Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 4 - Evidence - January 30, 2014


OTTAWA, Thursday, January 30, 2014

The Standing Senate Committee on Energy, the Environment and Natural Resources met this day, at 8:06 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.

The Chair: Good morning everyone. 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 will ask senators to introduce themselves and I will introduce the deputy chair, my colleague from Alberta, Senator Mitchell.

Senator Patterson: Dennis Patterson, Nunavut.

Senator Massicotte: I am Paul Massicotte from Montreal.

Senator Black: I'm Doug Back, from Alberta.

Senator Frum: Linda Frum, Ontario.

Senator Seidman: Judith Seidman from Montreal Quebec.

Senator Wallace: John Wallace, New Brunswick.

The Chair: In addition, I would like to introduce the staff we have supporting us from the Library of Parliament. We have Sam Banks and our clerk Lynn Gordon.

Today is the fourth meeting of our pre-study hearings 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 today to welcome in the first part of our meeting, Eddie Erasmus, Grand Chief and Bertha Rabesca Zoe, Lawyer from the Tlicho Government. From the Sahtu Secretariat Incorporated, we have Ethel Blondin- Andrew, Chairperson — no stranger to this place — and Daryn R. Leas, Legal Counsel.

Thank you for being here today in person. I understand that each organization has opening remarks after which we will go to a question and answer session. I would ask that witnesses and senators be succinct in their remarks and questions as we have a video conference from Inuvik set at 9 a.m.

Ms. Blondin-Andrew, we would like you to commence.

Ethel Blondin-Andrew, Chairperson, Sahtu Secretariat Incorporated: I'd like to start by greeting you in my Aboriginal language.

[Editor's Note: Ms. Blondin-Andrew spoke in Slavey.]

Thank you for having us here. We have come here to discuss this bill and piece of legislation. It will guide us in our work on the land and waters, so we're here to talk about that.

My name is Ethel Blondin-Andrew. I am the chair of the Sahtu Secretariat Incorporated and represent the Sahtu land claim beneficiaries. I am pleased to present this submission on behalf of SSI with respect to the proposed amendments to Mackenzie Valley Resource Management Act set out in Bill C-15.

Daryn Leas is our legal counsel and is attending with me this morning.

We applaud the decision of the Senate to authorize the standing committee to conduct a pre-study on Bill C-15. In our view, Bill C-15's proposed amendments to the Mackenzie Valley Resource Management Act require careful examination and consideration. They serve to undermine the spirit and intent of the Sahtu Dene and Metis Comprehensive Land Claim Agreement and marginalize the role and participation of the Sahtu Dene and Metis and others living in the Sahtu settlement area with respect to the management and protection of the lands and waters within the Sahtu settlement area.

By way of background, the Sahtu Dene and Metis have lived in the Sahtu settlement area since time immemorial and now live primarily in the communities of Norman Wells, Tulita, Deline, Fort Good Hope and Colville Lake. Under the land claim agreement that was signed in 1993, the Government of Canada and the Sahtu Dene and Metis committed to working together to manage and preserve the lands and waters of the Sahtu settlement area in accordance with the MVRMA that was developed pursuant to the terms of the land claim agreement.

Following six years of negotiations, the SSI signed the Northwest Territories Lands and Resources Devolution Agreement with Canada, GNWT and other Aboriginal groups on June 26, 2013. Now, we are working with them to bring the devolution agreement into legal effect on April 1 and to implement its terms.

Before making any specific comments about Bill C-15, the SSI confirms its general support to amend federal legislation to give effect to the devolution agreement. We also support the enactment of territorial legislation to implement the devolution agreement, including territorial legislation to continue the obligation for proponents to negotiate benefit plans with the Sahtu relating to oil and gas activities in accordance with section 22.2 of the land claim agreement. This is a crucial matter for the Sahtu.

While Bill C-15 proposes amendments to the Northwest Territories Act, Territorial Lands Act, and Northwest Territories Waters Act in order to implement the provisions of the devolution agreement, it also proposes to amend the MVRMA to give effect to the federal Action Plan to Improve Northern Regulatory Regimes. The federal government announced the action plan in 2010 to improve regulatory regimes in the Northwest Territories, Nunavut and Yukon. The action plan intended to ensure that Northern regulatory regimes are more effective and predictable and provide greater certainty to industry, to Northerners and to all Canadians.

The SSI is opposed to the provisions of Bill C-15 that propose amendments to the MVRMA to implement the action plan. These proposed amendments to the MVRMA are not related to the transfer of the administration and control of on-shore public lands and waters in the Northwest Territories, and they were not discussed during the negotiation of the devolution agreement. Although they are not related to devolution, they are proposed to be lumped into Bill C-15.

In particular, the SSI opposes the provisions of Bill C-15 that propose to eliminate the Sahtu Land and Water Board and the other regional panels and have the Mackenzie Valley Land and Water Board manage all land use permits and water licence applications.

The Sahtu Land and Water Board ensures that applications for developments in the Sahtu settlement area are reviewed by local people, involve affected communities and take into account regional input and information. This leads to better decisions for the management of our land and water.

In accordance with the terms of the land claim agreement, the current provisions of the MVRMA establish a land and resource management system for the Mackenzie Valley that is effective and efficient. The proposed elimination of the Sahtu Land and Water Board is contrary to the principle of partnership and co-management, embodied in the current terms of the MVRMA, that underlies the land claim agreement. There will be less regional engagement with respect to the review of applications. The proposed reconstituted board will not be able to foster the regional participation and obtain the community input and information that the regional boards have been able to achieve over the past 15 years.

During this 15-year period, the Sahtu Land and Water Board and other regional land and water boards have been able to balance various values and perspectives and ensure that affected communities are involved in the reviews and assessments.

Federal officials have failed to provide any justification or rationale for the elimination of the Sahtu Land and Water Board. While they have pointed out that there have been protracted delays of reviews under the MVRMA, these delays have been caused large by the lack of federal coordination to review the decisions made by the regional boards.

There have been decisions made and put in the offices of the minister that have sat there for a year and onward.

Some suggested that the environmental assessment regime in the Northwest Territories should be like the assessment process in the Yukon territory set out in the federal Yukon Environmental and Socio-economic Assessment Act, known as YESSA. While the Yukon regime is fundamentally different than the MVRMA, it must be pointed out that there are six regional, designated offices throughout the Yukon territory that carry out the vast majority of the screenings and reviews of proposed projects under YESSA.

Bill C-15 provides that the Sahtu will nominate one of 11 members of the board. It is not acceptable that the Sahtu would only have a single representative on the reconstituted board. There are no assurances that the single board member nominated by the Sahtu would be able to participate in the review of proposed activities located within the Sahtu settlement area, and, as a result, these reviews may be conducted without any regional participation or representation. This is unacceptable and contrary to the spirit and intent of the land claim agreement.

Bill C-15 provides that the main office of the board would be at Yellowknife or another place in the Mackenzie Valley that is designated by the Governor-in-Council. The minister advised that he has instructed his departmental officials to work closely with Aboriginal organizations, governments and boards, through the implementation process, to address the retention of a limited administrative function in each region.

The SSI submits that an office of the board must be established in the Sahtu settlement area that can serve the northern portion of the Mackenzie Valley. The board must have a presence and working office in the Sahtu settlement area where a significant volume of developments continues to be proposed. This office must be more than the retention of limited administrative function in the Sahtu settlement area. This regional office would be well suited to carrying out certain functions, including the review of applications, the undertaking of conformity checks with the Sahtu land use plan and the carrying out of certain aspects of a consultation process, such as facilitating hearings, community visits and technical sessions. The decentralization of decision making powers in Yellowknife does not benefit the public or promote effective and efficient resource management under the MVRMA.

The SSI has concerns related to other amendments proposed in Bill C-15 to the MVRMA, including the proposed broad right for a minister to provide written policy directions binding on the planning board and limited ability to grant extensions for time limits of reviews.

The SSI has consistently voiced our concerns about the action plan, including the elimination of the Sahtu Land and Water Board and other regional land and water boards over the past five years to federal officials at various meetings including Neil McCrank and John Pollard and the federal representatives throughout the devolution negotiations. Most recently, we expressed our concerns, which are shared with the Gwich'in and Tlicho, to the federal officials in our written submission in October 2013 and earlier this week to the Standing Committee on Aboriginal Affairs and Northern Development at its meeting in Yellowknife.

Given the diminished regional involvement, it is likely that decisions made by the board will not take into account community information and knowledge and, as a result, poor decisions will be made with respect to the management of our lands and waters. These poor decisions will affect the culture and livelihood of the Sahtu Dene and Metis.

In closing, the Sahtu appreciate the opportunity to make this submission to you. The proposed amendments to the MVRMA relating to the action plan raise deep concerns for the Sahtu. We have not asked for these amendments and do not support them. These amendments are proposed to address the interests of others, not the Sahtu. We ask you to give due consideration to this submission when you review Bill C-15, and we confirm our willingness to provide additional information to the standing committee, if requested.

The impacts of Bill C-15 will be profound in the Sahtu settlement area. It will undermine the commitments made by the Sahtu Dene and Metis and the Government of Canada to work together to establish a new relationship on the basis of the Land Claim Agreement. If the MVRMA cannot protect the lands and waters of the Sahtu settlement area, the Sahtu Dene and Metis will be forced to employ other means, such as litigation, to protect their interests and maintain the integrity of the land claim agreement. While such measures would likely result in protracted timelines and higher costs, the Sahtu may have no other option.

The matters raised in this submission were approved by the Sahtu board, or the SSI board, in October 2013 and submitted in writing to the federal minister and officials.

Thank you for your time.

The Chair: Thank you for your presentation.

Eddie Erasmus, Grand Chief, Tlicho Government: [Editor's Note: The witness spoke in his native language.]

Thank you very much for giving me the opportunity to speak to you here. My name is Eddie Erasmus. I am the Grand Chief for the Tlicho nation, and I will be making the Tlicho presentation this morning. I have with me Ms. Rabesca Zoe, our legal counsel, and she will answer any technical questions that may arise.

It has been nine years since the Tlicho agreement came into force and our government, lands and jurisdiction were recognized. We have taken on a huge task of setting up our institutions, building our laws, responding to the needs of our people, promoting a thriving economy and building upon our rich cultural traditions. We have come so far in such a short period of time, and all the parties to the agreement should feel a great sense of pride in how much we have accomplished when we entered into the Tlicho treaty. It is the foundation for a strong and prosperous relationship for decades to come.

However, there is a serious issue that threatens all this good work, our future and our way of life.

We, the Tlicho, are very tied to our lands. We are active users of our traditional territories. Our lands are central to our everyday way of life. It is for this reason that our elders told us that we have to have an equal say in what kind of developments would be allowed on our lands. Why? Because only if we had an equal say could the importance of those lands to our daily lives be taken into account in decisions about large developments. The Tlicho's equal voice in those decisions about the use of land and water was at the heart of the promise that is enshrined in the Tlicho agreement.

The Tlicho agreement was passed here in the Senate, and we danced with you here in the hall in celebration. It marked a new, vibrant chapter in our relationship with Canada.

It took 13 years of negotiations with Canada and the GNWT to arrive at a compromise that would have true co- management in the Wekeezhii region, what we call the heart of our territory, and the management region that affects our way of life. Wekeezhii is huge. It is almost as big as New Brunswick.

The parties to the Tlicho agreement set up an independent board to make decisions about the use of land and waters for development in Wekeezhii, called the Wekeezhii Land and Water Board. The Tlicho government appoints half of the members, and half are appointed by Canada and the GNWT. This way, we found a balance between the interests of Canada and the interests of the Tlicho in preserving our way of life. We have an equal say about developments that could profoundly affect our way of life.

How has it worked? The Wekeezhii Land and Water Board has been a huge success. It has approved developments and has done a great job of taking into account the Tlicho way of life. In fact, the Wekeezhii Land and Water Board has never turned down a development proposal.

Better yet, because we are involved in the process as equals, none of the decisions made by that board have ever been legally challenged. The reason for this is that the Wekeezhii Land and Water Board's success has the confidence of industry, government and the Tlicho. All the major mines in Wekeezhii have expressed their gratitude and support for the Wekeezhii Land and Water Board and thanks for the great work it has done. Furthermore, the Auditor General of Canada reviewed the board and found that not only was it doing a great job but it was significantly more efficient than any other larger boards in the Northwest Territories. The board works, and it works well.

But Bill C-15 wants to take all that away. It wants to destroy what took so long to build up. It wants to do so for no rational reason whatsoever. Bill C-15 seeks to destroy the Wekeezhii Land and Water Board and wants to terminate it and replace it with a super board, with jurisdiction over the whole Mackenzie Valley, where the Tlicho will only get to appoint one member.

If Bill C-15 becomes law, the Tlicho no longer will be equal decision makers about the use of land and water in Wekeezhii. In fact, decisions about development in the heart of our territory, Wekeezhii, would be made with no Tlicho input whatsoever. This is devastating to our ability to protect our way of life. Our voice is being silenced. It is contrary to our agreement and the constitutional promise that we will be joint decision makers about the use of land and water in Wekeezhii.

We cannot and will not let this happen. We cannot and will not let down the elders, who have told us that protecting our way of life was the most important thing.

Why is Canada doing this? Why, when according to the Auditor General the board is working so effectively, is Canada trying to kill the Wekeezhii Land and Water Board?

Why, when the Wekeezhii Land and Water Board has worked so well to bring peace to development proposal process, would Canada try to set up a system that will result in development approval delays and legal challenges that will strangle development and hurt the economy of the North?

The Tlicho have always been open to development. The largest diamond mine industry in Canada has played out in the Wekeezhii. It has been a huge economic and regulatory success. It has been the heart and the economic engine of the Northwest Territories. There cannot be economic development demands by removing the Wekeezhii Land and Water Board.

Is it because of devolution? We support devolution. Nothing in the devolution deal requires that the Wekeezhii Land and Water Board be terminated. Devolution will be more successful with the Wekeezhii Land and Water Board and the system we have in place.

Will the super board be more efficient? No, the evidence is that the Wekeezhii Land and Water Board is the most efficient.

Simply put, there is no good reason for killing the Wekeezhii Land and Water Board.

There are profound problems with the super board. Canada is taking the northern regulatory process from one where Aboriginal people had confidence in a proven, reliable and efficient set of regional boards and is imposing another board in which we do not have confidence and which has zero experience dealing on a territorial basis with all the matters that will be before it.

Canada had better prepare industry for the reality of the opposition from the people of the settled land claims and probable systemic delays that this will cause. Every Aboriginal government and organization in the Northwest Territories has opposed Canada's initiative to revise the Mackenzie Valley Resource Management Act and kill the Wekeezhii Land and Water Board and the other regional boards.

Canada has returned to the old colonial ways of thinking. They know what is best for us. They are silencing our voice. That cannot be the way for the future. That is not the constitutional promise made in the Tlicho agreement. We demand better. We will stand up to this proposed law and challenge it if need be.

We are here today to ask the Senate to do its job and stand up for the Tlicho Agreement and stand up to legislation that makes no sense and will cause great harm. We need second sober thought.

The Senate has the power to separate off the Mackenzie Valley Resource Management Act clauses from Bill C-15. Devolution does not require change to the Mackenzie Valley Resource Management Act and the killing of the regional boards.

We need to be equal — equal in decisions about the use of land and water in Wekeezhii. There is no other way that we can ensure our way of life is protected. To the Tlicho, there is nothing more important than this. Masi.

Senator Mitchell: Thank you to both of you for your very compelling presentations. We are short of time so I will make this as specific as I can.

It is striking that the idea of doing away with your boards didn't seem to come up in the earlier discussions of devolution. I don't understand land claims by any means as an expert or in depth, but it seems to me that land claims give you pre-eminence over your own lands to establish whatever boards you want. Lawyers are here, so what's the basis upon which this would even be contemplated — doing away with your boards under this legislation, given you have these powers under your land claims?

Daryn R. Leas, Legal Counsel, Sahtu Secretariat Incorporated: I can make some comments about that. The Sahtu land claim agreement provides there may be a regional land and water board that's been established and been operational, as has been indicated in our submission. It also does contemplate that there may be a super board that could be in place. Our provisions are different from the provisions of the Tlicho land claim agreement. The point that we're stressing is that there is a board that's in place and has worked well for 15 years. It has been effective and efficient.

To give you a bit of information about the devolution negotiations, the federal devolution negotiators had no authority to discuss matters related to the Mackenzie Valley board, including reconstitution of that board under the action plan. That was dealt with by other federal officials. It wasn't until this fall that finally those consultations resulted in something other than process, where they said, "We want to sunset those regional boards from the Gwich'in agreement, from the Tlicho agreement, from the Sahtu agreement and impose a super board," notwithstanding that those boards have worked well over the last 15 years in the case of the Sahtu and the Gwich'in.

It is also interesting to point out that the federal official who undertook consultations years ago, Mr. McCrank, issued a report that made a number of recommendations. One of those recommendations or options that he identified as was the elimination of the regional boards but there were other options as well; for instance, establishing an appeal procedure to the Mackenzie Valley board from decisions of the regional boards, but we've never had discussions with Canada about the various options. Canada has come back what a position that this is it and this is what we are now lumping into Bill C-15, and that's how it has proceeded from here.

Bertha Rabesca Zoe, Lawyer, Tlicho Government: Further to that, Mr. McCrank did make these options available and, as my colleague says, we were never given the opportunity to discuss those options. That is one of the key issues we have been raising, namely that in a collaborative way we could come to some sort of arrangement about how to achieve everything that we could all agree to.

John Pollard was brought in by the minister as the chief negotiator and we've never negotiated with John Pollard. That should be noted.

Senator Mitchell: I will go again on second round.

Senator Patterson: I would like to welcome the witnesses and thank them for coming here.

This issue of the regional boards is obviously critical in these presentations and I am pleased to see the support for devolution in principle that was expressed.

I have a couple of preliminary remarks. We have single boards in Yukon and Nunavut. I know they are not strictly comparable but they are working well and in a much larger area than the N.W.T. in the case of Nunavut.

I would also like to say respectfully that the counsel for the Sahtu mentioned that the Sahtu agreement does contemplate a larger board. I think that is also true of the Sahtu agreement.

I understand the basic testimony of both witnesses. The regional boards are working well; good relations have been established with industry; restructuring would remove regional input to decision making — I am quoting from Ms. Blondin-Andrew's testimony to the house committee. The Sahtu submitted that the "Sahtu settlement area can serve the northern portion of the Mackenzie Valley. . . . would be well suited to carry out certain functions including the review of applications, the undertaking of conformity checks with the Sahtu land use plan and the carrying out of certain aspects of the consultation process . . ."

I asked Premier McLeod about this very issue, knowing that it would come up, when he appeared before our committee. I would like to quickly quote what the premier said. Getting to the bottom line he said — and of course they will implement the devolution agreement — that "we had to be able to show that resources and positions would also go to the regions and communities." This came from working with Aboriginal governments.

He also said:

We undertook what we call a three-phased approach to decentralization. The first phase was to identify existing programs and services that we devolved out of Yellowknife to the regions and communities.

The second phase . . . there would be at least 300 jobs that would be transferred . . . to the Government of the Northwest Territories and . . . we were able to identify 90 jobs that would be located outside of Yellowknife.

. . . Working with the Minister of Finance, we have identified funding so that we can build up to 100 houses in the next three years in a variety of communities. We will be identifying programs and services that will be decentralized, and we will also be providing for office space in those communities.

I guess what I am suggesting to both witnesses is that administratively there is a fix to your concerns. That would be the establishment of regional offices, just like Ms. Blondin-Andrew suggested should be done in Yellowknife. The premier seems committed to doing that.

I understand the concern about eliminating the regional panels, although each region would have a representative on the Mackenzie Valley Land and Water Board.

My question is this: Is there not an administrative fix to this problem to continue the regional presence and all the good working relations that have been established with the regions, industry in the regions and the regional governments? Isn't there a way of solving that that premier McLeod is committed to doing?

Ms. Blondin-Andrew: You obviously have had a very privileged seat in receiving that information from Premier McLeod because we have had some very general discussions about their decentralized approach and we have not been able to secure the kinds of details that you are getting from the premier. We met with his officials yesterday and it's all a work-in-progress. There really isn't anything on the ground except the fact that the federal government has turned over those positions and final offers had to be made with jobs and such for employees that were going to fill those 215 positions, I think, that were coming over. It is all very tentative. There is nothing real about yet. They are great plans and intentions and we all know about intentions.

My words to Martin Goldney, the deputy minister for Aboriginal Affairs, yesterday was to make it real. I want to see something. I haven't seen anything yet.

I go back to my colleague, Mr. Erasmus' comments about there being no negotiations. That is true. I have attended almost every single MVRMA meeting with John Pollard, McCrank, Allison Lobsinger and one other senior official. I have been to every single meeting and the style with which this was negotiated leaves a lot to be desired. Mr. Pollard would appear, drop a load of information on us and disappear for 10 months. We are in a begging position asking for information, for details. We got none. It appears that the information that comes out is exchanged between two levels of government, not necessarily the Aboriginal groups. We didn't find out until September.

Had we had knowledge that these two pieces of work were going to be inextricably intertwined in one piece of legislation, perhaps our decisions might have been a little different; I'm not sure. I'm just saying it's interesting how there seems to be a new MO in doing legislation and that is all omnibussing and throwing everything in together.

We dealt with the issue separately. As far as the territorial government goes, I believe the Sahtu feels it has been whipsawed between the deals and exchanges made between the federal and the territorial government. The territorial government wants this devolution and they wanted it badly. We agreed; we went along with it. We played ball with them but we didn't know that the MVRMA was going to be lumped in with the devolution legislation. We had no idea that was going to happen and it really muddies the waters.

We were told first of all that they had nothing to do with each other and now they have everything to do with each other. If you could say it's one thing, it is not. It is the whole thing and the way it was carried out and negotiated was very complex and different.

The Chair: In the interest of time, I am going to have to ask Mr. Erasmus if he also wants to respond.

Ms. Zoe: I will respond to that question. From the Tlicho point of view, I guess this is the first time we are hearing that because I have been involved in negotiations of devolution and all the MVRMA discussions since they started in 2003 and then the regulatory action plan starting from 2010. The issues that the premier has raised at the Senate committee all relate to devolution.

We are talking here about MVRMA. With my colleagues here, we have been involved in the implementation and planning of devolution with the parties. Even to this day, we are part of the planning process, and they have given us updates on the reorganizing of GNWT because of devolution and all the new positions that are coming over and where it is going.

I know for a fact that maybe not even five jobs are going to be coming to the Tlicho region, or maybe not even that. We don't know anything about these 100 houses being built in any of our communities. We don't even know. Those are all new for us.

On the MVRMA, I asked Pollard in October of 2013, when they were doing the consultation in Yellowknife, whether the legislation that was being reviewed would all be omnibus, and they didn't give us any response at that time. At that same meeting in October, when Mr. Pollard was giving reasons as to why he was doing this, the killing off of the Wekeezhii Land and Water Board, he said they read 22.4.1 of the Tlicho agreement that said they could create a larger board. I looked at 22.4.3, which said there could be a regional panel, and he said, "I looked at 22.4.3. I read it, and it only takes us back to square one, so I just totally ignored that clause."

Those are the kind of words that we find very disturbing when we are supposed to be working in a collaborative way in the spirit and intent of those agreements, which never occurred, and we were never given an opportunity to participate in any negotiations.

Senator Patterson: A quick supplementary?

The Chair: You have really pushed the envelope. I will have to give some time to Senators Black and Massicotte. I am sorry.

Senator Black: I am more than prepared to give my time to Senator Patterson.

Senator Patterson: Thank you. I would like to ask Ms. Zoe on the point about the regional panels.

Minister Valcourt — and again I am noting the testimony to our committee — did say that in order to accommodate your concern about the elimination of regional boards, amendments do allow the chair to establish smaller committees to deal with applications before the board after consultations. The proposed legislation requires the chair to appoint the regionally nominated rep to the smaller committees when they are considering an application wholly within that region. I am sure you are aware of that amendment, which I think was driven by the consultations.

Would that go some way to dealing with your concerns that the region have a strong voice, especially with projects wholly within your region? Is that amendment helpful at least in that direction?

Ms. Zoe: No. We didn't see that amendment until after the bill was introduced into Parliament. That was part of the accommodation measures that they tried to put in, but that doesn't go far enough for us. We provided letters to the minister on that point on January 20, which we will provide to the Senate, including the other two letters that we have sent that lay out all our concerns about the whole amendment process.

In our view, the minister appoints the chair. The chair can, at their discretion, nominate somebody from the region. That is not very comforting. It's a discretionary thing, as far as we are concerned.

Senator Massicotte: Thank you to all four witnesses this morning. I think we hear your comments loud and clear. You don't like the non-agreed imposition of a board to take away your regional boards. What is their response? You have vented your frustration, even a couple of days ago in Yellowknife. What has been the response of the government? How do they explain this decision?

Ms. Zoe: They are saying that it will be timely and predictable. Those are the words that they keep using. What we are saying is that our boards right now are timely and predictable. We have ample evidence to indicate that the Wekeezhii Land and Water Board turn-around for licences is much faster than the larger board, the Mackenzie Valley Land and Water Board. For example, for a type A land use planning application, the time for the Wekeezhii Land and Water Board was, on average, 38 per cent shorter than the larger board. For a type A water licence, it is 78 per cent shorter than the Mackenzie Valley Land and Water Board.

We were also told at the October session last year that, in the civil claims, land and water board's turn around for water licensing and land use permits is, on average, about 57 days. For the Mackenzie Valley Land and Water Board, in unsettled areas, it is over 300 days. It is those unsettled areas where the consultation requirements are very lengthy. That is where we hear that it is longer. In the settled areas, with the established land and water boards, it is, on average, about 57 days.

Ms. Blondin-Andrew: It is my view, from having attended every single meeting that has been in the North on MVRMA — I may have missed one or two but they may have been just technical meetings. I have been to all of them.

I sat in the same room at Mining Canada and the Canadian Association of Petroleum Producers in Yellowknife at the ski shack. We spent all day. All of the parties spilled their guts and let the government know exactly how they felt and what was in the claim, what the provisions were and what the spirit and intent of the claims are. We gave examples that, if there were delays, they had nothing to do with the regulatory regime, that those documents were sitting in the minister's offices and that the boards were not to be faulted for that, that they had done their work. They had made decisions. There were no licences that were, to my knowledge, delinquent and not being dealt with. If there was to be drilling, that drilling was done. Exploration took place. They were functioning well.

At the ski shack in Yellowknife, we sat there and talked to the government and to the Chief Negotiator Pollard and Alison Lopsinger. At the end of the day, it appeared to me that the only three groups in sync were CAPP, Mining Canada and the Government of Canada, who were saying the same thing.

It is quite obvious to me that the government is not listening to us. We have something to say. We are the main proponent. We have the land claims. We have the rights. Those are our traditional lands that we have lived on. They are not listening to us. Who are they listening to? I will give you a guess.

Senator Massicotte: Go ahead.

Ms. Blondin-Andrew: I mean, obviously, from listening to Mining Canada and the Canadian Association of Petroleum Producers, I have many friends in those organizations, but I just felt like the government is only pandering to industry and ignoring us.

Senator Massicotte: You think industry is supporting this consolidation of power?

Ms. Blondin-Andrew: Absolutely. They want it. Industry doesn't just want this; they want a blank cheque. They are not getting it, and they can't get it. This is Canada. We have to have a balance. That is not happening. I just felt like we were being ignored. We put our best information out there. We didn't attack them. We put good suggestions out there, and we are being ignored.

Senator Massicotte: I appreciate the common sense argument, practicality and efficiency.

In the Sahtu land claims, you counter that this proposed consolidation of authority is contrary to your land claim agreements. Some people are saying that section 25.4.6 allows for that re-delegation or centralization of authority. What is your comment to that?

Ms. Blondin-Andrew: We anticipated this question. I'm going to allow Mr. Leas to answer. I'll make comments after.

Mr. Leas: You're correct, and that's the provision I was referring to for the earlier question. That provision also contemplates that there could be regional panels within this superboard. That discussion has never taken place. There has been the suggestion that you can have these internal committees established by the board that can satisfy that. As indicated by others, that's not acceptable.

It is not just about one representative sitting on a committee of the board to hear the issues related to the Sahtu. It's more about being able to reach out into the community, get the information, engage with the communities effectively and conduct consultations in a wholesome way, which is what has been happening for the past five years. Fundamentally changing that is problematic.

The agreements are intended to be the foundation of the relationship between Aboriginal people and Canada. They are not intended to be the definition. Those agreements are intended to grow and evolve, and that's exactly what has happened.

Senator Massicotte: I think the practicality is more important than legal agreements, but I want to make sure that I understand in law. I read 25.4.6 of your land claim, but you response seems to suggest that that paragraph does allow for the replacement of the regional boards with a superboard. You responded to say that that paragraph also allows sub-regional boards. "Allows" means you can consider that, but you don't need to consider that. What does that paragraph say? Does it say you allow superboards but have not necessarily elected to have regional boards, or does it impose regional boards?

Mr. Leas: You're correct. It doesn't direct that there shall be regional panels within this larger board, but it does direct the parties to have that discussion. That's how we would contemplate it. There needs to be a full, comprehensive discussion about the range of options available to ensure that the objectives of the land claim agreement are met when considering land and resource management. That hasn't happened to date.

Senator Massicotte: Have you had the discussion with the government relative to that paragraph and how you interpret it?

Mr. Leas: As Ms. Blondin-Andrew indicated, it has been a one-way discussion. We have been making proposals and encouraging government to have that discussion with us. It hasn't happened to date.

Senator Massicotte: You've had correspondence relative to this paragraph with the government.

Mr. Leas: Yes.

Senator Massicotte: Could we get a copy of that?

Mr. Leas: Absolutely. We provided a comprehensive submission in October 2013 and made verbal representations to that same effect, at a subsequent meeting, to the federal officials. They are well aware of our position and the positions that we have put forward on that particular issue.

The regional input is very important, as Senator Patterson pointed out. The Yukon has one board, but, as we said in our submission, Yukon has six designated offices throughout the area that ensure that the vast majority of assessments, reviews and screenings are conducted in the regions and not by a centralized board. Very few assessments in the Yukon occur on a central basis. They are all done out in the regions and that's what's happened in the Northwest Territories as well.

Ms. Rabesca Zoe: Your question is very timely because we have been trying to work with Canada on agreeing to a process in which we can arrive at changes to the MVRMA and the regulatory system. It is not that we haven't tried. We have drafted a framework for a process in which we can try to arrive at that, and your question about section 25 from the Sahtu claim is very similar to our section 22, the Tlicho agreement's section 22.4.1.

That's exactly what I was saying earlier on. Mr. Pollard talked to us about section 22.4.3, which deals with regional panels and said, "I looked at that clause, and I totally ignored it because it takes us back to square one." Our sense of that is that it's not negotiations. You have already pre-determined where you will go, and this is the attitude of "our way or no way."

Senator Black: I really appreciate this today because it's a different point of view from what I arrived at this morning. I do want to understand, though. Tell me if I'm wrong on this, but I had understood that the current system provides for a decision. The applicant makes a proposal that the board is now charged with this application, that land boards in the respective areas of the N.W.T. will review the application. They will feed that material in either to the environmental assessment panel and/or the Mackenzie Valley Land and Water Board.

If that's right, isn't there a vehicle currently existing whereby input from local regions can be captured?

Ms. Rabesca Zoe: Well, the process right now is that the regional boards do take applications for land and water permits, and they go through their processes. The turn-around time is pretty quick, as we've stated, and whether it gets kicked up to an environmental assessment is another matter. Once that happens, it goes to the Mackenzie Valley Environmental Impact Review Board for their process and then goes back to the regional panel boards for licensing and hearings.

Senator Black: That's today.

Ms. Rabesca Zoe: Yes, that's today.

Senator Black: So under the new, proposed system — let's presume that becomes the law — do you not have an opportunity, under your local land boards, to input your local concerns? By local, I don't want to minimize it any way, but is that not the opportunity to capture whatever concerns you would have and feed it into the system?

Ms. Rabesca Zoe: Well, the current system allows that. In the new system, if it happens, each of the regions would have one person on that board. Right now, on the Wekeezhii Land and Water Board, for example, the Tlicho appoints 2 people to that board. That would be diminished to one. We co-appoint the chair. That would be done away with. Because the boards are a quasi-judicial body, you would have to appear in front of the board with submissions and evidence, and that's how you would bring your concerns, as we do now.

Ms. Blondin-Andrew: There is one very specific difference in Sahtu that I'm very proud of. If the land and water board in Sahtu decides that there should be a traditional knowledge study, they will undertake that. They will undertake that because they have representation on that board that knows, when they're reviewing applications, what rivers will be affected. The people that are on that board, like Violet Doolittle, Walter Beya and others, know the country, know the people, know where the animals migrate, so they can determine whether a traditional knowledge study is needed or not. So that's a very specific kind of input that I don't believe that you will be as successful in getting on a superboard. I could be wrong, but that's what I see as being very unique.

Senator Black: Thank you, all. Tremendous presentations.

The Chair: Thank you, everyone, for the questions, and thank you very much for the responses and presentations. I appreciate it very much. We have some people sitting in Inuvik waiting to do much the same as you just did.

Welcome to the second half of our meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.

We are continuing our examination of Bill C-15, the Northwest Territories devolution act. It gives me great pleasure to welcome via video conference from Inuvik, where it is actually two hours earlier, Robert Alexie, President and Patrick Tomlinson, Director, Intergovernmental Relations from the Gwich'in Tribal Council. Thank you for joining us. I'm sorry we're a little bit late. Our panels lasted a little longer than we expected but I believe Mr. Alexie will make a presentation and then we will have some questions and answers. You have the floor.

Robert Alexie, President, Gwich'in Tribal Council: Good morning. As the chair mentioned, I am Robert Alexie, president of the Gwich'in Tribal Council. I was elected in June 2012.

To give you a brief history of my involvement in Bill C-15 and a little bit into the past, I was the chief of the Tetlit Gwich'in in Fort McPherson in 1989. I was also the chief negotiator for the Gwich'in Tribal Council from 1990 to 1992 when we negotiated the Gwich'in Comprehensive Land Claim Agreement from which the Mackenzie Valley Resource Management Act evolved.

I was also the vice-president of the Gwich'in Tribal Council from 1992 to 1996 and one of my tasks was to implement the provisions of the Gwich'in agreement, which also included the MVRMA. I left the Gwich'in in 1998, and returned and began working for the Gwich'in Land and Water Board, one of the boards established by the MVRMA and the Gwich'in agreement. I worked at that job for 12 years as the executive director. So I'm very familiar with the MVRMA.

I want to point out before we start that the Gwich'in settlement area consists of four communities: Inuvik, Aklavik, Tsiigehtchic and Fort McPherson. We have 3,400 participants enrolled. More than 50 per cent of our participants live outside the settlement region. It's very unique in the N.W.T. when it comes to land claims and participants that the majority of our people have chosen to leave the region, more often than not for economic reasons and lack of employment. We have a lot of activity around us but very little in our region.

First of all, I'd like to mention that the Gwich'in Tribal Council is in full support of the devolution process in the N.W.T. The previous administration before ours took the Government of Canada and the Government of the Northwest Territories to court over devolution because of what they called a lack of consultation. When we were elected, our board, vice-president Norman Snowshoe and I decided to re-evaluate that litigation and decided it was in our best interest to become a part of it move forward which is what we did.

We have no problems with devolution. The problems we have are that Bill C-15, the N.W.T. devolution act, contains amendments to the Mackenzie Valley Resource Management Act and in particular, the removal of the Gwich'in Land and Water Board. That is a very contentious issue for the executive for the Gwich'in Tribal Council and our people.

We believe, and I have been told many times, that the amendments go against the spirit and intent of the Gwich'in agreement because one of the objectives is to give meaningful participation to the tribal council in the management of lands and resources. We feel the Gwich'in Land and Water Board has been fulfilling that objective. The land and water board was established in 1996, but it wasn't given effect until December 1998. The objective of that board was to issue land use permits and water licences in the Gwich'in settlement area, which it has been doing for the last 15 years without any problems whatsoever.

As the executive director of the Gwich'in Land and Water Board, I can tell you that all applications and land use permits were usually processed within 15 to 21 days after receipt. The maximum time allowed for processing an application that does not go to an assessment or hearing is 42 days. We worked very well in the office and with the people and proponents to process applications that were brought before our board.

I also should inform you that we had an office staff of four, which worked very well, and we had, for lack of a better term, an adequate budget, and we also had a regional presence. People knew we were there. If they had questions, they would come to us, email us or phone us, so we did have that very prominent regional presence. But once again, I have to reiterate that while we do support the NWT devolution act, we cannot support nor do we support the amendments to the Mackenzie Valley Resource Management Act.

We will be submitting a brief, and we'll be either emailing or mailing that to the committee, probably later today.

One of the things that we talked about to John Pollard when he came to our offices more than a few months ago — and I should mention that he only came to the tribal council on that one occasion. The previous administration, due to the lawsuit, could not meet him, but we did talk to Mr. Pollard. We did put forth a number of recommendations. At the top of the list was the Gwich'in Tribal Council are looking for a regional presence, if you will, a regional board, a regional panel that would continue.

One of the other concerns that we had with the act is how the chair of the super board would be selected. I believe in the act, in the amendments, it calls for the chair to be appointed arbitrarily by the minister. In the last decade, since the Mackenzie Valley Land and Water Board was established, I believe the board nominated a person and this person was appointed by the minister, and that is something we're looking at retaining.

One of the other things that we're also uncomfortable about is the policy direction that the minister can give to the land use planning board. We're very uncomfortable about that. I believe the Gwich'in land use planning board is the only board in the N.W.T. with a land use plan that's in effect. I believe the Sahtu may have one. Our land use planning boards have worked diligently on our land use plan. It's in effect. As the land and water board issues land use permits and water licenses, we follow that, so it works very well.

You have probably heard this before, but the Gwich'in, I think like all people, have a close connection to the land. When we negotiated and when we implemented the terms and conditions of our agreement, in particular, the MVRMA that created not only the Gwich'in Land and Water Board but the Gwich'in Land Use Planning Board and the Mackenzie Valley Environmental Impact Review Board, people saw that as our participation in the management of our lands. When an amendment such as this is put forth almost arbitrarily by the government, they look at that as powers that are being taken away. A lot of our people over the years have worked long and hard on the Gwich'in claim, and there is a lot of concern in our region over that.

I don't know how aware you are of other issues up here, but one of the big issues that we have at the moment is the land use plan in the Yukon. That plan was developed over six years and cost over $1 million. We had participation from the Yukon government and from the four First Nations that included the Gwich'in Tribal Council. Recently, the Yukon government arbitrarily pulled that plan and put their own in place.

You can see that we're almost fighting government on two fronts, one in the N.W.T. and one in the Yukon, on terms and conditions that were negotiated in the claim on behalf of our people. It's almost like it's becoming an exercise in futility when it comes to a constitutionally protected agreement that seems to be more from the government for the sake of industry. We make no bones about that.

The regulatory system in the N.W.T. has been deemed to be too slow. While I don't disagree with that, in the Gwich'in settlement area, that's not the case. Much like in the Yukon, like I said, we're up against the powers to be and supposedly our partners in the political process that appears to be going nowhere.

One of the other concerns that we have had over the years was the implementation of the Gwich'in agreement, much like the matter of the MVRMA and the Peel River, we have been constantly struggling to assert our rights and to implement those rights under the implementation agreement. That's an ongoing concern. That's something that we've had since day one, and that's still an issue.

Having said all that, we're all for devolution. Amendments to the MVRMA are not working so well in the minds of our people and our tribal council.

If Mr. Tomlinson has anything to add, I'd like him to add that now.

Patrick Tomlinson, Director, Intergovernmental Relations, Gwich'in Tribal Council: I think I will hold off and maybe jump in on some questions, depending on what they are.

The Chair: That's fine. Thank you very much.

I have two questioners, and I will start with the deputy chair.

Senator Mitchell: Thank you for a very compelling presentation. We had the Tlicho and Sahtu before you, who made essentially the same point.

Perhaps you could emphasize again the significance. The basis of a land claim is to have control over your land, and it seems to me what you're saying is that, without your own land use board, you really lose that critical element and that critical characteristic of a land claim. Would that characterize that properly?

Mr. Alexie: Might I interrupt? We are having a difficult time hearing you. We are getting a word here and there.

Senator Mitchell: Okay. I will try again. Thank you.

Mr. Alexie: It could be the transmission. Maybe you are not too close to the microphone or something like that, but we can't hear you very well.

Senator Mitchell: It could just be me.

Mr. Alexie: That could be.

Senator Mitchell: You are making, in a compelling way, the same point that we heard from representatives, in the first hour, from two other groups, the Sahtu and the Tlicho.

Clearly, a land claim is designed for no other reason than to give groups like yours, peoples like yours, control over their land. If you don't have your own land-use board, that certainly seems to be thrown into question. How significant to your overall control of your land is this situation where you won't have your own board?

My second question would be: Do you see any possibility of negotiating a sub-board that would have direct responsibility in your more specific region?

Mr. Alexie: Right off the bat, regarding the sub-board, I do believe that Mr. Pollard put that into his recommendations. It's not in the amendments to the MVRMA, but it is a possibility.

As I said, having worked for many years with the land and water board as the executive director, I have a strong sense that the superboard will not be able to carry out its mandate in the regions that are furthest from Yellowknife and will probably have to set up a regional office to accommodate the applicants because we have a lot of small businesses in the Inuvik region that do not have the expertise to fill out an application. It contains a lot of new things, waste management plans, for example. How do you fill that out? All a small, family-owned business that has been in operation for decades knows is that they need a land-use permit. Where do they go? They go to the Gwich'in Land and Water Board. When I worked there, more often than not, we helped them to fill out the application. We helped them to develop, for example, waste management plans that fit their application.

The possibility of a regional presence I do believe is there in Mr. Pollard's report, but it is very important that we, as the Gwich'in Tribal Council, know that, when we received our land claim in 1992 and when it came into effect, the boards were very important to our people because it meant that the government was living up to the provisions of the Gwich'in agreement. They saw that as our role in the management, not only of Crown lands but also of Gwich'in lands. The jurisdiction of the Gwich'in Land and Water Board, the land-use planning board, includes Gwich'in lands. It is very important to our people that that continues.

Mr. Tomlinson: If I may add to the first question of how significant it is to lose the land and water board, I think Mr. Alexie laid it out nicely. It is quite significant, I would argue, to make these structural and process changes that the government is proposing. I think there are many large concerns in different spheres. Mr. Alexie just laid them out, but they include concerns about the supposed optimization of the regulatory system that the act is intended to carry out. I think there are some real concerns that the process won't be optimized and that, in fact, it will be rendered more cumbersome and problematic.

I think, from a perspective of participatory democracy, there are major concerns, as Mr. Alexie just said, ranging from the number of representatives on behalf of Aboriginal governments to the number of Gwich'in representatives who will be participating in these important decisions. The number is going down drastically.

I think a third set of concerns relates to the stewardship of the ecosystem and whether or not the process changes contained in the bill really will do a better job of representing and protecting the ecosystem here in the settlement area.

Lastly — and I know this is a category that is particularly able to be understood by a Conservative-led government — I think there are very real concerns around the economics of production related to this bill — GDP growth, job production, and investment here in the Gwich'in settlement area. It is unclear, at best, whether or not these changes will lead to positive outcomes in terms of any of those economic categories. Admittedly, we don't know because you can't beta test something like this, but to claim that there is a direct link between these regulatory changes and those very basic and fundamental economic categories I think is a stretch.

Mr. Alexie: To add to that, when I worked with the land and water board, we had a very strong regional presence. People knew we were there. People knew who we were and what we did. A lot of the questions that they had were directed not only to our office but also to our board members. We had a very visible presence in the region.

Mr. Tomlinson mentioned that we have four board members and a chair. That, according to the MVRMA amendments, will be cut down to two people — a nominee from the Gwich'in Tribal Council and a nominee from government. That person may or may not be a resident of the region; we are uncertain about that at this time. The visibility of the board and its objective will certainly diminish. I just thought I would add that.

Senator Patterson: Thank you for being with us from Inuvik.

Mr. Alexie, I have two questions for you. You bring a tremendous amount of experience to this discussion, which is really appreciated, and thank you for outlining it.

You made a key point about your concerns that there will no longer be a regional presence — I think those were your words — in the Gwich'in settlement area after this bill is implemented. I asked Premier McLeod about this very issue when he appeared before our committee, and I would like to quickly outline some of the testimony that he gave before our committee, which is on the record. He said:

. . . going into the process of devolution and working with Aboriginal governments very early on allowed us to recognize that to get support we had to show that resources and positions would also go to the regions and the communities. We undertook what we call a three-phased approach to decentralization. The first phase was to identify existing programs and services that we devolved out of Yellowknife to the regions and communities.

The second phase was part of the devolution process, where we recognize that there would be at least 300 jobs that would be transferred from the Government of Canada to the Government of the Northwest Territories. Certainly the Aboriginal governments had an expectation that a large part of those jobs would go to communities outside of Yellowknife. As part of that, we were able to identify 90 jobs that would be located outside of Yellowknife.

Third:

Working with the Minister of Finance, we have identified funding so that we can build up to 100 houses in the next three years in a variety of communities. We will be identifying programs and services that will be decentralized, and we will also be providing for office space in those communities.

You talked about the four staff that you worked with in your region. Do Premier McLeod's strong assurances made to this committee go some way to answering your concerns about maintaining the strong regional presence that you so eloquently described?

Mr. Alexie: I think one of the topics that we talk about in devolution is the transfer of jobs from Canada to the GNWT. While some of the jobs are in the region, I think the majority of them are in Yellowknife. I know we are going to be losing at least four positions here under the MVRMA and the dissolution of the land and water board, but we will also be gaining some jobs. Patrick has a better understanding of where they may be in the region. Those issues are still, I believe, for the most part, being negotiated under the HR strategy of the devolution agreement.

I don't disagree with Premier McLeod's statement. There will be a lot more jobs transferred under the devolution act. Perhaps I will give Patrick a kick at this question.

Mr. Tomlinson: I am not sure if I heard the number correctly. It is certainly true that Premier McLeod has made a wonderful effort in speaking with the tribal council and doing his best to assure us that, under the devolution process, in the long-term, anyway, that jobs and opportunities will decentralize, to use the term that you used, senator, up here.

I think the number of 300, if that is what you said, is a bit of a stretch. I think it is closer to around 200 maybe, the majority of which are R & D in Yellowknife. Keep in mind that for a lot of these jobs, there are people already in them. For a lot of these jobs, it is just someone who is already in this position. Today their employer is the Government of Canada and tomorrow it is the GNWT.

You are certainly correct that there is a real possibility that, in the long-term, there are opportunities available. If the Northwest Territories is so fortunate to have future premiers as dedicated as Premier McLeod to that decentralization, some of those benefits just might make it up here eventually.

Senator Patterson: The second question is about the regional panels that you have expressed concern about losing.

I asked this question of Minister Valcourt when he appeared before this committee. My understanding is that as a result of concerns expressed by Aboriginal governments, there was an amendment made to Bill C-15 that is before us, which Mr. Valcourt described as in order to accommodate that concern. To quote Mr. Valcourt:

. . . the amendments allow for the chair to establish smaller committees to deal with applications before the Mackenzie Valley Land and Water Board.

After consultations,

. . . the proposed legislation requires the chair to appoint the regionally nominated representative to the smaller committees when they are considering an application wholly within that region.

I know it is not what you have now, but I think the government has gone some way to dealing with this concern of yours by allowing the chair to appoint the regionally nominated rep to smaller committees. There is a possibility, actually, that when an application is within the Gwich'in settlement area, that you will have a local committee that can deal with that. Of course, the chair, who will implement this bill, is a beneficiary of the Gwich'in final agreement, as you well know. We would hope that the chair would make that happen, as required.

Could you tell me, does this go some way to addressing your concern? It's an amendment that I think was put in the bill specifically because of this concern you have expressed.

Mr. Alexie: Thank you, Senator Patterson. Yes, that was one of the suggestions that the Gwich'in Tribal Council made. It was exactly what you mentioned. The Gwich'in nominee would be on any committee or panel set up to deal with an application that is entirely within the Gwich'in settlement area.

Having said that, that provision was in the original MVRMA. Where an application included a settlement region, I think the board, the panel, would include one nominee from the Gwich'in settlement area. That provision was in the original MVRMA. While we were certainly pleased with the amendment to the new MVRMA wherein the minister said that our nominee would be put on a committee or a panel that has to deal with any applications that are entirely within the Gwich'in settlement area or that may affect the settlement area, that is something we recommended and something that he seems to have moved on, but that doesn't give us great comfort when we are talking about a regional presence.

However, as I said before, having worked in the area for many years, after a few months the chair and the board will see the need for that regional presence. We have a lot of small businesses not only in the Gwich'in settlement area but the entire N.W.T. that cannot afford nor do they have the expertise to prepare an application to be submitted to the superboard. That disconnect — them being in Yellowknife and proponents being in the smaller outlying communities — will probably cause a lot of frustration on their part.

I know when they dealt with the land and water board in Inuvik it was a personal connection, and we helped them in getting that application through. For a lot of the smaller applicants the move to the superboard will almost be an exercise in futility and will become, for lack of a better term, more bureaucratic.

Senator Wallace: Mr. Alexie, Senator Patterson's question touches on the consultation process leading up to the signing of the devolution agreement.

Could you comment on the extent to which suggestions that the Gwich'in Tribal Council made during that process became reflected in the final agreement? You needn't refer again to the regional nominee provision but were there other suggestions that you made? Did you find the process receptive to other concerns that the council would have raised?

Mr. Tomlinson: Essentially, that is the consultation process.

Mr. Alexie: I didn't really get the question but for the record, when I was the executive director of the Gwich'in Land and Water Board, we had one short meeting with Mr. Pollard, and then in November 2013 we had our first meeting with Mr. Pollard and the Gwich'in Tribal Council. That was the extent of our consultation, if you will. We put forth a lot of recommendations and that will be in our brief that we will submit shortly to the committee.

Senator Wallace: Were there other suggestions that you made during that process that you saw reflected in what has been produced to date?

Mr. Alexie: I will let Patrick speak to this.

Mr. Tomlinson: As Mr. Alexie stated, for part of the period that Mr. Pollard was engaged in the restructuring side of the bill even the MVRMA amendment process was divided into separate streams or tracks. Mr. Pollard was in charge of one and federal officials were in charge of a second track, which were more process changes.

Various Aboriginal organizations and governments collaborated starting in 2010-11 and presented what I thought to be quite a reasonable and thoughtful response to the government on the process of the MVRMA amendments. What that response entailed was a collaborative engagement whereby the parties would sit down and discuss the various issues the with act and brainstorm together solutions.

Unfortunately, that was not accepted by the government. Since that period, which was in or around November 2011, the tribal council has been operating largely independently on these issues. Since that time, we have submitted a number of questions, comments and suggestions to the federal government. They are contained in the brief that I forwarded to your clerk this morning. In fact, we included the letter from Mr. Alexie as well as the submitted questions in your package so members can see the submission that the tribal council made in terms of the proposed amendments. In response, what we received was largely a form letter. It didn't address any of the specific questions or concerns the council raised, at least in a direct fashion.

To Senator Patterson's point, it is true that there were some concessions made and we appreciate the minister's and his senior officials' ability to do that. However, I would largely characterize them as one bridge too short, partly because the concessions made were watered down from the various recommendations. This is also because that particular recommendation you sited, albeit a good one, should be understood as part of a package of recommendations. Given the changes that they are making to the chair and other changes, I do not think that particular amendment will go as far as we hope.

To give you one scenario, it is true that the language seems to infer that a Gwich'in representative or nominee will participate in panels about decisions in the Gwich'in settlement area. But in the event there are four or five decisions going on at the same time, it is unclear as to whether or not it makes sense that one person would sit on all of those mini panels or committees. There is a real question as to whether or not the language in the bill — for that and other reasons — serves the intent of the suggested amendment.

Mr. Alexie: To add to that, when we talk about a Gwich'in nominee and a member on the superboard, one of the issues we have had ever since we got into implementing the Gwich'in claim was the time frame for nominating and appointing a member to the board. We have been trying to nominate or appoint a member for the last four or five years. We, the Gwich'in Tribal Council, are without a member on MVER and that has been going on for five years.

Every time we put names before the minister, for some reason or another that person has not been approved by whatever process the office of the minister has in place. On the matter of the superboard, there may be a time when the position of the Gwich'in Tribal Council rep is not filled, for whatever reason. In the event of an application before the board where the Gwich'in rep is supposed to be on the panel, that may or may not happen. That is one of the issues we should have brought up in the beginning, namely the difficulties that we are having in putting forth names that we feel should be acceptable to the minister but for some reason — and that reason is never made clear — their application, their nominee has been rejected.

Most of time we get a letter back from the minister's office stating that so and so's application has been received and the office has rejected that person's nominee; please submit another. That has been going on for several years and that may cause a problem with this new superboard in terms of the Gwich'in nominee.

The Chair: We have reached the end of the questioners so thank you, Mr. Alexie and Mr. Tomlinson. We appreciate your input, and I appreciate the questions and the answers from everyone.

I would ask for a motion to adjourn, please.

Senator Patterson: I so move.

(The committee adjourned.)


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