Indigenous and Northern Affairs Committee on Jan. 29th, 2013

[The Chair, Conservative, Chris Warkentin]

I'll call to order this 56th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we have two witnesses from the Nunavut Impact Review Board before us. We have Elizabeth Copland, who is the chair, and Ryan Barry, who is the executive director. We want to thank you for being here today.

Before we get started, we want to welcome a new committee member to our committee. Stella Ambler is joining us. We want to thank you for joining us. We look forward to working with you at this committee.

We'll turn it over to you, Ms. Copland. We'll begin the process by hearing your opening statement, after which we'll begin rounds of questioning.

[Elizabeth Copland, Chair, Nunavut Impact Review Board]

Thank you.

Ublaahatsiatkut. Good morning.

Thank you for this opportunity to appear before you on behalf of the Nunavut Impact Review Board. My name is Elizabeth Copland. I am the chairperson. With me today is Ryan Barry. He is our executive director. We also have our legal counsel, Catherine Emrick, here with us this morning.

We have provided the committee with a written brief setting out the details of our recommended amendments to part 1 of Bill C-47, the proposed Nunavut planning and project assessment act. Knowing that your time is limited, the focus of my opening statement will be to provide you with additional context and insight into the board's work and our recommendations.

I live in the hamlet of Arviat in Nunavut. As a member of the Nunavut Land Claims Agreement transition team, I have been involved with impact assessment in Nunavut since 1994. I have served several terms with the Nunavut Impact Review Board over 14 years as a nominee of the Government of Canada. On the nomination of my fellow board members, I was recently appointed chairperson for a three-year team.

I have also chaired four public hearings for the Nunavut Impact Review Board, including those for the Jericho diamond mine, the Doris North and Meadowbank gold mines, situated in the Baker Lake area, and most recently the review of Baffinland Iron Mines Corporation's Mary River project.

Mr. Barry lives in the Kitikmeot region of Cambridge Bay. Our head office is also located in Cambridge Bay. Ryan has been employed with the board for the last six years, leading numerous impact assessments, representing the board through many forums, and since 2011 serving as the NIRB's executive director. We have a team of 18 administrative professional staff, who are essential to the board's task of carrying out impact assessments for the entire Nunavut settlement area.

As a result of the efforts and commitment of my fellow board members and staff, the board has a strong reputation among all stakeholders for achieving timely, credible, efficient, and thorough assessments of proposed major development projects in Nunavut. It is with this experience and perspective that we bring our recommendations to you today.

As we discuss in our brief, Nunavut is unique, with a sparse population living in small communities widely scattered across two million square kilometres accessible only by air and by ship or water. Inuit have occupied the region for thousands of years and form almost 85% of the current population. Inuktitut is spoken by 80% of the population.

Many Inuit rely on their lands and waters to fulfill their basic needs. Many who have experienced resource-based development in their community know that eventually it leaves, and they will not trade what is necessary to sustain and protect their ability to live off their land and waters for economic development. This shapes their views of development.

The process of impact assessment as enshrined in the Nunavut Land Claims Agreement and carried out by the Nunavut Impact Review Board is essential to developing a community's understanding of the potential for significant impacts from development, the opportunities for managing impacts through terms and conditions under which a project will be approved, including requirements for ongoing monitoring, adaptive management, and a commitment to full reclamation. All of these elements are necessary in order for development to proceed in a responsible manner.

As we talk about striving to provide industry with increased certainty and timelines and improving the efficiency and effectiveness of our assessment process, it is also important to acknowledge that the opportunity for members of affected communities to access the impact assessment process is an important element in providing certainty to project proponents.

I think it is fair to say that project proponents would prefer to participate in the Nunavut Impact Review Board's assessment process rather than be forced to address concerns through the courts.

This is one main reason we are recommending that the statute provide for a participant funding program. In the long run it is likely more cost-effective to provide for a participant funding program and thereby reduce the potential for legal challenges down the road. Without participant funding the Nunavut Impact Review Board's reviews also become more costly for the Government of Canada as it can take much longer and require considerably more board resources to accommodate unfunded participants.

The lack of a participant funding program in the proposed statute also creates a disparity in public access to impact assessment in Nunavut and in the jurisdictions in Canada where the Canadian Environmental Assessment Act applies. For example, during the NIRB's review of the Mary River iron ore project, no participant funding was made available despite there being about 18 communities identified as being potentially impacted by this project. In contrast, on January 16 of this year the Canadian Environmental Assessment Agency announced it is making available $81,600 to support public participation in the federal environmental assessment of the Fire Lake North iron ore project located in Quebec.

As noted in our brief, based on Natural Resources Canada's statistics, in 2012 Nunavut placed fourth in Canada for mineral exploration and deposit appraisals expenditures, behind Ontario, Quebec, and B.C., and far ahead of the NWT and Yukon.

In a recent information session on improvements to northern regulatory regimes, Aboriginal Affairs and Northern Development Canada reported that the 2011 growth in gross domestic product for Nunavut was 7.7%, with Yukon growing at 5.6%, Canada overall at 2.6%, and the Northwest Territories shrinking by about 5.5%. Based on these numbers, it appears that we are doing something right in Nunavut.

An important difference between resource management models in the NWT, Yukon, and Nunavut is that the Nunavut system is a simple integrated resource management system for land use planning, impact assessment, and land and water licensing. The scope of the Nunavut Impact Review Board's jurisdiction is also unique. It includes the assessment of both environmental and socio-economic impacts. The board conducts screenings and reviews as well as oversees the monitoring of approved projects.

A significant part of the board's written brief addresses the need to ready the system. There are three aspects to this.

First, with the level of development that we are currently experiencing in Nunavut, the Nunavut Impact Review Board's core capacity is already stretched to the breaking point. The NIRB's funding levels were originally set in 1992 and have not been formally re-evaluated since that time. Nunavut's regulatory system has been proven to work and NUPPAA, the Nunavut Planning and Project Assessment Act, may further improve its efficiencies. However, investment is needed to ensure the assessments of development projects are not delayed because of insufficient regulatory capacity. Although mineral resource development currently drives the Nunavut economy and makes up the NIRB's workload, the territory's first hydro project is coming to the Nunavut Impact Review Board for assessment next month. Oil and gas development and nuclear power projects are likely not far behind.

Another unique aspect of the Nunavut regulatory system is that the NIRB will conduct the screenings and reviews of these projects with the National Energy Board and Canadian Nuclear Safety Commission carrying out licensing responsibilities only.

We work cooperatively with these federal bodies, but further development of core capacity within our organization is still required. This is regardless of changes that will occur when NUPPAA comes into force.

The second aspect of the need for resources to develop the one-window system is contemplated in the statute. We know that the Nunavut Planning Commission has written to the committee setting out its funding needs for this, but it is also important that the other resource co-management boards, the Nunavut Impact Review Board and the Nunavut Water Board, be engaged in the design of the system. On a project-by-project basis our assessment and licensing processes are significantly more technical and our information needs are greater than those of the conformity determinations being carried out by the planning commissions. It is important that this one-window system be designed to meet our needs.

The third aspect is the need for resources to develop the capacity to administer and respond to the new requirements in NUPPAA. These include: extensive new requirements to meet access to information obligations beyond those set out in the Privacy Act; to translate lengthy and highly technical documents into three languages, for which corresponding terms in Inuktitut might not be available, work that only a very small handful of translators are qualified to carry out; and to comply with new public registry requirements.

Overall the highly prescriptive nature of NUPPAA as it is proposed removes much of the board's discretion on process and thus will require considerably more resources. Accordingly, the board was reassured to read Minister Duncan's testimony before this committee on December 10, 2012. His acknowledgement of the crucial nature of the work of the boards in Nunavut and the obvious need for more funding and his understanding that we're facing greater levels of activity resulting in greater needs are important.

We look forward to the opportunity to discuss the board's needs directly with the minister and his representatives as the necessary resources—people, systems, and finances—must be in place prior to NUPPAA coming into force in order to achieve the goal of a more efficient and effective regulatory system.

This leads me to the challenges associated with the lack of timely appointments of board members. All of the Nunavut institutions of public government are routinely without a full complement of board members and have had to put contingency plans in place due to the potential for lack of quorum. The Nunavut Impact Review Board has been in a position of not being able to make important decisions because of a lack of quorum.

We appreciate that NUPPAA will allow the board to appoint panels, which may make quorums easier to maintain, but it is not the only mechanism that could be implemented. We hope that you are able to help by supporting our recommendation that more should be done to address this ongoing and chronic problem.

My remarks today do not touch on all of the recommendations in the board's written submission.

I will close with a request to consider these detailed recommendations, including the board's support for many of these submitted to the committee by Nunavut Tunngavik Incorporated, along with our concerns with two of these recommendations directly related to the board's mandate.

In closing, I want to express the board's sincere appreciation to this committee for your time and to our dedicated colleagues from the Government of Nunavut, the Government of Canada, Nunavut Tunngavik Incorporated, and the Nunavut Planning Commission. We look forward to working together to implement the final bill approved by Parliament.

Matna. Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Before we begin with the rounds of questioning, we have some housekeeping instructions. You have an earpiece next to your seat in case you require French translation. It is on channel number one, I believe, and it's working. As well, if you would like your legal counsel to join you at the table, you're welcome to do so. That would be entirely all right.

We'll begin rounds of questioning, with Mr. Bevington for the first round.

[Dennis Bevington, NDP, Western Arctic, NT]

Good morning, witnesses. Welcome. I'm pleased that you're here to share your knowledge and understanding of this process with us today. This is very good.

Mr. Chair, I'm pleased to have an opportunity to ask questions.

You've proposed a number of amendments. You've joined with the NTI in the consideration of significant alterations to the projects. Have you been in contact with the Government of Nunavut over your proposed amendments? Is there a dialogue between this board and the government?

[Elizabeth Copland]

I'm going to ask Mr. Barry to reply.

[Ryan Barry, Executive Director, Nunavut Impact Review Board]

Thank you very much.

Yes, we've kept them informed through working with the legislative working group for a number of years. All the parties have been around the table. They invited submissions from our board. Most of what is in our brief has been brought up through the course of the development of the legislation. We've certainly kept them informed.

[Dennis Bevington, NDP, Western Arctic, NT]

Yes.

In Yellowknife we received some informal testimony from the NWT and Nunavut Chamber of Mines. They had some recommendations for amendments as well. Are you familiar with those?

[Ryan Barry]

We received them as of yesterday and have given them a preliminary review.

[Dennis Bevington, NDP, Western Arctic, NT]

Are there any comments you'd like to make?

[Ryan Barry]

I think we could follow up with a written response. That would be appropriate and would give us a little more time to absorb and properly respond, if that's okay.

[Dennis Bevington, NDP, Western Arctic, NT]

It would be excellent if you could provide us with that—

[Ryan Barry]

We'd be happy to.

[Dennis Bevington, NDP, Western Arctic, NT]

—because of course we now have three organizations proposing amendments to this act. That certainly suggests that there's some work to do here, work that is required to make this act work appropriately for the people of Nunavut.

For the board, for our standing committee, could you talk a little more about the participant funding? My experience on the Mackenzie Valley Environmental Impact Review Board suggested to me that getting participant funding was always an ongoing issue. Maybe you could describe what that actually does for the participants.

[Elizabeth Copland]

It has always been an ongoing problem with Nunavut as well, but Ryan has more experience on the funding part of this, so I'm going to ask him if he can answer.

[Ryan Barry]

Thank you, Elizabeth. I'll try to keep it as concise as possible.

On participant funding, if you are a community group or an affected individual in most any place in Canada, and if an environmental assessment is being conducted by the Canadian Environmental Assessment Agency, the National Energy Board, or the Nuclear Safety Commission, you can apply for a set pool of participant funding to allow you to properly prepare for and make representations to the panel or the environmental assessment board, as the case may be.

In Nunavut this was often the case. The moneys themselves are usually used for the high cost of travel to get to a board venue, to receive outside help, and to prepare written briefs. Most of the costs themselves are relatively minor. They're not for things like hiring full-time staff or anything of that nature.

In Nunavut until the removal of the application of the Canadian Environmental Assessment Act, participant funding was made available through the CEA agency until the act and the application were removed in 2008 through an amendment to the land claims agreement. It is something that we've seen the effectiveness of; we've seen that it allows parties that would otherwise.... The board has to make additional accommodation for things like extending timelines to allow parties to prepare comments, so it allows them to adhere to the board's timelines a lot more effectively. It allows them to show up to venues, as opposed to the board itself having to find the money to bring in community representatives.

In our experience, what we found was that it allows for a much closer adherence to our timelines and that the overall costs, if you look at extending the timelines and the salary and staff costs, tend to be comparable, if not more efficient, by having that participant funding in place.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you. That's a very good explanation.

With the support of the amendments by NTI.... We've seen just recently that with regard to the environmental assessment done on the Baffinland iron ore project you've now received a significant alteration to that project. Perhaps you can explain to us why the amendments are required for those significant alterations, because we now have a particular case in front of us, and perhaps that would also help the committee in its deliberations on these amendments.

[Elizabeth Copland]

I'll speak a bit to that. The changes on the Mary River project that we hear about are changes from the hearing itself, the first hearing, and because of the downsizing, we're going to have to review what changes they are bringing to the board.

Ryan, do you have anything more on this?

[Ryan Barry]

Thank you very much, Elizabeth.

I think we're generally supportive of NTI's amendments, as we've stated in our brief, with two minor exceptions. On the case for the Mary River project in particular, I think the way we tend to explain it is that we went through a lengthy process, a consensus building process, and got to a decision, which was a very challenging decision for the board and for the territory to make about this development and about the conditions by which it should be developed.

When immediately afterwards the proponent comes back and says they're now looking at things again and they'd like to amend it and develop in a slightly different way, and ship in a different area and that sort of thing, for us, being an impartial, objective board, we take that at face value. We say that we have to look at this. What parts of it have we assessed and what parts haven't we? We also have to explain this to the public and ensure that they still have faith in the system, and also that they understand that before any decisions are made, there is still an opportunity to participate in the assessment and thoroughly evaluate it.

In the case of this particular amendment and what the company is looking for, because of changes at the ownership level of the company and a downloading of some of the options from ArcelorMittal and the world global iron and steel situation, what it has required is that their board of directors is asking them to implement an early development phase. It would allow them, instead of waiting until a railway is built and then shipping out using a railway, to mine and ship a smaller amount using trucks, through a northern route as opposed to a southern route.

They believe that will help them to generate a certain amount of revenue more quickly, and that will lead them to a greater likelihood of attracting the additional investment that's required to carry out the full project. The way it's being processed from a regulatory standpoint is that they are approved to build the large project, and this earlier development phase, which we're looking at as an additional piece on top of that, is now what the board has to assess and to decide on. Is it acceptable to allow them to ship in this other area through the open water season?

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Barry.

Thank you, Mr. Bevington.

We'll move to Mr. Clarke for his first round.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

Welcome, everybody, back to another sitting of the committee.

I'd like to thank the witnesses for taking the time to come here today. It's always fun to travel in the winter, isn't it.

I have a couple of questions.

How long was the process of negotiations from the beginning to the final draft that we see right now?

[Ryan Barry]

I believe it took approximately 10 years.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

It took 10 years. Okay.

Can you please expand on who participated in the consultation process regarding NUPPAA and the nature of their participation throughout the consultation process?

[Ryan Barry]

Maybe I'll take a shot at answering.

Our board was invited to the legislative working group in approximately 2007. I can't really detail the work that was done prior to that although I know there was considerable work done by the Government of Nunavut, the Government of Canada, and Nunavut Tunngavik. Along with the planning commission, our board was invited to join the discussions and describe how we saw these changes being implemented on the ground based on our experience of implementing article 12 of the land claims agreement. For us I think there were a lot of productive discussions at that level. They have led to a bill which I think is more consistent with how the land claim itself has been carried out today and with how the board has implemented article 12.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

You started participating back in 2007. Do you know any other groups who participated before that?

[Ryan Barry]

That's a bit more than I can respond to, to be honest.