Indigenous and Northern Affairs Committee on May 16th, 2019

[Yvonne Jones, Liberal, Labrador, NL]

Thank you, Madam Chair.

I'd like to thank all of our guests for being here today, and for your presentations. I'm going to direct my question to Mr. McCrank and Mr. Campbell.

First of all, Mr. McCrank, you talked about merging boards. You felt that it was the right direction to go in at the time, but you provide us with no justification of where that recommendation would have come from. We know that since 2014, indigenous governments in the Northwest Territories have not supported that recommendation under the previous bill.

Do you feel that not allowing indigenous governments to have the right to make those decisions and recommendations but to have them in place is the right process to go through? I'm just appalled that there was no way you could justify the recommendation you put forward.

[Neil McCrank]

In the entire review of the regulatory system, particularly in the NWT, and in the round table discussion that I held with all of the people including indigenous groups, this recommendation seemed to be justified. It clearly has been misinterpreted as meaning an attempt to reduce the influence of people in the north. That's not what the recommendation was.

The recommendation was for that influence to be brought to bear at the appropriate time during the land use planning stage. Then, following that, the regulatory bodies would deal with the technical issues that most regulatory bodies on the face of the earth deal with.

[Yvonne Jones, Liberal, Labrador, NL]

Okay.

The only thing I want to ask you, Mr. Campbell, is whether you support the United Nations Declaration on the Rights of Indigenous Peoples. What Bill C-88 is doing is giving those rights and protections to indigenous governments, to ensure that they have a say in the activity that happens in their land claim areas. Do you support that declaration? In doing so, do you support the amendments in Bill C-88?

[The Vice-Chair, Conservative, Cathy McLeod]

It's a big question for a very short answer.

[Joseph Campbell]

Yes.

[The Vice-Chair, Conservative, Cathy McLeod]

There you go.

Thank you to all of our witnesses. We'll suspend and bring in the next panel.

[The Vice-Chair, Conservative, Cathy McLeod]

We're recommencing our hearings into Bill C-88. I'd like to welcome our guests, both Premier McLeod—and I'd like to note there are three McLeods sitting at this table—and the Tlicho Government delegation, which includes Grand Chief George Mackenzie, Chief Alfonz Nitsiza, Paul Bachand and Bertha Rabesca Zoe.

We will start with Premier McLeod. It's a very important bill for your community. You have 10 minutes to present, and as you know, there will be a period of questions and answers after all the presenters.

Welcome.

[Bob McLeod, Premier of the Northwest Territories]

Thank you, Madam Chair. I should note that if we had got you to move to the Northwest Territories we would have had a real McLeod government.

Good afternoon. Thank you for the invitation to appear before the standing committee today as you review Bill C-88, an act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act. As you review this bill, I would like to share with you some recent Northwest Territories history that is specific to the Northwest Territories offshore and the Mackenzie Valley Resource Management Act.

The Northwest Territories is home to 44,000 residents, who live in 33 communities spread out over more than 1.3-million square kilometres. We are a unique jurisdiction in which indigenous and non-indigenous people live, work and govern together in the same communities, and where half of our population identifies as being first nations, Inuit or Métis. The result of this combination of indigenous and non-indigenous people living and working together is a public government where actions and decisions are informed by and include northern indigenous views and priorities from the outset.

A large part of our territory's modern history can be linked to resource development dating back to the 1920s, with the discovery of oil in the Sahtu region. Today our economy is still heavily reliant on resource development, with mining, oil and gas accounting for more than 25% of our gross domestic product.

Since 1984, the governments of Canada and the Northwest Territories have been party to six settled indigenous claims. Most of these agreements are land claims that formally recognize the rights of indigenous governments to manage and benefit from the ownership of land and resources in their region. The rights of the Dene and Métis of the Mackenzie Valley are reflected in the Mackenzie Valley Resource Management Act, which was enacted in 1998 and provides an integrated, co-managed land and water management regime throughout the Mackenzie Valley.

The MVRMA has been a world-recognized model for public-indigenous co-operation in the management of lands, waters and other resources in the Northwest Territories for more than 20 years. The co-management model emerged from the three constitutionally protected land claim agreements of the Mackenzie Valley. We've provided an “MVRMA at a Glance” handout, and also a map of the territory. The MVRMA applies to all Northwest Territories areas outside the northernmost region, the Inuvialuit settlement region, which takes a different approach to resource and land management.

The MVRMA ensures both that there is transparency during project reviews and that economics, the environment and culture are considered during project assessment. The MVRMA also provides for the review of government-led infrastructure projects and holds both our governments to the same high standard of accountability that industry is held to.

The Government of Northwest Territories wants to ensure we have a progressive regulatory system that works for the people of the Northwest Territories and governments and will also attract industry investment. Bill C-88 seeks to advance numerous modern amendments to the MVRMA that were first passed in 2015, in Bill C-15.

They include the authority to direct regional studies that can examine the effects of a development at a regional scale, the authority to develop administrative monetary penalty regulations that can be used to promote compliance, and the establishment of development certificates, which are becoming common tools across Canada to ensure measures from environmental assessments and impact reviews are carried out.

This was the intention when the Government of Northwest Territories and the Government of Canada signed a devolution agreement in 2013. However, those Bill C-15 amendments never came into force due to a court injunction brought about because of a section of Bill C-15 that would have consolidated the four regional land and water boards into one larger board.

Bill C-88 seeks to advance the amendments from Bill C-15 again, while preserving each of the regional land and water boards. We don't see Bill C-88 as a partisan bill. It ensures that land claim agreements are fully implemented by maintaining the regional boards, and it also has modern amendments with multi-party support. As you can see, the MVRMA is also quite unlike other project assessment laws that are currently being considered.

The MVRMA is well established and has allowed indigenous and public governments to work together for the past 20 years to manage the development of land and resources. The proposed amendments to the MVRMA in Bill C-88 would increase certainty around responsible resource development in the Northwest Territories. That certainty is something our territory needs as we continue to work with the indigenous governments in the territory to attract responsible resource development.

I would also like to touch briefly on Bill C-88's proposed changes to the Canada Petroleum Resources Act, or CPRA. The CPRA is the law that outlines how petroleum exploration and development rights are issued in the Arctic Ocean, which is still under federal jurisdiction.

Unfortunately, Canada unilaterally imposed a moratorium on new offshore oil and gas licences in 2016 without consulting either the indigenous or public territorial governments.

Although disappointed with the way the moratorium was imposed, we also recognize that Canada has a need to provide a legal basis upon which to implement this moratorium.

As a government, our current focus is moving forward towards co-management of the Northwest Territories' Arctic offshore waters and resources. We are working with Canada and other partners on the five-year review of the moratorium. We also want to ensure that the review is evidence-based and evaluates the different regions of the Arctic individually, as the Beaufort in particular has benefited from many years of study.

We fully expect this CPRA provision to be a short-term measure and expect Canada to fulfill its commitment to developing an offshore co-management regime comparable to the Atlantic accord's. We need this accord to ensure that northerners will be decision-makers on oil and gas exploration and development in our offshore, including when decisions are made about whether, when, where and how it happens.

The Government of the Northwest Territories supports swift passage of Bill C-88. The implications of not proceeding with the bill within the lifetime of this government and retaining the status quo are significant. Amendments to the MVRMA have been on the books for five years, and we don't want any more uncertainty associated with our regulatory regime. Resource developers are contemplating investing in developing the Northwest Territories' rich natural resources, and everyone benefits from regulatory certainty.

The Government of the Northwest Territories and indigenous governments are working together to build our territorial economy. The passage of Bill C-88 and the preservation of the regional land and water boards, as committed to in land claim and self-government agreements, is an important part of this.

Thank you very much.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you, Premier McLeod.

We'll now go on to the Tlicho Government.

Grand Chief Mackenzie, are you going to be the one presenting?

Go ahead.

[Grand Chief George Mackenzie, Tlicho Government]

Thank you, and good morning. I'll just get into my presentation.

On behalf of the Tlicho Government, thank you for inviting us here to Ottawa to address Bill C-88. It is very important for the Tlicho chiefs to all be here personally to emphasize how vital this bill is for our communities, our territories and our treaty relationships.

I'm here today with Chief Nitsiza of Whati, Chief Wedawin of Gamèti, and Chief Football of Wekweèti. The law guardians of the Tlicho, Bertha Rabesca Zoe and Paul Bachand of the Pape Salter Teillet law firm are being made available to respond to technical legal questions that might be posed.

We view this bill as affirming a direct treaty promise to the Tlicho people. We urge the community to move swiftly and decisively to ensure that Bill C-88 comes into force during the current session of Parliament.

Regarding the treaty right to co-management, it is necessary that the committee understand the significance of the Tlicho agreement and its relationship to Bill C-88. The Tlicho agreement was signed in 2003 and has been in force since 2005.

The Tlicho agreement is key to keynote documents in the modern history of the Tlicho people. It is a modern treaty that enjoys the protection of section 35 of the Canadian Constitution. It sets out our rights and jurisdiction on Tlicho land and throughout our traditional territories. The signing of our agreement more than 15 years ago was a landmark moment for Tlicho people, for the Northwest Territories and for all Canadians.

The Tlicho agreement confirms that the Tlicho Government has jurisdiction on over 30,000 square kilometres of Tlicho land. Tlicho citizens also exercise aboriginal rights, including harvesting rights, throughout all our larger traditional territories of Mowhi Gogha Dè Ni?i?tlèè. In the heart of Mowhi Gogha Dè Ni?i?tlèè is the environment and resource management area of Wek'èezhii, which covers about 160,000 square kilometres.

The co-management of natural resources in Wek'èezhii is an essential part of the Tlicho agreement. Co-management is essential to address the overlapping interests and jurisdiction of Tlicho Government, other indigenous government and public government.

Protecting the environment while promoting responsible development and use of resources is a concern to all the responsible governments in the north. Both sides of that equation are very important to us. Under the Tlicho agreement, the Tlicho Government is co-manager and joint decision-maker with respect to lands, waters and renewable and non-renewable resources within Wek'èezhii.

The Tlicho agreement provides for co-management in part through the establishment of regional land, water and renewable resource boards. The Tlicho Government, other IGOs and public government are all represented.

The Tlicho Government has the treaty right to appoint 50% of the members to all co-management boards within Wek'èezhii. This includes the Wek'èezhii Land and Water Board, which is the centrepiece of the management regime for land and water in Wek'èezhii.

We are here today on behalf of the Tlicho government, to ensure that this effective and representative co-management system is preserved and strengthened in accordance with our modern treaty.

I will now pass the microphone to Chief Nitsiza of Gamèti, who will continue our presentation.

Thank you for listening.

[Chief Alfonz Nitsiza, Tlicho Government]

Thank you, Grand Chief, and thank you, Madam Chair.

The constitution and mandate of the Wek'èezhii Land and Water Board is set out in the Tlicho agreement. The Wek'èezhii Land and Water Board has a dual regulatory mandate, which is the conservation of the environment and the development and use of resources. The Tlicho agreement required Canada to establish the land and water board through legislation. lt did this in 2005 through the Mackenzie Valley Resource Management Act, after extensive consultation with the Tlicho Government.

In our view, there are three key characteristics of the Wek'èezhii Land and Water Board that you need to know. lt implements treaty rights and represents co-management in action. It has built capacity, experience and the trust of Wek'èezhii residents. lt has been documented that it performs its function well and operates efficiently and effectively in the public interest.

The Northwest Territories Devolution Act was passed in 2014. The act would amend the Mackenzie Valley Resource Management Act to eliminate the Wek'èezhii Land and Water Board and the treaty co-management system without meaningful consultation with the Tlicho Government or other indigenous governments.

The Wek'èezhii Land and Water Board and other boards in the Northwest Territories would be replaced with a single super-board. Instead of appointing 50% of the board members, as our Tlicho agreement requires, the Tlicho Government would appoint only one out of 11 members on this super-board. The Mackenzie Valley Resource Management Act amendments could allow decisions about Wek'èezhii to potentially be made by a panel of the super-board that could lack Tlicho Government appointees entirely. This was unacceptable to us. Tlicho were promised something different in their treaty from what was designed in the Northwest Territories Devolution Act. The treaty promise was broken with no good reason, so we went to the courts for justice.

The Tlicho Government immediately sought an injunction from the Supreme Court of the Northwest Territories. That injunction was granted. It prevents the Mackenzie Valley Resource Management Act amendments from coming into force, and remains in effect to this day. You should also know that the underlying lawsuit also remains active, pending the results of this legislative process. The injunction will remain in effect until either a new law is passed or our lawsuit regarding the Northwest Territories Devolution Act runs its course.

There is an urgent need for action. The Tlicho Government hopes that Bill C-88 can be passed by the current Parliament without delay. Otherwise, both starting the legislative process again from scratch and proceeding with our lawsuit against Canada will likely take years. Proceeding with our lawsuit, which is still in its earliest stages, would be a particularly bad result for all stakeholders. ln addition to being long and expensive, failure to resolve this matter co-operatively would damage our treaty relationship and undermine the process of reconciliation as directed by the courts. Long-term regulatory uncertainty for any reason will damage the economy of the Northwest Territories, including within the Tlicho community. This is all avoidable with the passage of Bill C-88.

The Tlicho Government supports the passage of Bill C-88 without reservation. It has been clear that the protection of the Wek'èezhii Land and Water Board in accordance with the spirit and intent of the Tlicho agreement is of the utmost importance to the Tlicho people.

Bill C-88 serves at least three essential functions. It preserves the established and effective regional co-management boards, including the Wek'èezhii Land and Water Board, in accordance with the Tlicho agreement. lt strengthens the co-management system by reintroducing other new provisions that did not come into force because of the injunction. These have broad support from industries and governments, including the Tlicho Government. lt delivers industry the certainty it desires, and will allow us to collaborate with proponents and our co-management and treaty partners to ensure responsible use and development of our shared resources.

[The Vice-Chair, Conservative, Cathy McLeod]

I must ask you to wrap up, Chief Nitsiza. We want to make sure we leave enough time for questions. If you have some final comments, please go ahead.

Do you have any final comments before we move to questions?

[Chief Alfonz Nitsiza]

I think it's very crucial that this bill is passed in the current Parliament. That's why we're here.

Thank you.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you.

Mr. Mackenzie, you have one further point.

[Grand Chief George Mackenzie]

Yes. In conclusion—please, if you don't mind—it is in the best interests of Tlicho citizens, Wek'èezhii and northern residents, and all Canadians, to support and preserve the Wek'èezhii Land and Water Board while finally implementing the other long-awaited improvements to our co-management system, which have been developed through broad consultation for the benefit of present and future generations.

The Tlicho Government encourages the committee to prioritize the passage of Bill C-88 with the urgency that an important treaty commitment deserves.

We again thank the committee for the opportunity to appear before you today, and we hope these submissions assist you in fulfilling your important responsibilities.

We are happy to address any questions you may have.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you, Grand Chief.

We'll start with Mr. Michael McLeod, MP. I'd better be specific about the McLeods.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you, Chairperson McLeod.

Madam Chair, I'm very happy to see all the witnesses who have appeared today from the north. It's really refreshing to have a chance to talk about a very important issue.

This is an issue that's been fairly confusing for a lot of us, because the regulatory process in the north was working well. It was negotiated in land claims. We had agreement from indigenous governments. Industry was familiar with it. The Government of Northwest Territories was working with it. Communities were satisfied. We had comfort that we had a voice.

I'm not sure who asked for a review, who wanted to make the changes. However, today we heard from Neil McCrank, the guy who designed and wrote the recommendations, and his experiences with Alberta—Alberta oil and gas. He doesn't have a whole lot of experience in indigenous issues or indigenous affairs, or any involvement that has included decision-making by indigenous people. He also pointed out an important thing that we have to make note of. His recommendation was to include land use planning before this super-board concept came forward, so it seems that the government of the day cherry-picked one piece and threw it in. That brings us to where we are now.

My first question is to the Grand Chief of Tlicho.

This was an agreement that came forward as part of your negotiations. In terms of trust, what has that done to your government's relationship with the federal government? My second question is, what has it cost you to deal with this issue since 2008?

[Grand Chief George Mackenzie]

Thank you for the question.

I'll turn it over to my legal team to answer that very important question.

Bertha.

[Bertha Rabesca Zoe, Legal Counsel, Tlicho Government]

Thank you for the question.

With regard to the trust question, we were involved in the regulatory amendment discussions from the get-go: me plus my other legal colleagues, and one who isn't here with us today, Arthur Pape. He was very instrumental in the negotiations of the section in the land claims agreement that deals with the regulatory systems.

When Minister Strahl first announced the regulatory reform, it was done to the Chamber of Mines in Yellowknife. The indigenous governments were not invited...that this would be happening. Since that announcement, McCrank was appointed to look at the regulatory system and make recommendations. We were in those supposedly consultation meetings at that time, but we never agreed to have a single board structure. Right from the get-go, our relationship with the government has not been very conciliatory. They said that the agreement allowed for them to do that and we didn't agree on the interpretation of those sections.

Our relationship with the government in terms of the injunction was very costly, as is any court case. The injunction cost the Tlicho Government money and time to do this. When the injunction was granted, the federal government chose to go to the court of appeal. We were in that court of appeal process when the election happened and the Trudeau government came to power. That litigation is stayed right now, but as Chief Alfonz pointed out, there are only two avenues. If it doesn't pass, then we have to consider what the next steps would be.

In terms of trust, whatever little trust we had with the Harper government, it eroded pretty quickly after that. We were always on the record for Bill C-15, when it was going through Parliament, in opposing the single board structure. The Tlicho were very supportive of keeping the Wek'èezhii Land and Water Board in place, and we didn't agree with it becoming just an administrative role. That was going against the spirit and intent of the Tlicho agreement.

[Michael McLeod, Liberal, Northwest Territories, NT]

My next question is for you, Premier. Your comment about “made in the north” is getting a lot of traction—made in the north for the north. I think even my colleagues echoed it this morning. It's important to recognize that some of these suggestions, especially the portion about the super-board, were not in any part made in the north. Even on the regulatory items, although some of them are pretty good and I think we could use the enhancement, it certainly didn't come forward as something the north was asking for.

Today we're doing a couple of things. Once the bill gets passed, it will modernize the changes to the MVRMA and it will address the concerns that the indigenous governments are having. Do you, as the premier, see any benefits of this to industry?

[Bob McLeod]

Certainly we feel it will have significant benefit for industry, because it will increase certainty around sustainable resource development. It also supports implementation of land claim agreements. We all know that both of them go hand in hand. Certainly it will be the biggest benefit to industry. Industry will invest in areas where you have a strong government and you're very clear on what the rules and regulations are.

Thank you.

[The Vice-Chair, Conservative, Cathy McLeod]

Thank you.

Now we have MP Viersen.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Madam Chair.

Thank you to our witnesses for being here today.

Premier, one of the pieces in Bill C-88 is around the changes to the Canada Petroleum Resources Act. It puts in the ability for cabinet to block things that they deem “national interest”. They can block things by invoking national interest. What does that mean to you and what do you think about that?

[Bob McLeod]

It was concerning to us. We feel that we should be treated the same as other provinces or other jurisdictions that have access to tidewater. We should be given the same considerations. The only reason a moratorium was imposed, in my view, was that we're a small territory.

Things have improved significantly since the moratorium was imposed. We are now negotiating with the federal government on co-management of the offshore. We're also negotiating resource revenue sharing on the offshore. As well, we are working together on a five-year review of the moratorium. It's our expectation that with the successful conclusion of co-management, the moratorium will fall off the table, I think, with the negotiators who are at the table: the federal government, the Government of Northwest Territories and Inuvialuit Regional Corporation. The negotiations have started already. We've had several meetings and I think we're making very good progress.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you.

Would you say that Bill C-88 helps build the welcome mat to bring industry to the Northwest Territories?