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

[Bertha Rabesca Zoe]

I'll just build on what Ethel was saying about the framework agreement.

I have here, and I will submit it to the clerk of the committee when we're done, a draft framework agreement called “Draft Framework for Process Respecting Changes to MVRMA and the Regulatory System in NWT”. What we're saying here, and what we've been saying here, is that we're working in collaboration with the aboriginal coalition group. This is all the aboriginal groups in the Northwest Territories, including northern provincial aboriginal groups that have overlapping territorial interests. We worked together as an aboriginal coalition with the Government of Canada to try to work out a collaborative process as to how we can make changes to the MVRMA, but that was totally rejected.

This framework was tabled with the officials in November of 2011. It was sent to the minister, and it was also given to the Prime Minister during the crown-first nations gathering meetings in January. Grand Chief Eddie Erasmus, along with another former leader, presented the Prime Minister with this framework. We took it to the highest office to see if we could work out, nation to nation, based on our collective interests, how we could work together in a collaborative way to achieve what's best for all of us in terms of amendments to the MVRMA.

So it's not like we didn't try, but it was totally rejected. Canada has chosen to unilaterally embark on the path they have embarked on, adding insult to all of this by bundling it all together under Bill C-15.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn now to Ms. Jones for the next round of questions.

[Yvonne Jones, Liberal, Labrador, NL]

Thank you, Mr. Chairman.

I certainly thank all of you for your presentations this morning, which were obviously very well thought out, with very good points and questions that you asked. I guess it's unfortunate that as a committee we don't have the answers for you, but I'd like to explore some of the points you've made. I think they are very important in further debating this legislation and how it passes in the House of Commons.

Mr. Bevington asked you about consultation on the legislation and how these changes were presented. It is my understanding that what you were consulted on as aboriginal governments, and what you signed on to and became signatories to, was not what we see eventually evolving as Bill C-15 in the House of Commons. I'd like to make sure that is clarified.

That would be my first question for you.

[Daryn Leas]

Certainly, the provisions relating to the Mackenzie Valley legislation in the devolution agreement in chapter 3 do not speak to the elimination of the regional land and water boards. They do not speak to enhanced policy direction powers from the minister on a unilateral basis. They do not speak to the issues that Ms. Ethel Blondin-Andrew has raised in her presentation.

[Yvonne Jones, Liberal, Labrador, NL]

Okay.

In one of the statements you made this morning, you asked why Canada was trying to kill the land and water board and set up a system that will not include full input from aboriginal governments. I'd like to explore that a little more, because I would think that with the devolution of land claims it is there to strengthen not just the Northwest Territories but the aboriginal governments as well, in a number of ways.

That's a very big statement to make, and what I'd like to understand is how it's going to change how you govern, how it's going to change self-governance within your organizations, and how it's going to impact the people you serve in this new process.

[Daryn Leas]

I think it's worth pointing out that there's a certain amount of irony in this process. We've been working for many years in negotiating devolution of land resource powers and legislative powers from Ottawa to Yellowknife. Now, as part of this process, we have that done. It's part of Bill C-15. But the other part of Bill C-15 is taking those powers that were routed for reviews of processes from the regions and moving them to Ottawa.

So on the one hand we have devolution working well and empowering people from the Northwest Territories to manage lands and resources, but on the other hand it appears that in many ways the assessment reviews of projects by the regions are now being moved back to Yellowknife and out of the regions. That is contradictory. There is an irony there that isn't lost on us.

[Yvonne Jones, Liberal, Labrador, NL]

So what you're saying is that under this new bill there will be additional benefits that are being gained by aboriginal governments, but you're also losing things, which you don't think is necessary for this process to go forward. I just want to make sure that I'm understanding what you're saying here, because we're going to vote on something that's going to have a huge impact on everyone in this region, and it's important that we understand fully what the impact is going to be and what the benefits are going to be in the long run.

[The Chair, Conservative, Chris Warkentin]

Mrs. Jones, I think Ms. Rabesca Zoe has a comment.

[Bertha Rabesca Zoe]

Thank you.

I think we need to also understand a bit of the background on the MVRMA and the changes. There are two types of changes that were contemplated in the MVRMA. One type is what we call the operational changes, and one is the structural change. It's the structural change that we oppose.

On the operational changes of the MVRMA, as you know, there was a joint examination that was done, because that was as a result of the Tlicho agreement. When the Tlicho agreement was going through Parliament for approval, in order to approve it we needed to make certain changes to the MVRMA. The minister at that time agreed to a two-phase process. One was to make consequential amendments to the MVRMA as a result of the Tlicho agreement. The second phase was to address those operational changes to make the MVRMA a little smoother and to address some of the gaps that were identified. There's a project examination report that identifies those things.

As land claim bodies, we were part of that examination project. It was a collaborative effort. Everybody worked together and identified what kinds of changes should occur. We don't oppose those operational changes that identify the timelines and some of those things, but it is the structural change proposed, which came later, that we oppose right now, and that is the killing off of those regional panels.

As the grand chief stated, the Wek'eezhii Land and Water Board in our region works very well. It's predictable, it's efficient, and it's effective. All those things that Canada thinks a super-board would deliver, the regional boards deliver right now.

[Yvonne Jones, Liberal, Labrador, NL]

Have any of your organizations or government made representation for an amendment to the legislation, either through the Government of the Northwest Territories or through the federal government? Because it seems like we're hung up on one particular issue here in terms of whether there's going to be adequate representation of aboriginal governments on the Mackenzie Valley Land and Water Board.

I'm just wondering if there have been any amendments proposed to this legislation. If so, what has been the feedback from those governments?

[Ethel Blondin-Andrew]

The impact of the MVRMA amendments is that the regions are losing their voice and their role in the review of proposed projects. This is contrary to the principle and objective of devolution, basically.

It's about partnering and co-management. It's not just about having a voice. It's about what actually happens and how we do what we're doing. We feel that the impact is negative. It goes contrary to the spirit of the claim. Why have a land claim if you are going to scale back and pull back everything and change it so it's more efficient for others and not the group that has the claim?

It's very counterproductive, if you will.

[The Chair, Conservative, Chris Warkentin]

I want to thank Ms. Jones as well as our witnesses.

Grand Chief, did you have a final comment?

[Grand Chief Edward Erasmus]

I'd just like to add that this whole issue, the question you asked, is also contrary to our agreement, what was promised and made in the Tlicho agreement. I'd like to make that clear.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We want to thank you for being here as witnesses. We know that you are busy people and have a lot of responsibilities. The fact that you've come here today is certainly something that we appreciate.

Colleagues and everyone, we'll break now for a few minutes. I think we'll come back at 10:55 for the next panel. This will be the third panel. Just to pre-warn those witnesses, it is going to be Mr. McCrank, Mr. Pollard, and representatives from the Mackenzie Valley Land and Water Board that we'll hear from at 10:55.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call the meeting back to order.

For panel three we have Mr. McCrank and Mr. Pollard. We also have representatives from the Mackenzie Valley Land and Water Board, who are Mr. Willard Hagen and Mr. John Donihee.

Thank you so much for being here. We appreciate all of you taking time out of your busy schedules to join us.

We'll begin with Mr. McCrank for his opening statement. We'll hear from all three, and then we'll have some questions.

Mr. McCrank.

[Neil McCrank, As an Individual]

Thank you, Mr. Chairman.

Thank you, honourable members, for the invitation to appear before this committee to make a presentation, and perhaps more importantly, to respond to any questions that any of the honourable members may have.

It's always a delight for me to come back to this part of the world. I think it's a magnificent part of the world, with magnificent people.

My involvement with this whole issue was that in 2007 and 2008 I had the honour of being appointed by Minister Chuck Strahl as a special representative to examine the regulatory systems in the north—that included all three territories—to see if there were improvements that could be made to make the regulatory system more effective.

I looked at all three territories, although I have to say, and I think it will become obvious from the discussion, that the focus of my review was on the Northwest Territories, particularly the Mackenzie Valley portion south of the Inuvialuit area.

I reported to the minister in July of 2008. I'm sure you all have the report, or have taken a look at it if you've not had a chance to read it, called “Road to Improvement”. A number of recommendations were contained within the document. The most important of them, for today's purpose, were the restructuring recommendations. We can review those in detail in a few moments.

There were also 22 other recommendations that covered all three of the territories involved in specific issues—for instance, the opening of a major projects management office north of 60, as there is one south of 60. I think that has already been implemented.

The restructuring recommendation that I made was basically based on a couple of themes.

First, local involvement in decision-making in terms of resource development is extremely important, but it should be at the right stage of the process. My assertion is that it should be at the land use planning stage. Then the regulatory system should kick in, in what I would call a body that has more expertise dealing with issues that normally come before resource regulatory bodies. That would be the environmental component, the societal component, the economic component, the engineering component, the public safety component, and the like.

That's a much different task, and at that point obviously there would be, or there may be, local interventions to deal with those issues. They wouldn't deal with the overall picture of what should be in a land use plan.

Following my presentation of that document in July, I think, of 2008, I appeared before this very committee in Ottawa in July of 2009. Of course there's a record of it available for anybody who wants to read it. I think Mr. Bevington would have been the only member from this committee today who was there at that time.

I have had since that time no involvement in this file at all. I have watched it with of course great interest, and have talked to various people along the way, but I've had no professional involvement.

Those are my opening remarks. Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. McCrank.

Mr. Pollard, we'll turn to you.

[John Pollard, As an Individual]

Thank you, Mr. Chair, members of the committee. My name is John Pollard. I'm from Hay River, Northwest Territories. I'm the chief federal negotiator responsible for the restructuring piece that's contained in Bill C-15.

I'd be happy to answer any of your questions.

Thank you, Mr. Chairman.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn to Mr. Hagen.

[Willard Hagen, Chair, Mackenzie Valley Land and Water Board]

Thank you Mr. Chairman.

I would like to welcome you, your committee members, and your staff to Yellowknife. It's great to see you here to listen to those who may be directly affected by Bill C-15.

I am pleased to appear before the committee today as chair of the Mackenzie Valley Land and Water Board. Accompanying me is Mr. John Donihee, the board’s legal counsel.

Both John and I have been involved in the northern regulatory system for many years. John, following many years with the territorial government, has been board counsel since 2000, when part 4 of the MVRMA came into force. I am a past president of the Gwich’in Tribal Council and have been the chair of the Gwich’in Land and Water Board. Since 2006, I have been the chair of the Mackenzie Valley Land and Water Board.

I would like to congratulate governments—federal, territorial, and aboriginal—on reaching the agreements necessary to make devolution a reality. The devolution provisions set out in Bill C-15 represent a milestone in the constitutional evolution of the Northwest Territories.

I have long been a supporter of greater territorial control and decision-making over resources. My colleagues and I on the Mackenzie Valley Land and Water Board look forward to working with the GNWT and making decisions about northern lands, waters, and resources.

We are aware that during the consultation on the provisions contained in this bill, there has been significant discussion—and many strong opinions expressed—on the matter of land and water board amalgamation. This is one subject upon which the Mackenzie Valley Land and Water Board has consistently provided no comment. It is our opinion that it would not be appropriate for us to comment on proposals affecting the structure of the very board we were appointed to.

Land and water board structure is nevertheless an important matter, and the Mackenzie Valley Land and Water Board is of the view that it is best discussed amongst governments—federal, territorial, and aboriginal.

To put our advice to the committee in context, I want to briefly review some recent board initiatives. The board is committed to providing certainty, predictability, and consistency for all parties involved in applications for water licences and land use permits under the MVRMA.

The MVLWB has been doing its share to contribute to improvements in the regulatory framework for development in the Mackenzie Valley. These board initiatives are currently possible under sections 65 and 106 of the MVRMA, and we have relied on these authorities to complete this work. In my time as chair of the board, we have worked hard to contribute to a regulatory system that is clear, accessible, and efficient.

Since 2006, the land and water boards of the Mackenzie Valley have implemented a standard procedures and consistency program to develop new policies and procedures applicable to land use permitting and water licensing throughout the Mackenzie Valley.

To give some examples, the board has developed a consultation and engagement policy and guidelines, waste management guidelines, a water quality policy, closure and reclamation guidelines developed in conjunction with AANDC, a Mackenzie Valley-wide guide to land use permitting, and standards for GIS submissions, to name but a few.

As part of this program, we have also developed standardized language for the terms and conditions in land use permits, and we have a similar effort under way to standardize water licensing provisions.

The results of this work contribute to consistency in process and predictability in decisions for all parties involved in the development process. They will also assist with enforcement, when that is necessary, and ensure clarity in environmental standards for all who are interested in the board’s work.

I join with other commentators and reviewers of the regulatory system in the Mackenzie Valley to re-emphasize the importance of settling land claims and land use planning. Completing this work would ensure long-term certainty for all parties involved in resource development, but there is still a lot of work to be done. It should be noted that of a total of 61 environmental assessment referrals since the MVRMA came into force in 1998; 53 of those have come from regions of the Mackenzie Valley without settled land claim agreements.

So while the effective legislative framework will be a key contributor to certainty, we suggest that coming to agreement with the first nations whose claims to rights and lands are outstanding, and then eventually some land use planning for those areas, are equally important steps toward certainty for development.

There are a number of provisions in this proposed legislation that will improve the consistency and predictability of the regulatory process. For example, the board supports timelines for licence proceedings and supports the development of enforceable project certificates. The improved and updated enforcement provisions, including administrative monetary penalties, should ensure compliance with the law and provide an expedited process to address those few instances where enforcement is necessary.

The board’s overall approach to reviewing the bill and to commenting to government has focused on identifying changes that we felt could improve the legislation by enhancing certainty, predictability, and timelines.

There are five points that I have here. I'm not too sure if I have time within the five minutes, but they are on file with you. If you would like me to proceed with some of them, I could.

[The Chair, Conservative, Chris Warkentin]

We do have time, if you would like to do that.

[Willard Hagen]

Okay. Thank you for that.

Part 3 of the bill amends the Northwest Territories Waters Act. Board members’ liability is addressed in clause 84 of the bill. Proposed section 11.3 sets out an “immunity from suits” provision, such as lawsuits, for members of the new Inuvialuit water board.

Part 4 of the bill amends the MVRMA. Clause 124 addresses board members’ liability by replacing section 20 of the MVRMA.

These provisions are intended to protect board members when acting in good faith to conduct public business. But the provision found in clause 124 is legally inferior protection. There is a real difference between saying that no suit can be brought and saying that a board member is not liable. In the case of our board, that means we would have to defend such a lawsuit. We wonder why the same bill sets out two different standards of protection for board members doing the same job.

Secondly, from beginning to end, major licensing proceedings can last quite a while. Even with the new timelines, these proceeding are likely to last well over a year. Quorum issues arise, and appointments to our board are only three years in duration. As an example, the National Energy Board appointments are between five and seven years.

Clause 136 of the bill proposes the insertion of a new section 57 into the MVRMA. In a case where quorum may be lost because of the expiry of a member’s term, the chair of the board must write the federal minister two months in advance asking for the extension of the member’s term. The minister is deemed to approve if he does not respond.

We suggest that this approach leaves the board and a licence applicant who may have invested large amounts of money in the regulatory process with a great deal of uncertainty. The consequence of a loss of quorum would likely be starting over. This particular provision is found in the proposed amendments to the NWT Waters Act and part 5 of the MVRMA as well. It would be clearer, simpler, and much more efficient to simply say that if a board member is necessary for quorum and his term will expire during a proceeding, the term is automatically extended until a board decision is rendered. This is a common provision in many other statutes establishing administrative tribunals.

One of the improvements set out in the bill involves the issuance of certificates as required by clause 211, which adds proposed section 131.3 to the act. It is not clear to the MVLWB, then, why proposed section 62 of the act, inserted by clause 137 of the bill, makes no reference to certificates. The requirement that the provisions of part 5 of the act be satisfied are there in proposed section 62, but we suggest that the responsibilities of the land and water board to comply with certificates should be more clearly articulated in that proposed section.

It is also clear from the bill that when a condition in a water licence recommended by the review board and included in a certificate must be amended, the process is likely to add many months to the time it takes to amend the water licence. Subclause 224(3) of the bill proposes adding section 142.21 to the act. It is going to take up to eight months to amend a certificate. This will be in addition to the time set out for the water licence amendment process—nine months of the board's time. If the amendment is required for operational purposes, this means that an application must be filed almost a year and a half in advance. We suggest that consideration be given to a more expedited process for amendments that do not pose material environmental risks.

The bill should make provision for the land and water board to dismiss an application for either a permit or a licence when the applicant consistently and repeatedly fails to give information necessary for the board to bring an application proceeding to a close. On rare occasions, the board has made such decisions on the understanding that as an administrative tribunal, it controls its own process. But such actions leave questions. There should be clear authority to terminate a proceeding that is going nowhere based on criteria specified in legislation.

In conclusion, I would like to thank the committee for its time and for listening to my presentation. We would be pleased to answer any questions that may arise.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll begin the rounds of questions with Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair.

Mr. Hagen, I want to thank you especially for your presentation here today, because of course our job in the committee is to look at the opportunities we have to improve any legislation that comes in front of us, and you've given us some issues that I think would perhaps be subjects of amendments that will be put forward in the future. So it's very valuable work. I know you're not in a position to speak to the contentious issues within this bill, and I respect that.

There's a question, though, that comes in here, and it goes back to the previous panel on which Ms. Rabesca Zoe spoke to the operational changes, and I think Mr. McCrank spoke to them a little bit as well. Operational changes have taken place in the system. Wouldn't you think it would be wise and cautious to live through the operational changes to the legislation and to give time for this to actually become a full act of Parliament before we start dealing with structural changes that affect relationships between first nations, the Government of Canada, and the Government of the Northwest Territories?

Wouldn't this process be better held in abeyance until we understand the operational changes that were proposed and they are implemented?

[Willard Hagen]

Thank you for that, Mr. Bevington.

I myself am appointed as chair of the Mackenzie Valley Land and Water Board to follow the process laid out in legislation in the Mackenzie Valley Resource Management Act and other acts that we refer to. That's what I'm appointed to do, and I have no comment on the structuring. If they change the MVRMA on us into the future, then as good soldiers we will continue to regulate according to whatever the changes may be.

Thank you.