Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 5 - Evidence - February 6, 2014
OTTAWA, Thursday, February 6, 2014
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 7:59 a.m. to examine the subject matter of Bill C-15, An Act to replace the Northwest Territories Act to implement certain provisions of the Northwest Territories Lands and Resources Devolution Agreement and to repeal or make amendments to the Territorial Lands Act, the Northwest Territories Waters Act, the Mackenzie Valley Resource Management Act, other Acts, and certain orders and regulations.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: 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, as well as any members of the public with us in the room or listening through the webcast.
I would now ask senators around the table to introduce themselves, and I will begin by introducing the deputy chair, Senator Grant Mitchell from Alberta.
Senator Mitchell: Hello.
Senator Beyak: Senator Lynn Beyak from Dryden in northwestern Ontario.
Senator Seidman: Judith Seidman from Montreal, Quebec.
[Translation]
Senator Massicotte: Paul Massicotte, from Quebec.
Senator Ringuette: Pierrette Ringuette New Brunswick.
[English]
Senator Sibbeston: Nick Sibbeston from where you come from.
The Chair: In addition, I would like to introduce the staff we have supporting us: from the Library of Parliament, Marc LeBlanc and Sam Banks; and our clerk Lynn Gordon.
Today is the sixth meeting of our pre-study on Bill C-15, whose short title is the Northwest Territories Devolution Act. This bill was introduced in the House of Commons on December 3, 2013.
It gives me great pleasure to welcome, from Ecology North, Christine Wenman, Manager, Policy and Planning; and Dawn Tremblay, Office Manager.
I understand you have some remarks that you'd like to present, and then we will have questions and answers. I would like to remind everyone that we have one hour for this section of the meeting.
Dawn Tremblay, Office Manager, Ecology North: My name is Dawn Tremblay, and this is Christine Wenman. We're both staff at Ecology North, however Ecology North and Alternatives North have been working collaboratively on this submission. Although Alternatives North is not on the agenda, I just wanted to recognize them and acknowledge that we are representing them through this joint submission as well.
Alternatives North is a social justice coalition and has representatives of churches, labour unions, poverty groups, individuals and women and family advocates. Individuals actually play a very important role in that organization.
Ecology North is a grassroots organization. We are a non-profit, registered charity and are committed to bringing people and knowledge together for a healthy northern environment.
Bill C-15 is a lengthy bill, and we did not analyze it in its entirety. The submission we made with Alternatives North addresses a number of our key concerns, three of which we would like to highlight this morning. These concerns are in reference to Part 4, referring to the Mackenzie Valley Resource Management Act.
First, we would like to say that Part 4 needs to be uncoupled from the rest of the bill. Parliament needs to vote on Part 4 separately from the devolution sections of the bill. People can be fully in support of devolution and not supportive of Part 4 for several reasons. Part 4 is not in keeping with the spirit of devolution. We don't believe it will help the regulatory system be more efficient, effective or equitable, as there is no evidence to suggest this.
There is very little consent on this section of the bill, which detracts from the efforts to create the proper conditions for economic growth, prosperity and long-term development in the Northwest Territories.
As a northerner, born and raised, it is becoming increasingly apparent to me that our unique socio-political fabric has influenced many aspects of governance, including resource management.
The Northwest Territories has a nuanced, unique social fabric composed of a diversity of people, including self-governing First Nations. Debate and varied opinions are common, yet consensus is a governance principle that is reflected in the territorial political structure.
In Yellowknife, during the parliamentary committee hearing, a powerful consensus was expressed on this issue. Part 4 of Bill C-15 needs to be debated and voted on separately from devolution.
Christine Wenman, Manager, Policy and Planning, Ecology North: I'll just continue that this is certainly our main influence here: these two sections of the bill do not belong together. They are completely different in spirit, intent and effect, and they need to be debated separately. We do have additional comments more specifically on the changes that are suggested in the bill to the Mackenzie Valley Resource Management Act.
Importantly, the act lays out the dismantling of the regulatory framework as it currently exists by eliminating the regional land and water boards. There is absolutely no documented evidence that these regional panels are contributing to inefficiencies or reduced investments in Northwest Territories. Instead of dismantling the system, the system needs to be completed by finishing land-use plans and negotiating outstanding land claim agreements.
What we see in Northwest Territories is that where land claims have been settled, the system is working very efficiently as an integrated co-management system, as it was intended. The current system can effectively fulfill the responsibilities that were intended in writing the act.
Removing the concept of management areas from the Mackenzie Valley Resource Management Act will only result in increased inefficiencies and reduce clarity as the management areas remain rooted in land claim agreements and subsequent legislation, such as the existing land-use plans.
We have no doubt that eliminating these regional boards will create logistical challenges. For instance, in the proposed changes we see opportunity for regional panels of up to three members appointed to deal with specific projects. With quorum, this could only be two people making decisions on a specific project, and there is no guarantee within the proposed legislation that there would be regional representation on those panels. This will create difficulties with quorum and we suspect will increase the opportunity for challenges and disagreements within the region.
It is not clear in the changes to the act whether the regional staff themselves will be impacted, but certainly there is no guarantee in the legislation that the staff will be maintained. Should the staff be impacted, the changes will reduce access to board services; it will diminish the role of the board as a liaison to the regions, which will cause communication gaps between people and decision makers and jeopardize existing constructive relationships. This will impact investors negatively, resulting in a less collaborative and less consistent, more adversarial environment.
We can see in regions where land claims have been settled, such as the Wek'èezhìi region, the Tlicho region of Northwest Territories, that investors and industry have extremely collaborative, constructive relationships with the regulators. It would be a shame to see these existing relationships jeopardized.
With all of these logistical challenges, we are confident these changes will not improve the system: They will, in fact, make it more inconsistent and less efficient.
The other thematic issue that we take with the proposed changes to the Mackenzie Valley Resource Management Act is the increases on ministerial authority. We see this in several places. For instance, ministers have the authority over timelines, which should remain within the board's authority as they are the ones working on issues close to the ground.
Similarly, there are increased opportunities for the federal government to force binding policy on the land-use planning boards and the Mackenzie Valley Environmental Impact Review Board. The chairperson will be appointed from Ottawa, no longer following the current process which is by nomination by the board members themselves. These changes decrease the quasi-judicial role of the boards and politicize regulatory decision making.
The increase in ministerial authority diminishes co-management principles which are fundamental to the regulatory process and fundamental to land claim agreements. Indeed, the integrity of the boards rests on the fact that they are arm's-length, non-political entities.
Finally, we want to make the point that although there are improvements needed to the MVRMA and the environmental management system in N.W.T., these should be coming from the environment audit that exists within the legislation itself.
The MVRMA lays out a process for self-evaluation. Every five years an audit takes place. Two have been done to date, one in 2005 and one in 2010. These are done in a comprehensive manner with substantial, well-documented feedback from board staff, Aboriginal, territorial and federal governments, industry representatives, and the broader N.W.T. public.
Little to no progress has been made on many of the key audit recommendations, and the federal government has never issued a formal response. Yet, several analyses of the regulatory system in the N.W.T. have highlighted that some of these staple structural issues are causing delays in the regulatory system. These require federal leadership to resolve. They include negotiating outstanding land claims, completing land-use plans, ensuring timely ministerial appointments and approvals, and providing sufficient resources for the public to participate in the regulatory processes.
Unlike some of the changes proposed in Bill C-15, such as eliminating the regional panels, these recommendations are based on empirical evidence and a general consensus expressed by those who live and work in the regulatory system in the Northwest Territories. These provide useful advice on how to move forward in improving the legislation.
Those are our main points, and we're very open to questions either on our written brief or on our speaking points.
The Chair: We'll go to our questioners, and I'll first defer to the deputy chair, Senator Mitchell.
Senator Mitchell: Thank you very much to both of you. Your presentation conforms very closely with what we heard from a number of the settled area representatives, the Sahtu, the Tlicho and the Gwich'in. Are there other organizations that would support this position that you're taking in your analysis?
Ms. Wenman: We both sat through the parliamentary hearings last week in Yellowknife and, of course, being Northwest Territories and, as Dawn referred to, being an integrated social fabric, we're aware of other positions. It's quite amazing, for a territory as diverse as Northwest Territories, how much of a consensus does seem to exist around this issue. Even from industry, which probably has some perspectives that might be different from other groups in terms of improving the regulatory system, we still see very strong reservations about dismantling the regional framework, for instance, because of the constructive existing relationships in regions that have been settled.
I think whether it's Aboriginal governments, representatives who work within the system themselves, community members or organizations such as ours that represent the public, there seems to be a very common stance.
Senator Mitchell: There are a number of arguments that we've heard that oppose your position and, to some extent, they can be contradictory. One is that there's not the capacity to populate all these boards with people who are adequately professional or even want to do it. Another argument is that while there is provision to have regional representation on the super board the other argument, which is contradictory in a sense, is that you could have regional sub-boards.
How do you argue against each of those? To some extent you have, but maybe you could focus on those particular arguments.
Ms. Wenman: There are three points there, so I'll address them individually.
First of all, capacity is brought up in the Northwest Territories a lot and sometimes I feel it is misrepresented. There is a tremendous amount of capacity in Northwest Territories and we see a tremendous amount of capacity on the boards. We've also seen initiatives over the last few years of the boards working collaboratively to ensure that that capacity continues to grow. So, it is capacity both in existing fact and also a future vision to keep building on that, and I think that the regional panels and the board forums that the boards have put in place highlight both the existing capacity and the growing capacity. I haven't seen evidence that supports that position.
The second point was that there is opportunity for regional representation through the panels. There are provisions for that. There is nothing to guarantee that. I've spoken to that and that's certainly a concern, as well as the logistical problems with having quorum with only one board, which I also brought up.
I suppose the same can be said about the regional sub-boards. There are all sorts of questions around how this act will be implemented, but there's nothing to guarantee how it will be implemented, and I think legislation is supposed to create as much clarity as possible from the beginning. We certainly don't see those sub-boards here.
Senator Mitchell: My speculation — perhaps it's even more than that — is that the super board is really designed to streamline, to make it easier for development and to create certainty. Those are the arguments that are used, yet you made a very pointed and powerful statement that, in fact, the system with the various boards now is working quite well and that, in fact, industry and commercial enterprises that are using them are quite happy with them.
Have there been complaints or concerns with delays, uncertainty or difficulty in advancing development under the current structure of a variety of boards?
Ms. Wenman: Absolutely, there has been. I don't think anyone would oppose that, but where we actually look at some of the analyses that have been done, there's no evidence to suggest it has to do with the regional panels at all. I brought that up in the speaking notes as well.
We see a lot of holdups because we have unsettled land claim agreements and this creates a lot of uncertainty in terms of people's roles in making decisions. When a specific project is proposed, unfortunately, it gets tied up in those main table issues or those land claim issues.
Similarly, where we have settled land claims but not land-use plans, it can become very difficult. People may be getting exploration licences, beginning projects in areas where there's a sort of general understanding of particular environmental or cultural value but that hasn't been written into legislation yet. Those no-go zones are very important, and industry has repeatedly said that as well through many of their representative organizations.
There's nothing in the proposed legislation that will address what appear to be the main holdups. We see holdups in ministerial appointments and approvals of the recommendations from the environmental impact review board.
As you pointed out, I did make the point that there could be additional holdups because of this legislation and we do see that. We see opportunity here, without that regional representation straying from co-management principles from the agreements within the land claim agreements, for very adversarial environments and a more difficult environment to meet section 35 consultation requirements. No doubt, we think that this will cause less clarity and more holdups.
Senator Massicotte: Obviously, we appreciate your presentation and we read your brief, but I would like to make sure I understand your brief.
It's a very significant act, but fundamentally you agree devolution is a very good idea. You fully support it, but you bring up one significant issue, namely, water management and land management, and you raise two subsidiary issues. One is anti-devolution, whereby the minister seems to be getting additional power, and you don't like time constraints on some of the environmental reviews. Am I reading your brief correctly when I summarize it that way?
Ms. Wenman: Yes, but I might add with the timing constraints, it's really how authority for determining them is written in there with ministerial authority.
Senator Massicotte: Therefore, devolution is a good thing. That's the significant one.
You don't agree in particular with part 4. On that note, I don't know if you heard the testimony last week of Mr. McCrank. His report is probably the founding argument for why the super boards are being created and I think you'll agree with that. Mr. McCrank said there was large consensus but not full agreement on that when he discussed it with the people in the North. His argument was that there's no question you mustn't load the local people — the local boards, call it what you wish — in determination of the land use and water use because it's local knowledge that will allow those decisions to be made. That's appropriate. Then you see other forms of government around the world that are consistent with that.
However, when it comes to managing, once you decide on land use, once you decide on the principles you are to use and what should be permitted, he said the management of that should be centralized for the sake of efficiency.
I have been in real estate for most of my life and that is consistent with what we see in other cities and other countries. In other words, local people get heavily involved in defining how they want the resources used, but when it comes to the management — not the principles — and putting it into practice, it's usually more efficient that it be done through a more permanent structure.
How do you respond to that argument that he was using?
Ms. Wenman: There are lots of components to that. I'll start by saying that we absolutely agree and support the role of land use plans as being absolutely instrumental in this whole co-management framework. That was one of Mr. McCrank's main points and it's certainly true.
To then suggest that there is not a role for continued regional units is somewhat misleading, first, because there are regional management units within the land claim agreements and subsequent legislation, such as land-use plans, as I've mentioned before.
Also, I think it overstates somewhat what land-use plans can do. Land-use plans create a context in which we can have zoning where development can take place, where protected areas need to be foremost, but within the regulatory system itself. The regulatory system has a responsibility to address significant public concern and specific environmental adverse impacts within a localized context.
Within the regulatory system, the boards will have a requirement to understand those very contextually specific local issues. Therefore, I do believe there is a very firm role for regional representation and not just regional representation but those very constructive regional relationships that we see through, for instance, the Wek'èezhìi Land and Water Board in a specific region in order to help make those processes more efficient.
The final thing I will say on that subject is that the system in Northwest Territories — and I think that the Aboriginal governments that come to be witnesses here, either today or in the past or future, will speak to this more — is a system that is somewhat different than what's seen in the South and it's different by design. It's different because of the differences between the regions. This is an extremely vast territory, with First Nations that have very different histories and visions. This has been created out of land claim negotiations and it works.
Senator Massicotte: Could I just add to that, though? I think the principle would be that once you agree to the land use, once you've designed zoning and so on and what is to be used, normally you then have a more significant body to manage that. To the extent that changes — and I didn't hear Mr. McCrank say that — if there's a reason to change the principles of land use, then it should go back to the local community because that's the one that can define how they want their resources used.
Would that satisfy you if that was clarified? Allow the management by the super board, but every time you touch the use of the resources let the local community — I want to use generic words here — let them decide. Would that be satisfactory to you, if they said that?
Ms. Wenman: I'm not sure I understand what you mean.
Senator Massicotte: Once you define the principles of what is to be used, and define the zoning and the densities and so on, I think the intent is that the local committee would always decide that issue but let the management and the permanent approval process go to the super board. However, you're against that also, I gather.
Ms. Tremblay: I'm just curious; what would be the point of that?
Senator Massicotte: Right now, your report says if you're going to fool around with the zoning or land use then it's got to be local. I think I have your views on that. However, at this point they're delegated to a super board to put it in place.
Ms. Tremblay: I'm curious because I kind of see what you're saying, but I'm curious why the process would happen here, maybe not quite local but regional, and you said go over to the super board for management and then back. Why go back and forth when you can just stay there?
Senator Massicotte: In other words, the super board would not have the authority to make land use changes, but only put it in place. Would that give you assurance? Would that make you more comfortable?
Ms. Wenman: The point that I was trying to make is that there are other considerations when considering significant adverse impact or public concern for a specific project besides land use. Whether it's specific water quality, whether it involves traditional knowledge of the use of the land, or whether it involves roles of specific areas and subsistence harvesting, that relationship, that communication and that dialogue are extremely important and really contribute to having a well-functioning system that ensures the environment is protected as efficiently as possible.
Senator Massicotte: You have made specific comments on the issue of timing. I suppose the government is trying to deal with this issue because they have had experiences elsewhere. Unless there are expected deadlines to the process, it can drag on and on.
Your brief has said that has not been your case. However, I've run different companies and human nature is such that when you leave people open deadlines it takes forever because you'll never achieve perfection and there's never enough time. Don't you agree that there should be at least some arbitrary decision to say, "Here's your objective and if you want to surpass this you must come back to us." Otherwise, it's human nature. Give people two years to do something and it will take three years; give them six months and it will take nine months.
Ms. Wenman: I'm not sure the main opposition is against having deadlines, particularly if there's some discretion in there to recognize situations as they arise. Some of the analysis has to do with when the clock stops, for whom it stops and who decides when the clock stops.
One point I'd like to make is that the main issue there is that that control now becomes ministerial authority instead of the board. This is another issue that could create logistics. There's really no reason for that kind of micro-management from a political level. In rereading the most recent audit, there's an interesting point brought up that even now when there needs to be extension of time lines the approval needs to go to the board level. An industry proponent may be asking for a one-week extension and they have to go through a long process. It may take up to three weeks to get this one-week extension.
We see that where decision making is removed to a political level it creates opportunities for interference and more delays and here, in this legislation, we're seeing it removed one step further. Again, I think it's likely to create more inefficiency.
Senator Seidman: I'd like to pursue the last question Senator Massicotte asked you, but in a slightly different way. What you're proposing is serious and we should take it seriously because you're asking to uncouple the bill in a way which would clearly extend the timeline and create delays.
I will read to you very briefly what the Premier of the Northwest Territories said. I believe it was last week in Yellowknife in testimony in relation to this very issue. He did say:
We respect that people are worried about the proposed regulatory improvements but we do not believe that is a reason to delay the devolution we have been seeking for so long.
. . . We need to focus on devolution and the ultimate goal we have been pursuing as a territory for decades . . .
Then he goes on to say:
I have always said that we would devolve and then evolve, and that continues to be our approach. The system that will be in place on the effective day will not be chiseled in stone. Our territory will continue to grow and evolve. . . .
There is this concept that, "Okay, let's get it done." Then there will be a sort of an evolutionary approach.
I think the point Senator Massicotte was making was that we can't have it perfect or we'll never get it done. Nothing is perfect, and you can't always satisfy every single aspect of an agreement. I would like to know what your reaction is to that.
Ms. Tremblay: I completely agree; we're not perfect and nothing is perfect. However, I think at the same session, after the Premier spoke, I believe the lawyer for the Sahtu region said there is a bit of an irony being presented by the fact that Part 4 has been added in and these changes have not been debated separately.
Devolution is a very big issue that has been on the table for a long time, so we are happy to see that go through. We understand the timing and all of that. However, the irony that lawyer highlighted that I found poignant is that with devolution, power is coming to the Northwest Territories; we are gaining authority over certain aspects that we haven't had previously. Yet, by creating more ministerial authority within the resource management structure, it's handing to Ottawa and then it's taking back.
Therefore, we find that through this legislation, there is some loss of authority that will allow interference and politicization that otherwise is not ideal or in keeping with the spirit of devolution.
Ms. Wenman: This point has been raised and it's not clear. The changes in the MVRMA are not intended to be implemented until 2015. There is much more consensus in N.W.T. for devolution. It is not really clear why the holdup of these bills needs to be so significant. There are a few minor changes in the MVRMA that need to be made to facilitate devolution; otherwise, it might never be perfect, but we could at least have some sort of decent process that recognizes the very strong opposition in the Northwest Territories to these changes.
Senator Sibbeston: Thank you. I want to ask you about your organization. I note you say you are a grassroots organization. Could you tell us a bit about the work you do? I imagine your organization to be concerned about the environment, ecology, sustainable development and things of that sort.
In terms of your daily work and activities, how do you relate to the various regions of the Northwest Territories, particularly resource development? Are you very involved at all in that sphere?
Ms. Wenman: The bulk of our work tends to be community-based throughout the Northwest Territories, so we do a lot of public education and environmental planning work with individuals and municipalities throughout the Northwest Territories. Except when an extremely important issue comes up with significant environmental implications, we tend to work at that grassroots level. So, it's somewhat unusual for us to get this involved in a policy issue, but this is a very significant one.
Although we tend not to work as often in that regulatory environment, we have done quite a lot of work in the last few years in collaboration with some of the regional land and water boards, working with them to foster an understanding of what licence requirements in communities are for waste water management purposes. We have had quite a collaborative role with some of the regional boards through that work, and that has allowed us to recognize how constructive their relationships are, both with community members and with industry proponents.
Senator Sibbeston: In this whole area of resource management, I am very conscious of the system in place now. All of these regional boards that exist in the North are controlled projects under a controlled environment, and they have come about as a result of land claim agreements with various organizations throughout the North. That is very good, because you come from a time and a place where Aboriginal people did not have any control or any say in development. Through the land claims process, they have won the ability to have some say and some control over any development that occurs in their region. That's why these regional boards have been set up.
I am aware of Mr. McCrank going to the North and studying the situation. His experience is in Alberta, and I don't know whether it is a good thing to have an Alberta system imposed in the North because look at the tar sands and their effect on the environment. There is a general feeling that in Alberta there is no control; industry prevails regardless and effects to the environment and so on are secondary.
On the one hand I think, "Wow, is Mr. McCrank trying to set up a system in the North that is similar to Alberta, which is not very good for the environment, ecology, and so on?" On the other hand, I am conscious of the need to be sure that the regulatory process is streamlined.
For example, in the area of the Dehcho, there is a little mine called Canadian Zinc. It has been eight years from the time they originally applied through the various processes, getting permits and so on, and they are still not operational. That is maybe the downside, the worst kind of scenario. On the other hand, I think probably in the claim areas, where there are regional boards, things have moved faster.
Can you comment on the points that I have raised, please?
Ms. Tremblay: Yes. I think you raise an excellent point, that the land claims need to be settled in the Dehcho. That is one of the reasons why there are issues with development in that region. As we have stated previously, some of the holdup in the system is related to a set of land claims, and I think that is clear.
Also, bringing up McCrank, the first thing I thought of as you started talking about that were the internal audits. When you criticize yourself, you are often able to find what is really not working in your system. If it's your house, school, business or workplace, you know that system, so you are the one best placed to criticize it and try to make it better.
I think that reinforces Christine's point about the internal audits being the place to go, and those are the recommendations that really need to be implemented in order to see the system work better.
Senator Sibbeston: I can tell you from experience that it's very hard to change any legislation that comes before us. My experience has been once a bill is in place, particularly with a majority government and with the Senate being what it is — the government having many of its members — it's very difficult to make any changes to a bill, inasmuch as I think the House of Commons heard evidence in the North that there are strong feelings that the regulatory process, which is part of the bill, ought to be changed. It is very difficult to make a change.
Considering that, if there were one area that you wanted changed, what is the most significant change you think ought to be made?
Ms. Wenman: Split the bills. It doesn't belong there, and then a proper process could take place to make sure that the changes actually create a more efficient and consistent system.
Senator Sibbeston: Okay. I will make a motion then to split the bill and see whether it comes about.
The Chair: Maybe I could ask a question following on from Senator Sibbeston's. He actually lives in the Northwest Territories and was the premier at one time. We also have another past premier of the Northwest Territories, so we have some good knowledge around the table.
Senator Sibbeston asked how involved you were as a grassroots organization, and you said you were not-for-profit. You must get some funding from somewhere. Maybe I am wrong; I don't know. Where would that come from?
Ms. Wenman: We are almost entirely government funded, and it is project specific. So we get grants, contracts or contribution agreements for specific projects, working with communities on specific issues.
The Chair: Okay, so it's territorial government funded. Is that correct, or is it federal?
Ms. Wenman: It's both. It has switched over, in the last couple of years, to being more heavily territorial, but we still have some federal funding.
Ms. Tremblay: And some from municipal governments, as well.
The Chair: The other thing I would add is that there is, as there is in most bills, a five-year review clause that the bill will be reviewed in five years. If there are things that haven't worked, as we are hearing a bit about now, I am sure that whoever is here at the time, whoever is in government, will actually respond to those.
The other thing is that Senator Sibbeston talked about it being hard to change a bill because there is a majority. I would say that is true to a degree, but also this is not something that was just started last Friday. This is something that has been in the works for a long time, not just under the government that is there now. These ideas have been put forward — as I think I even heard from you folks — for a long time. So other federal governments and other territorial governments actually have been there when a lot of things — I am not saying the final draft, but a lot of things — have been negotiated.
I just wanted to make that point. Unless you want to respond to that, I am fine with going to the next senator.
Ms. Wenman: I would just respond that that is certainly the case, and there are certainly a number of what we consider to be positive changes in the bill, as well. It's been my understanding, though, that, based on some of the past work that has been done, the work of the last couple of years has been very much consultative at best as opposed to some of the earlier work, which was done in a very collaborative way that was more fitting with the co-management framework that exists in the Northwest Territories. That has been my impression.
Senator Patterson: I would like to thank the witnesses for being here.
You have called for the settlement of outstanding land claims, which we all agree with, of course, and you have criticized what has been called a super board. I don't like the term at all; we don't call our board in Nunavut a super board, even though it covers a much larger area, with much more distinct regions, than the N.W.T. or Yukon.
Let us say that we do get the land claims settled. Mr. McCrank, in his testimony this week, speculated that there could be up to four land claims outstanding, and it could be even more. Let us say that there are four land claims settlements in the future. Under the current legislation, if we don't make changes, each time a land claim is settled, you have five more people on the existing board. Let us say we have four land claims settled with five more people. That would be 20 people on top of the existing 15. You would have a 35-member board. Some people have speculated it could go up to 55 based on all the outstanding land claims.
Have you thought about whether that is a manageable system going forward, if and when we do settle land claims, as you have advocated?
Ms. Tremblay: May I ask for one clarification before responding? What were the four regions that he said would be settled?
Senator Patterson: I think we talked about the Dehcho and the Akaitcho, and there are several Metis claims. There may be more.
Ms. Tremblay: I just wanted to clarify that.
Ms. Wenman: I can respond to that. It is conjecture at this point when negotiations are ongoing.
Our understanding, based on working with the folks who have been involved in those direct negotiations, is that they seem to be working toward two more. Certainly, four seems possible. I think some of the larger numbers are absolutely inflated and have no resonance. That doesn't seem to be what is happening at the negotiating tables.
Recognizing that the Mackenzie Valley Land and Water Board already exists for the unsettled regions, if we have Akaitcho and Dehcho, that's one additional board. There would have to be something set up for the trans-regional. I don't think it's unwieldy.
Senator Patterson: My impression of your presentation this morning is that you are very skeptical that this will work. We heard Premier Bob McLeod speak to our committee, and you heard his, I think, impassioned remarks in Yellowknife about the historic significance, saying that they are going to make this work. I think he said that it's not a sprint; it's a marathon.
You said this morning that there is no guarantee there will be regional representation on regional panels. You would agree, though, that the bill has been amended to allow, where a project exists in a region, the establishment of regional panels and the appointment of the representative on the board from that region to those regional panels.
Do I understand that you just don't think that the people appointed to the board will act in good faith in the spirit of that amendment?
The second thing is kind of related. You said you felt that there would be no guarantee that regional staff would remain in place and that this could jeopardize existing relationships. We had Premier McLeod address that question before our committee and he said, "We're going to take a decentralized approach." They have allocated I think it was 90 positions that are coming over to regions. He said that they believe in a decentralized approach and even that, through the Minister of Finance, they had developed a plan to provide housing that is not there now in the regions. There was a very clear commitment, I thought, on his part, that the regional presence, to the extent that it is there now, would be strengthened under devolution.
I guess I want to maybe challenge you a bit. Are you not being a bit skeptical or cynical about the ability of the territorial government and the new board? You know that Willard Hagen will be chair of the new board, an extremely experienced and I believe credible Aboriginal leader. He will oversee the transition. Are you not being a little bit skeptical or cynical about the ability of Northern people to make this work?
Ms. Tremblay: First, we are not doubting the territorial government's commitment to the regions. I think the commitment to jobs in regions is a great one and has been clear. However, jobs in the regions are slightly different than positions on a super board. I just wanted to highlight that we support the commitment to regional job opportunities and we don't question that whatsoever. However, what we're questioning is related specifically to the board structure. I will pass it over to Ms. Wenman.
Ms. Wenman: I think rather than reiterating some of my other former points, it is great to hear that commitment. With only one regional representative, it will be logistically difficult to ensure regional representation on panels. That is certainly a challenge that can be anticipated. I will leave it at that.
Senator Patterson: A quick one?
The Chair: A real quick one.
Senator Patterson: I continue to be amazed about the fears of Ottawa continuing to exert colonial authority in the North. We do have the Constitution of Canada and federal Crown lands and other works in the N.W.T. and in the provinces, as well as federal authority in areas like fisheries and oceans, and transport, to name a few constitutional authorities. Is it not naive to suggest that the federal presence should disappear under devolution? There is no province in Canada where federal ministers don't have a role in land and resource management. That's because of the Constitution of Canada. I would like to ask you this: Don't you acknowledge that, under the Constitution, the feds have authority, powers and lands in the North? They can't just disappear. That would be an abdication of their constitutional responsibilities.
Ms. Wenman: I guess I am challenged to see how this is the appropriate use of that role. Absolutely, it has to exist. It exists now in the minister, Environment Canada and DFO as interveners in regulatory issues. That is the appropriate way for that influence to be there. I don't see, as I've argued, how having increased ministerial powers over the board and the framework itself will create a better system. I've seen no evidence for that whatsoever.
The Chair: Senator Sibbeston has a quick question with regard to Senator Patterson's. Watching the clock, Senator Ringuette is next, and she will be the last questioner, so you are taking time away from her. Make it fairly quick or you will have to deal with Senator Ringuette.
Senator Sibbeston: There is provision for regional boards. I noticed it is only where the chair makes the appointment, where reasonably possible, to include a representative from that region, so it is not a guarantee that any region will have a representative. It's only where it is determined reasonably possible, so that vagueness is a concern to the regional groups because it is not guaranteed. I want to make that point to be sure that people understand that it is not a sure thing. There is some vagueness in that area.
Senator Ringuette: I will be relatively fast.
Over a decade ago, the Yukon had a devolution agreement. My question is, have you looked at how, in the last decade, that devolution agreement has operated and how it would compare with your criticism of what is being proposed in this bill?
Ms. Wenman: The rest of the devolution part of the bill was not part of our analysis, as we previously stated. Most of our analysis has really been rooted in the internal analysis done in the Northwest Territories and where we see the actual inconsistencies and inefficiencies coming from within our own systems, as Ms. Tremblay spoke about before. So, no, that has not been a focus for us.
Senator Ringuette: Do you have counterparts in the Yukon that could give you some feedback as to how it is working, and the pros and the cons? I have gone through your analysis. It's very complete. It is probably the strongest analysis that I've seen with regard to this bill. Since your work is mostly grassroots, community-based and so on, I think that your expectations with regard to the previous experience in the Yukon should have been looked at to see what the flaws were there, if there were any. We heard from people from the Yukon with a similar devolution issue and also the board. They seem to be relatively happy with how it is operating right now.
Ms. Wenman: As Dawn spoke to earlier, it is a very tight-knit community and we have relied heavily on speaking with others within the territory and relying on analysis done by other organizations in the territory. Analyses have been done.
For instance, the Environmental Impact Review Board has done a prospectus paper in which comparisons were made to other jurisdictions. They took a lot of lessons out of those other jurisdictions. Certainly they were looking at the Yukon, among others, to inform their own operational concerns and to make improvements. The audits looked to those jurisdictions for advice. That certainly has been taken into account, even if we didn't go and redo that work for this particular brief. It has actually informed a lot of the initiatives we see on the ground in the Northwest Territories to make the work between the boards more consistent and to increase some of those operational issues. You have to remember that it is a system that is maturing and it is not yet finished.
Senator Ringuette: I would like to comment on the comment that Ms. Tremblay made earlier with regard to audits and that people in the system know how best to present recommendations. Usually, audits are done by third parties because you need to have that different set of eyes with regard to issues to do a better analysis of the situation. Sometimes, when you are too close to issues, it's hard to see the forest for the trees.
Thank you very much for your presentation.
Ms. Wenman: Thank you. I will state that the audits are done by a third party, but with a lot of collaboration and public hearings, so they are able to use that information to really understand where the problems are arising.
Senator Ringuette: It would be more of a review process than an audit.
Ms. Wenman: It was done by a third party. They are done by a third party.
The Chair: That completes our questions. Thank you very much, Ms. Wenman and Ms. Tremblay, for being here. We appreciate it very much. You brought forward some good points, and we will contemplate them as a committee.
I will ask committee members to stay for a few minutes for a brief discussion, and we will clear the room of everyone except staff.
(The committee continued in camera.)