AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 2, 1997

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[Translation]

The Chairman (Mr. Guy St-Julien (Abitibi, Lib.)): We have in front of us today Bill C-6, an Act 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.

We welcome today, from the Northwest Territories Chamber of Mines, Mr. Mike Vaydik, General Manager of the Chamber and Ms. Brenda Kuzyk, member of the Chamber's legislation committee. Mr. Vaydik, do you have an opening statement?

[English]

Mr. Mike Vaydik (General Manager, Northwest Territories Chamber of Mines): The mineral industry of the Northwest Territories firmly supports the principles and intent of Bill C-6. The resolution of land claims, the full participation of aboriginal people in resource decisions, and a northern system of integrated resource management are all goals the Northwest Territories Chamber of Mines has fully endorsed many times in public fora. Our concern is not with the principles but with the practical aspects of this bill; with its workability. We are of the opinion that the system outlined in Bill C-6 and the regulations are not workable and unless amended will prove to be a serious deterrent to mineral exploration and development in the Northwest Territories.

The NWT Chamber of Mines has a membership of over 600 companies and individuals, spanning a full range of mineral activity in the Northwest Territories: existing mining operations, large and small; large prospective developers; junior and senior exploration companies; the geophysical sector; related consulting and service companies; and individual prospectors. The mining sector that sustains our membership is by far the largest private sector generator of wealth and activity in the Northwest Territories and the largest private sector employer of NWT residents, both aboriginal and non-aboriginal.

Mining is about a $1 billion industry in the Northwest Territories. Our territory has approximately 65,000 people and it has the fastest-growing natural population in Canada.

Mining is also an activity of long standing. Before Europeans arrived, there was trade between Inuit and Dene in the Slave geological province for native copper.

We bring to the issues before you fresh experience with a protracted environmental assessment review, completed last year on the BHP Diamonds project at Lac de Gras, the first full review ever undertaken in Canada on a non-uranium mine. Depending in part on the quality of the system that Bill C-6 will establish, we hope that other mineral prospects will be brought into production to replace the several existing mines that will close over the next ten years or so as economic reserves are depleted.

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We also bring first-hand evidence of how exploration can be deterred by overly complex regulation. Many exploration companies, including our own members, are choosing to divert investment away from the Northwest Territories, citing regulatory uncertainty and the daunting costs and delays involved in regulatory compliance.

We know from experience that once such investment opportunities are lost, they are lost for good. This is not the first time we have raised these concerns. We are active participants in the Whitehorse Mining Initiative, the results of which have been endorsed by federal, provincial, and territorial governments across Canada. In other initiatives on regulatory reform, the chamber has presented related concerns to the standing committee on natural resources.

Over the course of the long evolution of this bill, the chamber and our members have also provided comment both to the regional office of DIAND in Yellowknife and to Ottawa. DIAND officials have explained that our concerns are not serious and can be dealt with by procedure. We understand their view, but we simply disagree.

Based on a close review of the legislation tabled as Bill C-6, and the draft regulations and the list provided to us in recent weeks, we are convinced that there remain serious flaws in this regulation. Unless these are addressed before the bill is passed into law, we fear that the new system will make doing business in the Mackenzie Valley much more difficult. Years of effort may be lost.

We think the amendment suggested in this brief will go a long way towards addressing those flaws.

Before moving on to the specifics of these concerns, we would like to emphasize our appreciation of the good intentions of those who have worked to develop this legislation, and especially of the goodwill and diligence of the working groups for the various boards. We fully appreciate the difficulty in finding a balance among such diverse interests.

Our points here are practical, based on the belief that no interests are served in the long run by a system that proves unworkable.

I'll now address some specific concerns. In terms of the continuity of process during the transition period, further changes are needed to ensure that projects that are initiated before passage of Bill C-6 continue to final decision in the current system and do not switch over part-way through.

Such a transfer would cause considerable repetition for applicants, needless delays, and incremental costs that provide no improvement in the protection of the environment. The proposed amendments are also necessary to prevent overload of the system during start-up, which is a concern that has been or will be raised before you by the review committee working group.

Applications to the Northwest Territories Water Board for water licences made before Bill C-6 comes into force should go through to final decision by the Northwest Territories Water Board under the current rules. We ask that further amendments to subclause 159(2) be made so that projects that commenced environmental screening and an assessment prior to Bill C-6 continue under CEAA to a final decision. We ask that you amend clause 127 to bring it into line with these changes.

We would ask for amendments to clause 152 as proposed in the amendment tabled here on November 18. We support this change. We also ask that decisions made under this and past processes be honoured.

Bill C-6 as written could result in existing projects that may or may not have undergone an environmental review under previous systems having to undergo a full environmental assessment on the whole operation as a result of applying for a licence renewal or a new permit. This was also a concern raised by the review board working group. A new clause is required to limit the scope of the activity for preliminary screening and environmental assessment to the extent to which the issuance or renewal entails an alteration of the project.

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We would ask that clause 127 be amended to require that not only the review board but also preliminary screeners would have regard to any report. As well, we would ask that amendments be made to broaden the definition of a report to one undertaken pursuant not only to CEAA and EARP but also to this legislation.

We would ask that subclause 117(1) be amended to require that the scope of the development to be reviewed be limited in the case of a request for a new permit, new licence, or a renewal or amendment to the alteration of the project.

We would ask that you introduce a new clause under clause 159 to require that past decisions made pursuant to this and previous processes, including EARP and CEAA, stand, and will not be reopened unless there is a substantial change in the scope of the development. Regulations should be issued to define the thresholds beyond which the change of scope is so extensive that the entire operation should be subject to review.

We ask that you prevent duplicate reviews. We're concerned that Bill C-6 encourages but does not require co-operation of the Mackenzie Valley boards with other jurisdictions outside the Mackenzie Valley, opening the possibility of duplicate or sequential reviews. This could have severe implications in terms of cost, lost time, and perceived unpredictability and arbitrariness of the system.

We ask that Bill C-6 be amended to provide an overall co-ordinating authority to the Government of Canada so that in the event of the failure of efforts to co-operate under clauses 107, 140, 141, and 142, each of which deals with the interjurisdictional co-ordination, the crown is charged with the task of co-ordination on the principle that a project should not have to undergo more than one review before a land and water board or one review before an environmental impact review board.

We would like to see the bill provide some flexibility in permitting for larger operations. For any substantial project, the requirements for permitting will be much onerous than under the current arrangements, not just during transition but also in the long run. While there is at present some flexibility under the lease arrangements, Bill C-6 will require operators to be constantly applying for new or amended permits.

This feature, combined with the risk of opening the whole of the project to environmental assessment, could actually deter operators from innovation or adaptive management in search of higher environmental standards.

We would ask that the bill use the regulatory powers under clause 90 to introduce a new form of permit or licence for complex or lengthy developments to cover a large number of activities and allow for some flexibility for operators, and use the regulatory authority under clause 90 to set thresholds for the extent to which an activity or project can change before a new permit or a new environmental assessment is required.

I think it's important that we anticipate delays in the start-up of the Mackenzie Valley Land and Water Board.

[Translation]

The Chairman: I am sorry to cut in, but I know that your statement is rather long and we had reserved only five to ten minutes to hear it. The problem is that we have arranged a live video conference with Yellowknife for 11 a.m. and we hoped that the members would have a chance to ask questions. To follow up on your opening statement, I invite you to table with the committee the rest of your presentation, that is pages 5 to 15 of your brief.

Mr. Konrad, do you agree that the documents be tabled directly with the committee?

[English]

Mr. Derrek Konrad (Prince Albert, Ref.): I think we have it already, right?

The Chairman: If you could try to come to a conclusion, we'll have members ask questions. Allez-y.

Mr. Mike Vaydik: I could considerably shorten this by not going into the detail, but I'd at least be able to cover the scope.

The Chairman: Thank you very much.

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Mr. Mike Vaydik: The Mackenzie Valley Land and Water Board will be asked to set a very heavy schedule of writing rules and policies. That board is not in place right now, so it needs to be anticipated that there will be delays in start-up. As that board will cover most of the area my industry is concerned with, we're very concerned about possible delays it might cause. We would ask that the amendments we referred to on page 5 be taken into account, which may help to alleviate some of that.

We're also concerned about the technical capacity of the boards. Land and water management requires technical capacity to deal with complex issues at every stage of screening and review. We would like to see some provisions to allow the minister to take that into consideration when making appointments to the board. Also, we would like it shown that boards must take that technical review into account when making decisions. That's in line with the Northwest Territories Waters Act as we currently use it.

We would like to see some qualifications on the power to suspend licences and permits. Obviously that's a major concern to an operating mine. If its licence were for some reason suspended or cancelled, it would mean a shutdown of the mine at great expense, so we would like some direction given to that.

We also believe that some specification needs to be given to the rights of applicants. You'll see under points 16 and 17 some specific mention of what we would like to see.

Also, we're aware that at start-up, a number of first nations may not be ready to make appointments to the Mackenzie Valley Land and Water Board. We are concerned about the ability of that board to carry out decisions without a quorum, and we would like some consideration given to allowing the minister to make appointments on consultation, but not necessarily on nominations from those boards, so that life development can go on until those appointments are made.

We're concerned that clause 125 allows a very low threshold for environmental assessment. We'd like to see a very minor change from “public concern” to “significant public concern” to allow us some comfort that every small activity would not be subject to a full environmental assessment.

We are particularly concerned with staking. Staking is the lifeblood of the mining industry in Canada, the free entry system of obtaining mineral rights. We're concerned that an interpretation of clause 126 might allow some review of the actual staking procedure. We know that's covered in regulation, but it would give us more comfort if it were covered in the act, as we recommend in a small amendment to clause 126.

We have some other concerns about clause 126, but they're fairly detailed, so I'll skip ahead.

We would like to see the minister use her or his authority under clauses 90 and 143 to establish consistent rules for application across the Mackenzie Valley before Bill C-6 is put into force. Otherwise we see that there could be a patchwork of rules, which is not the intent of this bill.

We would like to see clarification of two clauses of the bill that seem to speak to different items of public interest. Clause 58 refers to “all Canadians” as well as residents of the Mackenzie Valley, but clause 115 speaks of the interests of residents of the valley and not necessarily to those of other Canadians. So we would like those brought in line.

There are also concerns regarding the water compensation requirements, but I understand you will be talking to Mr. Alvarez from the Northwest Territories Power Corporation later, so in view of the time, I'll skip ahead and let him cover that section.

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In the bill, we would like to see some regard for timeliness of decision-making. Although there is a 42-day time limit for type-A permits, after that it becomes very nebulous as to what timeframes the reviews could take. Investors need to know the time costs of money and how long decision-making will take.

We would also like this bill brought into line with other regulatory reform initiatives that we have been part of designing over the past few years: the 1996 minerals and metals policy; the streamlining of the environmental regulation for mining initiative; the Whitehorse Mining Initiative Leadership Council Accord; the horizontal review of regulation; and the business interest test of Industry Canada. Each of these initiatives speaks to the pressing and acknowledged need for greater clarity, consistency, and predictability in regulation of the matters dealt with in this bill. We would like to see those tests applied to this bill.

We have travelled here today to impress upon you the importance of the mining sector to the workability and fairness of the Mackenzie Valley Resource Management Act. Had it been possible to hold the hearings in Yellowknife, as we had urged, more of our members and other stakeholders would have been able to attend and to speak. I think you might understand that some of us are a bit confused and a bit concerned about the videoconferencing method, and some of us prefer a face-to-face approach.

We hope you will suggest these suggestions in the constructive spirit in which they are offered. They are not radical suggestions, and many will repeat suggestions presented here by others concerned with the practical workability of this system, such as the review board working group.

Thank you for your time today.

[Translation]

The Chairman: Thank you, Mr. Vaydik, for your presentation. The members are going to read it. We are going to start the first round of questions. You each have five minutes. Mr. Konrad.

[English]

Mr. Derrek Konrad: Thank you, Mr. Chairman.

One concern that I have isn't directly related to this bill. When we talk about land and water management, part of land management also includes not only who owns the land but what sort of property rights structure has been determined in the settlement areas, because you'll be dealing with those issues as well. Do you know how titles, rights of way, leases, and easements have been handled in the past, how they're currently handled, how they're going to be handled in the future, and whether or not this bill will have any impact on those things?

Mr. Mike Vaydik: We see these boards as public governments. They have representation from aboriginal people and from the public at large, and we believe we will basically have the same ability once these boards are in place and once the workability problems we see in the bill as it is are worked out. We don't see any problem in negotiating access to land with those boards.

Mr. Derrek Konrad: Are you sure it's the boards you're going to be dealing with, though?

Ms. Brenda Kuzyk (Member, Legislation Committee, Northwest Territories Chamber of Mines): The Department of Indian Affairs and Northern Development currently has responsibility for issuing leases and easements and things like that, and the Department of Indian Affairs will continue to do that, to have responsibility for crown land. The boards will get a sort of permission from the land owner and will have to notify the land owner, which would be the crown, and the Department of Indian Affairs will continue to have that responsibility. The boards will notify DIAND that there's an application before them with respect to crown land.

In the Gwich'in and Sahtu respective areas, they'll have private land that will be the responsibility of the Gwich'in Tribal Council and the Sahtu Secretariat respectively. They would have to provide permission for that land use permit to be issued on private lands, while DIAND has responsibility for crown lands.

Mr. Derrek Konrad: Where will the titles, easements, rights of way, be registered?

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Ms. Brenda Kuzyk: Under the federal Real Property Act, the same as it is now. DIAND has the responsibility to manage all of that and they'll stay like that.

Mr. Derrek Konrad: You're sure of that, are you?

Ms. Brenda Kuzyk: With respect to the issuance on private land, I'm not sure who has responsibility to manage those rights after the MVRMA, but I think right now—

Mr. Derrek Konrad: That's the point of my question. Are you sure these things have been dealt with?

Ms. Brenda Kuzyk: No. I guess that's something else on private land in the Sahtu and Gwich'in areas. Outside, in the Mackenzie Valley, it would be DIAND.

Mr. Derrek Konrad: I spoke to the surveyor-general and he's not sure.

Ms. Brenda Kuzyk: Yes.

Mr. Derrek Konrad: All right.

The Vice-Chairman (Mr. John Finlay (Oxford, Lib.)): Monsieur Bachand.

[Translation]

Mr. Claude Bachand (Saint-Jean, BQ): First, I would like to congratulate you because your brief is perhaps the most technical that was submitted to us. Even if it might be more difficult for us to sift through it because of the many amendments you propose, we are happy to see that you took your work seriously.

I would like to relate your presentation with something which happened last week, when the mines lobby was on the Hill. I must say, they did a wonderful job. I personally met three lobbyists, and their view was, apparently, that the main constraints on the competitivity of mining in Canada and in Quebec was regulations, too many boards and environmental issues. I would like to have your comments on that.

Without repeating what the lobby already said, I would like you to tell us whether the bill we have in front of us might have a rather noxious effect on the investment perspectives in the Mackenzie Valley. Could it be that investors who are interested in the Mackenzie Valley come to think that the boards we want to create, as stipulated in the bill, are too complicated and too complex and prefer to go elsewhere to invest? This is my first question.

Second, yesterday in Nova Scotia, the judge tabled his report regarding the Westray Mine. I have been involved for 20 years in union negotiations and I wonder what kind of influence the report on the Westray Mine is going to have on the balance of power whereby the mines now have the upper hand. I am not saying that every mine in Canada is run in the same incompetent way as the Westray Mine. However, do you think that, because it happened yesterday, just as we discuss this issue, it will have some kind of impact?

Here is my last question. Last week, Mr. Patry tabled here an amendment regarding the notion of certainty which, I know, is a matter of concern for you. This amendment specifies:

152. The rights to the use of land under any lease, easement or other interest in land that was granted under the Territorial Lands Act or the Regulations made pursuant to that Act, or under any territorial law, and that exist on the coming into force of sections 54 and 56 or section 99 continue in effect after that section comes into force, subject to the terms and conditions of exercising those rights.

So this means that any initiative taken under the previous act will remain valid, and there will be an exception to the legislation currently before us. What do you think of this amendment?

[English]

Mr. Mike Vaydik: I think I can respond to the first question. I'm not sure I understood the second one.

We believe that mining legislation and environmental legislation in total has an impact on investment in Canada and on our ability to compete in the world market. Mining is a global industry and we compete with people all over the world.

This legislation is long and complex, but I think if the amendments that we seek are made, it will help to clarify some of the issues my members have problems with. Complexity itself, I guess, is not a deterrent if all of the items are clear.

To give you some indication of what's going on in the world market of mining, the Prospectors and Developers Association of Canada believes that even though investment in exploration has been increasing slightly over the last few years, we are losing market share, and the association believes that money raised on Canadian stock markets is being used increasingly to invest in ventures in South America, in Greenland, and in other jurisdictions that have maybe not as stringent but for sure more clear environmental legislation.

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I'm not sure I understand the second question.

[Translation]

Mr. Claude Bachand: My second question was on the balance of power following the tabling yesterday of the report on the Westray Mine. You did not answer that question nor the last one. You have here an amendment which would allow development projects undertaken under the previous legislation to proceed and not be subject to the legislation before us. This is an amendment the committee will have to make a decision about. Perhaps, if you cannot answer today, you could at least take this amendment in consideration and let us know about your thoughts before we vote when we do the clause-by-clause review of the bill next week.

[English]

Ms. Brenda Kuzyk: I'd like to respond, if I could.

The Vice-Chairman (Mr. John Finlay): All right—briefly, please.

Ms. Brenda Kuzyk: Clause 152 speaks to the issue of land use permit on lease and the requirement, I guess, not to do that for leases that are in existence. The concern we have goes beyond just the issuance of those land use permits on lease for existing activity. If there's a small change in the operation, there's nothing in the legislation that defines what that change in the operation is that would require a land use permit, or the extent to which the previous assessment is applied against that application. There needs to be some consideration given to restricting the scope of that assessment, and then the application for the land use permit as well. But this is good.

The Vice-Chairman (Mr. John Finlay): Thank you.

Madam Hardy.

Ms. Louise Hardy (Yukon, NDP): Thank you. I'm concerned about your issues around quorum. The spirit of the bill was to give first nations people more control or a measure of more control over their own land. Why would you want this amendment to limit that—to give the minister power to override whether or not they have a representative?

Mr. Mike Vaydik: It's not meant to override, by any means. I should make that clear.

What we are concerned about is that, as you're probably aware, some of the first nations in the valley are not really thrilled with this bill because it's coming before they have negotiated their land claims. We are concerned that if they decide not to appoint members before they have settled their claim, it could bring development to a halt in that area. That's a major concern for companies who have invested millions of dollars in staking claims and doing exploration work.

What we are asking for is certainly not to override a first nation who may not make a nomination, but that the minister could, before those people do, make appointments upon consultation with them, rather than receiving a nomination.

Ms. Louise Hardy: Thank you. That's all.

The Vice-Chairman (Mr. John Finlay): Mr. Keddy.

Mr. Gerald Keddy (South Shore, PC): I'd like to thank Mr. Vaydik for coming down here today.

I have a couple of questions. I think you made it very clear, but I'm not sure it's clear for everybody at the table. When you were discussing the DIAND responsibility for unsettled land claim areas, that's just an interim measure and was not looked at as anything like a long-term measure. This is strictly an interim measure until those land claims are settled. When they're settled they become private land under the jurisdiction of whatever tribal council has settled the land claim. Is that correct?

Mr. Mike Vaydik: Parts of it are private land and parts of it are still crown land within the settlement area.

Mr. Gerald Keddy: What parts would still be crown land?

Mr. Mike Vaydik: The majority of the land actually would be. In terms of the Gwich'in, I can't give you the percentage, but the percentage actually owned surface and subsurface by Gwich'in is quite small in relation to the total area.

Mr. Gerald Keddy: To the total land claim area?

Mr. Mike Vaydik: Yes.

Mr. Gerald Keddy: Okay. You're also talking about an inclusive set of regulations. As I understand it, these regulations are meant to replace the existing regulations in the Northwest Territories. That includes the Northwest Territories Waters Act and whatever other regulations are on the ground there now.

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I don't understand where you're coming from when you want to include those acts now. We're making a new act to replace those other acts. If you include them in it, it's just adding to the legislation.

Ms. Brenda Kuzyk: I believe you're speaking to the Mackenzie Valley Land and Water Board and the potential for delaying implementation of that board.

In order for the Department of Indian Affairs and Northern Development and the NWT Water Board to continue issuing permits outside the Sahtu and Gwich'in areas, they need to be able to implement the existing legislation, unamended by the Mackenzie Valley Resource Management Act, and in order for the environmental assessment process to apply Mackenzie Valley-wide, the department and the NWT Water Board need to become preliminary screeners. In order to do that, that legislation has to be on the statutes, at least temporarily, to allow them to fall under the same environmental assessment regime so they become only a regulator, not an environment assessment instrument.

Mr. Gerald Keddy: Is that clearly explained in this brief?

Mr. Mike Vaydik: We hope so; in detail.

Ms. Brenda Kuzyk: Yes. We would welcome further clarification, if you require it.

Mr. Gerald Keddy: No, I think I see where you're coming from. But at the end of the day, when the proposed Mackenzie Valley Resource Management Act is in place, the other acts—

Ms. Brenda Kuzyk: They would require further amendment to take those off, because then they wouldn't be necessary.

Mr. Gerald Keddy: Yes. They would be redundant.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Keddy.

Mr. Wilfert.

Mr. Bryon Wilfert (Oak Ridges, Lib.): Thank you, Mr. Chairman. I would like to thank the witnesses for being here today.

Mr. Chairman, from a practical standpoint, so I don't ask the staff to run up to the microphone again, although I think that's far more efficient.... In any event, about the practicality of the amendments being suggested, we're looking at clause-by-clause maybe at the beginning of next week. Will we get a written response back before then in order to evaluate the comments from the department as far as the proposed amendments are concerned?

The Vice-Chairman (Mr. John Finlay): Yes, you will.

Mr. Bryon Wilfert: Okay. Thank you.

I was struck, witnesses, by your comments that you support the principles but you were concerned about some practical applications. I presume this is fleshed out in there. For example, the technical capacity of the members: could you elaborate briefly on what you would be looking for in the technical capacity and how you would see that being spelled out in the provisions?

Mr. Mike Vaydik: Without trying to tell the minister what to do, obviously, we would hope the minister would be guided to choose nominees who were knowledgeable about land and water management. Water management particularly is quite technical. The Northwest Territories Water Board now has a technical advisory committee, which in its regulations provides reports to the board, on which they base parts of their decisions. We don't see that in this bill and we would like that requirement for technical review of applications included in this bill.

That's it, in a general way.

Mr. Bryon Wilfert: I have one other question. If I understand you correctly on the issue of providing flexibility for permitting for large operations, if you have an existing mine, for example, and you wanted to make an addition to it, you would like that any environmental assessment would be on the addition, not encompassing the entirety; which would seem to make practical sense and realistic sense. If it was built 20 years ago or 40 years ago, it's only the new part.

Okay. Thank you very much.

The Vice-Chairman (Mr. John Finlay): Mr. McNally, five minutes.

Mr. Grant McNally (Dewdney—Alouette, Ref.): Thank you, Mr. Chair.

Thank you for your presentation this morning.

You mentioned earlier on in your brief that you had made suggestions or talked with the department about different procedures. Some of them you went over this morning. I wonder what the response coming back from the department was and why you feel their suggestions to your concerns aren't workable.

Mr. Mike Vaydik: We thought some of our concerns may not have been understood in detail. That's why we've tried to provide some more detail.

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The Chamber of Mines does not have the resources to do a legal draft, and we're not attempting to do that, but we're trying to provide enough detail in this brief for clarity to the drafters, so they can appreciate what we're trying to say.

We're concerned because we're the ones who are going to be affected by this, our livelihoods. And we believe the economic future of the western Northwest Territories, as we know it today, may lie in the balance here.

Mr. Grant McNally: So quite a few individuals have let you know that if this bill goes ahead without any amendments, it will have a drastic economic impact in the area?

Mr. Mike Vaydik: Yes. I'm sure you haven't all been getting cards and letters from our members, and it's true they rely on the chamber to voice their opinion. I get phone calls. I get hauled into backroom sessions at various conferences on mining that I attend.

Exploration people who would be affected by this don't spend a lot of time reviewing legislation. They count on the chamber to do that for them. The existing mines are having a tough time right now in the Northwest Territories, with the low prices for gold, and they're busy doing other things, too. So, in light of those challenges, they're counting on the chamber to bring their points forward.

Mr. Grant McNally: We have a note here that you had a meeting planned for November 14 with the department. Did that go ahead?

Mr. Mike Vaydik: We did have a meeting with the department, yes.

Mr. Grant McNally: Did you feel there was progress towards addressing your concerns?

Mr. Mike Vaydik: We are aware of two amendments that came out of that, to clauses 152 and 159. Unfortunately I haven't had time to review those in detail, but they definitely represent some progress on some of our major concerns. Whether it goes far enough, I couldn't say right now.

Mr. Grant McNally: Thank you.

Ms. Brenda Kuzyk: Many of the concerns that have been voiced have been responded to with an assurance that process and procedure established by the various boards will address those concerns. The mining industry is not confident that those boards will be able to do it sufficiently.

As well, some of the boards would welcome clarity in the legislation to allow them to create those processes and procedures to avoid future challenge, say, in litigation or court injunction-to-stop processes. I think any change would be welcome by those boards to support the work they're doing, as opposed to them having to start from scratch themselves.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. Bryden.

Mr. John Bryden (Wentworth—Burlington, Lib.): I have some comments and questions.

I also picked up on your request for technical competence for people nominated to boards, but my experience with boards in general and with this type of quasi-judicial regulatory agency is that any person who is intelligent and relatively experienced in life can usually master whatever topic is put before them. If you require technical competence, you usually acquire technical bias.

So are you certain that what you really want there isn't just some sort of guarantee—and no guarantee can ever really be put forward—that the people nominated to the boards are generally competent? You want competency, but not technical expertise, surely. Is that not fair?

Mr. Mike Vaydik: That's true.

Mr. John Bryden: Okay.

Ms. Brenda Kuzyk: Associated with that is a difficulty we're having in the territories to find enough people to do all the work that communities are being faced with. There's everything from their own self-government, their own negotiations, their own internal political struggles, and all that, and then there are changes to legislation and companies consulting on specific project-related things. So there's a lack of enough people and capacity in communities to participate in this sort of thing. That's also a concern related to that.

Mr. John Bryden: I do remember that the Chamber of Commerce, I think it was, did observe that competency, as opposed to expertise, was available in the north. They said there were all kinds...not all kinds of people, but they certainly defended the fact that northerners could produce people of competence to sit on boards.

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So not to contradict what you...because I understand exactly where your concern is. You want competency. I just wanted to clarify the point.

You mentioned clause 115 and all Canadians conform with clauses 35 and 58, I guess. Isn't that something you could just put in the general provisions for all boards? We've actually been having discussions with other witnesses with respect to that, and I have a lot of sympathy with that. All-Canadian seems to be a theme that runs through this bill, but it appears and disappears. So perhaps that's something we can move right forward and we can say that that's what should be expected of all boards.

Still on the question of boards, and boards in general, would it help your concerns—be they competency or technical expertise or whatever—if in the general provisions we provided or specified standards of transparency? Would it help you from your industry perspective to be able actually to see into the deliberations of the boards in the maximum way so that if there is incompetency or experts are coming forward who do not have the expertise...? I noticed that, and I can see where that would be a concern. Would it help if the board meetings were as open as possible when they hear this kind of witness, actually hear the witnesses as opposed to merely make reports?

Mr. Mike Vaydik: I believe that would help.

Mr. John Bryden: That would help a lot, wouldn't it? I take it that then you'd be able to send people, and if you disagreed with the quality of the testimony or evidence being submitted to the board you'd be able to protest in the local newspaper or whatever else.

Ms. Brenda Kuzyk: Yes.

As well, I think there's a requirement to provide clearer definition of some of the terms that are used in the legislation. As an example, public concern: what constitutes public concern? What is significant? Provide some measure of that. Although the boards are working towards determining that themselves, I think they're worried about also being subject to some criticism as to how they define that. From an industry perspective, it would be helpful to have that defined so that we will know up front what we're dealing with.

Mr. John Bryden: I really don't know how you'd define “significant”. However, “significant” is measured in the court of public opinion.

This is why I suggest transparency. If a board resists something as a result of public concern and the story is out in the press and the public isn't concerned, then it's very difficult to defend the position.

I noticed the word “significant”, but I would have difficulty in knowing how to define it. Transparency I understand.

I don't want to run out of time here. Can I go on to another point, which I think was more contentious?

The Vice-Chairman (Mr. John Finlay): You have 30 seconds.

Mr. John Bryden: Well, it's very difficult. Yes, I see I have only 30 seconds.

You're wanting a new clause after 142. What you're concerned about here is that the governor in council should intervene if there's interjurisdictional dispute. I can appreciate that, but what I cannot appreciate is the suggestion that when the boards go into another jurisdiction, considering environmental impact or whatever, you wouldn't want to have input from the board in the other jurisdiction.

I don't think that actually fits—and my colleague next to me would know better—with what happens elsewhere. When you have problems that go across provincial or municipal lines, the environment assessment boards of both those jurisdictions usually want to have a say, and I don't know if what you're asking there is reasonable. I certainly agree that there should be intervention if there's a stalemate, but—

Ms. Brenda Kuzyk: I believe what we're looking for is along the lines of harmonization, similar to what is being done for CEAA and the provincial legislation to ensure that there's a vehicle for those boards to work together without having to come up with their own memorandums of understanding, their own separate agreements to deal with issues on a project-by-project basis, to have an overall application that would apply consistently as opposed to when there's an occasion to apply.

Mr. John Bryden: If I understand you right, what you're looking for really is arbitration by the governor in council across jurisdictional lines, however we do it, or at least the option—

Ms. Brenda Kuzyk: Or the ability to do it if it's required.

Mr. John Bryden: Or the ability. Yes. Okay.

Ms. Brenda Kuzyk: And some provision in the legislation for harmonization or a definition of how those arrangements will be made, through an MOU or something else.

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Mr. John Bryden: Thank you, Mr. Chairman.

The Vice-Chairman (Mr. John Finlay): Mr. Bachand.

[Translation]

Mr. Claude Bachand: I would like to come back to your concerns about the competence of future boards. As I understand, the Chamber of Commerce proposed to create a special training fund to improve the competence and technical expertise of people who will be members of the boards. Do you think that the Northwest Territories Chamber of Commerce had a good idea when it suggested that part of the funds which are going to be allocated to the major boards be reserved for the training of future members of the boards, so that they may become more competent?

[English]

Ms. Brenda Kuzyk: I believe a significant level of training is being undertaken with the working group members. Part of the difficulty with this is that all of the nominees to the boards are not in place. The Mackenzie Valley Land and Water Board is an example of that. As well, members of the Mackenzie Valley impact review working group, the nominees that will actually sit on the board, have not been made outside of the Sahtu and the Gwich'in, except for the Dogrib. So there's a concern that if the act is proclaimed in March, incoming members will not have had the benefit of time.

The members themselves are undergoing some training, but it's the staged appointment or appearance of the membership and how it's handled. The Mackenzie Valley impact review working group, as an example, has spent an awful lot of time training, but only a portion of their membership, not the entire board. As the claimant groups outside of Sahtu and Gwich'in come up with nominees, they too will require training. It's a significant learning curve, especially for something like environmental assessment, which is quite a complicated thing to have to undertake.

So the boards are having training, but it's within restrictions, or with lots of constraints.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Bachand.

Mr. Iftody.

Mr. David Iftody (Provencher, Lib.): Thank you, Mr. Chairman.

Thank you very much for your presentation. I want to pick up on a point made earlier with respect to the transitional clauses. I have to confess, I don't know the history leading up to the agreements you have currently with respect to your mining activities.

I fully appreciate the fact that the new legislation could presumably complicate that process, or stall that process, and call into question agreements that had been signed and reviewed under a previous practice and policy, but I'm not entirely clear what your fears are with respect to some of the existing agreements. I know you've tabled some amendments here, but would you foresee, for example, under the new regulatory process, a tribunal of any type casting out former agreements, whether it's on water management or land exploration or environmental assessment processes? Is this a reasonable and probable outcome that you fear?

If you could, Mr. Vaydik, comment briefly on that, please, because I want a supplementary to your answer.

Mr. Mike Vaydik: The bill as it was written does exactly that. It calls for a review within a time period of every permit and licence issued. We have some comfort from the amendments referred to earlier by Mr. Bachand, that there will be some grandfathering now. So we have gone some way toward getting those concerns allayed.

Again, I haven't had time to review the amendments in detail to be assured myself that we have everything we need. But that's a very major concern from not only industry's perspective but also the board's, who would have to review all those.

Mr. David Iftody: Right. The point I'm trying to make here, I guess...and there's no sense for the Government of Canada to over-complicate the process other than to create more work for ourselves, which is always good; we don't want to be unemployed around here.

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If it is true that the stakeholders are comfortable with the former agreements that have been signed—and I'm talking about the first nations people, the mining corporations, respective regional governments that are involved and most of our officials—if those agreements were okay yesterday and they're signed and everyone is compliant and reasonably relaxed about that, I don't see any reason or compelling case to complicate this with further process and review, which disrupts the predictability of contract and your undertakings, and perhaps even in some cases those first nations groups that want to proceed.

Is it your view then that the current agreements you have on the processes are reasonably satisfactory to all the stakeholders? I'd like a yes or no or some elaboration on that.

Mr. Mike Vaydik: They're probably reasonable to industry, but they're not to the first nations, who, as part of their land claims, have agreements with the crown about management of land and water, and this bill is designed to live up to those agreements on behalf of Canada.

Mr. David Iftody: In terms of the protection of those aboriginal and treaty rights under section 35 of the Constitution, I believe it is, which we have a fiduciary duty to uphold and protect, and I don't know if we're at the committee table to do this. Are there some bright, intelligent, and insightful folks out there who could on the one hand make sure those constitutional provisions are protected and that the aboriginal first people are guaranteed certainty with respect to their interest while at the same time allowing life to go on and to proceed with your investments, your due diligence processes, at the same time? Is there any way of crafting something in the legislation to refer to that?

Finally, I'll pick up on on some comments made, I believe, by the Minister of Natural Resources for the Northwest Territories government. When he was here a couple of weeks ago, he said this of course is their overarching and paramount concern, but certainly we can protect those and move forward in some of these more incremental kinds of things.

Do you have any thoughts on that?

Mr. Mike Vaydik: It's a big question. If it were possible to do that, it would go to some clarity, but each aboriginal group has its own aspirations and will be signing its own agreement concerning these. I want to be fair to the department and to underscore the fact that the chamber isn't against this legislation. We think it's trying to do the right thing, which is to put decision-making in the north and respect aboriginal claims.

So maybe this is the only way to go, but we would like to make sure that some of the certainty we get from dealing with the existing water and land management system in the north is not lost as we go through the process of changing the way we do that business.

Mr. David Iftody: Thank you, Mr. Chairman. Those are my questions.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Iftody.

The chair wants to make one little comment. I think all the questioning has directed itself at what you told us, Mr. Vaydik. We're very pleased you're here and that we've had a chance to question you. I think Mr. Iftody perhaps summed up what certainly has been going through my mind, and I'm sure those of most of the members of the committee, that although the Creator did it in six days it's going to take us a little longer. We are not all clairvoyant nor do we know the end of next week.

I thank you, Mr. Iftody, for putting that so succinctly.

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Do you have one small question before we go to Yellowknife and introduce our next witnesses?

Ms. Louise Hardy: I have one question on your concern about technical expertise. I don't think you're worried that incompetent people will be on the board but that you can be competent and not have a degree in mining or in biology or in how water systems work. Board members change, and if I understand it right, what you would like is that whoever is on the board has access to those people who work for government and would be able to advise and support, or say no, this argument is no good because of this. All you want is for the board to have those tools available to them.

Ms. Brenda Kuzyk: Yes, that's correct.

The Vice-Chairman (Mr. John Finlay): Thank you very much, Madam Hardy.

I would ask that Mr. Vaydik and Ms. Kuzyk stay at the table, because Mr. Byrne is also a member of the Northwest Territories Chamber of Mines.

Mr. Byrne, are you or Mr. Alvarez going to go first? I have Mr. Alvarez scheduled for 11 a.m. and we're now at 11.17 a.m., so whatever....

Mr. Mike Byrne (Member, Northwest Territories Chamber of Mines): That would be your prerogative, Mr. Chairman. We had made arrangements for me to appear immediately on the heels of Mr. Vaydik, and with this mess-up here with the rooms we've been waiting to come on for the better part of an hour. Mr. Alvarez is here and is prepared to make his presentation, as am I.

The Vice-Chairman (Mr. John Finlay): Then, Mr. Alvarez, with your indulgence, we'll go ahead with Mr. Byrne at this point.

Mr. Byrne, I have an apology from Mr. Keddy of the Progressive Conservative Party. He was present for the initial representation by Mr. Vaydik but has had to go to another meeting, and he wished me to apologize on his behalf.

Mr. Mike Byrne: That's okay.

The Vice-Chairman (Mr. John Finlay): Carry on, then.

Mr. Mike Byrne: Thank you and good morning, Mr. Chairman and ladies and gentlemen of the standing committee.

For the record, and by way of introduction, my name is Mike Byrne. I'm a lifelong resident of the Northwest Territories and intend to remain here for many years to come. I hope my children will also be able to choose to live and work in the Northwest Territories, or what will be left of it after division in 1999.

I've been involved with the mineral exploration industry my whole life, either directly or indirectly. Currently, my involvement is in a hands-on mode as I derive my total income from activities in the exploration industry in the north. I've worked in most aspects of the industry, including prospecting, claim staking, line cutting, diamond drilling, camp and equipment provision, and project management.

In partnership with my associates, I am an owner of several mineral claim properties that we are exploring for mineral potential. We, along with many other individual prospectors, bush contractors, and small companies consider ourselves to be the grassroots of the exploration industry in the western Northwest Territories.

It is for the above reasons that I present myself before you today to request that you take into consideration the following concerns regarding the proposed legislation in front of you. While I am speaking for myself, I know these concerns are shared by many at the grassroots level who know the proposed legislation will have a profound impact on our livelihoods and way of life. I should qualify my presentation further by stating I am also a member of the NWT Chamber of Mines, as are most of the grassroots members of the exploration industry.

I would like to take this opportunity to thank the committee for taking the time to hear these concerns, as well as the NWT Chamber of Mines for making their presentation to the committee. On our behalf, I would also like to thank the committee clerk, Christine Fisher, for accommodating my presentation by videoconference.

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To begin, I would like to state that although I am certain you will hear this particular concern from many presenters during these hearings, I feel it is vitally important that it be emphasized. While I support the federal government in its attempts to save tax dollars wherever possible, it is with much chagrin that I must present to you at a distance.

Despite the awesome technology of the times, there is nothing as impersonal as not being able to be face to face with the members of our government who will make recommendations to Parliament on this most important piece of legislation. It is no wonder we here in the north constantly have “that long-distance feeling”.

Given the import of this legislation and the profound impact it will have on shaping the new north, as well as the fact that it is specific to only this region of the country, I feel, as I know many others here do, that the committee could have made a more concerted effort to bring the government to the people upon whom this legislation will have the most effect. It is no wonder that the residents of the north are looking to achieve regional and community empowerment.

It would have been much more meaningful for many northerners to make a presentation to the committee. However, it is very difficult for most to make the trip due to the cost and the time it would take from income-generating activities.

Having said that, I do appreciate the effort made to provide this video link.

With that behind us and duly noted, I would like to focus on the gist of my presentation.

I have a number of concerns, many of which were raised by the previous presenter, Mr. Vaydik, of the NWT Chamber of Mines, and as such I will not repeat them in detail in this presentation. However, there were a few points that I feel are paramount and need to be emphasized. It should be stated here that I am in full support of the points raised in Mr. Vaydik's presentation on behalf of the Chamber of Mines.

First, I would like to state that I am not opposed to the basic premise of the legislation, which is to empower the peoples of the north with the authority to administer the use of our own land and waters. I also understand that this legislation is before us today as a result of negotiated land claim agreements between the federal government and the peoples of the Gwich'in and Sahtu regions.

While I accept the fact that the land claim settlements for those regions included the requirement for the federal government to enact this legislation for those settlement regions, I am also very much aware of the concerns of the peoples in the remainder of the western NWT in regard to this legislation having an effect on any future land claims that may be negotiated.

With this in mind, I would like to stress to you that the above concerns, coupled with the obvious and overwhelming problems related to the transition and implementation of this new regulatory regime, will create many more uncertainties for the mining and exploration industry, as well as other industries, at a time when the north is struggling desperately to realize sustainable economic development, along with some sense of self-sufficiency and determination, through the development of our renewable and non-renewable resources. These uncertainties will hinder if not severely hamper any momentum that we may have gained through recent renewed interest in mineral exploration and development in the north.

I suggest that the committee may wish to give serious consideration to having Bill C-6 implemented only in the land claim settlement areas for which it was required. This would serve multiple objectives. While meeting the terms of the negotiated settlements, it would also allow for substantially reduced implementation costs and transition problems. At the same time it would allow the remaining peoples of the north to observe the process, become familiar with it, and possibly adopt it in the future. It would also allow for the process to iron out any built-in deficiencies, which in turn could ease transition in the remaining regions.

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The current regulatory process could remain in place for the interim in the other regions. While we may not all agree with the way it is structured and implemented, many northerners, as well as southern-based companies, are at least familiar with it, since it has been in place for a number of years and seems to function reasonably well. This makes more sense than having to work everything out in the courts.

Second, and to my mind most important, is the issue of the activities of prospecting, staking, or locating a mineral claim. While the authors of this legislation have assured us that these activities are exempt from the proposed regulatory process, I am far from convinced.

It is stated in the Mackenzie Valley Land Use Regulations, a statute document to the act, under paragraph 2(c), that:

2.(1) These regulations do not apply to

(c) anything done in the course of prospecting, staking or locating a mineral claim,

unless it requires the use of equipment or material referred to in section 4 or 5.

This is fine to a degree. However, on many occasions in the past legislative regulations in the north have been open to interpretation and as such have created a number of difficulties, not the least of which is an unclear set of rules and additional costs, which are inevitably borne by the industry.

While this is stated in the regulations, it is not clearly and explicitly stated and enshrined in the bill. In fact, when certain clauses of the bill are read in sequence, it becomes obvious that there is plenty of room for a back door approach to subject these activities to a land use permit process from the word “go”, even if they do not require a permit under the regulations.

I would like to stress at this point that there is a distinction to be made here in what lands should be subject to non-permit prospecting and staking. Those lands retained completely by the Government of Canada, or crown lands, should be accessible to these activities without permit. Those lands titled to first nations will be subject to whatever rules they have negotiated to be implemented. Other lands may fall in the grey area; for example, those lands where the government retains sub-surface rights and the first nations have the surface rights, and vice versa. I expect some notification and permitting may be required for those lands.

Much concern has been expressed in recent years about the staking that occurred during the recent diamond rush. It is very important to keep in mind that this was an unprecedented and once-in-a-lifetime event, precipitated by unusual circumstances. It is unlikely to occur again with any similar magnitude. Much of the land that was initially staked has reverted to the crown. Eventually the same will occur with most of those lands on which there is now active exploration. The percentage of land on which viable mineral resources occur is only a tiny fraction of the total.

The activities of prospecting and staking or locating a mineral claim are the essence of the grassroots for the mineral exploration and mining industry. Ask around, ladies and gentlemen, and you will see that by far the majority of mines in this country have been found by individuals or groups of prospectors or junior exploration companies. The found wealth of this nation, or in new age terminology, the non-renewable resource development sector, has been realized because of a hardy group of people of all creeds and colours who over the years have been and continue to be willing to go in harm's way in order to discover some of the great gifts of our land.

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For many residents in the north, both aboriginal and white alike, this grassroots activity is a viable and healthy way of life—well, sometimes anyway. It provides a traditional livelihood and a sense of accomplishment. The rewards of this work are shared by all residents and the nation as a whole, as is evidenced by the recent diamond developments in the north.

Diamonds, and their host rock kimberlite, went unnoticed through many explorations in the north for gold and other minerals. It was only through the diligent and long-term work of grassroots prospectors and geologists who had free access to the land and worked on a shoestring budget that they finally came to light. This example is only one of many in the industry in which the north and the nation benefit from the activities of so few. It is absolutely essential that these activities be allowed to continue unfettered and with a sense of certainty if we are to see the north continue to contribute to its own economic development.

The romantic image of wild-bearded prospectors in search of riches, heading off in their canoes, dog teams and planes, with a rock hammer in one hand, a gold pan in the other, and a stick of powder between their teeth, is a fast-fading notion. We still do have some of them around, thank goodness, but in the face of increasing regulations, advancing technology, political uncertainty, and market turmoil, the modern prospector has been forced to become much more sophisticated in order to earn a grubstake and make his claim. The only thing that has remained the same and that has allowed all to continue to pursue their livelihood has been the free access to government lands, with the right to explore for minerals and to expect to gain some reward for your efforts by staking a claim.

Ladies and gentlemen of the committee, I urge you to strongly support a recommendation to amend this act before us today in order to protect the right of access to all crown lands. This right must be chiselled in the rock, so to speak, as it is based upon those principles with which we have forged a nation—freedom and democracy. I would request that an amendment be drafted, clearly and emphatically stating in the act that anything done in the course of prospecting, staking, or locating a mineral claim is unequivocally exempt from any provisions in this act.

My third point is one of representation. I have concerns over the process by which it is proposed that board members will be selected for the administration and implementation of this act. Part I of the bill, clauses 9 through 20, deals with this matter. According to the bill, board members will be appointed by the federal minister either directly, upon nomination by a first nation or territorial minister, or following consultation with a first nation. When I asked about this process at a recent meeting with government officials in September, I was told that board members would essentially be selected by political appointment and that board members should be expected to represent the interests of the community at large in an objective and unbiased manner.

At the risk of sounding a bit extreme, I would suggest that the concept of political appointment and the concept of representation in an objective and unbiased manner are mutually exclusive. Over the course of history, the north has seen numerous political appointees who were to administer or make judgment on the affairs of the north and its peoples. Many of these appointments caused irreparable damage in the north through either incompetence or a lack of understanding of the land, its residents, and the way of life here. Much of this was due to these appointments being based on patronage, nepotism, or both. Sometimes the system actually did work, and there were also many people who did the north a great good turn through dedication and great effort. However, this process of appointments has left many northern residents cynical about the old northern adage, “Hi, I'm from the government and I'm here to help you.”

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The new regulatory regime contained within the context of this act will have a pronounced effect on the affairs of northern residents and those from the south who choose to conduct any activities here in the north. Given the import of this legislation, it is imperative that in order for it to work it be administered in a fair and equitable manner based on logic, reason, and consistency.

Unfortunately, I do not see any stated provisions in the bill to ensure that it will be implemented in such a fashion. While I realize that the negotiated land claims for the Sahtu and Gwich'in regions have terms that stipulate participation by those first nations, that does not preclude the need to have all northerners fairly and equitably represented on the boards.

This is not an easy issue, as there is no ready answer. However, it is not enough to fall back on the process of political appointments, especially in light of the fact that we have been told by government officials that the only course of appeal within the process prescribed by the bill is through the courts. This combination is a recipe for disaster and failure.

Once again, I do not have the answer here, nor do I even have any suggestions at this point. However, I do have an intuitive feeling that a more democratic process of selection must be used to arrive at board member selection. I feel that the acceptance of this bill and its underlying rationale, as well as compliance with its provisions and in fact its ability to function at all, will hinge on this single issue.

No, I'm not bucking for an appointment here. I have enough on my plate as it is. As well, I do not envy those people who as board members will have to rise to meet the challenge, as theirs will be a daunting task, particularly if there are no amendments to the bill, as suggested by myself and others. What I am bucking for is a sense of fair play and a level playing field that will help negate many of the uncertainties for our industry that will be created with this legislation as drafted.

Life in the north is tough enough for the little guys, the everyday Joes, who must use their wits and guts to survive. These are the people who are willing to take risks to independently earn their own living seeking out the mineral wealth of the land. Most pay their own way and ask for little. Yet we seem to be constantly and increasingly regulated by government and quasi-government agencies and bodies, staffed by hundreds if not thousands of bureaucrats whose sole purpose is to make our work increasingly difficult—if not almost impossible—to do. No wonder government is the second largest industry in the north. If this keeps up, it could soon replace mining and mineral exploration as the largest industry.

I would urge the committee to take what action it can—

The Vice-Chairman (Mr. John Finlay): Mr. Byrne, with your permission, sir, let me mention to you that you've been on for 20 minutes. We've enjoyed your presentation. Are you nearly finished?

Mr. Mike Byrne: I have two more paragraphs, Mr. Chairman.

The Vice-Chairman (Mr. John Finlay): Thank you, sir. Carry on.

Mr. Mike Byrne: Thank you, Mr. Chairman.

I would urge the committee to take what action it can to amend the bill in such a way as to provide for a more democratically representative selection method for board members, keeping in mind that the only constraints are the terms of the negotiated land claim settlements in two of the regions of the western NWT. This will be particularly important should the act be implemented in the areas of the NWT outside the Gwich'in and Sahtu regions.

Mr. Chairman and members of the committee, this concludes my presentation to you. I thank you once again for this opportunity to appear before you and present my thoughts on this very important piece of legislation for the north. I will attempt to answer any questions on this presentation that committee members may have.

The Vice-Chairman (Mr. John Finlay): Thank you very much, Mr. Byrne. We'll go to questions in a moment. Could you to send the committee a copy of your statement? It would be much appreciated.

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Mr. Mike Byrne: Yes, I will, Mr. Chairman. We tried to make arrangements to have it there before you this morning. However, time didn't allow. I had fairly short notice to make this presentation and it was only constructed last evening. I will make sure the secretary to the committee has a copy of this presentation.

The Vice-Chairman (Mr. John Finlay): Thank you very much.

For our part and on behalf of the clerk of the committee, Mr. Byrne and Mr. Alvarez, we apologize for the mix-up in the location. We were not informed in time to let you know. We appreciate your patience.

We now go to questions. Mr. Konrad.

Mr. Derrek Konrad: Mr. Byrne, my name is Derrek Konrad. You can call me “Derrek”.

I was interested in your comment that we need to ensure the right of access to land, and quite likely the right to determine who develops the regulations giving that access, because that will determine the type of access you're given. I don't know whether you're a member of a first nation or whether you're qualified to sit on a board or to choose members, but I would like to know if it matters to you. I would also like to have your thoughts on, rather than an appointment process, an election from the general population.

I won't ask any more questions, because we're running late now.

Mr. Mike Byrne: Thank you for the question, Derrek.

As I mentioned in my presentation, at this point I don't have any firm suggestions for the committee to replace the process of political appointment.

I am not currently and I doubt I will be a member of any first nation in the Northwest Territories. However, I consider myself a native northerner, in that I've lived here all my life.

I would suggest there is probably room within the political milieu for some sort of process to elect or find a way to appoint members to this board or these boards through a more democratic process than appointment. I'll give the matter some thought, and I would ask that you folks do the same.

The Vice-Chairman (John Finlay): Thank you. I'm going to keep it there, in the interests of getting more questions asked.

Mr. Bachand.

[Translation]

Mr. Claude Bachand: Mr. Byrne, on our agenda, it is indicated that you are the owner and operator of Norwestors. Can you tell us where this company is located?

[English]

Mr. Mike Byrne: Thank you for the question, sir. I missed the first part of your question, but I think I got the gist of it.

Norwestors is a company, not a mine. It's a very small service company here in the Northwest Territories, located in Yellowknife.

[Translation]

Mr. Claude Bachand: OK.

I would like you to confirm that I understood what you said. It seems to me you touched the heart of the problem when you said that you would like Bill C-6 to apply only in the Sahtu and Gwich'in territories, because the bill is in fact the outcome of the land claim agreements concerning these settlement areas. You therefore believe that it would be logical for Bill C-6 to apply only to these areas at the moment. Did I understand what you said?

[English]

Mr. Mike Byrne: Yes, sir, you did.

[Translation]

Mr. Claude Bachand: What do you have to say about the fact that, through this undertaking, we have a bill whereby regulations apply to the whole of the Mackenzie Valley? It is said, among other things that the Mackenzie River flows from south to north. What do you say to people who wish that the regulations apply to the entire valley? Some people are concerned that the land claim agreements which will be negotiated in other settlement areas along the Mackenzie Valley will modify the fundamentals of Bill C-6, which could then be amended eventually if different arrangements are made in the other settlement areas of the Mackenzie Valley. How would you answer these concerns?

[English]

Mr. Mike Byrne: You make a very valid point, sir. It is for exactly those reasons that I would prefer to see that the proposed act is implemented only in the Gwich'in and Sahtu regions, for which there is a legal requirement. To date I have heard only government officials say they want to see this legislation enacted in all of the western Northwest Territories.

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I'm aware of the concerns expressed by other first nations in the remainder of the Northwest Territories and in fact have viewed the presentations they are making to your committee. They have some very serious concerns. For the reasons you mentioned regarding possible changes and amendments to this legislation in the future, we would prefer to see it worked out and run through its due course in the Sahtu and Gwich'in regions so that by the time it is implemented here most of the kinks will have been worked out.

Mr. John Bryden: You mention that you're not satisfied with appointments to the boards. Would you like to have politicians on your boards?

Mr. Mike Byrne: No, sir, I don't think that would do, either.

I didn't say that I'm not happy with the appointments that have been made to the boards so far. In fact, the working group members that I have met appear to be very hard-working and dedicated northerners.

What I am concerned about is the process of selection of members to the boards. I would prefer to see a process that is a little bit more democratic than that of political appointment.

Mr. John Bryden: The democratic process involves election, and when you elect people you get politicians. I'm sorry, but that is the reality. There's no other way around it. You have either appointees or politicians. So which would you prefer? I ask this because you have suggested that you have no ideas, but we have to make decisions here. We can't evade it. When the choice is that clear, politicians or appointees from the community, which would you prefer?

Mr. Mike Byrne: If it came to that, sir, I would prefer to have politicians, elected northerners, in those positions.

Mr. John Bryden: Do you think that would be a guarantee of competency? I ask this because I know lots of incompetent politicians, and I believe you do as well.

Mr. Mike Byrne: Yes, sir, I do. There are no guarantees in this regard.

Mr. John Bryden: Let me suggest a way around the problem. Perhaps what you're concerned about is that nowhere in the act, in the general provisions at any rate, does it define the duties of the directors. Would it help you and make you feel more at ease if the act set up a regime of transparency so that we could see very readily what the directors are talking about and what they're dealing with on a meeting-by-meeting basis? And would it help if we described in the legislation what the duties of the directors or elected representatives are?

Mr. Mike Byrne: Yes, that would help very much. In fact, it would give us a process by which we could also measure the criteria for selection—

Mr. John Bryden: Right.

Mr. Mike Byrne: —and monitor whether or not the appointees are doing their duty.

Mr. John Bryden: So we might have found a little compromise there?

Mr. Mike Byrne: Quite possibly. I believe in compromise. I've been a politician myself.

Mr. John Bryden: Aha!

You were talking about staking. Many of us have a lot of sympathy for that, and the previous witnesses made representations on that. I'm concerned about one thing with respect to the staking. The amendments suggested by the previous witnesses would amend clause 126 to exclude from a referral anything done in the course of prospecting, staking, and locating mineral claims. I'm concerned about the words “anything done”. Is that not an invitation for prospectors or a junior mining company to bring in the bulldozers, knock down the trees, and blast a couple of hills apart? Is “anything done” going a bit too far?

Mr. Mike Byrne: No, sir. In fact, as they stand right now the regulations stipulate that there are certain levels of activity that can be conducted without a land use permit. I refer to paragraph 2(c) in the regulations, and they refer to sections 4 and 5.

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You do have a valid point, and there may be some concern there. However, under the existing legislation, we know very clearly what activities we can engage in that are done in the course of prospecting. There are certain levels we can operate under before we require a land use permit.

I would like to go a little bit further than the previous presenter. Being an individual rather than an association representing a group of individuals, I would prefer to see it very clearly and emphatically stated in the act that these activities relating to crown lands are exempted.

Thank you.

Mr. John Bryden: Thank you.

Thank you, Mr. Chairman.

The Vice-Chairman (Mr. John Finlay): Thank you.

Mr. McNally.

Mr. Grant McNally: Thank you, Mr. Chair.

Of course an appointed board member is also a politician, as they're dealing with competing perspectives. I guess if you get to elect them, you get to pick the bad apple that you want, instead of just being served it.

Some hon. members: Oh, oh!

Mr. Grant McNally: That's a little political joke.

A question I have is about the grassroots input you received, Mr. Byrne. You mentioned earlier that you had talked to a number of people. I just was wondering what circles of people you had contact with and by what means you gathered their input and their information, which would reflect the same types of concerns you've expressed here this morning.

Mr. Mike Byrne: In fact, sir, I work within the industry, and a number of my associates and peers are the grassroots industry in the Northwest Territories. We just met in a conference, the NWT Geoscience Forum, last week, and we are constantly rubbing shoulders with each other through our daily lives.

The MVRMA has been the subject of discussion certainly for the last couple of months, as it's come closer to being presented to Parliament and tabled. In terms of being able to understand all of its implications, maybe not all of us have the time to do the research and attend all of the meetings and provide all of the input that the bureaucrats would like; nevertheless we are certainly aware of the important nature of this legislation and some of the specific clauses that do cause us concern.

The input I receive, sir, is basically from prospectors, bush contractors, and service companies, all of whom are involved and engaged in the activities of prospecting, staking, and locating mineral claims.

Thank you.

Mr. Grant McNally: Thank you.

Thank you, Mr. Chair.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. McNally.

Mr. Wilfert.

Mr. Bryon Wilfert: Thank you, Mr. Chairman.

Picking up on the comment with regard to transparency, I've heard articulated a few times here a great concern that you're afraid you may get people on these boards and commissions who may not be necessarily, although in theory, serving the public interest. Obviously the requirements you are looking for would be no less and no greater than you would if you had dealt with your own, shall I say, municipal council, which again, other than in certain provisions, is always done in public.

So I presume that, in the spirit of what you're suggesting, appropriate amendments, if drafted, would make it all clear to all concerned, both those who are on those boards and commissions and those who have elected these people as representatives to the boards and commissions. In the operations as such, there would be no question for confusion. If I hear you correctly, I would certainly be prepared to look at those types of amendments.

On your comment with regard to the application to only the Gwich'in and Sahtu lands, can you briefly explain why you have this great concern about it applying outside those lands?

Mr. Mike Byrne: Thank you, sir. I'll attempt to answer your question.

On the first part of your question, I would suggest such amendments would go a long way to alleviating concerns with regard to appointments.

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On the second part of your question, one of the problems I have with this legislation is that it's based on negotiated settlements with peoples of only two parts of the western Northwest Territories. Even though industry supposedly has had plenty of opportunity to provide input, as have other first nations, it would appear that this legislation still remains geared towards those two settlement regions. One of the uncertainties that I think will be created here, sir, came to my attention when I was made aware of the concerns of other first nation regions in the Northwest Territories. It was indicated that they were either adamantly opposed or certainly wanted to see major amendments to this legislation before it was enacted.

We have some concerns in the industry that this type of concern by the first nations will provide uncertainties within the regulatory process—not knowing whether it's going to be coming in or whether we're dealing with the old one or what. Part of the problem remains that at least one of these first nations groups that we're aware of is in the process of negotiating with the federal government, and others may follow. They may feel that their claims process is jeopardized by enactment of this legislation.

As one of your colleagues mentioned, it's quite likely that through the process of those negotiations, amendments to this act may follow. What we're looking for, sir, is a good clear set of rules that we know we can operate by for the next decade or two to come. Thank you.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Wilfert.

Thank you, Mr. Byrne. We thank you for your presentation and for answering our questions, and we look forward to receiving your brief.

I'd like now to introduce Mr. Pierre Alvarez, the chairman and the chief executive officer of the Northwest Territories Power Corporation.

Mr. Alvarez, just before you begin, I know you have a prepared brief, of which we have a copy. It would appear that much of your testimony might corroborate, duplicate, or support what we have already heard. I leave it to your discretion, sir, as to how you deal with that. We're at your service.

Mr. Pierre Alvarez (Chairman and CEO, Northwest Territories Power Corporation): Thank you very much, Mr. Chairman.

As you indicated, we have filed a detailed brief. We have also written an extensive letter to the minister and filed amendments with your committee, so I will not go through the entire text.

However, Mr. Chairman, I would like to make a number of comments, because we are different from the mining industry and we do have different concerns. Perhaps, if I could, I will shorten my comments, but not too far.

To begin with, I'd like to introduce two people who are with me—Mr. Phil Helwig, who is our hydro engineer and has been through water licensing in the north and throughout the world, and our corporate secretary, Jeannee Johnson.

Mr. Chairman, the NWT Power Corporation serves 54 communities across the territory with over 500,000 megawatt-hours of electric power generated from hydro and diesel sources. Our workforce of 285 skilled employees, half of whom are aboriginal or long-term northerners, is the best in the world at building and operating reliable power facilities in the most extreme operating conditions.

Future development of additional hydro sites is an important element of our long-term plan, in line with corporate and government commitments to sustainable development and the reduction of greenhouse gases. Such development is directly related to other resource activities, notably mineral development. In providing electrical service, the corporation builds and maintains power lines both within communities and long-distance transmission lines across country.

The corporation is also an industry leader in forging joint ventures with aboriginal peoples, among them a $1 million residual heat project undertaken with the Gwich'in people, and the $27 million Snare Cascades hydro project undertaken with the Dogrib people north of Yellowknife, and a soon-to-be-announced $25 million natural gas project with the Inuvialuit people in Inuvik.

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These interests, which are directly related to the demands and well-being of our customers, put land and water management at the forefront of the corporation's concerns. We have a large land position in the Mackenzie Valley in direct holdings and in leases of crown and commissioner's lands. Our hydro developments require water licences of long and reliable duration in order to justify capital commitments.

As with other developers in the north, we need a consistent, efficient, and timely access to land use permitting, which will allow us to complete necessary construction and upgrading within the brief seasonal window available. An increase in costs or delays translates directly into increased costs to consumers, who have few options to offset such costs in the severest climate in Canada.

Given the corporation's stake in land and water resources in the Mackenzie Valley, the new legislation has far-reaching and critical implications for our business and ultimately our customers.

To be clear, we believe the fundamentals of Bill C-6 hold great promise. We recognize and support the aims of the legislation, which are to implement commitments undertaken by the Government of Canada in land claim settlements concluded with the Gwich'in and Sahtu peoples, and to establish an integrated system of resource management in the Mackenzie Valley. We also applaud the move to reinstate land-use planning processes that have been long dormant and to co-ordinate these processes with decision-makers.

Nevertheless, a limited number of serious flaws remain in the legislation. These are flaws that could result in a cumbersome, unworkable system and could draw resources away from responsible sustainable development and into unproductive court challenges and litigation.

We have come to this conclusion after considerable effort to assess the legislation, participation in DIAND's information sessions, and direct discussions with officials. It's not that we don't understand the legislation—we do—but we see difficulties with the workability of the legislation in its current form.

We wish to impress upon the committee the enormous consequences of this bill for resource management and the economy of the NWT. This is the most far-reaching legislation this jurisdiction has seen since the Northwest Territories Act.

Bill C-6 would create new institutions at arm's length from government with the power to set the rules and the authority to make decisions on matters at the core of the well-being of residents of the Mackenzie Valley and their resources.

It may be of interest to the committee to note that, in other parts of Canada, this is a provincial responsibility. Only in the north is land and water administration a federal responsibility.

If, as it's believed by both ourselves and other experienced resource developers in the Mackenzie Valley, the system is too weakly defined or equipped to work effectively, the cost in lost opportunity, activity, and investment will be severe. This would hit a region with a young and rapidly growing population to support.

This timing is especially unfortunate with the sharp fiscal cuts to government spending, economic uncertainty caused by pending division of the territories, and a dramatic slump in gold values. These costs will be incurred with no improvement in the standard of environmental protection. When problems develop, this new system, at arm's length from government, will not be easily or quickly amended.

It's all the more important therefore for the system to be fully specified and worked through to address weaknesses before passage and implementation. We appeal to the standing committee to require these changes before the bill goes forward to third reading.

In putting forward these concerns, we would like to be clear that we both recognize and appreciate the efforts of the working groups for the land and water boards and for the environmental review board to prepare for the transition and to consider the issues raised by the resource sector as demonstrated in their submissions. Our proposals for amendments would support their recommendations and would provide a firmer foundation for the boards, both at the outset and in the future.

Mr. Chairman, I won't go into my entire text at this point. I will provide you with my speaking notes. So let me outline our ten major areas of concern and I will only speak to one in particular.

The first is the lack of clarity that will result in litigation.

Second, new compensation rights to first nations need to be more clearly defined.

The prime issue for the corporation is the introduction of new requirements for compensation to first nations for effects on water. To be clear, the corporation agrees with the principle that the first nation proponent should enter into an agreement on compensation before a water licence is issued. The issue here is not the creation of these new rights, which we respect as a consequence of the negotiations between Canada and the first nations, but the failure to define and specify these rights with sufficient clarity.

The lack of precision could drive this process quickly into court with matters such as the appropriate standards for determining effects, whether or not these clauses would enable claims for historic compensation, and the reasonableness of compensation awarded.

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In raising this caution, we speak from experience. The corporation recently spent three years engaged in negotiations with the first nations and before the NWT Water Board in a protracted debate over compensation claims for damages purportedly caused by the construction of the Taltson hydroelectric dam, which had been acquired by the corporation from the federal government many years after its construction.

The specific difficulties are with the apparent inconsistency between this description of new rights in clauses 74 and 75 and the descriptions in clauses 77 and 78, on the basis of compensation entitled under clause 76. While clause 75 says the right is to have water “substantially unaltered”, compensation clauses require agreement for “any loss or damage resulting from any alteration”.

Difficulties will also arise if compensation can be claimed for effects caused by activities in the past. If so, current holders of interest could find themselves in the position of being pursued for restitution for damages and contamination caused downstream by previous holders of interests. This is not just an issue for developers, but also for land claims organizations that may have selected lands contaminated by previous owners.

The corporation is pleased to note that the latest draft of Bill C-6 includes a provision for arbitration to resolve stalemated negotiations between proponents and first nations. We think the bill can be strengthened if the basis for determining compensation is clarified and is made consistent with the principles of common law. Sections on new compensation rights should be revisited to clarify the basis for compensation and the extent to which these new rights of compensation can be applied to developments retroactively.

Mr. Chairman, our submission goes on to express our concerns about the heavier regulatory burden, which could deter investment. We speak of further changes that are needed to reduce the regulatory overload, both during transition and for the longer term. We believe regulatory risk and uncertainty over the possibility of referral are much greater under Bill C-6 and could deter environmentally sound investments and improvements. In essence, Mr. Chairman, our corporation is concerned that projects could indeed get caught in a referral loop, where paper is being moved from board to board and positive projects are being left undone.

We speak at length about the capacity of the new system to deal with technical matters. The hydroelectric business is an extremely complex one, and we have had to deal with outside resources in the past. We are very concerned that the new boards be composed of people equipped to deal with some of these issues, and that the boards have access to the expertise necessary to deal with them. We are concerned that the rights of the applicant are inadequately defined, and we feel the procedures for appeal need to be expressed more clearly. We are concerned that there are no definitive timelines. We are extremely concerned that the power to suspend permits should be qualified. Finally, wider notice is needed for land and water use planning processes.

Mr. Chairman, I would like to jump to the back and make a few final observations. As technical as many of the points in our actual submission may seem, I assure you that each is very important to those residents of the Mackenzie Valley whose livelihoods depend on the soundness and efficiency of resource decision-making.

Our corporation has a long history in northern Canada. In fact, we will be celebrating our 50th anniversary in the north this coming year, and we anticipate a much longer future providing both power inside the Mackenzie Valley and beyond. We feel our experience and interests in regulatory and environmental matters have something to bring to the discussion.

The Department of Indian Affairs has reached the point where it does not wish to entertain further changes. We are raising our concerns with your committee in the hope that you will agree, through relatively few and relatively small changes, to create a much better framework for resource decision-making in our territory.

I have two final points. It was dispiriting to see in the unedited transcripts of this committee, the comment by a DIAND official that criticisms of the bill by northern officials were, and I quote, “shrill and inaccurate”. Undertaking this kind of analysis means a tremendous commitment of resources, especially for a northern-based company or companies, many of which are small compared to their southern counterparts. I leave you with the point that this comment was most inappropriate coming from an official who was sent here to listen to our concerns, not to make his own judgmental conclusions.

It was also very disappointing that the committee did not hold hearings on this bill in the NWT. Hearings here would have given to the people directly affected by the legislation an opportunity to voice concerns that are hard to commit to paper or to confront in a videoconference. It would have allowed us a sense of participating in a process that we believe has been very closely held to date.

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With several further pieces of similar legislation soon to come, I hope you'll undertake broad-based hearings in the north. When you do come, I would be pleased to invite you and your committee members to tour our facilities, including the only 100% aboriginal-owned hydroelectric facility in Canada.

Mr. Chairman, as I said earlier, I have filed a detailed list of amendments for consideration by the committee. I would be pleased to answer questions you may have.

The Vice-Chairman (Mr. John Finlay): Thank you very much, Mr. Alvarez. We will strive to keep in mind what you've suggested.

Mr. McNally.

Mr. Grant McNally: Thank you, Mr. Chairman.

Thank you, Mr. Alvarez, for your presentation and for your detailed examination of this bill.

There seems to be a theme we're hearing today, that these boards and the regulations put in place, while tending to be well intended...the view I'm getting at least is that they will lead to complications that will hinder the economic development and the ability of local individuals from the Northwest Territories to direct and control the development of the area. Would you agree with that feeling?

Mr. Pierre Alvarez: I believe there are several very important and very positive aspects to this bill. However, yes, I do believe there are a few relatively minor points arising from the application of this bill. That is where I think the biggest failure in the process has been. There were 35 drafts of this bill floating around the Northwest Territories.

The users of this legislation are simply not able to keep up with 35 pages of a bill as complex as this one, to take a project through each time and see how it would work with this myriad of processes. The first time we saw a flow chart dealing with this legislation was several weeks ago here in Yellowknife. It is, in my opinion, a fine starting point, but we do need to make a few more changes in consultation with the people who are going to be affected directly by the provisions contained in this bill.

Mr. Grant McNally: It was just a few weeks ago when you saw the actual processes put together? You didn't have any involvement with the drafting or earlier stages with Bill C-6?

Mr. Pierre Alvarez: We were certainly involved in the drafting of Bill C-6, all 35 versions. When the flow chart was provided to the committee, I believe a few weeks ago, it was also the first time the department provided us, the applicants, the developers, with the flow chart explaining to us how it would work.

Mr. Grant McNally: You did mention earlier, as one of your ten concerns, the possibility of litigation that could result. Are you aware of a lot of litigation involved under the current system?

Mr. Pierre Alvarez: No, I'm not.

Mr. Grant McNally: I was wondering if you might be able to describe—you give some detail here—some possible situations where that might result. In your view, is that because the definitions aren't clearly defined and that would then lead to possible legal challenges?

Mr. Pierre Alvarez: That's the biggest problem: definitions and some of the processes. That's correct.

Mr. Grant McNally: It seems to me you're indicating that what you've heard from the department is they're not willing to move any further on these issues. If they were, it could be a compromised situation that would make the bill much more workable in the area.

Mr. Pierre Alvarez: We heard from other members of the committee this morning an interest in areas responding to Mr. Byrne regarding the definition of duties and responsibilities. I think there are a number of areas where changes could be made that would substantially improve this bill without in any way undermining the principles of the legislation or in any way undermining the very important commitments that have been made between the Government of Canada and the people in the Gwich'in and Sahtu settlement regions.

Mr. Grant McNally: Thank you, Mr. Alvarez.

Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. McNally.

Mr. Bachand.

[Translation]

Mr. Claude Bachand: Thank you for your presentation.

You said that you wanted to bring to our attention some 10 issues and to comment one of them in a more detailed way. You say:

[English]

“New compensation rights to first nations needs to be more clearly defined.”

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[Translation]

You spent a lot of time on this second issue and you in fact gave us the example of the Taltson Power Dam, where these rights had not been sufficiently defined and where negotiations which last three years had to be undertaken. You also mentioned that a lack of clarity might lead to litigation. You appreciate the fact that, in the bill, an arbitration system is planned, but you would like the issue of compensation clarified further.

Do you think that the amendments you propose would be sufficient to clarify the whole issue of compensation which seems to be a problem? Again, you gave us the example of the Taltson Power Dam, but in your discussions with the First Nations, did you hear of other projects where a lack of clarity lead to litigation?

[English]

Mr. Pierre Alvarez: To begin with, sir, let me make it clear that we believe there are problems with wording in definitions that will lead to litigation in a number of sections, not just that related to compensation.

Secondly, we have provided wording to you, but as you can appreciate, we are not legislative drafters nor do we have the capacity to draft actual legislation. But we believe if the intent of the amendments we have put forward were put into legal draft, they would indeed address our principal concerns.

[Translation]

Mr. Claude Bachand: Still on the clause regarding compensation, you also expressed concern regarding retroactivity. You are afraid that some might ask for compensation for something which happened much before the bill was passed. You suggest to clarify these rights with respect to retroactivity. Can you tell us more precisely whether you are afraid that situations that existed in the past, before the bill was adopted, might lead to claims for complete compensation? Is this what you wanted to bring to our attention?

[English]

Mr. Pierre Alvarez: We are concerned, and let us take the Taltson hydroelectric dam as an example. It was built in the early 1960s to provide power to the Pine Point lead-zinc mine near the Alberta border. That dam was withdrawn and the land was withdrawn by the Department of Indian Affairs, and it was constructed. We did not take over ownership of that facility until 1988.

A number of the local first nations and hunters and trappers felt that at the time of the construction of that facility they had suffered a loss, both physical and in other ways, and attempted to use the NWT Water Board hearings for the re-licensing of our facility as an opportunity to seek redress. That was not permitted on a historic basis under the existing Northwest Territories Waters Act. However, we do feel there is an opening here for a first nation, or possibly others, to seek compensation on a retroactive basis, going back, in our case, 30-plus years.

We didn't own the facility. The facility and the lands were withdrawn legally under order in council by the Department of Indian Affairs, and we are concerned that we would bear the costs of any errors that may have been done by third parties. I simply do not feel that you can apply tests of today's standards on a retroactive basis.

The Vice-Chairman (Mr. John Finlay): Excuse me, Mr. Bachand.

Mr. Alvarez, would that not be why the request was denied?

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Mr. Pierre Alvarez: That was in the current NWT Water Act, sir, that the changes that are introduced to the compensation regime, in this legislation, we believe would open the issue, very clearly, to retroactive application. There is a substantial change in the legislation by the introduction of these new rights, which are not defined anywhere.

That is our greatest concern.

The Vice-Chairman (Mr. John Finlay): Right. We'll look into that. Thank you.

Mr. Bryden.

Mr. John Bryden: Thank you, Mr. Chairman.

Pursuing a theme that we were developing earlier here, would it help you, Mr. Alvarez, if it was provided in the legislation that all these boards had to keep minutes, had to hold public meetings, had to be open to the public? Would that transparency and openness help some of your concerns?

Mr. Pierre Alvarez: Mr. Bryden, I think they would help a lot of our concerns. I would go one further. I believe there should be an obligation in the act, or at least in the regulations, for the minister to consult with the affected industrial community in soliciting nominations for these boards.

I think your suggestion is an excellent one, but under the current NWT Water Act, the minister, through policy and practice, very actively solicits names and nominations from industry and affected parties. I believe this is done in many jurisdictions for appointments, in many ways, and I think that obligation should be placed upon the minister. If industry and others then don't respond and don't put names forward, well, they at least will have been given their chance, sir.

Mr. John Bryden: One further question to which I myself don't happen to know the answer.

At the federal level we have the Access to Information Act. I don't know what the situation is with respect to the territories, but again, would it be helpful if one stipulated in the legislation that this law is going to be subject to the federal Access to Information Act?

Mr. Pierre Alvarez: I can't answer that question in detail. Let me state that when you are a regulated utility, as we are, you have no secrets. We file absolutely everything before the Public Utilities Board. I wouldn't mind if a similar test was applied to other parties.

On the access question, I'm not a lawyer, but certainly the principle is one I would feel comfortable with.

Mr. John Bryden: Thank you very much.

That's all, Mr. Chairman.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Bryden. Mr. McNally?

I want to thank you, Mr. Alvarez, for your presentation.

I will mention again, Mr. Byrne, that we appreciate your taking the time. We appreciated your preparation. We appreciated the briefs. The committee will be dealing with this as we approach clause-by-clause.

Do you have any further comments?

Mr. Pierre Alvarez: We will be filing final documents with you any time now, I would expect, Mr. Chairman. Thank you for the opportunity.

The Vice-Chairman (Mr. John Finlay): Thank you very much and...I guess it's still “good morning” out there in Yellowknife.

Mr. Pierre Alvarez: That's correct.

The Vice-Chairman (Mr. John Finlay): We are adjourned.