Indigenous and Northern Affairs Committee on May 16th, 2019

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you, Minister.

I believe our final round will be with Mr. McLeod.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you, Madam Chair. This is an interesting discussion.

The member across has pointed to one road in the Beaufort Delta area. Since we've taken office, we've redone the Fort Smith Highway, something that has been on the drawing board for us in the north for 20 years. We are going to start the construction of the Whati road in September, with a joint venture company that's going to be owned by the Tlicho Government.

We are doing work on the Mackenzie Valley Highway, a highway that hadn't been touched by the previous government for their whole term. We're working on the Taltson dam. We're doing the studies that are going to help us determine what investments are going to be done there. We're working on Slave geological province corridor. All of these things are moving forward, and it's really exciting.

However, when we do these initiatives, it has to be a whole approach. When the Inuvik to Tuk highway was done.... I still get the questions: Why didn't the federal government do a strategy to ensure that everything was looked at? Why is it that now we are scrambling for parking lots or campgrounds to help the hotels get going? None of that was taken into consideration. I think that was a missed opportunity that we're trying to play catch-up on. It has to be addressed.

I think that, most of all, these decisions are going to bring certainty. As I was saying before, governments of all levels agree on this. More importantly, industry agrees. Industry has said that they need to see resolutions of the land tenure issue. They need to see resolution to self-governance. They need to see certainty in their regulatory process. Would you agree that this will bring that?

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

Thank you for that, as always. Your insight as to what is needed in your region is so important, and I think you're absolutely right. This is the way to get to certainty so that projects aren't stopped. My job is to keep this out of court and I think this is the way forward such that everybody is clear in terms of the processes. Then when decisions get taken they get to happen.

[Michael McLeod, Liberal, Northwest Territories, NT]

My next question is regarding devolution.

Is this piece that we're working on now or that we're looking at bringing forward going to help us in the discussions regarding devolution with the people of the north?

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

I think people felt that this had held things up because of that surprise in Bill C-15 that no one had asked for, but I think we will now be able to move forward.

[Michael McLeod, Liberal, Northwest Territories, NT]

I have one question and I think Mr. Cannings touched on this.

We still have indigenous governments in the Northwest Territories. We have 14 sets of discussions going on at different tables regarding land claims and self-governance. I know that not everybody wants to be part of a larger board. In fact, there are some indigenous governments that would like to see their own resource management authority in place. Is there room in this process to allow for those kinds of discussions to happen?

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

I think we start every discussion with an open mind as to what works best for the people affected by the decisions taken by the boards, or all of that. That's for the groups to have that conversation amongst themselves and decide what works best for them. I think that taking decisions as a region has been important, but again, it is a matter of our going forward in a way that the collective best interests are seen through.

[Michael McLeod, Liberal, Northwest Territories, NT]

I have one quick question. I heard the comment from the other side that decisions about the north have to be made in the north. Does this allow us to have the comfort that these decisions on regulatory projects, reviews, assessments and roads and everything else will be made in the north through this mechanism?

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

That's the thing that people don't really understand about some of the boards and who the federal government appoints to the boards, or the territorial government, or the indigenous governments. I think we've been very clear that we only appoint people who really have the support of northerners. It is, I think, going forward, a really collaborative approach to make sure that northerners have the say and take the decisions.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you, Minister.

I understand you had agreed to an hour. We appreciate your time. We will suspend in order to allow the minister to leave.

[The Vice-Chair, Conservative, Cathy McLeod]

I call this meeting back to order.

We can apparently hear testimony without everyone being here, without quorum, but we cannot have any motions until we have quorum.

We have one of our panellists by video conference. We also have the Hamlet of Tuktoyaktuk. We are having some challenges getting the Dehcho First Nations' Grand Chief, Gladys Norwegian. We're doing our best to try to get her in, but what we will do is start our testimony with the video conference.

Mr. Wright, if you could go ahead for 10 minutes, that would be great.

[David V. Wright, Legal Counsel, Gwich'in Tribal Council]

Good morning, distinguished members of the committee.

My name is David Wright and I am presenting this morning on behalf of the Gwich'in Tribal Council.

Grand Chief Bobbie Jo Greenland-Morgan sends her regrets but sincerely thanks you for the invitation and welcomes this opportunity to provide input on Bill C-88. I should add that I also regret being unable to attend in person. If there are any technical difficulties during my submission, feel free to stop me while we sort those out.

By way of background, I was formerly in-house legal counsel with the Gwich'in Tribal Council and am currently assisting on this particular matter. I intend to be very brief with my remarks, recognizing the time constraints, but I welcome any questions you may have as we proceed.

I'll begin with a few short contextual, informational points about the Gwich'in before moving on to three succinct points about Bill C-88.

As many of you would know, the Gwich'in are North America's northernmost first nations people. Since time immemorial, the Gwich'in have occupied traditional territories across what is today Yukon, Northwest Territories and Alaska. In 1921, the chiefs and headmen of Gwich'in, Fort McPherson and Tsiigehtchic—what was formerly known as Arctic Red River—signed Treaty 11 with representatives of the Crown. In 1992, the Gwich'in signed the Gwich'in Comprehensive Land Claim Agreement with Canada and the Government of Northwest Territories.

The Gwich'in Tribal Council, which I'll refer to today as the GTC, was established in 1992 to represent the Gwich'in in regard to implementation of the land claim agreement and protection of Gwich'in rights and interests in the Mackenzie Delta region and beyond. Since signing the land claim agreement, the GTC and the four community-level land claim organizations—typically referred to as designated Gwich'in organizations or DGOs—have been working extremely hard to implement the land claim.

Similar to the Tlicho and the Sahtu, the Gwich'in have a treaty right to co-management. This includes requirements in chapter 24 of the land claim that establish the Gwich'in Land and Water Board.

With respect to Bill C-88 specifically, the GTC is present today to voice its support for swift passage of this bill. I'll make three specific points, all in relation to part 1 of the bill, which is the part dealing with the Mackenzie Valley Resource Management Act.

The first point is that passage of Bill C-88 in a timely manner has great importance in terms of Crown-indigenous relations and reconciliation. Your review of Bill C-88 is taking place within this broader context of implementation of land claim agreements.

Your review of Bill C-88 and its implementation context is part of what has not been a smooth or straightforward journey for any of the treaty parties. Canada has lost the trust of indigenous groups at many turns. There are, of course, numerous examples of this, unfortunately, but certainly a clear case in point is the problematic changes that Bill C-15 attempted to bring in. I am speaking, of course, about the creation of the super-board and the associated elimination of the land and water boards of the Gwich'in, Tlicho and Sahtu.

As you know, the current government committed to eliminating these problematic Bill C-15 changes. This is an extremely important commitment made by Canada to the indigenous communities of the Northwest Territories. It represents an important step towards restoring trust. Indeed, the consultation process on Bill C-88 has actually helped restore some of the trust between Canada and the GTC. That trust would be eroded by any further delay, or at worst, failure to pass this bill in a timely manner.

As an aside, a significant amount of consultation on this bill has already taken place, as I am sure representatives from Canada will tell you this morning. Away from that government-to-government negotiation, the GTC and the board of directors of the GTC have been working hard to review and deliberate on the changes proposed in this bill.

The second point is that while the GTC will leave it to the Tlicho this afternoon to discuss the litigation and the court injunction barring implementation of the super-board, the GTC reiterates that it was very pleased with the result obtained by the Tlicho in court. The GTC sees passage of Bill C-88 as a critical next step.

If Bill C-88 is not passed, not only will Canada not have fulfilled its commitment to Northwest Territories indigenous communities, but these communities will be forced back into time-consuming, expensive, acrimonious litigation, all adversely affecting that treaty relationship and the broader reconciliation project. Further, this would generate regulatory uncertainty that benefits no one, as the architecture for project reviews in the Mackenzie Valley would then remain fluid.

Bill C-88 is a step toward certainty in the Mackenzie Valley, and that is a step that should be taken at this time in the view of the GTC.

Third, and finally, for members of the committee interested in reforms that are not included in Bill C-88 in its present form, the GTC would respectfully submit that now is not the time to pursue such changes. Rather, now is the time to pass the important changes in Bill C-88, particularly part 1, so that the Northwest Territories modern treaty partners can move forward beyond the threat of the super-board and the toxicity of litigation.

However, members of the committee will, no doubt, be heartened to recall that an opportunity for further review of the Mackenzie Valley Resource Management Act is in the offing. As I believe you've heard from members of this committee, and other witnesses, further review of the MVRMA is coming as part of the five-year post-devolution review of the legislation, and a previously announced broader review of the legislation.

For example, if members are interested in including explicit reference to the United Nations Declaration on the Rights of Indigenous Peoples, that could be part of this forthcoming review. Similarly, the review will likely take place at a time when there's finally certainty with respect to changes that may come through the proposed impact assessment act, for the regime in southern Canada. For example, changes with respect to timelines, factors to consider in an assessment and decision-making parameters could all be part of that later review.

As such, it will make sense to revisit the MVRMA at a later time, to ensure, perhaps, proper alignment between northern and southern project assessment regimes.

All this is to say that there is this release valve, or parking lot, if you will, that exists right now for ideas that go beyond the current version of Bill C-88. Discussion about potential inclusion of those ideas in the bill is, respectfully, inappropriate at this time and would be better directed towards this future process, which we expect will be a process in which indigenous communities will fully collaborate.

Those are the prepared submissions of the GTC today, but I'm more than happy to discuss any of this during the question and answer period. I would note that if any questions are particularly technical or political in nature, I may refrain from answering, but will respond at a later time, after we are able to discuss with the GTC leadership and technical staff.

Thank you. Mahsi cho.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you, Mr. Wright.

I do understand that we now have Dehcho First Nations and Grand Chief Gladys Norwegian available by video conference.

Thank you for joining us. You have 10 minutes for a presentation, and then the committee will be going into questions and answers.

Go ahead.

[Grand Chief Gladys Norwegian, Dehcho First Nations]

Thank you very much, and good morning to everyone. I'm very happy to get some time to present this statement. I'll get right into it, since time is of the essence.

Just to give you a little bit of background, I am Grand Chief Gladys Norwegian, elected to represent the Dehcho First Nations. We are a regional body representing eight member first nations and two Métis locales in the Dehcho region of the Northwest Territories.

The Dehcho First Nations communities are connected through language, cultural beliefs, practices, genealogy and principles. We are part of the Dene nation and have lived on our homeland and according to our own laws and system of government since time immemorial.

Our homeland comprises the ancestral territories and waters of the Dehcho Dene. We were put here by the Creator as keepers of and guardians over our waters and land. We therefore share responsibility in managing the land.

We understand that the committee is here today to consider Bill C-88, which, among other things, incorporates the proposed amendments to the Mackenzie Valley Resource Management Act. I'm here to share our thoughts on those amendments. These amendments would have significant impact upon the way our land, resources and rights are impacted by development occurring within the territories of our member first nations. We appreciate the opportunity to share our view.

I would like to start by saying that on a general level Dehcho First Nations has not been a party to the Mackenzie Valley management regime. We're still negotiating with Canada on land and resource issues in our region; however, in the meantime we are made subject to the MVRMA and accordingly must deal with what is now before us.

With those points noted, I would like to say that we believe the proposed amendments are positive and are a move in the right direction. They will, if they come into force, allow for better environmental review and protection measures for the developments that are occurring within the Dehcho region.

Most notably, they will reverse the unacceptable amendments of 2014 that would have eliminated the regional co-management boards. These boards were negotiated as part of the modern treaties, but the previous government attempted to replace them with a single super-board. Those amendments are now subject to a successful injunction brought by our neighbour, the Tlicho Government, who are a party to the modern treaty and who are supposed to be a partner in the MVRMA process. We agree that the super-board should never have been put into the law and that those provisions must be reversed.

The amendments before you in Bill C-88 now make it clear that the members of the board appointed to a hearing panel will include indigenous government appointees equal in number to other appointees named by public governments. In making this provision, the proposed amendments will help to restore balance to the way the MVRMA operates and will ensure that the voice of indigenous board members will be heard. This point cannot be overstated.

Responsible management of our land and resources is a sacred duty for our people. We are prepared in the context of our treaty relationship to work with other governments, but we will never again be silenced and sidelined.

The new amendment also creates a cost-recovery scheme against proponents and an administration enforcement scheme for development certificates that is backed by fines and other penalties. From DFN's perspective, first, this will prevent hesitant or less serious proponents who lack a solid business case from moving ahead with regulatory applications. Second, this will make sure the regime is enforced and that developments move forward in accordance with specific terms and conditions. Terms and conditions of DFN and others have the opportunity to influence, under the amendments. The amendments enable intervenors before the board, such as DFN, and to seek changes to develop certificates to impose conditions on an already-approved project.

Notwithstanding the positive aspects of the bill, in the remaining time that I have here today, DFN would like us to put forward a few recommendations on the following topics.

I didn't start timing myself, so I just wonder how much time I have.

[The Vice-Chair, Conservative, Cathy McLeod]

You have three and a half minutes.

[Grand Chief Gladys Norwegian]

Just very quickly, I wanted to talk a bit about proposed section 90.31 of the proposed amendments, which allow for regulations to be developed that would set out requirements for any consultation that is to be undertaken by developers or proponents when it comes to the issuing, amending, renewing, suspending or cancelling of permits or authorization. DFN has already provided comments to CIRNAC on this, but to reiterate the essence of those comments, DFN believes, in accordance with UNDRIP—in particular article 3—that it has the right to self-determine and this includes being able to define and determine what meaningful consultation and accommodation should look like and how it should be carried out.

Also, all consultation must be carried out by the Crown in good faith and with the intention of substantially addressing the concerns of the affected first nation party. The Crown must also make all good-faith efforts to substantially accommodate any concerns that the first nation has about the decision, action and subsequent issue. This must always be the case, in any consultation, but what the process is and how it's carried out should be defined by the first nation community whose lands, resources and rights stand to be affected.

Another part is on proposed section 117.1, but I think I will just stop here and perhaps submit this statement because I feel that I'm running out of time and I'm just trying to rush through everything else.

How is that?

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you, Grand Chief.

You can certainly submit your remaining remarks in writing. We'd be very pleased to receive them. During the question and answer period, hopefully, we'll get further into the details that you wanted to chat about, but please do submit the additional recommendations.

We will go on now to Mayor Gruben, from the Hamlet of Tuktoyaktuk, for 10 minutes.

[Merven Gruben, Mayor, Hamlet of Tuktoyaktuk]

Good morning to you, and good morning to our people in the western Arctic.

Thank you for giving me the opportunity to speak on Bill C-88. At first, I did not support this bill, but after some discussions with my NWT colleagues, in particular our good friend Premier Bob McLeod, I do support it but with a strong statement that, moving ahead, full discussion and consultation is taken with our people of the north regarding future decisions and legislation that affects us. For example, early in the current government, Prime Minister Trudeau put in place, without consultation with us, a crippling offshore moratorium that was imposed on us without one word beforehand.

Furthermore, we should be getting the shares or royalties from any developments going forward, similar to the provinces.

We may also be faced with the effects of the currently planned Bill C-69, which may make it harder and harder to develop and bring about economic development throughout our region, and throughout Canada.

To shed some light on why I wanted to be here to speak in person, it's always better to see who you're talking to. Having said that, it's always better to see what you're talking about, so I really invite each and every one of you to come up and take a look at what's going on. Take a look at what your decisions are doing up in the north, in our region. Come and take a look and live in our shoes for a while and see if you can live like that.

Tuk has long been an oil and gas town. Since the first oil boom, or the whalers hunting whales in the late 1800 and early 1900s, we have grown up side by side with industry. We have not had any bad environmental effects from the oil and gas work in our region, and we have benefited from the jobs, training and business opportunities that have been available when the industry has worked in Tuk and throughout the north, the entire region.

Never in 100-plus years has the economy of our region, and the whole north, looked so bleak for the oil and gas industry, and for economic development, generally. All the tree huggers and green people are happy, but come and take a look. Come and see what you're doing to our people. The government has turned our region into a social assistance state. We are Inuvialuit who are proud people and who like to work and look after ourselves, not depend on welfare.

I thank God we worked very closely with the Harper government and had the all-weather highway built into Tuk. It opened in November 2017, if some of you haven't heard, and now we are learning to work with tourism. We all know that's not the money and work that we were used to in the oil and gas days that we liked.

I see the industry coming back. I support this to hopefully make things smoother for us a little further down the road when it does, as long as Bill C-69 doesn't throw a monkey wrench into things, as it looks like it will.

If you want to discuss Bill C-69, I could come back and give you a longer discussion, but as it is, thank you for your time.

[The Vice-Chair, Conservative, Cathy McLeod]

I also want to acknowledge Councillor Jackie Jacobson is here with you.

[Jackie Jacobson, Councillor, Hamlet of Tuktoyaktuk]

Thank you, Madam Chair.

[The Vice-Chair, Conservative, Cathy McLeod]

Great, thank you.

Because we have someone on teleconference, on video conference and in person, if, when you're doing your questions, you could be fairly direct in terms of who you'd like to respond, it will make it a little easier.

We will start with MP Michael McLeod.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you, Madam Chair.

My sound system cut out halfway through Merven's presentation, but I think I have the gist of it.

I want to say welcome to everybody. Hello to the grand chief from Dehcho. It's good to hear your comments.

I have a little bit for everybody here, but maybe first of all I'll just ask Gladys Norwegian, the grand chief, as to where their discussions are on the regulatory management system that they're talking about. I know that Dehcho has representatives on the Mackenzie Valley Environmental Impact Review Board, but at the same time, they're midstream in negotiating self-government and land claims and have had discussions on a different option or a different design of regulatory management. Maybe I could just get her to make that point so we know that not everybody in the Northwest Territories operates under the same system.

[Grand Chief Gladys Norwegian]

Just to be clear, what is your question?

[Michael McLeod, Liberal, Northwest Territories, NT]

I'm asking you to make a point, if you could, on the Dehcho aspirations in the regulatory process. I heard over years that there was a desire for an independent resource management authority.

Is that correct?

[Grand Chief Gladys Norwegian]

How shall I answer this? That was the discussion back about a year ago. Definitely we have not gone back to seriously discuss it, so at this point I'm not really sure and I don't want to answer the question until we have a serious discussion about it again.