Indigenous and Northern Affairs Committee on Feb. 4th, 2014

[Kyle Seeback, Conservative, Brampton West, ON]

Thanks.

I want to pick up on what my colleague Mr. Strahl was talking about. You sort of gave a general answer. That was a big concern with industry. They actually said several years ago that they didn't think the boards were working very well together but that had changed significantly. They thought that there was great synergy between the boards. They were able to collaborate resources in certain circumstances, and that's something they want to ensure will be there in this new amalgamated board.

Can you give any more detail on how you'll be able to ensure that continuity for industry and for everyone else in fact?

[Tara Shannon]

As part of the transition measures in the legislation, the existing board employees would move over to the Mackenzie Valley Land and Water Board. That existing knowledge will move to the consolidated Mackenzie Valley Land and Water Board.

At the same time, we're currently working with the boards and others to develop an implementation plan that would keep in mind the preoccupations of both industry and aboriginal parties in this regard. We would, through implementation, work closely with both industry and aboriginal parties to ensure that projects aren't negatively affected and that the capacity that exists is retained.

[Kyle Seeback, Conservative, Brampton West, ON]

Do you have a timeline for that?

[Tara Shannon]

Our intention is that restructuring would come into force within one year of royal assent. There are a few other amendments that would come into force under order in council at the same time. Those would be the amendments that would provide for regional studies and the board member term extensions, as well as cost-recovery regulations and the consultation regulation-making authority.

[Kyle Seeback, Conservative, Brampton West, ON]

One of the things the Mining Association recommended was consolidating the environmental assessment and the environmental impact review process so they would all take place within 24 months. They seem to suggest that the way things happen now, it could be 24 for one and 24 for the other, and then you have 48. Did you look into that? Did you consider that? What's your comment on that?

[Alison Lobsinger]

The legislation sets out the requirement for an environmental assessment process and then a subsequent environmental impact review process. These two stages are set out in the land claim agreements. The land claims agreements are quite clear that an environmental assessment has to be conducted and then, if necessary, an environmental impact review. Both steps have to be gone through; you can't collapse the two steps into one. We have set out time limits in the legislation. There is an overall time limit for environmental assessment and an overall time limit for environmental impact review.

Industry had proposed that if there's a need for an environmental assessment and an environmental impact review that the overall time for those two steps would be no more than 24 months. However, the impact review board, the body responsible for conducting the environmental assessment and environmental impact review, has to have the discretion to conduct the process as it sees fit. It wouldn't be appropriate to have one time limit for an environmental assessment if it was just an environmental assessment, but then a different, shorter time limit if it was an environmental assessment and an environmental impact review.

For that reason, we've kept the time limits separate and sequential.

[Kyle Seeback, Conservative, Brampton West, ON]

Is there any way you would know sooner than 24 months if you're referring for the environmental impact, or would it always take 24 months? Is there any way to condense that process a little so it's not 48 months? Would it be that 12 months into it we know we're going to have to refer it to the environmental impact...? Is there any mechanism in the legislation for that? Did you consider something like that?

[Alison Lobsinger]

No, there's nothing in the legislation that allows for that.

[Tara Shannon]

There's nothing in the legislation to allow for it. I think it's important to note that since the legislation has come into force, there have been only two environmental impact reviews. One was the Mackenzie gas project and the other was the Gahcho Kué. There have been only two since the beginning of the act in 1999.

[Kyle Seeback, Conservative, Brampton West, ON]

What do you think about the Mining Association's suggestion that you should define public concern so you have a clear idea of when you're going to have that referral?

[Tara Shannon]

We didn't define public concern in the act. That's consistent with the approach to public concern in other environmental assessment legislation in Canada. For example, CEAA 2012 also includes a public concern test, and there is no definition. Were we to proceed with a definition of public concern, the consultation process around that would be quite intensive, and there could be implications, then, for other jurisdictions, for other legislation such as CEAA 2012.

[Kyle Seeback, Conservative, Brampton West, ON]

Thanks.

[The Chair, Conservative, Chris Warkentin]

We'll turn now to Mr. Genest-Jourdain for the next questions.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good afternoon, ladies and gentlemen.

Would you please clarify for us what involvement government lawyers, particularity those in your department, have had in drafting the agreement addressed in the legislative tool that we are debating today?

[Tom Isaac]

The Department of Justice has several functions in respect of the development of legislation. We advise on policy, on the legal implications of the policy aspects as they develop the legislation, and then the Department of Justice has legislative drafters who draft the legislation. We're also advised in respect of the consultation requirements of the common law and land claim agreements, and we advise the department in respect of those things. It's a multi-faceted role that the Department of Justice plays.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

I believe that they were also called on to help draft the agreement.

[Tom Isaac]

The Department of Justice was called upon to assist in the development of the legislation and the agreement.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

To your knowledge, were legal counsel in your department also asked to give their opinion on the legitimacy, or at least the potential contentiousness, of the transfer of environmental liabilities that appears in the agreement but not in the text of the legislation? Were they asked to give their opinion on the highly contentious nature of the fiduciary relationship that must exist between the Crown and first nations?

When I talk about the transfer of environmental liabilities, I am referring to responsibility for abandoned mines and contaminated sites. This type of transfer is also included in other agreements and other legislation, such as the First Nations Land Management Act. Such transfers seem to happen frequently, to the point that they reflect a strong tendency on the part of the Department of Aboriginal Affairs and Northern Development.

I would like to know whether your legal counsels gave an opinion on the legitimacy and the potentially contentious nature of these liabiliy transfers that at the very least would expose the government responsibility for its fiduciary relationship.

[Tom Isaac]

As I mentioned before, the Department of Justice has provided advice in respect of the development of the legislation and the agreements. The specifics of that advice are of course subject to solicitor-client privilege, and I can't provide any specifics in that regard.

It's our view that the legislation and the devolution agreement are both compliant with all the legal requirements that the crown has to abide by in these initiatives.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Mr. Walsh.

[Wayne Walsh]

If I may, Mr. Chair, if I understand the honourable member's question correctly, I just wanted, for the record, to point out that in devolution and in the devolution agreement, what we've actually done is that Canada has agreed to retain responsibility and liability for any of the waste sites that were created prior to transfer.

We have a whole process and a whole chapter laid out in the agreement whereby we will retain the liability, remediate the site, and only once the site has been cleaned up will we transfer that to the Northwest Territories.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn to Ms. Crockatt for the next questions.

[Joan Crockatt, Conservative, Calgary Centre, AB]

Thank you to the witnesses for being with us today.

I'm interested, too, in the environmental aspects. There have been concerns from some, and kudos from others, about reducing the time period for the regulatory approvals in the new structure. We're going to 24 months now.

I'm wondering if you could compare the consolidated 24-month total for the environmental reviews with other jurisdictions, and whether that's in keeping...because we all want to be sure that the environmental reviews can be done in a safe and effective way.

[Tara Shannon]

Yes, the time limits that are contained in this act are consistent with those that are contained within CEAA 2012, so the maximum of 24 months for an environmental impact review, 12 months for an environmental assessment without a hearing, and 21 months for an environmental assessment with a hearing.