Evidence of meeting #12 for Indigenous and Northern Affairs in the 41st Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board.
A recording is available from Parliament.
Conservative
Joan Crockatt Conservative Calgary Centre, AB
Do you know how those compare with any other international standards?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
I'm not very familiar with other international standards, so I can't speak to those. All I can say is that they are consistent with those that are in other Canadian jurisdictions.
Conservative
Joan Crockatt Conservative Calgary Centre, AB
They're also, by my reading, consistent with the European Commission standards as well. Thank you for your answer.
I'd like to talk about the regulatory bodies. Essentially they're being consolidated. What makes you confident that in the devolution the regulatory regime that is being set up now is competent to be able to handle the tasks? I think you touched on the regional representation, etc., before.
This is for whomever feels they would like to answer that.
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
I'll just say that the proposed changes don't impact the board member...or it will be the same capacity in the regions. We would focus on retaining that capacity.
I'd probably turn to my colleague Alison Lobsinger to speak to how decisions will be made in the regulatory regime post-devolution.
Conservative
Joan Crockatt Conservative Calgary Centre, AB
Yes, I think that's where I want to go. Are you confident that we did have the capacity there before and that it will be retained in moving forward with devolution?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
The short answer is yes.
Manager, Legislation and Policy, Department of Indian Affairs and Northern Development
The first thing I would say is that overall, how both land and water regulation and environmental assessment take place in the Mackenzie Valley, notwithstanding the changes we're adding to the margins of the process, won't change following these amendments.
The Mackenzie Valley Land and Water Board will continue to regulate land and water. The environmental impact review board will continue to conduct environmental assessment. We haven't changed, through these amendments, how those boards conduct their business. That will stay the same today through to when the amendments do come into force.
I don't think I have anything else to add beyond that.
Conservative
Joan Crockatt Conservative Calgary Centre, AB
Okay.
The Mining Association advocated more board flexibility to allow the scope of an assessment to be tailored to the size and the impacts of the project. Does this sort of flexibility exist to some degree, and do you see there being any enhanced capability to do that?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
I think it's safe to say that it's our view that the Mackenzie Valley Environmental Impact Review Board applies the principle of proportionality currently, and would continue to do so post amendments to the Mackenzie Valley Resource Management Act.
Conservative
Joan Crockatt Conservative Calgary Centre, AB
So no additional levels of red tape would impede projects.
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
In our view, no.
Conservative
Carol Hughes NDP Algoma—Manitoulin—Kapuskasing, ON
Based on a lot of the information we've had from testimony both here and on the ground, it's evident that a lot of amendments have been requested. I think they are fairly reasonable amendments. I think it would probably also be in the government's interest to consider those amendments seriously to prevent any further litigation here, and lengthy litigation at that, a waste of taxpayers' dollars.
These are the people who are actually living under and would be working under this agreement. When we look at this, certainly all of them are not against the devolution. They do have a lot of concerns with respect to the Mackenzie Valley piece.
I'm looking at some of the testimony that was actually provided, and I'm wondering if you could comment on what some of the impact would be on the bill itself.
For example, we have the Mackenzie Valley Land and Water Board talking about amending section 57 of the MVRMA, as amended by Bill C-15, to extend the terms of board members to ensure quorum until a board decision is rendered. A similar provision is found under part 3 of Bill C-15. They also talk about addressing the discrepancies regarding the standard of liability for board members so that provisions relating to board member liability under part 4 are the same as those found under part 3 of Bill C-15.
When you look at the amendments suggested by the various presenters, can you tell me what the impact would be on the bill itself, and the reasoning that it wouldn't be supportive to go through?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
I can't speak to whether the amendments would be supported, but you raised a couple of issues in your question.
On board member terms and term extensions as raised by the Mackenzie Valley Land and Water Board, the term set forth in the Mackenzie Valley Resource Management Act of three years is consistent with the terms set out in other acts in the north. Those include the Nunavut Waters and Nunavut Surface Rights Tribunal Act, the Nunavut Planning and Project Assessment Act, the Yukon Surface Rights Board Act, and the Yukon Environmental and Socio-economic Assessment Act.
As to the question of liability, that was addressed earlier by my colleague, Tom Isaac. Our view is that there is no legal difference between the two provisions that are contained within Bill C-15.
NDP
Carol Hughes NDP Algoma—Manitoulin—Kapuskasing, ON
There have been other views with respect to whether or not this would stand up. We know there have been reversals on some decisions in court, so I hope there was due diligence done on that part.
Again, when we see the consultation piece, I think my colleague alluded to the fact that this was actually...I think you mentioned four different bills initially. Is that what you had indicated?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
Yes.
NDP
Carol Hughes NDP Algoma—Manitoulin—Kapuskasing, ON
So to have to combine these bills now, we have basically two of the bills, two of the parts, and....
Over and over again, what we see is that people are supportive of devolution. They're just not supportive of having the Mackenzie Valley piece in there. What would the technical aspect be to separate those at this point in time and have them go forward on a separate basis? Would one hinder the other?
Director, Northwest Territories Devolution Negotiations, Northern Affairs, Department of Indian Affairs and Northern Development
I'll let my colleague, Mr. Isaac, answer that last question, but just for the record, I may have mentioned earlier that there were four “bills”.
Actually, it's four acts that comprise the four parts in the bill. While we may have consulted on four separate acts, the four separate acts form the bill. For instance, part 1 was one of the acts we consulted on, as was part 2, etc.
That's an important distinction to make. While they were separate acts, the consultation process for the four pieces was done at the same time.
As to the impact of now splitting the bill, I don't have insight to provide on that.
Senior Counsel, Negotiations, Northern Affairs and Federal Interlocutor, Department of Justice
As my colleague, Mr. Walsh, indicated, there are four acts we were consulting on. We don't consult on bills. Bills are House business. How a bill goes through the House and how a bill gets put together are political decisions. We consulted on four pieces of legislation that contained various changes, improvements to the regulatory regime, and devolution implementation.
The overlap between the regulatory improvement bills and the devolution bill is principally in the Mackenzie Valley Resource Management Act. In order to implement devolution, we had to take a lot of powers that are currently in the Northwest Territories Waters Act and put them into the Mackenzie Valley Resource Management Act because we're repealing the federal Northwest Territories Waters Act. Those parts of the two initiatives have to be done at the same time. We had to have those changes to the MVRMA done at the same time we were making amendments to the Northwest Territories Waters Act and several other consequential amendments to other acts, such as the Canada Oil and Gas Operations Act. From a technical perspective, those had to go through at the same time.
That being said, because the MVRMA was going to be changed by devolution in any event, and because it was the instruction from the highest level of government that regulatory improvement should happen at the same time as devolution, the timing of the initiatives converged. So it was virtually impossible that they wouldn't be going through at very similar times. Whether they're in one bill or not, as I said, is a political decision that we can't comment on.
Did that answer your question?
Conservative
Conservative
Mark Strahl Conservative Chilliwack—Fraser Canyon, BC
If we look back at some of Mr. Hagen's testimony, he proposed that Bill C-15 should make provision for the land and water board to dismiss an application for either a permit or a licence when a proponent consistently and repeatedly failed to provide necessary information. What are your thoughts on that idea from Mr. Hagen, and why was that not included, or is it already covered in another aspect?
Manager, Legislation and Policy, Department of Indian Affairs and Northern Development
It's our understanding that the land and water board already has the ability to dismiss applications when proponents aren't providing adequate information. It's something we would have to consider going forward. We'd have to do analysis on whether we could make such an amendment in regulations, not in the legislation. It's our understanding that we could tackle that question through the regulations, but we would have to do further analysis on the issue.
Conservative
Mark Strahl Conservative Chilliwack—Fraser Canyon, BC
Okay, thank you.
Also, if we go back to some of the testimony we heard, industry groups suggested that the minister should clarify consultation obligation by way of a policy direction to the boards in the interim. What is your response to that? Could you maybe address that concern that industry raised, if that's appropriate?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
Mr. Chair, I would offer two observations.
We are including a consultation regulation-making authority in the Mackenzie Valley Resource Management Act, and we would consult with industry, aboriginal organizations, the Government of the Northwest Territories, and other stakeholders on those regulations.
Regarding policy direction, we haven't given any thought to specific policy directions that would be applied to the boards following these amendments. My colleague is also reminding me that the boards themselves in their rules of procedure actually have a fair number of rules regarding consultation. Currently the minister does have authority to provide policy direction to the Mackenzie Valley Land and Water Board, and he has used that policy direction in the past to clarify issues regarding consultation, so it's conceivable, but as I said, there are no plans at this point in time.
