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

[Yvonne Jones, Liberal, Labrador, NL]

Thank you very much.

I thank you for your presentation this morning and for taking the time to be here to educate us and to tell us how this legislation will impact you in the work you do.

I'd like to start by first of all asking Mr. Hagen some questions, who outlined that he was the chair of the Mackenzie Valley Land and Water Board.

How do you become chair of this board? Are you appointed? Are you elected? If you're appointed, who appoints you?

[Willard Hagen]

The nomination of the chairman is actually the only nomination that the full board gets to make. The full board nominates a name or names, up to three. They put the name forth to the Minister of AANDC, who then makes the decision on the appointment.

[Yvonne Jones, Liberal, Labrador, NL]

Okay.

I guess the fact that the board itself is not really taking a side in terms of what direction it should go in concerns me a little, because I would see your board as being the group that has the most experience here in dealing with land and resource management issues and how that affects the aboriginal people. I probably would have liked to see more of a position in terms of where your board stands on all of this.

However, I have a couple of questions arising from the presentation that you guys have given this morning. One, you talked about how the board “supports timelines for licence proceedings and supports the development of enforceable project certificates”. But then at the end, you also talked about how it would be a delayed process and would take much longer than anticipated, and you would like to see that process expedited in some way. Can you explain that to me? How would you see the process being expedited and how can that be changed?

[Willard Hagen]

Thank you very much for that question.

Just to put it in a bit more of a legal context, if you have no problem with that, I'm going to let John Donihee address that.

Thank you.

[Yvonne Jones, Liberal, Labrador, NL]

Yes, no problem.

[John Donihee, Legal Counsel, Mackenzie Valley Land and Water Board]

Thank you very much, Mr. Chairman.

The concern identified in that point in the presentation is that the actual amendment process for a certificate would, by statute, take at least eight months.

We've had experiences in the past when major mining projects have required changes to water licences where the provisions in the water licence were recommended as part of an environmental assessment. So it was a measure that came out of the environmental assessment and was approved by the federal minister, and then, by virtue of section 62 of the act, it's required that the measure end up in the water licence. Subsequently, the companies had to come back and amend that particular measure that came out of the environmental assessment.

Our concern is that if it's a major environmental change, of course it ought to go back and be reviewed carefully, including by the minister. But if we're talking about simply an operational change of some sort that affects the measure, eight or nine months is a long time to get approval for a change that is really not going to have a large impact on the environment. I do want to simply emphasize that the change would take place in the context of a water licensing proceeding, which itself will take almost a year. That's where we came up with the number of 17 months.

The suggestion was simply that if the change to the measure is not going to have any kind of significant environmental effect, why do we need to take so long to do it?

[Yvonne Jones, Liberal, Labrador, NL]

Thank you for the explanation.

Next, is this something that can be done through regulation as opposed to through legislation in the bill? If the bill were to pass as it is right now, could the change that you're talking about with regard to expediting a process for these kinds of permits be done through regulation between the government and the board itself?

[John Donihee]

Thank you again, Mr. Chairman.

I'm not sure of the answer to that. It's quite a technical question.

[Yvonne Jones, Liberal, Labrador, NL]

Yes.

[John Donihee]

I think the answer is no, because we're suggesting that where a measure ends up being approved by the federal minister, and consequently in a certificate, then the way the certificate amendment process works is laid out quite specifically in the draft legislation. There's no provision in that arrangement for amending a certificate to deal with a situation like this, where it was a minor or operational kind of issue that would not necessarily have a serious environmental consequence.

[Yvonne Jones, Liberal, Labrador, NL]

It's quite obvious that you guys did a lot of work around it, though, and sought some expert advice and legal counsel, and so on. Are you in support of this bill as it is today? Will this benefit the process of moving development in the Northwest Territories?

[Willard Hagen]

In my opening remarks, I stated that we had made a decision as the Mackenzie Valley Land and Water Board not to comment on the restructuring. We're appointed to issue permits, water licences, deposit of waste—or not—under the current MVRMA and other legislation. That's what we do. If this bill comes forth and they change the MVRMA on us, we will then regulate the new changes.

We have made the conscious decision not to become involved. That's for the elected people, not the appointed, we feel.

Thank you.

[Yvonne Jones, Liberal, Labrador, NL]

Are you prepared to support holding up this bill on devolution, which could be for an extended period of time, to make the changes with regard to the pieces you've outlined this morning?

[Willard Hagen]

Again, I have no comment on any changes to or approval of Bill C-15. We're just here to regulate, and that's what we choose to do.

Thank you.

[Yvonne Jones, Liberal, Labrador, NL]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Hagen.

Thanks, Ms. Jones.

We'll turn to Mr. Leef now.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair.

Thank you to all our witnesses.

Mr. McCrank, my questions will be for you. I'm the member of Parliament for the Yukon, and of course we've gone through devolution and board composition discussions. We've worked with 11 of our 14 first nations who have settled their land claims agreements, and we work well with the other three. We're familiar with final agreements and self-government agreements under the structure of an umbrella final agreement.

We heard clearly in the panel earlier that there was deep concern more around the fact that the boards were felt by the representative chiefs...that the process was working, so why change what's not broken?

I sit on the natural resource committee in Ottawa as well, and what I've heard clearly there, from witness after witness, is that the process in the Northwest Territories can be complex. It can be costly, unpredictable, and time-consuming.

So on the one hand, we have one group saying, no, it's working perfectly. But then we have industry, we have individuals and businesses, we have chambers, and we have even the Government of the Northwest Territories saying, and recognizing that, no, there are some real challenges with the way we've structured this. It seems to me there's a real disconnect there between one group's perception of how things are working and another group's perception of how things are working.

You had the benefit of comparing and contrasting those regulatory systems between the Northwest Territories and the Yukon. Can you give us your perspective on the difference that we heard today and what I've heard, both on this committee and on the natural resource committee, and compare that a bit with the Yukon experience?

[Neil McCrank]

Mr. Leef, thank you for that question.

I'm not sure I can bridge the gap between what you've heard from some people and what you've heard from other people. I was unable to bridge that gap either other than, as I have said, we had a round table discussion here in this room where all parties were involved. I don't think there was any suggestion at the end of that round table discussion that there were not significant issues that had to be addressed.

As I've said, some of the members who would have been opposed probably to the changes that are being suggested were saying some considerable action has to be taken to bring about an improved system. To contrast that to the Yukon.... I think I made this comment the last time I appeared before this committee. In retrospect, I actually wish I had started with the Yukon.

The Yukon was kind of an add-on in that I was working here in the Northwest Territories and I went to Nunavut for a little while and I went to the Yukon for a little while. Everything seemed to be operating pretty smoothly so I tried to focus my effort on the Mackenzie Valley. I wish I had spent more time at the beginning on the Yukon to see why it actually works so well. Of course, there's the fact that you have 11 of the 14 aboriginal communities under that umbrella agreement in agreement with it, and the fact that you have one environmental board, one board really that operates within the context of the Yukon, which provides the certainty. There's also the lack of complexity of the regulatory system. I think that is why the Yukon is so successful.

I do recall hearing from specific individuals in industry. I was a regulator for long enough to know that you take with a grain of salt what you get from industry, or from any one participant. I do recall one instance where there was a mine proposed right on the border between the Northwest Territories and the Yukon. According to what I heard at the time—it might be folklore—the ore body was actually better situated in the NWT, but because of the complexity of the regulatory system, the mine was actually situated in the Yukon.

To answer your question, I don't think we're going to get full agreement on the part of everybody that these issues have added complexity in this territory such that it hinders development. I have made it clear that I'm not interested in development from my own point of view. I'm interested in seeing that there is an environment in which development can take place. It's taking place in the Yukon. It doesn't appear to be taking place in the Northwest Territories, with some exceptions.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

Mr. Pollard, when you were going through consultations here and talking with groups and engaging them, including the first nations, you outlined the structure of the current board quite well. We're looking at moving from roughly 30 people involved in this to 11. I think one of the bigger concerns on the panel before was that they were articulating there would now be no regional representation whatsoever on this board. You explained that at least 50% of the board was going to be made up of regional representation, and then 50% of government, and a chairperson. The Government of the Northwest Territories obviously represents everyone in the Northwest Territories, and the regions would be represented by their key spokespeople as well as their elected MLAs that work for the GNWT.

What kind of feedback were you hearing as you were consulting in terms of that regional representation still existing on the main board?

[John Pollard]

There is a definite concern that you're taking away a regional decision-making body from a region where people could conceiveably go and see that board at work. We took that into consideration in section 104 of the existing act. It allows the chairperson to designate a smaller group of the main board to go and conduct the business of the board as far as applications are concerned.

[Ryan Leef, Conservative, Yukon, YT]

On site?

[John Pollard]

Well, what we've done is that we've written that into the new bill. The chairperson will have the ability to send those people forth—

[Ryan Leef, Conservative, Yukon, YT]

Were those accommodations made based on input that you had heard, then?

[John Pollard]

Yes.

[Ryan Leef, Conservative, Yukon, YT]

So this was part of the consultation process. You heard that feedback and you made those accommodations.