Evidence of meeting #59 for Indigenous and Northern Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was public.
A recording is available from Parliament.
NDP
Dennis Bevington NDP Western Arctic, NT
In the development of this act was there an analysis of all the surface rights legislation in Canada?
Todd Keesey Policy Analyst, Resource Policy and Programs Directorate, Department of Indian Affairs and Northern Development
We looked at the other surface rights boards. Other jurisdictions are different with respect to the mineral rights issuance processes. As a result of that, the different surface rights boards are different throughout Canada. But where there's a similar mineral tenure system, the surface rights boards' provisions are very similar in that the board cannot deny access.
NDP
Dennis Bevington NDP Western Arctic, NT
How does this play out with the recent court ruling in the Yukon on the free entry system on aboriginal lands?
Senior Counsel, Negotiations, Northern Affairs and Federal Interlocuter, Department of Justice
This legislation doesn't affect the free entry system. The system is established through regulations in the Territorial Lands Act in the Northwest Territories.
As my colleagues have said, this legislation resolves disputes as to compensation and conditions of access when a right of access already exists. The right of access in this case exists under the mineral tenure system, under the free entry system that you mentioned, but this bill doesn't change that.
Conservative
The Chair Conservative Chris Warkentin
Thank you, Mr. Bevington.
We'll turn now to Mr. Boughen for seven minutes.
Conservative
Ray Boughen Conservative Palliser, SK
Thank you, Chair, and let me welcome the panel with us this morning. We're pleased you're able to take some time to share your thoughts with us on this legislation. We appreciate your work on it. Two years is a long time to be whacking away at anything, and you've come up with what we feel is a very strong piece of legislation.
We have some questions for you around the legislation. Some stakeholders have questioned the need for a surface rights board at this time, given that the land access disputes have been resolved satisfactorily for years in the Northwest Territories. Could the panel please help clarify why the establishment of a Northwest Territories surface rights board is needed now?
Director General, Natural Resources and Environment Branch, Department of Indian Affairs and Northern Development
Canada has an obligation set out in the Gwich'in Comprehensive Land Claim Agreement and the Sahtu Dene and Métis Comprehensive Land Claim Agreement to establish a surface rights board act with jurisdiction to resolve matters with respect to terms and conditions of access and compensation to be paid for any of the access.
The establishment of the board is also provided for in the Tlicho Agreement and the Inuvialuit Final Agreement.
The department has twice attempted to create surface rights legislation, once in the early 1990s during negotiations on the Gwich'in and Sahtu comprehensive land claim agreements, and a second attempt in 2004. A bill was never completed at that time due to competing priorities of all the parties. Work on the proposed legislation that you see before you was started again in 2010 with the announcement of the action plan to improve northern regulatory regimes.
Conservative
Ray Boughen Conservative Palliser, SK
Thank you. I think that answers one of the questions I had.
Moving along, certain stakeholders believe that the surface rights board should have the power to deny access to lands where appropriate, linking the board's jurisdiction to this concept of the commonly known free entry system in Canada.
Could you please explain why the surface rights board would not have the power to deny access?
Director General, Natural Resources and Environment Branch, Department of Indian Affairs and Northern Development
The board would not have the authority to issue any mineral right or deny access to lands. The board's jurisdiction is strictly limited to resolving disputes over terms and conditions of access, and any compensation payable for that access when a right of access already exists under another act of Parliament or a land claim agreement.
Furthermore, the land claim agreements do not provide the authority for the board to deny access. For example, in the Sahtu agreement it states that the board shall have a jurisdiction to grant right-of-entry orders, whether or not compensation for free entry has been determined, but the board may not refuse to grant a right-of-entry order where an applicant has a right to access Sahtu lands
That's an example from one of the agreements.
Conservative
Ray Boughen Conservative Palliser, SK
Thank you.
We understand that several changes were incorporated into the various drafts of the proposed legislation as a result of the consultation process. Could you provide us with an example of the types of accommodation measures that were made?
Director General, Natural Resources and Environment Branch, Department of Indian Affairs and Northern Development
There were a number of accommodation measures that were included in the bill as a result of the consultation process.
For example, the bill includes the concept of aboriginal traditional knowledge as a factor to be considered in the knowledge or experience requirements for potential board members. In addition, it provides for the ability for interested individuals, aboriginal organizations or governments, and other associations to receive proposed rules and provide representations on those proposed rules. It provides a review provision when there is a new land claim agreement that is settled. It includes some changes to definitions or inclusion of certain additional definitions that were provided as a result of the consultations. It also ensures definitions outlined in the bill align with the definitions in the land claim agreement.
Those are examples of some of the accommodations.
Conservative
Ray Boughen Conservative Palliser, SK
For the final question, why does the proposed Northwest Territories surface rights board act apply to all the lands in the Northwest Territories, including municipal lands and islands where no land claim agreement has been settled?
Director General, Natural Resources and Environment Branch, Department of Indian Affairs and Northern Development
The bill would become a law of general application and would apply to all lands, that is, settled lands and lands where no land claim agreement has been settled, in the Northwest Territories, when there is an owner or occupant, such as a leaseholder.
The bill is consistent with the rights of access found in the land claim agreements and other acts of Parliament. As these rights of access are different in each instance, the bill does not apply to all lands in the same manner. Most of the unsettled lands where there's no land claim agreement are currently crown lands. Only in a situation where there is an owner or occupant, such as a leaseholder, on lands that are not part of a settled land claim agreement could a dispute be heard before the board. Therefore, the board would have no jurisdiction over unsettled land claim areas unless there's an owner or occupant on those lands.
Conservative
The Chair Conservative Chris Warkentin
Thank you very much.
We'll now turn to Ms. Bennett, for her seven minutes.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
As my colleague noticed, despite everything we've heard at all the hearings, the government has viewed this bill as absolutely perfect and not needing any amendment.
Director General, Natural Resources and Environment Branch, Department of Indian Affairs and Northern Development
We believe that the consultation has been thorough and we've provided a bill that represents the thorough consultations that have occurred over the last number of years on the bill.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
My understanding is that pretty well every witness who came before this committee said there needed to be a participant fund, that there would be a process where every project could be carefully examined for the potential impact and benefits. From the planning commission to the NIRB it was quite clear. My assumption would be that all on the working group were recommending a participant fund. My assumption would be that it was only the Government of Canada that refused to put that in the bill.
Director General, Natural Resources and Environment Branch, Department of Indian Affairs and Northern Development
There were discussions about participant funding in the working group, and the agreement among the group was that regulation-making authority would be provided for in the bill, should there be a participant funding program in the future.
Environmental Policy Analyst, Environmental Policies and Studies, Northern Affairs, Department of Indian Affairs and Northern Development
There was discussion. As we've indicated—
Liberal
Carolyn Bennett Liberal St. Paul's, ON
I don't think you could call it agreement based on what we've heard at this committee.
Environmental Policy Analyst, Environmental Policies and Studies, Northern Affairs, Department of Indian Affairs and Northern Development
No, I would agree with that. There wasn't agreement such that everybody was entirely pleased. There was an agreement that the members of the working group were prepared for the bill to go forward. Whether everybody liked every single provision in the bill, I don't pretend to think that's the truth, but there was an agreement that the bill as it was prepared was ready to go for consideration by parliamentarians.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
So the Government of Canada had a take it or leave it approach. If they wanted it to come forward, they'd have to let it go forward without the participant funding that everybody else in the working group wanted.
Senior Counsel, Negotiations, Northern Affairs and Federal Interlocuter, Department of Justice
I think the proper characterization would be yes, that Canada was unwilling to provide a guaranteed participant funding program outside of the ability to provide a regulation that could establish that program in the future. That was the Government of Canada's position. I think there was disagreement at the working group on that position, but it was.... A number of checks and balances and takes and leaves by all the parties involved with it resulted in the bill's being in its final form.