Evidence of meeting #9 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 sites.
A recording is available from Parliament.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
The regulation negotiations took five years and the negotiation for the specific bill was 25 years.
Director, Northwest Territories Devolution Negotiations, Northern Affairs, Department of Indian Affairs and Northern Development
Oh, I see.
Devolution, you could argue, has been on and off since the mid-1980s, in one form or another.
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
Regulatory improvement discussions have been ongoing since 2010, especially with respect to restructuring of the land and water boards, and transboundary groups would have been involved in that.
Conservative
The Chair Conservative Chris Warkentin
Thank you.
We'll turn to Ms. Jones now, for the next seven minutes.
Liberal
Yvonne Jones Liberal Labrador, NL
Thank you very much, and thank you for appearing this morning to respond to our questions on this important bill.
In your opening comments, you talked about consultation on devolution, and about the three phases you had entered into in the spring of 2012, the spring of 2013, and again during draft legislation between August and October of 2013. I've received a letter, which I'm sure other committee members have as well, from the Tlicho First Nations. In the letter, they outline a failure to meet the consultation obligations with the Tlicho agreement.
Could you explain to me whether they were consulted appropriately and whether all the issues they raised were discussed with them?
Director, Northwest Territories Devolution Negotiations, Northern Affairs, Department of Indian Affairs and Northern Development
Since the beginning, the Tlicho government has been involved in devolution discussions in one form or another, either as a separate party or through their participation in the aboriginal summit. I will note that the Tlicho government is a signatory to the devolution agreement. The reference you make in your letter from the Tlichos, with respect to consultations on the regulatory improvement side of things, I'll pass over to Tara.
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
As noted in my previous response, there have been consultations on policy intent with respect to the regulatory improvement initiatives since 2010. John Pollard, the minister's chief federal negotiator, held over 50 meetings from 2010 until 2013 on restructuring of the land and water board itself.
The Tlicho were invited and included in that consultation process. They were subsequently invited and included in consultation process on the legislation. I don't have details of dates of meetings with the Tlicho, but we do have that information, if you would like.
Liberal
Yvonne Jones Liberal Labrador, NL
After the 50 consultation sessions that were held by the lead negotiator for the board, you can't tell me if the Tlicho were involved in any of those consultations or participated in any way?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
They were involved in consultations, and they did participate. I just don't have details of the meetings and when they took place between Mr. Pollard and the Tlicho.
Liberal
Yvonne Jones Liberal Labrador, NL
In a letter on October 18 that they wrote to Mr. Pollard, they outlined a number of concerns. I think they submitted a 10-page letter, and in the letter they indicated they were very concerned about how Canada continues to move forward with the amendments without any apparent understanding of—and I'm reading directly from their letter—or respect for the fundamental purpose and promise of the Tlicho Agreement.
In relation to an important decision-making role, they certainly feel they have not been appropriately consulted. They feel their current agreements with the federal government around this issue are not being respected. I'd like to get a response in terms of what your thoughts are around this.
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
We're aware of the Tlicho's position with respect to the restructuring of the land and water board. However, in our analysis and view, the proposed restructuring is consistent with the land claim agreement, in particular section 22.4.1 of the Tlicho Agreement, which does allow for a larger land and water board applicable to the entire Mackenzie Valley. In such a case, the existing regional panel would no longer exist. Our view is that the proposals in the bill respect existing aboriginal and treaty rights.
Liberal
Yvonne Jones Liberal Labrador, NL
I'm aware of the clause in their agreement. What I don't understand is if the government was doing such extensive consultation with regard to the devolution of the lands agreement, why were you not completely up front in all the consultations that were held to talk about the changes to the Mackenzie Valley Resource Management Act. It seems as if it came later, after the aboriginal governments had signed on to the other piece of the devolution agreement. I don't understand why you would want to do that, why you didn't do all this in full and open consultation at the same time.
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
As I stated previously on regulatory improvement, we have been consulting on policy intent since 2010. There was the appointment of chief federal negotiator John Pollard who did hold his series of consultations on policy intent. With respect to the action plan for the regulatory improvements, we had subsequent consultations on policy intent with groups, both in December of 2012 and then again in July of 2013. In May of 2013, we shared initial draft language with all aboriginal parties, including the Tlicho. That initial draft included the proposed amendments with respect to restructuring policy direction and time limits. We then followed up with a complete proposal and held technical conversations on that in Yellowknife at the end of September.
I'll turn to my colleague to speak to how they dealt with regulatory improvements during the devolution consultations.
Director, Northwest Territories Devolution Negotiations, Northern Affairs, Department of Indian Affairs and Northern Development
Certainly the regulatory improvement proposals were actively discussed during our negotiations. They had to be to formulate the parties' opinions as to what different negotiation proposals met the various parties' interest. A number of presentations were made in the negotiations during devolution as to the Government of Canada's intent with respect to the regulatory improvement initiative and board restructuring. Although that was not a subject of negotiations, we did make presentations and made the Government of Canada's views known on that subject.
Conservative
The Chair Conservative Chris Warkentin
Thank you.
We'll turn to Mr. Hillyer now for the next questions.
December 10th, 2013 / 11:40 a.m.
Conservative
Jim Hillyer Conservative Lethbridge, AB
Thank you very much.
I just want to follow up a little bit about consultation in general. I hope not to come across as being cynical.
Sometimes it seems that some groups may feel that, if they didn't get what they wanted as a result of the consultation, the consultation wasn't actually there or wasn't sufficient. Do you get that sense, or are there some shortcomings in our duty to consult?
You can speak to this agreement. Are there some shortcomings? Do you feel we've done it as our duty dictates?
Certainly consultation must be more sincere and meaningful than just a token going through the motions, but at the same time I doubt it can mean that we have to have unanimous agreement.
Director, Northwest Territories Devolution Negotiations, Northern Affairs, Department of Indian Affairs and Northern Development
From the devolution perspective I think the consultation record is quite extensive.
What's important to note with consultation—and we hear this often, and I'll reiterate today—is that it's not just about consulting, but it's also being in a position to accommodate if the actions the government is proposing may infringe on a potential right. Those consultations need to take place at a stage in your discussion before you make the decisions, so you're able to do that.
From a devolution perspective, as I stated earlier, we've had participation of various aboriginal parties in the negotiations, dating back to 2000, through the Aboriginal Summit. Even after the Aboriginal Summit disbanded, we had aboriginal organizations participate on their own. We now have five of those parties that have signed on to the agreement.
Notwithstanding that, the reason we developed the three-phase consultation approach during the final agreement negotiations was to ensure that all considerations were made by the Government of Canada prior to decisions being made.
The first phase is really important to that. The first phase of consultations in devolution took place while we were actually negotiating, so with any feedback or input or concerns that we received, we were able to then modify our negotiation approach and our position, to ensure that those rights were not infringed. I think a lot of the active measures I've pointed to come as a result of that dialogue.
I think the consultation record on devolution is quite extensive and it's thorough and we feel quite comfortable that nothing in the agreement, and subsequently nothing in the proposed legislation, infringes on those potential aboriginal or treaty rights.
I'll turn it over to Tara. I don't know if she wants to expand on the regulatory improvements.
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
On the regulatory improvement side of the coin, we also have an extensive record of consultations since 2010.
I would note that as soon as Mr. Pollard was appointed, he actually sent letters to all aboriginal parties to explain clearly Canada's intent. So part of the consultation approach and record is the clarity with respect to what the proposed changes are and were at the time.
As my colleague noted, when you are consulting you do have to take into account any accommodation measures that you can bring to a proposal, and we did do that as a result of the consultations that took place. And in a key area, we've brought accommodations to the bill with respect to the restructuring aspect of the proposal as a direct result of comments received from aboriginal parties through those consultations.
Conservative
Jim Hillyer Conservative Lethbridge, AB
That's a little bit on the process of the consultations.
But in your opening remarks you said there are a number of amendments made as a result of these consultations and that you would be able to expand upon them. Could you do that, at this time?
Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development
Certainly. I did just refer to one, and I would probably highlight this as one of the key accommodations that we made through the process. It is as a result of comments received from aboriginal parties through the consultations.
We included a clause in the bill, which would be a new clause, 56.3, in the Mackenzie Valley Resource Management Act and clause 136 in the bill in front of you on page 105. That is, where the chair of the restructured Mackenzie Valley Land and Water Board establishes a smaller committee to consider an application for development, and where that proposed development is wholly within a geographic settlement area, the chair would then first consider the appointment of the member nominated by the first nation. For example, if we were to take the Gwich'in settlement area, if there was a development wholly within the Gwich'in settlement area, the chair would first consider the appointment of the nominee who was nominated from the Gwich'in first nation to a committee to consider the development.
Another key aspect of the accommodation was the appointment of the chair to the Mackenzie Valley Land and Water Board. The minister would appoint the chair. However, as a result of the consultations, we have included in the bill the requirement that, for the second and subsequent chairs, the minister would confer with the Mackenzie Valley Land and Water Board members.
We also made an amendment to the development certificates component of the bill to allow for a reconsideration process similar to the process that is in the Nunavut Planning and Project Assessment Act, with which I believe this committee is familiar. It comes as a direct result of comments we received through consultations not just with aboriginal parties, but with industry as well. If a term or a condition needed updating, this process would allow for that to take place.
We also changed the order of reference to the objectives of the bill to respond to comments from the aboriginal parties. We had it before that the objective of the land and water board.... We changed the order of considering the optimum benefit and decision making to capture Mackenzie Valley residents first and Canadians subsequently. The order was reversed previously. That was an issue of great interest for those with whom we consulted.
Conservative
The Chair Conservative Chris Warkentin
Thank you very much.
We'll turn to Mr. Genest-Jourdain, for the next five minutes.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Good morning.
Your presentation was on devolution. However, there is one element that you did not bring up during your presentation, and I have not seen it in the bill either. I am referring to the transfer of responsibilities concerning abandoned mine sites. I know that chapter 6 of the agreement deals with precisely this topic. Now, this responsibility will be transferred as of the signing of the agreement. The government of the Northwest Territories and the aboriginal governments will be responsible for cleaning these abandoned mine sites and restoring them to their original state. For this to happen, the government must provide an inventory of all of these sites, including sites that have been released, sites that have been cleaned up, and sites that need to be cleaned up.
So the agreement refers to a definitive inventory, but it also mentions that it is the responsibility of the parties to the agreement—the government and the communities—to prove that other sites discovered after the signing of the agreement would be the responsibility of the government. So, when we talk about the definitive inventory that the government must provide, are we talking about an exhaustive inventory? Does the government need to take all necessary measures to ensure that all sites have been covered?
Senior Counsel, Negotiations, Northern Affairs and Federal Interlocutor, Department of Justice
Chapter 6 of the devolution agreement is the chapter that deals with the responsibility of the governments for existing waste sites. The inventory you spoke of is in schedule 7 to the devolution agreement. In that schedule there's a part that deals with sites requiring remediation, and so those are all of the sites Canada has identified, to date, that require remediation. Those sites are going to be remediated by the Government of Canada. Those sites will not be transferred to the Government of the Northwest Territories, so they are excluded from transfer.
Those are the known sites we've identified as requiring remediation based on federal remediation standards. After devolution, if an operating site becomes an abandoned site that requires remediation, the Government of the Northwest Territories or an aboriginal group, if it's on the aboriginal group's land, can come to Canada and say to Canada that this site is their responsibility.
The criterion for responsibility is essentially when the activity that caused the contamination took place. If that activity took place prior to devolution, then it's Canada's responsibility. If it took place after devolution, or in the case of an aboriginal land, if it took place prior to the land becoming aboriginal land, it's Canada's responsibility. If it took place after becoming aboriginal land, it's the aboriginal government's responsibility.
That is the criterion that would be applied by Canada in saying yes, it's our responsibility, or no, we think it's yours.
If the Government of the Northwest Territories or an aboriginal party disagrees with Canada's view on that, the provisions of the agreement call for an expert panel to be struck. That expert panel would look at the evidence presented by the parties and determine whether or not that waste, or the contamination in question, is contamination that existed prior to devolution, and if so, then it's our responsibility, or prior to the lands becoming settlement lands, and if so, it's our responsibility.
The answer to your question is, to the extent that Canada has knowledge, we have identified those sites that require remediation, and there's a process going forward for new sites that become abandoned that require remediation.
For sites not on the list, the Government of Canada and the other parties to the agreement have come to an agreement. Basically, Canada topped up the amount of money we were putting into the deal by $2 million a year. The parties to the agreement in consideration of that were happy to not deal with undiscovered sites. That's the way it worked out.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Thank you for your answer, which clears things up a bit.
What we have here is a new measure, a new tactic. There is a similar transfer of responsibilities under the First Nations Land Management Act. And that is where we have a problem, especially given that restoring these sites costs a lot of money. Will there be provisions made to cover these costs? Or, at the very least, will a funding envelope be transferred for the restoration of these sites?
I also have some questions about the burden of proof. The community or the government of the Northwest Territories will need to prove that the need existed prior to the signing of the agreement. What are the costs associated with that? Will it be possible to challenge such a situation before the courts?
Senior Counsel, Negotiations, Northern Affairs and Federal Interlocutor, Department of Justice
Yes, to answer one of your questions.... There's a waste sites management committee that's set up by the agreements. All of the parties to the agreement will have a member participating in this waste sites management committee. Each of the parties was provided $200,000 a year for participation in that committee. The purpose of that committee is to consider remediation that is taking place, and consider other things that might require remediation.
As far as the cost of remediation goes, all of the sites we are aware of that require remediation have been excluded from the transfer, and the cost of that remediation will be borne solely by Canada because those lands are staying federal.
We haven't transferred a liability, and so therefore we haven't transferred any money other than the money that was identified in respect of participation in that committee.