Indigenous and Northern Affairs Committee on Feb. 12th, 2013

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Chair. I'm pleased to move amendment NDP-36, that Bill C-47, in clause 2, be amended (a) by replacing line 9 on page 72 with the following:

of any modification to a project that

(b) by replacing lines 14 and 15 on page 72 with the following:

(1.1) On receipt of a notice under subsection (1), the Commission must notify every applicable regulatory authority and assess the modification.

(2) If the Commission determines that the modification is significant, the assessment of the original project is

(c) by adding after line 25 on page 72 the following:

141.1 (1) A regulatory authority that receives a notice respecting a modification to a project must notify the Commission.

(2) The Commission must assess the modification and, if the Commission determines that the modification is significant, an assessment of the modified project must be carried out under this Part as if the Commission had received a project proposal under section 76.

(d) by replacing line 31 on page 72 with the following:

the proponent has made a modifica-

I'm glad to speak to this amendment, because I felt that this was a very important part of the witness presentations that were made to us. This is not a wording change; this is trying to establish a process that will determine significance, and that's very important. If a modification is made to a project, suppose a mining company makes a modification, who's to determine significance? Would it be the commission? Would that be best?

We've seen what the appointments to the commission are going to be. We know that we're appointing people who are generally rounded in skills. They're not mining engineers. They're not experts. They're not environmental people. They're solid community citizens, people who are respected for their value judgments. That's the type of people you want on a board. You don't have people on a board specifically for the skills that are required to determine significance.

This amendment ensures that significance will be properly outlined and created. This can cut both ways because there will be pressure on board members to establish significance on every minor variation sometimes. I've seen this happen as well. There's a minor variation to a project and the board is under pressure to consider it significant because they don't really understand the nature of the technical issues involved.

This is definitely something that can cut both ways, both for industry and for the environment. This amendment clarifies it and makes a process that will ensure that fairness is most likely to occur. As the wording is in the document now, that is in some doubt.

Very carefully, people who understand this, who do the work on the ground, the people in Nunavut, the people who understand the nature of environmental assessment from a very practical point of view, have put forward this sophisticated amendment to provide clarity within the act.

I'd really like to understand why the government can't support this particular amendment, because it is certainly something that deserves respect and it deserves a fair answer.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Mr. Bevington, I should note that if amendment NDP-36 is adopted, then amendments NDP-37 and NDP-38 will not be able to be put.

(Amendment negatived)

We are now on amendment NDP-37.

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

Mr. Chair, in this case, the change is as follows:

(2) On receipt of a notice under subsection (1), or where the Commission, the Board, a federal environmental assessment panel or a joint panel, as the case may be, determines that the proponent has made a significant modification to a project that is under assessment under this Part, the assessment of the original project..."

Here it's where the commission, the board, or a federal environmental assessment panel or a joint panel determines that the proponent.... Again, Dennis has made some very good arguments about this, and there are a couple of other points.

There is some concern that there isn't enough incentive to ensure that proponents notify the commission or board of a significant modification; that there is no penalty for a proponent who does not notify the commission or board of a significant modification; and that the commission and board, which are assessing the original proposal, have no way of knowing if the proposal they are assessing has been modified.

Again, it's clarifying roles and responsibilities, which is an important part of what NTI and others have proposed in terms of some of these amendments.

[The Chair, Conservative, Chris Warkentin]

We're voting on amendment NDP-37.

(Amendment negatived [See Minutes of Proceedings])

We are on amendment NDP-38.

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

This is along the same lines. It's the whole issue around when an amendment is significant:

That the current ss. 142(1) and (2), requiring that the Commission or Board give a proponent notice that the proponent has made a significant modification, and giving the proponent 30 days to then notify the Commission of what it has just notified the proponent, be deleted. This convoluted process is not necessary if the proponent gives the Commission notice when there is or may be a significant modification.

I think that's the point. It puts the onus on the proponent to notify the commission if there is or may be...and the commission can then do its work around assessing that.

[The Chair, Conservative, Chris Warkentin]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

We are on amendment NDP-40.

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

This is the judgment versus opinion argument, which we've already presented. I want to point out that judgment and the spelling—

[The Chair, Conservative, Chris Warkentin]

That's amendment NDP-39.

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

Sorry. Did we defeat that?

[The Chair, Conservative, Chris Warkentin]

Yes, that has already been defeated.

We're on amendment NDP-40.

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

Sorry.

I got to talk about judgment versus opinion again, though.

[Greg Rickford, Conservative, Kenora, ON]

It's called a Trojan Horse.

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

A Trojan Horse.... Okay.

This is, again, the issue around the ministerial responsibility. The original clause doesn't specifically mention the responsible minister. The rationale for this is that there does not appear to be a valid reason to exempt a minister acting in a regulatory capacity from the duty to provide the information to the commission, board, or other decision-maker in proposed subsection 197(1).

It is impractical and unnecessary for proposed subsection 197(1) to invite debates between other government departments and the commission, a board, or other decision-makers regarding whether the decision-maker requires information. The act should leave it to the decision-maker's judgment when to make requests based on the needed information.

There is also some question about whether this exceeds the restriction on the commission or board, obtaining information from the government that was agreed to in section 10.5.1 of the Nunavut Land Claims Agreement Act. The argument here is that this also renders proposed section 142 meaningless.

[The Chair, Conservative, Chris Warkentin]

We're voting on amendment NDP-40.

(Amendment negatived [See Minutes of Proceedings])

We are on amendment NDP-41.

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

This one is about consistency with the Nunavut Land Claims Agreement. Under the Nunavut Land Claims Agreement only the courts are authorized to decide whether an activity falls under schedule 12-1.

[The Chair, Conservative, Chris Warkentin]

I call the question on amendment NDP-41.

(Amendment negatived [See Minutes of Proceedings])

We're on amendment NDP-42.

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

Again, this is on issues of consistency.

[The Chair, Conservative, Chris Warkentin]

I call the question on amendment NDP-42.

(Amendment negatived [See Minutes of Proceedings])

We're on amendment LIB-2.

Carolyn.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Chair, as you know, this is incredibly complex legislation that has taken a decade of negotiation. As we've heard, and as the NDP amendments have tried to fix, there is language that the northerners felt was inconsistent with the Nunavut Land Claims Agreement. There were also concerns from the Nunavut Planning Commission about the lack of funding to properly implement the legislation.

We think that a mandatory five-year review is essential in terms of how this perhaps would have to be tweaked five years from now. Even the Nunavut chamber of mines, and the Prospectors and Developers Association said in their testimony that although they support the legislation, further refinements and adjustments would be necessary.

We feel this approach is consistent with the successful approach in the Yukon Environmental and Socio-economic Assessment Act . They argued that they felt an approach could have mitigated the problems with the Mackenzie Valley Resource Management Act. We are arguing that the requirement for a five-year review is the responsible way for this committee to proceed.

I would like to hear from any member on the other side, other than the parliamentary secretary, on why on earth they wouldn't support this.

[The Chair, Conservative, Chris Warkentin]

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

I echo Ms. Bennett's plea to the other side to show some initiative and explain why this should not be in place. I have another amendment afterward, so if they don't like this one, they can work on that one.

Once again, it's clearly evident that the problem is also with the nature of this legislation. This is federal legislation. Changes to it have to be done in Ottawa. If the Government of Nunavut determines that changes are needed, and it most likely will in a short period of time, the ability to get this on the parliamentary agenda is going to be severely hampered. Without this review, the people who have to deal with the legislation, the people who take care of the work on the ground, the people who want devolution, who want more control over their own affairs are going to be hampered in every way.

Why would we not consider providing to the people of Nunavut an opportunity to ensure they are happy with the legislation? What is wrong with that?

What spirit of Canadian ethics do I not understand from the Conservative side on this? What is driving the Conservative agenda to demand that these types of bills be put in place without any of the thoughtful amendments brought forward by the people of Nunavut, their representatives and professionals in the field?

What is driving the Conservatives' agenda here? Is it to continue a colonial structure in the north? Is that what is behind this, to hold on long enough to make sure their vision of how the north will be run is the one that carries forward, rather than that of the people who live in the area?

By their silence, I think I have to say there's consent on what I am saying here. I have to—

[Carolyn Bennett, Liberal, St. Paul's, ON]

I would like to ask for a recorded vote on this.

[The Chair, Conservative, Chris Warkentin]

We still have speakers to this.

Ms. Crowder.

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

On five-year reviews, when the department came before us they said that five years wasn't long enough. If the department doesn't feel that five years is long enough, certainly we could look at seven years or whatever.

The point is that we've seen other pieces of legislation that have come before this committee. Specific claims in particular is one piece of legislation that comes to mind, and there was a review mandated in that piece of legislation. I look forward to the time when we can actually bring that back to the committee, because we've heard on the ground that there are a number of problems with that piece of legislation.

We've heard sufficient witness testimony on Bill C-47, with a number of proposed amendments from a number of different groups. It would seem reasonable if the government is unwilling to entertain any amendments to at least give us an opportunity to re-examine the legislation after it's been implemented to see if there are problems that have been caused because these amendments weren't put forward.

One would suspect that in part the reason the government won't support a five-year review—and I'm presuming they're going to vote against this amendment because they've voted against every other amendment—is that there is an issue of cost. But these reviews are important to allow Parliament to see whether the legislation they've put forward is actually effective, if it's working, or if we've missed the boat on anything. There are other mechanisms to do this, but this seems to be a way to regularize it.

We have a number of other commissions, and although it's not a review, they do report to Parliament regularly. The Cree-Naskapi Commission is one. They come before the committee when the report is tabled. We get a chance to hear how that's going and the kinds of problems they're having or the successes they're having.

It would seem a reasonable thing to do in such a comprehensive, sweeping piece of legislation.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Hughes.