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

[Ryan Barry]

Just to clarify, the amendment to the land claim was in 2008. It removed the application of the Canadian Environmental Assessment Act to the Nunavut settlement area. It completely removed it. When that act did apply previously there was at least the option of accessing the participant funding through the CEA agency itself.

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

What's the mechanism now? Is it ad hoc? Is it project by project? You indicated there has been money available for projects in other parts of the country, but that it has not necessarily been as available.

[Ryan Barry]

Since that time, since CEAA was removed from the territory, it has been on an ad hoc basis. Each time the board has recommended that a project be subject to a full review, the board has indicated whether or not it believes participant funding should be made available. In some cases it's been granted. More recently the response from the minister has been that because there is no established program, there will be no funding.

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

How does the credibility of your process continue without funding? It's an important process.

[Ryan Barry]

Unfortunately what we've seen is that more recently there seems to be a misunderstanding. There are two types of public reviews in Nunavut. One is done by the board, and for more transboundary projects there is a federal panel review, which allows different representation by affected groups. There seems to be confusion as to whether that type of a review, a federal panel review, might come with participant funding, whereas the NIRB review people think it doesn't. That's not actually true. There are no unique means for a panel to have funding that the board doesn't have, but unfortunately we are certainly seeing the effect of having no established program, and that is leading to confusion about the best option for review.

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

Given the challenges in Nunavut in terms of travel and access and the need to have things available in at least two or three languages, it is very important that NIRB during those public processes be on the ground talking to community members. Is that correct?

[Ryan Barry]

That's certainly correct. The main message I think we would try to get across is that without an established participant funding program, the board has to ensure that the affected groups have the ability to fully participate. As a result, we may need to extend timelines for comments so people have more time to prepare, because they don't have resources or help. The board may also have to pay out of pocket for affected individuals to show up to a hearing. Processes may also be lengthened in some instances.

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

It creates a real unevenness.

With regard to the timelines, I know you indicated that on mining you had only just received the recommended amendments and you haven't had time to give them a full review. I understand that, but one of the things they are asking for is that the assessment process consistently be completed within 24 months. From what you're indicating, it seems to me that doing that could continue to be a challenge if adequate resources are not put in place. Whether or not you agree with the 24-month recommendation, if you don't have the resources, it's going to be very difficult to consistently provide for a public process that people in Nunavut want to see within those timelines. Is that accurate?

[Ryan Barry]

I think that's a fair statement.

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

Just quickly on the board funding, I'm surprised to hear that the board funding hasn't been reviewed since 1992 given the increased costs of living and everything. It's actually pretty shocking that you continue to function in that kind of environment.

[Ryan Barry]

I think we could say that our funding has increased since that time, but there's been no formal review process for it, no transparent process. It's not a very well kept secret that our board as well as the other boards are currently chronically underfunded and have substantial difficulties in achieving their full mandate because of it.

[The Chair, Conservative, Chris Warkentin]

Mr. Seeback, you have five minutes.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

From my review it seems as though the bill clarifies some of the roles and responsibilities for the board. Do you think the board will therefore be more efficient?

[Ryan Barry]

I think clarifying things in the legislation helps clarify expectations. In some cases doing that can make it easier for the board to ensure that it's meeting those expectations very clearly. The main other increase in efficiency is in having a clearer understanding of when certain decisions are coming back and of the timeline for them to come back from the minister's office, instead of that being an unknown. As well, with all projects going through the Nunavut Planning Commission, there will be some certainty as to how to formally trigger the process, something that is currently not there.

[Kyle Seeback, Conservative, Brampton West, ON]

I looked at some of your amendments. I don't have a lot of time, but I want to talk about a couple of them and perhaps understand a little bit of the rationale behind the changes. Your counsel can answer if you think it's appropriate.

In the first one, on proposed subsection 228(2), you appear to be moving consultation with the board to consent of the board. This seems to be a big change that you're proposing. Why do you think it's the consent of the board rather than consultation with the board?

[Catherine Emrick]

Under the land claim agreement, there's a requirement for the board to agree with the minister if any projects are exempted from screening through one of the schedules in the land claim. By introducing into the legislation the ability to exempt projects through regulation, that essentially has the same effect as the requirement for the board to agree to add a project to the schedule. We think it's parallel to that requirement for agreement that the board also consent on exemptions from the definition of a project, which essentially would exempt a project from screening.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay. Thank you.

In the changes you propose with regard to proposed section 134, what do you see as the rationale for changing the words “would be inconsistent with” by substituting “in contravention of”? I guess “in contravention” is a little stronger, but these are sort of drafting interpretations. Certainly with this one it doesn't seem to be a substantive amendment. It's more of a drafting interpretation; it takes me back to my law school days when I tried to look at drafting. Am I wrong in that statement?

[Catherine Emrick]

We actually had some discussion about whether to leave in that request for amendment. It was the length of the discussion and exactly the issue you raise that led us to say it should be left in. It really is about consistency with the land claim and the desire not to add in something that might be confusing. We couldn't see a value in making that change. It wasn't clarifying. It was actually confusing.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay.

Is it the same for proposed subsection 135(6)? Again, it seems to me that it's more the way you say it rather than a substantive change.

The proposed subsection in the bill states, “There must be no duplication of responsibilities between those assigned to the Board under a monitoring program and those referred to in subsection (5).” It's certainly talking about a monitoring program and saying there shouldn't be duplication. You propose to change it to, “A monitoring program must be designed so as to avoid duplication...”. To me, those two sections say the exact same thing; it's a matter of you say “tomato”, I say “tomahto”. Is there a substantive change there that I'm missing, or is this just phraseology?

[Catherine Emrick]

Yes, I think this one is a substantive change.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay.

[Catherine Emrick]

In our view, there is a difference between a restriction in the ability to have any duplication and avoiding duplication. In particular, I think what's important about this proposed amendment is the facilitation of the coordination, and that may require some duplication.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay, so you see that the section in the bill is a restriction: “There must be no duplication...”. Do you see that as more restrictive than “A monitoring program must be designed to avoid...”? Is that what you're saying?

[Catherine Emrick]

Yes.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay.

How am I for time?