Délibérations du comité sénatorial permanent de
l'Énergie, de l'environnement et des ressources naturelles
Fascicule 19 - Témoignages
OTTAWA, Thursday, November 29, 2001
The Standing Senate Committee on Energy, the Environment and Natural Resources to which was referred Bill C-33, respecting the water resources of Nunavut and the Nunavut Surface Rights Tribunal and to make consequential amendments to other acts, met this day at 9:37 a.m. to give consideration to the bill.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: The Standing Senate Committee on Energy, the Environment and Natural Resources will now come to order. Our first witnesses this morning are Mr. Dunlop, Mr. Gibson and Ms Douglas from the Department of Indian and Northern Affairs.
Mr. Dunlop, please proceed.
Mr. Will Dunlop, Director, Resource Policy and Transfers Directorate, Department of Indian and Northern Affairs: With me today are, Brian Gibson, our water policy specialist who helped us in the design of the bill, and Mary Douglas, our legal counsel. I was responsible for the creation of the implementation legislation for the different northern land claims settlements.
It has taken us some time to bring Bill C-33 before you. We have had a number of rolling drafts of the bill, which we have developed over the last eight years. The important point I would like to make is that the bill implements a number of the obligations that we have in articles 10 and 13 of the Nunavut Land Claims Settlement to create the legislation for the Nunavut Water Board and the Surface Rights Tribunal. We believe that we have met that obligation.
This bill will create certainty about the mandates and the responsibilities of these two institutions. It will be of value to the people of Nunavut, the users of both systems and the board and the tribunal. I will now answer your questions.
Senator Cochrane: This bill has been eight years in the making. We have had bills related to this issue that have died on the Order Paper; Bill C-51 was presented to us in June 1996, and Bill C-62 in December 1998. It is December once again and I have to wonder why Bill C-33 before us again. Is there an urgency attached to this bill?
Mr. Dunlop: We would have preferred to have the bill enacted by July 1996, which was the original obligation in the land claim. We had two years to create the proposed legislation, and we failed to do so; we did not get it in on time. Hence, it died on theOrder Paper when the election was called.
We spent the intervening year improving that bill and then we had Bill C-62. It was introduced in the other place and it died on the Order Paper when the election was called.
Senator Cochrane: Why were these earlier bills not adopted? What was in them? What are the strengths and weaknesses of Bill C-33 in relation to these other bills that were not passed?
Mr. Dunlop: There were major and minor changes numbering about 100 from the time of Bill C-51. We have gone through a somewhat unique exercise in the past year. At the request of Nunavut Tunngavik Incorporated, (NTI), we used the process of an independent facilitator, who was chosen by consensus of the three parties, NTI, the Government of Nunavut and us. We had eight outstanding issues where we still had differences of opinion as to the approach to the bill. Each of us made our positions known to the facilitator, and he gave each of the three parties a report. We adopted seven of those recommendations for inclusion in the bill. We feel that the recommendations make for a better bill.
Senator Cochrane: Have you have been in discussions with the people of Nunavut? Are they pleased with the bill?
Mr. Dunlop: Some are and some are not.
Senator Cochrane: We have heard that the absence of legislation has caused uncertainty in Nunavut. I realize that the absence of legislation makes the tribunal and the board's decision particularly vulnerable to legal challenges. Perhaps you can cite one or two specific examples where their work was, or could have been, impeded by this legislative void.
Mr. Dunlop: A number of the examples that I have are anecdotal, because they stem from personal communications.I suggest that the witnesses from the Mining Association of Canada may have better examples for you as they made a particularly adept presentation at the standing committee in the other place. Certainly they will give you some clear examples.
The void in the legislation serves no one: not the users of the water management regime, not anyone who will file a dispute with the surface rights tribunal, and not the regulators. Any dispute on the interpretation of licensing, for example, becomes a question of enforcement or inspection.
Senator Banks: I sat in a committee last night that also deals with water issues and we heard some testimony that surprised some of us. We always assumed that water in Canada was pristine. We have now come to know that it is not so. We have also learned that it is finite, whereas we used to regard it as infinite. These are certainly facts that you are well aware of.
Each time the words "licensing of water" come up, people pay attention. There are certain rights provided in the agreement while recognizing that water remains a right of the Crown. Current licensing rights are limited to industrial use and municipal use, if I am not mistaken.
Do you anticipate any kind of water use beyond what would be called "commercial," that is to say, the removal of bulk water to put into containers to sell anywhere or for any purpose other than normal municipal or industrial use? Selling water would be the colloquial way to describe what I am talking about. Is there anything, in your knowledge, that would apply to that particular use of water?
There are references in the agreement to two types of licences. It is left to the regulations to determine the specifics of licence types A and B. Could you tell us what is anticipated in the descriptions of an A licence and a B licence, and what they will allow?
Do you think it would be better if the descriptions of A andB licences were contained in the bill, rather than in the regulations?
Mr. Dunlop: I will answer your second question first, and I will ask Mr. Gibson to explain type A and B licences and the regulations. Upon enactment of the bill, the regulations, which exist today in the Northwest Territories, become the regulations for Bill C-33. The regulations will become effective on the same day as the enactment of the legislation. In the regulations, you will find the delineation of A and B licences.
In response to your second question on bulk water, we know of no interest, no applications, no proposals and no projects for bulk export, bulk sale or bulk removal from any of the three Northern Territories.
Senator Banks: In your view, would the licences that are in the act and in the regulations that will become part of the act permit such an activity?
Mr. Dunlop: It would be an application to use water. It would be a major application and therefore would qualify as a type A licence application.
Any licence of that nature that arrived before the minister would not be approved. Our department is in communication with the three Northern governments and the three Northern premiers to adopt a consensus approach to dealing with bulk water. The minister has written to Premiers Duncan, Kakfwi and Okalik. Each of those governments has signed-on and shown its approval at the Canadian Council of Ministers of the Environment on the overall Canadian policy of restricting bulk removal. Our discussions with them concern how we want to do it. That is not what this bill is about. This bill is about underpinning the Nunavut Water Board. We are prepared to signal to the water board not to waste anyone's time dealing with that kind of an application, because such a licence would never be approved.
I would like to discuss the differences between type A typeB licences.
Mr. Gibson: Do you want more detail?
Senator Banks: I would, in the most general way, please.
Mr. Gibson: The regulations currently in existence in the Northwest Territories will be applied in Nunavut upon enactment of the new bill. What they do is list a set of criteria for purposes of undertakings. We have industrial, municipal, power, mining, milling, agricultural, recreational and a catchall miscellaneous undertakings.
With respect to each of those undertakings, there are sets of criteria in the regulations. For instance, if the amount of water you want to use is below a certain threshold, you will not need a licence at all. Less than 100 cubic metres would require a type B licence. If it is more than a certain threshold, a type A licence will be required.
There are also criteria dealing with deposits of waste, because this legislation also deals with that issue. Is that sufficient?
Senator Banks: It is. Thank you. Am I correct in assuming that whether there will be bulk commercial sale-type removal of water will depend on the pleasure of the minister?
Mr. Dunlop: No. The water management regime has two partners. One is the licensing Nunavut Water Board, and the second is the minister. That is for a major licence. That is a type A licence. They would issue the licence but the approval of the minister would be required to validate it.
The Chairman: Just to clarify: it is a two-key approach and both have to agree, otherwise water cannot be exported. However, if they both agree water could be exported?
Mr. Dunlop: That is correct.
Senator Spivak: I was at the same meeting with Senator Banks and heard some very troubling testimony from two people who were well known in the field of trade law. They suggested that any commercial use of water might trigger a difficult situation. That is, you could be liable for compensation by refusing to support a bulk water demand, because once water is put into commercial service, there is no going back. It cannot be reversed.
You have outlined what has to happen to refuse that kind of suggestion. Who knows what the legalities might be? I want to know how those regulations could be changed. Could they be changed without the approval of Parliament? That is my key question. If they can, you could get into a situation without your knowing it. As you know, in some places there is great pressure for water export.
Mr. Dunlop: Senator Spivak, the regulations can be changed without going through Parliament. Regulation goes through publication in the Canada Gazette. There is a series of public hearings, and then you make your case to the Governor in Council that changes to regulations should or should not occur. My point is that we will not get to regulations because there will not be an export. Whether someone suggests that the use of water or its export or sale is a commercial use or not is beside the point. There is no right to use water, other than the exclusive rights settled in the land claim of the Inuit, to have exclusive right to use water on water flowing through their land. There is no right for someone else to have water in Nunavut. They have a right to apply; that is all. They do not have a right to water.
Senator Spivak: I am not a trade lawyer.
Senator Johnson: Article 20.2.2 states:
the DIO shall have the exclusive right to the use of water on, in, or flowing through Inuit Owned Lands.These lands make up 20 per cent of Nunavut. In your view, is there a conflict between this article of the Nunavut Land Claim Agreement, ratified in 1993, and section 82(1)(m)(i) of the bill? Is there a reason this has been left unresolved despite the concerns of the Nunavut government and the DIO and NTI? Does this relate to the issue they are talking about in terms of bulk water?
Mr. Dunlop: I anticipated that you might ask that question after enjoying your speech earlier in the week where you made that point. The exclusive right to use water does not take with it an exemption from paying a fee. Water in Nunavut, Northwest Territories and Yukon vests in Her Majesty in Right of Canada. We reserve the right to charge a fee for the use of water. It does not matter that today there is no fee. At some point there may be.
First, we are only talking about the uses of water that require a licence. For volumes of water a day for recreational purposes, for domestic purposes, there is no fee and there is no licence required. For the commercial or industrial use of water we will require a licence. We reserve the right to charge a fee for the use of water. It has nothing to do with who has the exclusive right. If the Inuit decide to exercise that right, fair enough. If they do not, that is their choice.
Let me use as a comparison an operating mine in Nunavut, the Polaris Mine and Nanisivik Mine. Their fee is $25 per annum. It may be symbolic, but the right was not negotiated in some other fashion. There was no exemption negotiated, so there is no exemption. However, it does not relate to bulk water.
Senator Johnson: I have spoken on this matter at length in the Senate. I also suggested that the minister's powers set out in this legislation be submitted to a review by an independent body or consultant, perhaps a board composed of members from both sides of government and Nunavut on the fifth anniversary of this legislation. I understand that the water board is a creation of the land claim agreement, at least as it stands under the federal jurisdiction of DIAND. Would it be possible at a later time the minister's powers could be devolved to the Nunavut Minister of Sustainable Development, as he or she is closer to the situation and head of the department devoted to these issues?
Mr. Dunlop: Let me answer the last question first. The Government of Canada has as a policy its support for the devolution of provincial-type powers to the three northern territories.
It is my hope that you will soon see Bill C-39 dealing with the devolution of water, forest, lands and mining powers to the government of Yukon. It will be quite a day for that territory. That is putting that policy into practice.
Your question was whether the powers over water or the minister's role in water licensing could be devolved. Yes.
Should there be a review by an independent party afterfive years? No.
The water board in the Northwest Territories and the water board in Yukon are quite similar. They served as the model for the Nunavut Water Board. Their decisions, and the minister's decisions with them, are not subject to review. There is nothing in the land claim that would add yet another party in water licensing in Nunavut. There are two parties now. The principal one, of course, is the water board.
The minister does not get all the decisions of the water board. They make many decisions that have nothing to with licensing. They make decisions that have nothing to do with licensing of type A water licences. The water legislation north of 60o has been in place for 30 years. In those 30 years, the minister has rejected three water licences. I suspect that we do not need an independent review of one rejection every decade.
Senator Johnson: It would be just as it is forever in terms of the ministerial discretion.
Mr. Dunlop: Forever, until there is some sort of devolution.
Senator Johnson: I want to go on to the non-derogation clause. Clause 3(3) states:
For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.This is more a question of curiosity because I do not understand the rationale behind changing the formulation of the non-derogation clause from the standard language set out in the Constitution that states:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal people of Canada...Could you explain, please?
Ms Mary Douglas, Legal Counsel, Department of Indian and Northern Affairs: In the context of a piece of legislation this is a regulatory legislation. It has been the intention of the department to ensure that there is no derogation from the protection provided by the constitutional provision. It has been the position of the department that that was always the intention when a provision like this occurred in some earlier legislation such as the gun control legislation and others.
However, in examining the potential interpretation of these provisions, it was determined that there was some risk that the intention might not be reflected if the issue ever came before a court. We tried to use a standard provision in the legislation. It was somewhat modified to more clearly reflect that intention. That is, we were not trying to change the status quo. We were trying to neither take away from the protections that were already confirmed through the constitutional provision nor top them up. We were trying to maintain neutrality.
In this case, for example, the land claim agreement speaks to the issue. It relies for Inuit rights on 3(1) that confirms that whatever rights there are in the agreement would prevail over any authorities given in this legislation.
Senator Johnson: That clears it up for me.
The Chairman: The Nunavut settlement area is two million square kilometres. The Nunavut trust makes up about 350,000 square kilometres. Within that area, Nunavut has mineral rights over 10 per cent of 350,000 square kilometres. Do you argue that you have the same rights over the settlement area, which is only 350,000 square kilometres, as you have over the whole of Nunavut?
In 1993 the Nunavut Land Claims Agreement ended up with roughly 350,000 square kilometres of land within the Nunavut settlement area. That is under direct Inuit control. I would not call it a reservation, but it is similar to our Aboriginal lands. Aboriginal is predating the establishment of the province.
Does this water agreement that you are talking about and all the rights that you have apply equally to the 350,000 square kilometres as it does to the whole Nunavut province.
Mr. Dunlop: The water legislation applies throughout the Nunavut Territory.
The Chairman: You say the Nunavut have extinguished their rights to control water within that area.
Mr. Dunlop: No. It is not about extinguishing rights.
The Chairman: I thought that they extinguished their rights in order to get mineral rights.
Mr. Dunlop: A percentage of the lands that are acknowledged in the land claim as being Inuit owned lands is surface ownership only, and another percentage of them has the subsurface and mineral rites, as well.
The Chairman: Within that area are the rights of DIAND the same as the rights for the whole of Nunavut?
Mr. Gibson: If I could just address that question in respect of water: The land claim agreement does provide the exclusive right to the use of water to the Inuit while that water is on and flowing through their lands. That makes that exclusive right subject to the rest of the agreement.
An article deals provides the water board's authority to approve all uses of water, which includes the Inuit. The Inuit exclusive right is subject to the licensing provisions of the water board process and the law of general application that will apply to water use throughout Nunavut.
Senator Christensen: I request a clarification. How do this water resource board and the surface rights tribunal compare to those in the other two territories?
Mr. Dunlop: The water legislation is probably the most straightforward in that we use the Northwest Territories Water Act as a model for the Nunavut Water Board. The land claim requires that the water board in Nunavut have powers no less than those of the N.W.T. water board under the previous water legislation. Their structures are largely the same.
Each of the territories has a bit of a difference in that the land claim settlements, which are the core of legislative change in those territories, are different. The Umbrella Final Agreement in Yukon for the Council of Yukon First Nations is a bit different. Their percentage of membership is different on the Yukon Territory Water Board. In the Northwest Territories you have the MacKenzie Valley Land and Water Board, which constitutes itself from among the First Nations in the N.W.T. that have a settled land claim, the Gwich'in and Shatu.
They use the Northwest Territories Waters Act as their legislative base for licensing decisions.
The Surface Rights Tribunal is comparable to the Yukon Surface Rights Board. There are some differences because Yukon does not have any features offshore. They do not have that feature on wildlife compensation and arriving at values in the offshore. Both of those Northern surface rights boards are modelled on the West. We looked at the surface rights tribunals in Manitoba, Saskatchewan, Alberta and British Columbia to come up with the structure.
Senator Christensen: In the Yukon and the Northwest Territories, it is certainly an issue that we have become aware of. Is it not correct that the minister continues to have a veto power over licensing and permitting?
Mr. Dunlop: It is only recently that it has been called aveto power. I prefer to refer to it as two partners in water licensing. The water board does the majority of the work, and it issues the licences. Only a percentage of those arrive at the minister's office for approval.
Senator Christensen: I realize that it is rarely used, certainly in the Yukon, but the power does exist. It has always existed because the elected minister has the final responsibility as opposed to appointed boards.
Even with the devolution of responsibilities to the territorial government, we will see in the Yukon Act that the minister still has the ultimate authority on issues of national concerns. It would have been of concern to the Yukon if those powers were given directly to the water board rather than the elected people of Yukon. They would want to keep that authority as well.
Senator Banks: The chairman has referred to it as a veto on either side and you have said that you prefer to call it a partnership. However, it has long been the position of the water board that the minister ought not to have that right, that the agreement precludes that right, and that the minister should have nothing to say about this. In that case, there would not be two keys, there would not be a veto and there would not be a partnership. There would be one decision. The water board could decide what to do whenever it liked.
Mr. Dunlop: We completely disagree on whether the minister has a role in water licensing. The question has been put to the Federal Court and the Federal Court will answer it. The minister very definitely has a role. It was not negotiated out of the land claim. It does not create an independent water board.
Senator Sibbeston: Mr. Dunlop has said that the minister has used his powers to override the decision of the water board only three times in the last three decades. If you know the history of the North, you will know that the federal government has had jurisdiction over every aspect of northern life over the years.
Over the decades, people in the North have been responsibly taking over powers that the federal government once had. The story of the North is one of responsible government, as is the story of Nunavut. Inuit people have aspired for responsible government and have won it. I am not surprised that the government of Nunavut and the Inuit people want to assert their rights and want to have complete jurisdiction over waters.
As I understand it, there is an issue between the federal government and the Inuit people over interpretation of a clause in the agreement that seems to give Inuit people exclusive right to the use of water. I take it that it is the interpretation of that clause which is at issue. The Inuit people think that the water board and the Inuit organizations have ultimate authority over water and that the federal minister ought not to have overriding power.I understand that to be the issue.
Officials of the Department of Indian Affairs should not be surprised that the people of the North want complete authority. As you have said, the general movement is toward that. Powers are being devolved to northern jurisdictions such as Yukon.
Mr. Dunlop, can there be a resolution of that? Is the federal government quite insistent on the legislation as proposed? Is there any room for negotiations or room for change to appease or satisfy the Inuit people in this matter?
Also, in the case of the Yukon, does the forthcoming legislation contain the authority that Inuit people are seeking here?
Mr. Dunlop: The issue at contention is not the exclusive right of the Inuit to use waters when it is flowing through their lands. No one contests that at all. The issue has been the jurisdiction of the water board vis-à-vis a role for the minister. As to whether we are insistent, I would say that after eight years we are pretty insistent that this is the bill.
In the case of Yukon, the devolution to the Government of Yukon will have the feature of transferring the ministers' role and authorities in respect of water management to the Government of Yukon. It will, in turn, be the decision of the Government of Yukon where that role will reside in their government structure.
In a press release last week, the Government of Yukon expressed its intention to create two new departments. I believe that a new ministry of the environment will contain a water, lands and environment structure. That is where the role of the minister role will reside in that government.
Senator Sibbeston: With regard to whether this issue is resolvable, is the department insistent on the legislation proceeding as proposed or is there still some possibility that some amendments could be made to satisfy the Inuit people of the North?
Mr. Dunlop: At the standing committee in the other place, the member of Parliament for Nunavut sponsored an amendment to clause 56, describing the ministers' role. There is now a time limit; if the minister does not make that decision within the limited time period, he is deemed to have approved the licence. Effectively, the ministers' role now has a limitation and a constraint on it. It makes it more palatable to those people who argue that the minister should not have a role at all. They are encouraged that his role has been limited. We have found a compromise in the way licensing decisions will be made.
Senator Spivak: I want to return to the issue of ministerial discretion and regulation. I want to clarify my concern about something that could unwittingly trigger another process and about what trumps what.
We had a very complex and interesting discussion yesterday on Bill C-6. I ask you to read that testimony and answer in writing my concern about a commercial process triggering something else.
I must say that I have not looked thoroughly at the bill. There is now the whole issue of the ministers' role and the court case involving the City of Iqaluit.
What is your view of the general feeling in Nunavut concerning the authority of the water board? There seems to be a lot of dispute concerning the authority of the minister. What is the general feeling? Obviously, the mayor of Iqaluit seems to feel that ministerial discretion should continue for quite some time. What is the community view on that? How do you think this will eventually be resolved?
Mr. Dunlop: In answer to the last part of your question, I think the resolution lies in enactment to make clear, to get rid of the uncertainty, and to determine where jurisdictions and mandates lie and who has what duties. Let us remember that the lion's share of the duties and responsibilities fall to the water board. It is not an easy task. They have lots of work to do. They must make the legislation clear to the people that use the system. They can obtain a copy of Nunavut's water regulations as they become available. You will be able to have counter service and find those kinds of detail.
As to the general mood, I have heard the gamut of opinions expressed. It is not unlike every other provincial jurisdiction in the country for something as important as water. If you look atNew Brunswick and British Columbia, you will eventually find a minister who, when a question is asked, has to rise and answer to the public. Somewhere in each of our 10 provinces there is a minister who is responsible ultimately for how an important natural resource is used.
Senator Spivak: I guess I did not put my question precisely enough. Is the feeling that the licensing process should apply just to large-scale corporations and not to the municipality? What are the powers of the municipality versus the water board versus the minister and how that will be resolved? How do people feel about it? Obviously, in Iqaluit, people feel differently.
Mr. Dunlop: I will not speak for Mayor Matthews. He made his own presentation to the committee. All of the larger municipalities rely on the fact that they have a licence and that someone gets to oversee how their system will be employed, in terms of whether they will use filtration or chemical treatment and what kinds of systems they will use for treatment and discharge.
Senator Spivak: I would very much like if you could address the meaning of "commercial use of water" and what that triggers in the light of trade law and Bill C-6, which is before us. I would very much appreciate an answer to that.
Mr. Dunlop: Mr. Chairman, should we provide you with a written response?
The Chairman: I think Senator Spivak wants a written response.
Senator Johnson: What would trigger devolution of the power to the territory?
Mr. Dunlop: Discussion first and then negotiations, with discussions originating with the premier, which would be responded to by the government through our minister.
Senator Watt: I assume that this particular legislation is to implement the 1993 Nunavut Land Claims Agreement. Is that the case?
Mr. Dunlop: Correct.
Senator Watt: I have two concerns. I will try my best to come up with a very clear question to which I will get some clear answers. I will focus on two areas. The first area is the ministerial authority and the second is the non-derogation clause that is set out in the Constitution. When the land claims were negotiated between the two parties, the Inuit and the federal government, 350,000 square kilometres were obtained under the fee simple rights. Is that correct?
Mr. Dunlop: Could you repeat how you differentiate that, senator?
Senator Watt: I assume that 350,000 square kilometres were obtained in fee simple.
Mr. Dunlop: Those are now Inuit owned lands.
Senator Banks: Are all fee simple?
Mr. Dunlop: Yes.
Senator Watt: I assume that when the negotiations were undertaken there was really no distinction between the land and the water at that time. It was probably for that simple reason that certain sets of regulations had to be taken into account. How to deal with the water was not taken into account at that time.
I am going by my own personal experience, having been involved in land claim negotiations. There is a definite difference of opinions between the two groups. It has not been made clear who should have the absolute rights and who should have a partial enjoyment of rights to that particular geographical area.
When you are at that stage dealing with an agreement you are, in many ways, subject to interpretations. Do not forget that this text was negotiated. When you end up with a negotiated text, you are bound to be subject to all kinds of interpretations. We have experienced that over the years.
The way I understand the NTI is that right is their right. Therefore, that was a part of the give and take.
What the NTI is saying is that this is their piece of action. That is their authority. You talked about devolution down the road. Meaningful negotiation will take place down the road. We can see that, but devolution also has to take into consideration the ethnic component from which the NTI was established.
It will be up to the two groups, Nunavut and NTI, to work out the differences when the devolution takes place. That is the way they see it. Even though that was provided for in the negotiations, you are saying that you would like to take that back, because it should be under the ultimate authority of the minister, since he is the elected person. Do I understand it correctly?
Mr. Dunlop: No, sir, you are not. That is not an accurate assumption of what I said at all. If you look in the back of your reference binder, there are two important reference materials that we added. At tab 3, you will see reference to article 13 of the land claims agreement on water management; and at tab 4, you will see a reference to the Inuit water rights. We are talking about water management, and not about Inuit water rights. No one is debating whether Inuit water rights were negotiated or acquired; that is done, and they are obtained. We are talking only about water management.
The first three pages deal with the water board and the obligation of Canada, represented by the minister, to create a water board in Nunavut. That is all we are dealing with in the bill; the creation of the water board. By no stretch of the imagination are we trying to take something back from the land claim. That is just not so.
Senator Watt: The understanding is that this involves a part of the land claims that were settled. It also has implications for the extinguishment matter. It does not matter which word you use because "quick settlement" and "extinguishment" both mean the same thing. In a sense, that is part of the trade-off that they have made.
They are also alarmed by the fact that the Government of Canada will be in a position to collect the water fee. They believe that it should be under the authority of the water board to collect the fees on the basis of the arrangement that is negotiated between the Nunavut Water Board, the NTI and the Government of Nunavut. That should be their business, down the road.
I believe that they should have that authority to earn revenues for their activities. We cannot constantly ignore the fact that the revenues are taken from the North and that there is nothing meaningful going back to the North in terms of self-sufficiency. That is one concern that I wanted to mention.
Coming back to your explanation and the question I just asked about the non-derogation clause, I was also quite shocked to see that it began some time ago. The Department of Justice, decided that they would, rightly or wrongly, interpret section 25, respecting non-derogation, as the shield of the government. Whether they did that on purpose, I do not know. That is supposed to be the protection for the Aboriginal people. Your explanation indicated that you would like to turn that around from a protection for the Aboriginal people to a shield for the government. Is that what you are saying? I did not clearly understand your explanation.
Ms Douglas: First, I was speaking to section 35, which is the provision of the charter that is referred to.
Senator Watt: Non-derogation is in section 25, not in section 35.
Ms Douglas: It is in section 35 of the Constitution Act, which is referred to in clause 3 (3) of this bill. It was section 35 that I was speaking to.
Senator Watt: Is it not in section 25 of the British North America Act?
Ms Douglas: I was trying to explain that the intention was simply to confirm that the protection provided by that constitutional provision remains unaffected by anything in Bill C-33.
Senator Watt: Why do you not use the same wording?
Ms Douglas: The same as what other wording?
Senator Watt: That is what puzzles me. Why are you not using the same wording as that of the Constitution? Aboriginals are quite familiar with that wording. Why is the same wording not used in this bill?
Ms Douglas: Section 35 confirms Aboriginal rights, and the bill, in respect of the legislation, does not affect section 35. We are not trying to replicate section 35. In fact, that would, of course, be unnecessary. We are trying to confirm what this other document does or does not do in relation to what section 35 does.
Senator Watt: It is very confusing.
The Chairman: Senator Adams will ask a question and we will come back to you, Senator Watt, with clarification.
Senator Adams: The main focus of Bill C-33 is future environmental damage. That is why we require a water board in Nunavut for future negotiations with NTI to handle the issue of environmental damage. We are also concerned about the revenues and that they be directed to the water board in consideration of future environmental damages, and that they not be directed to the department.
Mr. Dunlop: We certainly know that the NWB will take on as part of its ethic, the avoidance of environmental damage, and the prevention of and prohibition against environmental damage. For the larger uses of water, you will see, in the proposed legislation, the authority of the water board to require security deposits. Those deposits are to be held by the minister, but if there is environmental damage or if there is a breach of some condition, cleanup restoration, for example, those moneys can be accessed for the actual cleanup work. Fees, however small they are, will be directed to consolidated revenue.
Senator Adams: If the Nunavut Water Board holds the majority in Nunavut and there are 350 thousand square kilometres of Inuit land, does the minister still hold the power to approve an application or would the NWB have that authority in those settlement areas?
Mr. Dunlop: Only if there is the large type A major water licence issued, or if there is a public hearing of a type B licence. Those are the only decisions that would reach the minister.
The Chairman: Senator Watt, we will return to your question now.
Senator Watt: Let me try to clarify my question so we can get a clear answer. I am asking you a question about section 25 within the Constitution Act, 1982. That is the non-derogation clause normally used for legislation. It is a seal to protect the Aboriginals from whatever the wrongdoing or the mistakes that the government might make from time to time. That is what the Constitution is all about.
Why are you changing that? Are you inventing a new non-derogation clause? From where are you pulling it? Which Constitution are you pulling it from if you are not using the same wording that is in the Constitution?
Mr. Dunlop: I will touch briefly on the policy aspect as opposed to the Constitution. We are not embracing the Constitution. We are not repeating the Constitution. We are not dragging the Constitution into this bill.
There is no intention to abrogate, diminish or derogate the Aboriginal rights acquired by the Inuit that are given evidence to in this land claim in any fashion. We make reference to the protection of the Constitution.
We are not trying to raise the bar. We are not trying to lower the bar. We are merely making reference to the protection acknowledged by the Constitution, It is acknowledged in the bill.
I would ask the senator to look at Bills C-5, C-6 and C-10. They have the same wording in them. We are not coming up with something new.
Senator Watt: That is the problem.
The Chairman: Is there a non-derogation clause in this bill.
Mr. Dunlop: Section 3(3).
Senator Banks: You are saying to Senator Watt that the wording of the non-derogation clause that is used in this bill is also used in a number of other bills?
Mr. Dunlop: Correct.
Senator Banks: The exact wording?
Mr. Dunlop: Correct.
Senator Watt: There have been some changes.
The Chairman: Thanks for coming and at least opening the discussion. We are going to hear now from the Government of Nunavut, Nunavut Tunngavik Incorporated and the Nunavut Water Board.
Mr. John Merritt, Legislative Counsel, Nunavut Tunngavik Incorporated: We belong to three different organizations. Each of us is planning to make a presentation.
The Chairman: We are on television. Perhaps you should introduce yourselves first and then begin.
Ms Lois M. Leslie, Senior Legal Advisor, Government of Nunavut: I am a senior legal adviser with the Department of Executive and Intergovernmental Affairs with the Government of Nunavut. I am based in the Ottawa office.
Mr. Merritt: I am a lawyer working for Nunavut Tunngavik Incorporated. With me is Kathleen Tagoona who is the Ottawa liaison officer.
Mr. Thomas Kudloo, Chair, Nunavut Water Board: I am the chairman of the Nunavut Water Board.
Mr. William A. Tilleman, Legal Counsel, Nunavut Water Board: I am the legal adviser of the water board.
Ms Philippe di Pizzo, Executive Director, Nunavut Water Board: I am the executive director of the Nunavut Water Board.
The Chairman: Let us lead off with Mr. Merritt.
Mr. Merritt: Our president was not able to come today given the short notice that we had to make this presentation. He lives in Cambridge Bay and was not able to come. He does express his regrets. Ms Tagoona and I work in the Ottawa office.
Nunavut Tunngavik Incorporated is a not-for-profit company with a leadership elected by all Inuit in Nunavut. NTI represents more than 20,000 Inuit of Nunavut for the purpose of asserting and defending the rights of Nunavut under the 1993 land claims agreement. The agreement covers about a fifth of Canada's landmass. It is a treaty under section 35 of the Constitution Act.
NTI is seeking four changes to the bill. You have been given a longer brief. The appendix contains some elaborations on the various arguments in the main brief. If senators have questions about the materials now or subsequently in writing, we would be pleased to try to answer them.
The first change we are seeking is an introduction of a positive interpretation provision. That is the term we are using to describe this particular version we are seeking.
The bill should include a positive interpretation provision to show that it is the intent of Parliament to adopt this bill to give active effect to the commitments that were made to the Inuit on behalf of the Crown in 1993 through the ratification of the land claim agreement.
One of the most tiresome problems of an Aboriginal party to the land claims agreement at the implementation stage is to prevent government officials from trying to minimize it. We have been at that stage since 1993.
Nunavut Tunngavik Incorporated invites the committee to supply officials with a clear sense of the responsibilities that have been delegated and entrusted to them. It can be done by adding the following provision:
This act shall be interpreted, applied and administered to implement the (Nunavut Land Claims) Agreement, including the rights of Inuit provided in the Agreement.That is a positive statement. NTI takes the view that it would be helpful for parliament to give a signal that it expects officials who carry out the law to take a positive approach to the act of implementation of the agreement. From our point of view, that would be a helpful and optimistic sign. It would not be the world of what we are trying to avoid; it would be the world of what we are trying to do.
NTI proposed this additional provision to the bill to departmental officials in the past. While it appears that the proposed provision causes government officials some unease, it is not readily apparent why. We have not been given a ready or suitable explanation as to why this kind of language cannot be included. We urge you to take the step of including this kind of wording.
The second issue we raise is the freedom of Inuit owned lands from fees on water use. You talked about that a little earlier this morning. At common law, fee simple land titleholders have rights to waters located on their lands or that flow through or along their lands. In the Nunavut agreement the core right of Inuit land-holders are set out in section 20.2.2 that states:
Subject to the Agreement and any exception identified in the property descriptions of Inuit Owned Lands, the DIO shall have the exclusive right to the use of water on, in, or flowing through Inuit Owned Lands.Note that description of the right as "exclusive."
A land claims agreement can be compared to two individuals sharing living space. Part of such an arrangement is to allow each party a measure of autonomy and privacy. Yet DIAND's view of shared living space seems to be that what is mine is mine and what is yours is mine as well. Having agreed that Inuit should have the exclusive rights to water in the Inuit part of the shared living arrangements, the department now wants to be able to charge fees to Inuit for the use of water on those lands.
This attempt to collect fees from Inuit landowners flies in the face of both the Nunavut agreement and common sense. Even if permitted by the agreement, which we deny, the imposition of such fees on fee simple titleholders would be invasive, vexatious, and fundamentally hostile to the quiet use and enjoyment of property.
The bill should be amended by changing he wording of section 82(1)(m)(i) to read:
for the right to use waters or deposit waste in waters under a licence excepting waters on, in, or flowing through Inuit Owned Land.The third issue where NTI seeks changes is regarding the removal of the ministerial approval role.
Public confidence has been eroded in Nunavut as a result of how DIAND has dealt with the Iqaluit water licence over the last year. When the board made its decision at the end of last year to attach conditions to a license restricting the burning of garbage, DIAND could have, within 30 days of the board's decision, brought an application for judicial review of the water board's jurisdiction to attach such decisions. It had that discretion.
That did not happen. Instead, by registering unhappiness but not taking any decisive steps, DIAND pushed the water board, the City of Iqaluit, Inuit organizations and private citizens into a jumble of legal, policy and administrative uncertainty. In August of this year, many months after the water board's decision, DIAND injected further uncertainty into the situation by communicating, somewhat vaguely, that it did not consider the water licence issued by the water board to the City of Iqaluit to have legal force. This action by DIAND has put other water licences into doubt and prompted court action.
A proper interpretation of the Nunavut agreement does not support the proposition that water board licensing decisions have no consequence in the absence of ministerial approval. However, even if the Nunavut agreement did not exist, recent events show that there is no policy merit in the kind of open-ended ministerial discretion that DIAND is seeking. At a minimum, any discretion should be constrained by the following three things.
The first point is objective criteria to limit the circumstances in which a minister could object to a licensing decision, such as lack of evidence, or public health or safety concerns.
The second point is the opportunity for reconsideration by the water board. This approach would involve the minister exercising a discretion to have the board reconsider its decision in light of objective reasons advanced by the minister, rather than relying on blanket rejection. Once again, this technique is employed in other parts of the Nunavut agreement. There is a useful precedent close at hand as the agreement itself in relation to the Nunavut Wildlife Management Board decision-making process.
The third point is a sunsetting of the minister's role. If the department believes that DIAND must act as some kind of transitional watchdog, then surely there is no need to extend that role indefinitely.
The fourth and final change that NTI is seeking is in relation to an appropriately worded non-derogation clause.
Subsection 3(3) of the bill should be deleted and replaced with the following wording drawn from section 25 of the Canadian Charter of Rights and Freedoms. You see the language reproduced in the brief that has been circulated:
For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada.The amendments that accompanied patriation of the Canadian Constitution in 1982 contained non-derogation language with respect to the interaction of the Charter with Aboriginal and treaty rights. The non-derogation language in section 25 of the Charter provided assurances to Aboriginal Peoples that the Charter was not aimed at taking anything away from Aboriginal and treaty rights.
The Charter formulation of the non-derogation clause was accepted as appropriate by those responsible for preparing draft legislation up to and including the firearms act in 1996. Over the last few years, however, new federal bills have come forward with at least two different variations of wording. Subsection 3(3) of the current bill contains one of those variations.
The Charter formulation can be best understood as a statement of intent. That is, parliament is not intending anything to be interpreted as to take away from Aboriginal or treaty rights. The divergent wording in the current bill could easily be understood as a statement of parliamentary capacity. That is, parliament is reminding the courts that, in certain circumstances it has the capacity to infringe on those rights, despite the protection of aboriginal and treaty rights under the protection offered in section 35. We know that from case law, the Sparrow case being the leading case in that regard.
Through the adoption of divergent wording, a non-derogation clause can, become a kind of derogation clause; what was designed as a shield can become a sword.
There are compelling reasons for the committee to reject section 3(3) and to replace it with the Charter formation. These include, that the Charter is a fount of sound constitutional usage and drafting. There is no good reason to diverge from the wording in section 25.
Second, the Charter formulation was employed consistently in federal legislation for the majority of bills containing non-derogation language since 1982. There is no evidence that this has created any practical problems.
Third, in the event that government officials believe that there is an overriding reason for dropping the Charter formulation, that reason should be presented clearly to the appropriate parliamentary committee that has the time to investigate that issue.
Fourth, DIAND has made no effort to point out if, where and how, this law would infringe on Aboriginal treaty rights. Those who would like to argue that a new law can justifiably infringe on Aboriginal and treaty rights have obligations: to point out such potential infringements to lawmakers such as yourself, and to spell out why they think such infringements might be unavoidable. We have had none of those discussions in our exchanges with DIAND and I would respectfully suggest that you have not had those kinds of indications either.
Fifth, when NTI and the representatives of other Aboriginal peoples affected by this proposed law were first engaged in consultations, there was no dispute as to what was the standard non-derogation wording. To adopt a variation wording now is bad faith.
There are a number of French language issues that are relatively minor, which are referred to in our appendix. I note those changes are ones that we think would be sensibly made.
In closing, NTI urges the committee to do two things: to amend the bill in the ways we have suggested, and to communicate to the Minister of DIAND that further legislation aimed at implementing the Nunavut agreement should be developed on a partnership basis with NTI and the Government of Nunavut, in order to achieve fair and timely results.
Thank you for your attention. We would be happy to take questions now or after the other groups have had a chance to speak.
The Chairman: Before we go to questions, we will hear from all three groups.
[Thomas Kudloo, Chair, Nunavut Water Board, spoke in his native language.]
Mr. Kudloo: Inuktitut is my first language. I did not speak a word of English until I was 10 years old, and that was 42 years ago.
I am the chairman of Nunavut Water Board. With me today is Philippe di Pizzo, executive director for the Nunavut Water Board, and Bill Tilleman, legal counsel for the Inuit Water Board.
I would like to thank the committee for the invitation to speak on Bill C-33, the proposed Nunavut surface rights tribunal act. We made a submission on this bill before the House of Commons Standing Committee on Aboriginal and Northern Affairs last month. Regrettably, that committee did not accept any of our recommendations. I will once again attempt to convince you, on behalf of my board, that you must make a few significant amendments to this bill before it becomes law.
I believe that the Senate is the guardian of legislative process, and therefore this final review by your committee should be much more than a rubber-stamping exercise. I urge you to consider our recommendations with an open mind.
We have had the opportunity to review at NTI's detailed submission and we fully agree with and endorse all their recommendations, with no exception. The Nunavut Water Board is an institution of public government created pursuant to article 13 of the Nunavut Land Claims Agreement. The board had been in operation since July 9, 1996, and I have been the chairman of the water board since that time.
Since its establishment, the board has been fully operational despite the lack of implementing legislation. For example, in 1997 and 1998 the board held 11 meetings and three public hearings and approved 17 applications and 18 technical reports. Three years later, in 2000-01, we held 14 meetings, one public hearing, and approved 46 applications and 43 technical reports.
Although the board is eager to have implementation legislation in place, we do not want it the way it is currently drafted. First and foremost, we want to be sure that any legislation upholds the spirit and intent of the Nunavut Land Claims Agreement and explicitly acknowledges its precedence in case of inconsistency or conflict, as stipulated in article 2.12.2 of the Nunavut Land Claims Agreement.
We expect the bill to fully respect and reflect the specific and accurate wording of the Nunavut Land Claims Agreement. This is not the case in this bill. For example, clause 26 of the bill stipulates:
The head office of the Board shall be at Gjoa HavenHowever, article 13.3.9 of the Nunavut Land Claims Agreement simply states:
The NWB shall maintain a head office in the Nunavut Settlement Area.This is an easy one to amend. This clause of the bill should be reworded to reflect the actual wording of the Nunavut Land Claims Agreement.
A more consequential example relates to article 13.7.1 of the Nunavut Land Claims Agreement. This articles says:
no person may use water or dispose of waste into water without the approval of the NWB.That article is the heart and soul of the Nunavut Water Board's powers and jurisdiction, but it appears nowhere in Bill C-33. The current version of the bill contains a number of significant deviations from the Nunavut Land Claims Agreement.
I will bring to your attention two of the most significant concerns we have about the bill. The first one, which will not be a surprise to you, has to do with clause 56 of the bill. Our board members are very respectful of the minister, the Government of Canada and the government's position with regard to ministerial approval. However, my board members have directed me to convey to you their disappointment with clause 56 as it now reads. They have asked me to urge you to delete this clause altogether.
You may not know that our board is composed of a majority of Inuit, many of whom are elders. They hold very important positions and are greatly respected in their communities and throughout Nunavut. They consider this clause of the bill to be a vote of non-confidence by the Government of Canada in their ability to manage their own resources in a professional and balanced manner. Our position is that the Nunavut Land Claims Agreement does not give the minister of DIAND the power to approve or reject a licence issued by the Nunavut Water Board.
Clause 56 of the bill, even with the addition of a time limitation on the minister's power, is essentially a duplication of a similar clause in the N.W.T. Waters Act. It neither explicitly nor implicitly appears anywhere in the Nunavut Land Claims Agreement. It violates the spirit and the intent of the agreement.
I will not add to NTI's submission only to say once more that clause 56 should be deleted from the bill. We believe there are more appropriate recourses for any party, including the Minister of DIAND, to challenge a decision by the Nunavut Water Board, such as filing an application for a judicial review under the Federal Court Act.
The second issue that I would like to bring to your attention deals with unlicensed water uses or deposits of waste into water permitted by regulation as per clauses 11(2)(a) and 12(2)(a) of the bill. This issue was not addressed by NTI in their submission.
These two clauses refer to the uses of water and deposit of waste into water exempt from Nunavut Water Board approval. They are clearly in contravention of the Nunavut Land Claims Agreement that stipulates in article 13.7.1:
With the exception of domestic or emergency uses of waters, as set out in Section 5 of the Northern Inland Waters Act RSC, no person may use water or dispose of waste into water without the approval of the NWB.There are no exemptions contemplated in the regime established by the agreement, except in cases of emergency or for domestic uses.
Contrary to the scheme created under the Nunavut Land Claims Agreement, Bill C-33 basically creates three classes of water uses and waste disposal activities. The first class is activity subject to a public hearing. The second is activities exempt from a public hearing. The third is a new class of water usage: the deposit of waste into water exempt from any board approval or licensing requirement.
On the other hand, the Nunavut Land Claims Agreement contemplates only two classes of projects: those applications for which a public hearing is required or is mandatory and those that can be dealt with summarily.
Compare article 13.7.1 to article 13.7.5 of the Nunavut Land Claims Agreement with the existing wording of Bill C-33. Simply put, the bill should duplicate, with precision if required, those sections of the Nunavut Land Claims Agreement rather than substantially altering the intent and spirit of the Nunavut Land Claims Agreement.
We believe that any water legislation must respect the spirit and the intent of the Nunavut Land Claims Agreement. The current version of the bill simply does not achieve this essential objective. While the majority of these clauses are appropriate because of the creation of the exemptions under clauses 11 and 12, and the power given to the minister under clause 56, among others, it violates a number of critical sections of the Nunavut Land Claims Agreement.
For that reason alone, the bill should either be amended as suggested by NTI with the addition or deletion of exemptions as mentioned earlier in my presentation, or it should be sent back. The next time around, meaningful consultations with NTI and with the Nunavut Water Board should occur before the Minister of DIAND introduces another version.
That concludes my presentation. We will answer any questions.
Ms Lois M. Leslie, Senior Legal Advisor, Department of Executive and Intergovernmental Affairs, Government of Nunavut: Honourable senators, I apologize that no one from the Government of Iqaluit was able to join me this morning. We also received short notice. I understand that our application to appear was not received by the clerk so we appreciate that Senator Adams noticed our absence from the list.
The Government of Nunavut is pleased to have this opportunity to speak to the committee on Bill C-33. Our government is happy to see this legislation tabled. We believe that Bill C-33 will provide a greater level of certainty to the regulatory environment in Nunavut. The passage of this legislation will also mark further progress in the implementation of the Nunavut Land Claims Agreement. However, as we will be outlining later in this presentation, we have some outstanding concerns with the bill that we believe need to be addressed before the bill becomes law.
For the record, the position of the Government of Nunavut is the same as when we presented at the House of Commons standing committee, subject to the amendments made by that committee.
As a successor government to the Government of the Northwest Territories, the Government of Nunavut is a signatory to the Nunavut Land Claims Agreement. In addition to the specific obligations under the agreement and the implementation contract, which the Government of Nunavut assumes in that capacity, the Government of Nunavut has a responsibility as a public territorial government to protect and promote the interests of the people of Nunavut. As a public territorial government established pursuant to a land claims agreement, the Government of Nunavut has a further unique role in Nunavut. The government of Nunavut is a vehicle by which the Inuit of the eastern Arctic have elected to exercise their inherent right of self-government. This fundamental relationship between the Government of Nunavut and the Inuit and the central role of the agreement in Nunavut together inform all activity of the Government of Nunavut.
The Government of Nunavut has an additional interest in Bill C-33. Our government is currently engaged in preliminary discussions with the Department of Indian and Northern Affairs with a view to negotiating the devolution of lands and resource management in Nunavut, currently exercised by DIAND. With devolution, which we hope will occur within the next three to five years, the Government of Nunavut will assume responsibility for regulating land use and water use throughout Nunavut.
I would like to focus on four issues in Bill C-33. All of these issues pertain to either the front provisions of the bill or Part 1. The Government of Nunavut has no comments with respect to Part II of the bill. The four issues I wish to address are non-derogation of Aboriginal treaty rights in clause 3(3); the minister's authority to approve the issuance, amendment, renewal and cancellation of a water licence in clause 56; fees for the use of waters on Inuit-owned lands in section 82(1)(m); and, finally, the issue of inspection and enforcement of water licences, clauses 85 to 89.
I will not go into a lot of detail on the issue of non-derogation; Mr. Merritt has eloquently put forward the arguments on that subject. The Government of Nunavut supports completely the position of NTI on this issue. We feel that not only does the present language not provide assurances that parliament does not intend to impair existing Aboriginal treaty rights through this legislation; it creates a more serious concern for Inuit. By limiting the protection of the clause to just the protection provided for Aboriginal treaty rights, by the recognition and affirmation of those rights in clause 35, the provision incorporates the common-law authority to infringe Aboriginal and treaty rights which was first enunciated by the Supreme Court of Canada in the Sparrow decision. The result is to provide that the action not be construed so as to abrogate or derogate from existing rights, to the extent that such abrogation or derogation cannot be justified, in accordance with the justificatory analysis developed by the court.
This result sets off alarm bells for the Government of Nunavut. Does the act currently contain provisions that diminish Inuit rights under the agreement, but which could be justified? If so,clause 3(3) is of no assistance to Inuit. Does the presence of clause 3(3) imply some sort of consent by Inuit to any such infringement, given that NTI was consulted in the development of this legislation?
The Government of Nunavut further supports NTI's request that clause 3 of the bill be further amended by adding a positive interpretation clause as submitted to the committee by NTI this morning. The Government of Nunavut is of the view that the clause proposed by NTI would properly situate the Nunavut Water Board and the Nunavut Surface Rights Tribunal within the context of the agreement and clearly establish the agreement as the primary reference point in relation to Bill C-33.
On the issue of ministerial authority to approve licences, the Government of Nunavut has a different position from that enunciated by NTI and the Nunavut Water Board. In our view, these blanket agreements do not deal definitively with this issue. We appreciate that there are legitimate discussions around that authority. This issue is currently before the courts.
The Government of Nunavut must also consider this question from the point of view of an elected government that will with devolution assume responsibility for lands and waters throughout Nunavut. We feel it is appropriate and necessary that the responsible minister be able to impact licensing decisions when it is in the public interest to do so.
However, the Government of Nunavut does not agree that ministerial authority should be unrestricted. For that reason, we put forward proposed amendments that are reflected in our brief. Our brief has not been amended since the amendments were made at the House of Commons committee. We feel it is important that the minister's authority will be constricted by time frames, and where the minister does not comply with that requirement the minister will be deemed to have approved the water license. Those changes have been made in the bill and we are satisfied with the changes that have been made with respect to time limits and the deeming provision.
The government would, however, support the additional changes that NTI mentioned this morning with respect to objective criteria, for example, and the requirement, where the minister rejected a licence application by the board, to send it back to the board with suggestions for resubmission. These additional suggestions would continue to improve the bill.
The third issue is fees for use of waters on Inuit-owned lands. Again, we support NTI completely on this issue. Unlike the issue with respect to ministerial authority, the agreement is absolutely clear. When you talk about an exclusive right, in our position there is no room for any other role for government. "Exclusive" means that the right belongs entirely to Inuit. While the Government of Nunavut would have the authority to raise revenues with devolution, we feel there is no room provided in the agreement for that role. So we support absolutely NTI's position that this bill should be amended to explicitly exempt Inuit-owned lands from the ability to raise revenues.
The issue of enforcement is not related so much to the interpretation of the agreement. It is an issue of public government. In our view, the bill is weak in the area of inspection and enforcement. We have put forward a number of proposed amendments to the Department of Indian and Northern Affairs with respect to these issues.
While we received some sympathetic response, we were told it was beyond the mandate of the department in developing this legislation. Our proposed amendments are set out in the appendix of our brief.
While clause 85 makes provisions for inspectors, the inspectors are to be appointed by the minister and there is no requirement for these inspectors to be qualified according to objective criteria. We would like to see the bill strengthened by having the bill appoint a chief inspector. The chief inspector would have certain qualifications, would be based in Nunavut and would have the power to appoint inspectors who would report to the chief inspector. This would create a more objective technical regime than the one that currently exists.
This is important because there is no mining act in Nunavut; the inspection of mines and other major projects is done through water licences. It is very important that the inspection and enforcement provisions in this bill reflect the important role of these inspectors.
I wish to thank the committee for this opportunity to make this presentation. We urge the committee to consider the changes that we have proposed. We believe that these changes will significantly strengthen the bill, make it more consistent with the Nunavut Land Claims Agreement and significantly enhance the regulatory regime in Nunavut.
Senator Spivak: I have a short question concerning the non-derogation clause. A non-derogation clause means that the treaty rights or existing rights of Aboriginal peoples under the Constitution remain intact, but it does not mean that the Inuit peoples or any other Aboriginal peoples are not, as citizens of Canada, subject to the laws of Canada. There are things that require environmental assessment and bulk water exports. There is still Bill C-6. Am I correct in that assumption? That is, nothing in what you are proposing as amendments or in what is contained in this bill impacts on those other obligations of Aboriginal peoples as citizens of Canada notwithstanding the fact that their Aboriginal rights should not be derogated from. What trumps what?
Mr. Merritt: I would not view it in terms of "what trumps what." To answer the question as to whether Inuit and other Aboriginal peoples are bound by all the other laws of general application outside the realm of Aboriginal treaty rights, the answer is yes; they are bound by the Criminal Code, the Aeronautics Act and so on.
We at NTI, and our colleagues from Nunavut are in a rather curious position. We believe that the appropriate wording of a non-derogation clause should follow the wording that Parliament adopted in 1982. We are in the curious position of arguing for the status quo which the Department of Justice unilaterally shifted not just in one but in a couple of different directions. There are now at least two variations of the clause. For us, that is ironic because these clauses are intended to give people security and predictability. When you start playing around with them, you create opportunities for people like me as well as other lawyers and judges to start reading all kinds of unhappy things into them. It is unfortunate that the department itself initiated the experiment for an alternate phrase of the non-derogation clause, a clause that was used from 1982-96.
Senator Spivak: I quite agree with you. It seems to me that the Akwesasne nations made some statement about the export of water that could come to a court decision. Nothing in the existing Aboriginal treaty rights would give the authority of an Aboriginal nation to do that, although, they seem to think they have the right to do it. You understand that such an action would be fraught with consequences not just for that territory under the Aboriginal First Nations but it would have an impact on the rest of Canada. That is what I am asking.
Mr. Merritt: You are asking a very good question. It is not one that NTI has turned its mind to. With that caveat, NTI in the past has never argued that the Inuit have rights under the land claims agreement that would allow them to export water off their lands wherever and however they want. That right is not stated to be in the agreement.
Senator Spivak: It is not in the agreement, but can you see it flowing from the Aboriginal treaty rights? You do not need to answer my question now but, if you have some thoughts on it, perhaps you could convey them in writing to our Chair. Given the jurisprudence here.
Mr. Merritt: Yes, a concern of that kind, legitimate in its own terms, does not require you to endorse the non-derogation wording that is in this bill.
Senator Spivak: No, I quite agree with that. I am suggesting that these are naughty issues and that there have been court cases that have gone in a certain direction because of these issues. If you have any jurisprudence or legal cases that you can draw our attention to, that would be helpful.
Senator Adams: I would like to ask a question of the water board chairman, Tom Kudloo. Tom was my neighbour when he lived in Baker Lake. He is living in Keewatin and that is why he is on the water board. In the meantime, Mr. Kudloo is talking about amending Bill C-33. We have a rule in the government. If we amend the bill in the House of Commons, it dies on the Order Paper. If we accept the amendment and the committee approves it, then the bill will go back to the House of Commons. Bill C-6 concerning the Northwest Territories Water Board is before another committee right now. If the bill died would things continue? If we passed the bill without amendment, if they had a chance to win the case, would the case go to court?
Mr. William A. Tilleman, Legal Counsel, Nunavut Water Board: If the bill were to die, the board would continue to operate the way it has in the past. It has article 13 that is in the land claims agreement.
That is the law and the board would continue.
Senator Adams: If the bill died would you go to court, and would you win the case? How do you feel about that? What would happen if you lost the case?
Mr. Tilleman: Well, sir, when we were before the House of Commons committee, we were asked our opinion of the case and whether it put the government in jeopardy by having a case concurrently before the Federal Court of Canada. I decided not to comment on the case, because it was brought forward by NTI. I did, however, on behalf of the water board, suggest that there is no ambiguity in the land claims agreement. There are several sections, even outside of article 13, that I can point to, and I am happy to do that if you want me to.
It seems that a good judgment move would be to hold the proclamation of section 56 in abeyance, perhaps for 18 months, to allow it to go through the federal courts. This is not new. I believe that the intent of the Yukon Environmental and Socio-economic Act is to proclaim certain sections early and then wait for a couple of years to proclaim the substantive sections later. The government should, in respect of section 56, withhold the proclamation, or effective date, until approximately June 1, 2003. In that way, there would be no jeopardy. It would be embarrassing to have the Federal Court agree with the position of NTI, who has filed a good claim, and the land claim is clear.
Senator Adams: That is my concern. If the bill is not passed, what will happen to the water board? I would like to see it remain.
Meanwhile, the board is conducting itself in Inuktituk, most of the time. That is what the bill states. Are there board hearings? Does the minister have to look at it, or how does it work now? Does the minister approve it, or do you approve it, as a board, after the hearings held in the communities?
Mr. Tilleman: The board conducts its hearings in the communities, as you stated. At least a part of the hearings is in Inuktituk. For future hearings, they will have less formal sessions to dispense with the formal rules and encourage local citizens to speak up. That is contemplated by the agreement.
The board has a distribution list that includes the territorial and federal governments. Usually, the federal government is present and the representatives are helpful. When the hearings are over, the board, within about 30 to 60 days, drafts a decision and sends the report to all of the parties. As a courtesy, it is my understanding that the board always sends a copy to the Minister of Indian and Northern Affairs.
Senator Adams: Have you received a response from the minister on that?
Mr. Tilleman: Sometimes that is true, and other times, after a few months, we do receive a response. My rough guess would be that, out of a dozen major hearings, about one-half of those have not been replied to.
The Chairman: I want to use the Chair's prerogative to ask a quick question of Ms Leslie or Mr. Merritt.
Senator Adams: I am sorry, but I was not finished. We are not quite satisfied with the bill today, and I do not know how long it has been before the House of Commons. I will be glad to hold it for another year, because there is concern about the other clauses.
The Chairman: Mr. Merritt or Ms Leslie, if the DIAND official has a right, in a two key approach or veto, would it be a compromise if DIAND only became involved were Nunavut to export water across a provincial boundary, or if the water were exported for sale internationally? If the government were to back off at that point, and the total decision-making was within Nunavut by the Nunavut people, would that be a suitable compromise?
Mr. Merritt: My colleague will respond to that as well. That is not something NTI has considered in the past. However, it seems to be a reasonable suggestion. Certainly, our focus in the past has been to ensure that the board has respect for its jurisdiction, as contemplated in the agreement for the Nunavut area. If we considered the realm of trans-border shipment, then we would accept that the federal government has a greater interest and role in such issues across the country. The suggestion you are making makes a lot of sense.
Ms Leslie: Just to restate what the DIAND officials said this morning, the bill already differentiates between major licence applications and minor ones. It is only the major licences that go to the minister. That distinction is made in the bill.
Mr. Phillippe di Pizzo, Executive Director, Nunavut Water Board: We agree with what NTI mentioned about matters dealing with national or international interests. We agree that the minister would have a role to play in either accepting or registering licences. We believe that the minister has no role to play for licences within Nunavut.
Senator Watt: Would that include the export of ice?
Mr. Tilleman: It does include fresh water ice, but not marine water. The committee should note that.
Earlier, Senator Spivak asked about any law or case that pertained to a change in Aboriginal rights if the issue left Nunavut, for example, the transportation of water south. The answer is clear, and it is in the land claims. In article 13, there is a section for inter-jurisdictional water management. It is clear that the water board does not have its own authority in those cases to deal with out-of-jurisdictional issues.
In those cases, the Government of Canada and the Territorial Government, assisted by the board, deal with inter-jurisdictional issues. That is why Mr. Merritt and Mr. di Pizzo said that, if the issue were of national interest, or outside Nunavut, the board has always been supportive of greater powers for the minister and for the Government of Canada.
Senator Cochrane: My question is for Mr. Kudloo. You have been operating since 1996.
You have brought forth quite a lot of dealings with water, and you have been successful over the past four and one-half years. Were you asked to have any input into this piece of legislation?
Mr. Kudloo: We have had some input. We were involved in November of 1996. Since then, we have been in the dark. We have had bear minimum involvement. We fully support NTI's submission.
Senator Cochrane: What about the town of Nunavut? Ms Leslie, have you been asked by DIAND to have some input before this legislation came forward?
Ms Leslie: Yes. The government of Nunavut has been involved throughout the entire consultation process. It was the government of Northwest Territories up until April 1, 1999, and then the Government of Nunavut. Yes, we have been involved throughout the entire time.
Senator Cochrane: Mr. Merritt?
Mr. Merritt: NTI has been involved in discussions since 1994. Perhaps even before the land claim agreement came into effect. We have had a number of meetings. NTI would not register any complaint about the number of meetings; it is the result of the meetings.
Senator Cochrane: Are you satisfied with any of those meetings that have gone on since 1992?
Mr. Merritt: We have had a lot of talk.
Senator Cochrane: Mr. Kudloo, would you say that your work has been impeded by the absence of the legislation?
Mr. Kudloo: Actually, even though we lack legislation, we have carried on our business according to the Nunavut Land Claims Agreement.
Senator Cochrane: There has been no question about what has happened or transpired?
Mr. di Pizzo: What has impeded the board is the ambiguity caused by DIAND's ambivalence on what to do with licences issued by the board. In some cases, the minister of DIAND has not indicated publicly what he thought about some licences, and he took several months to make a decision. Whether we agree with the division is another issue, but the minister, in some cases, never replied to a decision issued by the board.
For example, the board issued a licence for a mine that was part of a major project. That was in July 2001, a year and one-half ago. The licence was issued and sent to all parties, including the Minister of DIAND. To this day, the minister has not replied, either approving or rejecting the licence. During that time the company has been in limbo. We still maintain the minister has no role to play in the approval of the licence.
Senator Johnson: Conversely, how would the operation of the water board be affected by the passage of this legislation?
The Chairman: How is the bill of any help to you?
Mr. Tilleman: DIAND said earlier today that if there is a question about an administrative part of the power of the board, the board can look back at the Northwest Territories Waters Act. The land claim does say that the board operates on at least the same powers equivalent to those held by the Northwest Territories Water Act. We can look back through that act that is still in force and find those powers. How would the bill impede the operation of the board if it were passed?
Senator Johnson: How will you be affected? How will your operations be affected?
Mr. Tilleman: With ministerial approval authority, we would immediately be affected. I would suspect applicants would agree to apply to us, but if the minister makes the final decision, there would be an immediate conflict. That is already an issue in the town of Iqaluit.
Senator Johnson: That is your major issue with this legislation?
Mr. Tilleman: Yes. That is the way I see it.
Senator Johnson: Are you audited, and if so, by whom?
Mr. di Pizzo: The board acts as a quasi-judicial body. It follows the rules of procedural fairness and natural justice. All divisions of the board are made following a public hearing where evidence is presented before the board; it is essentially a lower court. All the decisions are recorded and the reasons are given to the applicant and all parties. The decisions are public. Any party has, under the federal law, the possibility of applying for judicial review after the board decision.
There is an open process and a process to appeal, or review the decision of the board.
We think that having the minister approve or reject a decision of the board is like having dying and coming back again. DIAND also appears as a witness before this board. Therefore, it gives the bureaucrats of DIAND a second chance to convince the minister. It is a public, open process.
In the area of finance management, we are audited. We follow general accounting practices and rules that other boards have to follow according to the Treasury Board of Canada guidelines.
Senator Johnson: What is the situation concerning the difficulties between your board and the municipality with regard to the water license?
Mr. Tilleman: There are actually two legal issues: One was a citizen's application for an injunction, and the second one was the judicial review brought by NTI. At the time the board was rehearing a case. The town had come back to the board and asked for some changes to several clause conditions. In the middle of that, the minister wrote in and said that he disagreed for different reasons.
The board was in the middle of a hearing; we know some one was going to court. A second one did go to court. As a result, the board wrote to all parties and asked what they should do. A few people wrote back. At the end of that, the board suspended its hearing pending the outcome of the federal court. The matter is before the federal court on a substantive point. Is the licence a licence or is it not? Is it a final decision or is it not? The board is now waiting for that decision of the court.
The Chairman: Several senators must leave at noon, but we want to ask more questions. Perhaps we can recess now and return in 45 minutes.
Senator Kenny: Chair, how are we supposed to organize things? The meeting was scheduled for a certain time. Some of us have other obligations after the IPU vote. This meeting has to end if other things are going on. How do we maintain a quorum?
The Chairman: I suggest the committee recess for 45 minutes. Five senators must attend the IPU meeting. We can continue after a lunch recess.
Senator Kenny: Chair, I suggest that, if you proceed, a motion should be passed that there be no votes of any sort to take place today. You need a group of senators sufficient to hear evidence that will be part of the record so that we do not waste the time of our witnesses who are here. Whatever they say will be part of the record and that will be available to us. We are going past the regular sitting time and some people cannot come back here.
The Chairman: Can we have a motion to recess for 45 minutes and that there will be no votes today?
Senator Kenny: I move a motion to that effect.
The Chairman: The motion is agreed?
Hon. Senators: Agreed.
The committee suspended.
The meeting reconvened.
Senator Christensen: I want to inquire on the elimination of clause 82(1)(m)(i), (ii) and (iii) and I am curious to know why you see that as an important deletion from the bill. It is a clause that provides for regulations to be made.
Looking at devolution down the road, I can see where it may be a source of revenue for the territorial or provincial governments. As it will be in regulations, do you not think there could be some interpretation in those regulations if it were Inuit persons or a community asking for a licence? Certainly there could be a provision where those fees would be waived. If a mining company or whatever was applying for permission to get a water licence on that land, then they should be required to pay a fee. What is your thinking on that?
Mr. Merritt: It would be wrong to conclude that NTI would take the view that, anyone who wanted to make use of those waters, would have some kind of lead to go on and take the waters without making some kind of compensation to the Inuit. In relation to mineral developers, where Inuit only own the surface title, there are provisions in the land claim agreement that says that those developers can get access to the minerals subject to the payment of compensation for access. So there is a fee regime set out in the land claim agreement.
With respect to areas where Inuit own both the surface and subsurface, or where someone might want to make commercial use of waters unrelated to mining, NTI would take the view that it is up to the Inuit land owners to negotiate whatever compensation regime they choose. That is the free market; determining what the level of compensation would be and what the fee might be.
From our perspective, that is consistent with two things. It is consistent with the idea that Inuit own land for the purpose of promoting their own economic development. If there is some kind of economic rent to be obtained through the ownership of that land that is an issue to be negotiated between the Inuit land holder and whoever wants access to it.
The agreement is quite clear. We talked earlier about the nature of the wording that says Inuit have the exclusive right to the water, which reinforces the rights they have as land holders in any event. We do not see that there is room for DIAND to come into the picture and expect a share of the economic value. We do not see that they should be allowed to impose a fee if the Inuit decide to sell water to adjacent communities; it is Inuit land and they have the exclusive rights to the water.
Senator Christensen: Do you see that the devolution process would be of benefit to the territorial government? Would you have it prescribed in some other type of legislation?
Mr. Merritt: I should point out that the provision in this bill is not purporting to be a taxing provision. If people make fabulous amounts of money on corporate ventures that are on Inuit owned land, and there is income tax to be paid then the entrepreneurs will pay income tax. This is not a tax measure. This is DIAND trying to collect a share of the economic rent of that resource.
Senator Christensen: If it were the Government of Nunavut, they would then be collecting it.
Mr. Merritt: Yes. That measure was undoubtedly put in the bill to reflect what the Crown wants to be able to do on development on Crown lands. For 80 per cent of the land in Nunavut that is Crown land, we have no objection; that makes sense. The owner, the department administering the lands on behalf of the Crown and the people of Canada, needs the discretion to collect the fee to go back to the people. In so far as 80 per cent of the Crown lands were devolved to Nunavut, the Nunavut government would play that role.
We are saying that Inuit owned lands have entered the realm of private ownership. So this kind of idea that you are still the landlord after you have already agreed to give away the title is not on any more. You cannot say the Inuit own it and then have all the perks that come from ownership. It is a fundamental backing down on the substance of the commitments and promises made in the land claims agreement.
Senator Christensen: There are provisions elsewhere for water use. If you are discharging it, there is a requirement for the cleaning up of the water and for securities to be in place that is over and above the fee.
Mr. Merritt: That is correct. NTI is not saying that somehow Inuit owned land should be some regulation free zone and Inuit can make any use of the water they want. The land claim agreement was a compromise whereby Inuit agreed to use the same public institutions for management purposes.
Senator Christensen: You are talking about an application fee.
Mr. Merritt: Yes. An application on Inuit owned lands would have to go through the same regulatory regime.
The Chairman: Water is as critical in the West as it is up North. For the early westerners, everyone had a right to water. The worst thing you could do was to try to fence off a water hole or a creek; everyone had a right to water. That is a carry-over from the pioneer age.
We have just finished hearings on water; one of our senators put up a bill, we passed it and sent it back to move it into the Food and Drugs Act so that the federal government can regulate the water for its purity and so on.
In the evidence we have heard, there were a few complaints about the pioneer attitude that water belonged to everyone. Some people feel that it is time that attitude be junked and water should be paid for. It should be delivered at least for cost, to the people. It is not free for the taking to anyone who puts a hose into a lake or stream and takes any amount that is wanted.
How do you equate the modern value that water is a valuable commodity that should carry a fee, and the pioneering attitude that God put water there for all of us to use freely?
Mr. Merritt: Mr. Chair, your point may well explain how this reasoning came to be embodied in the bill. Perhaps it followed through on some precedent struck in legislation that dealt with opening up land for settlement on the Prairies.
In some parts of the country, fee simple titles reserve out the access to water. As you point out, that pattern first existed in parts of the country where water was in very short supply. Community projects were often begun to insure everyone had some access, whether building dams or distribution systems.
In parts of the country that are well watered, the same precedent does not exist. Ontario farmers do not pay fees to the Ontario government every time they dip a bucket in a well on the back pasture. That is not an incident of their fee simple title.
Nunavut is not short of water. Some 30 per cent to 50 per cent of the surface area is water. We are not looking at the kind of legal history associated with dry parts of country where agriculture really depends on a high level of community interaction in order to function.
Notwithstanding that part of our history, the Nunavut Land Claims Agreement prevails in these circumstances and that agreement has no reservation that says that, notwithstanding Inuit rights, the Crown reserves rights to collect fees. The land claim agreement is quite explicit in the other direction. It says Inuit have the exclusive right to make use of the waters. From our perspective, that is as clear as the English language can make it.
The Chairman: Is there any possibility there is a mix-up between fees for licensing, to put money in one's pocket, versus fees to cover the cost?
Mr. Merritt: That point came up at the Commons committee. The response is the same here. The Crown is attempting to reserve the ability to collect fees for the mere use, not for the supply. Where Inuit own land in communities, either through the Land Claims Agreement or just as private individuals, communities can charge fees if they choose. That is a policy call from the Government of Nunavut. If there is to be a water fee imposed for the delivery of municipal water, that is an issue completely outside the Land Claims Agreement and this bill does not speak to that.
Senator Sibbeston: I was going to make a point about the water board and why the federal government and federal minister would, in some cases, have a say in the matter. The North at one time was totally controlled by the federal government. We have a long history of struggle for responsible government. We have advanced to the stage now where we have responsible government in the N.W.T.; Yukon is somewhat advanced and Nunavut now, since its creation, is allowing the Inuit people to decide things for ourselves.
This legislation purports to let the federal minister have the final say on some matters. To me, that still smacks of colonialism. One could interpret this as saying that the people in the North are not educated, not smart enough, not experienced enough to make decisions; that we must have someone in Ottawa, in the federal government, to look over the decisions that are made. If the wrong decision is made, then the federal government can intercede and trump that decision.
That is a matter of control. People in the North want to be self-determining. I am sensitive to the views expressed by the witnesses here when they say they do not want the federal government to have that veto.
This concerns me. I want to ask the chairman of the water board how he really feels. He mentioned the elders and the pride they take in being able to make these decisions. Does he feel that, in all matters that may arise before the water board, the board will be in a good position, with advisers where necessary, to make correct decisions with respect to water matters in the North?
Mr. Kudloo: That is why we have public hearings. We base all our decisions on the evidence that we hear from the experts. We turn to the elders as environmentally friendly experts; they have been around for the longest time. We have a time-honoured tradition concerning our elders and their advice for the community. For that reason, we hear evidence from the applicant, the interveners, and we give very special treatment to the elders, especially for their traditional ecological knowledge. We combine their knowledge with modern Western science. In other words, we are attempting to get the best of both worlds by combining them. Does legal counsel wish to add anything?
Mr. Tilleman: To the extent that the question asks why the board would defer to a minister for matters that go outside the boundaries of Nunavut when it should have the final approval authority, the answer is actually in the agreement itself. It was negotiated in article 12 and in article 13. If there is an inter-jurisdictional issue, the water board does not go it alone. The other governments must be involved if an issue leaves the boundaries.
Senator Sibbeston: Are people smart enough and mature enough to make their own decisions without relying on the federal government to make what would ultimately be a different decision? That is a question. That is what this is about. This legislation purports to put the final decision in some matters in the hands of the federal minister and the federal government. I am asking you, people of the North, are you able to make those decisions yourself? Do you need the federal government in Ottawa to look over your shoulders to see whether you are making being the right decisions? That is a question that people like the chairman need to ask.
The Chairman: I think you are trying to start a riot here. They said they wanted as much autonomy as possible. I do not think anything is gained by asking whether they want autonomy to make their own decisions. The answer is very clear. We have had the Mining Association waiting since 11:30, so we should finish with these witnesses soon.
Senator Banks: I apologize that I had to leave the meeting earlier. If I am asking questions that have already been asked, please tell me. I am asking instruction from Mr. Merritt.
If my family and I own a piece of land through which a river runs, there are constraints on what I may do with that water.
The Chairman: Senator Banks, if I may, that question has been answered in good detail.
Senator Banks: Thank you. What is the difference between the fact that the government constrains us from removing water, particularly for commercial purposes, from that river, and removing water to bottle and sell it? Do you contemplate that?
Mr. Merritt: No, as far as I know, there are no active commercial proposals to bottle water. Bottled water is currently available. There are no new NTI-sponsored projects, but I use that as a theoretical example. If there is money to be made in such a venture, and if it is duly licensed by the regulating authority to indicate it's compliance with conservation, and if it is on Inuit land, then the Inuit should have the advantage of that economic opportunity.
One of the fundamental objectives of the agreement was to supply Inuit with economic development opportunities. To handcuff them by imposing fees that go somewhere else is not consistent with that objective.
Senator Banks: Mr. Merritt, I cannot do that in Alberta, on land that I own.
The Chairman: That is a different set-up, Senator Banks. We inherited our system in the Southern Prairies from the U.S., where you were not allowed to fence off a spring or other such body of water.
Senator Banks: I am not talking about tradition, but I am talking about current laws.
The Chairman: That is how laws are built.
Senator Banks: Thank you.
Senator Johnson: I spoke with my party on this bill and about the need for a review of the minister's powers after five years. However, after listening to you, I understand that you have already looked at the issue of devolution and taking over the responsibility from DIAND. How far along are you are on this issue? Do you agree that this process should be removed from the ministerial realm, or at least reviewed after a certain period of time?
Ms Leslie: Our present position is that the minister's role should remain in the legislation subject to the amendments, and perhaps, additional restrictions such as those proposed by NTI should be included as well. I do not think we would object to a review of that issue. Concerning having this role performed by a federal minister, it is our position that, with devolution and our discussions on devolution that are still preliminary, we are hopeful that we can move quickly so that this responsibility will be exercised by a responsible minister in the North. Thus, the decision-making would be there, and would be done jointly with the water board. That is our expectation.
Senator Johnson: That is how you would frame it and work towards it?
Senator Watt: I want to ensure that it is understood that devolution can be subject to the interpretation of how to devolve the powers, where to devolve the powers to, and when to devolve the powers. You are talking about devolution to the Nunavut Government, which means to the public government. The public government would then be the authority with the powers that should be shared with the NTI. One of the reasons the NTI exists is to protect the interests of the Inuit and the rights that they have obtained. The NTI is what you would call a "successor" of those rights, and the responsibility of the NTI is to protect the interests of the people. The interests and the protection of the people are not within the Nunavut Government, but rather they are within the NTI. There will always be conflict between the two, and that is normal. Eventually, the NTI and the Nunavut may choose to negotiate to rectify some of the problems that have arisen in the land claims agreement. Many things are subject to the interpretation.
Do not look down the road for devolution to give you the answers to the problems that you face right now. That is not the case. They are trying to protect the rights they have now, because they have extinguished their other rights. I just want to ensure that is clearly understood that there are two instruments.
I would like Mr. Merritt to give us an expanded explanation of the clear interpretation that he was asking about. That clear interpretation will help on the implementation side, if it can be tied in to the non-derogation clause. They are having many problems. Can you explain how those two are connected? That would help us to have a clear understanding. I do not want that area to be left out.
Mr. Merritt: You are referring to the first suggested amendment that we put forward, which involves adopting a positive interpretation version. For your reference, you have the wording, which is short, in your written version of the brief.
Our motivation is to try to put the implementation of a land claims agreement forward on a positive basis. We want to have expressions from parliament that the active implementation of land claims agreements, and other treaties, is something that should be seen as the responsibility of all those public officials who carry out the work under pieces of legislation such as this. These Aboriginal treaty rights should not be hidden away somewhere and the worry of a few people in the legal department. Otherwise, everyone else engaged in the administration of the resource can discount them and forget about them.
Instead of living in a world that is all about what we are not trying to do, we have challenged you to look at a provision that would put implementation of the agreement forward as something that is the on-going responsibility of not just the law makers, but of the administrators of the law. For example, the language we have given you talks about laws being administered to respect and actively implement our land claims agreement, not just it's interpretation, which is usually an issue reserved for the courts.
This provision would be a good reminder and would be an active incentive for all those engaged in the administration of this law to take the land claims agreement to heart and do what is necessary to ensure that its obligations are fulfilled.
We know from case law that the courts put a high premium on what they describe as "fiduciary duty and the honour the Crown. " The honour of the Crown is not something that is delivered on a day-to-day basis just by parliament, however much respect we have for that institution. It also has to be delivered across the counter at government offices and anywhere that Inuit have to deal with the representatives of the Government of Canada.
The Chairman: Thank you. We appreciate the information that you have provided.
I left something out earlier. Native agreement takes precedence over this. That is why there is a difference in attitudes towards water. The Aboriginals were given water rights. If you recall, they tried to divert the Pelly River. The natives argued that they had the rights over all the water. That still has not been settled. We argued that no non-Aboriginal could do that.
Thank you for coming out, Mining Association of Canada. You may give a short resume because this is being taped.
Mr. Pierre Gratton, Vice President, Public Affairs and Communications, Mining Association of Canada: On behalf of the Northwest Territories and Nunavut Chamber of Mines, I would like to thank the committee for inviting us to share our views regarding this legislation. I am Pierre Gratton, vice-president of public affairs and communication of the Mining Association of Canada. On my left is Michael Hardin who is general counsel and general secretary of Ashton Mining of Canada Inc. His company has been actively involved in natural resources and environmental issues in the North. Mr. Hardin has been involved in such issues since 1973. He is a member of the Nunavut, N.W.T. and B.C. Law Societies. He has spent twenty years practising law in support of mine companies that mine and explore in the North. He is one of the first members of the technical advisory committee of the water board. He co-authored a book entitled Mineral Exploration and Mine Development in Nunavut. As you can tell he has many credentials and much expertise in this area.
I wish to convey the regrets of Mike Hine who appeared with us before the Commons committee on this bill.
We have submitted a written brief with recommendations for your consideration. We will speak broadly to those issues and make some general comments. My colleague then will speak to some more specific issues.
The brief is largely identical to the one that we submitted to the House of Commons. Bill C-3 was amended in the House incorporating one of the six amendments that we put forward, so we now give you five proposed amendments.
As our proposed amendments indicate, we have some concerns with the legislation. We are here first and foremost to underscore the urgent need for regulatory framework governing water and surface rights in Nunavut.
The mining and exploration industry contributed about $130 million to the territories gross domestic product in 1999, making it by far the largest wealth creating industry in Nunavut. The territory holds significant potential for future mineral production with promising exploration under way in diamonds and precious and base metals.
There is little doubt that mining will remain for the foreseeable feature the most significant source of wealth for Nunavut, which is essential to the territory's growth and in economic self-sufficiency and future devolution. Unfortunately, these opportunities have been put at serious risk by the lack of regulatory regime governing water management. On this issue, we take a very different view. We feel that the uncertainty created over the last few years in the absence of a regulatory regime for water management is placing considerable uncertainty and deterring economic growth, in our view.
The Chairman: Mr. Gratton, we are working against a short time line, so if you could move right to your specific comments on the legislation, which is on page 6 of your brief. We have a good history.
Mr. Gratton: We can speak to those issues. I felt it was vitally important to underscore the need for this legislation.
Mr. Michael Hardin, General Counsel and Corporate Secretary, Mining Association of Canada: I would like it speak to three issues. It is important to add to the committee's body of information about the absence of legislation and the uncertainty it creates. Elegant and refined legal arguments may be very inviting to lawyers, but what really matters is the readiness of the mineral exploration and mine development community to invest exploration dollars in Nunavut against competition with many other parts of Canada, and indeed, many other parts of the world.
Remember that from 1972-96, regulatory certainty in relation to water use and waste disposal did exist in Nunavut: first under virtue of the waters act, and from 1993-96, by virtue of the Northwest Territories Waters Act.
The situation from a legal and business point of view that we faced in the succeeding five years is totally anomalous. It is unprecedented in my experience that something as vital as water use and waste disposal should be level in a regulatory vacuum.
It was never the intention of article 13 of the Nunavut Land Claims Agreement to substitute itself for the Northwest Territories Waters Act or now the Nunavut Waters Act. It creates uncertainty in the minds of lenders. If we were faced with a major mine development in Nunavut on the scale of an Ekati Mine, Diavik Project or even something as humble as a Jericho Diamond Mine, who knows whether lenders would be willing to advance the funds necessary to support such an enterprise against counsel's opinion, which I think would be forthcoming; significant regulatory uncertainty exists as a result of the absence of this legislation. That is really what matters.
We are all here to ensure that the underlying objectives of the Nunavut Land Claims Agreement to promote economic development and self-sufficiency for the resident's of the territory. It would be a serious matter if mineral exploration and mine development were impaired by the absence of this legislation.
I would like to offer a few comments on clause 56. Let me start by saying that I am not here to give you yet another legal opinion on the proper interpretation to be given to the Nunavut Land Claims Agreement. Instead, I would like to tell you how it feels to be on the receiving end of a water license and what significance we attach to clause 56 and the final review power that the minister has.
Let us be clear about the nature of that power. The minister does not have the power to amend a water license under clause 56. The minister can do one of two things: He may accept the licence and approve it within the 45-day or the 95-day time period, or the minister can reject the licence. If the minister rejects the licence, the minister has to send written reasons back to the Nunavut Water Board. The water board, not the minister, has the final say over the terms and conditions that the water license ultimately incorporates. It is not an amending power or a second look in that sense. It is a "yes" or "no." That is the nature of the ministerial power under clause 56.
To see the issue in context, we need to also ask ourselves, what is a water license? Is it something like a fishing license or driver's licence that you can stick in your wallet, or it something like a business license that we commonly frame and put on the wall of our office? Is it something like a one page license to practice law? Absolutely not.
Water licences are extremely complex, detailed, and highly involved documents. By way of example, the water license for the Ekati mine in the Northwest Territories and water licence for the Diavik Project in the Northwest Territories run to some 50 pages. They cover the use of water, the disposal of waste, the conduct of scientific studies, the extensive requirements for the reporting of a very wide range of data and results to government officials, and many other matters.
Under this legislation, like the N.W.T legislation and the Yukon legislation, each and every provision of the 50-page water license is enforceable in the criminal courts. This is a change. Up until 1993, under the previous regime, a licensee could only be prosecuted for doing two things: He could be prosecuted for using water outside the terms and conditions of the licence, or disposing of waste. Any other violation of the licence gave the board as its remedy the cancellation of a licence after the calling of a public hearing, and with ministerial approval, not unlike with legislation before you today.
This is a very important concern for a licensee. The licensee is concerned about the process by which these license terms and conditions are developed. I could say a lot more about that process but the bottom line is this: From the point of view of the licensee, the concept of ministerial oversight provides yet another level of assurance that when these complex negotiated documents are enforced with their criminal law enforcement powers, they will get the right answer.
The ministerial power is a helpful mechanism to assist the water board to resolve the controversies that will always arise in relation to massive resource developments of the kind that we are seeing at the present time in the Northwest Territories.
Our views on this are this no way meant to challenge or to be disrespectful of the solemn obligations of Canada under the Nunavut Land Claims Agreement.
We are not here to express a legal opinion on whether or not clause 56 is or is not consistent with the Nunavut Land Claims Agreement. However, it is important to see this from the perspective of the entities, the corporations, or even the individuals who ultimately will be subject to the terms and conditions of licences. We are comforted in our view of this by clause 9 of the legislation which, as you have heard on a number of occasions today, provides for devolution of the ministerial approval power to the government of Nunavut in due course. We think this provision clearly acknowledges the need to ensure that authority for significant decisions affecting resource utilization in Nunavut ultimately rests at a local level.
However, remembering the legal nature of a water licence and the very wide range of conditions which the board is entitled to impose on a water licence, we do not find it surprising that an elected official such as a minister, as distinguished from appointed officials such as the water board, should have a limited oversight authority or power as contemplated by clause 56.
We were heartened to see that the House of Commons has endorsed the very useful amendment proposed by the government of Nunavut.
The Chairman: Sorry, which amendment?
Mr. Hardin: The clause 56 amendment to provide for the 45-day time limit, which the bill lacked previously.
The Chairman: In your brief you said "recommended amendments."
Mr. Hardin: That is the third thing I want to speak to. We think a proper balance has been struck by amending clause 56 to provide for the 45-day time limit.
Mr. Gratton: Mr. Chairman, there were two amendments made by the House of Commons committee. One established a 45-day limit, subject to an extension of another 45 days, on the time that a minister has to decide whether to say "yes" or "no" to a recommendation from the water board. We did not have that in our brief but we publicly supported it before the Commons committee last month.
The second amendment we had put forward, which was adopted, was an additional 15 days, making it 45 days that a proponent has to determine whether or not to appeal a decision of the water board. It was initially 30 days and we felt that an additional 15 days was required, given the magnitude of this kind of decision on whether or not to proceed to appeal. It requires more time than 30 days, particularly in some cases where you are dealing with more than one company that might own a property. That was accepted. Those were the two amendments that were made, one of which we advocated and one of which we publicly supported even though it was not referenced in our brief.
Senator Cochrane: I do not think we will have enough time to receive all the information from the witnesses that we would like to because the bells are ringing. We have to be in the chamber in five minutes.
As I understand it, there is significant mining taking place at the present time in Nunavut. Indeed, Minister Nault has referred to the "mining boom" taking place in Nunavut. Did he not?
The Chairman: I think he was referring to the territories. That is where the diamond mines are.
Senator Watt: It is the other half of the territory.
Senator Cochrane: Mr. Gratton, you told the House of Commons committee that the mining and exploration industry is and will remain the largest wealth creating industry in Nunavut. Is that correct?
Mr. Gratton: Yes.
Senator Cochrane: You did say that. Could you explain for me in the context of those comments how current mining and exploration has been impeded by the absence of a water management statute?
Mr. Gratton: Michael may want to add to this too, given that you represent a company that is exploring in Nunavut. We have been operating since 1999 without a water management statute. There are three major mines already operating, two of which are scheduled to close next year, which will have a significant impact on government revenues, I might add. Those three are what make the mining industry the largest industrial source of revenue in the territories. Whether we will be able to say that in a few years time because they will not have been replaced is an open question.
Mining and exploration companies, you will just have it take our word for it, are uneasy by the lack of a regulatory framework. There is uncertainty out there. That is a deterrent to future exploration and mining development.
Mr. Hardin: The crunch lies in going to the lenders and asking them to give $1 billion to develop a new mine. Lenders will turn to counsel and say, "I want a legal opinion that all permits and licences that are necessary for the operation of this property are duly valid and enforceable according to their terms."
My respectful submission at this point in time is that counsel would have grave difficulty giving such an assurance in relation to a water licence issued by the Nunavut Water Board pursuant to article 13.
That does not in any way cast aspersions upon the very valuable work that the Nunavut Water Board has done in boot strapping itself for the five-year period since 1996. We do have order but, with the greatest of respect, it is a bit of a make-believe world when compared with the regulatory certainty that we had for the last 25 years, from 1972-96, under the previous legislation. It is an anomalous situation.
Even that regulatory uncertainty can cast a chill on the willingness of investors to expend high-risk dollars, knowing that ultimately an interest group, perhaps even a competitor or someone else may challenge the validity of a water licence. A water licence is absolutely essential to any form of mine development, indeed even advanced exploration.
The Chairman: In other words, you want to have the laws in black and white so that you know what you can do.
Mr. Hardin: This is the world in which we have lived from 1974 onwards. You can imagine how the industry feels when they wake up and find there is no law.
Senator Johnson: That is very interesting. I was not up to speed in regard to the regulatory nature of your industry. What is the potential for economic development through mining in the North, in your view, and how would it impact on Nunavut in terms of jobs, social health and even the environment? It is a broad question. I am very interested to know if you have anything to add to the record about that.
Mr. Hardin: It would be better if my vice-president of exploration were here to talk in more specific terms. I have been a student of the process and involved in the process in various guises, first on governmental and then the corporate side, since June 1973. It is widely accepted and universally agreed that mining is likely to be the only economic activity of a commercial nature that we will see in Nunavut in the foreseeable future.
Oil and gas is somewhere out there, but mining has been, and is the most likely industry to provide the basis for economic growth and prosperity in the territories. Geologically, in Canada, we are having to rewrite the book. Ten to 12 years ago, no one thought that we would ever enjoy diamond mining in this country. We now have the capacity to produce 10 per cent to 15 per cent of the world's gem quality stones by virtue of the Ekati mine and the Diavik project, which is scheduled to come into production in 2003.
Since January 2000, a series of companies, and I am proud to include Ashton Mining of Canada Inc. among those, have discovered a very encouraging group of kimberlites at the north end of the Slave craton, which is the geological structure that hosts the Ekati mine and the Diavik mine.
Senator Johnson: What is that called?
Mr. Hardin: The Slave craton. It is the ancient rocks in which diamonds are found. It is early days, but the initial results that have been produced thus far rank the new kimberlites as being in the same general ballpark as the initial discoveries made in the Northwest Territories that have subsequently lead to the development of Ekati and Diavik.
The Chairman: I am sorry to cut you short, Senator Johnson, but the bell has gone. I am afraid that is it.
Mr. Gratton: The point is that there is potential for diamonds in Nunavut as well.
The Chairman: Anything we do from now on is illegal, so we must adjourn.
The committee adjourned.