Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 4 - Evidence
OTTAWA, Tuesday, April 28, 1998
The Standing Senate Committee on Aboriginal Affairs met this day at 10:11 a.m. to give consideration to Bill C-6, to provide for an integrated system of land and water management in the Mackenzie Valley, to establish certain boards for that purpose and to make consequential amendments to other Acts.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Our first witness is Mr. Dunlop, from the Department of Indian Affairs and Northern Development. The floor is yours, Mr. Dunlop.
Mr. Will Dunlop, Director, Resource Policy and Transfers Directorate, Department of Indian Affairs and Northern Development: Please allow me to introduce the witnesses appearing on behalf of DINDA. Suzanne Grenier is the Justice Canada lawyer who guides the legislative development of this bill. Margaret Gray and Jacques Denault are the two policy specialists who crafted many of the provisions of the bill.
The Gwich'in Comprehensive Land Claim Agreement and the Sahtu Dene and Metis Comprehensive Land Claim Agreement were ratified by Parliament in December 1992 and July 1994, respectively. These agreements, which create modern aboriginal rights and which are afforded protection under the Constitution, oblige Canada to legislate the resource management provisions of the chapters on land and water regulation.
Bill C-6 is the culmination of a long and challenging process of innovation. The department was granted permission to use drafts of the bill itself as a tool of consultation and involvement. Since 1993, 35 drafts of this bill have been used in workshops, public meetings, mail-outs, discussion groups, and drafting sessions. We met with industry representatives, environmental groups and First Nations to discuss this bill.
The actual development of the bill involved a four-party working group made up of our department, the Gwich'in Tribal Council, the Sahtu Secretariat, and the Government of the Northwest Territories. At times, we also included staff from the Dogrib First Nation and other federal and territorial departments. We also profited from the innovative and detailed involvement of the legislative drafters from the Department of Justice, who offered us imaginative and energetic support.
Bill C-6 is the culmination of all of that work. The proposed Mackenzie Valley Resource Management Act will create an integrated co-management regime. As such, this bill demonstrates our commitment to the departmental sustainable development strategy tabled by our minister in the House of Commons before Christmas.
The bill treats the whole Mackenzie Valley as one ecological unit. The bill creates three institutions of public government which will regulate land and water uses, which will prepare regional land use plans, and which will conduct the environmental assessment of development projects.
Each of these institutions will have a role in the management of land and water. This co-management approach is in keeping with the federal policy guide on aboriginal self-government.
The board will be made up of nominees from the Gwich'in, the Sahtu, and other First Nations groups, as well as from the territorial and federal governments. The board membership will be 50 per cent from the First Nations, and 50 per cent from the two governments. All appointments will be made by the Minister of Indian and Northern Affairs. Each board will receive its budget from the federal minister, will submit its annual report to the minister, and is subject to audits by the Auditor General.
Land use plans require the final approval of the minister. The Environmental Impact Review Board makes its recommendations to a federal minister. The larger, type "A" water licences require the minister's approval, and the Land and Water Board can receive general policy direction from the minister.
The existing NWT Water Act is preserved, and the present territorial land use regulations are the model for the Mackenzie Valley land use regulations. The inspectors will be the same.
In turn, this resource management regime signals a diminution in the role of our department. While the role of the present NWT Water Board will be absorbed by the new Land and Water Board, our department's role in land use permitting will cease, and our role in coordinating and conducting environmental assessments will be taken over by the new environmental board.
This strengthening of the partnership with the First Nations signals a concrete commitment to "Gathering Strength - Canada's Aboriginal Action Plan".
The bill does not threaten aboriginal and treaty rights, and it does not threaten the Indian Act. It avoids duplication. It provides certainty with a familiar regime, and provides for the devolution to the north. The bill provides northerners with a true voice in the management of their natural resources. Finally, this bill demonstrates Canada's commitment to implementing land claims.
We thank the committee for the opportunity to assist in your deliberations.
Senator St. Germain: Before I begin questioning today, I would state my support for both the principle and the concept of aboriginal self-government. One of the main reasons that I am on the committee is because of the commitment of our chairman to the development of a process and of legislation that will eventually allow Canada's aboriginal people to fulfil their dream of self-government.
Having said this, I find it somewhat difficult to support the type of structure which Bill C-6 attempts to put into place. Why would you not establish a simple forum to deal with the environment, planning, and water? Why not have one body, as opposed to all these various bureaucracies, with one secretariat and one representative from all of those concerned, including our aboriginal peoples and the business interests that may be affected? Would you consider that alternative in order to simplify things?
Mr. Dunlop: I am not sure that it would simplify things. I think the short answer is that that is not the way that the land claims were negotiated. Canada's obligation is to implement Chapter 24 of the Gwich'in land claim and Chapter 25 of the Sahtu land claim. These chapters are almost identical, and they call for three different boards. The boards are integrated, in that each has a role in the functioning of the others. I am not sure that a "super board" would be less complicated.
The Land Use Planning Board will be involved in the land use planning, and they will signal conformity to land applicants who come before the Land and Water Board. The Land and Water Board will regulate.
Today, our department issues land use permits. The NWT Water Board issues licences. Tomorrow, when this system is put in place, the Land and Water Board will do both. We are collapsing two different processes into one board.
Today, our department is responsible for the environmental assessment of the larger development projects under the Canadian Environmental Assessment Act. We withdraw from the picture when the Environmental Impact Review Board comes into being. We are not loading on layers. We are replacing ourselves, in some cases directly, and we are amalgamating two functions in the Land and Water Board.
Senator St. Germain: If this was negotiated in the land claims settlement, I imagine it will be tough to vary from the basic agreements. However, it does seem that we are establishing an onerous bureaucracy in the north.
The bill does not stipulate any qualification requirements for those who would be members of these boards. There is no way we can measure the competence of someone to be a member of these boards. Why was this done in this way? Is this a deficiency in the bill?
We could end up with patronage appointments, as opposed to ones based on competence. I am sure that all have you have travelled up north, as I have, and you know that a different world exists up there. Partisanship does not come into play; it is more important to have competent people who are interested in the land, as opposed to people who will get involved in Ottawa's political dealings.
Mr. Dunlop: When the land claims were negotiated, the topic of discussion was whether or not criteria would be negotiated into the claim. It was not about whom the land claim beneficiaries might nominate. The land claim groups suggested that it was not appropriate that criteria be put forward by a land claim group that would best be put forward by a member of the board. It comes down to two things. It comes down to competence, as you mentioned, and it comes down to confidence. Do we have confidence in members in the names being put forward?
I can tell you that both our department and the territorial government have published notices in newspapers, seeking interested people who wanted to be members of the board. Our minister is looking for northerners, as was his predecessor. That is all I can tell you. We want to have people on the boards in whom we can have confidence; people who know something about land and water.
There is a fair amount of interest in the memberships of the boards. I think it has become pretty obvious that these are going to be working boards. The members will have lots of work to do, and they are going to be expected to work hard.
Senator St. Germain: This is a very sensitive issue. The bill deals with the lands of the Gwich'in people, the Dene, and the Metis of the Sahtu regions. They have concluded their land claims agreement with the federal government.
The bill also includes the land of the Deh Cho First Nations, the Dogrib people, the Treaty 8, and the Inuvialuit. I believe that these other groups are going to appear before this committee and object to the bill. How can we justify putting the structures in place under the bill into play over these people's objections? They strongly believe that this possibly will compromise their ability to negotiate the proper settlements that they are seeking in their deliberations. Are we not causing unnecessary havoc?
Mr. Dunlop: I do not think that we are causing havoc. If anything, we are signalling Canada's commitment to co-management as an approach to settling the claims. When the 1990 agreement in principle with the Northwest Territories Dene and Metis failed, it failed because of the extinguishment clause in the land claim.
The Gwich'in and Sahtu people wanted to continue negotiations, and they entered into regional land claim talks with the government. The other groups are coming in knowing that we are willing to negotiate based on that 1990 agreement.
The land and water regulation features of this bill are the features taken from that 1990 agreement. This is not something new. This is not something being imposed. It is only what was negotiated in 1990.
Canada is signalling that, rather than having levels of land and water regimes in the Mackenzie Valley, there is going to be one integrated regime, and we will enter into that regime. That regime will be divided, with 50 per cent being shared by government, and 50 per cent share between native people.
Today, the people of the South Mackenzie, the Treaty 8, and the Treaty 11, are consulted about land use applications. They are consulted about water licences. They do not participate in the system, however, and they do not have a role in the system. They are not part of the decision-making process. Is it an imposition to invite them to the boards which, in advance of a land claims settlement, will make the decisions on all Crown and private lands? I do not think that it is an imposition at all. I think it is a gesture of welcome, of true participation and real co-management.
With Treaty 8 and with Treaty 11, there is no question that we dispute what the treaties meant. The early stages of negotiations are underway with the Treaty 8 Akaitcho people of Fort Smith. Negotiations have also begun with the Metis of the South Slave around the Fort Smith, Alberta region, and with the Dogrib Treaty 11 Tribal Council in the North Slave Region outside of Yellowknife.
We are not presently negotiating with the Deh Cho. We have grave difficulties getting to the table, or even in finding common ground or principles. An interlocutor, Professor Peter Russell, is having discussions with the Deh Cho in order to see if there is any common ground for negotiations. That is the state of affairs.
Senator St. Germain: Will the Treaty 8, Treaty 11, or Dogrib groups participate on any of these boards? Are they eligible for appointment to these particular boards?
Mr. Dunlop: They are eligible for appointment to two of the boards. The other place amended clause 112 in Part 5, which deals with the Mackenzie Valley Environmental Impact Review Board, to legislate a floor for membership, rather than a ceiling. Our goal is to have representation on that board from each of the Mackenzie regions, from the South Slave, the North Slave, and from the Deh Cho region.
The second board is the Mackenzie Valley Water Board. We want representation from those same regions. We want them at the table, and we want them making decisions about land and water regulations. In the bill, the Governor in Council, with the recommendation of the minister, has the ability to create a land and water panel in each of those three regions. Instead of a larger board making the decisions, the regional boards would be making them.
If the Deh Cho want a land and water panel in their region, for example, they will get one. They will nominate 50 per cent of the board. They will not have one seat; they will have half of the seats.
Senator St. Germain: Why they are so vehemently opposed to it? Do they see an overlap situation in the negotiations, or is this something totally different?
Mr. Dunlop: I do not think that they want to revisit the 1990 agreement in principle. Obviously, the dispute over what Treaty 8 means still endures. In my opinion they want to start their own negotiations, but I am sure that they could provide a better explanation of their reasons than I can.
Senator St. Germain: I would like you to explain non-derogation as contained in clause 5. Specifically, I want to know if it applies to aboriginal rights which may exist at the present time, but which have not been codified by a land claims agreement. Can you answer that for me?
Mr. Dunlop: It is a tough question. I think that it does apply. If an aboriginal right exists, it is protected. If an aboriginal right is disputed, however, I am not sure.
We are not setting out to abrogate an aboriginal or treaty right. We are saying up front that we are not abrogating or derogating. If, in a dispute, a court holds that an aboriginal right exists, it is protected. If a land claim agreement establishes or codifies that aboriginal right, it is protected.
Senator Chalifoux: I have heard presentations from the North Slave Metis Alliance under the chairmanship of Clem Paul and Sholto Douglas, and I have had several meetings with them. They are extremely concerned about the involvement of the Metis of the North Slave region. When you were developing this issue, was there any involvement of the North Slave Metis Alliance, or negotiations with them? Why are they not included in the bill as participants?
The Metis have been inhabitants of that area for many generations, and there is a difference between the South Slave and the North Slave.
Mr. Dunlop: We did not have negotiations with the Metis of the North Slave. Although we did have a number of discussions and negotiations with them, they could not be characterized as negotiations.
The Metis of the North Slave are in an awkward position. On the one hand, they are supporting parts of the bill, and they even asked whether or not they could be members of the Environmental Impact Review Board. We need to get some negotiations started. We cannot start handing out seats on the board in advance of negotiations, although we are quite pleased that they do want to take part in this.
The Metis of the North Slave represent those Metis who are not part of the Dogrib negotiations. They do not represent those Metis who are going to be part of the Yellowknives Dene part of the South Slave Treaty 8 negotiations. Frankly, I do not know where they are going to fit in. I do not know if they will get their own negotiations, or whether they will take part in a larger Metis table. The South Slave Metis are at a table, and the North Slave are not. I am not sure that that is much of an answer, but I do not know where they are going to fit in at the negotiations.
Senator Chalifoux: Would you be receptive to the North Slave Metis being part of the negotiations? They are making sure that their concerns are being heard within all government departments. Would your department be receptive to beginning negotiations?
Mr. Dunlop: I have no idea what our department is saying to the North Slave Metis about land claim negotiations. I am not one of the negotiators. I know that there was some discussion about whether or not the North Slave Metis were going to be part of the negotiations of the NWT Metis Alliance. I do not think that it is as yet clear which group will be at which table.
Senator Chalifoux: I am not referring to the land claims at all. I am referring to their participation within this bill. They voiced the concern to me that they are not included in the bill as participants on the boards, and that they have no involvement.
Mr. Dunlop: They fall under the definition of first nation that appears on page 2 of the bill. At the committee in the other place, the words "bodies" and "other" were added, so we have "bodies" in its broadest interpretation and "other" Dene and Metis. We tried to ensure that everyone was included.
Senator Chalifoux: How will people be selected for the board, and who will have the final approval on these appointments?
Mr. Dunlop: The nominations are mailed to the minister, and the minister will make the appointments.
Senator Chalifoux: How many members do you expect to be on these committees?
Mr. Dunlop: The minimum size is five members; two nominees from the First Nations, two from government, and a chair. That is the smallest size.
Senator St. Germain: Did you not say that you were going to establish a committee with no floor? There could be hundreds of members.
Mr. Dunlop: With a floor, but without a ceiling.
Senator Chalifoux: There would be a minimum of five members.
Mr. Dunlop: The largest committee would likely end up being the Mackenzie Valley Land and Water Board, which appears in Part 4. That board will have panels in each of the regions, and the members of those panels are automatically members of the larger board. The panels would be doing the day-to-day work, and coming together once a year for a big meeting. If there were five members on each panel, and there are five regions, that would make 25 on the larger board, plus a chairman. That would likely be the largest board.
Senator Adams: In your brief you mentioned that you went to some of the hearing in some of the communities in the Mackenzie Valley. What was the response of people attending those hearings?
Why does the minister suddenly want C-6 approved before a land claims settlement? Is it because of the interests of some of the companies? I have learned from the news that the Mackenzie Valley is the biggest water reserve river in the world. Perhaps some of the companies would like to have something in place to protect the river before the land claims are settled.
In April I met with some of the Dene people in Victoria. They were quite concerned about this bill. They had never heard of the changes made in Bill C-6. They thought that some of the leaders should visit the communities in order to explain how the bill will protect the water in the Mackenzie Valley.
My concern is similar to Senator St. Germain's. The department cannot expect to get this bill back next week. I would like to bring in people who are concerned about the bill, especially witnesses from the Dene Nation and the Metis. Why does the minister need to have the bill passed so quickly?
Mr. Dunlop: We are three years late now. Canada has failed in its obligation to create the land and water regime from the Gwich'in and Sahtu land claims within two years of the settlement. The Gwich'in land claim was settled in December, 1992, and the Sahtu in July, 1994. This bill was tabled the first time as Bill C-80 in December, 1996. With the call for the election, it died on the Order Paper.
We have hardly been hasty. In fact, we are quite late. We have been working hard, but we have not been rushing this bill. Bill C-6 as it appears today is the thirty-fifth version of this bill.
In 1994, starting at Inuvik and ending at Fort Smith, my colleagues and I toured communities down the valley. Afterwards, we sent out mail-out information kits. In the intervening period, we had a number of meetings in different communities with anyone who wanted to hear from us. Industry is only one of the groups that we talked to. They did not pressure us to hurry, nor did they want us to change the bill so that they could get at the water.
The Mackenzie River is the third largest watershed in North America. Native groups, certainly the Sahtu but most especially the Gwich'in, are very concerned about the water quality of the river. They are the last to receive the water before it gets to the Inuvialuit, and it flows through the Gwich'in settlement area. They are interested in anything that might impact on the quality or quantity of that water.
One of the things built into the bill by consensus with the Gwich'in and the Sahtu was clause 130 in Part 5. There is a part which says that some development projects could go on to joint panels between this Environmental Impact Review Board and the Canadian Environmental Assessment Act. Joint panels could be held if the project were of national interest. That is a new phrase for us.
We agreed that any damming or diversion of the Mackenzie River or any project that would sell water south would be of national interest. There was no resistance to that idea, nor was there any reluctance. We built in that interest in water, that overriding concern about water, and water quality, in the Mackenzie River. It is in there.
Senator Adams: In the meantime, what is the difference in federal policy between salt bay waters and rivers?
The Chairman: Senator Adams is referring to the fact that all matters are under federal jurisdiction in the Northwest Territories. You are talking about future self-government. At this point, however, partial self-government is being built, and some areas still need to be negotiated.
When it comes down to inland waters, navigable waters, how do you differentiate between navigable and non-navigable? How is that going to be dealt with?
Mr. Dunlop: In the north, our department provides much of what would be, in other parts of Canada, a provincial jurisdiction over water -- not navigable waters and not fish in the waters, but water quality and quantity, who may use it, who may dispose of it, and who may discharge into it. That is presently regulated by the NWT Water Board. What we are doing in this bill is absorbing the mandate of the NWT Water Board into a Land and Water board.
The Chairman: Are you saying that you are combining the two? That is, instead of having two sets of boards, one for the navigable water and the other one for the inland water, there will be only one board?
Mr. Dunlop: No. We are combining the land regulation feature and the water regulation feature into one Land and Water Board, and providing in the bill for the eventual devolution from our minister. Instead of our minister making appointments to the Land and Water Board, that responsibility could go to a territorial minister, making it closer to the way that it is done in the provinces. A territorial minister would answer for the operation of the board, not a federal minister. That may not happen for years, but the bill does at least provide for it.
The Chairman: That is interesting in light of the fact that the Reform Party leader made a statement about the movement towards a provincial concept.
Are you saying that the Government of Canada is making an administrative transfer, as opposed to a jurisdictional transfer?
Mr. Dunlop: I was not getting into the technique of devolution. At this point, it would be a delegation from a minister to a minister. Eventually, you might see some sort of a legislative transfer. I am speculating here.
Senator Adams: I share Senator St. Germain's concerns. Land claims go on between these communities, and we pass a bill. My concern is that I do not know if the government is going to guarantee that these people will get their river or lake back, or if the government or someone else will own it.
Mr. Dunlop: I understand where your question is coming from, Senator Adams. The Environmental Impact Review Board of this bill is quite similar to the Nunavut impact of the Nunavut land claim. You have not seen that piece of legislation yet, but I assure you that I will be back to speak to you about that bill.
You are creating a water board with the jurisdiction to treat the Mackenzie River as one ecosystem. You are not dividing it up into different regions and different water jurisdictions. There is one jurisdiction, the Land and Water Board, which will use federal legislation, this Act, and the Northwest Territories Waters Act, to regulate the river's use. There is one board.
The board has the ability to co-operate across boundaries with any other water jurisdiction. Therefore, an environmental assessment can be shared, and there can be collaboration on the assessment of a project. Does that address your concern?
Senator Adams: It helps. I think that you are saying that the minister will make the final decision with respect to the water board.
Mr. Dunlop: It is only the big type "A" water licenses, the big industrial water licences, that are issued by the board, and they are approved by the minister.
Senator Adams: In the case of requests by mining, forestry, or something like that, the minister, and not the board, might make the final decision?
Mr. Dunlop: No. The board issues the license. The minister may only approve it or reject it. Those are his only options.
Senator Beaudoin: My concern is in another area. You stated here that the bill does not threaten aboriginal and treaty rights. I want to know a little more about it because it is fundamental. Your legal counsel is with you.
Each time we have a statute in the legal committee, for example, we ask the question whether it has been cleared up as far as the Canadian Charter of Rights is concerned. When we have a bill on Indian rights, we have to raise the question of whether it complies with section 35 of the Constitution Act, 1982. It is a very difficult question because this section 35 is fundamental, huge, and important.
I understand that a special study has been made of this. How is this bill complying with section 35?
Ms Suzanne Grenier, Legal Counsel, Department of Indian Affairs and Northern Development: First of all, it complies with section 35 because it is reproducing the land claim that was signed by the Gwich'in and the Sahtu and which is protected under section 35. In a sense, we are translating into legislation what is in the land claim.
In the land claim and in the legislation, we put a non-derogation clause which tells other Aboriginal people that we will not abrogate or derogate their rights. If they have an aboriginal right or treaty rights, this bill, as well as the land claim, should not affect them. That is why we insisted on having a non-derogation clause.
If a group comes to us and says that because of an agreement or this act we are encroaching upon their rights, then we will have to look at it. We will either change the act or come back to the agreement and renegotiate and make sure that their rights are not touched.
This is a clause that another group can use.
Senator Beaudoin: What do you call a derogatory clause? Does your legislation say that this bill shall be deemed not to violate section 35? Obviously, we do not need that because we can never violate the Constitution. The Charter of Rights and Freedoms is in the Constitution, and section 35 applies to Aboriginals. Whether you say you have a derogatory clause or not does not change the fact that the Constitution will prevail.
Ms Grenier: It is a repetition of section 35, nothing more. It is there just to comfort the other people who were concerned about their rights. We have this clause there over and above section 35, so they are protected. You are absolutely right, we did not need it. It was to give comfort and greater certainty. It should not and will not be touched. That is why it is there.
Senator Beaudoin: You are of the opinion that the bill as drafted does not violate section 35.
Ms Grenier: It should not. We will see what the other groups will negotiate. They might negotiate something that this bill will affect, and if so we will have to go back to the table and work on it. It may be the clause that will be used by another group to maintain hunting rights that we did not address or are cutting. It is their full right to come back to us, and then we will negotiate or go to court. Hopefully, we will negotiate and agree that we took some right away. We will work it out. That is our objective.
Mr. Dunlop: I will give you two examples of dealing with aboriginal rights. One is in the act and one is in the regulations that we are working on. Clauses 73, 74, and 75 concern aboriginal water rights. They do not need to be in this bill. They were created. They were formed. The right is in the land claims themselves. However, there is great comfort in knowing that if you repeat those aboriginal rights in the legislation, any reader, any user of the legislation, knows them up front. They do not have to check the land claim. The rights do not need to be here, but people take great comfort in seeing them.
We have a phrase right in the land use regulations that nothing in them is meant to interfere with the pursuit of hunting, fishing, trapping or other such rights by aboriginal people on Crown land or settlement land. Any such activity does not require a permit. Unless you trap with a bulldozer or explosives, you can just go and do it. You do not need to apply, get a permit, or give notice.
Senator Andreychuk: As I understand it, this bill gives greater say to the First Nations. You are not attempting to take away the existing rights of Aboriginals to pursue their claims in any way.
Mr. Dunlop: Absolutely.
Senator Andreychuk: My concern is that you have put so many comfort clauses and so many non-derogation clauses in there, that it is very confusing. From a legal perspective, we have section 35 in the Constitution. We have agreements. We have other bills and understandings that will take precedence. Have you been told that none of the clauses that you have added in the agreement actually take away or, for that matter, add rights?
Mr. Dunlop: I think it is clear we have added rights. We have certainly given First Nations people who have not yet negotiated a land claim the opportunity to sit on boards and make regulatory decisions about land and water. That is new.
The land claims themselves take precedence. It is the final land claim agreement with the Gwich'in and with the Sahtu that has received protection under the Constitution. Section 35 rights have been created by these modern treaties.
If there is a discrepancy between the land claim and the bill, the act which ratified this in 1992 or ratified the Sahtu claim in 1994, the land claim takes precedence. If there is an inconsistency between the land claim and Bill C-6, the Mackenzie Valley legislation, the land claim prevails for it has section 35 protection.
Senator Andreychuk: You are trying now to give me some comfort. I am looking at clause 8 of Bill C-6, which obliges the federal minister to go in a certain direction on negotiations vis-à-vis consultation.
Section 35 indicates that if any aboriginal treaty rights are going to be interfered with in any way, the Aboriginal peoples must be consulted. It does not define their rights in section 35, nor does it define the consultation process. As I understand the courts, they have looked to precedents and traditions, practices, and bills like this, to determine what is fair consultation.
By stating an avenue of consultation, are you not, in fact, inviting the courts to take that as sufficient consultation and thereby preclude other avenues under section 35?
Mr. Dunlop: Clause 8 is an undertaking by the minister, who is taking on a responsibility to consult. It does not say how. There could be a number of avenues or approaches, but they must meet the legislation's definition of land claim consultation.
Clause 5(1) addresses the issue of conflict and states which has precedence over the other.
In clause 5(2) we do not set out to abrogate or derogate from an existing aboriginal treaty right. Whatever they are, however disputed they may be, however a court might find them to exist or to what extent they exist, we did not set out to abrogate or derogate from them, whatever they are, and however they may turn out to be.
Unlike the Supreme Court decision which you might be thinking of, the Sparrow decision, if there is an existing aboriginal right and if it is interfered with, that interference must go through a number of tests about whether or not the interference is justifiable. There are a number of tests for justifiable interference. One of them has to be that if Parliament passes a law interfering with an aboriginal right, it has to knowingly set out to do so. We are saying just the opposite. We do not set out to abrogate or derogate. We are saying this right up front. There is no mistake; we are not trying to derogate from an aboriginal right.
Senator Andreychuk: By virtue of the complexity of the process that you have put into this bill, you have set it as a precedent for future negotiations, and perhaps future agreements of this type, particularly if the Aboriginal people agree to it. You can then say, "You have agreed to this process, therefore it is valid."
Mr. Dunlop: I think the non-derogation clause is an example. These kinds of clauses were somewhat new five or six years ago, and it is to the point now where, if our department was producing legislation or submitting legislation without a non-derogation clause, it would be a signal in some people's minds of something else. We almost have to have them now, to make sure we are saying everything right up front: We are not trying to derogate, besmirch, or abrogate someone's rights.
The process of negotiation still rests on two policies: the comprehensive land claim policy, and the inherent right policy. These are still under negotiation. We still prefer the negotiation of claim settlements over court decisions, and I think that Native people do as well. I do not think that the process has changed.
Senator Andreychuk: Have you received the certificate that this act complies with the Charter of Rights and Freedoms?
Ms Grenier: I do not know if we have a certificate.
Senator Andreychuk: Beyond the Charter of Rights and Freedoms, how are the rights of non-aboriginal people living in the affected areas protected, and how will they be contacted?
There are aboriginal people who do not believe in the process that led to the signing of the agreements. Are they obliged to maintain the status quo, or do they have another avenue for addressing the water issues?
Mr. Dunlop: I will tackle the second part of your question first. Aboriginal people have two possible avenues. The first would be direct membership on the boards, and the second would be to attend the public hearings and to make interventions before the board about any water matter under consideration.
Non-aboriginal people are free to ask to be appointed to the boards. They are also free to appear at the board meetings and at the public hearing, and to make interventions. Access to the system and to the process does not change with the creation of the Environmental Impact Review Board.
Senator Andreychuk: There is, however, no obligation to contact them if their rights are being affected, or if their land use is being affected.
Mr. Dunlop: No. The boards publish their notices in a newspaper with wide circulation in the region, however. There is also a public registry at the review board office, and people are free to go in and see what applications have been received, or to get copies of development proposals. Those are the two accesses in advance of any hearing, meetings or panel reviews. It is the same as the current practice. You must have a public registry and publish a notice.
Senator Andreychuk: Is it fair to say that this bill simply delegates authority for the management of these resources from the present system to a new board system? Another bill could take those rights away again.
Mr. Dunlop: No, absolutely not. This bill is direct substitution. It substitutes our department's regime today for this board, this public government system, tomorrow.
Senator Andreychuk: In its wisdom, Parliament could later want to repeal Bill C-6. Would that then reinstate the previous system, or does it alter the existing system?
Mr. Dunlop: With all due respect to Parliament, it would be done at their peril.
Senator Andreychuk: Do you mean political peril?
Mr. Dunlop: No, I mean legal peril, because the board rests on chapter 25 of this land claim, and chapter 25 of that land claim. The land and water regime and these three boards flow directly from those chapters. Canada has an obligation to create them in legislation.
Senator Andreychuk: In those two areas?
Mr. Dunlop: Yes.
Senator Andreychuk: What about the other areas?
Mr. Dunlop: The Environmental Impact Review Board flows from these two land claims for the whole valley. The environment is not being chopped up into separate boards.
It is one ecosystem for the valley. It is one river. I cannot imagine people setting out to reverse an obligation. It would not hold up under examination by any level of the courts. It is so contrary and pernicious, I cannot imagine it.
Senator Taylor: What is the definition of land here, Ms Grenier? Does it include oil and gas rights?
Ms Grenier: Do you mean the surface of the land?
Senator Taylor: I mean just the surface of the land. How about something like gravel beds, gravel and coal?
Ms Grenier: It would be part of the land. Surface is defined in the agreement, and these things would be a part of that.
Senator Taylor: How far beneath the surface do you go before it ceases to be land? This was fairly relevant in Alberta. It took many court cases to decide what is land and what is subsurface.
Mr. Dunlop: What is removing gravel from your land and what is mining? Where is the line?
Senator Taylor: Yes. I think it is quite important for jobs and royalties to the people involved here.
Mr. Dunlop: There are two things to know. When the Gwich'in and Sahtu selected land, they got two kinds. Some land had both surface and subsurface, and some was surface only. There are two points which are relevant to situations where the beneficiaries hold the surface of the land and the Crown still has the subsurface. Firstly, Canada would not open those lands for exploration without the approval, consent, and involvement of the surface owner. Secondly, legislation is being worked on which will enact a surface rights tribunal to resolve any access disputes between a private exploration outfit and the surface owner. That tribunal will, in part, be modelled on the examples in Alberta and Saskatchewan.
Senator Taylor: There is not much point in buying the subsurface rights from the federal government if you cannot access the surface. This is a problem in many areas.
I just got back from Africa, and the old British definition of land is not holding up there. The developers often offer the Natives a one or two per cent royalty. This helps them along, because governments have a tendency to take the money and forget about the people who are living on the land. More deals are being negotiated where they get a percentage of the mineral wealth because they have the land.
When it comes to land use, this bill does not seem to consider the future. Am I wrong?
Mr. Dunlop: Yes you are. The claim agreements require that, instead of receiving royalty shares on individual parcels, the Gwich'in get a set percentage of the overall royalty production from gas, oil, and minerals in the whole Mackenzie valley. I think that the Gwich'in receive 6 per cent, and the Sahtu receive 7 per cent.
Senator Taylor: The Sahtu have already signed a deal with some people.
When a dam is built, it goes across the land which lies beneath the water. The interpretation of the Alberta and Saskatchewan governments is that land underneath water does not belong to the land treaty or in the native transfer.
Mr. Dunlop: We have fixed that. In the land claim, it is defined which sections include the bodies of water and which do not. It is clear, especially for the Gwich'in in the Mackenzie delta, where almost half of the land is, in fact, water. Where a block with a number of little lakes in it has been selected, the beds are included.
Senator Taylor: I still get the impression that Ottawa is running the show. Clause 12, which is the general provision with respect to boards, reads:
The chairperson of a board shall be appointed by the federal Minister from persons nominated by a majority of the members.
This sounds very good, but, if you read on, it says:
If a majority of the members does not nominate a person acceptable to the federal Minister within a reasonable time, the Minister may appoint any person as chairperson of the board.
If the person I want is not suggested, I can do as I please. This is a hollow right.
Mr. Dunlop: No, not at all. It is a glove in a fist on a different topic. Inaction will not thwart the operation of a public government board. We are not going to have deadlocks. We are not going to have people taking positions.
Senator Forest: I have two areas of concern. My understanding is that we have to pass this regulation because of the land agreements with the Gwich'in and the Sahtu. The people who are not involved in those would prefer to have them not apply to them until they have settled their land claims. On the other hand, the Sahtu and the Gwich'in are saying that they are at the end of the line and that there has to be one, single system.
Then you came to a point where you said that each of the different groups would have their own water panel. I am wondering how that fits into one, single system, and whether that is going to mess up the works or not.
Mr. Dunlop: Yes, it is a land and water panel. Let us use the example again of the Deh Cho. The ability is there for the governor-in-council to establish a Deh Cho Land and Water Board. By its creation, it automatically is a permanent panel of the Mackenzie Valley Land and Water Board. As long as the applications for development are inside that region, that panel will hold the hearings. They will make the decision, always guided by this bill, the Northwest Territories Waters Act itself, and the guidelines and policy directions of the larger board, the valley-wide board. It is supposed to ensure consistency. There will only be one way to issue a water license, not three or four. We are not parcelling up water.
Senator Forest: If one of the panels made a recommendation that would be in conflict with the overall water policy, it would not go forward.
Mr. Dunlop: No, it would not go forward.
Senator Chalifoux: To continue with what Senator Adams was asking about, will this bill create the environment to eventually transfer total jurisdiction of this resource act to the Northwest Territories government?
Mr. Dunlop: We need to have the bill in place, the boards working and the people becoming familiar with how these boards work. We also need the land claims and self-government agreements concluded. We need some certainty on the other efforts going on.
We would then need to have some sense of how the Northwest Territories constitutional development is proceeding. Many grass-roots agreements must be in place first. Then you would be able to devolve with confidence.
Senator Andreychuk: Following from that, you are basically saying that people who did not sign land agreements, who were not satisfied with the process at the time and are still in it, have actually had their rights taken away by virtue of those who signed the agreements.
Mr. Dunlop: No, I am not saying that at all.
Senator Andreychuk: You are saying it is going to affect their water management.
Mr. Dunlop: How does the government signal up front? Every single thing is not on the table. We are going to follow the comprehensive land claims policy, which is published and has been out for ten years.
We will negotiate at a table. If people are interested, we will begin negotiations. If they are not, there will no negotiations. With some groups, we have discussions about getting to negotiations. With other groups, we are actually at the table, and negotiations are under way.
We will implement land claims. We take the obligation seriously, although we may be late on this one. We will meet Canada's obligation.
Senator Andreychuk: That is not the issue. We signed two agreements, and other groups did not. By virtue of signing those agreements, we are affecting land use and management and water management of those groups yet to negotiate. We have extended the agreements of one group to cover the activities of other groups yet to be determined. You told me it is irreversible.
Mr. Dunlop: It is irreversible for the Gwich'in and the Sahtu. It is their land claim.
Senator Andreychuk: Yes, and it should be irreversible because they signed the agreements. But you said it is irreversible for the others who did not sign agreements.
Mr. Dunlop: No, I did not. I am not sure where your question is coming from.
Senator Chalifoux: Maybe I could assist here. Where would the North Slave Metis alliance fit into this right now and in the future? This is exactly what Senator Andreychuk is talking about. The Alliance has not had the opportunity to begin negotiations on its own land claims and issues.
Mr. Dunlop: We would want them to at least negotiate seats on a Licence and Water Board for the North Slave and on the Environmental Impact Review Board. I do not know if they have much interest in land-use planning.
Senator Chalifoux: Yes, they do.
Mr. Dunlop: Some groups do not. They have not expressed any interest whatsoever. Those boards right now exist only for the Gwich'in and the Sahtu.
Senator Chalifoux: I have one, short question regarding the environment. Clauses 141 and 142 of this bill concern transregional and external developments. Would these clauses ensure a comprehensive review of the potential environmental effects of proposed developments, wherever they might occur?
Mr. Dunlop: Yes, they would.
Senator Chalifoux: Would the review be under the control of these boards then? They are getting ready to do a lot of development in those areas. Would the environmental impact studies be under the control of the boards or the federal government?
Mr. Dunlop: For an environmental impact review -- for the third stage, the big stage, the public hearings -- the terms of reference come from the boards and the minister. They will agree on them.
When it is trans-boundary, when it is bigger than the Mackenzie Valley, when it is into Nunavut, the Yukon, the Inuvialuit settlement region or a province, we can either collaborate, directly cooperate or do a joint review.
Senator Chalifoux: Thank you.
Senator St. Germain: Senators Andreychuk and Chalifoux have asked my question. Do you not see this is an affront to the other people who have not signed for you to come here and say that the legislation is predicated on these two documents? Do you not think this would erode the possibility of good faith in future land claim negotiations? It strikes me that it would. I am not saying this to be confrontational. I am just asking the question.
Mr. Dunlop: I hope it is not an affront, for it is not meant as one. It is meant as good business and as a very serious effort to have one co-management regime for the Mackenzie Valley.
Senator St. Germain: I hope that you are right, sir.
The Chairman: I should like to address one area.
I think I fully understand what you are saying. You have to do what you can on behalf of the department to signal the government's intent, on the one hand. On the other hand, you also have people who have already signed an agreement. That puts force and pressure on the department to move ahead with the legislation. You also have a group of people who have not signed up yet, and you would like to invite them to come and negotiate in the three areas which I believe you mentioned.
However, I see a problem because, regardless of how you interpret this piece of legislation, you are telling the public that we intend to do this and that therefore they should come in now, sit down and attempt to negotiate with us.
You are trying to pass a law, a law that is going to be almost impossible to undo or amend after it is passed. There is a genuine concern for the people who are not covered by this legislation. We will have to find a solution. Hopefully, before we finish with this legislation, we will have some genuine, true recommendations.
We will get back to you, or maybe we will call you back again at a later date. Thank you very much.
The committee adjourned.