Indigenous and Northern Affairs Committee on May 16th, 2019

[The Vice-Chair, Conservative, Cathy McLeod]

I call this meeting back to order.

I'd like to welcome Minister Bennett.

Thank you so much for taking the time to join us on an important bill.

I also, perhaps, want to note that there was a regret from Minister LeBlanc. I think that all of us at this committee wish him well in terms of his current health challenges. We are thinking of him and wishing him well.

With that, Minister, I would love to give you the floor for 10 minutes.

[Carolyn Bennett, Liberal, Minister of Crown-Indigenous Relations]

Thank you, Madam Chair, for this opportunity to participate in your committee's review of Bill C-88 as we gather once again on traditional unceded Algonquin territory.

I am also appearing before this committee on behalf of my honourable colleague, Minister LeBlanc.

I know that—on behalf of all on the committee—our thoughts and wishes are with him. We all want him to have a speedy recovery, but we also want him to take the time to be well and to be back advocating for northerners and northern issues, and doing his important work with the provinces and territories.

As you all know, Bill C-88 proposes to amend both the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act.

In terms of the MVRMA, the bill is focused on repealing the previous government's decision, through Bill C-15, to arbitrarily merge four land and water boards in the Mackenzie Valley into one super-board. This decision violated constitutionally protected indigenous land claim and self-government agreements, and it ended up in court.

The bill also seeks to reintroduce a number of positive changes introduced by the previous government through Bill C-15 that have not been implemented because of the court-imposed injunction that focused on stopping the imposition of the super-board.

The Mackenzie Valley Resource Management Act includes four land and water boards in the Mackenzie Valley, which are central to comprehensive land claims and self-government agreements of several local indigenous governments and organizations.

This creates an integrated co-management regime for lands and waters in the Mackenzie Valley, and it provides legal certainty for our resource development investors in the area.

Bill C-15 was passed by the previous government in 2014.

Among other changes, it merged the Mackenzie Valley land and water boards into one entity.

The legislation was immediately challenged in court. It was alleged that it violated indigenous land claim and self-government agreements.

In early 2015, the Supreme Court of the Northwest Territories granted an injunction that suspended the proposed board restructuring, along with other positive regulatory amendments included in Bill C-15. Rather than improve the regulatory process for the Mackenzie Valley and enhance legal certainty for proponents and investors, the previous government's approach landed these MVRMA regulatory reforms in Bill C-15 in court.

As we've said at this committee before, our government believes that a sustainably developed resource sector is essential to the success of the Canadian economy and, if we get it right, will serve as an important foundation for future economic and job growth. Unlocking this economic potential must be contingent on environmental sustainability and on impacted indigenous communities being engaged as equal partners.

The current situation is untenable as it creates legal uncertainty, and the positive regulatory changes are now tied up in the courts.

In November 2015, discussions with indigenous organizations and governments in the Northwest Territories began about the government moving forward with legislative amendments to resolve this matter.

Bill C-88 has been developed through consultation with indigenous governments and organizations, the Government of Northwest Territories, industry and their resource co-management boards.

The bill will resolve the litigation regarding the restructuring of the boards and reintroduce the positive policy elements of C-15 currently prevented from coming into force by the injunction. It will re-establish trust with indigenous partners in the Northwest Territories, respect their constitutionally protected land claim and self-government agreements, and restore legal certainty for responsible resource development.

I think Northwest Territories Premier McLeod and Grand Chief George Mackenzie summed it up very well in a joint letter they sent on April 24, 2019, when they wrote, “We are hopeful that Bill C-88 will proceed expeditiously through the legislative process and will receive Royal Assent in this Parliament. The negative implications of the status quo are significant.”

Madam Chair, we have copies of that letter for the members.

In terms of CPRA, Bill C-88 proposes to provide new criteria for the Governor in Council to prohibit existing exploration licence holders and significant discovery licence holders from carrying on any oil and gas activities, in the case of the national interest.

It would also freeze the terms of the existing licences in the Arctic offshore for the duration of any such prohibition.

The “national interest” refers to a country's national goals and ambitions, whether economic, military or cultural, and is not a new legislative concept. There are numerous references to the national interest in Canadian legislation and specifically in northern legislation.

For example, the term appears in section 51 of the Yukon Act and section 57 of the Northwest Territories Act. In both acts, the Governor in Council may prohibit any use of waters or the deposit of waste in cases in which the Governor in Council considers the use of waters or the deposit of waste to be incompatible with the national interest.

The decision to move forward with a moratorium on new Arctic offshore oil and gas licences in federal waters was a risk-based decision in light of the potential devastating effects of a spill and limited current science about drilling in that area. It is important to remember that at that time there was no active drilling occurring in the Beaufort Sea and no realistic plans to initiate drilling in the short or medium term.

The moratorium was announced in conjunction with a five-year science-based review, as well as a consultation on the details of that review.

Territories and indigenous and northern communities are partners in the science-based review process, and others, including industry, are being actively consulted. The outcome of the review process will inform next steps in the Arctic offshore. Freezing the terms of the impacted existing licences in the Arctic offshore was a key priority expressed by the industry in our discussions regarding the implementation of the moratorium.

The proposed amendments to both the MVRMA and the CPRA are essential to ensuring a responsible, sustainable and fair resource development regime in the Northwest Territories and the Arctic.

I urge you to pass Bill C-88 and look forward to your questions.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you, Minister.

For the first round of questioning we will be going to MP Yves Robillard.

Go ahead.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Thank you, Madam Chair.

Minister, thank you for your testimony and for your work on this bill.

The opposition claims that the existing regulatory system is complex, costly, unpredictable and time-consuming and that merging the boards is essential for resolving these issues.

But if I understand correctly, merging these boards meant that the whole process landed in court, and natural resources development in the Northwest Territories became mired in legal uncertainty.

Minister, once we undo the amalgamation of the boards, can you explain how the companies will go from one super-board to four boards?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Thank you very much.

What happened is that indigenous groups opposed the fusion because they felt it infringed on their treaty rights.

There was a court challenge, the court issued an injunction, and the fusion didn't proceed.

We are stuck, but we're also stuck with the good things that were in the previous bill also frozen. This is a bill that will fix both things. We will agree with our indigenous partners and indigenous governments that the fusion wasn't in their best interests—to not have local knowledge and indigenous knowledge to take those decisions. As well, we'll be able to proceed with some of the really good things that were in the previous bill, such as the ability for a member of one of the boards, if there's a project being examined, to be allowed to continue on the examination of that project even when that member's term has expired, until that project has stopped and that decision is taken.

This is a matter of our getting rid of the bits they don't like, but proceeding, finally, with the things that they did like.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

What I'm hearing is that you believe the four-board structure supports an effective regulatory system.

Could you also briefly tell us about co-management of resource development, the unique system that is so important in the North?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

The co-management approach is truly a global best practice. It ensures that partners participate in decision making. That eliminates the uncertainty that happens when the government makes decisions without consulting its partners.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Bill C-88 contains other regulatory improvements that were originally part of Bill C-15. These improvements never came into force, due to a court injunction. I gather that, as you mentioned in your speech, these improvements are broadly supported by Northwest Territories residents, and the former government was right about those provisions.

Could you summarize what the other regulatory amendments do to improve the regulatory system in the Northwest Territories?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Sure. As I said, a board member's term can be extended for the duration of a study. This is a more practical approach. It means that good decisions can be made in a reasonable timeframe or more easily.

This approach is preferable to a scenario where a new board member would have to be trained. The study won't have to start over from square one. That means good decisions can be made in a timely manner.

[The Vice-Chair, Conservative, Cathy McLeod]

You have 20 seconds left.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

I'll leave it to the next questioner.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you.

MP Kevin Waugh.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Thank you, Madam Chair, and thank you, Minister and departmental officials.

Minister, one of the primary tasks of this bill, as you talked about, is to reverse changes made by the former Conservative government with the Northwest Territories Devolution Act back in 2014. As you mentioned, this included consolidating the four land and water boards in the Mackenzie Valley into one. The Liberal Party at that time supported it, including the current Prime Minister, and even your parliamentary secretary, MP Jones, who is with us here this morning.

I'm going to quote what she said at the time:

As Liberals, we want to see the Northwest Territories have the kind of independence it has sought. We want it to have the ability to make decisions regarding the environment, resource development, business management, growth, and opportunity, which arise within their own lands.

That is from 2014.

These comments actually stand in direct contradiction to Bill C-88, which extends powers to the cabinet to put moratoriums on energy development and to include the national interest, which, to be honest with you, has never really been clearly defined.

I will note that the Prime Minister of the day, when he did the moratorium, wasn't even in this country. He was in Washington, D.C., at the time he talked about the moratorium up north, and the elected northern officials at the time had less than half an hour to scramble to come up with the decision of the day.

I'm also going to talk, if you don't mind, about last night in the Senate, because it has major ramifications for northern Canada and moratoriums on northern development, allowing the north to make its own environmental and economic decisions. We have seen repeated paternalism coming from this government when it comes to energy development, not only in relation to northerners but as we saw last night first nations as well.

We saw it with Bill C-48 in the Senate last night: the B.C. oil tanker ban. As you know, Calvin Helin is the CEO of Eagle Spirit Energy Holdings, which is an indigenous-led group. He has been deeply critical of these types of moratoriums being directed by your government in Ottawa. He said, in response to these bans, “Is this what reconciliation is supposed to represent in Canada?”

That statement last night by Calvin speaks volumes, and we saw it last night in the Senate as they voted against Bill C-48. We'll see what happens when it comes back to the House.

We talk of an “Ottawa-down” approach. Can we let the north make the environmental and economic decisions instead of “Ottawa knows best”?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Personally, I hope you will read the letter from Premier McLeod, and from Grand Chief Mackenzie, who wants this bill through expeditiously.

As I said, there are many things in the previous bill that are very important, that northerners want to get on with. I think you will recall that the fusion of the four boards was a total surprise to people and it landed in court almost immediately. Northerners, the indigenous governments, did not see it was in their best interests, so it went immediately to court. We are sitting with that injunction now, which is also preventing the good things that were in Bill C-15.

We know you'll be hearing from witnesses. I hope you will be persuaded that this is indeed the best way forward, to get this bill done as quickly as possible so that the good things that were in the devolution bill go forward but that we are no longer bound by that injunction that has prevented the fusion of the four boards.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

I did read the letter from Bob McLeod. It had no mention of the moratoriums.

I've been up to Nunavut. I've been to Whitehorse. Everyone up there is just flabbergasted about this. They are. You've shut down that area.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I would like to just remind the member that, at that time, there was absolutely no drilling going on. There was not even anticipation of any drilling in the short or medium term. The price of oil was at an all-time low. It was, again, viewed to be a good time to get the science done, and for us to determine the risk and make sure that we had the science that would help us, should there be a spill or different things.

Things have changed, with climate change, with the storms, with all of the things that are different in terms of open water that used to be ice. This is a really important opportunity now to work with our partners to not only determine the risks but also the solutions, so that after the five years, we can determine whether it's safe to move forward and take that decision with our partners.

It was viewed that, in terms of assessing the risk, this had to be done at that time with our American partners—both for Alaska and for the Canadian Arctic. This decision needed to be taken, because the science needed to be determined, and the indigenous knowledge, that would help us take a good decision.

[The Vice-Chair, Conservative, Cathy McLeod]

You have 30 seconds.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

That's fine. I'll pass my time on. Thank you.

[The Vice-Chair, Conservative, Cathy McLeod]

MP Cannings, go ahead.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Thank you.

Thank you, Minister, for being before us today.

Here we are, weeks away from the end of this Parliament. The Mackenzie Valley portion of the bill was foreseen before the election, yet it has taken four years for us to get to this place. I'm just wondering why the delay. We had the draft legislation completed in July 2017, and then it was 16 more months before we saw the legislation here in the House of Commons.

Now, we're rushing it through. We have one day of witnesses and a whole list of witnesses who aren't here: the Akaitcho first nation Salt River, Northwest Territories Métis, the K'atl'odeeche First Nation, the Northwest Territories Chamber of Commerce, the Dene Nation, Alternatives North and Ecology North. I think all of these people would have been valuable to hear, yet because we're in such a rush...and we just heard what's going on in the Senate. What are the chances that this will even get through the Senate, with this time element?

When I see this bill, which is two very different pieces of legislation stuck together, with very different people supporting and not supporting it, I wonder why the decision was made to tie them together. I'm guessing that might have been some of the cause of the delay. This is an important piece of legislation that many of us want to see pass. We'd all like to see devolution in the Northwest Territories, as you say, so that the good parts of Bill C-15 are tied up.

I'm wondering if you could comment on that whole time element. I don't know. It boggles my mind.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Thank you for that.

I think that is what happens when we co-develop, and we go out and consult. It takes time. The consultations with stakeholders were launched in the fall of 2016. They had a draft legislative proposal. I think to most northerners, this is just tidying up the problems that were in Bill C-15, particularly distribution of the boards. That's what landed in court. They wanted the rest of it to go through, but we wanted to make sure.

The Government of Northwest Territories, industry, the management boards themselves, and also indigenous governments have all been consulted on this. That's why it's resulted in the letter from Premier McLeod and Grand Chief Mackenzie, to say, let's get on with this and get it done, because it's a technical piece. It is just fixing a problem that landed in court, so we can get out of court and go forward with the good stuff.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

I'm guessing here and I want your comments, but it seems to me that tacking on the offshore drilling moratorium added a lot more time to that consultation. I'm hoping, but maybe not. This was in court. There was an injunction. We knew we had to do something with it. We all wanted to move ahead with devolution. I know consultation takes time, but it just seems we're stuck with a very rushed process here that may or may not be successful.

I can't find anything in this bill that talks about providing funding assistance to intervenors, a piece that we see in Bill C-69, which I think is very important. I think a lot of first nations and other intervenors would find it essential to something like this. Why isn't that included in this legislation?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

The northern participants program exists on its own to make sure that people can be involved in consultations in person. That continues and that is always the way we operate in the north. That isn't a change because that already exists.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

It exists outside of this legislation.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

The program does, yes.