Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 22 - Evidence
OTTAWA, Monday, December 10, 2001
The Standing Senate Committee on Energy, the Environment and Natural Resources to which was referred Bill C-33, an act respecting the water resources of Nunavut and the Nunavut Surface Rights Tribunal and to make consequential amendments to other Acts, met this day at 9:01 a.m. to give consideration to the bill.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: The Standing Senate Committee on Energy, the Environment and Natural Resources is now in session to hear representations on Bill C-33.
We have this morning Mr. Pierre Gratton and Mr. Michael Hardin from the Canadian Mining Association. We also have with us Mr. Michael Vaydick from the Northwest Territories and Nunavut Chamber of Mines. I might mention that I helped start the Yellowknife Chamber of Mines in 1947, probably about the time you were born.
Let us proceed.
Mr. Mike Vaydik, General Manager, Northwest Territories and Nunavut Chamber of Mines, Mining Association of Canada: I would like to indicate that I was born in Yellowknife when it was a mining town. My dad was a prospector who was quite involved in the mining industry. I worked and lived in all regions of Nunavut for about 15 years. I am now based in Yellowknife and I represent the mining interests in both Nunavut and the Northwest Territories.
The Chairman: Before you go on, the does the mining association cover both diamond mines as well as other mines.
Mr. Vaydik: Yes, and exploration as well as producing mines.
The Chairman: There is no other organization in mining up there?
Mr. Vaydik: No. I would like to talk about the requirements for this legislation. The geology of Nunavut is among the most prospective in the world. Nunavut has already enjoyed substantial production of precious and base metals and its future potential may be more diverse. There is a diamond rush in the Kitikmeot region of Nunavut. Exploration projects currently underway encompass a wide variety of mineral production including gold, nickel, platinum group metals, tantalum and diamonds.
Mineral exploration is a high-risk activity. In the Canadian experience - echoed worldwide - less than one of every 1,000 prospective mineral showings ever results in producing mines. Miners call this "geological risk." Geological risk is well accepted and usually well understood.
More difficult to understand and assess are other forms of risk that increasingly affect the outcome of mineral exploration and development initiatives. I am talking about political and legal risks.
In 1993, the Nunavut Land Claims Agreement was signed. It represents a significant milestone in reducing the political risk associated with mineral exploration and mine development in Nunavut.
What about the legal risk? Can the same thing be said? Unfortunately, we believe the answer is a resounding "no."
Why is this the case? The answer is short and simple: None of the new legislation promised by the Nunavut Land Claims Agreement has yet been passed.
You are aware that this bill before you, Bill C-33, represents both the first of a series of new statutes, as well as the third attempt over the past five years to pass this critically needed water legislation. This is not a record of which Canadians can be proud.
The situation causes more concern when one remembers that there are at least two more key statutes to come. One is to deal with land use planning. The other is to address environmental and social impact assessment.
These unfortunate circumstances mean that legal risk in Nunavut remains high, thereby potentially negating the competitive advantage that Nunavut should be enjoying as the result of having a settled land claim. These circumstances are not conducive to the long-term social and economic well being of the territory and do little to benefit Canadians at large. They are even more frustrating when you remember that a workable statute-based regime of water management existed in the Nunavut settlement area from 1972 until 1996.
The stakes are high because when success does come the benefits can be enormous. Even sustained exploration programs can generate substantial economic benefits; exploration alone brings $125 million to the economy of the Northwest Territories and Nunavut every year - about half of that money is in Nunavut.
These exploration stage expenditures are a good match with the services and facilities that the territories' developing economy is able to provide. They include camp supplies, services, aircraft charters, expediters, hotel facilities and restaurant services. The benefits to Nunavut residence will increase as the business sector in Nunavut develops to better service the needs of the industry.
However, to sustain growth, the needless risk from absence of key regulatory legislation needs to be resolved. This is especially true of a project in Nunavut as they reach more advanced stages.
The current Band-Aid approach may not have inhibited early stage exploration thus far, but neither has it made the process any easier. The absence of clear regulatory procedures is never desirable from an administrative prospective, and even the perception of potential problems may be sufficient to cause companies to think about investing exploration dollar elsewhere.
In fact, CEOs of junior Canadian mining companies have told me of their reluctance to put capital resources at risk in Nunavut until a basic regulatory regime, comparable with other Canadian frontier areas, is put in place. Key elements are access to land, environmental impact assessment and, perhaps most important of all, a regime for regulating water use and waste disposal that goes far beyond the makeshift process now in place under article 13 of the Nunavut Land Claims Agreement.
To appreciate the benefits that Nunavut could enjoy from future mining development, we need only look at the two major diamond projects now in place in the Northwest Territories. The Ekati diamond mine, owned by BHP Billiton, has been in production for about two years and employs about 600 people. Of these, 70 per cent are northerners and, of those, 40 per cent are Aboriginal.
The nearby Diavik project is currently under construction. More than a thousand people have been on-site at peak periods. About 40 per cent are northerners and, of those, half are Aboriginal. During the operation phase, Diavik expects have about 400 to 450 workers and anticipates about 40 per cent of its total work force will be Northern Aboriginal. The company anticipates up to 18 apprentices annually. It will pay about $40 million in salaries annually. It will purchase about $100 million in supplies and equipment annually.
Once both properties are operational, it is estimated that Canada will produce between 10 and 15 per cent of the world's gem quality stones. This is only a partial list of the extensive benefits that diamond exploration has brought to the Northwest Territories economy and to Aboriginal communities in particular. There may be more that I would be glad to discuss at the committee's request.
Unprecedented steps have been taken by mining companies to encourage northern Aboriginal companies to participate in their business. Contracts have been split to allow Northern and Aboriginal companies to bid. Joint ventures with established southern firms are encouraged to help get inexperienced northern firms through the steep learning curve of servicing a large, fast-paced development scenario. Aboriginal businesses are responding as never before. Northern companies are involved in many aspects including, catering companies, trucking ore to the process plant, providing geotechnical services, engineering, surveying, site logistics, construction, welding and steel fabrication and security services. Many of these are either wholly owned by Aboriginal corporations or are joint ventures. Two Aboriginal companies are involved in diamond cutting and polishing.
To indicate how far things have come, there is even talk of equity participation in mining ventures by Aboriginal groups. These developments indicate the scale of benefits that are expected to accrue to Nunavut as they have to the Northwest Territories.
In conclusion, Nunavut has enormous mineral potential that can be developed to help sustain a viable economy. Mining has been and will continue to be a major part of that economy. In 1999, mining contributed about $130 million to Nunavut's economy. Only government is bigger.
Two of Nunavut's three mines will close during next year. To be sustainable, mining needs a competent regulatory environment, both to encourage exploration and to promote projects to production.
Industry worked well under the Northwest Territories Waters Act. It needs a prompt return to a good regime of water management legislation. Bill C-33 must be enacted as soon as possible so that the minerals industry can continue to provide employment and business opportunities to residents and revenue to government at all levels. I urge you to give every consideration to advancing this key piece of legislation to Royal Assent and proclamation.
Senator Cochrane: Tell me about your discussions with the Nunavut government. Are they positive? Do they agree that this Bill C-33 should be passed quickly? Do they feel that this bill suffices?
Mr. Vaydik: My discussions with the Nunavut government have been largely with bureaucrats, not with politicians. I would say generally they were in favour of the passage of water legislation for Nunavut. They understand the importance to the industry of having a good, regulatory framework from which to do business. Certainly my discussions have centred on the fact that it is very difficult for corporate counsel to advise their board of directors when the most important piece of legislation under which a mine operates - a water license - is subject to some question. In my discussions, there has been some sense that it is time to pass the Nunavut Water Act.
Senator Cochrane: Have the bureaucrats and the government been pursuing this for quite a while?
Mr. Vaydik: Mr. Hardin can tell you in more detail how long, but he and I have been pursuing the passage of the Nunavut Water Act for at least five or six years.
Mr. Michael Hardin, General Counsel and Corporate Secretary, Canadian Mining Association: The obligation to pass the bill is an obligation of the Government of Canada pursuant to article 10 of the Nunavut Land Claims Agreement. The principal impetus to move this forward has come from the Department of Indian Affairs and Northern Development.
Mr. Pierre Gratton, Vice-President, Public Affairs and Communications, Canadian Mining Association: Just over a week ago, the Nunavut government also indicated approval - albeit they seek certain amendments to the legislation. If I recall, the representative stressed the need for a water management regime in Nunavut and that it was compromising the investment climate in the territory.
Senator Cochrane: There are already who mines operating - the Ekati and the Diavik. How close are those mines to the area that you are representing?
Mr. Vaydik: They are probably less than 200 kilometres from the border, which is a stone's throw in terms of Northwest Territories and Nunavut distances. In fact, a number of people from Nunavut work at those two mines, which are in the Northwest Territories. By virtue of traditional land use, they have been included in the socio-economic benefit for those mines, even though they are in the Northwest Territories.
Senator Cochrane: How long have those mines been operating there?
Mr. Vaydik: The oldest mine was two years old last month. Just to give you an idea, that one mine alone produces about 30 per cent of the Northwest Territories' GDP. That is from one hole in the ground. That is an amazing statistic.
Senator Cochrane: Will they be held up if this legislation is not passed?
Mr. Vaydik: These mines will not be affected. They are in the Northwest Territories. I was using them by way of an example of what might happen. The concern is that in Nunavut, traditionally there were three mines and two of those mines have already announced they will be closing within the next calendar year.
Senator Cochrane: Are they closing if the water problem is not solved, or are they closing, period?
Mr. Vaydik: Yes. The Polaris mine has run out of ore. The other mine is closing because the price for zinc is so low and they cannot make a go of it.
Senator Cochrane: It has nothing to do with this piece of legislation?
Mr. Vaydik: No.
Mr. Gratton: The point we are making is that those two mines, which have been a source of significant employment and revenue to governments and salaries to northerners, must be replaced. The absence of regulatory legislation is hindering their replacement.
Senator Adams: This committee has just come back from holding hearings in the east. Nunavut has been able to have Bill C-6 for the past five or six years. I think it was passed in 1995 or 1996.
Now that we have Bill C-33, have you gentlemen found that the situation could be a little different for the mining companies than it has been with Bill C-6 had nothing to do with Nunavut Territory? Do you think it will be better now with this bill? Will things operate in Nunavut the way they have worked in the territories with the Northwest Territories Waters Act?
Mr. Hardin: I would say that the mining companies are very familiar with operating under the Northwest Territories Waters Act, because up until 1996, the NTWA regulated all water use and waste disposal in both the Northwest Territories and in Nunavut. Many of the provisions and the basic regulatory structure of Bill C-33 are similar to what we already know, understand and work well with under the Northwest Territories Waters Act on the other side of the boundary line.
Industry views the Northwest Territories Waters Act as a functional and workable piece of legislation. Therefore, to see a comparable piece of law come into effect in Nunavut is not only comfortable for us, but it is welcome. For the last five years the system that we knew and worked with for the previous 25 years has been absent, and for that reason we welcome and encourage the speedy passage of Bill C-33.
There are no major problems with Bill C-33 from the industry's point of view. In our written brief, we recommended five potential amendments for consideration, but only the more major issues would have delayed the passage of the bill. Our hope is that the bill will pass and pass quickly.
The Chairman: You are saying that the Bill C-33 is not exactly what you want, but it is better than not having it.
Mr. Hardin: I would go beyond that and say that the bill is pretty darn good.
Senator Adams: I do not know what area of the mining companies claim would have been settled. In Nunavut, we are talking about the rights to 350,000 square kilometres, which is the area for the people - traditional land where they were living before. I do not know how many square kilometres are involved for the people in the community. I have been working with the local politicians and they usually have up to 25 to 30 kilometres. People in the community, or the hamlet, usually had the responsibility and now there is the Keewatin Inuit Association and other organizations that will be responsible. With Bill C-33 passed, will it be easier to negotiate with those people and to partner up with them and the mining companies or would you prefer to deal with the minister? According to Bill C-33, I believe that the minister has 45 days. After 45 days, they have another 45 days to respond.
I want to ensure that the minister has agreed with the Nunavut land claim of the 350,000 square kilometres and future claims for mining or for the use of the water inside that area for the people in the community. I want to make ensure that you understand that some of the people in Nunavut and the NTI are concerned about that, and, before the bill is passed, they want to ensure the minister did not have any responsibility for the area inside the 350,000 square kilometres.
I have a map that shows the area I am talking about, which the people claim is owned by Nunavut and the NTI. You can use the bill to get a water licence for the mining companies in the Nunavut community in the future.
Mr. Hardin: As Mr. Vaydik mentioned in his presentation, we have managed to work under the existing regime for the last five years. We hope that this problem will arise, because it would be a very significant step forward to replenish mining in Nunavut. There may be success in discovering an Ekati or a Diavik or even a smaller diamond deposit, for example, in the West Kitikmeot. As Mr. Vaydik mentioned, there is a diamond rush - the second big staking rush - happening right now because of a series of diamond-diverse kimberlites that have been discovered over the last two years in the West Kitikmeot.
If we were to get a project that was capable of rapid advancement to feasibility and ultimately production, we would have a problem. The problem would be that we do not have a comprehensive, regulatory process to grant a water licence - the key permit that a mining operation needs in Nunavut.
It would be a real impediment to advancing that project forward to feasibility and production, because this bill has not been passed. That is why we want to see the bill passed. We are hopeful that we will have success and there is a strong indication that we will.
Senator Cochrane: Will this bill solve all of your problems? Will it allow you to let another company come in, explore and produce whatever they want? You are saying that this bill will solve all the problems. Is that correct?
Mr. Vaydik: I wish.
Mr. Hardin: The Nunavut Land Claims Agreement, as Mr. Vaydik said, was a great step forward, but it was only the first step. It provides for an up-to-date, comprehensive, integrated resource management process. As a result, it requires at least three pieces of legislation to be passed. The first is Bill C-33, which deals with two of the institutions of public government that are key to mineral resource development: the Nunavut Water Board and the Nunavut Surface Rights Tribunal. Its passage would represent an important step forward and would deal with the present problems that we have in terms of water.
The agreement also requires that two other pieces of legislation be passed, which will come after: One deals with land use planning and one deals with environmental and socio-economic impact assessment. Those bills are also required. To answer your question, it is a three-step process. This is the first of those three critical steps.
Senator Cochrane: If we pass this bill, the other two portions can be put on the sideline for giving permission to companies to develop, et cetera.
Mr. Vaydik: The most important piece of legislation for mining development is a water licence. That is the final permit that a mine needs to operate. As such, it is appropriate that this is the leading bill. The other ones are also important - the land use planning component and the socio-economic impact. In fact, the Nunavut Impact Review Board is operating now, but it is operating without any legislated basis. That leaves things in a questionable state. We would look forward to those other pieces of legislation, but the most important one is the water legislation.
Mr. Hardin: The speedy passage of this bill would be an encouraging sign. The industry has been monitoring the progress of the implementation of the claims agreement since 1993 and has been discouraged by the delays that have taken place. The speedy passage of this bill would be a positive signal to the industry that the full suite of legislation that the Nunavut land claim agreement requires has begun to emerge and come into place.
The Chairman: Senator Cochrane, I suggest you ask those same questions to the minister when he appears.
Senator Adams: Those of us living in Nunavut are concerned. People in the community are concerned because we have had a lot of activity going on in explorations and drilling for over 10 years and nothing has happened.
My concern - and I think Nunavut Tunngavik shares this concern - is that some of the permit fees will go to some of the ministers with a claim for an area of Nunavut. If the minister were not sure, he will be responsible for both the fees with the claim and also the claim for the territory. I think that is what we are mostly concerned about.
I do not know about mining with a claim for the application for the water board from the surface rights. As I mentioned, we have just come back from the east. There is an oil and gas company leasing it and spending millions of dollars in fees for the claim for the one drill. I am wondering whether the mining company would prefer to deal with minister or deal with the people of Nunavut or with people from the water board. In the meantime, it will affect the majority of people from Nunavut.
On the water board, NTI would appoint four people, and Nunavut would appoint two people and the minister would appoint two more. Even with the set-up that way, the minister will still have the power to overrule the claim. Would you prefer it to operate with the water board and Surface Rights Tribunal having a bit more power? With the legislation that has been operating in the Northwest Territories, I do not know exactly how it has worked. Will the minister have the right to make the final decision on the applications?
Mr. Hardin: In my experience, which goes back to 1973 with water licensing in the Northwest Territories, it would be unusual. I cannot think of any instance in which the applicant - the mining company - had any direct contact with the minister. As applicants, we make our application to the Northwest Territories Water Board and now to the Nunavut Water Board in Nunavut. All of the interaction between the applicant and the regulator is to and from the water board, with the appropriate contact with ministerial officials in Yellowknife or now in Iqaluit. We have no direct contact with the minister.
On the issue of ministerial approval of water licences, we have set out our views in the written submission. We are not here to argue for one interpretation or another of the Nunavut Land Claim Agreement. That is an issue between government and Inuit.
From a practical perspective, we do not view the ministerial authority as being negative from the industry's point of view. It should be remembered that it is a narrow authority. The minister has only two options within a closely confined time period. He can sign the water licence. In the overwhelming majority of cases, as department officials testified two weeks ago, the minister has signed the water licences. My recollection is that departmental officials told the committee that in only three instances did the minister send a water licence back to the water board.
If he does not sign the water licence, he cannot amend the water licence or change a single term or condition. He simply returns the water licence to the board for further consideration but must do so accompanied by written reasons. We see this as a reasonable balance and appropriate mechanism to introduce some oversight on the part of an elected official into this highly consequential process.
Senator Adams: The committee heard from the chairman of the water board, Thomas Kudloo, last week. I am not sure whether the ministry appoints two from his office. There is still a subcommittee, similar to what the other water board is using, that acts as some kind of a watchdog to make sure they do their job right. They told us last week that they even have two members appointed from the Department of Indian Affairs and Northern Development.
Are you familiar with that set-up from the department? I am not sure whether he was saying last week that the minister or some department do a bit to make sure those guys do their job and that the water board is working. Are you familiar with that? This is outside the surface rights water board from the Department of Indian Affairs and Northern Development?
Mr. Hardin: I am not personally familiar with how the minister discharges his responsibilities in this instance. That is a question that senators could put to the minister when he appears before you later today. Oversight by an elected official of this type of function is common in other Canadian jurisdictions for matters of this kind.
It is important to remember the legal character of a water licence. Every term and condition of a water licence can be enforced in the criminal courts. As I mentioned previously, water licences are complex and highly technical documents. I have brought a copy of the Diavik water licence to leave with the clerk. This is comparable to what would happen in Nunavut if we had a successful diamond exploration project. This water licence runs over 50 pages and contains hundreds of different terms and conditions. In that context, we do not view ministerial review of the water licence at the final stage, remembering how constrained that review power is as being a desirable thing. We think this is a reasonable way to achieve a balance.
Senator Adams: With regard to the water licence, is that a mining regulation or is it an application for water board surface rights? I want to make sure the one you mentioned is a regulation from the Government of Canada, the paper you just mentioned of 50 pages.
Mr. Hardin: This is a water licence that was issued by the Northwest Territories Water Board. It is one of the most recent water licences that the territorial water board has issued. I brought it to leave with you as an example of the work that the water board has to do and to illustrate the complexity of these matters. These are detailed and highly technical documents. This would be typical of a water licence that a modern mining operation would ultimately receive.
Senator Cochrane: You mentioned the Northwest Territories board and this Nunavut water board. Is there any interaction here? You have a report from the Northwest Territories. Does the Northwest Territories board currently have any authority over water management in Nunavut?
Mr. Vaydik: No. This is the kind of legislation that was in force previously. Since the claim has been enacted, we have been in this sort of never land without that kind of legislation, so we are looking forward to the passage of this bill.
Senator Cochrane: How many companies have been consulted in regard to this piece of legislation? Do any companies oppose your view, or do they have any questions about this piece of legislation?
Mr. Vaydik: I am not aware of any that oppose it. I would say that virtually everyone I have talked to in the industry supports it.
Mr. Hardin: If I could add to that, 600 delegates came to Yellowknife for Geoscience Forum, our big annual meeting in November of this year. I was asked to give a talk on this piece of legislation. More than 100 people were in the audience, and no one expressed any concerns about the legislation. The only comment we had was that people wanted to see the bill go forward.
Senator Cochrane: Is that the feeling from the local citizens as well?
Mr. Vaydik: Our representatives are northerners, but there are also people engaged in exploration in the north who may or may not live there. Junior exploration companies tend to stay near the stock exchanges in Toronto and Vancouver where the money is. I meet with them occasionally at our annual Geoscience Forum, at meetings and at various exploration and mining shows around the country. We have about 600 members. I have not done a specific poll of this, but I have yet to find one that is opposed to this bill.
The Chairman: Thank you for appearing.
We are now honoured by the attendance of the Premier of Nunavut, the Honourable Paul Okalik. Welcome to the committee. Please take as much time as you like to make your presentation.
The Honourable Paul Okalik, Premier, Government of Nunavut: Mr. Chairman, my fellow Inuk from Nunavut, Senator Adams, thank you for allowing me to speak to you today on this important bill that will affect the lives of the Nunavut people. As I understand it, my officials have appeared before you already, but I feel that this bill warrants my appearance as a former negotiator of the text of the land claim agreement and now as the Premier of Nunavut. I feel there are some issues that should be addressed on this bill that are still lacking. I am glad that you are taking the time necessary to review this important bill.
There are five points that I would like to leave with you today for your consideration. As the leader of the government, I have taken personal interest in this matter, as I have taken part in the actual negotiations and worked on the text of what is intended to be legislation implementing the treaty.
The first item I would like to address is the so-called "non-derogation clause" of the current legislation. Having looked at the text, I find this clause very offensive. I feel that it is an attempt to provide a new term that I would like to introduce to you today: It is what I would call an "Inuit-giver" clause. It has the potential of undermining a modern treaty that we negotiated in good faith with the federal government.
The Inuit signed this treaty and extinguished their title to lands and waters in the territory in exchange for defined rights in the land claim agreement. This clause could undermine the treaty because it could be used to justify the derogation and abrogation of Inuit rights in the treaty. I find this to be the most objectionable clause in the proposed text.
I feel that if the federal government intends to change the agreement, it should at least follow the land claim provisions allowing for amendments to be agreed to by all parties that signed the land claim agreement. Trying to unilaterally amend the treaty by justification through legislation does not meet the test politically. They should be held accountable, along with all parties, including the government of Nunavut, through the amending formula that was agreed to by all. I feel this clause warrants very close examination by you.
There are other issues that we have identified. One, we would like to see a positive interpretation. We are not trying to argue for added rights, but rather an indication that will remind government officials, when they are looking at the legislation and doing their work, that this legislation is one of many issues being used to implement the land claim agreement. Officials could go back to the land claim agreement and look at the actual rights provided for Inuit and the actual limitations on the government when they are carrying out their day-to-day duties in terms of water.
Third, my officials have explained to you that Inuit, through the land claim agreement, acquired exclusive use of waters flowing their lands. I feel that "exclusive" must mean something. We intended to be able to use that water freely. We have always used it freely, prior to the land claim agreement, and we want to continue that practice. This bill is yet another attempt to be able to add fees for Inuit for using those waters.
I must assure government officials that Inuit will continue to pay other fees. In addition, government has the authority to tax improvements on Inuit-owned lands. The fact that they may not collect fees from Inuit when Inuit use waters for commercial purposes does not take away from the ability of government to tax. The Inuit pay income taxes and corporate taxes. As I mentioned, the land claim provides for collection of taxes on Inuit-owned lands where there are improvements. I feel that the wording, "exclusive use" of the land claim agreement prevents from adding to the cost of doing business on Inuit-owned land.
My officials also explained that along with NTI there should be some constraints on the minister, when the minister is considering a decision by the water board, for example. When we were negotiating the lands claim agreement, we were trying to put as many constraints as possible on ministerial authority because we wanted to be heard. We wanted our voice to be taken into serious consideration and not just set aside by bureaucrats or a minister who may not be well acquainted with the issue.
The board has held hearings with people of Nunavut and has taken into account what they have received from the people of Nunavut. We would like to see this taken seriously before devolution takes place, not just to be set aside by the minister in Ottawa. We would like to see added constraints in the bill on ministerial authority. We are not saying that all decisions by the water board should not be subject to being overwritten by the minister, but there should be tighter constraints on the ministerial authority.
For example, there is concern, even with our own government, about bulk water exports. We do not want to see that coming from Nunavut. We would see constraints on the water board in preventing them from making such a policy decision. However, we want to ensure that the voices of Nunavut are reflected in government decisions.
My officials have also mentioned that the enforcement and inspection provisions of the legislation as proposed fall short of what we expect from such legislation. The premise of our presentations has been to try to make sure that people in Nunavut make decisions that affect them.
The current text as it is proposed in terms of inspections, for example, does not take that into account. The minister can freely make an appointment of any inspector, without looking at the qualifications or the residency of the individual. Those inspectors are in charge of managing the day-to-day affairs of water management.
We would like to see that the people who will affect the water quality on a day-to-day basis be resident in Nunavut and have the qualifications that any professional is expected to have. These people should make decisions taking into account the lives and the residents of Nunavut.
I want to brief to allow you to ask any questions. I did not prepare any text, because I have been dealing with this personally for the past while. I will be more than happy to answer any questions that you have.
Thank you once again for allowing me to appear.
The Chairman: Thank you. I gather it breaks down into several main points. First, you do not see why the non-derogation clause has been altered. Second, there should be no water fees on Inuit-owned land. Third, the veto rights of the minister on local water use should be curtailed. You could see him interfering on exported water. You also raised concerns with the rights of the minister to appoint water inspectors.
Senator Cochrane: Mr. Premier, I want to welcome you here. Your words are very profound. Tell me about the consultation that has occurred among your people, the water board and other concerned individuals regarding Bill C-33.
Mr. Okalik: We have worked closely with all parties in drafting this legislation. We have worked with NTI, the Inuit organization for Nunavut and the water board. In addition, we have taken part in all of the exercises since our creation in terms of working group reviewing this draft legislation. We have raised our concerns throughout these exercises with the federal government. We have gone through facilitation exercises with the federal government.
We have been closely involved with this throughout the process. We still have outstanding concerns. I must assure you that these can be addressed easily. They are reasonable, and we hope that you will take our advice and consider it seriously.
Senator Cochrane: Were they not taken into consideration when the bill was being drafted? For example, was the input on the non-derogation clause and water fees not taken into account?
Mr. Okalik: They have been taken into account. Many of our concerns have been met. However, there are still outstanding issues that should be addressed. We want the first legislation implementing the land claim agreement - almost 10 years to the day after we signed it - to reflect the true intent of the land claim.
Therefore, our concerns have not been addressed to the extent that we would like. For example, there is the issue of the non-derogation clause. The government officials explained that it has been passed two times already, but I feel that they were not held to account on those two prior occasions.
We are the first ones to raise this issue. Its may have been overlooked. We want it to be changed to reflect the standard practice of constitutional law. The actual words stated in the Charter should be used, because we are dealing with constitutional rights of Inuit. These are treaty rights that were signed by all parties for exchange by Inuit from the undefined title to that contained in the land claim agreements.
I find it truly offensive that we must deal with them today. I would have hoped that they would have been dealt with prior to this stage. We are seeking your considered opinion in moving forward and amending this legislation, which falls short of our expectations.
Senator Cochrane: You, like other premiers, want to see development in your region. You want to see your people employed. You want to see the mining industry go ahead so that it may provide more employment and bring a better economy.
What would you say if this legislation were to go ahead as is? The mining industry is supportive of this, as you heard this morning. They feel that have to have this piece of legislation to move the industry forward. They have the resources, but they feel that they are restricted because this bill is not in place.
What would you say to the industry, and how would you feel, if this piece of legislation were to go through without amendments?
Mr. Okalik: I feel strongly about these issues. We have survived the past eight years without legislation. It has been difficult for all parties. There should be certainty for all parties in terms of moving forward.
However, by including this non-derogation clause, you are creating uncertainty for the Inuit. There will be uncertainty regarding the constitutional rights that they felt that they had when they signed the land claim agreement. They gave away more than 80 per cent of the landmass in the Territory of Nunavut in exchange for these defined rights. When those rights are under attack, it may be better to let things rest as they are.
All parties should be content with what is put forward. The bill should be amended. I, like anyone, promote mining and oil and gas in the territory. That will continue regardless of this legislation because we welcome the mining.
We need the jobs and revenues that are attached to mining. I have been attending mining conferences. I am inviting them to our territory to invest. I continue support the development of mining regardless of new legislation or not. However, the legislation should at least try to address all parties' concerns.
Senator Christensen: I would like to have you expand on several points. You mentioned that the non-derogation clause is used in other legislation. It is a common clause that is being used on every piece of legislation that we are getting now when First Nations and First Nations' land claims are involved.
You have strong feelings on it. Clause 3 notes that, "Where there is any inconsistency or conflict between the Agreement and this Act, the agreement prevails to the extent of the inconsistency or conflict." It then states that where this act conflicts with other acts, that this act will prevail, which means that it protects so that other acts cannot infringe upon it. Finally, for greater certainty, subclause 3(3) reflects to section 35 of the Constitution Act, 1982. There is also common law.
Could you expand on your strong feelings a little more?
Mr. Okalik: When wording is different in some instances and interpretation issues come before a court, they try to explain why they are different. What we are seeking is language that has been used in the Charter, which clearly protects the constitutional rights of Inuit. Government officials have been departing from that text in the past two or three years.
Our greatest concern is that when an issue comes before a court, and the judges have to decide on a given issue dealing with Inuit rights - water for example - the judges will actually look at the text and note that the clause is different from that of the Charter and decide therefore, that it is not intended to protect. It is intended to justify overriding Inuit rights contained in the land claim agreements. That is the crux of the concern.
Senator Christensen: Does not clause 3.3 refer the justice to section 35 of the Constitution, in which case they would use section 35 to do the measuring?
Mr. Okalik: Perhaps, they could in some instances, but it is different than what is used in the Charter. The Charter is clear. It was used in other legislation prior to just to few years ago. For example, the Firearms Act uses Charter language to protect Inuit rights. That is no longer the practice.
It appears to have been an oversight. We want to ensure the continued practice of using Charter language. We are dealing with Inuit rights signed in good faith by all parties. My biggest concern is that it will be used by government at a later date in a court action to justify a decision.
For example, Sparrow was a common law case. Even though the Charter is clear that there is no real limitation for Aboriginal rights, they found justification to limit Aboriginal rights. Our concern is that even though we have a land claim agreement, the wording has been changed to prevent the derogation of Aboriginal rights because it is different than past practice. It must mean something different.
Senator Christensen: Are you saying that you would like to see section 35 from the Charter incorporated into the bill?
Mr. Okalik: Yes. It has been used in the past. The Firearms Act is quite clear. It uses the same language.
Senator Christensen: Clause 3.1 gives you no comfort? It is clear that if this bill is in conflict with the land claims agreement, the agreement prevails.
Mr. Okalik: It does the opposite. We would rather see it gone.
Senator Christensen: Why does it do the opposite?
Mr. Okalik: Because it has different wording than the charter and other pieces of legislation. It creates uncertainty. The comfort level that we had is what was used in the Charter language, because it is intended to protect the constitutional rights of Inuit. We are not trying to create new rights for Inuit. We want to maintain those rights - the few we have left. That is where our concern lies.
Senator Christensen: With regard to the fees, clause 78 (5) states that regulations may be made for the setting of those fees. Through those regulations, could there not be a regulation that basically says that on Inuit lands, the water fees will not be charged, without changing the actual act?
Mr. Okalik: We have tried to address that point with government officials. My officials advise me that the sole intent of not addressing this is to try to collect from Inuit. I see that as something that will not change. I would rather address the issue at this table and deal with it.
Senator Christensen: The last question, regarding the ministerial authority, could you expand on that? I believe there was an amendment in the other place to limit the response from the minister, giving him only 45 days in which to respond.
As an elected official, having a water board that is appointed and having sole authority, how do you see that being overcome? Certainly, elected persons are the ones responsible for whatever happens and they have to take the final responsibility, where an appointed board does not have to do that. Perhaps you could expand on that a little and explain what further amendments you would like to see in that respect. You are territory as we are territory in the Yukon, and the minister does have the final authority in those areas, other than on lands that fall under the agreement.
Mr. Okalik: When all the parties signed this treaty, all the signatories felt that it reflected their concerns. Some of the language in the bill may be interpreted to mean that the water board itself is the sole authority of water management. There are other clauses that depart from that. It is unclear.
If you consider the wildlife board, there are limitations such that the minister can overrule a decision by the board - within 30 or 60 days - depending on the issue.
Senator Christensen: We are talking about the agreement.
Mr. Okalik: Yes. I am trying to explain some of the limitations that are inherent in the land claim agreement with other boards of ministerial authority.
If a decision by a Wildlife Management Board goes against an international agreement or an interjurisdictional agreement, or if it goes against public safety or against conservation principles, then the minister can over rule within 30 to 60 days. That is a limitation.
Senator Christensen: Those are the limitations you would like to see in the bill.
Mr. Okalik: Yes. If the Environmental Management Board makes a decision, the minister then has the limitations of the national regional interests - he or she can overrule the board.
Those are the types of limitations that I feel may address many of the concerns that have been raised. As I mentioned, the water board is our court of first instance, where they actually hear from the people of Nunavut. We do not want them to be disregarded by an official in Ottawa. We would like their opinions to be closely examined.
The other boards have opportunities to express their opinions to the minister and to have those opinions examined. The minister at the end of the day then decides whether to accept or reject.
Senator Christensen: In the water agreement, is that spelled out as it is in other agreements?
Mr. Okalik: No, it is not; it can be interpreted either way. It could be just the water board itself or it could be the minister. It is unclear.
Senator Christensen: That particular clause in the agreement is also unclear.
Mr. Okalik: That is why I am seeking your counsel to try to make that reflect the rest of the agreement in the legislation so that all parties know where the authority lies. I do not want a court decision later on that could be interpreted either way. I would like some certainty - perhaps go halfway to meet all parties' concerns.
Senator Christensen: There is the Wildlife Management Board. What is the other board?
Mr. Okalik: The Nunavut Impact Review Board.
Senator Christensen: Are those advisory boards?
Mr. Okalik: They are halfway. For the Wildlife Management Board, if the minister's concerns do not meet those tests, then the water board decision carries the day.
The Chairman: Are you familiar with the suggestion put forward by John Merritt, the Legislative Counsel for Nunavut Tunngavik Incorporated, about the changes? Has your legal counsel drafted the changes they would like to see?
Mr. Okalik: In respect of the actual overriding of the ministerial authority, we have not drafted any text. For the other clauses, I think it is quite clear. For example, in terms of the non-derogation clause, we have put forward wording that uses prior acts of Parliament, such as the Firearms Act and the positive interpretation clause has been put forward by NTI, which we support.
The Chairman: We have seen drafts from the NTI's Ottawa office.
Senator Adams: I thank our Premier from Nunavut for appearing before the committee this morning. I will speak to Bill C-33, which, I am hopeful, will improve matters for the people of Nunavut in the future.
For the last five or six years the Northwest Territories Water Board has come under the legislation from Bill C-6. Do you think that Bill C-33 reflects that legislation? Do you think that this bill should be different from Bill C-6, because the Northwest Territories Water Board had nothing to do with land claims?
Do you think Bill C-33 should be different because the Yukon and the Northwest Territories have similar water acts, while Nunavut is different because it has a settled land claim? There are 26 communities and a population of 26,000 in Nunavut. This bill should be a little different because of the settled land claim agreement. I think there is a clause in there with an agreement about hunting rights. Until Bill-C-68 came along, we had the same rights as any other Canadian citizen. I think you are familiar that Bill C-33 will go the same way as Bill C-68. At the time the agreement was signed with the NTI, it was agreed that people living in the communities in Nunavut and the territory should have different rights. Now we have exactly the same rights as the rest of Canada.
We are concerned about the Bill C-33. We think it is too strong because the minister has power. The premier should have a little more power. The premier lives up there and the minister lives in Ottawa. Yet, the minister has more powers than the premier.
I wanted to find out more because the Nunavut government is concerned about it. I know that in half an hour the minister will be here. Maybe when he is here we can ask him some of the questions that we are concerned about in Bill C-33.
Mr. Okalik: I have tried to explain our objections. We are not opposed to the legislation. These are some of our concerns that we would like to see addressed before this proposed bill becomes law. If we can address these concerns, we can rest assured that everyone knows the rules.
In my opinion, if we move forward with this flawed law, then there will be further uncertainty created. That is what we want to avoid in the first instance.
If we can address these minor concerns, Inuit as well as industry can rest assured that we are playing by the same rules. As it is now, this bill will create more uncertainty and that is not helpful for Nunavut.
We would like to see more activity taking place in terms of mining. We want them to know the rules. However, if those rules are skewed towards the federal government, that raises real concerns for Inuit in Nunavut.
In terms of other bills, such as the firearms bill, I believe that is before the courts because the concerns raised by Inuit were not addressed. We hope that can get worked out. That is where issues end up when the rights of Inuit are not respected in legislation. We hope that we can work these concerns out with your committee and get them resolved.
Senator Adams: We had other witnesses from NTI and the water surface board last week that told us that right now the Northwest Territories are using the Northwest Territories Water Act. Do you feel the same thing? We could do a little more study before the break in the summer and delay the bill. You do not have to pass it this week. Can you live with that, Premier?
Mr. Okalik: Yes. I can rest in peace ensuring that the Inuit rights that I helped to negotiate will not be removed. The passage of this bill would raise real concerns, for me as an Inuk and for our territory. The Inuit ratified this agreement under the understanding that their rights contained therein were rights that are constitutionally protected and cannot be removed by government.
When that issue is put into question by this piece of legislation, then any law like that should never pass. That is my opinion. I would rather see this bill die on the Order Paper with that type of language, than let it pass. If you could assist us in removing the clause or introducing the clause that had been used in prior legislation, that would be very helpful.
The Chairman: I get the impression that you would rather see this bill die on the Order Paper than go through the way it is. As so often happens at the Senate, we receive a lot of presentations saying what is wrong with the legislation. However, if we amend it in the Senate and refer it back, then if the House does not take it we are back to square one. We do not have the bill unamended; we have nothing. I think you are saying that you would prefer to let the bill die, than let it go unamended. Is that right?
Mr. Okalik: I feel that the constitutional rights that Inuit negotiated override this legislation.
The Chairman: If the non-derogation clause were changed, you might be able to live with the other two concerns because in time you could amend the bill. Not being a lawyer, I agree with you that, when somebody changes something, I ask: Why did they change it? If it means the same as the original provision before they changed it, why did they change it? It is a good argument.
Is it possible that if the non-derogation clause was straightened out, you might be able to live with it? I am not trying to corner you at all. However, as it stands now, you would rather go back to square one and start again.
Mr. Okalik: That is my opinion. I support NTI in the non-exclusive water issue as well. I argued before officials in negotiations about the extinguishment clause in the land claim agreement that extinguishes our Aboriginal rights. We would have preferred different wording. However, the government lawyer said that you have to stick with the current text that is applied in every treaty or land claim agreement because, if we change it, the courts may misinterpret it and get rid of the extinguishment.
These are the same government officials that I noticed on the Order Paper were appearing that were arguing for clear certainty of using the same wording in any treaty. I am arguing that those same arguments be applied in protecting Inuit rights that were exchanged for an undefined title. That is all I am asking for and I feel that is reasonable. If that is not meant, then we should get rid of the offensive clause so that the Inuit can argue later that their rights are still protected by the Constitution.
The Chairman: The minister will be here in 15 minutes. Please stay because it will be interesting to hear the minister answer. We will certainly be trying to push him on that point for you.
Senator Kenny: I have a point of order. I would be interested in hearing the premier put the point directly to the minister.
The Chairman: You are asking that I ask the premier to come forward and put the question directly?
Senator Kenny: I would be interested in hearing what the two of them have to say to each other.
The Chairman: I am not sure. I will have to check on whether my job as chairman is to referee a debate.
Senator Kenny: I will make a motion, if it will help.
The Chairman: If you wish to, you may make a motion.
Senator Kenny: I would sooner have you just agree with me, but if you need a motion, I would be happy to make one.
The Chairman: I disagree with you. I think the committee can ask the questions.
Senator Kenny: Then I so move.
The Chairman: There is a motion on the floor that, after the minister's presentation, we ask the premier to join the table, basically to add the premier to our committee from henceforth. Mr. Premier, that means that you can ask questions. You cannot vote, but you can ask questions.
Senator Kenny: In fairness, I am only inviting the premier to come forward to put that very question to the minister when he is here so we can have clarification on that point.
The Chairman: Apparently this motion is a limited right, Mr. Premier. You are only allowed to ask on this one item. The notion is that you be allowed to come to the table to ask questions with reference to the non-derogation clause. We restrict it to that one clause.
I do not know whether we are setting a pattern here or not. The clerk sees no problem. Senator Kenny, in spite of his darker hair, has been here longer than any one, so he would probably say it is acceptable as well. The chair will not be voting on this. Those in favour?
Some Hon. Senators: Yea.
The Chairman: All those against?
Some Hon. Senator: Nay.
The Chairman: The motion is carried.
Senator Adams: I have one more question. We at Nunavut Territory and - can I have some order? They are talking right beside me.
The Chairman: Senator Kenny and Senator Christensen, I did not adjourn the meeting. Senator Adams is attempting to ask a question.
Senator Adams: The Nunavut Territory is still quite new. We heard earlier from the mining association that the only people who have an interest in property up there are from Vancouver or Toronto. Should mining companies that come up there in the future have some kind of partnership with either a community or a local organization?
Mr. Premier, you have been operating for two years governing Nunavut. I wonder if we are not getting benefits for the people living in Nunavut. The mining companies coming in now are not interested in the people and helping businesses in the community, nor are the oil and gas companies. It would be nice to get some added benefit for the communities to that we can get some more people off welfare.
Mr. Okalik: As a government, with our limited resources, we do assist prospectors, for example. We financially contribute to their expenses if they are going to prospect in Nunavut. We are trying to do our part. Even though we do not have jurisdiction over mining, we try to promote it as much as we can because we know that any activity that creates employment will be helpful for our territory in terms of providing employment and training opportunities for Inuit and the community.
In the last few years, exploration has been up considerably, so we are encouraged by the activity that has been taking place. However, we want to see actual mining taking place. We also expect that they will follow the land claim agreement in terms of water management and other environmental concerns that the people may have. We appreciate the investment that is taking place from the mining sector today, and we want to see it continue and grow.
The Chairman: Thank you. Mr. Premier, you may have come in after the mining association gave their evidence. I asked them if they liked this act or would they want to go back to square one. In other words, if the act was not perfect, would they like to go back? They said they prefer this act, with its flaws, to what was there before - of course, there was nothing before. They seemed to feel that this was a positive thing - not necessarily in the exploration phase, but certainly in the development phase of any mining.
We will take a six to seven minute break. I thank you, Mr. Premier, for coming out, and I hope you stay because Senator Kenny's motion will be useless if you do not.
The committee has a small item of business to deal with. We have one piece of business. Everyone received a copy of the letter from the Honourable Jack Austin, chairman of the Standing Committee on Privileges, wanting to know whether we wanted to change our name. They are giving us the opportunity to change our name, if we wish. I think it is all right.
The question is whether you want to change the name of this committee. Some committees have changed their name. I believe Senator Kenny changed his committee's name.
The Chairman: Everyone is happy with it, so we will leave it as is.
Mr. Minister, a motion was passed before you arrived. We will have the Premier of Nunavut join us to ask questions about the non-derogation clause after you make your presentation.
The Honourable Robert D. Nault, P.C., M.P., Minister of Indian Affairs and Northern Development: That is quite unusual. He can join me at anytime and talk to me at any time. Nevertheless, we will answer the question on the non-derogation clause in depth. If he is prepared to follow very closely, we will give the explanation so he will understand it in detail. I do not think it is necessary for to you pass a motion for the premier to ask me questions. He can talk to me any day of the week. He just has to pick up the phone.
The Chairman: He would not have such a lovely bunch of people listening in.
Mr. Nault: That is true. We will be answering that question in detail. I do want to get right into it, because I am co-chairing a meeting with a Russian delegation today.
Mr. Chairman, this is my first appearance before your committee. I bid you good morning. Thank you for the opportunity to meet with you today. I am here with officials to answer your questions about Bill C-33, the Nunavut Waters and Nunavut Surface Rights Tribunal Act, 2001. I understand that you have already heard from witnesses who are concerned with certain provisions of the bill.
I, too, have heard these concerns and I will do my best to answer them today. I believe Bill C-33 is a balanced, responsible and comprehensive piece of legislation. I am seeking your support today and when it returns to the Senate for third reading.
Let me begin by reiterating that we have brought forward this legislation first and foremost to fulfil an obligation of the Crown under the Nunavut Land Claims Settlement Agreement. We have with worked tirelessly with Nunavut Tunngavik Incorporated and the territorial government to craft a bill that is consistent with our land claim commitments, that respects Inuit interests and those of non-Inuit residents and businesses in Nunavut, and that protects the Arctic environment.
This bill will empower northerners. It will bring decision-making to Nunavut, and will open doors of economic opportunity for Inuit and non-Inuit residents. It is not a power grab by bureaucrats in Ottawa, but rather, a genuine effort to give the new territory the tools it needs to manage sustainable development across the territory. It is a bill of good public administration - a bill that I am convinced will serve Nunavut well in the years to come.
The committee may recall that the Nunavut Land Claims Settlement Agreement required Canada to enact act laws to establish various boards, commissions and tribunals. Five years after the agreement's 1996 deadline, we are still striving to complete this work.
Our government takes its land claim commitments very seriously. We have demonstrated this on a number of occasions, and we are determined to meet all of our commitments under the Nunavut Land Claims Agreement, including the requirement to provide legislative underpinnings for the Nunavut Water Board and the Nunavut Surface Rights Tribunal.
It is true that both bodies have already been appointed and are doing their respective jobs, but the land claims agreement does not adequately detail the powers and duties of these two institutions. This has resulted in uncertainty in Nunavut.
This situation cannot be allowed to continue for another five years while we strive for consensus among stakeholders on all elements, which at this point appears unachievable. We must put in place legislation that meets the needs of all stakeholders and is familiar to northerners, developers, industry and lenders.
Furthermore, we need to confirm the establishment of the Nunavut Water Board and Nunavut Surface Rights Tribunal as institutions of public government.
Bill C-33 will achieve these important goals and more. It goes beyond the basic framework provided in the land claims agreement and establishes comprehensive water management and surface rights regimes in Nunavut. It provides certainty for board and tribunal members related to their duties, mandates and responsibilities. It provides certainty for developers and communities. In so doing, it will encourage exploration and economic development across Nunavut.
We are not proposing a radical new approach to resource management. Part I of Bill C-33 mirrors the Yukon Waters Act and the Northwest Territories Waters Act. Upon enactment, the Northwest Territories Water Regulations will become the water regulations for Nunavut, and the Nunavut Water Board will be confirmed as the licensing authority. This water board model has existed across the North for 30 years.
Part II of the Bill C-33 mirrors much of the Yukon Surface Rights Board Act and reflects similar provincial legislation, including the Petroleum and Natural Gas Act of British Columbia, the Surface Rights Act of Alberta, and the Surface Rights Acquisition and Compensation Act of Manitoba.
There is nothing hidden here, honourable senators. There are no surprises. Bill C-33 is a sincere effort to meet the letter and spirit of the Nunavut Land Claims Agreement, while ensuring an effective and responsive resource management regime in Nunavut.
Unfortunately, this is not how our efforts have been portrayed. I welcome and encourage a healthy dialogue on the bill and what it means for Nunavut, but that dialogue needs to be based on fact. With that in mind, I would like to use the rest of my time to set the record straight on four specific criticisms of Bill C-33 that I believe are unfair and unwarranted.
First is the notion that the non-derogation clause in Bill C-33 may have a hidden consequence - specifically, that it could weaken existing Aboriginal or treaty rights. This is simply not the case. The wording in Bill C-33 was chosen specifically by the Department of Justice because it is consistent with the constitutional protection given Aboriginal and treaty rights under section 35 of the Constitution Act, 1982.
It is not our intention to increase or decrease the protection provided in section 35 - we are simply maintaining the status quo. I can assure you that the rights of the Inuit of Nunavut and other Aboriginal peoples are fully protected by this bill. The wording used here is consistent with practice in other federal legislation - it is not specific to this bill.
The committee has also heard complaints that the Minister of Indian Affairs and Northern Development could reject some water licences or delay their approval. Our government believes it is important that elected officials be responsible for major water licence decisions that could affect the economic, environmental and social fabric of Nunavut.
We have not given up this responsibility in the Yukon or in the Northwest Territories, and we will not relinquish it in Nunavut. As is the case in every other territory and province, Bill C-33 ensures that an elected official will ultimately be accountable for how an important natural resource is managed. Of course, that individual happens to be the Minister of Indian Affairs and Northern Development.
Bill C-33 has also come under fire because it reserves the right for the Crown to charge a fee when waters flow through Inuit-owned lands. Both the intent and the impact of this bill provision of this bill have been misunderstood.
First, we do not dispute that Inuit have exclusive use of water flowing on or through their lands. We look forward to the day when Inuit can collect revenues from operations on their lands, including the use of water, which is their right under the land claims agreement. However, I must also make is clear that nothing in the agreement exempts an Inuit licensee from the payment of fees to government.
As to the allegation that we will be siphoning off revenues from the Inuit people, let me just say that the water use fees for the two largest water users in Nunavut - the Polaris Mine and the Nanisivik Mine - are currently less than $25 each per year. Our government has invested millions of taxpayers' dollars in Nunavut and we will continue to invest in the development of its infrastructure, human resources and governance capacity, because it is the right thing to do, Mr. Chairman. The notion that we plan to take huge amounts of money out of the territory's economy through water-licensing fees is completely unrealistic.
Finally, I want to address the issue of removal of bulk water from Nunavut, which as the committees knows, is not specifically prohibited by Bill C-33.
My response is twofold. First, the primary purpose of Bill C-33 is to fulfil an obligation under the Nunavut Land Claims Agreement. In other words, this bill has nothing to do with removing water from Nunavut.
Having said that, I will remind the committee that the Minister of Indian Affairs and Northern Development will have authority under Bill C-33 to approve or reject major water licences in Nunavut. This authority will be administered consistent with our government's commitment to prohibit bulk water removal in areas of federal jurisdiction. I can tell you - as I have told the premiers of all three territories - that I will not approve any licence to remove water from the North.
While restricting bulk water removal is not the objective of Bill C-33, it is nevertheless an important issue. I want you to know that officials of my department have had preliminary discussions with the Government of Nunavut on implementing the federal strategy to prohibit bulk water removals. Discussions have also been held with the governments of the Yukon and the Northwest Territories. It is important that we have a consistent approach to this issue across the North. An amendment to Bill C-33 would only address Nunavut, leaving the Northwest Territories and Yukon under different legislative regimes.
In closing, honourable senators, let me say once again, Canada is proud to be bringing forward Bill C-33. By meeting this land claim obligation, we will fill a legislative void and provide the certainty needed by the Waters Board and the Surface Rights Tribunal, the public and the communities in which they live, and the businesses and lenders who are prepared to invest in Nunavut.
Certainly, there are some who do not agree with everything that is contained in the bill, or for that matter, with things that are not here, but we need to move forward. We need to remember, that this bill was not developed in secrecy - it has evolved over a number of years through a lengthy and transparent consultation process that sooner or later must lead to decisions and action. Our government, after public consultations, has made those decisions in the best interests of the people of Nunavut and all Canadians. Now, we are prepared to act on them. Today I am asking for your support to take this action.
I welcome any questions that the committee may have at this time.
Senator Cochrane: I am pleased that you have put on the record your responses to many of the concerns that we have heard here from other witnesses. Thank you for that.
As I understand from the Canadian Mining Association this morning, this legislation is step one of a three-step plan. Step two involves land use planning. Step three deals with social and economic impact. When can we expect to see these two next steps tabled?
The land claim agreement was ratified in 1993. Why does it take so long to bring in legislation like this? When can we expect the other two steps to be taken?
Mr. Nault: I will let one of my officials give you the time frame for the other two matters so that you will know the process in which we are involved. Obviously, it is our intent to consult widely and to try to build a consensus before we come before you with legislation. I will ask Mr. Dunlop to give the breakdown of where we are headed.
Mr. Will Dunlop, Director, Resource Policy and Transfers Directorate, Department of Indian Affairs and Northern Development: Honourable senators, we were working on legislation for all the boards at one time. We were asked to concentrate on the water and surface rights board, and we agreed to set the legislation aside on NERB and the Nunavut Planning Commission until we got this one done.
We are not going to break it into two bills. We want to do one bill with NPC and NERB in the same legislation. We think it is probably three years out.
Senator Cochrane: So three years before the next two steps are ratified?
Mr. Dunlop: The next one step. We hope to have the Yukon environmental and socio-economic assessment bill next and then the one for Nunavut and the NWT surface rights. We are working on three.
Senator Cochrane: Mr. Minister, let us talk about the approval of any licence to remove water from the North. Let us just say, when cabinet shuffles do arrive - and we are expecting one very soon, according to the news media - how is this piece of legislation clear that no minister has the right to approve a license to remove water from the North?
You have specifically said that you would not, but what if another minister came in and took over your portfolio? Would that minister have the right to do as he or she so desire?
Mr. Nault: Not if they want to stay in cabinet long, simply because it is the position of the Government of Canada and the position of our Prime Minister that no bulk water will be removed from the North and/or the provinces, at least on federal lands.
We have agreed - all the ministers responsible, both provincial and territorial, including Nunavut's government - that bulk water will not be transferred outside of that territory to other jurisdictions.
In my opening speech, I stated that in essence, I have that authority now and other ministers will have the same authority. However, I would like to clarify the importance of making sure that you do not make this into a bulk water bill because that is not its intent. This is a licensing and application process and enforcement mechanism. I am surprised that we have not put in front of you correspondence between myself and the three premiers of the territories. I asked all three governments to work with the federal government, to put forward a piece of legislation that could, in essence, make it the same right across the territories vis-à-vis bulk water.
Whether I am here or not, the position of this government based on the legislation we have in front of us is that there will be no bulk water transmitted outside the territories.
The Chairman: Perhaps this would be a good time, Mr. Premier, for you to ask the minister your questions. This is done for the benefit of the rest of us listening.
Mr. Okalik: I must clarify that I did not ask to ask questions. The offer was made by way of a motion. I did not ask to take part. I am just explaining what took place.
My main concern is the non-derogation clause, as I mentioned to the senators. The clause is intended to protect Inuit rights. The main bodies that it is intended to protect - the Inuit organizations - are objecting to the clause because it may have the opposite effect. That is a real concern for my government, along with the Inuit in Nunavut who ratified the agreement. We understood that the rights contained therein would be constitutionally protected. That particular clause may put that into question.
Would you be willing to remove the clause or amend it along the lines of the Charter or the Firearms Act, which use language to protect Aboriginal and treaty rights?
Mr. Nault: I will respond to a portion of the question, and then I will turn it over to my legal people to give you the legal reason why this is not an issue. It has been made into an issue, and we are not quite sure why.
This is not a new non-derogation clause. This has been the government's position and policy since 1996. The language of the clause was changed in a number of pieces of legislation. The concern about the previous version was that it could be interpreted as providing greater protection of Aboriginal and treaty rights than that offered by the Constitution, and we did not want more or less. We wanted it clarified that, in fact, it gave the protection necessary.
Senators, you have passed bills since this change has been made: the McKenzie Valley Resource Management Act, and the Canadian Environmental Protection Act. The clause is also found in Bill C-5, Bill C-6, Bill C-10 and Bill C-39.
The government has no hidden agenda to somehow try to take away Inuit rights in Nunavut. We have been doing this now in a number of bills to be consistent. We went away from the firearms non-derogation clause because it did not meet the specific needs that it was intended to meet.
I also want to mention a few critical points that need to be recognized.
One of the issues is the Nunavut agreement itself, which specifically, in clauses 2.12.2 and 40.1.2, which gives effect and confirms clauses 4.1 and 6.1 of the Nunavut Settlement Act and clause 3.1 of this bill. Those are really the significant sections that deal with protection of Inuit rights through the land claim. The non-derogation clause, as we have said and the Minister of Justice would say, is basically a flag telling people that Inuit people have rights. It is not an interpretative clause. That is the issue that people need to get their heads around.
Whether the clause was in or out would have no effect on the rights of the Inuit because it is already in the land claim. The land claim supersedes, in particular areas, this particular piece of legislation.
I am a little surprised that we are having this debate when, in fact, this non-derogation clause has been in just about every bill that has come here that has to do with Aboriginal people since 1996. No one has complained about it or suggested what is being suggested here today in any of those particular sittings. I would be interested to find out why this interpretation has been made by the premier and others who are giving him advice.
I will ask Mr. Ricard to give you an explanation, to put a few flags in the air for you, for those who want to talk more about the legal side of this particular issue.
Lastly, Mr. Chairman, this particular non-derogation clause will be in other pieces of legislation coming before you. For example, you will be dealing with the Yukon Act here shortly. You might notice that there is a non-derogation clause in it, and it is identical to this one. I have not heard the same complaints from the Yukon government or from Aboriginal representations in that particular forum. It is unique to this particular situation and that is why I question the rationale for it. I will not go into that today. Mr. Ricard will make a few comments, and then I will wrap up with another issue that you might want to consider as it relates to the non-derogation clause.
The Chairman: Before we go to Mr. Ricard, you ask where the concern has come from. Department officials appeared before the House Committee on Aboriginal Affairs a while back. The committee raised the question and the officials suggested that the proposed wording would limit Parliamentary supremacy. The new one is supposed to make Parliament supreme. A minority group is bound to be frightened about Parliament holding supremacy, especially if they are in a panic to trample on minority rights.
Your department officials said that this would ensure Parliament's supremacy. Is that a good idea?
Mr. Nault: It is a good idea, based on the fact that we are elected by the people to make their laws.
The Chairman: However, "elected by the people" is not an excuse to trample on the rights of the people.
Mr. Daniel Ricard, Senior General Counsel, Legal Services, Department of Indian Affairs and Northern Development: Honourable senators, the minister has answered the question, and so I will limit my observations to two points.
First, I want to reiterate the fact that clause 3.3 of the bill is a "declaratory clause." In other words, it is not a clause that provides any substantive rights or obligations, but rather it helps the interpretation of the bill, overall.
As the Minister indicated, it is a provision that has been found in previous legislation and it is also reproduced in upcoming bills.
My second point is that back in 1996, for the proposed firearms legislation, a different provision was included that read more in line with section 25 of the Charter. Section 25 of the charter attempts to reconcile on the one hand, section 35 "collective rights" - be they Aboriginal rights or treaty rights of Aboriginal people - and provisions of the charter, which protects individual rights. Section 25 is an attempt to bridge those two sets of rights. In 1996, in the context of the firearms legislation, wording along those lines was included.
Subsequently, upon review, people felt that perhaps the wording somewhat modified what is being provided for in section 35. Hence, the wording has been fine-tuned to what we have now. Therefore, the intent never shifted. Whether we talked about the firearm provision or the more current provision, the intent has not shifted.
Only the wording has shifted, and over the last five years, we have held onto it, because it clearly reflects the intention of Parliament.
Mr. Nault: The last point I would make, Mr. Chairman, is about article 40.1.2(b) of the Nunavut Land Claims Agreement, which provides that nothing in any legislation that implements the agreement's provisions can "abrogate or derogate" from any of their Aboriginal or treaty rights. This would prevent the exercise of any power in the bill under a provision implementing the agreement that is inconsistent with their rights. This provision enhances the protection of their Aboriginal and treaty rights that is provided by the Constitution Act, 1982.
Mr. Chairman, in my view, that and clause 3.1 of this bill reaffirm Inuit and Aboriginal rights. It is not the intention of the non-derogation clause to diminish those rights - nor could we if that were the intent.
Mr. Okalik: I recall having a similar debate when I was a negotiator on the land claims agreement. We wanted to introduce different wording in terms of the extinguishment of Aboriginal rights, and use different wording than the standard. Government officials advised that we could not use anything different than what had been adopted in prior treaties, because a court could interpret it differently in terms of extinguishment of Aboriginal rights to title. Therefore, we had to adopt the standard of government.
Inuit are asking the same - that the standard charter clause be used to ensure that their rights are not abrogated or derogated. In the absence of that, then remove that clause entirely. To assure the Inuit and to explain that it had been in prior acts is okay. However, the Inuit feel that, in their case, it is more of a sword than a shield, in protecting their rights. Why not just get rid of it, or just adopt the standard charter firearms clause? That is all I am asking.
The Chairman: You referred to section 40.1, and my researcher, who keeps me on my toes, tells me that it says "for any Aboriginal peoples other than Inuit;" In other words, it does not apply to Inuit.
Mr. Okalik: I am sorry, but that clause was negotiated with other Aboriginal groups. It was addressed with other Aboriginal groups in mind and it was not with Inuit. It was Inuit interacting with the other Aboriginal groups overlapping our land claim areas. That is why it is included. It is different, but that is what the other Aboriginal groups wanted. We are asking that the national standard be used.
The Chairman: Therefore, it is not a good clause to support your argument, Mr. Minister, that the new non-derogation clause is better than the old one, or is better than the Charter of Rights.
Mr. Nault: It is the standard of government, and that is the point. The non-derogation clause is included in the bill and is important because it also includes the Inuit of Northern Quebec and the Dene of Manitoba and Saskatchewan, who are also affected by this legislation because of their Aboriginal rights - the premier is familiar with those.
Clause 1.3(1) of the bill already ensures that the bill faithfully implements Nunavut agreements. It provides:
Where there is any inconsistency or conflict between the Agreement and this Act, the Agreement prevails to the extent of the inconsistency or conflict.
The land claims agreement specifically deals with the rights of the Inuit. I do not how to be clearer except to say that this potential bogeyman, which someone has decided to put out as a straw man, does not exist in our view.
The issue of the non-derogation clause is basically intended as a flag to ensure that people are aware that there exists under section 35, the protection of Inuit and Aboriginal rights.
The Chairman: The minister says that clause 3 does not abrogate or derogate, that the land claims agreement takes precedence and that is in clause 3.2. Premier Okalik, do you not take some comfort from the fact that it states that the Nunavut Land Claims Agreement prevails to the extent of the inconsistency or conflict?
Mr. Okalik: One may feel confident, but if you look at case law, there have been instances where Aboriginal rights have been overridden by government activity.
The Supreme Court, for example, in Sparrow, announced that where legislation is introduced, it could be justified in overriding Aboriginal rights, such as the Water Rights Bill. If a clause indicates there may be justification for overriding treaty rights of Inuit and a clause that is different from that of the standard for non-derogation of Aboriginal rights, then that may indicate to a court that it is justifiable.
That is the concern. If you do not use standard language that is used in the Charter, for example, to protect Inuit rights under the land claim, then it may open the door for the courts to override these treaty rights, which were signed in good faith by Inuit.
I hope your committee can address it. I do not want to take up your time, and I believe the minister came here to appear before you and not before me. That is where we stand as a government. That is all I ask you to consider.
The Chairman: Actually, you have not taken up any time. Your questions are more succinct and to the point than the honourable senators' would have been.
Senator Adams: I have some other questions for the minister. Do the other provinces have the same kind of water boards? I think other provinces have been suggesting for quite a long time that they have a different culture. Perhaps the Inuit may be asking for a slightly different way rather than copying it from the other provinces or any other kind of surface rights water board.
You mentioned that Nunavut should have a future. If Bill C-33 is passed, will there be negotiations between Ottawa and Nunavut in the future for the water under Bill C-33?
Mr. Nault: One important thing to remember is that the government's policy is clear. It is our intention to move the powers of governing as close as we can to the people over time. You will be looking at a very important piece of legislation dealing with devolution in issues of this nature to the Yukon, relatively soon, I hope. As well, it is our intention to begin negotiations formally with the Northwest Territories on legislation similar to that of the Yukon bill to devolve powers to the Northwest Territories in the next number of years.
It is also our intention - and we have in a preliminary way started discussions - to look at devolution with the Nunavut government and authorities. To be fair, every region is in a different place in its development. If I can be as clear as I possibly can, Nunavut is a new territory. It has a great deal of capacity-building to do first, and over time, I hope we will devolve the minister's responsibilities for this particular piece of legislation and the role we play in the territory of Nunavut, which would be our eventual objective. This is just the first phase of a series of devolving steps that we would take. At this point, it is safe to say, in my view, that we are a ways away from devolving all of the powers, similarly to the Yukon, to the Nunavut government.
Senator Adams: I believe that NTI was also concerned about the NWT and the land claims rights, probably the 350,000 square kilometres that you mentioned in the bill. Within that Nunavut land claim, you still have power to make decisions to approve water licences on the Nunavut land claims, or are you talking about issuing the licences outside the land claims areas?
Mr. Nault: There are different categories of licensing. In the majority of cases, the minister does not involve himself in the licensing at all. It is in the larger category of major initiatives where, under the act, it is specifically requested that the minister be involved to protect the interests of the region as a whole. I certainly do not get involved in the day-to-day licensing dealing with individuals or private-sector entrepreneurs who are looking for licences in a land claim area.
Second, the objective of the water board itself - our objective as well - is to have people working on the board who are from the territory and understand the lay of the land. The objective of this bill - which it is extremely important and we have not discussed today - is clarifying the roles and responsibilities of those board members.
One of the problems we face in Nunavut today is much confusion about what the board can and cannot do. On a number of occasions, frankly, the board has gone outside what is believed to be its mandate. We cannot afford to have the board going outside of its mandate. The problem with that is it is not clarified, because of lack of bill and legislation, what that mandate should be.
That will rectify many concerns about ministers like myself intervening in what should be Nunavut territorial business, when, in fact, I would normally not get involved in those particular issues.
Finally, I do not know whether the researcher has provided it to you, but we would be willing to give you this information. The amount of dollars made by the Government of Canada on licensing and fees is so minuscule that I cannot understand why it was even brought up. The objective is not for us to charge fees to the Inuit population. It is to let public government find a way to recoup the costs of governing and administration. That is the whole intent of this licensing process, as I understand it, because we also have to enforce the licences themselves.
Senator Adams: In the meantime, I am thinking of something a little different. You mentioned other provinces. Where we live, we do not have all the future from mining and oil and gas in the Nunavut territory. If another country is looking for that sort of water, and in the future, if the people in Nunavut and the government see that we have no economy, what are our options? There are people living here are on welfare, and if some other country is concerned to see that we have some kind of economy. Right now, people in the community are buying water in bottles. Why are we buying bottled water, paying the same price for Coke and Pepsi and so on in the co-op, in the northern stores?
In the Yukon, they have forestry. They can make an economy for a future for their people. Right now, if you want to do something in the future in Nunavut, I think the Government of Canada turned down Newfoundland in its attempts to sell water to the United States a few years ago. If you continue with the policy whereby the Government of Canada has the power to say that the community cannot touch the water, what is the future for the people in the community if they have no control over that water and it all up to Ottawa?
Mr. Nault: Are you suggesting that through this particular piece of legislation an individual entrepreneur in Nunavut would not be able to get into the bottled water business and sell bottled water?
Senator Adams: No, I will not say that. Anybody can do that. The only thing now is whether we want to build a pipeline somewhere and sell water, or if we want to start picking up icebergs and hauling them someplace else, to make money in the future for the people of the community.
Right now in Nunavut, it is very difficult, even in mining companies, for our people to get jobs because they are not qualified, they do not have enough education and the mining companies hire other people. The bill could state that those appearing before the water board for a licence would have to say how many employees they would hire in the community.
Mr. Nault: I think I understand your concern.
The Chairman: Does that finish your questioning, Senator Adams?
Senator Adams: I think so. The minister did not have an answer.
Mr. Nault: I think Senator Adams is suggesting that the use of the water board and the licensing should give Nunavut residents an opportunity to build an economy. That is not what this legislation is about. Obviously the impacts of the good regulations will help create an economy, but the objective is to ensure that the licensing of water is used in a consistent manner and protects the environment as well as the needs of the individual communities and, of course, in the long run protects, in a parallel way, the opportunities that the economy will present.
However, if you suggest that we should use this directly as a way of hiring residents of Nunavut, I would not think that that would be the intent of this legislation.
Senator Christensen: Again, we will perhaps go over some of the things that we have been going over because these issues are very important.
All of our witnesses from Nunavut were in agreement, with the exception of the mining companies who, of course, need some certainty in order to get their licences and their financial backing. I would think it would be very difficult to get a straight-out agreement as opposed to legislation. That is what their backers do need in order to progress. Certainly water licences are important to the development of that industry.
I will come back to the non-derogation clause. I believe you said it has been used since 1996. Is that correct? Prior to that, in the wording there, you were using section 25 of the Charter?
Mr. Nault: Yes.
Senator Christensen: You said that section 25 might perhaps give rights than was implied by the section 35. Is that correct as well?
Mr. Nault: The intent of the Department of Justice was to clarify the difference between what section 25 in the Charter is intended to do versus what section 35 was intended to do. They are different clauses. Let me are read section 25 for you. This is in the general section:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to and abrogate or derogate from any Aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada including
a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
This, of course, is not intended to be an explanation of section 35.
Senator Christensen: It is not all-inclusive in your view. Perhaps something is being missed, whereas when we just quote section 35 it is all-encompassing. Is that the argument?
Mr. Nault: That is the argument.
Senator Christensen: It makes sense to me, but I am not a lawyer so maybe that is why.
The non-derogation, it is word-for-word, which is in Bill C-39 that we will be getting, but I also understand that some of our witnesses might be challenging that as well so I prepare you.
The fee for water use is set out, and it says that it may make regulation to set those fees. It does not necessarily mean that a fee would be charged, that through regulation there may be some exceptions set out that certain uses may not have a fee, certain groups may not have a fee, municipalities, whatever. Is it correct that it can be set out through regulation? It does not necessarily mean a fee has to be paid?
Mr. Nault: That is right. Many parts of the use of water would be considered to be of an individual or community nature such as flooding an outdoor hockey rink. We obviously would not charge a fee for that, but it is a use of water. The intent of fees for the use of water is mainly for the commercial use of water. That is the objective of the regulation-setting exercise.
I want to make another issue extremely clear. I am a bit surprised because if you accept the remarks I made earlier to Senator Adams, that it is the objective of the Government of Canada to devolve authority to northerners, then eventually the setting of fees and licensing will become the responsibility of the public government of Nunavut.
If we were to take this right away now it would make it extremely difficult for the public government of Nunavut to have their administrative costs managed through licensing and fees. I am surprised that people would be opposed to that because governments, of course, have to find a way to deal with their costs. That is why I am a little bit surprised that this has become an issue for the public government and/or, I suppose, for NTI.
Senator Christensen: There is a third issue that has been raised by all parties. There seems to be real concern on all these of these issues. It is difficult to appreciate where they are coming from in some cases on the ministerial authority.
In the agreement - as we understood from the witnesses - neither the Wildlife Management Board, which is a quasi-advisory board I assume because it is similar to other places, nor the Nunavut Implementation Agreement Board, which again would be reviewing and implementing, would be hearing evidence or making licensing or anything else. They also say that in the water and subsurface rights tribunal section, it is not clear like it is in the other two sections. That is why this legislation is then being implemented. Because it was not clear this legislation is in there.
Could you perhaps speak to those three different kinds of boards, and the tribunal, as well as the differences and why one is clear and the other is not?
Mr. Nault: Let me put it to you in the terms that I understand. The difficulty at this time is we are now having witnesses come forward to suggest that while they were at the table as a negotiator they made certain interpretations. I was not at the negotiating table so I am at a slight disadvantage in speaking to the intent.
There is significant language in the claim dealing with those particular boards because they did not exist in Nunavut at the time. Because we already had a water board through the Northwest Territories Act, we had a lot of experience. As it has been explained to me, there is little language in there because they expected to use the present board that already existed. We had gained 30 years of experience with those particular board members, the regulations and the concluding decisions to give licences.
If that were not the case, then why was this particular area not pursued in a more fulsome manner? I would ask myself that question as an ex-negotiator who has been at a few tables in the past. I would have explored this in detail. It was not explored because there has been a solid history of this over the past 30 years.
People say that we are trying to reinterpret. We are merely taking existing legislation for other jurisdictions and putting in legislation in order to clarify the roles and obligations, and continue, to some extent, with the status quo that has continued for 30 years in the territories north of 60. We want to get away from the problem that we are having now with board members taking the opportunity to define their roles and responsibilities because it does not exist in legislation.
Senator Christensen: We have the elected person, the minister, being responsible for a board that is an appointed board. I would assume that the same would be true in Nunavut, as it is in the Yukon. When the devolution process takes place, would that authority then be given to the elected persons of the Nunavut government?
Mr. Nault: It is a key principle of democratic, parliamentary governments to which we are accustomed. Ministers are accountable for their legislation and for their decisions.
Again, I have asked this question because I cannot quite figure how this will work. If the Minister of Indian Affairs and Northern Development, at this point in Nunavut's history, does not have responsibility, you would conclude that the minister would not have liability. Who will pay, if it is not the Minister of Indian Affairs and Northern Development, if something were to go wrong environmentally? Is Nunavut government prepared to take on that role? Will NTI be willing to undertake it?
I would be interested if you would ask them that question. We have accountability so that I will be held liable for issues, if they arise. When we transfer, the Yukon government will be responsible in the Yukon for liabilities dealing with the environment and matters pertaining to regulation and licensing. Why people would want to take the role and responsibilities of the Minister of Indian Affairs and Northern Development out of this bill is beyond reason in my view. I cannot understand why that would be the case.
I would be more than pleased, if I am still a Member of Parliament in 10 years - which I hope to be - and the minister responsible, I would certainly advocate that the Nunavut government have complete control as a public government over those liabilities. However, at this point, I do not think that would be a good argument to make based on the fact that we are a long way away from there as far as devolution is concerned.
Senator Christensen: You raise an important point regarding accountability and responsibility. The water licences are granted to mining companies. The licences are granted. There must be an authority for mine closures and the lapsing of those licences. That is a good point.
Mr. Nault: I would make one last point about that. If there were no clarification of liabilities or responsibilities of board members and the minister of the Crown, I do not think you could get a person to sit on that board. You have to think about the legal aspects of that. Ultimately, I am responsible for the actions of the board under this bill. Rightfully so, I should be. I do not apologize for that. I think that is good public policy and good government, Mr. Chairman.
Senator Banks: I am on another committee that is dealing with a bill that has a non-derogation clause. I know that this matter has been discussed a great deal. Would you turn your mind to that again? I forget what year it changed.
Mr. Nault: 1996.
Senator Banks: 1996. There are several bills, some now before us and some with which we have dealt in the last little while, that have contained the non-derogation clause. Each time that I have asked the question as to why it was changed from the one that existed pre-1996, I have received answers that I have understood slightly differently, in my legal ignorance.
I am assuming that the reason for the introduction of a differently worded non-derogation clause is that it makes more clear, in a more restrictive way, the application of section 35 of the Charter of Rights and Freedoms.
Assuming that is correct - and if it is not please correct me - what is the nature of the restriction in this wording of the non-derogation clause as opposed to and compared with the one that existed before 1996?
Mr. Nault: I will go back to the comments I made earlier. That this is intended to be clear. It is intended to not change the rights of Aboriginal people - the Inuit and others outside of Nunavut who are affected by this legislation. It is intended to flag for people the protection provided in the rights under section 35.
I wonder what many people would say, if we just took it out, and did not have it in any of the bills. I think that you would have quite a reaction from a number of Aboriginal people who would say that it must be in there. I am surprised that a couple of groups have said to not put it into the legislation, or change it. My view is that it is there because it has been requested of us for many years that section 35 be flagged in order that it not be confused with section 25 under the Charter.
That was the intent of the change in 1996. Since that time, we have passed a number of pieces of legislation. It has not been before the courts that this has changed nor diminished the rights of Aboriginal people in any way. Until someone can show the government, that this has done that, then we maintain that it is a clarification. The real issue dealing with Inuit rights are in the claim itself.
That is the message that I have been trying to send this morning. With or without this particular clause, the wording in the claim is the important aspect that you should remember. That is reiterated in clause 3.1 of the bill itself.
There is a point that I wanted to make when the premier suggested that we could pass other legislation. It is clear inclause 3.1, which states: "Where there is any inconsistency or conflict and between the Agreement and this Act, the Agreement prevails to the extent of the inconsistency or conflict."
Clause 3.2 notes that: "Where there is any inconsistency or conflict between this Act and any other Act ... this Act prevails." I could not pass another piece of legislation, as was suggested by the premier a few minutes ago.
We have gone above and beyond the protection under the non-derogation clause to make sure we protect the rights of the Inuit. It is not in any way suggesting that we are trying in any way to diminish those rights.
Senator Banks: Would you be less happy with the pre-1996 non-derogation clause in this act than you are with the present one?
Mr. Nault: We would be less happy because it is our view that it is not as clear. Therefore, the courts may interpret it differently than we think they would. The objective of our making it very clear in the 1996 change was to ensure that the courts will not be able to interpret it in a different way than we had intended.
Senator Adams: There is a provision in this bill for the placement of the staff of the surface rights water board. You mention a specific the community. I am not so certain that that is the right place, even though it is a very nice community. If someone from the water board should ask that that be changed, would you be amenable to changing it?
Mr. Nault: We are talking about the head office?
Senator Adams: Yes.
Mr. Nault: This is interesting. We had suggested one location. The board came back to us and suggested another. We agreed with them, and now we have a problem. You, on the one hand, tell me I should let the board do its job. I let them do it, and then I am criticized because I let them choose the location for the head office. I am finding it difficult to reconcile those two discussions.
In fact, for licensing purposes, it is always necessary to have a home address. Many things are done by registered mail, and many things are done by fax. You need, for legal purposes, a head office. We have chosen Gjoa Haven. It is pretty safe to say that the federal government pays for all the expenses of the board operations. Certainly, we continue to reserve the right to move it if we think it would make some sense.
I was trying to accommodate a local interest and a local need. If you or the premier or someone else suggests we move it, I would be willing to entertain that. That is not a major issue. We do not have to change the legislation to do that. You can have a home address and continue to have other offices in other locations, which we will anyway, in other parts of the country, Senator Adams. I can only answer your question that way on that particular issue.
Senator Adams: We have dealt with Bill C-68. At that time, Nunavut wanted control of hunting rights rather than having them regulated by the Government of Canada. At that time, we were negotiating with Allan Rock, and when that bill was ready to be passed, he said, "We are all Canadians."
I hope that Bill C-33 will be treated in such a way as to create community, because many Inuit were upset with Bill C-68. We recognize that the same people are living in Vancouver and Toronto and Montreal, and that we are living in smallcommunities, living off the land. I hope that Bill C-33 does not create problems for the people in the communities and the settlement of land claims.
Mr. Nault: I hope it has not been interpreted by some of the witnesses that we are somehow trying to treat the communities and the people of Nunavut in a different way than we would treat other Aboriginal people in the Canada, whether in the Northwest Territories or the Yukon.
I suggest to you, senator, clearly, that when we begin future negotiations with Nunavut on devolution, it will, as it is with the Yukon, be intended to improve the governance of people, the governance of the territory, and to use governance as a tool to build the economy. That is our only objective. This is one of those governance tools. It is not intended to diminish anyone's rights. It is intended to administer a particular area of public policy that is important to all Canadians, which is water in this particular case.
The Chairman: Thank you, honourable senators, and Mr. Nault and officials for coming to speak with us.
The committee adjourned.