Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 41 - Evidence - April 18, 2013
OTTAWA, Thursday, April 18, 2013
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 15, An Act to amend the Canada National Parks Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to the Canada Shipping Act, 2001, met this day at 8 a.m. to give consideration to the bill.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Richard Neufeld. I represent the province of British Columbia in the Senate, and I am chair of this committee.
I would like to welcome honourable senators and members of the public with us in the room, and viewers all across the country who are watching on television.
I will now ask the senators around the table to introduce themselves. I will start with my deputy chair, Senator Grant Mitchell, from Alberta.
Senator MacDonald: Michael MacDonald from Nova Scotia.
Senator Ringuette: Pierrette Ringuette from New Brunswick.
Senator Lang: Daniel Lang, Yukon.
Senator Massicotte: Paul Massicotte, Montreal.
Senator Wallace: John Wallace, New Brunswick.
Senator Unger: Betty Unger, Edmonton, Alberta.
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator Patterson: Dennis Patterson, Nunavut.
The Chair: I will also introduce our clerk, Lynn Gordon, and our two Library of Parliament analysts, Sam Banks and Marc LeBlanc.
Bill S-15, An Act to amend the Canada National Parks Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to the Canada Shipping Act, 2001, was tabled by the Leader of the Government in the Senate on February 12, 2013 and was referred to our committee on March 27, 2013. The proposed legislation will establish the Sable Island National Park Reserve of Canada.
This is our second meeting on Bill S-15. On Tuesday, we had the Canadian Parks and Wilderness Society, as well as the Government of Nova Scotia and the Canada-Nova Scotia Offshore Petroleum Board.
Honourable senators, it is my distinct pleasure to welcome the Honourable Peter Kent, Minister of the Environment. Minister, we are always happy that you have the time to meet with us, and we enjoy our discussions. We welcome you and thank you for taking the time to be with us today.
I would also like to welcome from Parks Canada, Alan Latourelle, Chief Executive Officer; and Kevin McNamee, Director, Parks Establishment, Protected Areas Establishment and Conservation.
Before we start, I would like to remind all senators, and I will be keeping a close watch on it, that we are here to examine Bill S-15, and I would like to keep the questions and all the answers focused on the bill.
Mr. Minister, if you would, please.
Hon. Peter Kent, P.C., M.P., Minister of the Environment: Thank you, Mr. Chair, honourable senators, ladies and gentlemen. Good morning. It is always a pleasure to enjoy the hospitality of this committee.
I am pleased to attend today to speak to Bill S-15, the expansion and conservation of Canada's National Parks Act. As you know, the bill has two parts. The first deals with the establishment of Sable Island National Park Reserve of Canada, while the second amends subsection 4(1) and schedules 4 and 5 of the Canada National Parks Act.
First and foremost, the bill will ensure that an iconic and valued Canadian landscape, fabled for its wild horses, shipwrecks and one of the largest dune systems in Eastern Canada, will be protected as a national park reserve for the benefit of Canadians now and far into the future.
In the June 2011 Speech from the Throne, the Government of Canada made a commitment to create new protected areas. Bill S-15 delivers on that commitment. The bill also fulfills the Government of Canada's 2011 agreement with the Province of Nova Scotia to establish a new national park reserve on Sable Island.
[Translation]
By bringing Sable Island under the Canada National Parks Act, we will be giving it the highest level of protection available to ensure that the unique character and special natural and cultural features of Sable Island are protected for present and future generations.
[English]
Senators, Sable Island is a special place geographically, historically and ecologically. I grew up with a child's fascination of this fabled place, and that was not diminished when I was privileged to actually pay a visit to the island last summer.
It is one of the most isolated places in Canada, one of the most isolated islands in Canada, a 42-kilometre long sandbar on the edge of the Continental Shelf, about 290 kilometres southeast of Halifax. It is home to some 190 plant species; it is a sanctuary for some 350 species of migratory birds, and it is the nesting ground for virtually the world's entire population of the Ipswich sparrow. To most Canadians, Sable Island, of course, is famous for its herd of wild horses and infamous for being the "Graveyard of the Atlantic," where hundreds of ships have foundered over the centuries.
I mentioned earlier that Sable Island will be designated as a Canadian national park reserve. A national park reserve enjoys all the same protections as a national park and will be managed in the same way. This national park reserve designation respects assertions of First Nation rights pending the conclusion of negotiations between the Mi'kmaq, Canada and Nova Scotia under the "made in Nova Scotia" process.
Sable Island is located in one of the largest offshore hydrocarbon basins in North America and, as late as the 1970s, petroleum wells were drilled on the island. Offshore petroleum resources in the area are administered in accordance with the legislation passed by the governments of both Canada and Nova Scotia to implement the Canada-Nova Scotia Offshore Petroleum Resources Accord.
To create a national park reserve on Sable Island, the Governments of Canada and Nova Scotia agreed to amend these acts to prohibit drilling for petroleum on the island and out to one nautical mile from the island. This drilling ban was supported by the existing holders of significant discovery licences, including Exxon Mobil, who agreed to amend their licences to reflect this drilling ban.
Sable Island National Park Reserve has been created under unique circumstances. It is in the middle, as I have just said, of an active petroleum field where petroleum exploration and exploitation will continue under the terms of the offshore petroleum accord acts. Bill S-15 provides legally enforceable protection of Sable Island, which to date has been done on a policy basis. As such, this bill is not establishing a precedent for the establishment of future national parks but, rather, carving out legal protection for this special piece of Canadian heritage.
[Translation]
This bill also amends the Canada Shipping Act, 2001, to remove reference to Sable Island and to effect the transfer of the island from the Canadian Coast Guard to Parks Canada. The Sable Island Regulations will be revoked and, instead, the island will become subject to the regulatory regime under the Canada National Parks Act.
We would like to acknowledge the excellent work of the Coast Guard over its many years of administering Sable Island.
[English]
Every year some 50 to 250 people, depending on the year, depending on accessibility, very unpredictable weather and landing conditions, visit Sable Island. They include artists, filmmakers, photographers, journalists, researchers, naturalists and tourists. Parks Canada will work with partners to offer opportunities for Canadians to discover, to appreciate and to better understand this unique and iconic treasure while at the same time protecting Sable Island's dynamic dunes, wildlife, plants and cultural resources.
I would now like to turn to Part 2 of Bill S-15, which addresses various other amendments to the Canada National Parks Act unrelated to the establishment of Sable Island National Park Reserve.
First, the bill proposes amendments to section 4 of the Canada National Parks Act to fix the discrepancies between the English and French versions and to clarify that all federal acts apply to national parks.
[Translation]
The bill also makes minor amendments to the description of the commercial zones for the community of Field, British Columbia, located within Yoho National Park of Canada. These zoning modifications are minor, they are supported by the community, and they are well within the legislated commercial growth limit. The changes will help support services required by park visitors and the town's businesses and residents, and they are important to the economic viability of the community of Field.
[English]
Finally, clause 15 of the bill proposes amendments that affect Marmot Basin Ski Area, which is located just 20 minutes from the town of Jasper within the boundaries of Jasper National Park of Canada. Mr. Chair, development of a ski area within a national park is controlled by the terms of leases and licences of occupation, and by legislation. For example, the boundary for each ski area within a national park must be set out in Schedule 5 of the Canada National Parks Act. Ski areas are also controlled through ski area management guidelines that provide common direction to maintain ecological integrity and economically viable ski area operations within certain national parks. These guidelines are supplemented by site-specific guidelines to control development and the use at each ski area. The ski area operators work with Parks Canada to develop their site guidelines, which set out the scope, nature and location of potential developments that may be considered for the ski area, and sets the conditions.
[Translation]
Marmot Basin ski hill needs to provide additional facilities and services in order to remain competitive. The operator has, therefore, proposed a modification of its leasehold boundary, a change that will result in a substantial environmental gain to the ecological integrity of Jasper National Park.
[English]
Marmot Basin Ski Area has offered to remove from its lease and return to the park 118 hectares of ecologically sensitive land in what is known as the Whistlers Creek Valley. The area is an important habitat for the woodland caribou, the southern mountain caribou, which is listed under the Species at Risk Act. The area also contains natural mineral licks that attract mountain goats, and it is habitat for sensitive species such as the grizzly bear, wolverine and lynx.
Mr. Chair, this is an ecologically important area of Jasper National Park. Removing the area from the leasehold prevents any future commercial development in this sensitive area. The boundary change must be included in Schedule 5 of the Canada National Parks Act, as outlined in the provisions of the bill before you.
In exchange for the 118 hectares in the Whistlers Creek Valley, the ski area would receive 60 hectares of comparatively less environmentally sensitive habitat to be used for new ski trails and beginner runs. The bill before us also provides the opportunity to address an oversight in the original survey, which omitted a two-hectare piece of land used for a ski hill infrastructure at the lower end of the ski area.
Mr. Chair, the bottom line is that the provisions for Jasper National Park in this bill will increase the declared wilderness area of the park by a net total of 56 hectares. However, most importantly, it adds 118 hectares of ecologically important land in exchange for land that is less ecologically sensitive. These changes were consulted on during the preparation of the Marmot Basin Site Guidelines and also for the Jasper National Park Management Plan. A regulatory process to change the boundaries currently outlined in the National Parks of Canada Wilderness Area Declaration Regulations will proceed on a parallel track to this bill.
Mr. Chair, this bill, I believe, brings positive benefits to the people of Canada. It establishes Canada's forty-third national park by protecting a unique and storied place off the shore of Nova Scotia. It enables changes to enhance the economic viability of the community of Field and in Jasper National Park it maintains Parks Canada's authority to achieve management objectives to protect sensitive ecosystems while at the same time creating greater certainty in land use.
This government is committed to ensuring that Canada's national parks offer visitors inspiring experiences and meaningful opportunities to connect with these parks while ensuring the protection of these special places for present and future generations.
The Chair: Thank you, Minister Kent. We will commence our questions beginning with the deputy chair, Senator Mitchell.
Senator Mitchell: Thank you, Mr. Minister. I know you addressed the dedication clause, but there is concern that when you change the clause from "this bill is subject to this Act of Parliament" to "any Act of Parliament" that "any Act of Parliament" could begin to encroach upon the protections under this bill. Could you clarify that? Do you foresee that or is that absolutely inhibited in some way?
Mr. Kent: No. There are a number of ways of looking at the impacts and consequences intended and unintended from any modifications of law, but I am assured that there will in fact be no unintended negative consequences from these changes.
Senator Mitchell: Could you tell us again why it is that the change was made? What is the relevance of that?
Alan Latourelle, Chief Executive Officer, Parks Canada: There are two reasons for the change. One is to correct the French and the English. That is the one part.
Also, the Standing Joint Committee for the Scrutiny of Regulations has identified some conflicts from their perspective, which we do not agree with, between the Canada National Parks Act and the Parks Canada Agency Act in terms of the minister's authority to set fees in national parks. That is what we are trying to fix, and that has been ongoing. It is been about a decade that we have had discussion with them on this issue.
We are trying to resolve those two issues through this change. That is the only purpose of the change.
Senator Mitchell: The good news is that this area will be protected, and that should result in even greater attraction of tourists and visitors and people who could enjoy it for various reasons, but it also puts pressure. You mentioned this process of people visiting being managed under your department. Will that require more resources? Have you a specific plan or some kind of an organized approach, and have you got some money for it?
Mr. Kent: Absolutely. As you know, Parks Canada assumed authority over Sable Island just in the past year, and we are taking a look at improvements and cleanup that needs to be made on the island. There are some old, decrepit structures on the island. There are old fuel tanks. There is some minor petroleum product contamination in different locations. There are infrastructure issues with regard to how we will work going forward as Parks Canada. There is an Environment Canada weather station, as you know, on the island. We are looking at ways.
Access to the island now is very difficult. Cruise ships can pull into the area when weather conditions allow. Zodiac boats can take small numbers of people onto the island, where they are escorted and supervised in their visit to the island. There is also air accessibility onto the sand strips on the coast, but again it depends. The weather is very unpredictable. Many times flights leave from Halifax and cannot land because low ceilings have moved in or storms have come across. Also, with the moisture content of the sand, if it is too low, the aircraft cannot land, and if it is too high or too wet, they cannot land. The weather station superintendent, eventually the Parks Canada superintendent, will have authority and must go out and inspect the proposed landing area on any given day and make sure it is safe.
Parks Canada, as you know, has a world-class record with visitor experience, but this is a park unlike no other in our inventory, so we are at a point now of considering a whole range of options to maintain an acceptable visitor experience while at the same time protecting the ecological integrity of the island.
Senator Mitchell: I appreciate the patience of the chair. There is a suggestion by the Mi'kmaq people of a concern with the consultation process, that they were not consulted until quite late in the process. Could you address that?
Mr. Kent: I understand that has been raised, but in fact the consultation process has been extensive and ongoing, and it will continue. The designation of Sable Island as a national park reserve does not put any deadlines or constrain all parties from continuing productive and satisfactory negotiations.
Senator MacDonald: Mr. Minister, it is great to have you here this morning. Sable Island, Nova Scotia, of course, is an important petroleum centre. You are being challenged with the opportunity to create a park reserve right in the middle of an active petroleum field. This committee has been told that there is up to about a dozen commercial discoveries within 20 kilometres of Sable Island. I am curious if you can explain to us how you got around the challenges of establishing a park reserve in a field such as this.
Mr. Kent: Thank you. Your assessment of the situation is accurate. Talks have been going on for some time, but the oil and gas sector, and particularly Exxon, have demonstrated, I believe it is fair to say, great corporate social responsibility in terms of their willingness to relinquish surface rights on Sable Island. As you know, there are nine capped wells, previous wells, still on the island, with very minor or very little impact on the island itself, the habitat or the wild horses. You can see as you fly in, and you can certainly see on the island, three major drilling platforms nearby. However, the technology today, the practices and protocols of the offshore industry, again, regulated by the offshore petroleum board, provides for very stringent precautions. Any proposals to do horizontal drilling under the island, subsurface access, would be proposed and authorized only through the offshore petroleum board.
I could add one small point. There is a helicopter platform which would be used as a potential, should any misadventure occur on the offshore platforms.
Senator MacDonald: I was supposed to helicopter in about two years ago with Fisheries, and the weather turned and we could not land. I was disappointed. I was always hoping to go to Sable Island. I hope I get an opportunity to do so in the future.
I want to turn to Marmot Basin for a quick question. Concerns have been raised in previous meetings that the trade- off is one that is not necessarily environmentally or ecologically sound, even though, in the exchange of land, Parks Canada ends up with twice as much land. Can you respond to that?
Mr. Kent: As I said in my remarks, we think there is a significant net benefit because part of the 118 hectares that is being set aside is important wilderness habitat. We do have issues. I do have challenges under the Species at Risk Act with regard to the southern mountain caribou population, and this is a herd that is subject to consideration for greater protection. It is adjacent, abuts and extends the wilderness area beyond the park itself. The trade-off for the smaller area on the other side, which is again within the development area and development impact area of the existing park, is that the ecological values of that area are significantly less than the 118 hectares proposed to be transferred.
Senator MacDonald: In terms of the caribou, my understanding would be there would be an ongoing plan put together to deal with this issue.
Mr. Kent: Absolutely. That provides in the park as well as in the broader range of the southern mountain.
Senator Seidman: Thank you, minister, for the presentation. You talked in your presentation about the Canada- Nova Scotia Offshore Petroleum Resources Accord. I would like to get a better understanding about the relationship between Canada and Nova Scotia and who is responsible. There are two things to be responsible for here. There is the park, and there is the management of petroleum resources. If we could get an idea of how this accord works and the oversight of both those aspects, I would appreciate that.
Mr. Kent: The relationship, I think, in a single word, is excellent. The protocols of the board, the agreement for the establishment of the board, provided for oversight and reporting to both the governments of Nova Scotia and Canada. There was a reference, as you know, in the environment commissioner's report earlier this year with regard to increasing the capacity of the boards to greater improve their oversight and their abilities to properly provide for offshore exploration. As you know, the government has accepted that. Across several departments, we are engaged in looking at ways that can be improved. I think the record of offshore exploration and development is an excellent one, and we will continue our commitment to ensure that it operates with an environmentally sensitive but economically stimulating goal in the years ahead.
Senator Seidman: I will pursue one aspect of that. As I say, it is oversight and management of both the park and the petroleum development.
Mr. Kent: Yes.
Senator Seidman: As you say, it is unique circumstances as an active petroleum field.
In terms of oversight of the petroleum aspect of it, and petroleum development, who is responsible for the risk management and safety issues?
Mr. Kent: Are you speaking of the offshore drilling platform and the production work going on? That would be under the National Energy Board and the offshore petroleum board, would it not, Mr. McNamee?
Kevin McNamee, Director, Parks Establishment, Protected Areas Establishment and Conservation, Parks Canada: Yes, the Offshore Petroleum Accord signed in 1986, as well as the legislation that put it in place, have a substantial number of sections that deal with safety. It is the board.
With respect to the national park and as part of the amendments in front of you, we have agreed that industry would continue to have access to Sable Island in emergency situations. We would maintain the helicopter pad. If there were an emergency, they could use the island.
On top of that, ExxonMobil has a code of practice in place for their employees that directs them to only access Sable Island in emergency situations; they are to only put down on the island for safety, emergencies and things like that. However, it is the board that ultimately controls that.
Senator Seidman: Is that the Nova Scotia board?
Mr. McNamee: The Canada-Nova Scotia Offshore Petroleum Board.
Senator Seidman: There is oversight by Canada and Nova Scotia, then; is that correct?
Mr. Kent: It is a joint board, yes.
Senator Patterson: I want to commend the department. It is great to see how the Canada-Nova Scotia Offshore Petroleum Board, the Government of Nova Scotia, industry and other stakeholders have all worked together to achieve what I think is a balance among the various interests.
I want to raise a somewhat sensitive issue. It is the first thing I asked about when I heard about the establishment of the park reserve. I had sat on the Senate's Fisheries Committee, which examined the issue of the grey seal. As you might know, minister, Sable Island is the major breeding ground for grey seals in the Atlantic. Those animals, which can weigh a tonne and a half and eat over a tonne of fish per year, evidence suggests, have been implicated in the viability of our commercial fishery.
I just want to be assured that if your colleague, the Minister of Fisheries, acts on the recommendation of the Senate committee, which was that a controlled, carefully managed harvest or cull should occur, that this would be possible within Parks Canada guidelines and under your stewardship.
Mr. Kent: I am aware of the situation. It has been discussed in the past. No decisions have been taken in this case. The grey seal does represent an overpopulation, which is a significant threat to the recovering fishery off the East Coast.
However, that would be a cabinet consideration and decision. No proposals have been received by us.
Senator Patterson: I have been told in briefings by your department officials that Parks Canada guidelines would allow a controlled, carefully managed harvest to occur, should the relevant minister —
Mr. Kent: Species management is allowed in all of our national parks.
Senator Patterson: Thank you.
Senator Massicotte: Thank you for being with us this morning.
I want to touch again on the Mi'kmaq, given our sensitivity and collective sense of these people and to the process. We received some correspondence that you have seen, and they certainly acknowledge that they agree in principle with the establishment of the reserve. They seem to agree with all the objectives.
However, I think they were disappointed by not being consulted in the preparation of the legislation that is being proposed. Should they have been so consulted in preparation of legislation?
Mr. Kent: I have not been directly involved in those consultations, but consultations have taken place. I think Mr. Latourelle can best respond to the specifics.
Mr. Latourelle: Since the announcement to pursue the national park reserve concept, we have had conversations with the Mi'kmaq that have been productive. We are now negotiating with them a collaborative agreement in terms of the management of the park and funding they have requested for archaeological resource assessments, for example. We have on record a letter from them from 2010 supporting the concept of proceeding with a national park reserve for Sable Island.
Senator Massicotte: I think they agree with the principle. However, I think they were disappointed they were not involved in the legislation. Maybe they were. Should they have been consulted to that level?
Second, they are also asking that the government fund their archaeological studies and so on. Is there a dispute there with the latter?
Mr. Latourelle: No, we agree with the studies. As we do elsewhere in our national parks or historic site systems, we work with Aboriginal communities and peoples. We fund research from their perspective in terms of traditional knowledge and history. We would do that in this case, also.
We are at the point where we are in discussions with them about the funding. I know we will fund it, but the issue is how much and what the plan is. We are working together on those.
Senator Massicotte: What is their disappointment? They seem to be saying they are not happy. What is the issue? Are they totally off the wagon? Why are they raising this, do you think?
Mr. Latourelle: I cannot speak for them. From our perspective, we want to work with them and continue the relationship with them. They were at the event when we announced the concept of the national parks. They were supportive. We want to continue working with them to complete the consultation process in terms of the collaborative management of the national park reserve and support them financially through our commitments in terms of the research that needs to be done from an archaeological perspective.
Senator Massicotte: Minister, could you have the knowledge of the correspondence you have received — to follow up to ensure in your own sense that our moral and constitutional obligations are met?
Mr. Kent: Absolutely.
I will add that the consultations that will now take place before we would be able to change the designation from a reserve to a full Canadian national park are the complementary measures and agreements that are intended under the commitment to consult. Therefore, all of the matters that Mr. Latourelle mentioned are yet to be resolved, and that is the purpose of the continuing consultation process.
Senator Massicotte: On that note, you use the word "reserve" for provincial expropriations, and in other legislation — it is provincial — there is a deadline of two years where if they want to maintain reserve, they have to extend it, and there is a time limit. Is that the case for national parks? This reserve is not a full-fledged national park.
Mr. Kent: Last year we announced the creation of the Tlicho National Park Reserve, just north of Nahanni, abutting the Nahanni National Park Reserve of Canada. It is still a reserve because we still have pending land issues to be negotiated with First Nations. There is no limit. As you know, negotiations on land and treaty issues can, in some cases, be relatively short and in others cases relatively long.
Senator Massicotte: It could be 10 or 20 years, then?
Mr. Kent: There is no expiry.
Senator Massicotte: The only difference between a reserve as opposed to a real park is that it at least freezes people's rights without prejudicing their rights, yet it protects any future development or change in status; is that accurate?
Mr. Kent: Yes. The management of the park would be under the protocols that exist in national parks across the country, specific to the park but the general protocols.
Senator Massicotte: Just jumping to the Marmot ski situation in Jasper National Park, we talk a lot about the importance of the caribou and so on, but I think we are talking about 100 acres net addition to the park that the ski operator is giving up?
Mr. Kent: It is the adjacent. Do you have the map?
Senator Massicotte: I do not, but I have the acreage and the hectares.
Mr. Kent: We can show you the map. It is basically a long almost rectangular strip of land adjacent to the main developed ski area. However, 118 hectares is a significant area. It will add to the wilderness area of the region. It is on the right in the black outline. There is a net ecological benefit in setting that aside. The area that would be transferred is in the lower left side.
Senator Massicotte: When you talk about a national park, it is not a lot of land.
Mr. Kent: Every bit of protected land should be considered as important.
Senator Wallace: Thank you, minister.
Minister, earlier this week the Canadian Parks and Wilderness Society appeared before us, and one of their recommendations was that the bill should be amended to prohibit horizontal drilling under Sable Island, and as well prohibit what is referred to as low impact exploration activity. I am sure you are well aware of their comments. What is your position on that?
Mr. Kent: I think the Canadian Parks and Wilderness Society is an honourable organization. They are very ambitious, and their ambition to protect more space, both on land and in offshore maritime protected areas, is to be complimented. In this particular case, I would respectfully disagree. Again, any proposal to do horizontal drilling under Sable Island would be subject to consideration and approval or not by the offshore petroleum board.
Senator Wallace: Is there any concern that horizontal drilling could present some risk to Sable Island?
Mr. Kent: No. No risks have been identified. Horizontal drilling is a very well established resource tool.
Senator Wallace: Minister, you mentioned that the bill would have the effect of providing protection to the island occurring in a legally enforceable right to enforce this protection as opposed to what has been treated on a policy basis to date. What is the distinction? How does that enhance protection of the island?
Mr. Kent: The standards that are applied by Parks Canada at all of our formal national parks and national historic sites go far beyond what normal good practices might be described as. The cooperation with regard to the science, with regard to the uses and with regard to visitor access would be defined. As I say, Parks Canada has only had the authority on the island for the past year, so Mr. Latourelle and Mr. McNamee and the superintendent are still in the process of identifying exactly what the priorities should be in the short term and longer term.
Mr. Latourelle: Again, based on the support of the industry in terms of the prohibition of drilling on the island, that is a significant conservation achievement. Sable Island National Park Reserve will be subject to the National Parks Act and regulations in terms of enforcement. It is also a great opportunity for visitor experience. Again, it is a sensitive area, but we have experience in Haida Gwaii national park reserve and heritage site of managing sensitive ecosystems with cultural resources.
Senator Wallace: The bill would permit what is referred to as low impact activities. Should we have any concern about these low impact activities presenting any environmental risk to the island?
Mr. Kent: No. As Mr. Latourelle said, in Haida Gwaii and in any number of other national park situations, the ecological sensitivities and the integrity of the local environment is paramount, and access to visitor experience is today still extremely limited. You are talking about a couple of hundred people maximum a year. We would hope to improve that visitor experience, but again it would be done with an eye to the sensitivity of the island.
Senator Lang: Thank you for coming, Mr. Minister.
I would like to draw our attention back to the question of the wild horses on Sable Island. I think most Canadians at one time or another have read about the horses on Sable Island and what they add to that particular area of our country.
The first question I have is in respect to the amendments of the Canada Shipping Act and the removal of the Sable Island regulations to be replaced by the regulatory regime under the Canada National Parks Act. My understanding is that wild-ranging horses are generally a provincial jurisdiction, but in this case they have been under federal legislation under the Shipping Act because they do not come under the species act. With the changes there, is it clearly spelled out in the Canada National Parks Act that Parks Canada does have responsibility for these wild horses that are ranging in an area such as this?
Mr. Kent: The short answer is yes.
As you know, senator, there have been, at various times over the years under the previous authority on the island, proposals to remove the horses. There have been discussions of the specific origins of the horses, how they came to be on the island and how they have managed to survive in fairly hostile environmental conditions, but under Parks Canada, the species will be protected.
Senator Lang: Just going further into that question itself, following on Senator Patterson and the question of the management of the grey seals, looking at the situation on Sable Island and the sensitivity of the ecology of that particular small island, have there been discussions in respect to the management specifically of that herd and, looking ahead, looking at your responsibilities that you are taking on and how we are going to manage that herd so that we keep the numbers to such a limit that the island can afford to have them wild ranging?
Mr. Kent: The seals do not present an ecological threat to the island, but the subject, as I said previously, has been considered, and no decision has been taken. Species management is a part of a national park's authority and responsibility.
Mr. McNamee: We had a number of discussions with other federal departments as we looked at Sable Island as a national park. We had extensive discussions with the Department of Fisheries and Oceans. DFO currently, and for a long time, has had a seal research program on the island, and that program would continue. Part of the bill provides Parks Canada with the ability to maintain and renew leases and licences of occupation, and DFO does occupy the island. We would continue that arrangement and welcome that arrangement. In fact, our staff over the last couple of months have had some discussions with DFO. We are working on an MOU to maintain that relationship.
Senator Lang: I want to discuss further the question of the future of the free-range wild horses on the island. Perhaps you could clarify for the committee what discussions have been ongoing in respect of looking ahead to managing that herd so it can be sustained on the island looking forward.
Mr. McNamee: Those horses have been on the island we believe since the mid-1700s. In terms of wildlife, if wildlife has been in place for longer than 50 years, it is considered wild to that area, so these horses will continue to stay there.
A number of universities have conducted research on the island looking at the history of the horses, their connection to the island, their connection to the ecology, the potential impact, and we would consider that kind of research. I believe the University of Saskatchewan is also a member of the current Sable Island Stakeholder Advisory Committee to the Coast Guard. They are involved. They would continue to be involved, and I would point to that section of the act again of leases and licences of occupation, that they have a facility on Sable Island. We would continue that research because, as we do in many of our national parks, it is a collaborative approach.
Mr. Kent: The numbers rise and fall depending on weather conditions. The herd is free ranging. It is quite a fascinating story. Zoe Lucas has written a number of books. She is a Halifax-based researcher who spends a great deal of time every year on the island studying and monitoring and offering advice on the species and the condition of the herds.
[Translation]
Senator Ringuette: Yesterday, we were asked some questions that, I must admit, made me think. The soil on the island contains just a small amount of resources. I am wondering why the current legislation maintains the privilege of accessing those resources, given that the amount is so small and that the marine soil has a much larger quantity of resources.
Should we not accept the recommendations of the group that would like to have that privilege removed? And in 30, 40 or 50 years, if we absolutely must access those resources even though the amount is very small, the legislation would be reviewed, taking into account the full range of new conservation technology that we hope to one day have here in Canada.
I find it very difficult to understand why we are not accepting the recommendation to remove that privilege. Certainly we want to make Sable Island a national park. I doubt that such privileges would be given in other parks in Canada. I admit that I do not see the logic in maintaining this privilege right now.
[English]
Mr. Kent: I think each park across the national parks system has its own unique identity and challenges and its own unique accessibility. Sable Island is unique. No other national park has the characteristics we find on Sable Island.
We will continue to work with the province. We will continue to work with the resource industry which surrounds the area. As I say, Parks Canada is just at the beginning of identifying how this park will be administered, unlike the others, what resources may be necessary to request in future budgets with regard to the identity, to the development, to the maintenance of the park. It is an area of unique historic ecological value that our government believes should be added to our formal protected spaces.
[Translation]
Senator Ringuette: I am not challenging the validity or the need to see Sable Island made a national park. Rather, I would truly like to see the group's recommendation accepted and, for the time being, to have removed the privileges to allow experiments to harvest so few resources in these geographic locations. If memory serves me correctly, I do not believe there are any other national parks in Canada where resource harvesting would be approved, even if it involved oil.
[English]
Mr. Kent: Again, we have different circumstances park to park across the country, but with regard to the horizontal drilling, potential horizontal drilling at some future date, that would be subject to the Canada-Nova Scotia Offshore Petroleum Board's consideration and after consideration a decision. However, as you know, I think the oil and gas industry, and particularly Exxon, is to be commended. On their own initiative, they have not had to be cajoled or begged to give up their surface rights, and I believe they told the committee on Tuesday that if we were to withdraw this potential future provision for horizontal drilling it would be a deal breaker and we would lose the opportunity to protect Sable Island.
The Chair: I think we are reaching the end of our time with the minister. We appreciate your time and your staff's time to come and answer some of these questions. I just briefly have one question on the consultation issue.
You told us that a year ago Parks Canada assumed responsibility for Sable Island from the Coast Guard. How many meetings were held with First Nations? Consultation means different things to a whole host of different people; I understand that. How many meetings were actually held with the First Nations in regard to what is transpiring now and moving forward? If you could give me the number of meetings, I would appreciate it very much.
Mr. Latourelle: I do not have the exact number of meetings with me, but one message I would like to leave with you is that we are still working with the First Nations. We want to continue that collaboration. We want to work with them to develop the collaborative management agreement that we have agreed that we want to pursue collectively and to provide some funding, like we did for our national parks, to continue this process. We could provide the information to the committee, but I do not have it here today.
The Chair: I appreciate that very much. I know you will move forward in that fashion. The actual number of meetings, actual discussions about what was taking place, would be very useful to us. If you could get that for us, please, we would appreciate it.
Thank you, minister, and the people with you. We will now have some other witnesses coming by video conference.
Welcome to the second half of our meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. We are continuing our examination of Bill S-15, the proposed legislation to establish the Sable Island National Park Reserve of Canada.
I am pleased to welcome, by video conference from Halifax, from the Assembly of Nova Scotia Mi'kmaq Chiefs, Gerard Julian, Co-Chair and Chief of Paqtnkek First Nation; and, from the Mi'kmaq Rights Initiative, Twila Gaudet, Consultation Liaison Officer. Chief Julian and Ms. Gaudet, thank you for joining us today by video conference. I know you are busy, and I appreciate the time that you are spending with us.
We received your brief and speaking notes. Thank you very much. I would invite you to deliver your remarks, please.
Gerard Julian, Co-Chair and Chief of Paqtnkek First Nation, Assembly of Nova Scotia Mi'kmaq Chiefs: Thank you very much. Good morning. I will open my remarks in Mi'kmaq first, if you do not mind.
[Editor's Note: The witness spoke in Mi'kmaq.]
I will go over in English what I said. I said: Good morning; my name is Chief Gerard Julian, from Paqtnkek Mi'kmaq Nation. Mr. Chair, members of the committee, fellow witnesses and guests, thank you for the opportunity to appear here today to discuss our concerns with Bill S-15.
I join you today as a representative of the Mi'kmaq of Nova Scotia, as Co-chair of the Assembly of Nova Scotia Mi'kmaq Chiefs, as the portfolio lead on energy and as chief of my own community, Paqtnkek.
We are frustrated that this is not the assembly's first appearance in front of one of your standing committees. Repeatedly, we have had to express our concerns and displeasure over the way in which your government has continued to conduct business with blatant disregard for the First Peoples of this land.
The Assembly of Nova Scotia Mi'kmaq Chiefs work, with delegated authority, to oversee any issues that are common to all of our communities, and today's issue is an example of that.
The concern that we bring to you today is not so much what is being presented to Parliament but the road — or the lack thereof — that brought us here.
As you are most likely aware, in February 2007, Canada, the Province of Nova Scotia and the Mi'kmaq entered into a framework agreement, known as the Made-in-Nova Scotia Process. This process, agreed to by your government, is the basis for consultation and negotiation, which are clearly still not being fulfilled.
Building on this agreement, we worked together to develop the terms of reference for the Mi'kmaq-Nova Scotia- Canada consultation process in 2010. The duty to consult and accommodate First Nations when the Crown's decisions may have an impact on Aboriginal and treaty rights has been recognized by the highest courts in Canada. We all know that means the Supreme Court of Canada.
Parks Canada themselves designate in their policies that they will take "into consideration Mi'kmaq asserted rights and title in Nova Scotia, which are being addressed through the Made-in-Nova Scotia Process," yet we have not been consulted on the contents, wording, scope or import of Bill S-15.
On a government-to-government level, we have been working hard to overcome issues, yet situations like this end up setting us further back.
In 2008, the Canadian government advised all of its departments that consultation was most effective if initiated as early as possible before decisions are made.
Despite this, the province and Canada signed a memorandum of understanding to pursue designating Sable Island as a national park or national wildlife area, on January 25, 2010. Parks Canada did not approach the Mi'kmaq to consult on this until five months after the MOU was signed. Knowing the historical importance of Sable Island and its sensitive ecological nature, we wrote to Parks Canada committing to being involved in the designation process. We, of course, wanted to learn more about the chosen designation and were informed, in writing, that a national park reserve is employed wherever there are outstanding rights and title which have been accepted for negotiation.
In the course of formal on-the-record consultation pursuant to the terms of reference, the Mi'kmaq advised Canada and Nova Scotia that we were in support of the national park reserve decision. We were also sure to advise Parks Canada that we expected to work closely throughout the entire process of bringing the designation to Parliament, developing a management plan, implementation and ensuring the protection of rights and title.
We stressed that though we were supporting the designation, we still needed to ensure that Parks Canada maintained the primary objective of protecting the island.
Obviously, as we stand here today, discussions between the federal and provincial governments continued without the Mi'kmaq. Despite being in formal consultations with both Nova Scotia and Canada about Sable Island, neither level of government sought input on the substance of their decisions.
In March 2011, the Crown published the third revision of the Parks Canada handbook on Aboriginal consultation, which clearly stated that consultation is "good policy" and legally mandated — the province and the federal Crown have a legal obligation here — in developing or reviewing legislation. Yet, the Mi'kmaq were never notified that this legislation had been drafted and would be presented to Parliament.
There is no question that the Crowns of Canada and Nova Scotia have failed to meet their duty to consult on this proposed bill. Our nation's desire and perspective is grounded in concepts that have been passed down from generation to generation, concepts of respect, integrity and environmental safeguards.
How can any government department make decisions on the lands and waters of our traditional territories without including the Mi'kmaq in these conversations?
When was Parks Canada intending to rejoin the consultation table on this project? Will it be like the MOU between Canada and Nova Scotia, where the Mi'kmaq were just an afterthought?
Canada and Nova Scotia need to involve the Mi'kmaq when decisions like these are being made. It is important that the Mi'kmaq be involved. The Prime Minister himself has to talk about nation-to-nation building and working together, yet you continue to exclude the Mi'kmaq in these discussions.
Given the work of the government and with a majority in both the Senate and House of Commons, it is a given that Bill S-15 will pass and come into force. It can only be assumed that Parks Canada personnel are already busy preparing for all the stages that will lead to a draft management plan. Yet, it is the expectation of the Mi'kmaq of Nova Scotia that we will be involved in providing input into the management plan, though we have not been invited to provide input and that we continue to be updated on the status of any work on the Sable Island National Park Reserve.
With the designation of a national park reserve, it is obvious that Aboriginal title to Sable Island has been recognized. There need to be reports on what, if any, archaeological work has been done on the island. We are concerned about past Mi'kmaq presence on the island. We should be a part of any ecological studies that need to be done and be involved in that archaeological study.
It is without question that Parks Canada should be funding the Mi'kmaq to begin to do this work. It is safe to say that because of past visitation restrictions, no one has specifically looked at the Mi'kmaq connection to this island. It is now time. The Mi'kmaq of Nova Scotia have supported Parks Canada in their work in the past. We supported the prohibition of drilling for petroleum on Sable Island, or within one nautical mile. In fact, we questioned if one nautical mile was sufficient distance and recommended that it be increased.
We also have pushed for the prohibition of any petroleum work or activity in Sable Island National Park Reserve, as the effects of seismic testing are still inconclusive. In the best interests of the lands and water of traditional Mi'kma'ki, it is our recommendation the park should remain closed to these activities. The bill states that it is limited to surface activity. I think we should really consider just not doing any exploration there until we have these archaeological tracks in place and studies and then possibly look at amendments to that legislation further on down the road, if that is possible.
We have come to you today, on behalf of the Mi'kmaq of Nova Scotia, to have these major concerns heard. We hope you can recognize how strongly rooted our concerns are in the traditions, lives and culture of our people.
The realities of how this bill was brought to Parliament will not only impact this one decision, but also the foundation that we have attempted to build in our nation-to-nation agreements.
We recommend that the appropriate next steps be to re-engage with the Mi'kmaq nation of Nova Scotia in formal consultations and to involve the Mi'kmaq of Nova Scotia in Parks Canada's information gathering about the archeology, history and ecology of Sable Island.
We recommend that you engage the Mi'kmaq in the development of a management plan for the island and also that you insist that all departments engage in formal consultation with the Mi'kmaq of Nova Scotia, under the consultation terms of reference.
It seems that certain departments within not just the federal government but the provincial government, choose to participate or not to participate in the consultation terms of reference and we would like to at least begin the dialogue, under law which has been mandated by the Supreme Court, that consultation take place with the Mi'kmaq and rights and title issues are being affected.
We hope you also recognize the importance of proper consultation. We ask that you recommend that in future, all federal government departments follow the process set out in the Mi'kmaq-Canada-Nova Scotia consultation terms of reference to ensure that never again are we blindsided by legislation to which we have had no input.
We'lalioq, and thank you for your time.
The Chair: Thank you very much, chief. We will go to questions now.
Senator Mitchell: Thanks to both of you for being here. I appreciate it greatly.
First, chief, are you saying that you are not actually meeting with Parks Canada officials now on an ongoing basis?
Twila Gaudet, Consultation Liaison Officer, Mi'kmaq Rights Initiative: I can answer that. We are meeting with Parks Canada officials locally — yes, we are. We are engaged in consultation at this level here in Nova Scotia.
Senator Mitchell: Have you been able to meet with Minister Kent or any other minister who might be Ð
Ms. Gaudet: No.
Senator Mitchell: You have listed a number of issues. I would like to see if you could summarize those. Beyond the issue of consultation, please talk to the substantive issues that you can see in this bill or that are precipitated by this bill. One is the question of archaeological study and another one is the offshore limit, which you emphasized. The third one is the question of seismic and its impacts; you are arguing that has not been adequately studied. I guess the seismic is actually done on the island and not offshore.
Could you answer two questions? First, is it true that the problem is that the seismic has not been adequately studied? Are there more than just those three substantive issues, rather than process issues?
Mr. Julian: Yes. First, we need to do the archaeological study and see what is there on Sable Island and find out what the Mi'kmaq presence is there. We need to do that before we start disturbing anything else.
I do not know what the results of the seismic studies might have on the environment of Sable Island and the Sable Island ponies that are there. That is of concern to us, as is the environment, the birds and all of the ecological activity there on the island.
What was the third point?
Senator Mitchell: Seismic. No, it was offshore issues.
Mr. Julian: The offshore limits. I will ask Ms. Gaudet to address that issue.
Ms. Gaudet: I will first add to Chief Julian's comments about the archeology. It is a fact that Sable Island was a part of the Mi'kma'ki, traditional Mi'kmaq territory, and we know Sable Island is much smaller than what it was originally. I know that it was originally much closer to or part of the whole of Nova Scotia. That archaeological component is certainly critical in substantiating the claim to the offshore.
We need more archaeological investigation, as well as traditional use studies, in that area.
Senator Massicotte: Thank you for being with us this morning. I just want to ensure we on the committee understand your disappointments with the government, because I understand you are consulting Parks Canada, yet you are disappointed with the lack of consultation.
Could you be more specific? You talk about your disappointment regarding lack of consultation with the proposed legislation. What is it in particular that you are disappointed with?
Ms. Gaudet: Yes. We have elaborated on the specific components within the act that we are concerned with, such as increased visitor experience; the seismic testing; and further archaeological, traditional and historical studies that need to be done on the island.
However, the real issue here is the lack of consultation on the actual bill itself — the drafting of it and the proposed amendments to it. There are proposed amendments to three pieces of legislation that we were not aware of. We were not involved in that drafting process and were not consulted on those proposed legislative amendments.
Senator Massicotte: The minister was with us an hour ago for approximately an hour. You did not get a chance to hear that witness, did you?
Ms. Gaudet: No, senator, we did not.
Senator Massicotte: We had received your comments and your correspondence before meeting with the minister. The issue was raised with the minister and with the government representatives. They argue pretty vehemently that they did consult with you many times. It is not clear whether they felt an obligation to consult on the legislation, per se, but they tell us that, with the nature of the process being a reserve, they certainly acknowledged that the discussion has not been complete and that you will be consulted extensively before the legislation and the process is complete. They acknowledge that there must be more geological testing. I think they want to discuss with you the extent of that testing and the costs.
Maybe you could review the comments that were made and come back to us if you are still not satisfied, and do so as soon as possible, if you do not mind.
Mr. Julian: I think our biggest concern is early engagement in these discussions with the federal government. They tend to want to consult after they have made decisions and after the bill has begun to be drafted. It is like things stand now; it is as an afterthought.
When things are in the beginning process, that is when consultation should begin, so we could we can get fully involved and not have to come in after the bill has been drafted and so forth. We would like early consultation. That is what we are talking about. It is law; it is what the law says.
Ms. Gaudet: I will add to the chief's comments. It is certainly our expectation to be fully involved in consultation for the full process and regarding future collaborative management of the island.
However, as the chief stated before, the real issue is that we were not consulted on the proposed amendments. I can assure the committee that we were not consulted on the proposed amendments that are in this bill.
Senator Massicotte: Again, I repeat: Maybe take a look at the comments that were made and come back to us in writing with your conclusions as soon as you can. You can appreciate it is difficult when you do legislation; you must get the approval of many people. Consultation does not mean you must agree with everything, but they must sincerely hear and try to respond to your objections. It is obviously a difficult process, but if you can come back to us with further information, we would much appreciate it.
[The witnesses confer among themselves.]
Mr. Julian: The other thing I am discussing with Ms. Gaudet is in regards to the —
Ms. Gaudet: The UN declaration.
Mr. Julian: — the UN declaration of clear and informed consent. The government is doing this as an afterthought. If you are to have clear and informed consent with regard to developing legislation and having Mi'kmaq involvement, nation-to-nation, as the Prime Minister said, those discussions have to begin early on, not after. I understand we do not have to agree, but we would like some input into this legislation in regard to Aboriginal Mi'kmaq title. That is our concern.
We were unable to pick up the audio of the minister because we were waiting to present before the committee. We will certainly go back and respond to you in writing on that issue.
Senator Patterson: Thank you, chief, for the presentation.
My experience is in the North, where Inuit negotiate with Parks Canada when national parks and park reserves are created. My experience there is that the park reserve is only the beginning of an extensive process with the Inuit, where they are full participants and the benefits they will achieve from the park are worked out.
Just looking at the situation with Sable Island and comparing it, I understand that there is a "made in Nova Scotia" process that involves the Mi'kmaq, Nova Scotia and Canada. It specifically addresses the Aboriginal treaty rights and self-government rights of the Mi'kmaq. I understand there is a framework agreement that was signed back in 2007, following an umbrella agreement, and that you do have a full participation in that process.
I also understand that there is a plan for a contribution agreement, which is still underway and which would allow the Mi'kmaq to participate in the development of the park, including, I understand, issues like the inventory of archaeological resources and other issues of concern to the Mi'kmaq.
What I wish to ask you, with that background, is whether or not you would agree that you do have a vehicle for getting involved in the details. The legislation sets out a reserve and a framework, but you will have, through the Made-in-Nova Scotia Process and through your specific agreements with Parks Canada, including a contribution agreement, the chance to fully participate going forward. Is that a fair description of what lies ahead?
Mr. Julian: Yes, it is a fair statement. It is nice to have a vehicle to do that, but I think we need some riders in that vehicle along with us to allow participation a little bit earlier on in discussions.
Senator Patterson: Okay, I hear what you are saying, particularly that the detailed consultation on the wording of the bill itself did not occur, but I wonder if you would agree that your rights to be defined in this process are not prejudiced by anything in this bill.
Ms. Gaudet: I am willing to agree to that.
Mr. Julian: I just do not know, though.
I will pass that over to Ms. Gaudet. She has more of a legal background, and that is more of a legal question. We are not, right now, ready to agree to that statement.
Senator Patterson: Thank you, Mr. Chair. I did not want to get technical here. I will say that, representing an area where the rights of the Inuit are respected by Canada and should be respected by Canada in the establishment of parks, I, in my review of this bill, want to ensure that there is nothing in the bill that prejudices your Aboriginal rights. We will, I am sure, look at that issue as we examine the bill in detail.
I will not pin you down on that. I will say that I agree that it is an important issue, and we will study it. Thank you.
Mr. Julian: Thank you, sir. We certainly want to support any protection of lands in areas such as Sable Island. Our biggest concern is the lack of consultation process and trying to get some assurance from government that we will work from nation to nation and that consultation will take place in a timely manner and as early as possible. Then, we would not be confronted with these types of issues.
Senator Patterson: I understand.
Senator Wallace: Chief, I am interested in the connection of the Mi'kmaq to Sable Island. Not being too familiar with the area, I was a little surprised to hear that. I guess you described it as part of Mi'kmaq territory. Has it been accepted by the Nova Scotia government or the federal government that Sable Island is part of Mi'kmaq territory?
Mr. Julian: Whether it is accepted by the federal or provincial government, we assert our rights to that. It is an assertion by the Mi'kmaq, whether or not the federal or provincial government accepts it; it is an assertion of rights. As Ms. Gaudet said, the Mi'kmaq have been here for a very long time, time immemorial. If Sable Island was a much larger island, I am sure that the Mi'kmaq had some presence on that island. Even if it was not, at the size it is today and with the size of the canoes they had back in history, I am sure they would have travelled to that island at some point in time.
Senator Wallace: Certainly. I just wanted to clarify that I understand that that is your claim. I fully appreciate that you are entitled to make that claim. I just wanted to clarify whether or not that had been accepted by the governments.
Having said that, have you, Chief Julian, or others representing the Mi'kmaq people, presented the basis of your claim that Sable Island is part of Mi'kmaq territory? Has it been laid out before them? My second question would be: What is the connection? I would be interested to hear that. What is the actual, traditional connection?
Ms. Gaudet: More work needs to be done in that area.
Mr. Julian: Yes, more work needs to be done in that area, and that is why we were talking about the need for the archaeological studies to see what is actually there. We continue to work with the government. We claim Nova Scotia as part of Mi'kmaq land, and any claim that Nova Scotia has on any other areas should also be included in that claim.
Senator Wallace: In additional to archaeological work, just from a practical view point, thinking of when there would have been activity on the island by the Mi'kmaq people, has there been anything presented to show how recent and of what nature that occupation of the island has been?
Ms. Gaudet: Practically speaking, we hope that those studies will be conducted throughout this consultation process, and we hope that Parks Canada will come to the table, in the contribution agreement, to ensure that those studies are completed. We know that there needs to be historical reference studies completed in addition to the archaeological investigation.
Senator Wallace: Those historical studies have not yet been presented by the Mi'kmaq people to either the federal or provincial government to this point. Is that fair to say?
Ms. Gaudet: Not to the extent that we would like them to be presented.
Senator Wallace: Thank you very much.
Senator Unger: Thank you, Chief Julian, for your presentations. You are the co-chair of the Assembly of Nova Scotia Mi'kmaq Chiefs. Who is the other chair?
Mr. Julian: Chief Terrence Paul, Membertou.
Senator Unger: Who is Chief Thompson?
Mr. Julian: I am not aware of Chief Thompson in our assembly of chiefs. I do not know who Chief Thompson is, sorry.
Senator Unger: Thank you. My information says that, in August of 2011, a letter was sent explaining details of the legislation, the establishment process and further invitation to consult, and I believe Ms. Gaudet was involved in this or a recipient of it. Could you confirm that?
Ms. Gaudet: I cannot confirm that at this moment. I do not have that specific piece of correspondence in front of me.
Senator Unger: If you do have it, would you be able to provide it and any other correspondence that you were the recipient of?
Ms. Gaudet: Yes, of course.
Senator Unger: Thank you very much.
Senator Sibbeston: Thank you. Just to let you know, my name is Nick Sibbeston, and I am from the Northwest Territories. I have had some experience dealing with national parks. When the federal government sets its mind to establishing a national park, they are very determined and, with the help of organizations like CPAWS, they work very determinedly to bring it about. In our case in the Northwest Territories, to date, they have had the cooperation of the Aboriginal people.
The Aboriginal people's interests in a park is that a large area will be preserved and will not be developed in any way. Once the lines on a map are set, they are like diamonds — forever. Nothing can ever change that.
In your case, what is your interest in Sable Island? Is it the fact that you see the possibilities, the economic benefits of a park on Sable Island where you can be involved and derive benefit, or is it the fact that there is oil and gas in the area that you are interested in? What interests do you have, would you have on Sable Island? It seems to me it is way off in the ocean somewhere. Not many people go there, and it is kind of out of sight in terms of everyday life in Nova Scotia. What is your interest?
Mr. Julian: Our interest is not economical or in the oil and gas that might be there or may be there. Our interest is ecological and in saving the island itself. Any saving of land and the protection for the future is our interest in Sable Island. We do support the legislation. Our issue is the process and how the legislation is being developed and how other things are taking place in regard to how this government consults with the Mi'kmaq.
Again, I reiterate, by law, the Supreme Court of Canada has stated that consultation must take place. Section 35 of the rights of indigenous people and informed consent are the concerns we have in regard to these bills and how government conducts its business. It is not a concern of whether there is oil there or whether there is economic benefit for the Mi'kmaq there. It is the preservation of the ecology and the land itself that we will continue to support. I hope that answers your question.
Senator Sibbeston: A briefing document we have says that the Mi'kmaq are claiming interests to all of Nova Scotia. It seems like a big claim. Is it just because of the fact that you are early in your negotiations that you are claiming the whole of Nova Scotia, or at some point will you narrow it down to some more specific areas? Obviously the government will not give you all of Nova Scotia, but there may be areas that they will eventually relinquish and provide to the Aboriginal people. Can you just say something about that? It seems to be quite an interest that you have.
Mr. Julian: We have never seen a title to Nova Scotia. The Mi'kmaq have never seen a title in any of our treaties or in any rule of court or law. There has been no ceding of land by the Mi'kmaq to Nova Scotia. That is what we base our claim on.
The other thing in regard to whether the government will relinquish anything, we are not asking the government to relinquish anything. We are asking to be part of the current government or the nation-to-nation relationship with the federal government in regard to decisions that are made in Nova Scotia and preserving lands in Nova Scotia and having some economic benefit to the Mi'kmaq who have not received any economic benefits in regard to the resources that have been extracted from Nova Scotia since the arrival of the Europeans. That is where we are on that issue, and we will never cede any of our rights to the entire province of Nova Scotia as the Mi'kmaq are the first people here. I do not think a history lesson needs to be given here. I think there are enough educated people around the table to understand the Mi'kmaq are the first people here and any activities and infringement upon our rights.
Senator Lang: I just want to go back to the question of consultation. First, to clarify the record, your organization did write a letter of support for the creation of a national reserve for Sable Island; is that correct?
Ms. Gaudet: That is correct.
Senator Lang: Therefore, one could assume at that stage there had been consultation with your organizations for the purposes of creating a reserve?
Ms. Gaudet: I can confirm that consultation on that specific designation ended as quickly as it is started. It certainly would be our preference that it would have been more substantive, but yes, we did support the designation on the basis of protection of the island.
Senator Lang: Moving further from 2007 to where we are in 2013, the information I have received is that there have been consultations with your organization as well as other stakeholders since 2007. My understanding is in 2010 there was a series of public meetings that were available for the public to attend and also that there was a public engagement process with stakeholders for further discussions about the creation of this national reserve. Did you participate in those public meetings?
Ms. Gaudet: No, we did not. We have the option to, as I understand it; however, our relationship is unique in that we have the consultation terms of reference process; and the principles, roles and responsibilities are set out in that process that we wish to adhere to.
Senator Lang: In a public consultation process you make a decision not to attend and you make that decision yourself although that vehicle is available for your organization to put forward its position; is that correct?
Ms. Gaudet: That vehicle is available, as you mentioned, honourable senator, for stakeholders. The Mi'kmaq of Nova Scotia are not merely stakeholders; we are co-owners of the land.
Senator Lang: I want to move into another area and get confirmation for the record that there were formal discussions with your organization in 2011 about the process and looking forward about what would happen with the creation of a national reserve for Sable Island. Did you participate in those?
Ms. Gaudet: Yes, we have had limited discussion on the process.
Senator Lang: Just to further clarify this, the real issue that you are bringing forward here is whether or not you should be involved in the actual drafting of legislation as opposed to being in a consultation process where you are dealing with the various departments on how to, in this case, create a national reserve. Is that the principle we are talking about here?
Ms. Gaudet: Correct, the substance is with respect to the drafting of the proposed legislation and the bill.
Senator Lang: You are fully aware that in the drafting of legislation by any government, whether it be the Province of Nova Scotia or the federal government, that at some stage it becomes privileged information in respect to the actual drafting of legislation? For example, the Province of Nova Scotia or the national Parliament get first view of this legislation when it is tabled for the purposes of public debate, and you are aware that the information is privileged at some certain point; is that correct?
Ms. Gaudet: Yes, we would hope that given the nature of our relationship with the Crown in the Made-in-Nova Scotia Process that we would have at least been notified that this drafting was taking place. We understand that there would have been individuals involved in the drafting of the proposed amendments, and it would simply be a courtesy that we would expect.
Mr. Julian: I would say more than a courtesy. Nation-to-nation relationships, if you are dealing with the province and allowing the province to see the legislation as a government, we have a tripartite agreement here in consultation and prior and informed consent, and those issues are there. As a matter of law, it is a duty to consult. As a matter of law, we are trying to set up a nation-to-nation relationship here. When it comes to legislation that will affect the Mi'kmaq and our government-to-government relationship, we should have access to that legislation and have some input into it.
Senator Lang: I will conclude, for the record. Some consultation over quite a period of time has taken place with your organization and also with other stakeholders in respect to the creation of this national reserve. We can come to that conclusion; is that correct?
Ms. Gaudet: Yes.
Mr. Julian: Yes.
Senator Sibbeston: May I raise a point regarding what the senator just said? I think he is giving the impression in the way he stated it that when government deals with legislation, it is really a privileged domain, but the reality is that it is not. In truth, the whole matter of the development of legislation, right to the last moment, I think is open to the public to be involved. I would not want people to be left with the impression that it is not proper for anybody to be involved.
I agree that the final decision is the domain and the right of the government, but all the way in the development of the legislation, including the principles and all the clauses, it is open to the involvement of any other party. I would not want the impression to be left that once legislation is started, it really becomes the privacy or the domain of the government only and that anybody else is not allowed.
I got that impression from the honourable senator's statement, so I wanted to clear that up.
The Chair: I do not want to be a referee on this, but I will attempt to clarify. I understood it a bit different from Senator Lang. I think he was trying to establish that there were discussions in regard to what the bill was but not in regard to the exact clauses as they are written in the bill that we see now, which is the process that has been used forever and will probably be continued to be used.
I think the senator has identified the discussions around the development of that and that some of that took place. Does it make everybody happy all the time and do they think they always got everything in that they wanted to say? No. That is the magic of people trying to get everybody's input and trying to make it work for everyone.
I do not want to get into a long discussion about that. Senator Lang, do you have questions?
Senator Lang: At a certain point in the process, the drafting of legislation becomes privileged information until it is tabled in the house. Anyone who has been a member of a legislature or a member of the executive of any government understands that. You swear an oath and you have to abide by that oath when it becomes privileged information.
Senator Sibbeston: I need to clarify something. Did I hear that the drafting the legislation is privileged?
Senator Lang: I am saying that at a certain point, when the legislation is being debated within the confines of cabinet and the executive, it becomes privileged information. Prior to that stage — and this is the point I was making and the chair did, as well — there was consultation and a general framework around what was to happen. Public stakeholders were approached and their viewpoints were taken. However, at the end of the day, decisions must be taken, and this is the bill we have.
The Chair: Senator Sibbeston, we are going to move forward. If you want to finish that discussion with Senator Lang you can do that.
Senator Sibbeston: Mr. Chair, this is a very important point. Senator Lang is giving the impression that it is not a right — it is not a privilege, as it were — for the Mi'kmaq to have been involved in the drafting of legislation. There are processes where the Aboriginal people and the various governments work together to draft legislation, and there have been instances where legislation affecting Aboriginal people has been created. There has been that kind of involvement — right from the very beginning, right to the very end — where the Aboriginal people are involved in legislation.
I certainly do not want to give the impression that legislation is the domain of government only. Third parties can be involved.
Senator Lang: I have to object to this, because that was not the purpose of my questioning, neither was that the principle we were discussing. The principle I was putting forward was that there is a stage for public consultation and there is a stage when the government has to deal with the issue and make decisions. I think I am being misrepresented here, and I want to make that very clear.
The Chair: Thank you. I think we will end that conversation now. There are no further questions.
Thank you very much, Chief Julian and Ms. Gaudet, for spending time with us. I know you are busy. We appreciate the time and we appreciate your testimony very much.
Mr. Julian: Thank you for giving us the opportunity to speak.
Ms. Gaudet: Thank you.
(The committee adjourned.)