Mackenzie Valley Resource Management Act—Canada Petroleum Resources Act
Bill to Amend--Third Reading
June 19, 2019
Moved third reading of Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts.
She said: Your Honour and honourable senators, to begin, I would like to recognize and acknowledge that we are on the unceded territory of the Algonquin Anishinabek.
I rise today to speak to Bill C-88 a third time.
As I have previously indicated in this chamber, the Northwest Territories is home to many different peoples, languages and cultures. The majority of our population is Indigenous and our relationship with the land and waters we have occupied for millennia remains strong. We insist on being actively involved in decisions about resource development activities that take place in our communities.
Forty-two years ago, Justice Berger wrote:
What happens in the North, moreover, will be of great importance to the future of our country; it will tell us what kind of a country Canada is; it will tell us what kind of people we are. In the past, we have thought of the history of our country as a progression from one frontier to the next. Such, in the main, has been the story of white occupation and settlement of North America. But as retreating frontier has been occupied and settled, the native people living there have become subservient, their lives moulded to the patterns of another culture.
We think of ourselves as a northern people. We may at last have begun to realize that we have something to learn from the people who for centuries have lived in the North, the people who never sought to alter their environment, but rather to live in harmony with it.
As my honourable colleagues know, Bill C-88 is made up of two parts. The first part makes amendments to the Mackenzie Valley Resource Management Act that would resolve the litigation that currently impedes the progress of development projects along the Mackenzie Valley.
In 2015, the Supreme Court of the Northwest Territories put an injunction in place which suspended the restructuring of four regional land and water boards in the Mackenzie Valley. This restructuring had been included in the Northwest Territories Devolution Act and was a surprise to impacted Indigenous governments and organizations.
Bill C-88 would preserve the four regional boards and the co‑management and joint decision-making regime that is outlined in the Gwich’in Land Claims Agreement, the Sahtu Dene and Metis Land Claims Agreement and the Tlicho Land Claims and Self-Government Agreement. This would resolve the outstanding litigation. It would provide greater certainty to industry and help unlock the potential social and economic benefits of development activities in the Mackenzie Valley for future generations.
David MacMartin, Director of Intergovernmental Relations for the Gwich’in Tribal Council, advised us that:
If Bill C-88 is not passed, Canada will not fulfill its commitment to the Northwest Territories Indigenous governments, which will then be forced back into time-consuming, expensive and acrimonious litigation.
In addition to restoring certainty to the regulatory regime of the Northwest Territories, the second part of Bill C-88 ensures responsible development through proposed amendments to the Canada Petroleum Resources Act, or the CPRA.
James Fulford, Chief Negotiator, Offshore, in the Department of Executive and Indigenous Affairs for the Government of the Northwest Territories, noted:
The proposed amendments to the MVRA in Bill C-88 will increase certainty around responsible resources development in the Northwest Territories. That certainty is something our territory needs as we continue to work with the Indigenous governments in our territory to attract responsible resource development.
Arctic ecosystems are among the most fragile on earth. They take a long time to recover when damaged by human activity. And we know that the impacts of climate change are most evident in the Arctic. In light of these realities, in 2016, Canada, jointly with the United States, announced an immediate prohibition to development activity in the Arctic offshore. This prohibition is to be reviewed every five years and will factor scientific evidence and Indigenous knowledge into decisions about future development activity.
Bill C-88 supports this approach by authorizing the Government of Canada to prohibit activities under existing exploration and Significant Discovery Licences in the Arctic offshore. This is not an entirely new authority. In fact, the CPRA already authorizes such a prohibition under specific criteria. Bill C-88, however, would amend the CPRA to add a new criterion, the national interest.
From March to July 2017, while developing this part of Bill C-88, consultations were launched with the Government of Northwest Territories, Government of Yukon, Government of Nunavut, as well as Inuvialuit and Inuit organizations and existing oil and gas rights holders.
The consultations provided important feedback from industry, the territorial governments and Indigenous organizations about their plans and visions for future oil and gas development in the Arctic offshore. All parties emphasized the importance of oil and gas development to the northern economy, and there was support for the measure in Bill C-88 that authorizes the Governor-in-Council to issue a prohibition order freezing the terms of existing licences in the Beaufort Sea for the duration of the moratorium.
It must be noted, however, that there are concerns about the need for consultations in all matters related to oil and gas development but particularly before issuing a prohibition order under the national interest provision proposed in the second part of this bill.
The Minister of Crown-Indigenous Relations stated at the Standing Committee on Energy, the Environment and Natural Resources:
. . . the CPRA already recognizes the rights of Inuvialuit and all other northern Indigenous communities in regards to the legislative and regulatory measures in the act and states explicitly: Nothing in the CPRA shall be construed so as to abrogate or derogate from any existing Indigenous or treaty rights of the Indigenous people of Canada under section 35 of the Constitution Act, 1982. In keeping with that clause and the federal government’s constitutional obligation, this government is committed to consulting with the Inuvialuit and any other northern Indigenous organization with rights in the Arctic offshore prior to taking a decision to introduce a CPRA prohibition order under the new “national interest” criterion.
In committee, the Minister of Crown-Indigenous Relations also confirmed that she has written to the Inuvialuit Regional Corporation to provide assurance that the Government of Canada “remains fully committed to working with the Inuvialuit in all aspects as it relates to the offshore of the Inuvialuit Settlement Region in the Beaufort Sea.”
Bill C-88 would allow the government to freeze the terms of existing licences until a five-year science-based review is complete in 2021. Some of the licences are set to expire as early as this summer. The legislation before us would allow the government to halt the countdown to licence expiry, and the countdown would not start again until the results of the scientific review justifies that the suspension be lifted.
Resource development in the North presents both challenges and opportunities. It is critical that all parties affected by resource development be involved in decision-making. As I have already stated in this chamber, the Governments of Yukon, Northwest Territories and Nunavut as well as Indigenous organizations and northern communities are full partners in the science-based review process in the Arctic offshore. Others, including industry, are being actively engaged as part of the review.
Additionally, negotiations between the Governments of Northwest Territories, Yukon, the Inuvialuit Regional Corporation and the Government of Canada are under way to reach co-management and revenue-sharing agreements in the Arctic offshore. Through these agreements, northern and Indigenous communities will be actively involved in the decisions about development in their regions, and local communities and businesses will benefit from offshore oil and gas activity.
Justice Berger stated:
We have sought to make over these people in our own image, but the pronounced consistent and well-intentioned effort at assimilation has failed. The use of the bush and the barrens, and the values associated with them, have persisted. The native economy refuses to die. The Dene, Inuit and Metis survive, determined to be themselves. In the past their refusal to be assimilated has usually been passive, even covert. Today it is plain and unmistakable, a fact of northern life that must be understood.
During witness testimony at the Energy, the Environment and Natural Resources Committee, Grand Chief George Mackenzie of the Tlicho Government stated:
It is very important for me as the grand chief to speak to you personally to reinforce how vital this bill is for our communities, our territories and our treaty relationship.
Despite its late arrival in this chamber, it is important that Bill C-88 is passed during the life of the current Parliament. I wish to thank my honourable colleagues in this chamber, the members of the Standing Senate Committee on Energy, the Environment and Natural Resources and the staff of the committee.
I would also like to thank all the witnesses, particularly those who participated by teleconference from the Northwest Territories and who have been actively involved in the development of this bill. Thank you also to the parliamentary staffers who have been working hard to support the passage of this bill during such a busy week. Finally, quyanainni to the critic of this bill, Honourable Senator Patterson, whom I have been working closely with in our efforts to see Bill C-88 passed.
Honourable colleagues, Bill C-88 is an example of a collaborative legislative process that recognizes and takes into account the perspectives of the people directly affected by the legislation. It is an example of the types of working relationships that can and should be developed between Indigenous governments and the Crown when both sides work together as partners in seeking solutions to shared problems. Bill C-88 is an example of northerners working together to ensure that decisions made about the North are made in the North. Bill C-88 deserves the full support of this chamber. Quyanainni. Mahsi cho. Thank you.
Senator Anderson, would you take a question?
Yes, I will.
First of all, I want to congratulate you on the terrific job you did with this bill. I believe it’s the first bill that you have sponsored in this chamber. So congratulations to you.
I was struck by a couple of things that you said in your speech and that we heard at the committee last evening. One was, if this bill doesn’t pass quickly, if it doesn’t pass before the house rises, then there will likely be litigation. I think that’s extremely important.
I was also struck by your comment about when the Crown and the Indigenous peoples work together, good things happen. So my question is around that. It revolves around consultation. It seems that, as you said in your speech, when there is true consultation and a true process of discussion and negotiation between the Crown and northerners and Indigenous groups that good things happen. I wonder if you could talk about the importance of the consultation and how well this was handled in the development of this particular bill.
I will try. As you know, the impetus for the injunction was actually a bill that was passed by Canada that did not involve consultation. The consultations arose out of the court injunction when Justice Shaner recognized that there needed to be consultation with the Indigenous groups that were directly affected by Bill C-15.
As a result, if I recall correctly, from the Tlicho Government, Bertha Rabesca Zoe advised that this involved engaging with the Government of Canada and the parties that were affected, starting with teleconference calls to actual face-to-face meetings, ongoing. And they were actively involved in the development of the bill and review of the bill throughout the process.
The reason I referenced Mr. Justice Thomas Berger — some of you may be aware, but he was also involved with the Mackenzie Valley Pipeline Inquiry from 1974-77. That process is considered the gold standard for consultation. He met face-to-face with all Indigenous parties affected throughout the Northwest Territories from the proposed Mackenzie Valley gas pipeline. So I would say that consultation is extremely important, not only with this bill, but I think with every other bill that directly affects any Indigenous groups across Canada.
Honourable senators, I rise today as well to speak to third reading on Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts.
I would like to begin by saying —
[Editor’s Note: Senator Patterson spoke in Inuktitut]
— to Senator Anderson for her leadership with this bill, her first as sponsor of a bill in this place. I was privileged to have worked closely with her, I think very collaboratively, in helping to get this bill the attention it deserves in the Senate in a timely fashion.
In that connection, I would also like to thank the steering committee and members of the Standing Senate Committee on Energy, the Environment and Natural Resources, and the chair, Senator Galvez, for their help and cooperation in quickly considering and dealing with this bill just yesterday.
Colleagues, Part 1 of Bill C-88 impacts a very specific part of the Northwest Territories. As Minister Bennett explained to the committee last night:
In early 2015, the Supreme Court of the Northwest Territories granted an injunction that suspended the proposed board restructuring, along with, unfortunately, all the other positive regulatory amendments that had been included in Bill C-15.
Bill C-88 will resolve the litigation regarding the restructuring of the boards and reintroduces the positive policy elements of Bill C-15 that are currently prevented from coming into force by the said injunction.
As the former sponsor of Bill C-15 in a previous Parliament, I know that there were many important changes made to the regulatory regime to help make it more efficient and consistent with other regimes throughout the North. Government, Indigenous and industry stakeholders, I believe, are all eager to see those improvements enacted.
This is why, despite reaching our chamber so late in the legislative session, it has been important to me to help facilitate the speedy passage of this bill. Tlicho Grand Chief George Mackenzie told the committee that:
The injunction remains in effect to this day and will remain in effect until either a new law is passed or the lawsuit runs its course. The underlying lawsuit remains active, pending the result of this legislative process. If Bill C-88 is not passed by the current Parliament, we will be faced with either restarting the legislative process from the beginning or proceeding with our lawsuit against Canada. Both could take years.
Honourable senators, these opinions were reflected by representatives of other Indigenous governments in the Mackenzie Valley and by Premier McLeod, Premier of Northwest Territories. I’m confident that no senator here would want to ignore this united voice nor to see the continued uncertainty that would be created by not having this bill passed in the current session.
I would like, however, to place on the record that by passing this bill unamended, as I am suggesting we do, senators are putting their faith in the government to conduct the necessary engagement with industry and Indigenous stakeholders when trying to determine whether or not to bring forward cost recovery regulations.
As I explained in my previous speech, cost recovery is a concept whereby proponents would be required to repay to the federal government the costs incurred by the Crown and/or boards during the regulatory process. This places yet another unnecessary financial burden on proponents seeking to operate in a part of this country that is already two and half to three times more expensive to operate in, as indicated by the Mining Association of Canada’s excellent report entitled Levelling the Playing Field. This means that the ore quality must be higher than the normal acceptable quality, or commodity prices must be higher than they are now, in order for northern mines to make economic sense to proponents.
It is my fervent hope that the proper consultations are conducted and the government bear in mind the current cost of developing and operating a project when deciding whether or not to introduce cost recovery regulations mandated by this bill. The competitiveness of the North must be a key factor in that decision.
Part 2 of this bill, though considerably shorter than Part 1, received much more scrutiny. The proposed changes to the Canada Petroleum Resources Act, CPRA, would enable the government to impose a moratorium on oil and gas development in the Arctic by claiming that the development would interfere with “the national interest.” The question of what defines the national interest was raised by members of the committee. Minister Bennett explained that:
The “national interest” refers to a country’s national goals and ambitions, whether economic, military or cultural . . . .
I, like some of my other colleagues, remain apprehensive about that term, as it is not defined within the act, leaving it up to interpretation by the government of the day and the courts.
What did give me comfort was an intervention from Mr. James Fulford, Chief Negotiator, Offshore, Executive and Indigenous Affairs for the Government of the Northwest Territories. During the committee proceedings last night, I asked Mr. Fulford whether he felt the safeguards put in place by this bill would be sufficient to prevent a repeat of the unilateral decision undertaken by Prime Minister Trudeau in December 2016.
Honourable senators, you will recall that the Premier of the Northwest Territories at the time complained that it was ill-considered and unfair and issued a Red Alert, saying that he was afraid from that announcement that colonialism had reemerged against the North.
Mr. Fulford, in answer to my question, replied that the Government of the Northwest Territories:
. . . feel[s] that the terms of reference for that process offer us the opportunity to have a real influence over decision-making in the offshore, so we feel that it is definitely an improvement.
I can also refer to the onset of the northern accord negotiations. As I indicated, so far they are proceeding quite well. Just to draw some context there, none of the east coast offshore oil and gas regimes currently have anything like a national interest provision in their legislation. We’ve been informed and assured that we are looking at negotiating a northern accord that looks much like those east coast offshore regimes so we would expect that our regime looks like those.
We considered the prohibition amendment in the CPRA to be a purpose-specific clause to address a problem created by the moratorium, if I can be that blunt. We expect that, like in the offshore negotiations on the east coast, the CPRA will be swept away and replaced by the new legislative regime that we negotiated together.
Honourable senators, I do want to mention that when I was the Premier of the Northwest Territories, we were actually very close to negotiating what we also called a northern accord. At that time, the Right Honourable Brian Mulroney was Prime Minister, and we negotiated an enabling agreement to negotiate a northern accord with Indian and Northern Affairs Minister Bill McKnight, and we were thrilled at the time that it acknowledged the N.W.T. interest in the waters of Hudson’s Bay, among other things.
That initiative ultimately failed for various reasons, so I was delighted to hear that one might soon be reached, rendering this troublesome concept of a national interest defence to banning oil and gas development in the Arctic a non-issue.
It is my hope that the completion of negotiations on a new northern accord with Yukon, the Northwest Territories and affected Indigenous rights-holding jurisdictions will be followed by similar negotiations with Nunavut and the organization representing rights holders, Nunavut Tunngavik Inc. It is northern people who care about their environment and developing their economy who should be the ones to make decisions with Canada about a co-managed Arctic offshore.
In fact, I asked Minister Bennett last night if this was the first part of a longer-term pan-Arctic vision of co-management in the offshore, to which she replied to my delight:
Last year, I think, when you chaired the panel at the UN, we were boasting about how co-management is working in our North in the territory land base. . . . Once we’ve gotten a final devolution agreement in Nunavut, we would be very happy to begin negotiations with Nunavut on co‑management, as well as resource revenue-sharing with, not only the Government of Nunavut, but NTI, so that we have for the offshore this consistent collaborative approach that has worked so well on the land.
“That’s music to my ears,” I told her at committee.
However, I would bring one other concern to your attention. Both the CPRA and the Oceans Act contain non-derogation clauses, and neither was strong enough to prevent the unilateral imposition of a moratorium. That is why Senator Anderson and I worked very closely to draft an observation, which was ultimately appended to this bill. It states:
The Inuit concerns with amendments to Section 12(1) of the Canada Petroleum Resources Act originated with Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act, which received Royal Assent on May 27, 2019. Chair and CEO of the Inuvialuit Regional Corporation, Duane Smith, raised his persisting objection to measures that would create new and interim conservation areas. Unlike newer land claims, the Inuvialuit Final Agreement (IFA) is entirely silent on the establishment of conservation areas. Mr. Smith has pointed out that the non‑derogation clause in C-55 does not include the same express protections for IFA rights holders that are included in newer land claims. These concerns are compounded by the amendments proposed here, in Bill C-88.
The current moratorium in the Arctic offshore was imposed in 2016 without any notice to stakeholders. Since that time, there has been movement towards a more collaborative relationship between Government, industry and Indigenous governments and organizations. However, the Canada Petroleum Resources Act lacks express language on Government’s duty to consult with Indigenous governments and organizations. The non-derogation clause in the CPRA, as well as the Oceans Act, are not strong enough to provide comfort to older land claims, like the IFA, that do not incorporate express protections for rights holders where conservation areas are contemplated.
The Committee strongly recommends that going forward, in the spirit and intent of Canada’s reconciliation agenda, the Government of Canada commit to meaningful consultation with Indigenous governments and organizations around matters in the Arctic offshore, and that this consultation process respects the rights of Inuit and First Nations that stem from Section 35 of the Constitution, as well as from settled treaties, comprehensive land claims agreements and self-government agreements in the region.
I just want to mention in closing, honourable senators, that I did pay tribute in the committee last night to Minister Dominic LeBlanc, who, when he held the Northern Affairs portfolio, was the one who initiated the very welcome negotiations about developing a collaborative co-management approach for the offshore with the Yukon, the Northwest Territories and with the Inuvialuit for the Beaufort Sea region. That’s a wonderful precedent for the Arctic offshore, moving east.
Honourable senators, with these assurances in place, I feel confident in our ability to hold the government to account should the process forward not be one of collaboration and consultation — perish the thought. That is why I join in solidarity with Premier McLeod, Grand Chief Mackenzie, the duly elected leaders of the Gwich’in Tribal Council and Sahtu Secretariat, and with my colleague Senator Anderson of the Northwest Territories to urge you to support passage of this bill.
Thank you. Quyana. Mahsi cho. Taima.
Senator Patterson, would you take a question?
I’d be delighted.
Thank you.
I asked this question to the group last night. I don’t know if it can be answered, but I’m going to ask it again.
How much do the land and natural resource claims of actors like Russian, Denmark and the U.S. burden the ability of Canada and the Inuit to enact this bill? I wonder if you have any ideas about that.
Thank you very much for that question. It’s a timely question because the Special Committee on the Arctic just released a report this week. We travelled to Arctic regions, and one of the subjects we examined was the question of security and sovereignty in the Arctic.
In that connection, the committee had very strong recommendations about Canada beefing up its presence, monitoring, fleet and capacity to assert its sovereignty in the Arctic in the face of the increase of activities and infrastructure in other circumpolar nations like Russia, and in the face of interest from so-called near-Arctic nations like China and — would you believe it — Singapore, who say they have interests in the Arctic. The committee recommended:
1. That the Government of Canada develop a strategy that: 1) empowers Arctic and northern governments to assume roles in delivering federal programs and services to its residents; and 2) devolves federal programs and services related to the Arctic and northern regions to local, territorial and Indigenous governments.
2. That the Government of Canada: 1) provide greater financial support towards the implementation of comprehensive land claims agreements, including land-use planning processes and governance of regulatory boards; and 2) consult and cooperate with Indigenous and territorial governments to develop co-management regimes with respect to the Arctic offshore waters.
This bill moves us in those welcome directions. Thank you.
Are senators ready for the question?
It was moved by the Honourable Senator Anderson, seconded by the Honourable Senator Duncan, that the bill be read a third time.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and bill read third time and passed.)
