Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 44 - Evidence - May 7, 2013
OTTAWA, Tuesday, May 7, 2013
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 47, An Act to to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts, met this day, at 5:30 p.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 and I am chair of this committee. I would like to welcome honourable senators, any members of the public with us in the room and viewers all across the country who are watching on television.
I would now ask senators around the table to introduce themselves.
Senator Sibbeston: I am Senator Nick Sibbeston from the Northwest Territories.
Senator Massicotte: Paul Massicotte, Montreal.
Senator MacDonald: Michael MacDonald from Nova Scotia.
Senator Wallace: John Wallace from New Brunswick.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Unger: Betty Unger, Alberta.
The Chair: I will introduce our staff. Our clerk is Lynn Gordon and, from the Library of Parliament, we have Sam Banks and Marc LeBlanc.
Bill C-47, An Act to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts, was referred to our committee on April 16 of this year.
Honourable senators will recall that to date we have had testimony from representatives from Aboriginal Affairs and Northern Development Canada, the Governments of Nunavut and the Northwest Territories, the Canadian Association of Petroleum Producers, the Mining Association of Canada and Nunavut Tunngavik Incorporated.
Today, during the first are portion of our meeting, I am pleased to welcome, from the Nunavut Impact Review Board, Elizabeth Copland, Chairperson, and Ryan Barry, Executive Director.
Thank you for being here today and taking time out of your busy schedules to come here to discuss this bill with us. We have received your submission. I would like now to turn it over to Ms. Copland, who will make the presentation.
Elizabeth Copland, Chairperson, Nunavut Impact Review Board: Thank you for this opportunity to appear before you on behalf of the Nunavut Impact Review Board. My name is Elizabeth Copland. I am Chairperson of the Nunavut Impact Review Board. Appearing with us with me today is Ryan Barry, our executive director.
We have provided the committee with a written brief setting out the details of our recommended amendments to Part 1 of Bill C-47, the proposed Nunavut planning and project assessment act. Knowing that your time is limited, the focus of my opening statement will be to provide you with additional information, context and insight into the board's work and our recommendations.
Nunavut is my home. I live in the hamlet of Arviat, situated on the western shore of Hudson Bay in the Kivalliq region. As a member of the Nunavut Land Claims Agreement transition team, I have been involved with the impact assessment in Nunavut since 1994. I have served several terms with the Nunavut Impact Review Board over 14 years as a nominee of the Government of Canada, including vice-chairperson and acting chairperson. On the nomination of my fellow board members, I was recently appointed Chairperson of the Nunavut Impact Review Board for a three-year term. I have chaired four public hearings for the NIRB, including those for the Jericho diamond mine, the Doris North and Meadowbank gold mine projects and, most recently, the review of the Baffinland Iron Mines Corporation's Mary River project.
Mr. Barry lives in the Kitikmeot region of Nunavut in Cambridge Bay. The main office of the Nunavut Impact Review Board is in Cambridge Bay. Mr. Barry has been employed with the board for more than six years, leading numerous impact assessments, representing the board through many forums and, since 2011, serving as the Nunavut Impact Review Board's executive director. He leads a small team of 18 administrative and professional staff who are essential to the board's task of carrying out impact assessments for the entire Nunavut Settlement Area.
As a result of the efforts and commitment of my fellow board members and staff, the board has a strong reputation amongst all stakeholders for achieving timely, credible, efficient and thorough assessments of proposed major development projects in Nunavut. It is with this experience and perspective that we bring our recommendations to you today.
As we discuss in our brief, Nunavut is unique, with a sparse population living in small communities widely scattered across about 2 million square kilometres, accessible only by air and sea. Inuit have occupied the region for thousands of years and form almost 85 per cent of the population, with Inuktitut being the predominant language. Many Inuit rely on their lands and waters to fulfill their basic needs. The cost of living in Nunavut is up to three times that of the southern provinces. Many Inuit live in poverty and welcome the opportunities that come with resource development on their lands. Those who have experienced resource-based development near their community, however, know that eventually it leaves and that they will not trade away their ability to live from the bounty of the water and the land. This shapes their views of development.
As noted in our brief, in 2012 Nunavut placed fourth in Canada for mineral exploration and deposit appraisal expenditures behind Ontario, Quebec and British Columbia, and far ahead of the Northwest Territories and Yukon.
In a recent information session on improvements to northern regulatory regimes, Aboriginal Affairs and Northern Development Canada reported that 2011 growth in gross domestic product for Nunavut was 7.7 per cent, with Yukon growing at 5.6 per cent, Canada overall at 2.6 per cent and the Northwest Territories shrinking by 5.5 per cent. Based on these numbers, it appears that we are doing something right in Nunavut.
An important difference between resource management models in the N.W.T., Yukon and Nunavut is that Nunavut's system is a simple, integrated resource management system for land use planning, impact assessment and water licensing applicable to over one fifth of Canada's land mass.
The scope of the Nunavut Impact Review Board's jurisdiction is also unique. It includes the assessment of environmental, social and economic impacts for all project types, from mineral exploration and mining to infrastructure projects, hydrocarbon and even nuclear developments. The board conducts short 45-day assessments called screenings and larger environmental reviews that may take several years to complete, in addition to overseeing the monitoring of approved projects. Few other boards in Canada have such a large jurisdiction and comprehensive mandate as the Nunavut Impact Review Board.
The process of impact assessment is essential to developing a community's understanding of the potential for significant impacts from development and the opportunities for managing those impacts through terms and conditions under which a project will be approved, including requirements for monitoring, adaptive management and a commitment to full reclamation. All of these elements are necessary for development to proceed in a responsible manner.
As we talk about providing industry with increased certainty and timelines and improving the efficiency and effectiveness of our assessment process, we must also acknowledge that the opportunity for members of affected communities to access the impact assessment process is an important element in providing certainty to project proponents. This is one of the main reasons we are recommending that the statute provide for a participant funding program.
In the long run, it is likely more cost-effective to provide for a participant funding program and thereby reduce the potential for legal challenges derailing the process altogether. Without participant funding, the Nunavut Impact Review Board's reviews become more costly for the Government of Canada, as it can take much longer and require considerably more board resources to accommodate unfunded participants.
The lack of a participant funding program in the proposed statute also creates a disparity in public access to impact assessment in Nunavut and most other jurisdictions in Canada where these established programs are currently in place. The processes administered by the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission, for example, all have participant funding programs. Currently in Nunavut this funding is only provided by Aboriginal Affairs and Northern Development Canada on an ad hoc basis and more recently is not being provided at all despite it being requested.
In lieu of providing for participant funding, the Minister of Aboriginal Affairs and Northern Development has recently asked the NIRB to facilitate timely, effective and inclusive participation from the NIRB's budget and work plan for the review of a project. This suggests a misunderstanding of the purpose of participant funding, which is to provide participants with access to the resources and expertise — including support from technical consultants, advisers, legal counsel — needed to participate effectively in the Nunavut Impact Review Board's existing review process.
Existing NIRB processes are more properly characterized as community engagement since the sole focus is on ensuring potentially affected parties can be in attendance at key meetings in the process, for example, by providing travel to community representatives to be present at public hearings at a venue outside their home community. Given the very different purposes, focus and processes associated with participant funding when compared to the Nunavut Impact Review Board's community engagement funding, the NIRB asserts that community engagement funding is in no way a substitute for participant funding.
A significant part of the board's written brief addresses the need to ready the system. There are three aspects to this. First, with the level of development that we are currently experiencing in Nunavut, the NIRB's core capacity is already stretched to the breaking point. The Nunavut Impact Review Board's funding levels were originally set back in 1992 and have not been formally reassessed since that time. Compare the NIRB's operations with those of the Yukon Environmental and Socio-economic Assessment Board and you will see that we currently have one office to their seven, and 18 staff to their 36, yet we have a much larger jurisdiction and more development activity being proposed in Nunavut. Nunavut's regulatory system has been proven to work and NUPPAA may further improve its efficiencies. However, investment is needed to ensure the assessments of development projects are not delayed because of insufficient regulatory capacity.
The second aspect is the need for resources to develop the "one window" system that is contemplated in the statute. The Nunavut Planning Commission and the Nunavut Impact Review Board will be required to substantially increase their levels of coordination and the efficiencies of their prospective file management and public registry functions to ensure a truly streamlined process. The "one window" system must be designed to meet both of our needs and will require sufficient investment of time and resources to ensure its success.
The third aspect is the need for resources to develop the capacity to administer and respond to the new requirements in NUPPAA. This includes extensive new requirements for meeting access to information obligations beyond those set out in the Privacy Act; translating lengthy, highly technical documents into three languages, for which corresponding terms in Inuktitut may not be available and for which there are only a very small handful of translators qualified to carry out this work; and complying with new public registry requirements. Overall, the highly prescriptive nature of the NUPPAA as it is proposed removes much of the board's discretion on process and thus will require considerably more resources.
Accordingly, the board was reassured to read former Minister Duncan's testimony to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development on December 10, 2012. His acknowledgement of the crucial nature of the work of the boards in Nunavut and the obvious need for more funding, as well as his understanding that we are facing greater levels in activity resulting in greater needs, is important. A commitment to consider much-needed additional funding was reiterated to this committee by Janet King, the assistant deputy minister, during her appearance on April 25.
We have recently provided the Nunavut Implementation Panel with a detailed work plan outlining our 10-year funding needs. While we remain hopeful that a new funding contract will be provided, we must emphasize that this process will need to move quickly, as resources must be in place for the implementation phase prior to NUPPAA coming into force if the goals of a more efficient and effective regulatory system are to be met.
As I said at the start, my remarks today do not touch on all the recommendations in the board's written submission. I know that I am near the end of my time, so I will close with a request to consider these detailed recommendations, as well as extend the board's support for recommendations of Nunavut Tunngavik Incorporated to ensure consistency between NUPPAA and the Nunavut Land Claims Agreement.
In closing, I want to express the board's sincere appreciation to this committee for the opportunity to speak to you today, and to our dedicated colleagues from the Government of Canada, the Government of Nunavut, Nunavut Tunngavik Incorporated and the Nunavut Planning Commission for bringing this statute to this point. We look forward to working together to implement the final bill upon its approval.
The Chair: Thank you very much for that presentation.
We have two Northerners on our team: Senator Patterson, who was a premier, and Senator Sibbeston. I will start with Senator Patterson, the senator carrying the bill in the house, for the first question.
Senator Patterson: Thank you very much, Mr. Chair.
[Senator Patterson spoke in Inuktitut.]
I would like to welcome the witnesses who come from Arviat and Cambridge Bay for this meeting today, and I would like to congratulate you on your clear description of the challenges of operating in the North, the scope of your responsibilities, the need for adequate funding and indeed increased funding.
I wonder if you could give the committee, perhaps with more detail than we have had to date, an idea of just what is on your plate, what is on your table in Nunavut. Please give us a snapshot of the projects that are actively under review or in the early stages of the environmental assessment process to give the committee an idea of how busy you are now and will be.
Ms. Copland: I will ask Mr. Barry to answer.
Ryan Barry, Executive Director, Nunavut Impact Review Board: To break it into simple terms, right now we have one active mine in Nunavut, the Meadowbank gold mine, for which our board has monitoring responsibilities, as well as several other mines that have yet to come to full fruition: the Doris North gold mine and the Jericho diamond mine, which is currently in care and maintenance.
We are also in the process of doing a reconsideration for Baffinland Iron Mines Mary River iron ore project, which is a huge-scale project as well. We have seven other active review assessments currently in front of us, all for major development projects and all for major mining development projects.
We also recently recommended one additional project for review for the first hydroelectric project proposed in the territory.
The projects that are under active assessment right now collectively represent somewhere in the neighbourhood of $12 billion to construct, represent several thousand jobs, up to the scale of 5,000 jobs for construction. The Mary River project, taking one project as an example, is a very large project and is expected, in and of itself, to generate several thousand jobs and over $1 billion in royalties over a 21-year lifespan as well.
Senator Patterson: You mentioned the Baffinland Mary River project. I know it has been scaled down. Your board did a review of this project at its full scale, with year-round Arctic ice shipping, a railroad built on the permafrost in the High Arctic, northern Baffin Island. Could you describe for the committee what you did for that review in general terms and how long it took? I think it shows that your board is capable of working hard and in a timely fashion.
Mr. Barry: Thank you very much, senator.
For the Mary River project, that particular file is one we are quite happy with in terms of the assessment of timelines. It followed our timelines very well. Overall, the assessment itself took us several years to complete. However, the time actually spent with our board under active assessment was within that two-year mark that we strive for. That managed to occur while we had 18 communities that we identified as being potentially impacted. All those communities were visited several times during the course of our review. There were 11 communities in Nunavut and 7 communities in northern Quebec. They could have been affected by the shipping and other aspects being proposed by the project.
Our board held hearings in three communities that had hundreds of participants come through our process. The documentation filed fills a very large filing cabinet in our office, thousands and thousands of pages of information, and an environmental impact statement over 10,000 pages long. It was a very comprehensive review process for us and a project of unprecedented scale being proposed for the territory.
Overall, the assessment took us several years to complete and fit within our window and the timelines being proposed in NUPPAA as well.
Senator Sibbeston: I must commend you for coping with a very difficult subject in terms of dealing with all the government jargon and the regulatory and administrative situation that the Nunavut Impact Review Board is.
One of the impressions I had when I was a minister and premier in the Northwest Territories when Nunavut was part of it was travelling through the eastern Arctic where there is an endless amount of land and ice. You would be flying for hours and then you would swoop down to a little community of 200, 300 or 400 people living there. The general impression that I had was that there is not much up there except land, snow, a few people, odd polar bear and whale, and lots of seals.
That is the general impression that I have, but it seems that since Nunavut has been created, there has been some development. At that time I think there was just one mine, way up in Nanisivik, and nothing else, but in the last 10 or so years there has been development. Can you describe that for us? Is there real motivation? You mentioned the importance of jobs for people, but how do you balance jobs with the need to make sure that the environment, land and waters are protected? Do you have difficulty balancing those two factors?
Ms. Copland: That is why we go to communities and do public consultations. We hear people who want jobs and we hear people who want to protect the land. Yes, back then we just had the Nanisivik mine, but we now have Jericho, Meadowbank and Meliadine.
People are noticing that there are jobs and benefits, but there are also people who notice a change in the animals and that there needs to be a balance. We try to hear from everyone in the community to get their input because we need to know. The board needs to know what the community thinks. During our public consultations, that is where we try to get the balance of what Nunavut people want.
Senator Sibbeston: I take it there is a very thorough process.
Ms. Copland: Yes.
Senator Sibbeston: Where everyone is heard and people who are concerned about the land and environment are heard as well as the developers. I am sure you have a lot of young people who are interested in this.
Ms. Copland: There are a lot of young people we would like to hear from, but we do not provide funding to bring them in. We rely on local radio. For example, in Rankin Inlet, the radio goes to all seven communities. In Iqaluit, there is radio that goes to more communities. We like to hear face to face, in the communities, what people think, what they want, but we cannot do all that without the funding.
Senator Sibbeston: You mentioned the participation funding program. I take it that is a pretty big issue with you. You need to have money specifically identified so that you can have people participate in your hearings in a real, meaningful way.
Ms. Copland: Yes. We include what we called a community round table, where we invite youth and elders to sit and give their input, their views and concerns, to help us decide on any project. For a couple of the projects, we had some funding where a couple elders and students were flown into the community to participate in prehearings or in the hearing. That is not the same as a hearing for every community. It is quite an issue.
Senator Massicotte: Relative to your presentation, the major point you are making is that there should be more funding specifically for people who want to come to your hearings and be heard. As you know, the minister basically said, "Why do you not use your existing mechanism to provide for that?" You are saying that it is not the same. I heard you and I read your speech, but could you describe this to us? I am having difficulty. Why is this so different? One is more limited to those who are affected and one is broader, but could you describe that a bit more for us?
Mr. Barry: There is a real difference in what the board can deal with by its own funding. The board can only bring people to its venues to hear from them. Participant funding is used across Canada to provide groups that have evidence and opinions of value to the board of value with the technical expertise to support their presentations to the board. It is not about simply bringing them there to provide testimony. We are able to do that. However, we are not able to support their interventions by providing them money to have legal counsel or even just technical support to put those presentations together. We are unable to do that. Some of the groups we are hoping to hear from and that would benefit from this funding are hunters and trappers organizations and community level groups that are under-resourced as it is. Without having additional funding support, they simply do not participate. It is not a matter of giving them a plane ticket. It is a matter of there being funds for them to access so that they can effectively participate in our process.
Senator Massicotte: How do you see that occurring? Would it be a lump sum? How would the act propose amendments? What wording would satisfy you there?
Mr. Barry: We did give some specific wording in our written brief. Essentially, we have suggested it could be a requirement that the board establish such a participant funding program. The NUPPAA as presented to you now does have the ability to create regulations around this to establish such a program. We are looking for a commitment that the program will actually be created and be a requirement. Without having such a program in place, it is creating a real disparity in the assessment we are doing, which we have heard is going well and is challenging. From being the practitioners, we are telling you that we are seeing a real difficulty in being able to fulfill our basic functions without having this program in place.
Senator Massicotte: You are an expert. You live in the area and have seen the area. I gather overall, in a more generic sense, that you are happy with the bill. It is a significant improvement to the process and you fully support what is being intended. Is that accurate?
Mr. Barry: That is fairly accurate. We suggested modest improvements that could be made. It is important to recognize that many of the features of the bill have been developed from our best practices, which have been developed from the best practices for impact assessment across Canada. We are generally pleased with the bill. We think there are some areas where there could be further improvements as well.
Senator Massicotte: Are you aware of the recommendations proposed by Nunavut Tunngavik Incorporated? They were detailed, specific amendments. Are you aware of them, and do you share those recommendations?
Mr. Barry: We do support those recommendations. We have outlined that in our brief as well. We think they are reasonable.
Senator Massicotte: We have also received a submission from Alternatives North. Does that mean anything to you?
Mr. Barry: I am not as familiar with that particular organization.
Senator Massicotte: I think today we are going to hear from the minister, who has responded in writing to the comments being proposed by yourselves and NTI. I gather those documents are not yet available to you. Are you aware of the minister's response?
Mr. Barry: No, we have not heard.
Senator Massicotte: The minister will have a chance to explain, but he has basically said that they have considered those issues and had many debates about them. We have seemingly had a lot of openness and have amended the proposed act in consideration of the comments, but obviously in some places you do not agree. Reasonable people can disagree on certain issues. Do you confirm that there was openness and serious discussion and consideration of all your opinions?
Mr. Barry: I believe so. We were brought in to be part of the legislative working group since 2007, I believe. We have been an active participant. We have been participating throughout. We do believe that there has been a lot of support for the board's views as practitioners and that those views have often been supported, where they can be. There are some differences of opinion, as you have pointed out, and some areas where we think there could be further improvement.
Senator Massicotte: Is it a sincere difference of opinion? Was there an overt attempt to try —
Mr. Barry: On the issue participant funding, for example, we have not seen a real clear argument being made for why there is no cause to establish that program. We are not sure if we have been heard loud enough or not. As far as we are aware, there has not been a rebuttal of that.
Senator Massicotte: In, I am not a total expert, but in a funding sense you can have an act that says that should apply for this program, but the way governments work there is an annual budget whereby the government has immense discretion, subject to Parliament, to approve budgets, and governments do not generally agree beforehand on multi-year funding requirements in absolute sum. You can use the words "adequate funding," but what does that mean? Everyone has a different opinion on what adequate funding is. There could be a structure there, but I do not think it could ever contemplate something that would provide funding to your satisfaction. Irrespectively, it remains the discretion of the government of the day to determine the level of funding. Do you understand that part? It is a challenge for us. We can try to express your comments, but it is tough to put them in legislation.
Mr. Barry: I think we would agree with that. The one thing we would say in response is that I agree that the level of funding is at the government's discretion. The requirement to put a functioning a program in place is currently in the Canadian Environmental Assessment Act, the National Energy Boards Act and the Nuclear Safety Commissions Act. These are real programs that had to be established through these acts. We are looking for a commitment to establish such a program and not to shove it off to regulations that may or may not ever be put into place.
Senator Massicotte: Those acts continue to be in place and applicable. If it is there, why do you need it again?
Mr. Barry: It is currently not in the act. The ability to create such a program is put into regulations, whereas there is no requirement to create such a program, which is what we are recommending.
Senator Wallace: Ms. Copland, with your many years of experience in dealing with impact assessments and lands use in Nunavut — you have close to 20 years of experience and 14 as a member of the board — you certainly know it well, and that comes across in your presentation. I was interested in many of your comments, but one in particular stood out for me. You spoke about the difference between the resource management model used in the Yukon and Northwest Territories versus the one that you have worked for so many years to develop in Nunavut. I am sure you have tried to tailor it more to the needs of Nunavut. In your words, you said Nunavut's system is a simple integrated management resource system. The word "simple" caught my attention. I doubt with land use there is very little that is simple. Without getting into the detail, what do you see as the key features that would differentiate your approach in Nunavut versus the Yukon and the Northwest Territories?
Mr. Barry: That is a good question. The simplest explanation is that Nunavut has one comprehensive land claim agreement. Next door in the Northwest Territories there are many settled land claims and unsettled land claims, and each of those land claims has developed a regime and system. Some are working; some are working not so well.
In Nunavut there is one board for land use planning, one board for impact assessment, and one board for water licensing. We see it as being streamlined, and NUPPAA is offering that further streamlining to have a "one window" approach for the boards.
Senator Wallace: Obviously it would play very well into the purpose of Bill C-47, as I understand it, which is to provide enhanced economic opportunities for the Inuit people and at the same time maximize environmental protection in the area for both the long and short term. Is there anything more you would like to add about how you see Bill C-47 achieving economic development in the proper way for the benefit of the area with environmental protection. Is there anything more you would like to highlight from the bill?
Mr. Barry: For us, one of the new things with the bill is timelines on government for making decisions. That is currently not in place, and that is where we see a large degree of separation and consistency. Industry constantly tells us they want certainty in the process, and they will take whatever timeline they can get as long as they are clear on what it will be and the rules.
It is unique working for a regulatory board and having a lot of support from industry. We do not have industry coming to us and saying, "You are taking too long." We do not have industry coming to us and saying, "What was with that decision? It did not make any sense." We see ourselves having a predictable process that leads to sound decisions that companies are able to understand.
For us, one of the positive aspects of the bill is that new timelines being put into place on government for turning around and responding to the board's recommendations will increase the level of certainty, which is what industry is looking for.
Senator Wallace: That reminds me of your first comment about the comparison between the approach you have taken in Nunavut versus the Northwest Territories and Yukon. You have one system in Nunavut. Obviously that creates and makes Nunavut that much more appealing for business and industry to come and invest and do business.
Mr. Barry: Yes, I believe so. I believe that is correct. We often make a point of trying to distinguish Nunavut's system from the North and the regulatory systems in the North because we do hear a lot of negative connotations often being drawn about the Northwest Territories experiencing a lot of difficulty with multiple boards and with the Mackenzie gas project and other projects. A lot of credit should be given to the Inuit of Nunavut for negotiating a very strong and comprehensive land claims agreement that makes for a straightforward system.
Senator Seidman: I would like to ask you a bit about the board itself because the board has been in existence since, I believe, 1996, but there may be some modifications as a result of this act. How many members are on the board? How are they appointed and has the act changed that structure in any way?
Ms. Copland: We are supposed to have nine board members, but currently we have eight. Each board member serves for three years.
Mr. Barry: We have three-year terms. The appointments are in a co-management fashion, which means nominations from the Government of Nunavut, from Nunavut Tunngavik and from the Government of Canada in equal proportions for eight of those appointments. The chairperson is drawn from nominations from the board itself that are presented to the Government of Canada. The act itself does not change the composition of the board.
One welcome addition is that the bill will give us the ability to break into panels, which we currently cannot do. Right now our quorum requirement for a board of up to nine members is five. As Ms. Copland pointed out, we have eight members now because we have one vacancy. We still need five members to make a decision. One can imagine given travel complications, if someone gets ill, just like your committee has a quorum requirement, ours can often be very difficult to meet. The ability to break into panels to hear a file and to conduct business is extremely important and one we are welcoming with open arms.
Senator Seidman: That would be the main difference between the past status of the board and the current status in terms of effects of the bill; is that correct?
Mr. Barry: That is correct.
Senator Seidman: You said there are potentially nine members of the board and that they are appointed in equal proportions. Does that mean the federal government appoints three?
Mr. Barry: Sorry, I should elaborate on that point. Of eight of the positions on the board, four are put forward by nominations by Nunavut Tunngavik, two are directly appointed by the Government of Nunavut, and two are directly appointed by the Government of Canada. The chairperson is drawn from nominations from the board which are then brought forward to the Government of Canada.
Senator Seidman: That is excellent; I appreciate that.
It is my understanding, at least in the response that we received from the minister, that there was an exchange of letters between the Minister of Aboriginal Affairs and Northern Development and the President of NTI in November 2011 through to January 2012 that committed both parties to pursuing amendments to the agreement in four areas to ensure the act would be consistent with the agreement. Could you tell me how that evolved and if that process is over and if it terminated in a satisfactory way?
Mr. Barry: I am afraid that would be a bit beyond our ability to comment on as it was conducted outside of us. We are aware of the need to pursue those amendments to the claim to keep the act consistent with the land claims agreement, but we are not formally part of particular process.
Senator Seidman: You do not know if that process is concluded and if the parties agree that everything was fulfilled in terms of coherence between the former agreement and this act?
Mr. Barry: I am afraid I am not aware of that, no.
The Chair: Thank you very much, Ms. Copland and Mr. Barry, for coming here. That was a very good presentation, and I appreciate very much your taking time out of your busy schedules to come and see us.
It is now my pleasure to welcome the Honourable Bernard Valcourt, Minister of Aboriginal Affairs and Northern Development Canada. Welcome, Minister, and thank you for being here this evening.
Accompanying the minister are officials from Aboriginal Affairs and Northern Development Canada: Janet King, Assistant Deputy Minister, Northern Affairs; Janice Traynor, Analyst, Environmental Policy, Northern Affairs; and Camille Vézina, Manager, Legislation and Policy, Northern Affairs. From Justice Canada we have Tom Isaac, Senior Counsel.
Minister, thank you for responding so promptly to our request for your observations and comments on the proposed amendments. We look forward to your presentation, after which we will ask you some questions. Please proceed.
[Translation]
Hon. Bernard Valcourt, P.C., M.P., Minister of Aboriginal Affairs and Northern Development: Thank you, Mr. Chair, for this opportunity to speak to the importance of Bill C-47, the Northern Jobs and Growth Act.
As you know, Canada's North is home to world class reserves of natural resources, representing tremendous economic opportunities not just for northerners, but for all Canadians. Bill C-47 fulfils long-standing legislative obligations of the Government of Canada flowing from negotiated land claims in both Nunavut and the Northwest Territories. It also proposes mechanisms to reduce duplication, improve regulatory processes, encourage investment, and allow resources to be developed in a sustainable manner.
A more predictable regulatory regime in the North will allow northerners to benefit from more than 25 projects, worth more than $38 billion in potential new investment, that require regulatory approvals. This will inevitably lead to jobs for future generations of northerners, as well as all Canadians.
[English]
Part 1 of this bill is the proposed Nunavut planning and project assessment act. This part sets out a clear, consistent and reliable regulatory process that the people of Nunavut can use to manage development of their land and resources. This improved process will promote economic development by boosting investor confidence.
I want to stress the fact, Mr. Chair and senators, that these improvements are not just necessary, they are urgent. Our government believes that it is time that a state-of-the-art project and planning assessment regime was put in place to continue to attract resource development opportunities in Nunavut. As Pierre Gratton, President and CEO of the Mining Association of Canada stated, this "legislation comes at a critical time for the North, with its promising mineral potential and opportunities for economic development never before seen in the region's history. The new regulatory regime will help to enhance the North's economic competitiveness for mineral investment, while ensuring projects go through a robust assessment and permitting process."
The bill establishes in legislation a Nunavut Planning Commission as the single entry point into the project assessment process. This is very important as it will bring clarity and certainty to environmental reviews. This is also in line with our goal for an environmental assessment system based on the principle of "one project-one review," which will ensure that the regulatory regime for major natural resource projects, both North and South of Sixty, is among the most efficient, effective and competitive in the world.
The proposed Nunavut planning and project assessment act also assigns clear roles and responsibilities to the various bodies involved in the project assessment process, including the Nunavut Planning Commission, the Nunavut Impact Review Board, departments and agencies, responsible ministers, regulatory authorities and project proponents. It establishes clear timelines on key decision-making points throughout the project review process. It ensures that projects do not proceed until appropriate approvals have been received, and it establishes inspection, enforcement and monitoring regimes to backstop all decisions taken. These are just some of the improvements that will increase certainty and predictability for long-term economic growth and job creation in the territory.
Part 2 of Bill C-47 will establish the Northwest Territories Surface Rights Board. This will fulfill one of Canada's long-standing legislative obligations arising from the Gwich'in Comprehensive Land Claim Agreement of 1992 and the Sahtu Dene and Metis Comprehensive Land Claim Agreement of 1994. Both agreements refer specifically to the need for a surface rights board.
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The establishment of the board is also consistent with the Inuvialuit Final Agreement of 1984, and the Tlicho Land Claim and Self-Government Agreement of 2005; the other two comprehensive land claims in the Northwest Territories.
The access dispute resolution processes that are currently in place were intended only as interim processes until a Surface Rights Board was established. As we say back home, sometimes interim solutions become lasting solutions. However, this will be corrected.
This bill also responds to the 2008 McCrank Report, which stated that one of the regulatory problems in the North was a lack of surface rights legislation to resolve disputes between land owners who did not want to grant access to their lands for development projects.
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This board is intended to act as a tool of last resort to resolve disputes between holders of surface and subsurface rights requesting access and the owners or occupants of the surface. A dispute would only be heard when a negotiated agreement on terms, conditions and compensation for access cannot be reached by the parties in question.
The board will have the jurisdiction to resolve access disputes throughout the Northwest Territories. It will, on application, make orders related to terms, conditions and compensation only where it has been requested to do so, and only after such rights have been previously issued. In so doing, this board will increase the certainty and predictability for long-term economic growth and job creation in the territory.
Mr. Chair and members of the committee, I want to emphasize that this board does not, nor will it ever, issue any kind of right to surface or subsurface resources. This board also does not have any role in the process or decisions respecting the environmental review and assessment of resource development projects. This board will do one thing and one thing only: It will settle disputes about access to land through a single, clear, balanced and fair dispute settlement mechanism.
The bill also amends the Yukon Surface Rights Board Act to grant immunity from prosecution to board members and employees for decisions made in good faith. It makes board members whose terms have expired eligible to render final decisions on hearings in which they participated, and it allows the board to have its annual audit conducted independently. These changes parallel what currently exists in similar institutions in the North.
Mr. Chair, this bill is the product of working in partnership with the territorial governments, Aboriginal groups and industry to develop a balanced bill that responds to the needs of northerners today and in the future.
In the case of the Nunavut Planning and Project Assessment Bill, it includes valuable input from the Nunavut Legislative Working Group, a group of representatives from the federal government, the Government of Nunavut, Nunavut Tunngavik Inc., NTI, representatives from the Nunavut Planning Commission and the Nunavut Impact Review Board, who also acted as advisers. Their technical expertise and experience were great assets to the working group.
Representatives of the mining and oil and gas industries also provided useful suggestions related to maximizing regulatory efficiency and avoiding duplication, achieving clarity and certainty through specific timelines, and consolidating roles and responsibilities among institutions of government.
The Northwest Territories Surface Rights Board Bill was also developed in partnership with the Government of the Northwest Territories, Aboriginal groups and industry. As I mentioned earlier, this bill responds to the government's last legislative obligation from the Gwich'in and Sahtu land claims agreements and completes the regulatory regime that was originally envisioned in the Northwest Territories land claims agreements.
In total, over 35 consultation sessions on the Northwest Territories Surface Rights Board Bill were held with 13 Aboriginal groups and governments, the Government of the Northwest Territories and industry organizations. These sessions included groups with and without settled land claims in the Northwest Territories, as well as groups outside of the Northwest Territories with transboundary claims.
The bill before this committee today is a product that reflects the work, the opinions and the positions of many interests and groups across three territories. All parties contributed to produce a bill that meets the needs, I suggest, of the people of Nunavut and the Northwest Territories.
Bill C-47 also responds to the call for action from resource companies and Canadians asking for better coordination, clearly defined time periods for project reviews, more streamlined and predictable review processes, and improved regulatory approvals. Bill C-47 will help make these a reality and, in turn, will contribute to resource wealth and create economic opportunities for individuals and communities that will benefit not only northerners but all Canadians.
I look forward to this committee's review. I would be pleased to respond to any questions that senators may have.
The Chair: Thank you very much, Mr. Minister. We have two previous premiers from the North, Senator Patterson and Senator Sibbeston. I will start with Senator Patterson, please.
Senator Patterson: I appreciate that, Mr. Chair. I would like to welcome the minister. I think this bill presents a model for consultation that is impressive.
Mr. Minister, we have heard a lot about regulatory reform in the North, and I think now it is Nunavut's turn. Could you briefly explain how Bill C-47 fits into the broader northern regulatory reform initiative and what this bill means for future regulatory improvements? I believe there is more ahead for the N.W.T., but this is a major step forward for Nunavut.
Mr. Valcourt: Improving regulatory efficiency and effectiveness in the North has been, as you know, a long-standing commitment of the Government of Canada. This commitment has been demonstrated through a series of actions, including the release of the McCrank report, highlighting regulatory challenges in the North, particularly in the Northwest Territories, and the subsequent May 2010 action plan to improve northern regulatory regimes.
There was the appointment of a chief federal negotiator, Mr. Pollard, to work with stakeholders to consolidate the Mackenzie Valley Land and Water Board structure in the Northwest Territories and the expansion of the 2010 action plan approved in August 2012 and announced in November 2012 by my predecessor to more closely align northern regulatory reforms to the greatest degree possible with Canada's responsible resource development initiatives South of Sixty.
In order to improve regulatory regimes in the North, my department has committed to an ambitious legislative agenda. As I said, in November 2012 the Honourable John Duncan, my predecessor, introduced the first legislative element of the northern regulatory improvement agenda. This bill, Bill C-47, and the department's overall approach with respect to improving the northern regulatory regime has been to mirror, as I said, this responsible resource development initiative as closely as possible, while staying within the framework created through constitutionally protected land claims agreements. That is what is important here.
Senator Patterson: You spoke of the land claims agreements, and I would like to ask about Nunavut. Does Part 1 of the Nunavut Planning and Project Assessment Bill — we have been calling it NUPPAA — within the Northern Jobs and Growth Bill reflect the Nunavut land claims agreement in all respects?
Mr. Valcourt: Absolutely. There are provisions in the bill. When I say "absolutely," I must qualify this. There are provisions in the bill that are not reflected in the agreement, but they are necessary to complete this sound, robust planning and environmental assessment regime.
As a result of this, four sets of provisions in the bill will be required as amendments to the agreement to ensure that the two are consistent. The wording of these claim amendments that will be necessary because of these provisions has been agreed to by officials from the department and NTI and will be enacted by an NTI board resolution and an order- in-council concurrently with the coming into force of this legislation.
In the unlikely event of an inconsistency or conflict between any federal, territorial and local government laws and the agreement, the agreement prevails to the extent of the inconsistency or conflict as stated in clause 3 of the bill.
Senator Sibbeston: Mr. Minister, you will be glad to know that I am satisfied with the information you have provided in response to NTI's concerns. I think they brought some 51 amendments before the committee a few days ago. As I look at them and at the government's response, I see there are some differences of views and opinions in certain parts of the legislation, but they are not so gross or obvious that the legislation could not go forward in its current state. That is good to know. In particular, the Inuit have the assurance that if in any case there is any discrepancy, the land claims agreement prevails. They have some security in that regard.
NTI and others have expressed concern about the negotiations for implementation funding for the commission and board for the next 10 years. The implementation contract specifies that the negotiations were to have started in June 2012 and continue for a full year. We have two more months until that period expires and there have been no negotiations yet. You have not appointed a negotiator, and there is no negotiation going on.
The matter of the Crown's honour is always at issue in situations like that, where there are provisions in an agreement for you to do this, but you do not do it. What assurance can you give us that negotiations will occur within the time period provided?
Mr. Valcourt: One thing you can be sure of is that the activities of these groups will not be affected by the lack of resources. It is planned that these negotiations will be engaged in very soon — I am thinking in the month of June — in order to negotiate for the implementation provision for the next 10 years. That will take place. I do not think this really has to do with a provision of the bill. The implementation provisions of the agreement remain in place and we shall, of course, respect our obligations thereunder.
Senator Sibbeston: An issue has been raised by witnesses who have come before us, particularly Elizabeth Copland, who is on the board dealing with impact. She raised the matter of funding for participants who would present their views to the board. I think they are interested to know just how the government will approach that and whether there will indeed be specific funding for participation.
Mr. Valcourt: Currently there is no delegated program for funding participants in the environmental assessment process in Nunavut, although some funding programs through the Canadian Northern Economic Development Agency may be able to assist some participants. The Department of Aboriginal Affairs and Northern Development has for some projects been able to provide funding for some participants, but not on a predictable and sustainable basis.
As you may know, the bill provides the ability to make a regulation to establish a funding program to facilitate public participation in project reviews. I recently wrote a request for participating funds. I indicated that for these participants, they should take this into account in the budget that they give to me, and they should go and visit those participants. Instead of having a program to indemnify or reimburse or pay participants to come in, they should, in their own process, budget for them to go and meet the participants.
It is always a question of funding. The bill contemplates a regulation that if ever funding could be secured in the longer term, the department could move quickly to establish a program in regulation.
Senator Mitchell: It is unique in this arrangement that there will be penalties for infractions of land use planning codes, regulations and so on. It is unique to the extent that it is not, to my knowledge, apparent anywhere else in Canada, and it is quite enlightened. Could you just emphasize that and give us some perspective on why that was done?
Mr. Valcourt: The simplest reason it is there is to show how important it is and that these land use plans be respected. When we talk about responsible development, this is not a free-for-all. If there is a land use plan in effect, it has to be respected. Industry, as any other stakeholders who have an interest in pursuing activities on those territories, must realize that they must respect the will and the laws that are in place there. It goes to the seriousness we ascribe to respecting the will and the decisions that northerners make on their land.
Senator Mitchell: Another question concerns your power to appoint members of the Northwest Territories Surface Rights Board. It is apparent that that is your decision and that it does not include any kind of structured or official participation of Aboriginal land claim signatories. Could you tell us why that decision was made and what, more generally, the process of nominations will be to ensure they will be open and transparent?
Mr. Valcourt: The fundamental reason is that this is a quasi-judicial body. This is not a co-management board, and that is why you do not have groups represented or mandated to be represented there.
This is the "why." As to the "how," the bill provides for the minimum and maximum number of people who can be appointed, along with those who can be substituted in case someone cannot act. The process is that it is the minister's nomination, but people will offer their services, I am sure, to serve on that board. You want individuals with a good knowledge of the environment, the circumstances, the land and the people, and who know about the territory. This is what will guide this appointment process. It is to the advantage of the minister to appoint the best possible candidates who can get this board to be effective and efficient. I guess that is the process that will be followed.
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Senator Massicotte: This is an important bill for a significant part of our country. Your support and recognition of this sector are greatly appreciated.
We have heard a number of witnesses who made very detailed recommendations. You also responded to some of these suggestions in a very detailed way. The important thread in these comments, despite not necessarily being addressed in the bill, is funding. I know that funding is not included in the legislation. However, we see that the concern remains the same. You must admit that no matter how many recommendations are made or how many organizations are in place, without funding the work cannot be done. The witnesses suspect that you, as the government, are in a position to make a quasi-unilateral decision because you have more leverage. The one who pays is often in a better position at the negotiating table than the one who receives. The concern is that the funding will not be adequate. However, it is very important to understand that this measure affects many people and many projects.
What assurances can they get? I know that negotiations have not reached that stage, but is there a sincere intention to ensure that the funding is adequate? How can we get a bit of certainty?
Mr. Valcourt: In the 15 years that these boards have been around, funding has never been denied or caused any real problems, on the contrary. Basic funding is approved according to budgets submitted to the minister and approved. When the circumstances produce a greater workload, for instance if the number of projects to be evaluated or the workload increases because of demand, then we respond accordingly.
The best gauge of the future is the past. So far, we have not had any problems in terms of funding. However, I must point out that we advocate efficiency. The resources come from taxpayers. Even in the North we have to be efficient, productive and, wherever possible, very respectful of taxpayers' money, but our experience so far has been positive and if the past is any indication of the future, then there is no problem.
Senator Massicotte: My colleague is proposing participant funding. People wanted explanations. You responded by saying that a mechanism is already in place and you are suggesting that we make a recommendation.
The program consists more so of covering the transportation costs for the witnesses. If we do not have more structured funding, these people will not even have the expertise to contribute to these boards. The legislation and other programs in place allow it.
Is there no way to create something for this board to be more structured, more secure, more reassuring?
Mr. Valcourt: It is true that the Canadian Environmental Assessment Act includes a financial aid program for participants, but it no longer applies to Nunavut.
As I was saying to Senator Sibbeston, there is no longer a program devoted to funding participants of the environmental assessment process in Nunavut.
As I pointed out, the bill before you offers the possibility of creating a regulation in order to implement financial aid to help the public participate in project reviews.
For now, no such regulation is being drafted since no reliable or sustainable source of funding has been determined to support us. You know the financial situation we are in, the challenges we are facing. The legislation allows it and in the event that ongoing funding becomes available for the long term, we could quickly implement a program through a regulation. We will be able to do that, but we currently do not have the resources.
I recently wrote to the chair of the Nunavut Impact Review Board. I had the same request and in my letter I invited her to go to the mountain instead of having the mountain come to her. It is much easier for her to find participants who can contribute to their process than to have a program that has them all come to her. That is what I proposed as a reasonable stop-gap alternative. It might work quite well.
Senator Massicotte: If they make the request in their budget, are you open to considering it?
Mr. Valcourt: I asked them to travel. Not the participants, but them. Let them travel around if they must to meet the participants and hear what they have to say.
Senator Massicotte: They are looking for funding that covers more than just transportation costs. They want funding for expertise preparation, for example.
Mr. Valcourt: From what I understood, this may include funding for preparation. As I said, Bill C-47 would provide a framework for rules on participants.
I am being candid with you. I currently do not have the funds or the budget for that or any plans to draft such rules. If we can find ongoing funding in the future, then we could adopt the rules and the authority will be in the legislation.
Senator Massicotte: I will move on to the Northwest Territories. This morning we heard a presentation on surface rights by an organization called Alternative North. It was not legal presentation, but rather a presentation by those in the know. These people believe that the proposed bill should not affect the power of the municipalities, that the municipalities should continue to have this surface right that already exists and not be subject to this law. That seems reasonable to me, but surely there is a reason why it is not like that. Can you clarify?
Mr. Valcourt: There was a provision for municipalities. I believe this had been discussed at the municipalities. In these situations, the lands within municipal boundaries would be considered under the bill as non-designated land. If the land is owned or occupied, if it is considered non-designated, but someone has a right to it, even if it is within the municipality, there is a right of access.
Senator Massicotte: The rules of the municipalities are irrelevant for defining these rights? If there are private property rights, then I agree, the law is clear, but the municipality is responsible for zoning, usage rules, nuisance laws and more.
Mr. Valcourt: Yes. I would ask Ms. Vézina to answer your question.
Camille Vézina, Manager, Legislation and Policy, Northern Affairs, Aboriginal Affairs and Northern Development Canada: The bill applies to municipalities and this was discussed with the Government of the Northwest Territories. They agreed to have this apply to the municipalities. The thing that was suggested by the group that you mentioned is not something the Government of the Northwest Territories wanted to see. According to them, the municipal boundaries would be, as the minister said, considered non-designated lands and only if there is an owner or an occupant would there be an application to the board.
It might be important to note that this process already exists. We are not changing the application.
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Senator Wallace: As you pointed out, Mr. Minister, the focus of the portion of Bill C-47 that relates to Nunavut is to create opportunities for new economic growth in Nunavut while at the same time having a proper balance with environmental protection. You described very well the certainty that hopefully the bill would present and said that it would encourage investors to continue to come forward in the Nunavut area. Are there particular aspects of the bill that would relate to the enhancement or protection of the environment in Nunavut that you would care to comment on?
Mr. Valcourt: The provisions concerning the impact review board build on the experience of the last 15 years in accordance with the land claims agreement. I stand to be corrected by officials, but I do not think that we have added much except to bring it into line, as much as possible, with what we have South of Sixty. We do not want to create a two-tier system where the competitive advantage of doing business South of Sixty will stall the economic development in Nunavut. These are all changes that have been agreed to by the stakeholders. The responsible development philosophy that we have espoused and are trying to implement is omnipresent in the bill.
Senator Wallace: With regard to the part of the bill that relates to the Northwest Territories and the surface rights portion of that, I understand that a number of land claims agreements have not been settled and are still ongoing. Could you comment on how the bill would impact, if at all, the continuation of the negotiations to settle those land interests?
Mr. Valcourt: As you know, we have non-designated areas, which are the unsettled areas, that are Crown lands, and the Crown inherently consents to surface access. For example, when issuing a permit for subsurface rights under another act of Parliament, there is no dispute that can be raised to the Northwest Territories Surface Rights Board. In the situation where there is an owner or occupant, a leaseholder of lands that is not part of a settled land claim agreement, a dispute could be heard by the board. Therefore, the act would not impact land claims negotiations as it would not be within the board's jurisdiction on unsettled land claims areas unless there is an owner or an occupant of those lands. Another portion of the bill provides that if other settlements are being reached, the new agreement can ask that this act be reviewed in order to conform with the new agreement or new settlement. I think we have covered all the bases there.
Senator Wallace: Thank you, Mr. Minister.
The Chair: Thank you very much, Mr. Minister. You have been very forthright and frank with us, and we appreciate that. Thank you for your time and that of your staff tonight. We have no further questions. We appreciate the opportunity to talk to you about this bill.
(The committee adjourned.)