Government of Canada would retain the remainder. To reiterate, that would be 50% of the revenues collected from resource development.

I can tell members that when it comes to resource development, the NDP has always advocated that shared resources with first nations, first and foremost, are key when we are looking at major investments.

It is my understanding that this arrangement would allow for a little more money to remain in the territories than what is currently provided for by the federal government. That would require that resource development proceed, but it seems reasonable for us to assume that development would take place and that those moneys would become available.

This is a part of the bill that makes sense. However, the strength of a certain part of a bill does not create the authority to ram through the remainder without attempting to tighten up contentious items. If we do not, we will be stuck in a cycle of amending what has been missed at this critical stage. We are tired of seeing that. More and more of taxpayers' dollars are being spent in litigation trying to fix some of the critical pieces.

It is true that there is a danger that we could be constantly locked in discussion mode with no action, but we have to recognize that it is just as dangerous to consult and ignore. The desire of any government to notch an achievement in its belt has to be balanced with the strength of that achievement, which depends on the inclusion of the multiple voices who will be affected.

For the Conservative government, the ability to listen has proven to be a challenge. It is even more of a challenge if the voices the Conservatives are hearing are not entirely supportive of their initiatives. Often there is little in the way of acknowledgement of shared goals with stakeholders if the path to reach them is not virtually the same as that proposed by the government. We see that time and again in the way the Conservative government characterizes New Democrat views on resource development. The Conservatives present our views and policy initiatives in uncomplimentary ways, which is politically convenient but incorrect.

We would not be doing the job we were elected to do if we did not scrutinize legislation and propose changes. The Conservatives know as much and have even performed that role themselves, but they are more interested in zero-sum games. We hope that is not the case with the stakeholders in the Northwest Territories who can imagine other and better ways to pursue devolution.

To return to the larger concept of devolution, we have to ask ourselves if we are pursuing this in name more than in action. We also have to ask ourselves what we want from the process and what the best outcome might look like. We can look at other jurisdictions as well as at the history of devolution in Canada. Surely the heart of the matter has to do with improving independence and the ability of local populations to control their own lives. To ensure that this is the outcome, it is imperative to listen to the voices of people who will navigate the new arrangement we are debating. This is all the more true for the voices of first nations, who are significant players in this.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Speaker, I would like to begin by making sure that the record is clear about something, and that is that the restructured board would not have permanent panels. Rather, the amendments would allow the chair to establish smaller committees to deal with applications before the Mackenzie Valley Land and Water Board. Further, in response to consultations, the proposed legislation would require the chair to appoint regionally nominated representatives to these smaller committees when they were considering an application that was entirely within that region.

The proposed amendments demonstrate the government's commitment to ensuring that regional knowledge is not lost. These improvements to the regulatory environment would increase proponent and investor confidence in resource development in the Mackenzie Valley.

I would like to know what the member opposite thinks about our government's support for legislated regional representation on panels. Surely she supports that.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, let us be clear. Improvements can be made, and I think we are going to leave it to the witnesses to tell us the concerns they have about the revamping of these boards.

Considering the massive revamp this bill represents, why did the Conservatives reserve control over appointments to the environmental review board and maintain control over the approval of licences? I think that is the bigger question.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, as a follow-up to the question that was just put, I wonder if my hon. colleague can address the following issue. It may well be that there is some kind of process for the integration of region-specific analysis in the new superboard, as it is being called. It is also the case that what is being extinguished are existing boards that have been negotiated with first nations communities as part of creating those regional boards. Their role in both the co-management regime under those regional boards and in the appointment process to those regional boards is now gone. Does that cause the member some concern?

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, of course we are extremely concerned about this. We just have to look at the government's record on that front. It is not very stellar.

We have some testimony already from the process that actually took place before. I hope the Conservatives will allow the witnesses to come forward and will listen to what they say with respect to changes that should actually strengthen this so that it would be acceptable to those first nations that are not supportive of having everything thrown in, including the kitchen sink. I hope they will ensure that what they are getting is a good deal, not a deal that will see them going before the court.

[Mark Strahl, Conservative, Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, contrary to what the member for Toronto—Danforth just said, there are specific provisions in the land claim agreements with the Gwich'in, Sahtu, and Tlicho first nations that allow for a single larger board. These were contemplated during those land claims negotiations. There are specific provisions in each of those agreements that allow specifically for this board. Again, if we want to talk about witness testimony, we heard that today from the minister from the GNWT.

Perhaps the member can talk about how the land claim agreements of those three areas specifically allow for the board that has been envisioned in Bill C-15.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, let me be very clear. We understand that the people of the Northwest Territories have worked towards gaining more province-like powers for decades now and want to ensure that they receive the best possible agreement to do that.

As I said before, when the minister was before us today, he was holding back on things he wanted to say. That is because he wants to see an agreement passed before the next federal election. He did not want to say that there should not be changes at this point. I think he wants to be sure, just as the NDP wants to be sure, that when the witnesses come forward and the concerns are raised that those issues are going to be addressed.

I would just ask again that the Conservative government take those into consideration. It should not be “my way or the highway” when it looks at this bill. The government should leave some room for improvement.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I would like to continue along the same lines as my hon. colleague and indeed as the questions that just came from across the aisle. The questions were well formulated from a certain perspective, but they miss out on a very important point.

It is indeed the case that the regional water and surface water boards would be extinguished by the act and that a certain provision of the land claims agreements would be used as the government's justification for its unilateral right to change those regional boards into a larger superboard. That is where the real issue is. It is being done in a way that steps out of the partnership or the co-management arrangement set up by the land claims agreements, to unilaterally move away from that toward a new structure that does not have the agreement of all the first nations involved. That is the issue. The issue is a fine interpretation of everything in section 22.4.1 of these land claims agreements. It is somehow saying that yes, there can be a larger board. It then goes from that to the idea that this means that the federal government, through Parliament, can be the one to determine what that larger board would look like, with the resistance of certain first nations.

What I would like to do, and what I would like to spend some time on, is relatively unusual. It is important to voice the documented concerns from several first nations governments in the Northwest Territories on precisely this issue. I want to put it in the context of two things before I actually quote from two letters.

Keep in mind that Canada has supported the United Nations Declaration on the Rights of Indigenous Peoples. In 2010, we issued a statement of support after some initial reluctance to support the declaration.

Article 19 states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

My hon. colleague, the member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou, has tabled Bill C-469, an act to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. It is in that spirit and context that I believe this legislation and the attempt to move to the superboard, without bringing along first nations partners in the previous regional boards that are going to be extinguished, has to be looked at.

Keep in mind that some of this discussion has to be about section 35 of our own Constitution. The Constitution Act of 1982 enshrined, constitutionally, aboriginal rights and the treaty rights of aboriginal peoples. The whole question of consultation, which has to be at least meaningful consultation, whether or not that is evolving into a situation, where in certain contexts the consent of involved first nations peoples is needed, also has to be taken into account.

I have a letter dated July 12, when early drafts of the legislation before us, that is, the sections that do not deal directly with devolution but the sections that deal with amending the Mackenzie Valley Resource Management Act, was sent to the hon. Minister of Aboriginal Affairs and Northern Development. It is from the Tlicho government. I would like to read from certain portions of this letter:

Failure to Engage: From the beginning of the discussion about amendments to the MVRMA, the Tlicho position has been the same—All Aboriginal peoples of the Mackenzie Valley desire a system for regulating the use of land and water and resources that is in partnership between themselves and the Governments of Canada and the NWT. Further, an appropriate process for identifying and implementing changes the MVRMA and regulatory system must be a partnership process designed by consensus agreement of the partners. Finally, the objective of this process should be to strengthen the resource management system for the Mackenzie Valley in order to protect the lands, waters and resources on which the Tlicho rely for the traditional economies, customs, values and way of life as well as to promote sustainable development.

The letter goes on to discuss how, as far back as the fall of 2011, two years ago, aboriginal peoples in the north presented the government with a draft framework for a process respecting changes to the MVRMA and the regulatory system in the Northwest Territories. In the letter, they refer to that as the framework. They attached the document to the letter, so it can be made available. Then they go on to say:

It sets out a good faith process to collaborate and negotiate a new co-management regime that respects the interests of all the parties. We did not get any initial response. In January 2012, at the Crown-First Nations Gathering in Ottawa, we hand-delivered this Framework to the Prime Minister. We finally received a reaction. Minister Duncan rejected without reasons the Framework—

[The Acting Speaker, Conservative, Barry Devolin]

Order, please. I remind the member of the rule. Please be mindful of that.

[Craig Scott, NDP, Toronto—Danforth, ON]

I understand the rule, Mr. Speaker. The minister:

...rejected without reasons the Framework and Canada has refused to engage in the collaborative process. By letter dated April 5, 2012 I wrote to...[the minister] to set up a meeting to deal with the lack of a mandate for the Chief Negotiator to deal substantively with our draft Framework and I requested that “we meet as soon as possible on a government to government basis, so as to resolve this issue”. [The minister]...by letter dated June 5, 2012, refused to meet with us by saying “I do not believe that an additional meeting is required at this time”. We have not been provided a means to participate meaningfully in this process.

The Tlicho Government then goes on to say it has three major concerns. One is the fact of extinguishing the land and water boards and merging everything into the superboard proposal. Second is expanding the federal minister's role and authority with relation to that board; and the third is mandating statutory time limits on both the superboard and another board.

What is important to note here—and this goes to the heart of the question that was legitimately asked, I believe, by the colleague across the way—is on the issue of extinguishing:

To put it plainly, 22.4.1 of the Tlicho Agreement is the “finish line” and not the “starting gate” for this process. The Wek'èezhìi Land and Water Board plays a fundamental role in the environmental security of the Tlicho and in our having a say about what developments can happen in the Wek'èezhìi and our ability to maintain our way of life. The Tlicho agreement cannot be interpreted to say that Canada, on its own volition, can force the larger board into existence. Any amendment of such a nature must be part of a process that reflects the interests of all the parties to the Tlicho Agreement and respects the decade's long negotiated compromises that are currently reflected in Chapter 22. If there was an agreed to legitimate reason for the establishment of the larger board, then that is a matter that needs to be negotiated between the parties with the same solemnity as the negotiations that created the Treaty provision.

So it is that this letter is a very good example of why there is concern that there is nothing wrong at all with the devolution part of the act in question, but the tacking on to it of these new provisions turning Mackenzie Valley resources and water management into a superboard is definitely something that is causing concern.

Everybody has said that therefore the committee process—not the committee process that is going on right now, but the committee process after second reading—will be crucial. I just urge all concerned to actually listen to the concerns being presented and see whether or not there is some way to make sure that whatever emerges is something that can be said to be an extension of the partnership that these prior land claims agreements represent and the co-management regime they instituted, which is now being, frankly, yanked away semi-unilaterally.

I would end by saying that the letter very eloquently said:

The honour of the Crown cannot be found in Canada's proposed imposition of its will in its “Action Plan” in respect to regulatory reform and the deepening of its powers in the legislated proposal.

...Canada can expand the role of the federal Minister, obliterate the Wek'èezhìi Land and Water Board and then impose arbitrary and unneeded time limits on decisions on development in the Wek'èezhìi region.... The entire way in which Canada is purporting to impose its Action Plan assumes that the regulatory regime is a federal enterprise that can be interpreted and modified by Canada alone.

The whole point is that it is a mistaken perspective. We need partnership and we need a return to a co-management philosophy.