Indigenous and Northern Affairs Committee on Jan. 27th, 2014

[Bob McLeod]

Thank you, Mr. Chair.

Yes, we are a consensus government, but we're not an opposition party to the Government of Canada.

Thank you.

[The Chair, Conservative, Chris Warkentin]

You have 30 seconds left if you have a following question.

[Dennis Bevington, NDP, Western Arctic, NT]

Well, in 30 seconds I don't think I can continue much more.

I did have one question on the MVRMA, and this is an amendment that I think should go in place. The minister is going to have the ability to put binding policy decisions to the land use planning boards, to all of the boards that are represented under the MVRMA. Would you think it would be appropriate for the Government of the Northwest Territories to be consulted on those binding policy decisions that would be made by the minister towards the boards that will be doing work that your government will have a great amount of responsibility for?

[Bob McLeod]

Thank you. The Government of Canada will be consulting with us. They have indicated that, in every instance when they give direction to the boards, they will involve us and that we would have input into that direction.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn to Mr. Leef for the next five minutes.

[Ryan Leef, Conservative, Yukon, YT]

Thank you again, Mr. Chair.

Mr. Premier, there have been claims that the current systems in terms of the regulatory review are working, but we have certainly heard testimony that the differences that exist between and within some of the northern jurisdictions can be confusing and a bit counterproductive; that some of the processes are complex, costly, unpredictable, and time-consuming.

Obviously it is our desire, and the desire of the Northwest Territories, I would think, that Bill C-15 would streamline the regulatory process by putting appropriate time limits in place and allowing for a consolidation of federal decision-making and measures that will include and improve environmental protection—for example, an increase in fines.

When we look at investment, as an example, across the country, where regions have a more favourable review process that's consistent and predictable, where it's effective and timely, where it's basically welcoming to business, that tends to be what people will be attracted to. Would that not be the same in the regions in the north? The Northwest Territories is a huge territory. If you have different processes existing in different regions, some will benefit and some will not, simply because people will seek out those regional locations that are straightforward, that are effective, that are understandable and workable.

Would you agree that the advantage to having one consistent review process across the entire territory will ensure equalized opportunity for every region, and not one region benefiting where another might not just because of confusing or complex differences that currently exist?

[Bob McLeod]

Thank you very much for the question.

Certainly an efficient and effective regulatory system is something that we support. It has been explained to me many times that investment money has legs. It will go where it can get the best return on a timely basis, so certainly that is a factor.

Here in the Northwest Territories, the people of the Northwest Territories have a very strong affinity to land and water. For us it's very important to have balanced, sustainable development. If that can have consistent application across the Northwest Territories, certainly we would be supportive.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

There has been some concern that the amalgamation of the board itself would reduce regional influence over resource development and affect land claims agreements. Our position obviously is that the integrated regulatory regime is designed to make consistent and informed decision-making, as you just articulated. You maintain that it is strong, efficient, and effective.

But the new board, in its design approach now as I understand it, will be made up of equal membership from aboriginal and government nominees, and where a particular development or review is taking place in a particular region or community, there will be additional secured representation of people from that region. Is that accurate?

[Bob McLeod]

Thank you. The way it will work is that there will be representatives from each region and government. For specific developments that occur that are applied for in a specific region, there will be a provision that regional panels can be struck so that the aboriginal governments in the region can have additional representation when a project is reviewed.

[Ryan Leef, Conservative, Yukon, YT]

That's consistent with individual land claim agreements and conditions laid out in each of those self-government agreements.

[Bob McLeod]

That's correct.

There is also provision for it now.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Premier, we want to thank you for being here this morning. We certainly appreciate you taking time out of your busy schedule. We also thank you for meeting with many of us in Ottawa and having government representatives at our hearings earlier, this past December, as we began the process of reviewing this legislation.

Colleagues, we'll suspend this session and move on to the next panel.

I'll inform our visiting audience that the next panel will include representatives from the Sahtu Secretariat. We'll have representatives from the Tlicho government as well as from the Gwich'in Tribal Council.

Again, thank you, Mr. Premier. Thank you for being here and taking time out of your busy schedule.

We'll now suspend so we can set up for the next panel.

The meeting is suspended.

[The Chair, Conservative, Chris Warkentin]

We'll call the meeting back to order.

Because of the many witnesses we have today, we want to make sure we take time for everybody.

For the second panel, we have representatives from the Sahtu Secretariat. We have Ethel Blondin-Andrew.

We want to thank you for being here, Ms. Blondin-Andrew. Thank you for joining us.

From the Tlicho government, we have Grand Chief Erasmus.

Thanks so much for being here.

From the Gwich'in Tribal Council, we have Robert Alexie as well.

Thanks so much for joining us, for being here, and for taking time out of your busy schedules.

We'll start with Ms. Blondin-Andrew's opening statement.

[Ethel Blondin-Andrew, Chairperson, Sahtu Secretariat Inc.]

First of all I would like to say something in my language, the North Slavey Dene language.

[Witness speaks in North Slavey]

Basically you've come here to bring a big law to us. It is a big thing. It is very major in that you say that this is the way things will be conducted on our land with this piece of legislation. We have our own opinions on that and we want to present them.

My name is Ethel Blondin-Andrew, and I am the chair of Sahtu Secretariat Inc. I represent and work for the Sahtu land claim beneficiaries. I am pleased to present the submission to you on behalf of SSI with respect to the proposed amendments to the Mackenzie Valley Resource Management Act, MVRMA, that are set out in Bill C-15.

Daryn Leas is our legal counsel and is attending with me this morning. Grand Chief Frank Andrew of the Sahtu Dene Council is accompanying us as well. The Sahtu leadership delegation here includes Frank, Daryn, and me, as well as Chief Alvin Orilas of Colville Lake, and Wilbert Kochon, the president of the land corporation in Colville. Joseph Kochon is here as well. There is Charles McNeely, vice-chair of SSI and the president of the Fort Good Hope Métis, as well as Gina Dolphus, the president for the Deline Land Corporation and a director for SSI.

To give some background, the Sahtu Dene and Métis have lived in the Sahtu settlement area since time immemorial and now live primarily in the communities of Norman Wells, Tulita, Deline, Fort Good Hope, and Colville Lake. The Sahtu Dene and Métis entered into the Sahtu Dene and Metis Comprehensive Land Claim Agreement, as it's known, with the Government of Canada in 1993.

Among other matters the Government of Canada and the Sahtu Dene and Métis committed to the land claim agreement to work together to manage and preserve the lands and waters of the Sahtu settlement area in accordance with the MVRMA that was developed pursuant to the terms of the land claim agreement.

Following six years of negotiations, the SSI signed the Northwest Territories Lands and Resources Devolution Agreement on June 25, 2013. Now we are working with the other signatories to implement its terms. It is not an easy task.

Before making any specific comments about Bill C-15, the SSI confirms its general support to amend the federal legislation to give effect to the devolution agreement. We also support the enactment of territorial legislation to implement the devolution agreement, including territorial legislation to continue the obligation for proponents to negotiate benefits planned with the Sahtu relating to oil and gas activities in accordance with section 22.2 of the land claim agreement. This, I stress, is very important for the Sahtu. This is the real deal-breaker, section 22.2.

While Bill C-15 proposes amendments to the Northwest Territories Act, Territorial Lands Act, Northwest Territories Waters Act, and other federal legislation in order to implement provisions of the devolution agreement, it also proposes to amend the MVRMA to give effect to the federal action plan to improve northern regulatory regimes. SSI reiterates its opposition to the proposed amendments that serve only to implement the action plan.

In particular, SSI opposes the federal intention to eliminate the Sahtu land and water board and other regional panels and have the Mackenzie Valley Land and Water Board manage all land use and water licence applications. These proposed amendments serve to implement the federal action plan.

They are not related to devolution but are proposed to be lumped into Bill C-15. I heard said this morning that these are two separate things. They were until they were omnibused. We got very late notice on that.

The SSI has consistently voiced this opposition over the past five years to federal officials as well as to federal representatives and ministers throughout the devolution negotiations. Most recently we expressed this concern again, which is shared with the Gwich'in and Tlicho, to the federal officials in our written comments in October 2013. The SSI questions the need for these amendments since we do not see any need to change or alter the operation of MVRMA.

In this short presentation I will summarize our key concerns relating to Bill C-15. First, the SSI is opposed to the elimination of the Sahtu Land and Water Board. In accordance with the terms of the land claim agreement, the current provisions of the MVRMA establish a land and resource management system for the Mackenzie Valley that is effective, efficient, and honours the spirit of co-management as set out in the land claim agreement.

For the past 15 years the Sahtu Land and Water Board and other regional land and water boards have been able to balance various values and perspectives, and ensure that the affected communities are involved in the reviews. The involvement of communities and the consideration of regional information have led to better decisions with respect to land and water management.

The proposed elimination of the Sahtu Land and Water Board is contrary to the principle of partnership and co-management embodied in the current terms of the MVRMA, which underlie the land claim agreement. There will be less regional engagement with respect to the review of applications or proposed development. The proposed reconstituted board will not be able to foster regional participation and obtain community input as effectively as the regional boards have been able to achieve over the past 15 years.

The federal officials have failed to provide any justification or rationale for the elimination of the Sahtu Land and Water Board. While they have pointed out that there have been protracted delays or reviews under the MVRMA, these delays have been caused largely by the lack of federal coordination to review the decisions made by the regional boards, and that goes all the way up to the minister's office. Some of those applications have been sitting there in excess of a year.

Committees of the board is the second point. In the place of the Sahtu Land and Water Board, the regional land and water boards, Bill C-15 proposes that the chair of the board may designate three members of the board to deal with any application made to the board. A decision made by a majority of the three members would be considered to be a decision of the board.

Bill C-15 proposes that Sahtu will nominate one of the 11 members of the board. It is unacceptable that the Sahtu would only have one single representative on the reconstituted board. There are no assurances that the single board member nominated by Sahtu would be able to participate in the review of proposed activities located within the Sahtu settlement area. As a result these reviews may be conducted without any regional participation or representation. This is unacceptable and contrary to the spirit and intent of the land claim agreement. Therefore the SSI seeks assurances that these reviews will include regional representation, engage with communities, and take into account local information and knowledge.

Third is the office of the board. Bill C-15 provides that the main office of the board would be at Yellowknife or another place in the Mackenzie Valley that is designated by the Governor in Council. The minister advised that he has instructed his departmental officials to work closely with aboriginal organizations, governments, and boards throughout the implementation process to address the retention of a limited administrative function in each region. The SSI submits that an office of the board must be established in the Sahtu settlement area that can serve the northern portion of the Mackenzie Valley.

The board must have a presence and a working office in the Sahtu settlement area where a significant volume of development continues to be proposed. The office must be more than the retention of limited administrative function in the Sahtu settlement area. The regional office would be well suited to certain functions including reviewing applications, undertaking conformity checks with the Sahtu land use plan, and carrying out certain aspects of the consultation process, such as facilitating the hearings, doing community visits, and running technical sessions. The centralization of decision-making powers in Yellowknife does not benefit the public or promote effective and efficient resource management under the MVRMA.

The fourth point deals with consultation regulations. Bill C-15proposes that, following consultations by the federal minister with the territorial minister, first nations and the Tlicho government, the review board may make regulations relating to a consultation with the first nation including those with regard to the manner in which it is to be conducted. The SSI submits that this consultation process must be established in order to provide certainty about the consultation and accommodation process and to clarify roles and responsibilities. Given that Bill C-15 proposes the consolidation of federal decision-making, this certainty and clarity will be required.

The SSI must be involved in the development of this consultation process. The consultation provisions cannot simply incorporate the consultation process defined in section 3 of the MVRMA, since that definition does not incorporate the obligation of the crown to take steps to accommodate the matters raised by the first nations during the consultations.

Consultation with Sahtu is the fifth point. Throughout the MVRMA the federal minister is directed to consult with the Tlicho government, and in some cases there is no corresponding consultation provision relating to the Sahtu. For instance, a federal minister and the Tlicho must consult each other before making appointments to the board, and the federal minister must consult with the board and the Tlicho government before giving written policy directions binding on the board with respect to the exercise of its function under MVRMA. While some of these consultation provisions are rooted in the Tlicho land claim agreement, there is no reason why these provisions cannot be extended to the Sahtu and other aboriginal groups. Our focus is on how the government is doing this—not necessarily on the Tlicho themselves but the process. While the SSI supports the broad consultation obligations owed to the Tlicho, this shows the inconsistent approach of Canada in dealing with aboriginal groups in the Northwest Territories. Therefore, SSI submits that the MVRMA be amended to ensure that similar consultations are carried out with the Sahtu.

Number six is on policy directions. Bill C-15 proposes that the federal minister, after consultation with the planning board, give written policy directions binding on the planning board with respect to the exercise of its functions under MVRMA. Perhaps such a policy direction could relate to an amendment of a land use plan. Given the broad range of his or her proposed authority to give policy direction, the SSI submits that the federal minister must be required to consult with SSI about proposed policy directions. The Sahtu land use plan was recently approved by SSI and must protect its integrity. This is very important to us.

Number seven is the regional studies. Bill C-15 proposes that the federal minister may establish a committee to conduct a study of the effects of existing or future activities carried out in the region of the Mackenzie Valley. The federal minister would establish terms of reference for the committee and appoint the bodies and the members of the committees including any person or body with relevant knowledge or expertise. In our view these regional studies could be a valuable tool in the review of proposed developments. The SSI submits that the MVRMA must direct a federal minister to include a person nominated by the SSI to any such committee when the study affects or is related to the matter of the Sahtu settlement area.

The SSI further submits that where a committee is dealing with respect to wildlife and wildlife habitat relating to the Sahtu settlement area, the Sahtu Renewable Resources Board or the Sahtu Renewable Resource Councils must also be part of the membership. The SSI submits that the federal minister must be required to submit and consider a request from the Sahtu or other aboriginal groups to establish a committee to conduct the regional study.

In regard to time limits, Bill C-15 proposes fixed time limits for the completion of reviews. While the minister could have the authority to extend the time limits, that authority is limited, and only the federal cabinet would have the authority to grant further limits.

The SSI acknowledges the importance of a timely process, but the process must be flexible to deal with complex matters and accommodate new issues. The minister or the federal cabinet must have the authority to stop the clock to deal with certain matters, including the crown's duty to consult and accommodate. It would be nonsensical if neither the minister nor the federal cabinet were able to grant an extension for any reason—for instance, due to delays stemming from a federal election—or if the crown's duty to consult were left unfulfilled.

In regard to fines and administrative monetary penalties, Bill C-15 proposes that the fine amounts in the MVRMA.... This is point number nine. Sorry. I haven't talked this fast since I left Parliament.

[The Chair, Conservative, Chris Warkentin]

Ms. Blondin-Andrew, you know that in Parliament we do have time limits—

[Ethel Blondin-Andrew]

I know you do.

[The Chair, Conservative, Chris Warkentin]

You have exceeded yours, but we do want to hear from you. How many points do you have?

[Ethel Blondin-Andrew]

I have one more. I'm on point nine and I have one more. I think you owe it to us, because I think the premier spoke for 11 minutes, and—

[The Chair, Conservative, Chris Warkentin]

Ms. Blondin-Andrew, we'd be happy to hear your points, but I do just want to make it known that if you're not able to get to additional comments, we will ask that you supply these—

[Ethel Blondin-Andrew]

You're using up my time.

[The Chair, Conservative, Chris Warkentin]

I'm certainly not using your time, Ms. Blondin-Andrew. You've exceeded your time. We're extending the time to you.

[Ethel Blondin-Andrew]

Thank you.

[The Chair, Conservative, Chris Warkentin]

We'd love to hear from you, but if you have additional points beyond number 10 we would ask that you submit them, and we'll read them into the permanent record.

[Ethel Blondin-Andrew]

I don't.