Indigenous and Northern Affairs Committee on Dec. 10th, 2012

[The Chair, Conservative, Chris Warkentin]

Colleagues, we are going to call the meeting to order. This is the 54th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our study on Bill C-47.

For our first hour, colleagues, we have representatives from Nunavut Tunngavik Inc. We'll hear from them, as is our usual practice, and then we'll have questions.

We will turn it over to Ms. Hanson for an opening statement. You are joined by Mr. Merritt and Mr. Spaulding. Thanks for coming. We appreciate your willingness to be here and to share your thoughts with regard to the bill. We'll turn it over to you and then we'll have some questions for you.

[Udloriak Hanson, Senior Policy Liaison, Nunavut Tunngavik Inc.]

[Witness speaks in Inuktitut]

Thank you very much for asking us to present today. My name is Udloriak Hanson. As you mentioned, I have John and Dick with me. They're both with NTI as legal counsel. It's nice to see some familiar faces here. We have Nunavut Sivuniksavut students, our college students, all from Nunavut. It's great to have that support. We have people from NTI and my son here, so I'm very pleased to be here. Thank you.

First, I'd like to give thanks to the committee again for the invitation for NTI to appear today. NTI, Nunavut Tunngavik Inc., represents more than 25,000 Inuit of Nunavut for the purpose of asserting and defending the rights of Inuit under the 1993 Nunavut Land Claims Agreement.

Part 1 of the bill before you today arises directly from the Nunavut agreement. It is our job as representatives of Inuit, as we believe it is yours as legislators, to ensure that the bill fully respects and implements the treaty promises made by the crown to Inuit. We take that responsibility very seriously.

NTI is a not-for-profit, non-partisan organization incorporated under federal law. We have a board of directors headed by a slate of executive officers who are popularly elected by Inuit across Nunavut. Actually, today is our election day for presidents. The Nunavut agreement covers some 20% of Canada and a larger portion of Canada's marine areas. Our agreement is the bedrock of Canadian sovereignty in much of the Arctic. It is a treaty under section 35 of the Constitution Act, 1982.

The Nunavut agreement requires that legislation set forth the powers and functions of the resource management bodies created under the agreement, in this case the Nunavut Impact Review Board and the Nunavut Planning Commission,but there is an obvious risk to the aboriginal party in this legislative exercise. A land claims agreement is a contract. All its provisions, both large features and small details, are the outcome of negotiation and compromise. Neither side gets everything it wants.

The wording of many provisions reflects a careful balancing of interests. Implementation legislation proceeds differently. One of the parties to the agreement gets to draft the legislation. Recognizing that imbalance and reflecting the crown's duty to act honourably, the Nunavut agreement expressly requires that implementation legislation be prepared in close consultation with the designated Inuit organization, in this case, NTI.

There must be fair and sufficient collaboration and accommodation. Inuit cannot just be stakeholders in such a process. We have to be partners in the bill's design and wording. The Supreme Court of Canada has held that the crown is under a duty to consult and accommodate aboriginal peoples and to act honourably when aboriginal rights are involved. This duty logistically extends to the crown acting as part of Parliament, so that these principles should also be respected and applied by this committee.

Between 2002 and late 2009, the Department of Indian Affairs and Northern Development, NTI, and the Government of Nunavut worked together on the development of this bill. The Nunavut Planning Commission and the Nunavut Impact Review Board also participated in that work. The working group operated on the basis of consensus, building on the practical experience of the Planning Commission and the impact review board since they came into existence in 1996. The strength of the bill is the result of that consensus-based process. It is a credit to the federal officials with whom we worked that at this concluding stage of the process, NTI can say that it has been a partner in the bill's development. This is the first time NTI can say that about a federal legislative project.

Having said that, NTI did not draft this bill, nor did it instruct the legislative drafters directly. Therefore, NTI cannot warrant that this bill complies in all respects with the Nunavut agreement. As provided in the agreement, in the event of any conflict, the Nunavut agreement will prevail.

In fact, NTI will be proposing today a number of changes to the bill. While relatively minor, many of these changes are needed to ensure clearer compliance of the bill with the Nunavut agreement.

It is important to note that due to the limited time available, and the length and complexity of the bill, NTI has not been able to conduct a review of the French language version. Parliament must look to the Department of Justice and its own staff to ensure that the two official language versions are consistent.

In NTI's view, the strengths of the bill include: a requirement that public hearings and reviews be conducted in Inuktitut in addition to French and English, at the request of a board member, proponent or intervenor; specific direction to regulators not to issue permits unless the land use planning and environmental assessment processes authorize the granting of a permit; and direction to regulators to include in their permits applicable terms and conditions of land use plans and project assessment certificates. Another strength is offence provisions that backstop the duties of regulators in relation to land use plans and project certificates.

As well, other strengths include: a requirement for Inuit approval of land use plans, which is consistent with the unique Inuit role in the land management system in Nunavut and the Inuit ownership of much of the land; instructions for how projects will be scoped in advance, so as to avoid problems such as project splitting; and provisions to facilitate commission and board operations, such as recognition of their legal capacity to hold property and sign contracts.

Notwithstanding these positive features, a number of aspects of the bill should be corrected.

Contrary to the Nunavut agreement, the bill fails to identify cabinet as a body responsible in all cases to implement land use plans and project certificates. The result is a gap; where cabinet has exclusive authority for land-related functions, plan or project certificate requirements will be without anybody responsible to implement them.

The bill expressly requires that in exercising their functions with respect to land use plans, the Planning Commission, ministers, and Inuit must give specific attention to “existing rights and interests”. However, existing patterns of natural resource use and“economic opportunities and needs are already factors that must be considered. The introduction of another factor emphasizing the same or similar points improperly skews the delicate negotiated balance of the agreement.

There are some areas of the bill where process should be improved. For example, under clauses 141 and 142, proponents are the only source of notice to the Planning Commission and the Impact Review Board of modifications to a project during assessment. Regulators should also be required to notify the Planning Commission or Impact Review Board if they receive an application with a project description that differs from the project under assessment or that has been assessed by the Planning Commission or Impact Review Board.

In a number of places, the wording of the bill varies from the wording of the agreement for no good or agreed reason. This is unsound in principle and in law and is likely to create confusion and uncertainty in the day-to-day operation of the new act.

Draft amendments for these and other proposed changes are included in NTI's written submission, and I've been told you all have a copy of it. NTI requests the committee to make these amendments.

Finally, NTI reminds the committee that a law is only as good as its day-to-day administration. The bill gives the Planning Commission and the impact review board a number of new or expanded functions. For example, both bodies will have an extensive public registry responsibility that exceeds current federal record-keeping requirements. Functions such as these naturally require the allocation of appropriate levels of new funding.

Another funding need relates to the increase in the number of existing and anticipated mines and other resource development activities in Nunavut. Land and water inspection in Nunavut is already overtaxed. Adequate funding for these functions is long overdue.

The bill appropriately contains strengthened monitoring, inspection, and enforcement provisions. However, we have had no assurances whatsoever that sufficient funds will be allocated to implement the bill.

Arctic ecosystems are fragile, and this is an urgent priority. NTI invites you to ask federal government witnesses to identify specifically how and when the necessary additional funding to implement this bill will be made available to the boards and to relevant federal offices.

Nakurmiik. Thank you for your attention.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Hanson.

I will now turn to Ms. Crowder to begin questions, for seven minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

I want to thank the witnesses for coming before the committee.

I want to acknowledge the students as well. It's important that the young people, who are the future leaders, are here to witness and perhaps also raise some questions for their own leadership.

First of all, I want to thank you for your very thorough document. You raised a couple of important points in your testimony.

One of the points is around implementation and funding. I know we've had previous experience where funds haven't necessarily been attached.... I mean, they're never incorporated in a bill, but funds haven't been agreed upon when legislation has been passed, or in the implementation phase when things haven't run as expected. We only need to look to the Land Claims Agreements Coalition and the struggles that a number of the land claims and self-governing nations have had in terms of implementation of their agreements, to know that unless you nail it down in a piece of legislation, you're going to have a great deal of difficulty when it comes to the implementation phase.

I want to ask about the lack of a funding agreement, because that was identified back when people spoke about Bill C-25, the previous incarnation of this bill. At that time, the deputy minister indicated there would be funding, but it wasn't earmarked where that money would come from, how much, or when it would be available.

I've mentioned at this committee before that the B.C. First Nations Education Act is a good example of a piece of legislation that was passed five years ago and the funding is still not in place for that.

Are you aware of any specific discussions taking place with regard to funding, such as what amount and when? Are you aware of any of those discussions?

[Udloriak Hanson]

First of all, thank you for your question.

Specific to the discussions, they would be with the Nunavut Planning Commission. I think they're in the best position to speak to the numbers they have provided. It's our understanding that there was a written submission by NPC that provided for numbers, which would show how much more money is required to implement, to do their work effectively.

As per our amendments, the amendment to proposed section 39 would help to confirm the government's funding responsibility.

We understand also, as does the Government of Nunavut, that the bill can't deliver all that's necessary by way of funding, as you mentioned as well, but it would be good to have confirmation that those discussions will support the extra work that the legislation will provide for. It would be good to hear the minister's commitment to increased and adequate funding for not only NPC but also NIRB, and inspection at the federal and territorial levels.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

When the Government of Nunavut came before us last week, they didn't propose any amendments to the part of the bill that applies to Nunavut. You've clearly done a substantial amount of work on amendments. In your introduction you make it clear that this is part of ensuring that the language in this new bill, Bill C-47, is consistent with the Nunavut Land Claims Agreement.

If you were to prioritize, are there particular amendments you've proposed that you think are essential to be included in the bill?

[Udloriak Hanson]

Unfortunately, we can't prioritize. We feel it is a priority that all 12 amendments be implemented.

The bill and the 12 amendments we're proposing would provide for that consistency and would make us feel that this a good piece of work that has been worked on for quite some time by all three parties.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Chair, how much time do I have left?

[The Chair, Conservative, Chris Warkentin]

You have three minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Great.

One of the things you pointed out was that there could be some confusion and uncertainty if the legislation proceeds as is. Could you highlight key areas where there would be confusion or uncertainty?

[Udloriak Hanson]

Because we only have three minutes, I'll let our expert who did sit on the working committee answer that one.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you.

[Richard Spaulding, Lawyer, Nunavut Tunngavik Inc.]

We've suggested a number of kinds of amendments.

One kind could be considered a design feature of the act, and that's the first amendment put forward. There would be significant confusion if the bill were enacted without providing that an implementation body would be responsible for planning in relation to conservation areas and parks. Right now the bill is silent as to what body is responsible for implementing plans in that sphere. The body that tends to have responsibility is cabinet, and the definitions of “department” and “agency” in the bill, which are the closest candidates to include the bodies I'm referring to, exclude them by defining these entities essentially as the public service.

Another source of confusion that's been highlighted has to do with the provision for what happens when a project changes in the course of assessment, which is a very practical, typical concern in an environmental assessment process. It happens more often than not when a project goes to review that at some point the description is going to change for reasons of financing, changes in plans, or changes in conditions on the ground having been encountered. NTI's submission is that the bill is overly confusing on that point. It's overly cumbersome. It could be simplified.

Funding is obviously, as Ms. Hanson mentioned, a key area.

Another one is that there are a number of language points in the bill that depart from the agreement in such a way that an NTI submission can only lead to less certainty rather than more certainty. To cite a simple example, in several places where the agreement says that a body has a judgment or a decision to make, the bill says that there's an opinion to be expressed. In ordinary parlance, those are different things. They lead to questions rather than to clarity. Those are some examples.

In general, the 12 amendments that Ms. Hanson has alluded to are intended to provide more clarity, more effectiveness.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn it over to Mr. Richards now for seven minutes.

[Blake Richards, Conservative, Wild Rose, AB]

Thank you, Mr. Chair.

To the witnesses, I appreciate your being here today.

I understand that work towards creating this bill began about 10 years ago, shortly after the creation of Nunavut as a territory. I think you mentioned in your opening remarks that you certainly felt consulted and felt as though you were able to work with the government on the creation of the bill. That's something I'm sure you're quite pleased with.

I want to get a sense from you as to whether you feel you were closely consulted during the development of the bill. Maybe you could give some evidence of that.

[Udloriak Hanson]

Thank you.

I'll leave it to the lawyers to describe exactly what consultation means in that sense. What I can say, though, even though I wasn't part of the working group, is that NTI does feel as though we most definitely were part of the working group in that regard, and that we were able to work very hard together towards this. Because of that, most of the hard issues are resolved.

We are almost at consensus, but we're not quite there. Consultation in that sense has brought us so far. As I said in my notes, we weren't the drafters, so it did end at one point, and we've started this other process, which requires us to provide amendments that we feel would make it a more wholesome piece of legislation.

The 12 amendments we have made are not a surprise to anybody. We've been making it quite clear and obvious to all parties that this is something we feel needs to happen in order for the legislation to be consistent with the land claims agreement.

Did somebody want to add to that?

[John Merritt, Legal Counsel, Nunavut Tunngavik Inc.]

I have just a couple of extra points.

The common-law duty to consult aboriginal peoples, as you know, also includes the duty to accommodate. It's not enough to talk. It's also important to try to, where possible, achieve a result that accommodates the aboriginal party. As my colleague said, these 12 amendments aren't the only amendments that NTI proposed in the process. As you can imagine, we had a much longer list. This was very much a list of manageable amendments we thought were the irreducible minimum.

The other point I'd make is that, as mentioned in the oral presentation, the Nunavut Land Claims Agreement has a provision that says it prevails in the event of conflict with any law, so it's very important that other laws be developed in such a way that there won't be overt conflicts leading to confusion and potentially litigation.

[Blake Richards, Conservative, Wild Rose, AB]

These areas that you believe require amendments, were they not discussed with officials when the bill was being developed? If they were discussed, can you give us some sense as to whether you received any response as to why not all of your views could be fully accommodated?

[Udloriak Hanson]

I'll have Dick, who was part of the working group, respond to that.

[Richard Spaulding]

In short, all of these proposed changes have been discussed. In most cases there has been at least some exchange of written views.

From NTI's point of view, the responses were not persuasive, and from NTI's perspective, the consultation now falls to be completed in this process with the committee. We are here to persuade the committee that these changes should be—

[Blake Richards, Conservative, Wild Rose, AB]

I'm sorry to interrupt, but just so I'm clear, the changes you're suggesting were in fact discussed then, and there was a response to why they could not be completely accommodated. Is that accurate?

I'm just trying to understand. I wasn't sure from your remarks. Were they discussed, and were you provided with reasons why they couldn't be fully accommodated?

[Richard Spaulding]

Yes, as I mentioned, and as Ms. Hanson mentioned, there is no complaint before you that there has been a breach of the duty to consult here. We have been consulted. The process, from our point of view, is not complete.

[Blake Richards, Conservative, Wild Rose, AB]

Okay. I just wanted to make sure that I understood.

You were given rationale for why some.... I'm still trying to make sure I'm—

[Richard Spaulding]

Yes, okay. Thank you for that clarification of your question.

When we say that the responses weren't always persuasive, I'll give you some examples. On the opinion versus decision and judgment call, we suspect, having had discussions with federal officials, that this is a preference on the part of the drafter. But we don't meet with the drafter. We don't have written arguments presented to us by the drafter. To some extent the federal officials are intermediaries there, but we sense this is a preference of the drafter. We ask the committee to make its own judgment. We think it's very important in the instances we cited for the language of the agreement to be tracked. It's in that sense that we say the consultation needs completion.

Similarly, on process questions which I alluded to, there is a lot of detail there. There has been good faith in the exchange of opinions. In our view, the simplicity we had proposed on the project change example is something the committee should consider. But we don't complain, in that instance, that federal officials have not responded to us and presented their views on the point.

[Blake Richards, Conservative, Wild Rose, AB]

Can you give us any examples of how the legislation may have been adapted or changed during the consultation process to reflect some of the interests of Inuit for sustainable economic development in Nunavut? Can you give us some examples of that?