Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 9 - Evidence
OTTAWA, Tuesday, June 9, 1998
The Standing Senate Committee on Aboriginal Peoples, to which was referred 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; and Bill C-39, to amend the Nunavut Act and the Constitution Act, 1867, met this day at 10:13 a.m. to give consideration to the bills.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: We will begin with Bill C-6. I hope that we will also be able to deal with Bill C-9.
Perhaps we should start off with the minister's letter. I am not sure whether you have all have had a chance to read it.
Senator St. Germain: Mr. Chairman, I have read the letter. I ask you, sir, did we put in a request that the minister appear before us? After reading through the letter very quickly, it appears that she completely ignores the representations made by the various groups who have not settled their land claims in the regions discussed. As all members know, a very strong presentation was made by all these groups opposing the passage of Bill C-6 until their land claims have been settled. Why she would not appear before the committee in order to allow us to ask her how she could ignore the Dogrib, the Deh Cho, the North Slave, and the other groups that came before us.
The Chairman: Yes, we notified her that we wanted her to appear before the committee. As a matter of fact, three senators -- Senator Forest, Senator Chalifoux, and myself -- met with her. We emphasized that it was important that she appear before the committee to answer some of the critical issues, as you have described. The problem is that she is not available. I do not think there is any need to further discuss the fact that she will not appear. She might be able to appear at a subsequent meeting on the other bill, but she is not available today.
At the same time, we are almost at the end of the session. If we do not start moving forward and taking care of these two bills, we may run into some problems.
Senator St. Germain: With all due respect for the efforts that you have made, Mr. Chairman, if this bill is so important that it has to pass, I cannot believe that the minister responsible would ignore the request of this committee and still expect its passage. It is an affront to the committee and to the entire process for a minister to adopt that position. We have an obligation to the people who took the time to prepare and present very good arguments regarding how this bill would undermine their future ability to negotiate their land claims.
I find this to be totally unacceptable. It is an affront to those people, and to the committee as a whole. I cannot voice this strongly enough. It is arrogance on the part of the government to ignore the pleas and the representations made by the Métis and the other native groups in the north.
Senator Chalifoux: If you read her letter dated June 9, 1998, you will see that many of those questions were mentioned to the minister when we met with her. I in particular pressed her to answer those concerns. There is no possible way that she can be here today because she is busy with some land claims negotiations. That is why she wrote this letter.
She says in her letter that questions were raised about the membership of the resource management boards. That was one of the very important issues that concerned everyone. People were also concerned about the negotiation of their land claims, and she has also addressed that in this letter. She apologized, but said this was the only way that she could address those issues. We had what I thought was a very good meeting with her. This is how those concerns are answered. Possibly, Mr. Chairman, we could read this letter out, and then get some comments from the members of the committee.
Senator St. Germain: If I recall correctly from the representations made by the various groups who appeared before us, they were not prepared to put names forward and participate in the exercise because they felt that it would be too damaging to their positions. That is my recollection, and I should like it to be corrected if it is incorrect.
While any reference by the minister to the inclusion of these groups is great, there is a big problem if they refuse to participate because they feel it will undermine their future ability to negotiate in good faith. I defer to you as chair, but I want this on the record.
Senator Berntson: I share the concern of my colleague, although I do not use the same strong language. I think we should accommodate the minister and meet at her convenience, whether it be in July, August or September. I think she owes it to the committee and to the people she represents to come here, and I think we should accommodate her to the extent that we can. If she wants the bill to pass, then we will be here for as long as she wants to have us here.
Senator Andreychuk: I support what Senator Berntson has said.
I do not think we suggested that the minister had to come on a particular day or at a particular time. I thought it was only fair that the groups come to put their concerns on the table. I want to hear from the minister as to whether she can accommodate those concerns, and how she intends to do so.
I find a letter dealing with discussions with ministers to which I was not a party somewhat unsatisfactory. The minister has an obligation to come to the committee as a whole. We as the committee should not be taken into account in terms of discussions that took place somewhere else. The only evidence by which I want to be bound is the evidence heard by this committee, not evidence that is coming through a letter with conversations with different senators. I commend those senators who encouraged the minister to come. However, I do not think that this is the proper evidence to be put before the committee. Consequently, I would like to hear from the minister.
I thought we had made the point quite clearly and forcefully that we understand the minister's dilemma. However, we are caught in the same dilemma. If the minister wishes us to see her position, then she should come and tell us. That way we would have it on the record. We could say that we had heard both sides, and that we believed there to be merit in what the government was doing, if we were to choose to go with the government's position. If we chose not to support the government's position, then we would at least have advised the minister directly as to our concerns.
That is good parliamentary policy, as opposed to receiving a letter addressed to the chair which rebuts arguments to which I was not a party. In fairness, we should accommodate the minister's schedule. Surely, this is an important issue not only for us, but also for her. We owe it to the aboriginal and Métis people to hear her, and to give equal weight to both representations.
Senator St. Germain: This minister, with whom I have been in committee before, is an excellent minister. I am surprised that she has taken this position. Events dictated that she could not be here today. Like Senator Andreychuk, I, too, feel it was not necessary that it had to be today. I defer you to as chair in that regard.
When the three senators went to her, was any thought given to bringing an opposition member?
Senator Johnson: This has been an ongoing concern of the committee from the start. We have tried to have the minister appear before us. On every other committee on which I have been a member, the minister automatically appeared. I respect her very much, as you do.
Are we saying that we will not proceed to clause-by-clause study of the bill until we have heard from the minister? If so, does that mean that we wait until she becomes available over the course of the next few months? Is that what you are suggesting?
Senator St. Germain: Mr. Chairman, what would happen if we were to ask these people to attend by teleconference, and not a single one supports the proposed legislation? I find it hard to accept the letter that I have read, and to proceed in view of the strong protests from the Métis and the various nations which came before us. I know some of these people. I have worked with them in the past. They are dedicated to representing their people, and they have done so in an excellent manner. I should like to know how the minister can ignore this, expecting us to proceed in view of the strong, well-presented protests.
Senator Andreychuk: A minister would not have put this legislation forward without some compelling reasons, and I should like to hear them. I do not discount the fact that there is opposition to the bill. We in this committee have passed legislation despite hearing opposition to it. However, we have always had compelling reasons on the record as to why the legislation was needed in the form in which it was drafted. I hope that the minister will have due regard for the Senate committee, and come forward. Can we not find a date to accommodate her without unduly delaying this legislation?
The Chairman: It is not my role to defend any minister. For that matter, it is not my role to be close to any minister. I do not think that the minister is ignoring the fact that she has been asked to appear in front of the committee.
There are two factors involved here. First, she is not available. She is dealing with other matters. Second, they are in the midst of negotiating with those three groups. As a matter of fact, I think two groups were already involved in the actual negotiations. Is it proper to have the minister appear before the committee when negotiations are taking place? That is another factor we have to take into consideration.
We are fully aware that a strong case was made by these three groups. The minister is also very clear on that. Do we end up by negotiating around this table? Is that our role? I do not think so.
Even if we would strongly demand that the minister appear, she is in the midst of negotiations. Is this a proper time for her to appear? Should we, as committee members, make a strong statement as to our concerns? Would that have more weight down the road?
I do not think we will learn anything more, even if we bring the minister here. What is stated in the letter is implicit. I do have some problems with this particular letter, however. I think that we should ask the department to clarify what is meant by the following:
If the new system were to be established only in the Gwich'in and Sahtu settlement areas, those two First Nations would have to agree to the necessary re-opening of their land claim agreements.
What is meant by that? That is one question which I should like to put to the department.
Senator Berntson: Mr. Chairman, I hear you, but I am still not persuaded.
The Chairman: Do you want me to say more?
Senator Berntson: You say the minister is simply not available. I think what you meant to say is that she is simply not available today. You went on to say that negotiations are ongoing and asked if this where negotiations ought to take place. I say that, no, it is not. Only the minister can determine which questions she may not want to answer. She is not a stupid person. In fact, she is one of the bright lights over there. I do not buy for a minute that the minister cannot handle herself in committee.
The Chairman: I am not saying that she cannot handle herself. I do not think she will say anything more that what is contained in the letter. If you expect more than what is already stated in the letter, then I suppose your argument has bearing.
Senator Berntson: I have said everything I am going to say on the matter.
Senator Austin: I agree that it would be helpful and desirable to have the minister appear before the committee if she were available to do so. However, we have had evidence from department officials on all of these issues. Under our conventions, they speak for the minister.
What we have is legislation in the middle of a negotiation, and what we do here has an impact on the negotiation itself.
At an earlier time, when the Dogrib people were giving evidence, my concern was with one of their points. They had not yet agreed to a land and water regime or anything else affecting them. They were concerned, however, that the bill, if passed, would in some way qualify their right to negotiate land titles and self-government rights.
I said at the time that it would be useful, for greater certainty, if the minister could write a letter saying that this bill is without prejudice to their negotiations. This particular letter goes some way in that respect. There is a great deal more detail, but I am satisfied that the letter covers the subject.
I do not know why the minister is not here, but I do have sympathy for the question of negotiation. As Senator Berntson said, she would often to answer, "I regret that this is a subject under negotiation and I cannot comment on it." Our questions may put the minister in a difficult position, because she may appear to be hardening the federal side of the negotiations when that is not what she is trying to do. She is trying to leave the negotiations to the negotiators. It would be useful if she had authorized you or Senator Chalifoux or Senator Forest to say that to us. I imagine that that is her position.
I do believe that we should proceed with this bill. How we proceed will be subject to the discussion of senators, but we should see whether we can move the bill forward. If we cannot on other grounds, then that will also assist us in determining what we are doing. We have not heard anything from Senators Berntson, Andreychuk or St. Germain that indicates that they wish to cease discussions at this point.
Let us move into the bill and see where we are with respect to the bill. Then we return to this question, and decide as a committee what, if anything, we feel we need from the minister.
Senator St. Germain: Mr. Chairman, to reply to Senator Austin, I understand that our witnesses are saying that negotiations would be affected if the minister were to appear before us. That just does not make sense in terms of what I am hearing from the other side, however.
Representatives from the Dogrib people appeared before us. I asked them explicitly if the proposed legislation would affect their future land claims settlement and their ability to reach an agreement. They said that it would. What you are saying flies in the face of what we have heard. These are the people who are being affected. These are the people we are trying to help. This is the area we are trying to resolve.
If the minister were to appear before us, there is a possibility she could clarify it. Perhaps she could not. I am not sure what is going on; I am trying to determine what is happening.
The majority of those concerned have not settled their land claims yet, but we will proceed against the wishes of these people. It does not make sense to me. Government is doing things to people instead of for people.
This is not a partisan speech. This just does not make sense. The logic is not there. I cannot believe that we will proceed. We ask these people to come; the chiefs, their representatives, the leaders of their nations. If the minister is unable to appear today, why can we not wait to see her at a later date?
Senator Austin: Senator St. Germain is proving the point to all of us that, if the minister appears, it will be an adversarial examination and it will deal with the negotiations themselves. There are two different starting points here.
The question before this committee is: Should this bill pass on the basis that it is without prejudice to the settlement of claims which have not yet been settled?
Some group have appeared who have not been part of the settlement process, yet they are saying that everything in the regulation and administration of the land and water resources of the Mackenzie must wait until there is agreement.
The government says that, once the bill is passed, it will not prejudice the negotiations. When these groups are ready to opt in, provision will be made for them to participate as fully as the Sahtu and Gwich'in do.
If a motion is part of our process, then I would be prepared to move that we consider the bill clause-by-clause. Then we may decide whether there are issues that remain that we cannot resolve as a committee. If such is the case, then we can decide whether to invite the minister at that stage.
Let us begin by seeing what we are dealing with.
Senator Taylor: My impression from our witnesses is the exact opposite of Senator St. Germain's.
As an aside, listening to Senators St. Germain and Austin -- both from British Columbia -- discuss the aboriginal problem, it is brought home to me why there are so many problems solving the aboriginal problem in British Columbia.
Senator Austin: You are leaving the provincial government out in your assessment.
Senator Taylor: Those who have not yet signed land claims have said, quite clearly, that they would in no way, shape, or form approve this bill, because the government would use it as a sort of ransom to achieve a land claim settlement.
It boils down to whether this bill is to be used to arrange a land claim settlement or as a lever, and whether the environment of the Mackenzie is important enough to go ahead and solve the problem of joint management. That is what this bill does. The minister has said a number of times, and I have not read anything contrary to this in the bill, that nothing in it jeopardizes these claims.
I do not blame them, however. If I were on their side, I would hold up everything too. I would hold up highways, electrical, environment -- anything at all. That is part of negotiating. I believe it is up to us to recognize whether it is a negotiating ploy or whether there is anything in this bill that will hurt their land claims.
I have reached the conclusion, after reading the bill and listening to witnesses, that nothing in the proposed legislation will jeopardize the claims, but that the environment and the development of the valley are important to the people who live there. Therefore, I feel it is okay.
Senator St. Germain: Mr. Chairman, to make a reply to Senator Austin, there are regulations in place to govern the environment and land use. I look at this letter and it specifically states, on the third page:
The bill does not deal with property rights, nor does it affect the owner's ability to manage lands.
Yet lands are clearly stated in the bill. If the committee is prepared to accept an amendment that excludes all those who have not settled their claims, or an amendment that would make the bill inclusive of the people who have settled their claims, I would have no problem with proceeding.
Senator Austin: Why do we not proceed clause by clause and, when we get to that provision, we will see what the committee thinks.
Senator Andreychuk: I wish to take exception to what Senator Austin said, which was that we put the minister in an adversarial position. That has never been my intention.I believe you used the term "members" and you did not identify anyone specifically.
Senator Austin: I did. I said that Senator St. Germain was proving the point.
Senator Andreychuk: I do not believe -- and he can speak for himself -- that Senator St. Germain would do that. I believe there is an honest concern. We have two problems, and they are two of the same problems that the minister has. Section 35 of the Constitution obliges all of us to consult with aboriginal groups when their rights are being affected, and all of the groups that came here indicated that their rights are being affected. Good practice, case law, and history point out that we should not impose our opinion of what affects their rights. We should hear them, and take it into account. I do not wish to exclude their comments.
Equally, I feel that the minister and this committee are bound by their public trust towards the aboriginal community. I wish to discharge that appropriately. I do not wish to take a letter, one which is confusing, in my opinion, and makes statements about whether or not it affects the unsettled claims. I do not wish to be in the position of negotiating with the minister about a letter. I would prefer that the minister come and point out the dilemmas to us. We have not heard from the government as to what position it will take on either side. Someone will be unhappy with the proposed legislation -- either those that want it to proceed, or those who do not.
How do we resolve this issue in the best possible manner? A manner which respects our public trust, section 35 of the Constitution, environmental issues, and Indian land claims? I wish to juggle all of these issues, but I want to hear the minister's perspective on all them. We must give due regard to that.
I would normally have accepted the appearance of department officials, but that has become part of the problem. It was brought to this table that the department officials and their handling of land claims appear to be part of the problem.
I wish to go back to Bill C-6 -- to the minister's responsibility and our responsibility. I do not feel that we can go clause by clause when we have conflicting opinions as to the nature of the minister's position. Does this letter reflect the minister's position, or is it reflected in what the bureaucrats told us earlier? There are many misconceptions.
I will underscore again that this is not to embarrass the minister, nor is it to get into land claims. In fact, I would undertake that we should not get into land claims if she appears.
Senator Austin: With respect to Senator Andreychuk's reference to section 35 of the Constitution, I do not believe that it can be argued that Bill C-6 derogates from it in any way. It could not do so in any event, because the Constitution is paramount law. Even so, for greater security, clauses 5(1) and 5(2) are in this bill, and the latter says:
For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights...
There is no reason to question the minister about something that is clear in the constitutional position. When Senator Andreychuk talks about conflicting evidence, there may well be conflicting evidence. When we go clause by clause, each of us can explain the evidence that justifies or does not justify that particular clause. That is what clause-by-clause examination is for.
Again, I wish to suggest that the committee proceed clause by clause. Let us determine the number of sticking points, and we can then make an assessment as to whether we want to see the minister come forward.
The Chairman: I have heard you make that statement twice now.
Senator Austin: I make a motion to that effect.
The Chairman: I would suggest that Senator Adams be the next to speak. Then I wish to say a few things in order to clear up two matters.
Senator Adams: Mr. Chairman, we have a draft here of Bill C-6, and I am wondering if a copy has been faxed to the communities. We have been discussing this. Do we know if they have any concerns? Did a copy go to the communities such as the Dogrib, the North Slave and South Slave -- those concerned about unsettled land claims? If they accept it, perhaps we can go ahead with clause by clause consideration of Bill C-6.
Did you send the draft to the communities?
The Chairman: What draft are you talking about?
Senator Adams: The one you gave me this morning.
The Chairman: It contains various options. We are not there yet.
Senator Taylor: Was that distributed?
The Chairman: It was not distributed to the communities, no.
Senator Taylor: Was it distributed anywhere outside of this group?
The Chairman: That is an internal committee document.
Senator Taylor: It would not be very helpful if it were to go out to the others.
The Chairman: Before we get back into Senator Austin's suggestion, I would point out that I have been involved in various negotiations in the past. That might help to clarify what is happening out there.
Two negotiations are taking place. We talk about one set of negotiations, but we should be talking about two. One set deals with the ethnic concern, which normally is the question of land, land titles, royalties, and things of that nature. That is the ethnic component. There is also a public component, which deals with a self-government development movement in that direction. When I analyze what is in front of us today, and also the fact that what is stated in the bill itself does not affect or impact the aboriginal rights, I must consider that it could not do so in any case, because of what is in the constitution.
We do not need to worry about the ethnic component. The people who are claiming that their rights will be impacted should not worry so much, because they still can negotiate within the same boundary. It does not prohibit them from entering into negotiations on the ethnic basis.
When you begin examining how to set up a public institution, you must ask what impact it really has on the people when they already have an ability to negotiate on the ethnic component. Only a week ago, I was in the same shoes that you are in now. I had to search out the truth of the arguments which are laid out by the department. Then I decided that the only area where there might be an impact is in the number of seats that the groups could obtain within that regional board.
What kind of role would they have once they have a seat on that umbrella board? They will have a role to play in water regulations, land regulations, approving licences, and things of that nature. That is, in my understanding, a governmental responsibility, so it would not rest on the ethnic component side, but only on the public institution side.
We are confusing ourselves when we talk of negotiations, because there are two components and not one. Does that help at all?
Senator Austin: I wonder if you could define "ethnic?" How are you using that word? Do you mean tribal or band?
The Chairman: You could say "ethnic" would be covered by "ethnic corporations" -- organizations which only belong to the aboriginal groups. It could mean a tribal council or a band council.
Senator Austin: Thank you.
The Chairman: When we begin going through clause-by-clause, you will appreciate that this is a public bill, and not an ethnic bill. It does not take care of the ethnic concern. That is why I had to determine what the department is actually saying -- that their rights will not be impacted.
Senator St. Germain: Mr. Chairman, what would you say to those people who came here and said the opposite?
The Chairman: I would say the same thing that I just said. When they make their case, do they characterize one ethnic component and one public component? No. They make the presentations to you as though there is only one set of negotiations. Why they choose to do that, I do not know. That is beyond me.
Senator St. Germain: It all depends on how you see it.
The Chairman: In the past, I have negotiated both the public component and the ethnic component. I know the procedure. If I were a minister, I surely would not want to be involved in it.
Senator St. Germain: That is life as a minister.
The Chairman: Senator Austin has moved that we proceed to clause-by-clause consideration.
Is it agreed, honourable senators?
Some Hon. Senators: Agreed.
The Chairman: Carried.
Shall the short title carry?
Hon. Senators: Agreed.
Senator Austin: Shall we proceed by consensus unless some senator objects to a clause, and then we can debate that clause?
The Chairman: Certainly.
Senator St. Germain: I have a question. Could we have the officials advise us as to which sections affect groups other than the Gwich'in and the Sahtu before Part 4?
The Chairman: We will ask the officials to sit as witnesses as we go through the bill clause-by-clause.
Could the witnesses identify themselves, please?
Mr. Will Dunlop, Director, Resources Policy and Transfers Directorate, Department of Indian Affairs and Northern Development: Mr. Chairman, with me today are Margaret Gray and Jacques Denault. Suzanne Grenier from the Department of Justice is our advisor on this bill.
Senator Austin: Does anything in Parts 1 to 3 affect those communities which are not yet part of the agreement; in other words, communities other than the Sahtu and the Gwich'in? Could you advise us how the other communities are affected by Parts 1, 2 and 3?
Senator St. Germain: That is what I would like to know.
Senator Chalifoux: Where does the preamble fit in here? In Part 4 of the briefing book, we have a clause-by-clause analysis of the Mackenzie Valley Resource Management Act. This information should be considered here. It seems to be very well done.
The Chairman: Those are the briefing books which were prepared by the department.
Senator Chalifoux: It is an information package for the proposed Mackenzie Valley Resource Management legislation.
The Chairman: Will we get an answer from the department to the question put forward?
Mr. Dunlop: Yes, Mr. Chairman. Clause 2 includes a definition of "first nation" and "Mackenzie Valley." That First Nation definition is broad, and includes groups outside the Gwich'in and Sahtu. That definition is used in clause 8, which is the provision which requires the consultation and review of the proposed legislation.
Senator Chalifoux: Before we carry on, it says here:
"first nation" means the Gwich'in First Nation, the Sahtu First Nation or bodies representing other Dene or Métis of the North Slave, South Slave or Deh Cho regions.
The regions are drawn from the April 9, 1990 Dene-Métis agreement, which was unratified. Has that changed? Has that agreement been ratified?
Mr. Dunlop: We are just identifying geographic regions in the Mackenzie Valley.
The two subclauses in clause 8 deal with consultation and review of the proposed legislation, and you will see the use of the term "first nation."
I do not think there is anything on this in Part 2, Land Use Planning.
Part 3, Land and Water Regulation, deals strictly with the Land and Water Board for each of the Gwich'in and Sahtu settlement areas. I am not sure if we have a provision on consultations outside those settlement regions. In clause 90 there is a requirement that the minister consult with First Nations in the very first sentence.
Is the question about the first three parts, senator?
Senator St. Germain: If I may, in the spirit of trying to expedite this whole thing, I would ask a question. If we were to amend "First Nation" to mean the Gwich'in and Sahtu First Nations, that would basically solve the problem for the whole bill, would it not? Amendments would not need to be made throughout the bill. By doing that, the proposed legislation would only apply to those two groups, thereby resolving the issues that some of us have in regards to passing this bill against the interests of the Dene or Métis of the North Slave and South Slave, and the Deh Cho region of the Mackenzie Valley.
If we did this, the other groups could be included in the legislation as they settled their claims. We could perhaps make some provision in the bill that, as the land claim settlements are arrived at with the Dogrib and Deh Cho, this bill would be in place, and they would have the right to opt in, or, by virtue of the negotiations, they would become part of the bill. That would settle everything.
This is not a confrontational issue. To me, this a common sense issue. I hear the other argument, but you cannot ignore the people who came before us. I cannot believe that they are trying to use this bill for their negotiations. I do not think it is necessary. Settlements have been arrived at in four different regions, and I do not think anyone has used ploys of this nature. I have no reason to believe that they are doing so now. Having said that, I stand to be corrected.
Mr. Dunlop: If you amend the definition of "first nation" as you suggested, you will disenfranchise the First Nations from consultations, from involvement, and from nomination to the Environmental Impact Review Board outlined in Part 5. As well, they will not be consulted. They will have no input into the design of the community impact monitoring program referred to in Part 6, where it says that the program would be put in place after consultation with all the First Nations.
Senator St. Germain: Did we not hear through you, Mr. Chairman, that these people were not prepared to participate with any of these boards any way? Is this not what they said? If I remember correctly, they all basically said that they would not be participants. I hear what you are saying, sir. The bill does apply.
Mr. Dunlop: To date, some are coming on board, and some are not.
Senator St. Germain: Are any of those that are coming on board not part of the presentation groups? You may have people participating from these areas, but they are not part of the group that made the presentations on behalf of their nations.
Mr. Dunlop: No, they are not part of the one of the groups that made a presentation.
Senator Andreychuk: If we excluded the other groups in the definition, then, you are saying that they would also be excluded from the consultation. Would the government then need to revisit the board structures?
Mr. Dunlop: If you take the Environmental Impact Review Board out of the bill, or restrict it to the Gwich'in and Sahtu settlement areas, the bill would need to be withdrawn. We would have to reopen the land claims of the Gwich'in and the Sahtu, and renegotiate chapter 25.3.2, which calls for the creation of a board throughout the valley. We will have unilaterally changed the land claim, and we will have to go back and reopen it.
Senator St. Germain: Are you saying that the settlement of the Gwich'in and Sahtu land claims was based on getting this agreement, even though the other areas would be impacted as negatively or as adversely as they had advised?
Mr. Dunlop: No. I am saying that the land claims of both the Gwich'in and Sahtu required the creation of a valley-wide Environmental Impact Review Board. One of the conditions is that 50 per cent of the board be made up of nominees First Nations nominees all the way down the valley, but the Gwich'in and Sahtu have each secured their aboriginal right to make that nomination, and to be on the board. They have a right to be on the board. In fact, they must be on the board, and we have their nomination.
Senator Andreychuk: I thought the Gwich'in and Sahtu had indicated the agreement extended only to their lands.
Mr. Dunlop: In that answer, they were talking about the Land and Water Board outlined in Part 4. Part 5 is Canada's obligation to create the environmental impact review board.
Senator Andreychuk: Could Part 4 be restricted to their lands?
Mr. Dunlop: If Part 4 is restricted or if you do not deal with Part 4 at all, the bill will have a hole in it. The bill does not set up an interrelationship or a working relationship between the operation of the board structure, the co-management approach in the bill, the present NWT Water Board, and our department.
Presently, our department and the NWT Water Board operate separately. Land and water are not integrated into one system. In a land sense, you will have the department operating on its own in one part of the valley. It has no relationship with either the chairman or the committees of the Land and Water Board, or with either the Gwich'in or the Sahtu. We just do not deal with it. It is not there. We also do not have relationships set up between the present NWT Water Board and either the Sahtu or the Gwich'in Land and Water Board.
There would be a bit of disarray if you had a land use operation that spanned two borders. An example would be something that was partly in the Sahtu and partly in the North Slave, or partly in the Sahtu and partly in the Deh Cho region of the Mackenzie Valley. Who would make the final decision? Would you take the applicants put them through the Land and Water Board regime, and get one part of an approval, and then go to the DIAND's Land Use Office for the other part of your approval? If the operation requires a water licence -- that is, if it requires use of water in more than one location -- will you put them through two sets of water hearings, and get decisions from two sets of boards? We do not have that relationship at all. We have not dealt with it whatsoever.
Senator Andreychuk: It makes it cumbersome. You are saying that it is double the work, but, on the other hand, you have the same problem with the land negotiations. You are running parallel land negotiations, and the parties in those may want something different than the Gwich'in and the Sahtu.
Mr. Dunlop: It is possible, but that is the view that they have put forward. The co-management approach is the approach that Canada has adopted as the best one.
You have heard remarks that this is an old idea out of the 1980s; it is not. This is out of the 1990s. There is no co-management approach like it. There is nothing on the horizon that will approach this. This is real co-management. This department gets out of the business of permitting land. We get out of the business of running the environmental assessment regime, and we turn it over to two boards.
We have been criticized for the way our system works. For example, either we do not consult enough when we are making decisions and we do not involve enough people, or the time frame is too short. We will get out of the business altogether.
Senator Andreychuk: Is there a legal requirement? If you did not pass Part 4, but both sides deemed that it was necessary, could you not do the co-management by consensus and agreement, as opposed to mandating it in an act?
Mr. Dunlop: Consensus might work until a challenge was made. That challenge might come from a third party who does not agree with the relationship being set up between the co-management boards and today's system, or the remnants of today's system. When the third party says that you must hold a hearing and you have no choice, yet by consensus you have agreed that someone else will hold the hearing, you will probably lose the challenge. If the fact that two bodies do not have the legal ability to have one set of hearings is challenged in court, you will probably lose that challenge. It is ineffective, inefficient, and it is libel not to work. You do not have two laws that will fit.
The land use engineer who is referred to in law today is an employee of the department in the western Arctic and the Northwest Territories. This person issues land use permits today. The term "land use engineer" appears nowhere in this bill. There is no relationship to that land use engineer with anyone -- any chairman or any member of committees -- in this bill. It is not there because we are doing away with them.
Senator Andreychuk: If the land negotiations with bands other than the Sahtu and Gwich'in deem that another style of management for the valley is necessary, this bill would preclude it.
Mr. Dunlop: No, it would be amended by the implementing legislation.
Senator Andreychuk: It would have to be amended, which might then run counter to what the Sahtu and the Gwich'in want.
Mr. Dunlop: Yes. I should preface my remarks. That is a good point.
You could not agree to a land claim in the Northwest Territories that would cause you to reopen or artificially change Canada's obligations to the Gwich'in and Sahtu, without involving them in a renegotiation of their land claim. A final agreement cannot arbitrarily be changed. That is not done.
Senator Andreychuk: When the Gwich'in and the Sahtu agreements came through, we were told that the legislation would deal with their lands. I was not aware at the time that that agreement would bind the future land negotiations of others. Is not that the conundrum in which we now find ourselves?
Mr. Dunlop: You would have deal with the legislation that implemented the Gwich'in and the Sahtu land claims, and it has not bound anyone. What is binding the negotiations is Canada's position that there will be one integrated, comprehensive co-management regime in the western Northwest Territories. There are variations. Tinkering is being done, and discussions, options and versions are being discussed at a number of tables, but it will be the co-management approach. There will not be five management systems in the valley.
Senator Andreychuk: You say "there will be." Where is that stated? Is it just public policy? Is it government policy? Is there another piece of legislation other than this one, or is this where you are enunciating that policy?
Mr. Dunlop: This bill is just an occasion that sees an expression of that policy. We are using comprehensive land claim policy in the negotiations, the federal guide on self-government negotiations, the inherent right policy, and cabinet mandates for each of the approved land claims that are at tables right now. This bill is not driving anything.
Senator Andreychuk: This bill is driven by a government policy that was put in place after the Gwich'in and Sahtu agreement were signed?
Mr. Dunlop: No. The comprehensive land claim policy has been in effect since 1987.
Senator St. Germain: This is the co-management theory?
Mr. Dunlop: No. Co-management actually came out of the Gwich'in and Sahtu negotiations, and was based on the 1990 Dene-Métis agreement.
Senator Andreychuk: When was the theory that the entire area had to be co-managed put in place?
Mr. Dunlop: In 1994 or 1995.
Senator Andreychuk: It was after the Gwich'in and Sahtu agreements?
Mr. Dunlop: Yes.
Senator Andreychuk: That is the problem. We changed horses.
The Chairman: Shall we move on to another section? We were on the definitions.
Senator Austin: Are there any other questions that go to the issue that was raised by Senator St. Germain? Namely, that a comprehensive land and water management system for the Mackenzie Valley should only be enacted where there is unanimity of agreement amongst all of the communities represented there?
Mr. Dunlop has said that it is government policy to have an integrated management system. The reason for that policy -- and, you can correct me, Mr. Dunlop, if I am wrong -- is to facilitate economic development in the Mackenzie Valley. That is, to have a kind of one-stop shopping for the decisions of investors, mining companies, oil and gas companies and other investors who are, with the approval of the government and of the communities, making applications for permits.
Under the scheme of this legislation, the affected communities all participate in the decision-making process. My point is that there is a philosophical difference. I do not know how firmly Senator St. Germain maintains his point. In a negotiation, as he said earlier, those who have not yet concluded an agreement do not want to see any changes in the existing circumstance unless and until they agree. That is the leverage they want for their negotiations.
The minister and the government are saying that this regime would be without prejudice to their claims for self-government rights and land entitlements. This legislation does not affect those basic claims; it effects environmental management so that economic development can proceed.
That is my understanding, in the simplest possible terms, of what we are trying to do with this bill. Senators may agree with the premise put forward by Senator St. Germain, which was even more ably argued by Senator Andreychuk. However, it is my view that the legislation should go forward. I should like the committee to move through it to see whether there are any specific objections to any clause, and to try to deal with it this morning.
I know that Senator Adams, who is a patient man, is waiting with Bill C-39.
Senator St. Germain: That which the officials have put forward makes a lot of sense, providing that the participants agree with the spirit of it. From the beginning of time in this country we have imposed things on natives.
Once again, in a spirit of conciliation, we are only asking that those who wish to be left out are left out, in order that they can negotiate their land agreements.
I come from a common sense, straightforward background, and this is just plain, ordinary logic. I am trying to figure out how we can arrive at a solution that satisfies the requirements of the government, and yet does not cause a rift among the groups that have not yet settled their land claims.
That, in plain, ordinary English, is what I am seeking.
Senator Austin: How long would you wait for unanimity?
Senator St. Germain: I do not think we can put a time constraint on this. We have been at this for 130 years or so. Why do governments want to thrust things down the throats of these people? They are asking in good faith to be respected, because they believe that they will be impacted. I believe that as well.
Mr. Dunlop: It may assist members to know that clause 168 of the bill contemplates the ability to split a coming into force provision of the legislation. Our hope at this juncture is that all the parts, except Part 4, will come into force by September, and that Part 4 will come into force next year.
I do not know whether we will accomplish an agreement in principle in the interval with the Dogrib. I do not know if we will get past the framework agreement, and into an agreement in principle with the South Slave Métis. However, that delay in coming into force may be taken as encouragement to make progress at some of the tables.
Senator St. Germain: If the minister gave a letter undertaking that, with regard to the Governor-in-Council aspect of Part 2, the agreements made with the other groups would not be affected by Part 4, I would agree to the whole thing.
Senator Andreychuk: I do not believe we should be seeking unanimity. In reaching agreement on land claims with aboriginal groups, surely compromise is necessary. As well, surely the government has to ensure that it meets all of these groups on a level playing field.
My concern is that the Sahtu and Gwich'in agreements impact on the other groups. When the department approached the Gwich'in and Sahtu on the land claims, they negotiated the land claims with all the issues. I presume it was a compromise. I am sure that neither side got everything it wanted; at least that is what we were told.
Sometime in 1994 or 1995, however, the government imposed the term that the entire Mackenzie Valley must have a water control and land use system. That is an added non-negotiable item for the other groups which was not imposed on the Gwich'in and Sahtu. That concerns me.
I know that this bill has already been amended with comfort clauses in the other place, because members of Parliament were feeling uncomfortable that a land use and water policy was driving the land claims. These are non-negotiable items. A structure and a framework has been set out for them that did not exist for the Gwich'in and Sahtu. That is what troubles me. How do we allow land claims to be negotiated, leaving them as unencumbered as were the Gwich'in and Sahtu?
The Chairman: Senator Andreychuk, that is exactly the point. There is a misunderstanding. I think the department officials can expand on that.
Mr. Dunlop: This came up before, and was answered before by a previous witness. The bill is not driving the land claim negotiations, and the bill is not setting limits on the negotiating table. The federal government's positions at the negotiating table are driven by the comprehensive land claim policy, the inherent right policy, and the mandate to negotiate from cabinet; not by this bill.
When the government agreed to pursue regional land claims in the Northwest Territories, groups were advised in advance that Canada would be basing its negotiations on the 1990 Dene-Métis agreement. That is still the position, and it has been for seven years. It has not changed. That is why Canada is at the table. Some groups agree to that, and are negotiating with Canada. Some groups do not, and we are having talks or exploratory discussions. We have envoys dealing with them, but our position has not changed. It is not new at all.
Senator Andreychuk: You have changed from the principle to a structure that you identified. You are telling them now to live under that structure, and you have identified how that principle will be administered and put in place.
Mr. Dunlop: Not at all. The land and water chapter from the 1990 agreement is the land and water chapter -- chapter 24 -- of the Gwich'in land claim, and chapter 25 of the Sahtu land claim. That is exactly where it comes from. Its roots are in 1990, in the final agreement with the Dene-Métis.
Senator Andreychuk: Which failed.
Mr. Dunlop: Because of extinguishment, not because of the land and water chapter. We will not rewrite history here. It failed because of extinguishment, and the rancour that it caused in the north, not because of the land and water provisions or because of co-management.
Senator Andreychuk: I take the point of these groups that if it failed, it is not on the table. You have now gone back to renegotiating land claims, so all issues are subject to debate and negotiation.
Mr. Dunlop: No, all issues are not.
Senator Andreychuk: That is why there is a difference between the groups and the government.
Mr. Dunlop: Let me explain it again.
We have an aboriginal rights policy. We have a federal guide to the inherent right. In that guide are three lists of powers, areas of jurisdiction, and authority. Canada says up front that the first list it is willing to negotiate is the sole authority to First Nations. The second list may be negotiated, and it will be a shared authority. The legislative primacy will rest with Canada or the province, whichever has the jurisdiction. The third list is not negotiable.
To the extent that that is published, I guess it limits self-government negotiations, because Canada is saying up front that this is what it will negotiate.
Senator Andreychuk: That may be the government's point of view, but I am not sure that history can be taken only from the government's perspective of what is negotiable and non-negotiable. If we have a land claim, then the other side can also put on the table what it thinks is negotiable and non-negotiable. Hopefully they come to a consensus.
You are now saying, "No, we are free to pass laws that affect you if they come off our list, not off the combined list." I think that is the pressure point, and that is where we have a difficulty. Senator St. Germain may disagree with me, but I would never be in a position to say that what the aboriginals say is the only thing that goes, and until we get their consensus, we get nothing. In a land claim, why should some lists be non-negotiable? You are, in effect, affecting their negotiations.
Senator Chalifoux: I am not a lawyer. I am just an old Métis elder who has been dealing with by-laws and the Constitution for a very long time. In reading this bill, I would like to respond to Senator Andreychuk. I might be way off base, but clause 8(1) of the bill states:
The federal Minister shall consult the first nations with respect to the amendment of this Act.
I am only talking about this act, nothing else.
Clause 8(2) states:
The federal Minister shall --
-- not "may" --
-- in the course of any negotiation with a first nation relating to self-government, review the pertinent provisions of this Act in consultation with that first nation.
Does that not address this whole issue?
Senator Austin: You are a good lawyer.
Senator Andreychuk: It is a good comfort clause. It does restrict.
Senator Chalifoux: No, it does not. I would debate that. It says "shall," not "may." That is the difference.
Senator St. Germain: To expedite this process, how could we get the minister to give us the letter of undertaking I requested? Is she prepared to do that? Perhaps the officials can answer that.
Senator Austin: I do not agree with your premise at all. I think the legislation is desirable. I do not think it compromises those who have not yet agreed to land claims and self-government. I think it sets up a necessary environmental management system. As Senator Chalifoux pointed out in clause 8, it keeps the negotiations very close to the minister.
I believe this legislation is desirable. Senator St. Germain has already said that, with the exception of the single point he is making, he approves of the legislation.
I move, Mr. Chairman, that the committee adopt this bill because we will never get agreement with Senator St. Germain on the bill. There comes a time when we must make a decision, and I believe we are ready for the decision.
The Chairman: The only way to deal with that is to take a vote on the matter.
Senator Taylor: Question!
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Those in agreement with the motion will please raise their hands.
Those opposed to the motion will please raise their hands.
I declare the motion carried.
Honourable senators, shall I report the bill, without amendment, to the Senate chamber?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Austin: Perhaps now can we move on to Bill C-39.
The Chairman: We have to leave the room in five minutes.
Senator Johnson: Bill C-39 was agreed to by our side.
The Chairman: Is the Chairman allowed to make a motion?
Senator Austin: No.
The Chairman: Could someone move that we adopt Bill C-39?
Senator Austin: Senator Johnson is speaking to it at the moment.
Senator Johnson: I wish to speak to the issues that were raised in my speech yesterday in the Senate chamber. I believe that some official are here, and it would only take a short time for them to answer my questions.
The first matter in my speech concerned clauses 19 and 23. The way Bill C-39 is presently written, one would think that clause 20 was a consequential amendment to the Canada-Nova Scotia Offshore Resources Accord Implementation Act, but it is not. While clause 19 amends the Offshore Resources Act, clause 20 actually provides consequential amendments to the Criminal Code.
The drafting problem is that clauses 20, 21, 22, 23, 24 and 25 of Bill C-39 all deal with consequential amendments to the Criminal Code, but are listed under the heading of the Offshore Resources Accord Implementation Act. For the sake of clarity, if that is not good legislative drafting, this problem should be resolved.
Mr. John Merritt, Senior Advisor, Nunavut Secretariat, Department of Indian Affairs and Northern Development: We did look, senator, at your speech from last night, and we are satisfied that the titling reference in Schedule III actually captures the reference to the Criminal Code. In fact, there would be no confusion in the titling in that schedule as amended.
Senator St. Germain: What is the consequential amendment you are referring to, Senator Johnson? Can you explain the problem?
Senator Johnson: Perhaps the officials can explain it.
Mr. Merritt: The Nunavut Act of 1993 identified any number of federal statutes where geographic references that are confined at the moment to the Yukon and Northwest Territories have to be extended to refer to the three territories, as opposed to referring to the existing two. Some additional legislation adopted since 1993 must also be brought up to date to ensure that the geographic references are accurate.
Senator Johnson: It is not a major issue. It is more a drafting problem than anything else.
The other matter was on section 44 the Constitution Act. I have already consulted my colleague Senator Beaudoin on that. We raised it as a point of interest in terms of the future. Given that Nunavut is a territory, we are able to provide this extra Senate seat. If it were a province, of course, we would be in a different situation. We flagged it for obvious reasons in terms of the future.
We also understand that it is covered under section 44 of the Constitution. I am quite happy with that, and we have had another legal opinion. It is flagged for future reference in the event that down the road something may evolve in that area in terms of provincial status. Of course, the status of the Senate and the whole country would change if that ever happened.
Mr. Merritt: I would add that we have checked that a couple of times, and have also done so against your comments last evening. The legal advice we have consistently received is that the appropriate mechanism for a constitutional amendment of this kind is a statute of Parliament, as opposed to a resolution of the House of Commons and the Senate. The technique is one that flows from the wording of the 1886 Constitution Act. That technique, as you know, was used in 1975 when representation for the Northwest Territories and Yukon was added.
Senator Andreychuk: I am sure that the chair will be happy to note that I am supporting this legislation. I think it is long overdue. The problems of the Nunavut region will not be in the act; they will be in the implementation and the resources that are necessary to make this work. I hope that the government's attention to it will not wane once the bill is passed, and that there is renewed vigour to make it work.
Did you receive the certificate under the Charter of Rights and Freedoms, stating that the bill complies with the Charter of Rights and Freedoms? Have you done your assessment on that?
Mr. Merritt: The bill has been assessed against the Charter, and is consistent with it.
Senator Andreychuk: A referendum was taken. I take it that no groups have come forward formally to indicate that they do not support the Nunavut Act. Is that a correct assessment of the situation? There were pros and cons as to whether it should go ahead, but no one complained about the particular format of the act.
Mr. Merritt: The bill in question actually started out with a recommendation from the Nunavut Implementation Commission, which was an advisory set up by the 1993 act. In 1995, that commission identified the need for some amendments to the Nunavut Act to clarify a number of legal transitional issues. Since then, the department has consulted with a number of Nunavut groups, the government of the Northwest Territories, the Nunavut Tunngavik, and the Implementation Commission. All those groups appeared at the House of Commons standing committee and supported the bill. We are not aware of any Nunavut group that opposes the bill.
Senator Adams: If there are no further witnesses, I move that we proceed to clause-by-clause consideration of Bill C-39.
An Hon. Senator: Dispense.
Senator Austin: I move that the bill be adopted.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, shall I report the bill, without amendment, to the Senate chamber?
Hon. Senators: Agreed.
The Chairman: Carried.
The committee adjourned.