My colleague, Mr. Ray Andrews, and I are going to share our 10 minutes of speaking time. We're going to divide that into four related topics. First, I'll provide a brief description of NWMB's fisheries jurisdiction under the Nunavut land claims agreement. Second, I'm going to set out specific NWMB concerns regarding the changes introduced to the Fisheries Act in 2012. Third, Ray is going to briefly address the bigger picture, which is that the Fisheries Act requires more than simply a rollback of the regressive modifications in 2012. Fourth and finally, Ray and I together are going to present to you six specific NWMB recommendations for your consideration.
To begin, the Nunavut land claims agreement, which I'll refer to as the Nunavut agreement, has been in place since 1993, and it's protected by the Constitution. Accordingly, where there is any inconsistency or conflict between any government laws and the Nunavut agreement, the land claim prevails to the extent of such inconsistency or conflict.
The NWMB itself is an Inuit-crown institution of public government established by the terms of article 5 of the Nunavut agreement. It is the main instrument of fisheries management and the main regulator of access to fish in the Nunavut settlement area. That area is a massive expanse of Canada's polar region approximately the size of continental Europe. The primary purpose of the board is to protect Inuit rights and interests, while at the same time respecting the principles of conservation.
I'll move on to the board's concerns with the 2012 changes. Our first concern is actually with the process that was followed. We can get into the specific details if the committee wishes, but suffice it to say for now that the process followed by the crown lacked even minimal procedural fairness; that is, it featured no reasonable notice to the public, insufficient disclosure, and inadequate opportunity to respond. In addition, the crown at least arguably did not fulfill its constitutional duty to consult affected aboriginal peoples.
With respect to the substantive changes made to the act, the board's concerns are focused on those modifications that weakened habitat protection. The most troubling amendments to the act are those contained within revised section 35, which, as everyone knows, replaces former sections 32 and 35. Previously, subsection 35(1) protected against the harmful alteration, disruption, or destruction of fish habitat, subject to the exceptions that were set out in old subsection 32(2). New subsection 35(1) significantly narrows those former habitat protections only to fish, and only to those fish in specific fisheries and fish that support such fisheries. Of additional concern is that new subsection 35(2) goes on to significantly expand the previous and already wide authority of the government to permit harm to fish habitat through various exceptions.
The NWMB has similar concerns regarding the expansion of regulation-making powers under section 43 of the act. For instance, the Governor in Council may make regulations “excluding fisheries from the definitions 'Aboriginal', 'commercial' and 'recreational'”.
To be fair, for each one of the sections and subsections I've just mentioned, along with others, the minister must, before making a recommendation to cabinet or exercising his or her own decision-making authority, consider four factors set out in new section 6 of the act. While this is a positive statutory obligation to place on the minister, the board is of the view that the factors to be considered are imprecise and quite general, and therefore insufficient in the circumstances.
Mr. Chair, I now ask my colleague Ray to continue with the presentation.