Environment Committee on May 13th, 2010

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

The panel also recommended that “within one year of the Government Response” we:

...update and publish...plans to manage a Project-related accident or spill along the Mackenzie River or in the Mackenzie Delta. The update of these plans should address the specific measures to be taken to notify the public of any spills, the actions to be taken....

So where are we with these? Have these plans been updated? Have they been announced? Who is the lead agency responsible?

[Patrick Borbey]

Mr. Chair, I must apologize. This is also a question related to the response to the JRP report, and I'm unfortunately unable to answer.

[The Chair, Conservative, James Bezan]

Okay.

Thank you. Your time has expired.

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

Could you give me some clarification, Mr. Borbey, on how these things work? In the area that I represent in Alberta, there are the treaty areas, and then, of course, there are the reserve lands.

All economic development that happens on the reserve lands would have to seek the approval of the band through INAC. All proposals that would need to have permits and licences off the reserve land, but in the treaty area, would fall under the jurisdictions or agreements set out with the provincial government in Alberta and also with the various municipalities, because all the land is divided and quartered that way.

In the Northwest Territories, that's not the case. Could you tell the committee how this breaks down?

[Patrick Borbey]

Mr. Chair, I'll try to do it justice. I'm not an expert in this area.

The regime that applies in the north generally, but in the NWT particularly, is quite different from what you would find south of 60, we could say. We have almost no reserves in the north. There is only a very small number of them in the Yukon and NWT.

The north is basically governed through settlement of land claims, wherein aboriginal rights are recognized over the whole territory, where there are land selection and surface and subsurface rights, and where basically any development that takes place has to take into account the rights of aboriginal people over the whole territory.

Where we have settled land claims, and in some cases self-government, then the land ownership is clear, and the roles and responsibilities are clear. Where there are not such settled claims, there are still treaties that apply; the western treaties apply in the southern NWT. And Canada has a constitutional obligation to consult and accommodate on any activity that will take place on that territory that would affect those rights. So if there is any development, whether it's exploration or the development of a mine, or oil and gas development, those rights have to be respected.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

So in the absence of the situation we have, say, in reserve lands versus.... I mean, we can assume for the most part that the entirety of the Northwest Territories would be considered virtually “reserve land”...it would be analogous to the situation I would have, say, in the province of Alberta. Is that...?

[Patrick Borbey]

I would stay away from making any comparison, because the reserve system involves INAC's specific responsibilities. Once claims are settled, then aboriginal people are basically autonomous on their own territory and have the right to develop their resources as they see fit.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

The outstanding claims that are there, then, for the purposes of looking after the environment.... This is the question, as far as I can wrap my mind around it. Without the delineation of those authorities, without the appropriate governance structures in place, confusion is created, which is why, in the report, we've seen courts getting involved and setting aside permitting, because it's just not clear.

Now, in the judicial decisions to put aside these permits, has that been because of the lack of representation or a lack of consultation with first nations? Has that been the judicial ruling for these, or is it simply because the judge in the case doesn't find enough rules, enough rubrics, around the governance structure, so that they simply put these things aside?

[Patrick Borbey]

There is a regulatory regime that applies for the whole territory, and it is crown land until such time as there is--

[Blaine Calkins, Conservative, Wetaskiwin, AB]

All right.

[Patrick Borbey]

So the regulatory regime applies everywhere. It's the same thing with permits, with exploration, etc. However, the test is whether you have met the constitutional obligation for consultation and accommodation.

There have of course in the past been some judgments that have found that the federal government or others have failed to meet that test. I think in recent years we've been putting more resources, more effort, into making sure we meet those obligations, but at the end of the day, that does not prevent some first nations from using the courts seeking judicial review if they feel that at the end of the day the consultations or accommodation measures were insufficient.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

In respect of the areas that don't have the settled claims, will INAC be concluding these agreements?

I'm assuming they're doing this as rapidly as possible. I know that the minister is engaging in a lot of agreements in British Columbia, for example. We know about some of the obstacles to development and also the obstacles pertaining to getting these development permits going and getting the economy going.... And companies, I think, too, are also very frustrated with the lack of certainty that can exist because of unsettled land claims.

So can you tell us what plans INAC has? What are your priorities on the various agreements as far as the Northwest Territories are concerned?

[Patrick Borbey]

Certainly there are active negotiating tables for both the Akaitcho as well as the Dehcho regions. Those are two big outstanding claims. There's also a claim with the Northwest Métis that's outstanding.

So there is a negotiating table. There are issues related to financial compensation. There are issues related to acceptance of the land quantum that would be transferred in terms of surface or subsurface rights and how the selection process will take place, and then there are issues with respect to acceptance of the resource management regime that will apply over that territory.

In the case of the Dehcho, we've accepted to move forward in parallel on the development of an interim land use plan. So in parallel with the negotiations, we're also talking about the land use plan, which is a bit of an exceptional situation, but the land use plan will not be concluded until such time as there's an overall agreement on the claim.

The other thing we've put in place, particularly in the Dehcho, is interim measures where both parties agree to under which condition development can take place. So it's not as if it's completely a no man's land; there are conditions under which there's agreement, and there are companies that are doing business in those areas that are doing quite well. They developed good relationships with the local first nations, and that development is going ahead right now.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

I would like us to compare both regimes, especially with regard to operational permits. I refer to oil production permits, whether in the territories covered by the report or anywhere else in Canada.

My question is mainly for the representative of Environment Canada. Whenever a corporation wants to do some oil exploration, it has to request a permit from the National Energy Board and, unless I am mistaken, there has to be an environmental assessment.

What type of assessment is done for a corporation based outside the territories covered by this report? What is the assessment process? Is it a comprehensive assessment? Is it only a preliminary assessment?

I suppose the National Energy Board would not automatically grant a permit to any company wanting to produce natural resources.

[Patrick Borbey]

I know you have put your question to Environment Canada but I will try to answer.

Those are good questions which should be put to the National Energy Board, which has those responsibilities. It depends if you are referring to an offshore project or a land project, since the regimes are different. In the case of an offshore project, regulation is it strictly federal, but there are still Aboriginal rights that have to be recognized. If it is on land, it depends again. Is it on land covered by Aboriginal rights or is it on Crown land? One has to be very precise.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Yes but I do not understand why, for the same type of permits, the Mackenzie Valley Land and Water Board does not apply the same rules as the National Energy Board, whether or not this relates to the territories covered by this report.

For example, do you find it normal that there was no environmental assessment for certain projects and that those issues had to be resolved by the courts? Does the federal government, your department, believe that asking the courts to decide whether or not a permit will be granted is good environmental management?

[Patrick Borbey]

You seem to be referring to a major project. Of course, in that case, there would be an environmental assessment. I have absolutely no doubt about that. The question asked earlier about the role of the courts referred mainly to situations where Aboriginal groups had not been consulted or the federal government had not sufficiently answered their demands. It was not a matter of environmental assessment but of Aboriginal rights.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I understand but one of the components of a comprehensive assessment is precisely consultation. That is the difference between a comprehensive and a preliminary assessment. As far as we are concerned, a comprehensive environmental assessment must include consultation.

Do you find it normal that courts should have to make this kind of decisions? Why? Because there is no comprehensive land-use plan, there is no decision, it is only a case-by-case process.

[Patrick Borbey]

No, it is not case-by-case. If there is an environmental assessment, Aboriginal groups are part of the process. There are consulted the and they are involved. Not only do they participate and are they consulted through this mechanism, the federal government always has the obligation, according to the Constitution, to hold direct consultations. So, the issue is not a lack of consultation. There have been two series of consultations. I am referring particularly to areas where self-government or land claims have not been settled.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Areas where there are no co-management boards.

[Patrick Borbey]

But co-management boards exist and Aboriginal groups that have not signed agreements can be part of them. They are not prevented to do so.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

That is true but how do you explain that a Dehcho first nation had to go to the courts? It claimed that the government had not consulted it sufficiently when it approved the permit. That means that there had not been a really comprehensive study. Otherwise, as for any other project implemented outside the covered territory, first nations would have been consulted.

[Patrick Borbey]

Let us take the Mackenzie project as an example. An environmental assessment has just been completed. A report has been sent to the government. Before answering this report, the government will have once again have to consult the Aboriginal groups of the region even though they were directly involved in the process. They were the ones appointing the members of the panel. They were consulted over several years. Despite that, we will have to relaunch the consultations under our constitutional obligations.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Woodworth, you have the floor.