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.)): Good day.

We are resuming our examination of 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.

Today, we will communicate directly, through video conference, with Yellowknife, with members of the Canadian Committee of Arctic resources: Mr. Kevin O'Reilly, Research Director, who is in Yellowknife and whom I am welcoming now, and professor Nigel Bankes from the Law Faculty of the University of Calgary, who is here in Ottawa.

You have five minutes to introduce yourselves and to make an introductory statement.

[English]

Mr. Bankes, you start first. Please go ahead.

Professor Nigel Bankes (Representative, Canadian Arctic Resources Committee): Thank you, Mr. Chairman. Good afternoon, members of the committee.

As you know, I'm here today in Ottawa. Kevin O'Reilly is up in Yellowknife. Kevin O'Reilly has lived in Yellowknife for the last 11 years. He's been the director of research for CARC for the last two and a half years. Prior to that he was employed by the Canadian Polar Commission and successively by the Dene Nation and the Dene-Métis Secretariat.

I am the former chair and vice-chair successively of the Canadian Arctic Resources Committee. I'm also a professor of law at the University of Calgary.

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I didn't realize I was going to have only five minutes, but this afternoon I will speak to CARC's broad position on this bill and then perhaps take you briefly through some of the recommendations.

The Chairman: If it were me, I'd take ten minutes.

Prof. Nigel Bankes: Thank you.

CARC is an organization committed to settling and implementing land claims. We therefore are strongly supportive of the overall purpose of this bill, and I think our goal in appearing here today is to improve the bill and make it more reflective of public interest concerns and environmental values.

I think at the outset it's worth emphasizing that this is probably the most important piece of environmental legislation ever introduced in its application to this part of the Northwest Territories. I say that because of course the contents of this bill include land use planning, a water and land use authorization system, an environmental assessment process for this part of the NWT, and environmental monitoring. I think if you take that package together one has to think of this, as I say, as one of the most important pieces, if not the most important piece, of environmental legislation in its application to this area.

I think it will be most useful if I now turn to the summary of recommendations, which you will find beginning at page two. We have developed ten recommendations. I apologize for their not being in as ordered a form as they might have been, but in the time available to us it was the best we could do.

The first recommendation really seeks to put this bill in some sort of broader context. I've already spoken about the broad environmental context, but as this committee will be well aware this is just one of many pieces of land claim implementation legislation that will be coming before the House and this committee in the coming years.

I think we're also well aware that the Government of Canada is behind in its schedule in the constitutional commitments it made for the various northern land claims. So part of the context in which we wish to put the discussion today is to ask why there have been the delays there have been. Is the process that the departments have followed for developing land claim implementation legislation as good as it might be? That's the first recommendation.

The second recommendation is to invite the committee to look at what are described in the brief as various objectives or proposed clauses for this bill. They're not brought together in one place. Various objective clauses are scattered throughout the different parts of the bill, and it's clear that the overall bill is committed to a concept of integrated management of resources. It brings together water management and land management. I guess as an organization we support that objective, but our question is whether it goes far enough. It's integrated management for what purposes?

If you take a look at clause 58 of the bill, for example, you'll see it's a general provision in part 3 dealing with land and water regulation. Then we raise the question of whether this statement of general purposes goes far enough.

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Again, if we put this in the context of a piece of environmental legislation in the 1990s, isn't it surprising that this section doesn't talk about the precautionary principle, it doesn't talk about the sustainability of resources, it doesn't talk about ecosystem health—all of those things we might expect to see in a piece of environmental legislation such as this. It talks about the residents of the Mackenzie Valley, but not about future generations of residents. It's a here-and-now bill as framed, we would suggest.

Similarly—this is the third recommendation—if one takes a look at clause 107, which is in the part of the bill dealing with the establishments of the overall board for the Mackenzie Valley, it talks about the importance of consultation. It talks about the importance of avoiding duplication. We would say those are important values, but not enough in and of themselves. They need to think about consultation and coordination for the purposes of protecting functioning ecosystems in the Mackenzie system.

The fourth recommendation—as I say, these aren't ordered as well as they might be—really goes back to the question of procedure and the process that is being followed here. This bill, we know, has been negotiated line by line, clause by clause, with representatives of the Sahtu and Gwich'in people. As an organization, we strongly support that involvement of first nations in the development of implementation legislation. But we are also concerned that there is a public interest here and that the consultation the department has carried out with NGOs is nothing like as extensive. We would compare it, for example, very much with the consultation process followed by the Government of Canada in relation to CEAA, the Canadian Environmental Assessment Act, where there were lengthy consultations and funded support of organizations that were interested in the outcome of that piece of litigation. There has been, I would suggest, no similar process in relation to this bill.

The fifth recommendation we make comes down to some detailed questions about the operation of the boards that have been created. I mean, this is a board-intense piece of legislation. It envisages a lot of work being done by these boards, presumably instead of or in addition to the work of line departments. If that's the case, then we think it is important that we be satisfied that these boards are going to be adequately resourced.

I know in making that comment we share common ground, which is unusual for us, with the Canadian mining industry.

We do think it's important that these boards have access to adequate staff. We're not convinced this bill will deliver that. It leaves an awful lot of discretion to the minister for the annual financing of these boards. We draw in the brief a contrast between the drafting of this bill and the statutes that establish the offshore boards for Nova Scotia and Newfoundland, and suggest that they may offer a better model.

Sixth, moving on to CEAA, the Canadian Environmental Assessment Act, we note that the basic proposition of this bill is that it will back out of the application of CEAA in the area covered by this bill. That is, CEAA, subject to some exceptions that are articulated in the bill, will not apply in this area. We see CEAA as having established a set of norms for Canadian environmental assessments where those assessments occur under federal jurisdiction.

If we look at this bill, we suggest—and we haven't compared it line by line—that there are examples where the standards established by CEAA are lowered in this bill. We give a couple of examples of that in the brief. First of all, some of the definitions are less encompassing than the definitions in CEAA. We also suggest that the role of the public is significantly underplayed in this bill. It was one of the most important objectives of CEAA, and the role of the public is considerably de-emphasized in the context of this bill.

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Our question is if this is backing out CEAA, why is the role of the public under-emphasized? Why is there no provision for the funding of public interest into interveners, as there is in CEAA? Why is there not as developed a public registry system in this bill as there is in CEAA?

The next point is related; it relates to the triggers for the application of the assessment legislation. Assessment legislation can be the best assessment legislation in the world, but the question is what triggers it, what causes the assessment process to start to run. The key provision in this bill is clause 124, which refers to what in CEAA is called the law list, what in here is called the statute list. I would suggest that the statute list has to be heavily scrutinized by this committee, as the relevant committee scrutinized the law list for CEAA.

Let me just give you one example. The two most important pieces of resource disposition legislation applying in the Northwest Territories are the Canada Mining Regulations and the Canadian Petroleum Resources Act. If you look at the statute list that's drafted thus far for this bill, you won't see a single mention of any section of the CPRA, the Canada Petroleum Resources Act, or the Canada Mining Regulations.

I say in the brief that it is not the entire story. Mining operations and oil and gas operations will still trigger CEAA. My question here is simply whether or not we have done a good enough job of satisfying ourselves that all projects that will have serious environmental implications will trigger the assessment process under this legislation.

The eighth recommendation deals with monitoring. We support the idea of monitoring. We love the idea of learning by doing. We love the idea of adaptive management that's talked about in relation to the BHP project. Our question here is why isn't the concept of monitoring better developed? Why is it that departments are still to decide whether monitoring is going to be done by a line agency or by an authority independent of the department?

This issue has been around since the Sahtu and Gwich'in claims were negotiated. Why is it that we're apparently no further ahead, at least on the face of the bill, in making that decision? We've been impressed by the work of the monitoring agency established for the BHP project, and we think it might be a useful model here.

The final two recommendations relate to the relationship between this bill as implemental legislation for the Sahtu and Gwich'in claims and the settlement of claims elsewhere in the Northwest Territories. I would like to suggest to the committee that there is a big distinction between this part of the NWT and Yukon. In Yukon there is an umbrella final agreement. All first nations may not have signed final agreements yet, but there is at least some legitimacy for saying that in passing implementation legislation the Government of Canada can do so for the entirety of Yukon.

In the southern part of the NWT that isn't the case. Canada is in a position to develop this structure for the Sahtu and Gwich'in as part of the settlement of those claims, but it's not clear that it's in a position to do so for the balance of the territory.

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As an organization we're committed to the just settlement of claims. Our question is, will this bill inhibit the settlement of claims of the Dogrib, the Deh Cho, and the Métis people?

We also note that the definition of the “Mackenzie Valley” in this bill is an artificial definition. It isn't the water basin of the Mackenzie. It excludes the Inuvialuit region, for example, but it also includes drainage basins that don't drain into the Mackenzie system, like the Coppermine. The Coppermine drains out through its own drainage system.

The importance of this is that the Inuit of Nunavut are tremendously interested in that drainage basin. It's part of the drainage basin the BHP project is in. So when this bill talks about consultation with first nations, note that “first nations” doesn't include the Inuit, doesn't include the Inuvialuit. So the question we raise in the brief is whether the consultation provisions of this bill are adequate, given the interests of the Inuit of Nunavut, the NTI people, and the Inuvialuit.

I've gone on for longer than I should.

[Translation]

The Chairman: It was very interesting.

[English]

Thank you very much, Mr. Bankes.

[Translation]

Excuse me, but we always have unexpected occurrences in the House of Commons. There are special bills and we will have to go and vote shortly. Around 4:15 p.m., the bell will start to ring and around 4:30 p.m., it will be time to vote.

Nonetheless, we will begin the first round of questions. Mr. McNally will be followed by Mr. Bachand, by Mr. Keddy and Mr. Patry.

[English]

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

Thank you for your presentation, Professor. I would like to ask a couple of questions.

Do you see this as a workable piece of legislation? You mentioned the number of boards there were. Do you think if it were to go through as is, it would be a workable piece of legislation?

Prof. Nigel Bankes: It can be made to work, provided the resources are made available to these boards to do their job.

Mr. Grant McNally: You asked us to reflect on a number of questions. We're probably at the point now where we need to hear practical recommendations or suggestions for amendments. In your opinion, what would be your top two suggestions for actual amendments to this bill?

Prof. Nigel Bankes: I'm reluctant to start being too prescriptive about amendments here, because it is important that the Sahtu and Gwich'in people be involved in that process as the first nations whose claims we're trying to implement here.

What I describe as the various objective clauses of the bill do merit some attention so that they take into account ecosystem values. Clause 58 doesn't even refer to the word “environment”. The reason that's significant is that there is a very good definition of “environment” in this bill, but it's not incorporated into clause 58.

[Translation]

The Chairman: I know that Mr. O'Reilly is in Yellowknife and I do not want to forget him. If you want to intervene, Mr. O'Reilly, let me know and I will give you the floor. Do you have anything to declare at this time?

[English]

Mr. Kevin O'Reilly (Research Director, Canadian Arctic Resources Committee): Yes.

One of the changes you should be looking at making is to ensure that this bill is made to be consistent with the Canadian Environmental Assessment Act provisions for participant funding. The triggers should be equivalent to what we've achieved in CEAA: the statute list and the law list should be the same. It's very important that you have a very close look at those to make sure they are equivalent.

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Some of that may be outside the purview of the committee, but then it may be a wise decision to direct DIAND to ensure that there's some sort of multi-stakeholder group that is involved in more clearly drafting the regulations and ensuring that they are consistent with the things we've already achieved in the Canadian Environmental Assessment Act.

[Translation]

The Chairman: Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): Mr. Chairman, I am sorry I am late. First I would like to know if Mr. O'Reilly and Mr. Bankes are going to make a joint presentation. Has it been planned this way?

The Chairman: Yes.

Mr. Claude Bachand: Very well.

The Chairman: No need to apologize. We know that you have a lot of work and that you're always on time.

Mr. Claude Bachand: Thank you. I imagine that if I put my questions, both intervenors could answer them.

The Chairman: Yes, Mr. Bachand.

Mr. Claude Bachand: Very well. I am sorry I am late. I know that we have a heavy agenda, but I missed the beginning of your presentation. However I did catch the part that seems to touch on the essence of the debate on Bill C-6.

You said, Mr. Bankes, that "this bill might inhibit future land claims". I would like to know if you agree that Bill C-6 should only apply to regions that have already negotiated land claim settlements. You know which ones I mean. We are talking about the Gwich'in and Sahtu, who have already negotiated land claim settlements. Would your position be that the bill only apply to the regions which have negotiated a land claim settlement?

[English]

Prof. Nigel Bankes: It's a very difficult question for me to answer. I know the committee has already heard from the Métis, the Dogrib, and the Deh Cho and that they have expressed some criticism of the application of this bill. If this committee concludes that this bill will make it more difficult to settle claims, then we think it would be appropriate for this bill not to apply in the southern portion of the NWT. In other words, we should be in a position of facilitating the settlement of claims, not putting obstacles in the way of settling claims.

[Translation]

The Chairman: Mr. Bachand, the vote will be held in 14 minutes.

Mr. Claude Bachand: I'll be very brief. If ever the committee were to decide that the Act should only apply to the regions of the Sahtu and Gwich'in, we would agree to have a dual regime for lands and water management in the Mackenzie Valley, even if the valley as such is described as being somewhat artificial. As a matter of fact, the whole catchment area would not be included. This would mean that there would be a dual regime: one for the regions of the Sahtu and of the Gwich'in on one hand, and the former Act which would continue to be in force for the others. So, there would be a dual regime. Have you no problems with that as an environmentalist?

[English]

Prof. Nigel Bankes: Clearly there is a problem there. We are seeing the development of a series of different regimes throughout the north. I think that's one of the prices one pays for a pluralist approach to the settlements of claims.

We also have ten different provinces in Canada, with differing environmental standards, and we try to deal with that through national standards and the federal power.

[Translation]

The Chairman: Thank you, Mr. Bachand. Mr. Patry.

[English]

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): Thank you, Mr. Chair.

Because of the time I have three short questions. My first question is the following. Does the CARC support an ERIB that has the opportunity to coordinate its assessment and reviews with other territories, provinces, and this agency?

Prof. Nigel Bankes: We support the idea of cooperative assessments, yes.

Mr. Bernard Patry: Okay.

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Secondly, would CARC support the EIRB when it proposes a panel budget to the minister where it seeks intervener funding?

Prof. Nigel Bankes: We support the idea of intervener funding, yes.

Mr. Bernard Patry: Okay. And the last one: Does CARC support the approach in the bill of having northerners be the members of the EIRB and its panel?

Prof. Nigel Bankes: Yes.

Mr. Bernard Patry: That's it, Mr. Chairman.

[Translation]

The Chairman: Mr. Keddy.

Mr. Gerald Keddy (South Shore, PC): I would like to know if you're coming back here after the vote.

[English]

Mr. Bernard Patry: Just for clarification, I want to tell the members that what's going to happen is we're voting on Bill C-24, the bill for the post. What's going to happen after is that there's going to be a committee of the whole, and in a committee of whole we could vote at any time. There's no bell for the committee of the whole. We're voting inside the House. This means I don't think there will be any chance for us to come back.

[Translation]

The Chairman: Very well, one final intervention.

[English]

Mr. Gerald Keddy: I'm just trying to read through what you have here. I have a specific question and I want to ask you exactly what you mean by it. You're talking about triggers for assessment in the legislation.

Prof. Nigel Bankes: Yes.

Mr. Gerald Keddy: It is difficult to concentrate with the bells ringing. However, when you refer to those triggers of assessment for environmental legislation and you use the example of staking....

Prof. Nigel Bankes: Yes.

Mr. Gerald Keddy: That's the example you use. You say:

Mineral rights may be withdrawn from staking by the Governor in Council under s. 19 of the TLA and under ss. 11 (d) and (f) of the Canada Mining Regulations. This may occur for a variety of reasons including environmental reasons.

You're saying that in your view, a decision to open those lands to staking—

Mr. John Bryden (Wentworth—Burlington, Lib.): May I ask a question? I don't want to miss the vote.

Mr. Gerald Keddy: —should trigger an environmental assessment, and you're saying that somehow you'd like to see these incorporated in the act as it exists now.

The problem with that is when you're staking a piece of property, it can be withdrawn for reasons such as the crown may be doing exploration there—they can be cutting cores, they can be doing a number of things. If they withdrew it because they decided that area was a piece of protected ground, that it was an environmentally sensitive area, and you wanted to open it for staking, that might apply. But if you closed it specifically so you could do more mining research there, why would you do an environmental assessment before staking? You're putting the cart ahead of the horse there.

Prof. Nigel Bankes: I think I would accept that in relation to that specific example, but I can think of situations where land has been withdrawn for environmental reasons from staking. If you're going to allow staking in that area, there should be some assessment before you open it up.

[Translation]

The Chairman: One moment, please. Mr. Patry.

[English]

Mr. Bernard Patry: We just found out that we can come back afterwards, because the vote on the committee of the whole will take place at 6.30. That means there is a chance, if the committee wishes, to come back and hear from our witnesses.

Mr. John Bryden: How many minutes do we have left?

Mr. Bernard Patry: There are eight and a half minutes left.

[Translation]

The Chairman: The hearing is adjourned until we return.

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The Chairman: We are resuming our session on 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.

Present are Mr. McNally, Mr. Finlay, Mr. Bankes and Mr. O'Reilly in Yellowknife. We must apologize to Mr. Reilly about this interruption, and he has really been patient. We will begin immediately.

Mr. McNally.

[English]

Mr. Grant McNally: How many minutes do I get? Twenty minutes?

The Chairman: One hour.

Some hon. members: Oh, oh.

Mr. Grant McNally: One hour, wow!

The Chairman: You have ten minutes.

Mr. Grant McNally: I would like to bank some of that time for another day.

Mr. John Finlay (Oxford, Lib.): You take an hour and I'll take a half hour.

Some hon. members: Oh, oh.

The Chairman: No, take your ten minutes. Then Mr. Finlay will have ten minutes.

Mr. Grant McNally: I probably don't need a lot of time. I have the same question I posed to your colleague. You answered it briefly before we ran off for the vote.

We're looking for specific recommendations to improve this legislation. From your point of view, what kinds of things—specific, practical changes—would you suggest to make this more workable?

Mr. Kevin O'Reilly: As I mentioned earlier, I think we need to make sure that what we're getting in this bill is consistent with what we already have in place. I'm referring specifically to the Canadian Environmental Assessment Act and the regulations made under that act.

I think it's really important to have some sort of guarantee of participant funding in this bill. It's silent on that issue right now, and I don't think it's appropriate to leave it to negotiations between the board each time they have to hold a public review. I think that's important.

Nigel also addressed the issue of including some objectives in this bill that relate to sustainability, environmental protection, ecological integrity, and those sorts of matters, and I think those are relatively easy ones to address.

I would recommend, though, that DIAND be directed to have a more inclusive process for developing the regulations. Maybe some sort of multi-stakeholder group could sit down, have a go at the regulations, and develop them. That's consistent with the approach taken by the Department of the Environment when the Canadian Environmental Assessment Act regulations were developed, so I don't think we're breaking any new ground here, but we want to make sure that a fair process is in place.

Mr. Grant McNally: Okay.

I'd also like your views on the environmental impact review board and the other boards created by Bill C-6. Would you support those, or do you think there isn't enough definition set for them as it stands? What's your feeling on that?

Mr. Kevin O'Reilly: We are talking about claims implementation legislation here, and I think Nigel said we do strongly support that. We do support the notion of co-management, whereby people affected by resource management decisions are actually involved in those decisions. Certainly we support moving the decision-making closer to the people of the north, and as a northerner I can strongly support that.

I do think we have to be careful about whether this sort of system is compatible with what groups in the southern part of Mackenzie Valley may be able to negotiate through their claim.

Mr. Grant McNally: Okay. Maybe I'll throw it over to Mr. Finlay.

The Chairman: Mr. Finlay, please.

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Mr. John Finlay: Thank you very much, Mr. Chairman.

I want to thank both of you for hanging in.

Professor Bankes, I'm a long-time member of CARC and supporter of CARC. I therefore think I know a little bit where you're coming from, and you've outlined it for us. It's interesting that your suggestions for improvement to the bill are at one end of the spectrum, and the suggestions we found this afternoon from the Northwest Power Corporation and the NWT Chamber of Mines were largely at the other end of the spectrum.

I guess as we sit here on the committee and try to do what is right or appropriate and will move the agenda forward, we're going to have to make some choices. Obviously it isn't going to satisfy everybody.

You asked when you were talking to us whether it would inhibit the settlement of land claims, and you preceded that by saying CARC was very concerned about the just settlement of land claims.

This committee is concerned about the just settlement of land claims. I think the Government of Canada is concerned about the just settlement of land claims. I wonder whether you could tell me a little more about.... You are asking the question of whether it will inhibit; there's some agenda behind that. Do you really think passing this bill will inhibit land claims? Might it not accelerate them somewhat? We heard from the Deh Cho, and a couple of questions I put to the Deh Cho, such as what is public government, they were completely unable to answer.

It seems to me that this bill might do something to accelerate the land claims process, since it would serve as a model of what two aboriginal groups have agreed on to protect their land settlement and their resources. I'd like your comment on that, please.

Prof. Nigel Bankes: I'd begin by addressing the comment you made about the mining industry in CARC and the power corporation being at different ends of the spectrum. I think that is true to some degree, but there is also some common ground. The common ground is that we all agree these boards being created should be effective and properly resourced and there should be adequate procedures for ensuring it in this legislation. I think there's common ground there.

The broader question was whether this legislation is going to inhibit or accelerate the settlement of claims. I think it's fair to say that the brief was very carefully drafted at this point, because it was posing the rhetorical question for the committee. If the committee reaches the conclusion that this will inhibit, then certain things should follow. I don't think I'm in a position to say this is going to inhibit the claim for the Deh Cho, the Dogrib, and the Métis. All I'm in a position to do is to raise some questions.

I think when it comes to a just settlement, there is a comment I can make. A just settlement of claims assumes there are two parties negotiating over a table that hasn't already got lots and lots of fixed positions on it.

This legislation will become a fixed position within that bargaining process for the Deh Cho and Dogrib, yet they haven't consented through their settlement to this structure being created.

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In my my remarks I made a distinction between what I see as being the situation in the NWT and what I see as being the situation in the Yukon, where there is an umbrella final agreement and negotiations are occurring within that framework. Here we've got this legislation establishing the framework, yet it has not been consented to in a negotiating process by the southern groups. We also know that a comprehensive agreement in principle was negotiated with the Métis and the Dene peoples of the NWT. That fell apart, yet here it is coming back. Here's the overall template—negotiations will occur within that template.

Mr. John Finlay: Mr. O'Reilly, did you want to get in on this?

Mr. Kevin O'Reilly: Sure. I might make a couple of comments. You have already heard from the Dogribs and you've also heard from the community of Deline, who are involved in self-government negotiations. They have expressed some views about how the bill may be amended to make it more acceptable to those groups that are in comprehensive claims or self-government negotiations. I think there are some reasonable suggestions there that the committee should consider.

Mr. John Finlay: I would agree with that, because I don't characterize what we heard from the Dogrib, Deline, or the Deh Cho as being opposed to land and water boards, or to resource management in the valley. It seems to me their opposition is somewhat more visceral, on the one hand, and esoteric on the other. It's how we talk to them and what they take as their rights and birthright at the beginning. That's the problem. It's not whether they should be on land or water boards, or that those boards should have some real say over their lands and their environment and the things that support their lifestyle. They'll go along with that, absolutely,

So I don't think we're diametrically opposed. I'm merely suggesting that if this agreement works for the Gwich'in and the Sahtu, it may encourage land claims rather than discourage them. The things that I see discouraging them are not within this agreement. And there are clauses in this agreement, as I understand it—I'm sure you've read them—that derogate and say that nothing in this agreement will affect those land claims.

I guess I'm not naive enough to suggest that when this is in place and these boards are working there won't be some spin-off effect, because people will watch and will see what happens. But it seems to me we're either going to do that and keep moving forward with these things, or we're going to say it'll take another 20 or 30 years.

Professor, you say there's common ground between you and the mining interests on these boards because you want them to be sufficiently well-funded to do the job. I agree. But underlying the recommendations of the mining companies and the power company I see this thing we run into all the time when we talk about sustainability, the environment and ecosystems: we want a simple answer, we want it on two lines, we want to know exactly, and if we make any mistakes we don't want to have to pay for them. If we make any mistakes it's your mistake, CEAA's mistake, the government's mistake or the department's mistake. They didn't know it would affect the fish or do this and that. We don't want to have to pay for it. I want to say to them that the precautionary principle you mentioned is behind this bill.

You said that there's a good definition of the environment in this bill, but it isn't in the part where it should be. Can you tell me where it is—the one that you like? I certainly wouldn't want to miss that. “There's a good definition of environment in this act, but it is not section 58.” Where is it?

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Prof. Nigel Bankes: It is in clause 2, the main definition section of the bill, and I think it's verbatim from CEAA, the precise language used in CEAA. But for it to be made operative, one wants to see that word used in a few places in the act. One place where one might have expected it to be used is clause 58, which deals with the responsibilities of the boards and their goals. One might expect to see that one of their goals is to protect the environment as defined in this bill, but it isn't there.

So the definition is good, but it needs to be in some of the operative provisions of the bill.

Mr. John Finlay: It needs to appear again. I'd be delighted to move that amendment sometime, Professor Bankes, because I think it is most important.

You mentioned one other thing that is dear to my heart, and that is intervener funding. I got a private member's bill through the House on that in the last session. In a comparison that I have of CEAA and the MVRMA, there is provision for intervener funding. It may not be as strong as we might wish, but where CEAA says in paragraph 4(d) that its purpose is “to ensure that there be an opportunity for public participation”, this bill says in paragraph 114(c) that the EIR process is “to ensure that the concerns of aboriginal people and the general public are taken into account...”.

When we get to screening it says “consideration of public comments” by the federal authority, where appropriate. That's subsection 18(3) of CEAA. In subsection 22(1) it says “facilitate public access to the report”, make the report “available to the public”, and that any person may file comments with the agency.

Preliminary screening in clause 125 of this bill says that public concern must be considered by the responsible authority before making its decision. Whether the development proceeds or is sent to the review board for assessment, the Land and Water Board must consult with departments, affected communities, and first nations. Then under clause 128 it says that the public concern must be considered by the review board before making its recommendations to proceed or have further public review.

I agree under subsection 58(1.1) of CEAA that “the Minister shall establish a participant funding program to facilitate the participation of the public in mediations and assessments by review panels”. In this bill it says the Minister will treat intervener funding on a case-by-case basis, drawing down from special appropriations for the review panel budget”.

Perhaps that is not as strong as “establish a participant funding program”, but the possibility is certainly there if the minister in any way feels the public has not been adequately consulted. Is that good enough, in your opinion, or should it be a lot stronger?

Prof. Nigel Bankes: The position taken in the brief—it's at pages 11 and 12.... It is true that this bill does make reference to the involvement of the public. It's not completely silent. I don't want to overstate the case here. But those references, when you look at them, are passive when it comes to the public. “The boards shall take things into account”—that sort of thing. It's not that the public has a right to participate and the public has a right to funding that will allow them to make that participation effective—I think that is the more active language of CEAA.

I think that is the difference in the drafting techniques: one is passive—that is, this bill—and CEAA is more active and accords rights, including intervener funding, to the public.

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[Translation]

The Chairman: Thank you, Mr. Finlay. I am sorry, but Mr. McNally has been patient.

Mr. O'Reilly.

[English]

Mr. Kevin O'Reilly: Thank you.

I didn't get all of the translation there, but I also think, Mr. Finlay, you may want to look at clause 134 of the bill. It lays out some principles or process for conducting an impact review, which is equivalent to a panel review under CEAA. There's really nothing in there about participant funding.

Paragraph 134(1)(e) talks about public consultation or hearings, but there's no requirement to establish participant funding on an ongoing basis, which is what we find in CEAA. You may have been involved in long discussions and hard fought battles that saw that a participant fund was established. It doesn't say how much mind you, but the fact it's entrenched in legislation provides a better comfort level than I guess we have here.

I think it's important to understand too that the funding that may be made available for reviews conducted under the Mackenzie Valley Resource Management Act is really tied up with implementation funding that is going to be made available for the Sahtu and Gwich'in claims alone. What happens if a panel has to review something outside their claims area? Then I guess they have to make a special case to DIAND, but I think it will be much more effective to actually have this right in the legislation.

The Chairman: Thank you, Mr. O'Reilly. Mr. McNally.

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

Just to follow up, Professor Bankes, you were talking a little bit there about effective boards and what would make a board effective and workable. You also mentioned just a moment ago, in response to Mr. Finlay, the notion of public input versus input from the boards. What kinds of mechanisms would you build into this process that you don't currently see to address those concerns?

I ask Kevin O'Reilly as well.

The Chairman: Perhaps you can address that question, Mr. O'Reilly.

Mr. Kevin O'Reilly: I will let Nigel take a crack at this, but there is some suggestion in our brief on pages 11 and 12 to improve the public participation provisions and make them more in line with what we already have in place in CEAA.

Nigel, you may want to speak to this as well.

Prof. Nigel Bankes: On page 4 we refer specifically to some clauses where one would expect to see an opportunity for the public to have input, and they're not there. The clauses make specific reference, for example, to first nations or the Sahtu and the Gwich'in specifically, but not more generally to members of the public. We think those provisions should be there for the Sahtu and Gwich'in, make no mistake about it, but we also understand this legislation is creating institutions of public governments and that the public has an interest in the function of these boards as well.

Mr. Grant McNally: Okay.

Mr. Kevin O'Reilly: I might point out too that at the time we have this bill coming forward, there's an ongoing national debate and discussion about harmonization. Here we have a case where one federal department doesn't seem to want to live up to the standards that have already been established in the Canadian Environmental Assessment Act. So some people might question whether harmonization really applies even within the federal family.

Mr. Grant McNally: I guess the make-up of the boards and the fact there are representatives from the first nations people in the areas, as well as there being other appointments as well—they are in fact government appointments, in effect an extension of DIAND in that area. I don't know if it's something you're addressing in terms of accountability, but I sense you're asking about the accountability factor of these boards and the decisions made with public input. What is your read on the accountability factor of the decisions made by this board and any recourse concerned individuals or groups might have perhaps in opposition to the decisions of these boards?

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Prof. Nigel Bankes: CARC is supportive of co-management institutions and of the idea of first nations people sitting on these boards, because of the expertise they bring knowing the land and the traditional ecological knowledge they bring with them.

On accountability, there are a number of levels at which accountability can work. There is clearly legal accountability, because this bill does provide for judicial review. On overall political accountability, we do suggest that there might be a tabling of reports, not just with the minister but also with Parliament. There are provisions in CEAA providing for parliamentary tabling of reports, and I don't think we see them to the same extent in this bill. Parliament has an ongoing responsibility, and one way to achieve that is through the tabling of reports in Parliament.

Mr. Grant McNally: You would advocate for that as perhaps being a little more open, a little more a matter of getting the information out to a wider....

Prof. Nigel Bankes: Yes. And it would be consistent with CEAA.

Mr. Grant McNally: Thanks.

The Chairman: Thank you, Mr. McNally.

[Translation]

Mr. Finlay, could we agree to finish 15 or 20 minutes from now?

Mr. John Finlay: Yes, sir.

[English]

You talked about triggering environmental assessment and so on. When you presented this you mentioned the legislation list in this bill and the law list under CEAA. I've done a little bit of investigation, and it appears that perhaps you were misled. Neither the Canada Mining Regulations nor the Canadian Petroleum Resources Act is apparently listed under CEAA. Those acts parcel out exclusive rights to an area for exploration, but they do not give a company a permit for land use or water use. They have to still acquire those land use permits under Bill C-6 in order to access the land. These applications are the ones that would trigger an environmental screening and/or an assessment, as I understand it. Would you not agree that those applications would be a proper trigger for environmental assessment?

Prof. Nigel Bankes: Yes. We make some general comments in the previous section about some of the standards being different, but when it comes to triggers we don't make the claim in this part of the brief that the triggers here are lower than they are for CEAA.

The question that was being posed was whether or not we had it right in CEAA. Isn't it remarkable that none of the provisions of the Canada Mining Regulations or the CPRA acts as a trigger?

In the case of the oil and gas industry, we can say the Canada Oil and Gas Operations Act has all the triggers in the world that we need, and that is probably an adequate answer. I'm not sure the same can be said for the mining sector.

I will try to give one specific example of where we may want to take a second look at the Canada Mining Regulations. I had a discussion with Mr. Keddy about this. We may want to ask whether or not there should be a trigger here as well, in addition to the triggers that will occur under the Territorial Lands Regulations and the Equivalent Land Use Regulations that are here, and under the water licence application.

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I want to be clear about the case we're making here. It's not that any staking of a claim should act as a trigger. What we are saying is that maybe there are some additional provisions in the Canada Mining Regulations that should act as a trigger. For example, we give one in relation to the withdrawal provisions.

Mr. John Finlay: I want to be very clear. You say the triggers in this act are not lower than in CEAA. Then you say we should probably look at the Mining Act, Petroleum Resources Act, and a lot of the regulations of the Ministry of Natural Resources from an environmental point of view.

I spent two years doing that on the environment committee. CEAA was touted as a wonderful act, but the government that brought it in didn't get it through the House, and we had to go at it again. After the battles we had with CEPA, I'm very delighted that CEAA seems to be having some effect.

I wasn't as sure when we passed it that it had gone far enough. I'm sure we could have improved CEPA, but we had a horrendous fight on that score, as you're probably well aware.

As the Prime Minister said in the House today, we're great compromisers. That's probably kept this country together for 150 years. It's going to be the only way we keep it together for the next 150 years.

I have no difficulty with your position. You're pushing to the future. I'd like to do that too, but I have to be a realist. I have to be pragmatic. As legislators, we have to balance these things.

We are certainly not going to be able to give the mining interests all they want. We're probably not going to be able to give the environmentalists all they want. Perhaps if we can give the aboriginal people a sense of empowerment and having a say over what amount of their own resources and land we're prepared to grant them, then we would be going a long way to developing the north.

Just facetiously, I wanted to say to Mr. Alvarez this afternoon that if people don't want to invest in the Northwest Territories because we have too many unsettled lands claims, reviews, boards, and panels, then maybe they would consider Newfoundland. It's got a lot of rock too. A lot of unemployed fishermen down there I'm sure would love to get into a mine or work in the woods or something like that. Maybe their requirements are not quite as complicated as what we're dealing with here.

I want to thank both these witnesses, because they certainly added a dimension I think the committee should look at. I'm very thankful that you have been as specific as you have. We appreciate it.

[Translation]

The Chairman: Mr. McNally, have you finished?

I am inviting Mr. Bankes and Mr. O'Reilly to say a few words to us to conclude. I will give you two minutes each.

[English]

Prof. Nigel Bankes: I don't think so, Mr. Chairman, other than to thank you for hearing us today. It's a little depleted, but we understand the circumstances that led to that. We hope the brief will prove useful to you.

[Translation]

The Chairman: Mr. O'Reilly.

[English]

Mr. Kevin O'Reilly: I'd like to thank the committee for the chance to appear before you today. I think we made some specific suggestions in here in terms of some changes that can be made to the bill. More importantly, though, there are some changes that can be made to the process by which we have this bill now before us. The same sorts of issues about consultation and involvement in a drafting are going to come up again and again and again.

I think it's important for the committee to consider giving some direction to DIAND so as to have more inclusive processes whereby they bring together people to talk about the bill and the regulations that are to come, particularly for this bill.

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I think that there are some improvements that can be made to the consultation process. We have outlined in our brief that there are models out there for doing that, such as the Canadian Environmental Assessment Act. There was something called the regulatory advisory committee put together whereby stakeholders were brought together from a variety of interests to work together to achieve a consensus on regulations under the Canadian Environmental Assessment Act.

I think the same sort of process would work here with this one. We would want to make sure that the Sahtu, Gwich'in, and the other first nations, the Métis, are involved in that process and have some sort of authority over how the end result comes out. But I think it's in the best interests of everybody that we have a better process for doing this in the future.

Thank you.

[Translation]

The Chairman: Thank you very much. I want to thank all our interpreters for their excellent work, our researchers, the video staff, our office personnel, our messengers, our clerk and the Department of Indian Affairs. I thank you. We will adjourn until our next hearing which will take place tomorrow at 3:30 p.m., with a live connection to Yellowknife.

The meeting stands adjourned.