Bill C-88 (Historical)

An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts

Part 1 of this enactment amends the Mackenzie Valley Resource Management Act to establish an administration and enforcement scheme in Part 5 of that Act that includes the issuance of development certificates. It also adds an administrative monetary penalty scheme and a cost recovery scheme, provides regulation-making powers for both schemes and for consultation with Aboriginal peoples and it allows the Minister to establish a committee to conduct regional studies. Finally, it repeals a number of provisions of the Northwest Territories Devolution Act that, among other things, restructure the regional panels of the Mackenzie Valley Land and Water Board, but that were not brought into force.
Part 2 of the enactment amends the Canada Petroleum Resources Act to allow the Governor in Council to prohibit certain works or activities on frontier lands if the Governor in Council considers that it is in the national interest to do so.

Mackenzie Valley Resource Management Act

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Madam Speaker, it is difficult to give short answers because this is an extremely important issue that concerns the elected officials of the area.

When a bill seeks “to allow the Governor in Council” to issue orders, if in the national interest, to prohibit oil and gas operations, I find that this diminishes the legitimacy of local elected officials. We are fighting against the spirit of the bill that strips local officials of the ability to make decisions regarding their own lands.

[William Amos, Liberal, Pontiac, QC]

Madam Speaker, I am very pleased to rise today in support of a bill that would make a positive difference in the relationship between indigenous peoples and the Crown. In starting my speech, I acknowledge that I stand here on traditional unceded Algonquin territory.

Today we are holding a second reading debate on Bill C-88, an act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act. I will use the time allotted to me to speak about the amendments to both of these and to speak a bit about the issue of Arctic offshore oil exploration.

First, I want to start with some context around the Mackenzie Valley. To understand the mess that we are fixing right now, one has to rewind the clock, back to the 1970s.

In 1974, the federal government, under the Right Hon. Pierre Elliott Trudeau, appointed Justice Thomas Berger of the Supreme Court of British Columbia to hold hearings into a proposed natural gas pipeline down the Mackenzie Valley.

At that time, the Dene and the Inuvialuit were asserting their claims to these traditional lands. The Berger Inquiry broke with tradition by hearing evidence, offered not merely by the pipeline companies but also by residents in more than 30 small communities in the Northwest Territories.

The Berger Inquiry heard from over 1,000 indigenous people in seven languages and over 500 southern voices were there as well to give their opinions. The process was groundbreaking. The federal government funded research by indigenous, environmental and community groups. Justice Berger enabled media participation that brought Canadians from far and wide, from coast to coast to coast, into the proceeding.

In May 1977, Berger recommended that, for environmental reasons, no pipeline should ever be built along the northern coastal plains. Although Berger concluded that an environmentally sound pipeline could be built through the Mackenzie Valley, he urged a 10-year moratorium on pipeline construction in the region to allow time to settle indigenous land claims. Ottawa, the federal government, endorsed his recommendations.

This concluded in the delaying of any construction on the pipeline in the Mackenzie Valley and was seen as a turning point in indigenous Canadian relations. In amassing over 40,000 pages of documentation, it also provided a unique and comprehensive window into the Dene and Inuvialuit political resurgence of the 1970s. There would be no turning back on consultations with indigenous people after this inquiry; the precedent was set.

Public sympathy and interest in both indigenous and environmental concerns were heightened as a result of the Berger Inquiry. It was a watershed event for reconciliation. It allowed first nations to speak about their history, their issues related to the land, their culture and the impacts that the southern man's projects would have on their communities.

What we have learned from the Berger Inquiry of the 1970s is that when we consult with indigenous people, we take a first step toward our commitment to reconciliation. We learned lessons that ultimately led to regional land claims agreements and the Mackenzie Valley Resource Management Act of 1998.

The 1998 Mackenzie Valley Resource Management Act put in place an integrated system for the co-management of the land and waters in the Mackenzie Valley in the Northwest Territories. This act established two boards with jurisdiction over the entire valley, namely the Mackenzie Valley Land and Water Board and the Mackenzie Valley Environmental Impact Review Board.

Three regional land and water boards were created for the Gwich'in settlement area, the Sahtu settlement area and the Tlicho settlement area, pursuant to the Gwich'in, the Sahtu Dene and Metis and the Tlicho land claim agreements, which conferred on these boards the responsibility for issuing land use permits and water licensing.

Fast forward to 2014, when the Harper administration passed the Northwest Territories Devolution Act, it consolidated four indigenous regulatory boards into one, without their agreement, and in so doing, stifled the voices of indigenous people. It flew in the face of lessons learned through the Berger Inquiry, where we learned of the importance of indigenous people's voices, of incorporating indigenous communities in governance processes.

That is why our government's Bill C-88 is so important. We are fixing the mess of the previous Harper administration.

That is why our government's bill, Bill C-88, is so important. We are fixing the mess of the Harper administration.

The Northwest Territories Devolution Act, the infamous Bill C-15 introduced by the Harper government, transferred land and water management to the Government of the Northwest Territories and amended three existing acts, including the Mackenzie Valley Resource Management Act. It included the restructuring of the land and water boards and the elimination of regional boards.

The Tlicho government was totally against those changes and filed a statement of claim before the Supreme Court of the Northwest Territories, stating that the Harper government had no right to unilaterally abolish the Wek'èezhìi Land and Water Board because such action would go against its land claims agreement and right to self-government. It added that consultation had been inadequate and that the act violated constitutional promises made to that first nation.

The Tlicho government and Sahtu Secretariat Incorporated sought injunctions in July 2014 and February 2015 respectively in order to maintain their respective water boards until the major issues in their statements could be resolved.

I will cite the court decision on the injunction, because it is just so damning and clearly indicates why we had to come and clean up the mess. It says:

The Tlicho government has raised a reasonable possibility that Canada has overstepped the bounds of what it is permitted to do under the Tlicho Agreement. ...there is a reasonable likelihood the Tlicho Government will suffer...irreparable losses...as a result of a breach of a constitutionally protected right. ...irreparable harm could result from the breach of a constitutionally protected right. This is particularly so where the legislation...will have the effect of dismantling and disrupting existing infrastructure which will then have to be rebuilt.

The court granted an injunction suspending the application of subsection 253(2) of the Northwest Territories Devolution Act, which would have brought into effect the provisions related to the restructuring and other regulatory amendments.

In November 2015, the newly appointed Minister of Indigenous and Northern Affairs, the Minister of Crown-Indigenous Relations, began discussions with indigenous organizations and governments in the Northwest Territories in order to make the legislative changes needed to resolve this issue. The amendments to the Mackenzie Valley Resource Management Act are the result of those discussions and discussions with other regional stakeholders.

We have learned from the past that an effective regulatory body and thorough consultation processes are necessary to consider the needs of those directly impacted by these projects. Transparent and thorough consultation also promotes sound decision-making, and it ultimately will help create better projects that will deliver more benefits to regional communities and to the workers.

This is why Bill C-88 seeks to consult with rights holders and northern indigenous governments when it comes to oil and gas projects in the northern offshore, by making consequential amendments to the Canada Petroleum Resources Act, or CPRA.

I will provide some context on the history of Canada's Arctic offshore oil and gas issue. Oil spills in offshore regions across the world have underlined the importance of a precautionary approach when operating in fragile marine ecological environments. The BP blowout in the Gulf of Mexico put Canada on alert, and Arctic offshore as a possibility was, and still is, seen in that light. We are aware of the vulnerabilities of any marine ecosystem to a potential blowout, and this is especially true for the unique and fragile marine ecology of the Beaufort Sea.

Canadians can be proud that our Liberal government collaborated with the Obama administration to establish a moratorium on Arctic offshore drilling and the issuance of more licences on the basis of the precautionary principle and of science and traditional knowledge.

We know that oil and gas exploration has been part of the northwest economy for many years, so much so that it is part of the 1984 Inuvialuit Final Agreement and the 1993 Nunavut Land Claims Agreement. However, at the same time, we know that northerners and southerners, indigenous and non-indigenous peoples, and all Canadians can agree that a catastrophic blowout in the deep water of the Beaufort Sea could cripple the Inuvialuit way of living and their future prospects. This is another reason this bill is important.

[Michael McLeod, Liberal, Northwest Territories, NT]

Madam Speaker, the member provided lot of information. The indigenous governments in the Northwest Territories have all done a lot of work in moving toward land claims and self-governance. Many have signed agreements, expecting the Government of Canada to honour its portion of the agreements. Throughout the Conservative government, that did not happen. We even had the Auditor General's report, which said the government was not meeting its obligations.

On the section that governed the creation of land and water boards in each region, we saw the previous government step in and create one board that would be a superboard to cover all aspects of what we were doing, even though that breached the agreement.

We also saw the fiscal portion of the land claim agreements breached by a new policy that came in. The Harper government said that was what we were going to follow, regardless of what was in the land claim agreement.

I find it ironic that the Conservatives are saying this is not in the best interests of the people in the Northwest Territories, when they were the ones who refused to include the Beaufort Sea in the negotiations. That was hands-off. We could not even talk about it. I know, because I sat in the seat for the Northwest Territories in that government. We also could not include the royalties coming out of Norman Wells. Those things were left off the table. Now we are hearing that we are doing something wrong by letting the people of the Northwest Territories make decisions.

I want to ask the member whether he feel it is fair. The previous government created this really large confusion over this, to the point where it came to a standstill. Now that we have the indigenous governments of the Northwest Territories telling us they want to move forward, is it fair for the Conservatives to say we are doing something wrong?

[William Amos, Liberal, Pontiac, QC]

Madam Speaker, through you I will respond to my learned colleague. I appreciate these words, because they come from such a place of experience. Absolutely, I think northerners from the Mackenzie Valley have every right to be offended by the actions of the previous government. The Conservative members continue to articulate it to this day in debates in this House, treating land claims agreements as though they are red tape or something to be cut up and put in the paper recycling bin. It makes no sense. It is offensive to any Canadian who holds indigenous rights and the constitutional protections of those indigenous rights to heart.

At the end of the day, it now falls to our government to respect those agreements that were made and the history of the indigenous people from that region.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, I have the same question again. The member talked about respecting indigenous rights and the rights of the people in the area to make decisions. We now know that part 2 amends the Canada Petroleum Resources Act to allow the Governor in Council to issue orders, when in the national interest, to prohibit oil and gas activities. That is in no other piece of environmental legislation, and it was not done either in consultation with the territories and indigenous communities or in Parliament. It is an order in council allowing the executive branch to take on powers it has never assumed before.

Therefore, how can he argue on the one hand about respecting and on the other hand say it is perfectly fine when it suits the government's interest to arbitrarily impose something like a moratorium?

[William Amos, Liberal, Pontiac, QC]

Madam Speaker, we are talking about a time-bound moratorium that is premised on traditional knowledge and science in a precautionary manner, to ensure we have a complete understanding of what further offshore drilling would entail, in particular where we are talking about deepwater offshore drilling. This will allow for the scientific and traditional baseline knowledge necessary to ensure we can discuss whether or not there is an actual bulletproof spill cleanup plan to account for a blowout that could occur under winter ice.

This was a crucial issue that was raised when I attended the Arctic offshore drilling review in Inuvik back in 2011. Many people up north were very concerned about that eventuality. This moratorium enables the right knowledge to be gathered prior to making decisions.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I am pleased to have an opportunity to speak to Bill C-88. Despite the use of time allocation, I appreciate that the Leader of the Government in the House of Commons earlier today said she would make efforts to give me a chance to speak and has done so. Even with abbreviated debate, I am therefore able to speak to this legislation.

I am also able to speak to what happened to this legislation when the Northwest Territories Devolution Act was brought forward in the 41st Parliament in 2014. It was something everyone wanted to support, but there were many measures with that act that were offensive to the foundational principles of self-government and respect for treaties.

In fact, the Mackenzie Valley Land and Water Board, the Gwich'in Land and Water Board, the Sahtu Land and Water Board and the Wek’eezhii Tlicho Land and Water Board, all of which were the result of treaty negotiations between the Crown and those nations, were callously, carelessly, disrespectfully and completely violated with the notion that we could replace them with something described as more efficient.

I protested those changes at the time, as did the previous NDP member of Parliament for the Northwest Territories, Dennis Bevington. We tried quite hard to persuade the 41st Parliament that it was wrong to change the law in this way.

Subsequent to the changes being made, a number of the boards that were impacted went to court to challenge what had just happened. The notion of a superboard was deeply offensive to the principle that had been there, which was that the land and water boards represented fifty-fifty decision-making between first nations and the federal government. It would have reduced the self-government that the Northwest Territories Devolution Act was supposed to respect. It would have taken away rights and reduced the scope of review by those various boards.

Earlier today in debate I heard a Conservative member say that Bill C-88 was another effort by the Liberal government to interfere with development, to thwart development and to drive investment away from Canada.

I am saddened by that kind of commentary. I agree with a number of criticisms of the Liberal government. There are a lot of measures being taken that I find far short of what is required, particularly when looking at the climate crisis, and far short of what is required when looking at the need for thorough environmental assessment. There was a commitment in the election to undo the damage that had been done by the Harper administration in a number of areas, and so far the Liberal government has done really well in some areas and less well in others.

It did extremely well in undoing discriminatory legislation towards trade unions, and that was done relatively quickly by the former member of cabinet responsible for labour issues.

The Liberal government did an extremely good job on a piece of legislation that is still before the Senate, Bill C-68, to repair the Fisheries Act. Bill C-68 not only repairs the damage that was done by the previous prime minister and his government and not only brings back protections for fish habitat. It also expands and improves other protections for habitat. It is an extremely important piece of legislation and I hope it passes quickly.

It is also complementary to a piece of legislation that I hope will be passed here. Earlier today in the House, the hon. member for Avalon, the chair of the fisheries committee, presented the report, and Bill S-203 is now back before the House. I hope we move to report stage and third reading expeditiously.

Bill C-68, which I am referencing, is also complementary in saying that we are now going to ban the taking of cetaceans into captivity in Canadian waters.

Again, all of these bills speak to undoing the damage done by the previous government, but Bill C-68 goes beyond that with more progressive measures.

Unfortunately, Bill C-69 is also before the Senate. I hope it will be amended and sent back here quickly. The Minister of Transport did an excellent job of repairing the former Navigable Waters Protection Act. There are some innovative changes to energy regulations. Unfortunately, the middle piece of legislation in that omnibus bill, the one on environmental review, does not undo the damage of the previous government, but rather keeps it in place.

However, this legislation is excellent in that it would actually undo the damage the previous government had done. It would set back in place the integrity of self-government, of decisions for land and water boards that reflect the negotiations under self-government agreements and treaties. Now that we are debating this bill at second reading, I would certainly like to see this bill in committee so that it could receive one or two additional amendments.

As was mentioned on the floor of the House earlier today when we started second reading debate of Bill C-88, given the content, the context and the need to take a step further and be more progressive than merely repairing, we should say that this bill operates under the United Nations Declaration on the Rights of Indigenous Peoples. That would be a very welcome amendment and, assuming this bill gets to committee and we are in a position to put forward amendments during clause-by-clause consideration, it is one that the committee can expect to hear from the Green Party.

I certainly support this bill, including the provisions to allow moratoria on drilling to affect such decisions based on evidence. I do hope the bill passes. I would like to see it pass with an amendment to ensure that it operates under the terms of the United Nations Declaration on the Rights of Indigenous Peoples.

[Michael McLeod, Liberal, Northwest Territories, NT]

Mr. Speaker, I appreciate the member's history on this bill and the whole devolution process that happened in the Northwest Territories.

I still think the devolution process has a long way to go. As I mentioned earlier, there are certain parts of the Northwest Territories that were off the table during discussions for devolving responsibility. They included the Norman Wells oil fields and the Beaufort Sea. The regulatory process in the Northwest Territories is a model that the rest of this country could compare notes on to see how well it works when it comes to the inclusion of indigenous people. It is also high time that we start looking at the work that is being done on traditional knowledge and the scientific research that is being done on the Beaufort Sea. We also need to start looking the devolution of responsibility for decision-making on the Beaufort Sea to the Government of the Northwest Territories, along with the indigenous government.

I would ask the member to give her view on turning over all responsibilities to the people of the Northwest Territories.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I agree with the hon. member that the process of devolution is incomplete. People in the north should have the decision-making responsibility over their resources, lands and waters. This is behind the principle of devolution, and to the extent that specific areas are excluded, that is an error and should be corrected.

We want to ensure that discussions in the territories represent the concerns of the specific first nations mentioned in this legislation, but much of the territory around our circumpolar north is under the jurisdiction of the Inuit. We need to pay attention to that.

We also need to make sure, as the hon. member mentioned, that we respect and engage indigenous knowledge and science. It is particularly compelling that we do so in the context of a climate crisis in which we know that the warming in Canada's Arctic is occurring three times faster than the warming on the rest of the planet. We have known for quite a while that it was the Inuit and the peoples of the north who raised the alarm that sea ice is changing, that hunting is more difficult and that a way of life is basically at risk. Therefore, the more we consult and the more decision-making is led by northerners, the better our decision-making will be.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I appreciate the member's support of our first nations, particularly the battle we have had for over a decade in trying to prevent drilling in the Arctic National Wildlife Refuge.

She mentioned that we are taking back a law that was unfortunate or wrong, but I would say it was illegal, because land claims agreements are constitutionally protected. A law cannot be passed that retracts a constitutionally protected item.

There was a parallel exercise that happened in Yukon on the environmental assessment process. There they once again tried to make a change that was not in line with the spirit or the law of the constitutionally protected land claims, on which the member supported us. We have retracted that change and gone back to the spirit of the agreement and the letter of the law that was originally contemplated in 30 years of negotiation.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, absolutely, my language was too tepid. It is unusual, but that is the case. What happened under the previous Parliament was unconstitutional.

In regard to fighting together to protect the Arctic National Wildlife Refuge, the hon. member said it has been a decade. I hate to correct the hon. member's math, but when I could not remember exactly what year I was in Washington, D.C., with the hon. member, fighting to protect the Arctic National Wildlife Refuge, I made a quick reference to Google, and I found it was 2002. I remember I took my daughter and a young Gwich'in lad to see the opening of Harry Potter and the Chamber of Secrets.

It was in 2002 that the hon. member and I were together in Washington, D.C., and I want to pay tribute to him, because I know that all those trips to Washington were beyond his parliamentary budget. He paid his own way to go to Washington to work as hard as we could, and now we have to redouble efforts because the Trump administration once again wants to lift protection and allow drilling in the calving grounds of the Porcupine caribou, which are essential to the Gwich'in way of life.

[The Deputy Speaker, Conservative, Bruce Stanton]

I will let the hon. Parliamentary Secretary to the Minister of Families, Children and Social Development know that there are only about five minutes remaining in the time for debate on the question that is before the House. I will give him the usual signal.

The hon. Parliamentary Secretary to the Minister of Families, Children and Social Development.

[Adam Vaughan, Liberal, Parliamentary Secretary to the Minister of Families]

Mr. Speaker, I would like to rise today to speak in support of the bill, but first I would like to share my recollections about visits to the Northwest Territories with the member who has spoken several times today so eloquently about the territories and the need for self-determination, in particular for the rights of indigenous peoples to be respected not just on this issue but on a broad range of issues.

In having the honour to go from community to community, to sit down with leadership in the indigenous communities in Behchoko and Yellowknife, to talk with families that are working in the resource sector and to talk to the Government of the Northwest Territories and the municipal leadership there, one thing becomes abundantly clear. Southerners who go north should go there to listen, and if they do, what they start to understand is that the importance that is placed not just on self-determination but on self-determination that respects the modern treaties and respects indigenous communities of the north is fundamental to making sure the progress that happens up there benefits the people who will not only be subject to the changes but also should be the main beneficiaries of whatever changes occur up there.

As we look at the agreement that was put in place, what we are building on is a flawed law that was passed in the previous session, which the Supreme Court struck down. I lost track of the number of laws that the previous government passed that did not make it through the Supreme Court. I think it was eight but it might have been nine. I am sure someone on the other side can correct me if there is a former AG over there, but the reality is that not obeying the law is something that the previous government set a high watermark on.

In the delay to obeying the law and the delay to writing good legislation and in not listening to the opposition as corrections were offered, the development of natural resources in the north was set back, but more importantly, the advancement of self-determination was set back. There are lessons to be learned in terms of how we proceed in the House and how we move with the Northwest Territories, with Yukon, with Nunavut, to make sure that the aspirations and the opportunities in the north are developed in a good way and a sound way.

One of the most important parts of this is that it is consistent with UNDRIP. One of the members opposite talked about why UNDRIP is not referenced in the body of the legislation. This is being asked in several other areas of legislation. UNDRIP has not cleared the other place yet. It has not received royal assent in terms of ratification and as a result we cannot reference a piece of legislation that technically does not exist yet because our system has not yet stamped it into law.

What we heard from representatives from the territories talking about this landmark piece of legislation is that it is consistent with the spirit of UNDRIP and it brings to bear those very principles as we take a look at how resources need to be developed carefully, but more importantly how water needs to be protected and most importantly, how traditional knowledge will be used to preserve and project a stronger future in the north.

The other thing that we need to come to terms with is the value of traditional knowledge. I was talking with one of the Arctic Rangers on a trip that I made to Iqaluit and he came from a part of the country that was even farther north than the maps of Canada often show. He talked to me about what is happening to snow and ice in the far north and how as exploration parties go up there to deliver everything from housing to roads to resources and to take a look at resource development, traditional knowledge is defining what is safe and what is not. Often safety is delivered not by someone from the geographic society but from elders who have passed on their knowledge as to what constitutes safe and unsafe passageway.

The bill recognizes the value of traditional knowledge and understands the value of engaging with all forms of scientific exploration and experience. That, too, is one of the reasons it is consistent with UNDRIP and is a good piece of legislation to be supported.

The most important part of this is that it allows the north to put a stamp of self-determination on its resource projects. It can look at the impact environmentally. It can look at the impact economically. It can look at the impact socially and it can make sure that the profitability of these projects is sustained in the north in a way that delivers sustainable, permanent, social transformation to one of the areas in this country that has the largest economic challenges facing any individual who resides in this country from coast to coast to coast.

This, in and of itself, is reason enough to support the bill, because it changes the nature of the conversation and the formula of the economics in the north to make sure that the process is a strong one.

We are also seeing that leadership from the indigenous communities and from the Government of the Northwest Territories have come to a consensus on how to move forward in a good way. As legislatures, when we see consensus emerge from outside the House and arms link in common cause, our job is not so much to legislate that into reality but to create legislation that dignifies, recognizes and supports that reality.

Another thing has been achieved here as well. Although we often have to lay our legislation onto existing circumstances, in this particular piece of legislation, existing rights holders have been recognized and brought into the legislation in a way that is consistent with not only good resource development but good environmental stewardship and truth and reconciliation.

For those reasons, I will be supporting the legislation and will be forever sad that I will not get to answer questions from the opposition.

[The Deputy Speaker, Conservative, Bruce Stanton]

It being 5:45 p.m., pursuant to order made earlier today, it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the second reading stage of the bill now before the House.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.