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.

[Yvonne Jones, Liberal, Labrador, NL]

My amendment proposes that Bill C-15, in clause 122, be amended by replacing lines 38 to 40 on page 97 with the following:

implement that right and the number of other members, not including the chairperson, reflect, respectively and to a reasonable degree, the population composition of the area affected by the board's decision.

This amendment I've brought forward simply because in the presentations we heard in the Northwest Territories, people were very concerned that when decisions directly related to their area were going to be made that they would have adequate representation at the board level to make those decisions. We're not increasing the size of the board, but we're ensuring that there is proper composition to take into account the areas that are being looked at.

I would ask the committee to accept the amendment.

[The Chair, Conservative, Chris Warkentin]

Clause 120 of Bill C-15 provides for the position of a chairperson of a board, and creates several exceptions to the case in the Mackenzie Valley Land and Water Board. The amendment proposes to remove these exceptions.

As the House of Commons Procedure and Practice, second edition, states on page 166, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.” In the opinion of this chair, the amendment aims to remove the essential element of the bill, which is contrary to the principle of the bill, and therefore the amendment is inadmissible.

We will now move to the consideration of and a vote on clause 120, unamended.

(Clause 120 agreed to)

(Clause 121 agreed to)

(On clause 122)

I believe the Liberals have a proposed amendment.

[Dennis Bevington, NDP, Western Arctic, NT]

I move to amend clause 120 of Bill C-15 by replacing line 19 on page 96 to line 11 on page 97 with the following:

12.(1) The chairperson of a board shall be appointed by the federal Minister from persons nominated by a majority of the members. (2) If a majority of the members does not nominate a person acceptable to the federal Minister within a reasonable time, the Minister may appoint any person as chairperson of the board. (3) A board may designate a member to act as its chairperson during the absence or incapacity of the chairperson or a vacancy in the office of chairperson, and that person while so acting may exercise the powers and shall perform the duties and functions of the chairperson.

This amendment changes the proposed process for appointing the chair of the super-board. Under the current MVRMA, section 12, the chair of the board, except in the case of the Wek’eezhii Land and Water Board, is a person nominated by the majority of the board.

Bill C-15 removes the role of the board members in choosing a chair. This change is contrary to devolution by removing the opportunity for anyone other than the minister having a say in the appointment of a chair. This amendment also ensures that the board members, who do the work in this regard, have a say over those who do the administration.

The chairperson of a board is—

[Dennis Bevington, NDP, Western Arctic, NT]

Yes. I move that Bill C-15, in clause 8, be amended by replacing line 24 on page 34 with the following: “Northwest Territories: consisting of the North-”.

This amendment changes the name of the riding from “Western Arctic” to the “Northwest Territories”, which makes it consistent with the names of the other two territorial ridings. In 2007 I polled my constituents on this particular issue and found that there was great support for this. In other polls that were done on the naming of the Northwest Territories, the overwhelming choice of people in the north was to retain the name “Northwest Territories”.

The name “Northwest Territories” has historical significance for I think almost everyone in Canada. Northwest Territories was the designation for most of Canada for a long period of time. It's a name that deserves respect. The existing designation in the House of Commons does not give respect to the name “Northwest Territories”. It does not suit the region that I represent, because of course 90% of the region that I'm in is in the subarctic boreal forest.

It's simply not correct to continue this. I've tried for many years to get this done. Here's an opportunity where we can all work together to get this done very simply in this bill, and I would ask that the committee find support to do this.

[Dennis Bevington, NDP, Western Arctic, NT]

Amendment NDP-3 proposes that Bill C-15, in clause 2, be amended by deleting lines 13 to 22 on page 14. The amendment deletes the following:

(1) The Governor in Council may, in writing, direct the Commissioner to withhold his or her assent to a bill that has been introduced in the Legislative Assembly.

It also takes out the following:

(2) A bill in respect of which a direction is given must not become law without the Governor in Council’s assent, which is not to be given later than one year after the day on which the bill is adopted by the Legislative Assembly.

I think it's clear that this gives extraordinary power to the federal cabinet, power similar to that enjoyed by the Queen. If the object of devolution is to give the NWT more power over its own affairs, this section is contrary to that objective. The Yukon Act is similar, though the Nunavut Act is not, interestingly enough. These particular clauses haven't been standard in the treatment of territories. They are put in here quite clearly so that the Government of Canada will retain rights and privileges over the laws that are passed in any legislative assembly in Canada, and I think this amendment would put the Government of the Northwest Territories more in line with those of the provinces.

[Dennis Bevington, NDP, Western Arctic, NT]

Amendment NDP-2 is speaking to page 14, line 1, and asks that Bill C-15, in clause 2, be amended by replacing line 1 on page 14 with the following:

(5) The Governor in Council may, after consultation with the Government of the Northwest Territories and on the

That speaks to the requirement that the federal government, before making regulations governing the borrowing powers of the Northwest Territories government, would have to consult formally with the Government of the Northwest Territories before making any changes to the rules and regulations that surround one of the most important aspects of any government's portfolio, that is, the fiscal ability of the Government of the Northwest Territories.

The absolute primary function of government is to be able to invest and to make good use of funds for the people it represents. The Government of the Northwest Territories, being a very responsible government that has a double-A credit rating from Moody's, has a better credit rating than many provinces.

We've gone through this debate a number of times in Parliament. There was a lot of support in Parliament for more borrowing powers for the Government of the Northwest Territories, yet within the bill, of course, this still remains the purview of the federal cabinet. It's important to note that it's not simply the dollar amount of the borrowing limit for the Government of the Northwest Territories, although that is very important. It's the type of consideration that's given to borrowing.

For instance, if self-financed loans are put into the borrowing limit for the Government of the Northwest Territories, that tremendously limits the ability of government to invest in the types of things that every other government in Canada has invested in over the course of our Confederation. When the Government of the Northwest Territories wants to invest in utilities to build hydroelectric facilities or transmission lines, those with this power that the federal government has to set the terms and conditions of borrowing could drastically impact on its ability to actually do that, even though the types of loans it would be making would be self-financed and would not be a burden to the taxpayers.

These are important considerations. Once again, this amendment is something to assure the Government of the Northwest Territories that it will be involved in any of those deliberations by the federal cabinet over the powers it has in borrowing. I think it's a very important amendment as well. It may well never be used, but it clearly delineates to everyone that the Government of the Northwest Territories has to be involved in these types of decisions.

I would encourage all members to support this, as they have supported the previous amendment.

[Dennis Bevington, NDP, Western Arctic, NT]

I would move that clause 2 of Bill C-15 be amended by adding after line 35 on page 5 the following:

(4) The Commissioner must, as soon as possible after receiving written instructions, make them available to the Executive Council of the Northwest Territories and cause them to be laid before the Legislative Assembly of the Northwest Territories, but the written instructions are effective when they are made.

This amendment makes instructions given to the Commissioner of the Northwest Territories from the Governor in Council of Canada public. This clause is similar to subsection 6(2) of the Nunavut Act.

A further amendment, NDP-4, would delete this clause 10 years after coming into force because we would be looking at those instructions being similar to the Yukon.

Basically the purpose is to ensure that the thinking behind the Northwest Territories Act is similar to what took place for other territories. I could say that if the Government of Canada doesn't give instructions to the commissioner, that would mean those instructions would not be public. In the case that they are, I think it's incumbent upon a government-to-government relationship that the person who represents the role of lieutenant governor to the greatest degree in a provincial type of setting should have some responsibility to the Government of the Northwest Territories in terms of information. It's a step down from the provinces, of course. We recognize that it will remain without the full weight of a lieutenant governor for some time yet.

Still everything possible should be done to give the Legislative Assembly of the Northwest Territories equality with other legislative assemblies in Canada. The purpose of devolution—or if you look at it the other way, evolution—is to ensure that the people of the Northwest Territories have political rights that are as similar as possible to those of other people in this country. That is the operating principle here.

I think the government has indicated that's what it wants to do. The Nunavut Act of course was put forward by the Liberal government, and that is a historical fact. It doesn't mean we can't look for improvements to what is going on with this act.

I think this amendment respects the direction the government is taking. It may have been an oversight on its part not to include it, but I would ask that this amendment be considered.

[The Chair, Conservative, Chris Warkentin]

I call this meeting to order.

This is the 13th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our study and are moving into the clause-by-clause consideration of Bill C-15.

We are joined by departmental officials.

Thank you for joining us and for answering our questions in our last meeting. We look forward to your assistance today. Thank you so much for being here.

We're going to move into the clause-by-clause consideration of the bill. As you know, consideration of the short title is postponed, pursuant to Standing Order 75(1), so we will move into consideration of amendments.

(On clause 2—Enactment)

We will start with amendment NDP-1, which I believe proposes an amendment to clause 2.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

If we look back at some of Mr. Hagen's testimony, he proposed that Bill C-15 should make provision for the land and water board to dismiss an application for either a permit or a licence when a proponent consistently and repeatedly failed to provide necessary information. What are your thoughts on that idea from Mr. Hagen, and why was that not included, or is it already covered in another aspect?

[Tara Shannon]

I can't speak to whether the amendments would be supported, but you raised a couple of issues in your question.

On board member terms and term extensions as raised by the Mackenzie Valley Land and Water Board, the term set forth in the Mackenzie Valley Resource Management Act of three years is consistent with the terms set out in other acts in the north. Those include the Nunavut Waters and Nunavut Surface Rights Tribunal Act, the Nunavut Planning and Project Assessment Act, the Yukon Surface Rights Board Act, and the Yukon Environmental and Socio-economic Assessment Act.

As to the question of liability, that was addressed earlier by my colleague, Tom Isaac. Our view is that there is no legal difference between the two provisions that are contained within Bill C-15.

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

Based on a lot of the information we've had from testimony both here and on the ground, it's evident that a lot of amendments have been requested. I think they are fairly reasonable amendments. I think it would probably also be in the government's interest to consider those amendments seriously to prevent any further litigation here, and lengthy litigation at that, a waste of taxpayers' dollars.

These are the people who are actually living under and would be working under this agreement. When we look at this, certainly all of them are not against the devolution. They do have a lot of concerns with respect to the Mackenzie Valley piece.

I'm looking at some of the testimony that was actually provided, and I'm wondering if you could comment on what some of the impact would be on the bill itself.

For example, we have the Mackenzie Valley Land and Water Board talking about amending section 57 of the MVRMA, as amended by Bill C-15, to extend the terms of board members to ensure quorum until a board decision is rendered. A similar provision is found under part 3 of Bill C-15. They also talk about addressing the discrepancies regarding the standard of liability for board members so that provisions relating to board member liability under part 4 are the same as those found under part 3 of Bill C-15.

When you look at the amendments suggested by the various presenters, can you tell me what the impact would be on the bill itself, and the reasoning that it wouldn't be supportive to go through?

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you.

We also heard from industry that although they were generally in favour of the regulatory improvement part of the bill, they didn't want to lose the regional knowledge, the capacity, the relationships they'd developed in those areas over the years.

Can you tell us how proposed Bill C-15 takes those factors into account and how the new structure will retain those features of that regional representation on the board?

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you very much.

Some of the other testimony we heard included that of Willard Hagen, the chair and CEO of the Mackenzie Valley Land and Water Board. He raised some concerns with respect to board member liability. I think he indicated that there was a concern that the proposed bill, Bill C-15, was not as strong as what is there now to protect board members in terms of liability. I think he called it “legally inferior protection”.

Could you address that specifically? Is it legally inferior in your view, and if not, why not?

[Wayne Walsh, Director, Northwest Territories Devolution Negotiations, Northern Affairs, Department of Indian Affairs and Northern Development]

Mr. Chair, if I may do so, I think it's important to provide the full contextual piece of how the consultations were done with both initiatives.

First of all, with respect to devolution, we conducted a fairly comprehensive consultation process—three phases—which took place from January 2011 up until we signed the devolution agreement. During that period, we consulted with 22 different aboriginal groups, first nation communities, and that influenced the outcome of our negotiation positions.

My understanding is that my colleagues who were working on regulatory improvement undertook similar consultations during the development of the framework of their proposal.

Where we then began to converge with respect to the two initiatives was on August 16, 2013, when the same groups, the 22 first nation communities and aboriginal groups, were sent a package. The package contained all four elements of the bill that is now before you.

We set out a timeline. It was from that point on that the consultations were coordinated on the elements of the legislative proposal. We set a deadline of October 15 to receive comments, whether they were written or through meetings with the department. From there we moved forward with our recommendations on a final approach to the government. The government then made the decision on how they wished to proceed with Bill C-15.

[The Chair, Conservative, Chris Warkentin]

It is now 3:30, so I'm going to call this meeting to order. This is the 12th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we continue our study of Bill C-15.

We have before us officials from the department. We want to thank you for making your time available.

Mr. Wayne Walsh and Mr. Tom Isaac, thanks for joining us.

As well, Tara Shannon and Alison Lobsinger, thank you for joining us.

We appreciate the fact that you have been working on this for some time. You are truly the resident experts with regard to what's contained in these documents, and we appreciate the fact that you've come back to answer questions as we consider amendments.

We're going to start our rounds of questions with Mr. Bevington.