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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 21, 1995

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[English]

The Chairman: Finally we have a quorum. I have to apologize to the witnesses that we weren't able to start earlier.

The issue at hand is Bill C-98. I guess more particularly it deals with whether or not there is some inconsistency in language in Bill C-98 with the Nunavut claims act of 1994.

To be quite honest, the last set of witnesses we heard raised some issues that the committee did not feel terribly competent to deal with at that point in time, dealing with some constitutional matters and some legal matters. We felt at that point that before we could go further, the relevant departments as well as NTI and any other group it was appropriate to liaise with should try to talk to see if these issues were real issues, if it's just a matter of a misunderstanding, if there's a requirement for more clarity, to see if we could get that so we can get on with the business of the bill.

My understanding is that last week was not a week in which that could be accomplished. I don't think there were any meetings with NTI or the wildlife management board and departmental officials. I don't think that's happened for a whole bunch of reasons. People are busy. But anyway, I'm sure the departments have looked at this issue and have some opinions on it.

I note today that we also have the Nunavut Wildlife Management Board here. It's the first time they've appeared. We have some reps from the NTI here as well, although they're not listed as witnesses today. We'll encourage them to sit at the table a little later on. As well, we have representatives from three departments.

Oh, NTI is listed. Sorry about that.

We're going to start off with the Department of Indian Affairs and Northern Development and Terry Henderson, director general of the claims implementation branch. Terry, maybe you could give us a presentation, and if we have a few questions, we'll get them asked.

Then we'll hear from the Department of Fisheries and Oceans, and then the Nunavut Wildlife Management Board. Then we'll maybe pull one representative to the table from each and see, if issues emerge, if we can get a better handle on what those issues are and how they may be resolved.

Mr. Terry Henderson (Director General, Claims Implementation Branch, Department of Indian Affairs and Northern Development): Thank you, Mr. Chairman. I have with me today Mary Temple, Department of Justice, who provides legal services for the Department of Indian Affairs and Northern Development, as well as Alan Edzerza, who is an implementation coordinator on my staff.

Mr. Chairman, given the interest that was generated on November 9 by the presentations of both the Inuit Tapirisat of Canada and the Nunavut Tunngavik Inc., I am please to be here on behalf of DIAND to provide an overview of the Nunavut Land Claims Agreement and endeavour to answer questions of this committee relative to that agreement.

While I have no real familiarity with Bill C-98, the bill now before you, I trust that a better understanding of the Nunavut final agreement will assist you in your deliberations.

In case the committee has not already obtained copies of the Nunavut Land Claims Agreement - the Nunavut final agreement, as we refer to it - I have a number of copies in both English and French that I can leave with the clerk, as well as some extracts of relevance to Bill C-98 from that particular agreement. As well, there are a few copies of maps of the Nunavut settlement area.

First of all, what is a land claim agreement? Comprehensive claims are based on aboriginal peoples' traditional use and occupancy of the land. Settlement of these claims provides aboriginal peoples with lasting protection for their land-based interests and eliminates uncertainty about aboriginal rights that have not been otherwise dealt with by an earlier treaty or legislation.

To date, the Government of Canada has signed ten such comprehensive land claims agreements with aboriginal groups. We have the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement in northern Quebec. We have the Inuvialuit Final Agreement in the western Arctic, and the Gwich'in and Sahtu agreements in the Mackenzie Valley. And as of last February, we have four Yukon first nation final agreements. We also have, as of 1993, the Nunavut Land Claims Agreement, which we are now discussing. There are many more such claims at various stages in the acceptance and negotiations process across Canada.

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The Nunavut final agreement is the largest land claim settlement in Canada. The agreement, which was reached after more than a decade of negotiations, is a modern-day treaty designed to provide certainty for Inuit and other Canadians while respecting the ownership and administration of land and resources in an area of the central and eastern Arctic that covers one-fifth of Canada's land mass. That's approximately 1.9 million to 2 million square kilometres of land.

Under the agreement, Inuit have exchanged their undefined aboriginal rights and title to lands and resources in the Nunavut settlement area for defined rights protected by the Constitution of Canada. There are now some 19,000 Inuit resident in the Nunavut settlement area, which represents about 85% of the population.

The Nunavut Land Claims Agreement was signed in May 1993 and was given effect by way of Bill C-133, the Nunavut Land Claims Agreement Act, on July 9, 1993. The agreement is a land claims agreement within the meaning of section 35 of the Constitution Act 1982.

The Nunavut Land Claims Agreement is a comprehensive and complex document consisting of 42 articles or chapters, which are designed to be read and used in their entirety. However, for this presentation, I have attempted to bring to your attention those parts of the agreement that are most relevant to Bill C-98.

Of particular significance to Bill C-98 are the provisions of both the agreement and the settlement legislation with respect to the paramountcy of the agreement over other laws.

In this regard, I will quote directly from the Nunavut Land Claims Agreement Act. There are similar citations within the agreement itself. Subsection 6(1) of the act says::

I might add that during the actual drafting of the Nunavut Land Claims Agreement, a conscious decision was made not to search out and amend possible inconsistencies in existing legislation, but simply to rely on these paramountcy clauses, largely in the interests of simplicity and time.

Highlights of the Nunavut Land Claims Agreement include: Inuit title to approximately 350,000 square kilometres of land, of which approximately 36,000 square kilometres include mineral rights; Inuit rights to harvest wildlife on lands and waters throughout the entire settlement area; capital transfer payments of more than $1.1 billion payable over 14 years; the Inuit share of royalties that the government receives from oil, gas and mineral development on crown lands; a guarantee of the establishment of three national parks in the settlement area together with the negotiation of Inuit impact and benefit agreements for such parks and all other conservation areas; and a commitment by the federal government to introduce legislation to create a new Nunavut territory.

I might add that the Nunavut Act has been passed, and steps are now being taken to create the new Nunavut territory and government by April 1, 1999. The Nunavut territorial government is to be a public government with similar structures and jurisdictions to those of the existing government of the Northwest Territories.

Finally, for our present purposes, the agreement provides for an equal participation between the Inuit and the government in new institutions of public government being established to manage wildlife, provide for land use planning, regulate water use, and to assess the impact of development projects on the environment throughout the settlement area.

These public government institutions include: the Nunavut Wildlife Management Advisory Board; the Nunavut Planning Commission; the Nunavut Water Board; and the Nunavut Impact Review Board. These boards, while independent, being federally legislated and funded, are responsive and accountable to the public for their actions and accountable to the minister for the expenditure of public funds.

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For example, the Nunavut Wildlife Management Board was established by the settlement legislation on July 9, 1993. The agreement states that while government retains ultimate responsibility for wildlife management:

The NWMB is empowered to make wildlife management decisions subject to rejection or variance by the appropriate minister. In respect to wildlife habitat, the agreement states that the primary responsibility is to be exercised by the government.

Article 15 of the agreement obliges the government to seek the advice of the NWMB with respect to any wildlife management decision in marine areas beyond the settlement areas, which are zones I and II, where those decisions would affect Inuit harvesting rights within the settlement area.

Finally, pursuant to article 16 of the agreement, wildlife provisions of article 5, which sets up wildlife management, will also apply in a defined outer land-fast ice zone beyond the territorial sea along a portion of the Baffin coast.

The fulfilment of federal obligations under the Nunavut Land Claims Agreement and other land claims agreements is the responsibility of the Government of Canada as a whole. There are many such obligations. Some are one-time obligations, while others are ongoing and enduring obligations.

While the Department of Indian Affairs and Northern Development has its own program-related implementing responsibilities under these agreements and plays a central monitoring role on behalf of the Government of Canada, many other government departments, like the Department of Fisheries and Oceans, have their own unique responsibilities with respect to implementing these agreements.

Mr. Chairman, I trust this overview of the land claims agreement has been in some way useful to the committee. My colleagues and I are certainly prepared to entertain any questions, and we'll endeavour to answer them.

Thank you.

The Chairman: Maybe you can clarify this for me. You're telling me that there is a paramountcy clause in the land claims legislation. And it would be the contention of the Department of Justice and the government that this clause is sufficient to ensure that if there appears to be other legislation in which there's a conflict, the land claims act has paramountcy.

Mr. Henderson: Yes. I'm not at liberty to offer a legal interpretation, but certainly the position we would come from -

The Chairman: We have a lawyer next. Maybe the lawyer could.... Could somebody tell me if that's the position of the government?

Ms Mary Temple (Legal Counsel, Comprehensive Claims, Department of Indian Affairs and Northern Development): That is what those provisions say to us. That's been our assumption as to what the consequence would be; that is, if there is any difference between what's in the agreement and what's in another piece of legislation, the provision in the agreement would prevail, whether it's something in the agreement that qualifies the other general legislation or completely replaces it.

The Chairman: So the position of the government is that there is no requirement to go back to existing legislation, or indeed any current legislation that's being examined, to search out and amend or change clauses that may be seen to be in conflict. It is the position of the government that the paramountcy clause in the implementing legislation for these land claims deals with that. That's basic, so we shouldn't worry about that. Is that what you're telling us?

Ms Temple: That was the decision made for implementing the agreement. There are certain provisions in the agreement, articles 10 to 13 in particular, that do require special legislation and may involve consequential amendments to other existing legislation. But apart from those provisions, it was decided that the provision that states the predominance of the agreement over other legislation would be sufficient legally to take care of any conflicts or inconsistencies.

The Chairman: Help me with the Nunavut Wildlife Management Board. In a brief that was presented to us by the NTI, it says:

That's not my understanding. My understanding is that the minister still has the right of disallowance. Am I correct there?

Ms Temple: Yes, that's correct.

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The Chairman: So they do not have the sole right. It's subject to ministerial approval basically, or the minister has the right of disallowance. Am I correct there?

Ms Temple: The agreement expressly provides for all of those types of decisions to be subject to ministerial confirmation, rejection, or variance.

The Chairman: In dealing with the minister exercising his rights or her rights as minister in the area that would be covered by the Nunavut Wildlife Management Board, does the minister have the responsibility under this act or any other act to consult before taking actions within those areas? In regard to the turbot problem of last year, we heard from the NTI that they raised an objection with the department at the time. They didn't proceed with it, but they basically served notice.

What are the responsibilities of the minister in these areas? If the Minister of Fisheries and Oceans goes in and decides under this act, Bill C-98, to go in and declare a marine conservation area in the waters covered by the Nunavut Wildlife Management Board act, he has a right to do that. But does he have a responsibility to consult? That's my question.

Ms Temple: If the minister is going to establish a conservation area the agreement requires that the proposal, if I could put it that way, be approved by the Nunavut Wildlife Management Board. That's the process provided for in the agreement. Again, the agreement also provides that a determination by the Nunavut Wildlife Management Board to approve or not a proposed conservation area is subject to, again, the ministerial final decision on it.

The Chairman: I'm trying to figure out if the circle does come around.

The minister, through the Governor in Council, which is cabinet, under Bill C-98, has the ability to proclaim a marine protected area. That's what he has under the bill. Are you telling me that the cabinet - the Governor in Council - approval of a marine protected area, if it comes under the Nunavut Wildlife Management Board's area of responsibility, must then also be approved by the Nunavut Wildlife Management Board?

Ms Temple: DFO may want to speak to this.

What I understand is that before an Order in Council was passed a proposal to establish an area would be run through the wildlife management board. That's how I understand it would work.

The Chairman: Okay. I'm trying to figure out what ``running through'' means. Does it mean you say this is what we're going to do, you have 10 days for comment, and we don't have to accept your comment? My understanding was, from the presentation, that the NTI believed that those clauses meant the government had to seek the approval of the Nunavut Wildlife Management Board.

Ms Temple: That's correct. The agreement doesn't say ``consult''; the agreement says ``approval''.

The Chairman: So the Governor in Council cannot unilaterally declare a marine protected area in those waters unless the Nunavut Wildlife Management Board agrees. So if the board says no, the minister has no right or the Governor in Council, the cabinet, cannot proclaim?

Ms Temple: No, that's not quite correct. In the first instance the agreement of the board is required, but the Nunavut Land Claims Agreement then refers to that decision of the board to agree or not as one that has to go through the ministerial override process.

The Chairman: Okay. So if the Nunavut board says they don't agree, it then goes to the minister, who can override it and then can still take it through Governor in Council. Is that what you're telling me?

Ms Temple: I believe that's how the process would work, yes.

The Chairman: So the veto has a veto?

Ms Temple: Yes.

The Chairman: So you go through the process of saying to the Nunavut Wildlife Management Board that you want to declare this; they say take a hike, it's not going to happen, so that's the advice that goes through. Then the minister has the right to disregard the advice and still go to Governor in Council. So it's full circle. So Governor in Council, in effect, still has sole decision-making authority?

Ms Temple: At the end of the day, the Governor in Council could establish a conservation area that the wildlife board said it didn't agree with, yes.

The Chairman: Okay.

Derek.

Mr. Wells (South Shore): I have a couple of questions for verification. Do we have a copy of the written presentation that you just gave?

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A voice: No.

Mr. Wells: Okay. If I understand what you said, the agreement contains sections saying that this land claims agreement prevails if there is a conflict with other legislation.

Mr. Henderson: That is correct.

Mr. Wells: Can someone tell me if this Bill C-98 contains the same provision, because most legislation contains provision that it prevails over other legislation. I didn't pick it up in reading it. Can anyone tell me if that...?

The Chairman: They were all nodding ``no'' over in the corner.

Mr. Wells: It doesn't? Okay. And the land claims agreement was adopted by an act of the House?

Mr. Henderson: Yes, it was, and brought into effect on July 9, 1993 - the Nunavut Land Claims Agreement Act, Bill C-133.

Mr. Wells: Okay. I just wanted those clarifications, Mr. Chairman.

The Chairman: Is there anybody else at this point? There are going to be more questions, so don't leave.

Next we have Michael, from the Nunavut Wildlife Management Board.

Mr. Michael d'Eça (Barrister and Solicitor, Nunavut Wildlife Management Board): Good morning, Mr. Chair.

I have handed out a copy of our submission, so I hope all the members have one. I will be following them pretty closely, so you may want to refer to them as I proceed.

I would first of all like to thank you for having me speak here. I apologize that no members of the Nunavut Wildlife Management Board could attend. I am their legal council and prepared these submissions.

To introduce the board to you, the NWMB as it is known, it is an institution of public government established pursuant to section 5.2.1 of the agreement. As you are now fully aware, this is a land claims agreement within the meaning of section 35 of the Constitution.

The board is a co-management body made up of nine members. Four are appointed by Inuit organizations, three by the Governor in Council, one by the commissioner in executive council, and from nominations provided by the board a chairperson is also appointed by the Governor in Council.

The board is an extremely important body within the agreement with far-reaching powers, duties and functions over wildlife management, and access to wildlife within the Nunavut settlement area, which I will refer to as the NSA.

In fact, section 5.2.33 of the agreement mandates that the NWMB shall be the main instrument of wildlife management in the Nunavut settlement area, and the main regulator of access to wildlife, and have the primary responsibility in relation thereto in the manner described in the agreement.

As was just mentioned, the appropriate minister retains the authority to accept, reject, or vary certain decisions of the board, including those pertaining to harvesting wildlife, pursuant to sections 5.3.7 to 5.3.23 of the agreement.

In addition, when urgent and unusual circumstances require an immediate modification in harvesting activities, the minister or the minister's delegated agent may make and implement any reasonable interim decision; however, to be followed by a full board review as soon as practicable thereafter.

For the purposes of a discussion of Bill C-98, the board feels it is vital to underline the following three points. First, the boundaries of the NSA coincide with Canada's territorial sea boundary. Secondly, the marine environment of the NSA occupies a significant portion of Canada's overall maritime environment. All of the Nunavut marine areas fall within the jurisdiction of the board, as does the outer land-fast ice zone. The NWMB has a more limited jurisdiction beyond the Nunavut marine environment that extends to all of the waters north of 61 degrees latitude subject to Canada's jurisdiction, and to the waters of James Bay, Hudson Bay and Hudson Strait.

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As to the powers, duties and functions of the board, as I've already mentioned, its powers with respect to the conservation and management of marine wildlife and habitat under the agreement are extensive. I've compiled a list that highlights the main powers of the board in this area.

First, on jurisdiction within the Nunavut settlement area, any restriction or quota on harvesting within the NSA is to be established, modified or removed by the board. Second, the board has the authority to, first, identify wildlife management zones in areas of high biological productivity; second, approve plans for management and protection of particular wildlife habitats; third, approve plans for management, classification, protection, restocking or propagation, cultivation or husbandry of particular wildlife, including endangered species; and fourth, approve the designation of rare, threatened and endangered species.

Also within the Nunavut settlement area, the board plays a significant role in conservation areas and national and territorial parks. This role includes approving the establishment, disestablishment and changes to boundaries of conservation areas related to wildlife and wildlife habitat, and approving plans for the management and protection of wildlife habitats within conservation areas and territorial and national parks.

As you can see, I have designated the sections of the agreement that provide these various powers to the board. If you want look through the agreement, you can see the exact wording.

As to jurisdiction within the outer land-fast ice zone, it has full jurisdiction extending to all harvesting from land-fast ice and all marine mammals in open waters within this outer land-fast ice zone of the east Baffin coast. Within zones I and II and adjacent areas, the NWMB has an influence and jurisdiction as well. Within the agreement, zone I is those waters north of 61 degrees latitude subject to Canada's jurisdiction seaward of the territorial sea boundary, and zone II is the waters of James Bay, Hudson Bay and Hudson Strait.

Specifically within zones I and II, the board shall appoint appropriate representation from the settlement area to any structures maintained by government to promote the coordinated management of migratory marine species in zones I and II and adjacent areas. Those government-maintained structures shall not diminish the decision-making of the board within the marine areas of the Nunavut settlement area. Further, government must seek the advice of the board with respect to wildlife management decisions in zones I and II that would affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the NSA.

Finally, a word on the jurisdiction of the Nunavut Marine Council. The four land and resource co-management bodies established by the agreement - the Nunavut Impact Review Board, the Nunavut Planning Commission, the Nunavut Water Board and the NWMB - may jointly, as the Nunavut Marine Council, or severally, advise and make recommendations to other government agencies regarding the marine areas of the Nunavut settlement area. Government must consider such advice in recommendations in making any decisions that affect those areas.

Appendix I gives a more extensive description of the board's powers with respect to conservation and management of marine wildlife and habitat under the agreement. I won't be referring to it or going through it, but it's there for your referral.

I'd now like to address the board's concerns about Bill C-98. I should mention that the board joins NTI and many others in welcoming this effort to consolidate existing legislation related to oceans into this one act that promotes and enables the integrated management of oceans and marine resources. Nevertheless, it's apparent to the board that the drafters of this bill until now have not been aware of its jurisdiction within the Nunavut marine environment and beyond. Clearly, no effort has been made within the draft bill to recognize the authority of the board.

NTI has identified broader problems with the bill in its present form in its oral and written submission to the committee. The board agrees with the criticisms raised and recommendations made by NTI, and urges the committee in particular to require the appropriate changes to subclause 24(2). The wording of subclause 24(2) must be expanded to apply to the entire act, not simply to part I.

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First are our general concerns. On one hand the NWMB is confident that its jurisdiction is well protected by section 2.12.2 of the agreement, which states that:

On the other hand, it's in no one's best interest for legislation such as the Canada Oceans Act to ignore that jurisdiction within the legal regime it wishes to assert. Even if the lawyers agree that certain of these measures and arrangements are subject to the provisions of the agreement, the inevitable result of such silence with respect to the board and the agreement will be costly misunderstandings and the possibility of litigation.

For instance, officials carrying out their duties under the act are going to rely upon the wording of particular provisions of the act. In most instances they are not going to consider or to seek a legal opinion as to whether their authority under the act is subject to any other authority.

Within the NSA, the onus will be on an individual whose rights under the agreement are not being respected - or NTI, NWMB or one of the other co-management bodies - to challenge the apparent authority of the official or the act. Not only is this unfair, but it carries with it additional financial, social and other costs.

For example, under clause 48 of the bill:

The hydrographer is not going to know that if the survey is within the NSA, involves wildlife research, and the land being entered on or passed over is Inuit-owned land, he or she is obliged by statute and land claims agreement to acquire the approval of the NWMB, but section 21.5.7 of the agreement requires that. The process in which we are all presently participating offers government an opportunity to avoid such inevitable misunderstandings and potential litigation. The board urges the standing committee to require that the concerns of the NWMB be addressed through the appropriate modifications to Bill C-98.

I'd like to turn to our specific concerns. Clause 16 says:

Clauses 29 and 31 deal with: ``The Minister, in collaboration with interested persons and bodies...shall lead and facilitate the development and implementation'' of ``a national strategy'' and of ``plans for the integrated management of activities'' within various waters. As presently worded, these clauses leave to the discretion of the minister which persons, bodies, ministers, boards and agencies he or she is to collaborate with. Clearly, however, the development of national marine strategy and plans cannot be undertaken without the active participation of the NWMB.

Further, that strategy and those plans must be compatible with the jurisdiction of the board within the NSA. In that sense, such strategy and plans require not just the participation but the approval of the board. These clauses must explicitly acknowledge the minister's statutory and treaty obligation to collaborate with the board in developing and implementing national marine strategy and plans.

On clause 32, wherein ``the Minister may...recognize established advisory or management bodies'', the minister is obliged under these circumstances to recognize the board as an established advisory management body. The present wording clearly states that the minister ``may'' so recognize the board.

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In subclause 33(2), ``the Minister may consult with interested persons and bodies'', etc. As presently worded, this subclause does not require the minister to consult with the board in exercising the powers and performing the duties and functions of part II of the bill. Again, the minister does not have a discretion in this matter. He or she must consult with the board, and that obligation must be clearly reflected in the language of the provision.

In clause 35 of the bill, the Governor in Council may make regulations establishing marine protected areas in any area of the sea, and may make regulations prescribing measures for the conservation and protection of fishery resources and their habitat in marine protected areas.

With respect to paragraph 35(a), the Governor in Council does not have the lawful authority to establish marine protected areas in the Nunavut settlement area or the outer land-fast ice zone without the approval of the NWMB.

The Chairman: That approval is subject to veto.

Mr. d'Eça: That approval is subject to veto, that's right. Within the area of harvesting a whole process has to be gone through, but the NWMB submits its decision to the minister and, through this detailed process, the minister can reject or vary that decision.

The Chairman: Just for the sake of clarity for the committee, the Governor in Council does not have the lawful authority to establish marine protected areas in the NSA or outer land-fast ice zone without the approval of the NWMB, unless that approval or lack of approval has been vetoed or overruled by the minister. So it basically puts a process in place where consultation is required, but at the end of the day the minister can reject the recommendation of the board. Is that right?

Mr. d'Eça: In this case, that's right. The minister doesn't have an overall authority over the board. But it's spelled out within the agreement that all decisions made by the board, in relation to certain subclauses and parts IV and VI and so on, in relation to certain areas, shall be made in the manner set out in these provisions. In the end, after receiving a final decision of the board made pursuant to these clauses, the minister may accept, reject, or vary the final decision.

In order to establish marine protected areas in zones I and II, the Governor in Council must seek and consider the advice and recommendations of the board. The above comments apply equally to clause 107 of the proposed act. That clause attempts to place within a subsection of the Canada Wildlife Act essentially the same wording as paragraph 35(a).

In respect of paragraph 35(b), the Governor in Council does not have the lawful authority to prescribe measures for the conservation and protection of fishery resources and their habitat in the NSA or the outer land-fast ice zone if those measures involve the establishment of quotas or other restrictions on harvesting. Such powers are reserved for the board.

The Chairman: Again, would the board make a recommendation to the minister?

Mr. d'Eça: The board would make a decision, which the minister would then have an opportunity -

The Chairman: Does the board make a decision saying, ``Here's the decision'', and it goes to the minister to be accepted, amended or rejected?

Mr. d'Eça: We're not talking about zones I and II here.

The Chairman: No.

Mr. d'Eça: Yes, that's correct.

The Chairman: Okay.

Mr. d'Eça: Should those measures not involve the establishment of quotas or other restrictions on harvesting, the Governor in Council is still obliged to acquire the approval of the board for plans for the management and protection of particular wildlife habitats, and for the management, classification, protection, restocking or propagation, cultivation or husbandry, of particular wildlife. Nor can the Governor in Council exercise such authority with respect to zones I and II unless it first seeks and considers the advice and recommendations of the board.

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In addition, it's important to stress that Inuit are guaranteed under the agreement free and unrestricted right of access for the purpose of harvesting to all marine areas within the Nunavut settlement area, subject under these circumstances to any restrictions established by the board for the purpose of conservation, and in the case of parks or conservation areas, any bilateral agreement between Inuit and the appropriate management agency.

The combination of paragraph 35(b) and clause 37, which deals with offence and punishment, raises serious concerns, not only with respect to an infringement of the board's jurisdiction, but also with respect to an infringement of the fundamental Inuit right to harvest.

The Chairman: Can you explain exactly what you're saying?

Mr. d'Eça: Inuit have a free and unrestricted right of access to harvest within all marine areas.

The Chairman: Subject to conservation, right? Subject to any restrictions by the NWMB?

Mr. d'Eça: Yes, for the purpose of conservation.

The minister here can prescribe measures for the conservation and protection of fishery resources and then have fines and so on if those are contravened. So Inuit will be faced with a situation, if this goes through, in which they could be subject to these measures, whatever they may be, for the conservation and protection of fishery resources, and to fines.

They'll be in a position of having to fight this thing by saying, ``No, wait a second. We have this right under the agreement - free and unrestricted right of access to harvest. The minister has put these restrictions in place contrary to the agreement.''

The Chairman: All that is subject to the minister's approval or rejection anyway, isn't it? The wildlife management board makes a decision with respect to the harvesting quotas and that type of stuff, and that decision then goes to the minister, who may accept it, amend it or reject it. If the minister rejects it and if there's a violation, then that violation is subject to the penalties established by the minister under the act.

Mr. d'Eça: Actually, in this situation, the decision by the board - this right of access granted by section 5.7.16 - is subject to four possibilities within section 5.7.18 of the agreement. The ones that are pertinent here are any restrictions established by the board for the purpose of conservation.

Section 5.7.18 is the provision of the agreement that gives the board that authority. Decisions by the board in relation to the subsections that are subject this ministerial review do not include section 5.7.18. So you have to always look carefully to see where the board is making its decision and under what authority, and see if that's subject to the Government of Canada jurisdiction set out within the agreement.

For instance, when we talk about the article 15 zone I and II jurisdiction, that is not mentioned within the Government of Canada jurisdiction. Part VII, which is what we're talking about now, sections 5.7.18 and so on, is not subject to the Government of Canada jurisdiction. So it's not a blanket arrangement.

Finally, to repeat the point made with respect to clause 16 of the bill, any new jurisdictional lines established by this or other legislation should recognize, respect and reinforce the jurisdictional lines already established by the agreement.

There are two other clauses I want to mention.

Subclause 36(1) says:

It follows that the language of subclause 36(1) must be amended to accord with the more restrictive conditions of section 5.3.24 of the agreement, including an explicit acknowledgement that this interim decision is to be followed by a full board review as soon as practicable thereafter.

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Finally, on the hydrographer example I used earlier, where the hydrographer may enter on or pass over the lands of any person, if the survey involves wildlife research and the land being entered on or passed over is Inuit-owned land within the Nunavut settlement area, the hydrographer's access is subject to the approval of the board. This is under section 21.5.7 - not a matter for the minister to be reviewing.

Again, I just point out that the committee shouldn't be under the impression that all decisions by the board are subject to this veto or approval by the minister.

To conclude, despite the criticisms I've expressed in this submission, the board does not want to leave the standing committee with the impression that it disapproves of the bill as a whole. From the point of view of the board the proposed act will, if the appropriate changes are made, be a step forward in the management of oceans and marine resources. By establishing a clearly mandated lead agency for government in ocean management, the board's jurisdiction will be better protected, and its advice and recommendations more easily provided and more likely to be followed.

Nevertheless, the bill as it is now drafted fails to recognize the considerable maritime jurisdiction of the board within Canada's marine environment. The inevitable result of such a failure both within and outside the Nunavut settlement area will be jurisdictional disputes, misunderstandings by officials trying in good faith to administer the act, confusion among the public, and costly attempts to assert and/or defend perceived rights.

The board strongly recommends to the standing committee that it require that Bill C-98 be amended to recognize and accommodate the jurisdiction of the board. The board would be happy to assist government in whatever way would be most helpful with the necessary revisions.

I thank you for this opportunity to make my submission. If there are any further questions I'd be happy....

The Chairman: Mr. Scott.

Mr. Scott (Skeena): If I understand what you were saying, the minister has the right of veto over decisions made with respect to conservation. The minister can make a decision, the board can review that decision and disagree with the minister, but the minister in effect has the final say. Is that...?

Mr. d'Eça: I'm not sure exactly what you're getting at. The board has the jurisdiction to make decisions, let's say, within section 5 of the agreement.

Mr. Scott: Okay, so the board makes the decision, right?

Mr. d'Eça: Certain of those decisions that are laid out in section 5.3.16 of the agreement are subject to Government of Canada jurisdiction. There is a procedure for all of this: the board makes its decision, the minister has 60 days to look it over and accepts it or gives reasons for rejecting it, and then it goes back to the board. There's a procedure involved.

In the end, for those decisions that are subject to this, section 5.3.22 of the agreement states:

Mr. Scott: If I understood right, I think your interpretation of the agreement, the NSA, is that the minister does not have the power as a result of the NSA to actually enforce fines or impose fines with respect to violations of ministerial decisions. Is that your interpretation? Is that what I'm hearing?

Mr. d'Eça: What I'm saying is that under Bill C-98 there's a combination of a couple of provisions. The minister appears on the face of it to have a power - this is paragraph 35(b) - to make regulations prescribing measures for the conservation and protection of fishery resources and their habitat in marine protected areas. Then section 37 goes on to say there are fines for contravening this.

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What I'm saying is the board has jurisdiction in all this. I'm making a point that actually NTI may want to make more strongly, because this is really within the area of Inuit rights under the agreement and not so much within the jurisdiction of the board.

But it appears to us that Inuit, having a free and unrestricted right of access to harvest, could be caught by this and be presented with, first of all, the minister or the Governor in Council prescribing certain regulations that impinge upon their right to free and unrestricted access to harvest, and then with a fine.

Once the wheels are rolling, there's a fine involved. So the individual Inuk could be caught. Certainly we've seen it in other situations where licences are imposed upon Inuit when the agreement clearly says they don't need to have a licence, but nevertheless there are regulations in place that say you need a licence for such and such.

So they have their right protected under the agreement, but the reality is that officials following particular acts or particular regulations say, ``Okay, there's this measure and you haven't followed it, so you're getting a ticket for a fine''. So Inuit, having their rights, still must defend themselves because they're in a situation of having been given a fine under another act that hasn't taken into account - and this is the point we're making.

All we're asking is that Bill C-98 flag certain provisions and say they are subject to the Nunavut final agreement or to land claims agreements so that the minister and officials will be aware of that.

Certainly our experience has been that when that's not done, people naturally just look to the plain wording or the provision that's in front of them and so on, and you run into a lot of problems that way.

Mr. Scott: I understand where you're coming from. I guess I'm still at a loss here. I'll just describe what I'm concerned about.

Suppose the minister, for purely conservational reasons, on the advice of departmental officials, makes a decision with respect to harvesting or access or whatever. The minister and the board may be at variance with one another, but the minister has the final decision. Suppose he imposes a conservation measure and then individuals contravene that conservation measure. In your mind, does the minister or the Crown have the ability to bring charges and levy fines against people who contravene the minister's decision?

Mr. d'Eça: I'll give you my response in two parts.

First of all, especially from the Nunavut Wildlife Management Board's point of view, we have to clearly state that it's the NWMB that makes this kind of decision in the first place, and the minister has this role to accept, vary, etc.

Let's say the board makes a decision and the minister disagrees with it and imposes a limit of some sort on harvesting. Actually, I would leave it to NTI to answer how the constitutional and treaty rights Inuit have negotiated would be affected by it. In my view, they have a pretty strong right to harvest, and I would be very surprised if the minister could override that right.

The Chairman: Sparrow says he could if it's in the interest of conservation.

Mr. Scott: Mr. Chairman, Sparrow says the right to harvest is subject to the law of the land and to conservation concerns.

The Chairman: That's right.

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Mr. Scott: From what I'm hearing here, my concern is this: what good is the minister's power of decision-making with respect to conservation measures if there is no opportunity for enforcement? That's what I'm hearing.

Mr. d'Eça: My response is what good is the agreement that was negotiated over ten years between the government and the Inuit? The agreement clearly states that subject to section 5.7.18, all Inuit shall have the free and unrestricted right of access for the purpose of harvesting to all lands, water and marine areas within the Nunavut settlement area. Then you go to section 5.7.18 and it gives the restrictions upon that. That's very clear; it's protected within the Constitution and we all have to follow that.

The Chairman: If I could just follow up, I've been listening really intently to this, and I think we may be spending a lot of.... Not every piece of legislation can reflect every other piece of legislation in every clause.

Mr. d'Eça: True.

The Chairman: That's why we have different pieces of legislation, that's why we have departments, that's why we have courts, that's why we have lawyers: to ensure that there's consistency in the application of various pieces of legislation and there are linkages here.

The Nunavut legislation, from what you've described and what I've read, clearly indicates process. The Minister of Fisheries and Oceans is compelled by that act of the Parliament of Canada to go through those processes. However, he is also compelled as a minister to take all reasonable steps necessary for the conservation of stock and species. He is compelled by law to do that.

I've listened to what you've said and I'm agreeing with Mr. Scott. I don't really see the conflict. I may think it's a little complicated, but the stuff that keeps lawyers in business, I guess, and legislators as well, parliamentarians, is the complexity of legislation to deal with complex situations.

I am still unclear as to why you think the minister, if he is compelled under legislation to go through a process.... The Nunavut Wildlife Management Board says no, don't agree with that. The minister says, thank you, that's your decision; I'm altering it or I'm ignoring it. He goes to Governor in Council, gets it approved, and says that is a marine protected area. He or she has gone through the processes outlined in the law, in the legislation, in the statute. He has done that, and he says there it is.

Are you saying that once this happens, when this process has been gone through completely and cleanly, if somebody covered under the Nunavut settlement area goes in and fishes in that area, the minister should not have the right to issue a fine?

Mr. d'Eça: I am saying that the provisions of the agreement have to be followed. This agreement pertains to Inuit -

The Chairman: But tell me where it wasn't followed. I'm not trying to be argumentative, but this is complex and I'm trying systematically to see how the minister would have to do that. I understand the process. I understand that at the end of the day, when the process is through, the minister still has the right to go back and reject or amend the final decision of the Nunavut Wildlife Management Board, and can declare an area fully under his rights under that piece of legislation and under this piece of legislation.

If that process is gone through - and you're a lawyer - and he does it cleanly and according to the law, are you saying it would be inconsistent with the Nunavut settlement legislation? Is it your view that it would be inconsistent, even after going through that process, that he level a fine for non-compliance?

Mr. d'Eça: It's my view that apart from the process with the NWMB that you correctly outlined, the minister also has to address Inuit rights to harvest under the agreement.

The Chairman: No, but he's done that. We're talking about a marine protected area here. A marine protected area is prescribed by the minister after going through the processes outlined in the Nunavut Act. He's done that. He's gone through it. It has taken three days or three months - I don't care - he's gone through it. The recommendation from the board is no. He says, thank you for your final recommendation; I am basically vetoing it. He has the right to do that under that act. He does. It goes to Governor in Council. For the sake of conservation he declares a marine protected area. Somebody says, well, I'm sorry, I have rights under the act to go and harvest, and even though you've gone through all those processes, Minister, you don't have a right to stop me. Is that what you're saying?

Mr. d'Eça: I'm saying that this is a legitimate claim that Inuit can make under sections 5.7.16 and 5.7.18 of the Nunavut Land Claims Agreement.

The Chairman: Then why would we have all those convoluted processes for the minister if the conclusion at the end of the day is you can do it but we don't have to comply with it?

Mr. d'Eça: It depends entirely upon the particular issue we're talking about.

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The Chairman: I gave you a particular issue. The particular issue is that the minister believes that a species is threatened, and he goes in and says he is going to have a marine protected area established. He's going to ensure that no fishing takes place, say it's turbot. It's not going to happen in this particular area. He goes through and he gives it to the Nunavut Wildlife Management Board. They say they disagree. He says thank you, but he's overriding it. He goes to Governor in Council and declares there's no fishing in that area; it's a marine protected area.

Are you telling me that even after he goes through those steps, it's your understanding that the Inuit who would be covered in that area do not, at the end of the day, have to comply with that Governor in Council designation or decision?

Mr. d'Eça: I'm saying there's an issue here that would have to be decided between or would have to be perhaps litigated -

The Chairman: But why -

Mr. d'Eça: It would be between Inuit and government as to Inuit free and unrestricted right of access for the purpose of harvesting to all lands, water and marine areas within the Nunavut settlement area, subject to certain restrictions that are laid out in the agreement.

The Chairman: Let me ask somebody from over here. We have Indian Affairs and Northern Development here. We have legal counsel here. I've asked a specific question.

The only way we're going to understand this is by specific examples, because we're not experts in that act. What is the opinion of the department with respect to that situation? Does the Nunavut Land Claims Agreement Act indicate - and I may be pointing to the wrong act, but in your view, does it indicate that in the situation Mr. Scott and I have just described, the minister does not have a right to enforce that decision?

Ms Temple: The short answer is that I agree with your analysis.

The slightly longer answer is that I read the agreement as a complete package. The provision about right of access, which is slanted more to physical access than the right to take a particular amount of any particular fish, has to be read in the context of all the rest, particularly of that chapter but anything else in the rest of the agreement. It's certainly my understanding that when we developed these processes for decision-making, which start with the board but end with the government, everybody, Inuit included, would be bound by the final result. The real issue is whether the decision was made in accordance with the processes provided for in the agreement. That's my slightly longer answer.

The Chairman: What we described was a decision arrived at that was perfectly in sync with the provisions of the agreement. When the final decision is made, are the Inuit in the settlement area bound by that final decision? That includes fines and penalties for non-compliance.

Ms Temple: The agreement requires the minister to implement all of these final decisions. Again, my understanding of implementation is that it includes enforcement.

Mr. Scott: My concern was that what I was hearing, I thought, was questioning the outright sovereignty of the Crown, of the minister in this case. If our people here from DIAND are telling us this is not a concern, then perhaps I won't be concerned. But I was, based on the remarks the witness had provided.

Mr. Wells: It is a concern that has been raised. I don't think we can just leave it; I think we need to get a definitive opinion on the legal consequences of that. I don't know who gives those opinions. I have mine, and I don't know what the right one is. How many lawyers are in the room? You'll probably get that many different opinions.

Mr. Verran (South West Nova): Let's kick them all out and come to a consensus, a practical one.

Mr. Wells: If only it were that.... Ultimately it's going to be interpreted by the courts and that's the problem. As much as we would like to get rid of all the lawyers, it's not that easy. That's always been Harry's solution.

Mr. d'Eça: Mr. Chairman, I don't know if you want to pursue it, but you may want to ask NTI, which represents the Inuit within the Nunavut settlement area. The NWMB is answerable to the public, so we're different. We're not spokespeople for Inuit. You may want to ask NTI's opinion on the matter.

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The Chairman: These are very valid issues, but to double the size of the act to ensure that what is stated clearly in the other act is restated in this act is not an answer. There has to be something a little more simplistic than that. That simply doesn't work.

Mr. Wells: There's a conflict between the two acts.

The Chairman: But there isn't. We just heard that there isn't because of the paramountcy clause in the claims legislation. So when in doubt, go to the claims legislation.

Mr. Wells: Yes, but we have this gentleman saying he doesn't agree with that, that it's not paramount.

The Chairman: I'm not sure that he didn't say that.

Did you say that, Michael?

Mr. Wells: He said they're going to make the argument, and it's going to end up in court.

Mr. d'Eça: There's an argument there to be made.

Mr. Wells: Hopefully the court's going to decide. If we can keep it out of the courts - if possible; you can't always do that - by making a simple amendment, then maybe we should do that. But what I hear him saying is that regardless of the paramountcy clause, they're not going to accept it and they're ultimately going to ask the courts to decide it - possibly.

Mr. d'Eça: With respect to your characterization of having to double the size of the act, that it will doom our attempts to have minimal changes made, it's not that we're asking to include the text of the Nunavut Land Claims Agreement within Bill C-98. The changes the NWMB seeks, and that I believe NTI seeks, are easily doable. As a matter of fact, NTI in its submission has put forward some draft changes, which are, as you can see, to a few provisions. It's straightforward. In my view, what it basically does is to flag those provisions that require notice of the Nunavut final agreement and other land claim agreements. It's very straightforward, with very reasonable changes.

We're at this stage with this particular act. I don't understand whether there are backroom wheelings and dealings, but it seems a straightforward matter to do. It would save a lot of trouble for everyone, I think, and a lot of expense later on if we can do this.

The Chairman: I agree, Michael. That's why we suggested - and I'm going to suggest it at the end of this session - that if you're still in town you meet with some officials from both Indian Affairs and Northern Development and Fisheries. These are issues where ultimately we'll have to call them back to say we have to arbitrate this thing and decide if your concerns are valid or if their concerns are valid. I think the best way to deal with this stuff is to sit everybody down at the bloody table.

Some of the stuff seems fairly reasonable and easy. There may be reasons why government says no. I won't know those reasons until you guys sit down and talk, see what you can agree on, what you can't agree on, and then we'll have to, as a committee, separate the wheat from the chaff on this one. That's probably the best way we can get it done.

Mr. d'Eça: It seems reasonable.

The Chairman: Go ahead, Harbance.

Mr. Dhaliwal (Vancouver South): I have one quick question in terms of what will satisfy you. You basically want a clause saying that Bill C-98 be consistent, or interpreted in a consistent way, toward the Nunavut Land Claims Agreement. Without getting into the details and the complications, you want to avoid a situation of some of the grey areas, if there are any...that the paramountcy clause, although it's not being put into past legislation, since this is new legislation, it would clarify if we had a clause in there that says this should be consistent with the paramountcy clause and also with the Nunavut Land Claims Agreement.

Is that basically what you think would clear that up?

Mr. d'Eça: Essentially, although I'm not calling for something as ultimately minimal as just one clause. I'm asking for changes with respect to maybe a half dozen or so provisions of the agreement.

The board agrees with the recommendations being made by NTI. They have produced specific language that asks for this. But the idea behind it is as you have stated: we have new legislation being formed, so let's take account of this agreement and so avoid misunderstandings, or people simply following the plain wording of a provision that doesn't mention, when we feel it ought to, the jurisdiction of the board or, more generically, the jurisdictions that have been established under the Nunavut final agreement. Let's put that in. Let's flag it.

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Mr. Dhaliwal: Thank you.

The Chairman: Who do we have here from Fisheries who wants to...?

We welcome Mr. Redmond Clarke, director of fisheries management, central and Arctic region; Mary Jean Comfort, senior adviser, Oceans Act; and Ruth Grealis, legal counsel.

Mr. Redmond Clarke (Director, Fisheries Management, Central and Arctic Region, Department of Fisheries and Oceans): Mr. Chairman, thank you very much.

The Chairman: Isn't this fun today?

Mr. Clarke: It is. I'm enjoying it, actually.

The Chairman: It's different.

Mr. Clarke: Yes. I come from Winnipeg, so this is very different.

The Chairman: You fish out around Winnipeg, so it's just different freshwater fish.

Mr. Clarke: Yes, primarily in Winnipeg.

Our central and Arctic region, which is based in Winnipeg, is responsible for fisheries management in the NWT. I've been asked here today to talk very briefly on some background to cooperative fisheries management in the NWT with special reference to the Nunavut settlement area.

The simple message I have is that fisheries management in the NWT in areas where land claim settlements are in existence is now a partnership. It's a partnership between the aboriginal groups, the public co-management boards established under land claims settlements, and the government departments.

The history in the NWT began with the settlement of the Inuvialuit land claim in 1984, which established the Fisheries Joint Management Committee, which also has responsibilities in the marine areas. Since then in the NWT three other land claims boards have been settled: the Gwich'in Renewable Resource Board in 1993; the Nunavut Wildlife Management Board in 1994; and the Saulteaux Renewable Resources Board in 1995.

I think from this, what I want to say is that this is a fairly new process for the boards, for the aboriginal groups, and for the government. It's a learning process for all of us. We are involved, together, working on the management of the fisheries.

I would just like to describe very briefly some of the general responsibilities of boards and then talk, again in fairly general terms, about the Nunavut Wildlife Management Board and its responsibilities, and the associated responsibilities of governments.

What I'm going to talk about is not an inclusive list of all the clauses in all the different agreements. It's just to give you an overview of some of the things and some of the responsibilities.

General responsibilities of the co-management boards can be divided into three different categories: decision-making, operational, and advisory. For the decision-making, some of the areas in which the boards have specific decision-making responsibilities include regulating fishing on aboriginal lands and allocation of fishery resources.

Some of the operational-type activities the boards are responsible for include: determining harvest levels, especially by the aboriginal groups; maintaining a fishing registry for the lands; and reviewing all pertinent information on fisheries and fisheries management.

They also have advisory responsibilities that include recommending on various aspects of fishing, on research and on other items the minister might require advice on. The responsibilities do vary significantly from board to board, with the latest settlements having more decision-making responsibilities than the earlier settlements. For instance, the Nunavut Wildlife Management Board has more direct decision-making responsibilities than the Fisheries Joint Management Committee, which was established about ten years earlier.

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The Department of Fisheries and Oceans also has general responsibilities. You've heard already today that the Minister of Fisheries and Oceans retains the ultimate responsibility for the conservation of fish and marine mammals. The minister also can disallow board decisions in relation to the harvesting of fish in the Nunavut settlement area. Those grounds are specified as conservation, the contents of the agreement, public health and public safety.

The department also has to work with the boards and the aboriginal groups on the development of fisheries co-management plans, which will outline how the fisheries are going to be managed jointly. We also work jointly with the boards in planning, coordinating and implementing research projects, such as stock assessment, monitoring fisheries and general enforcement strategies.

The department carries out, either directly or through some of the aboriginal organizations, stock assessment and research, and we implement the fishery co-management plans. We also provide information to help the boards establish total allowable harvests and we participate in and supplement harvest studies as necessary.

One specific area mentioned in several of the agreements is the coordinated management of trans-boundary migratory species. The department works with the appropriate boards on this area. We consult with the boards on items within their purview on policies, legislation and various other issues and international concerns. We obviously implement the board's decisions, such as licensing and requirements arising from their allocation decisions.

I'd like to turn very briefly to the Nunavut Wildlife Management Board, and again I want to stress I'm not going through all the clauses and provisions in the land claims agreement as it lays them out. Obviously, as has been said before today, the Nunavut Wildlife Management Board is the main instrument of wildlife management in the Nunavut settlement area and the regulator of access, and the Inuit right to harvest is an underlying part of that. It is a co-management board, which has four Inuit appointees, four government appointees and a chairman whom they have elected.

The board's responsibilities include establishing and modifying the total allowable harvest in the Nunavut settlement area; determining the Inuit basic needs levels, which is basically the level of harvesting required for the Inuit day-to-day lives, and there is a formula in the act for how this is to be established; allocating any surplus according to a list of priorities; undertaking a five-year harvest study; conducting an Inuit bowhead knowledge study; and identifying research requirements. The board may hold public hearings and it may advise the minister, for example, on issues in zones I and II.

Harvesting decisions of the board, as I said before, are subject to the disallowance process, where the minister, according to the provisions of the act, has the timetable and can disallow things on the basis of conservation, the contents of the agreement, public health and public safety.

The result of the settlement of the land claims and the passage of the act is that DFO now has to interact to a large degree with the board in the day-to-day management of the fisheries. To do this, we have developed operating procedures so all our staff know what we have to do. We've reviewed the act as well and developed an action plan so we have an understanding of all of the provisions of the act and what we are required to do.

The board has several options in terms of interactions. Obviously, the minister is the focal point in terms of the decision-making process. For day-to-day activities, the interactions are close and appropriate between our staff and the Iqaluit office and the board staff and the board itself in Iqaluit and various other people in the department.

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One of our main jobs, as I have said before, is to implement the Nunavut Wildlife Management Board's decisions, specifically for the licensing and management of fisheries, the development of fishery management plans and the conduct of studies.

To help the board we have done several things in the last two or three years. We have prepared a status report on the biological condition of the stocks in the Nunavut settlement area. We've summarized what we see to be our research in stock assessment priorities as a basis for the board to discuss and integrate them with priorities coming from the Inuit wildlife organizations.

We have helped by providing them with a calendar of fishery events so they know what the upcoming major issues are that they will have to deal with. We participate on the harvest study, which they're responsible for. We're providing them with harvest statistics for stocks that are shared between the Nunavut settlement area and other areas.

We will seek or recognize we have to seek the board's advice on international wildlife agreements. The board participates in the joint commission with Greenland on narwhal and beluga, the coordinated management of migratory species, management decisions in zones I and II, legislation changes and policy changes.

In summary, effective conservation and management of fish and marine mammals in Nunavut settlement areas requires the close interaction and co-management of the boards, the Inuit and DFO working together. As I said, it is a recent relationship. Certainly from the Fisheries point of view we're still in the learning curve, and practices and processes are evolving within the context of the agreements. Thank you.

The Chairman: So what you are telling us is that you don't see any major areas of conflict between the proposed legislation C-98 and the claim settlement legislation. Is that what you are telling us?

Mr. Clarke: That is correct, yes.

The Chairman: Now maybe you can help me a bit about process. Could you tell me how this bill came about? Was there a process by which individuals within the department and also over at Indian and Northern Affairs were engaged early as this bill was being drafted to ensure there were not blatant inconsistencies between the two pieces of legislation?

Mr. Clarke: I haven't been involved closely in the drafting of the bill.

Ms Mary Jean Comfort (Senior Adviser, Oceans Act, Department of Fisheries and Oceans): Obviously, as you are aware from a previous package we sent to you, there were extensive consultations with other departments about the bill early on and in the drafting stages.

The Chairman: You have heard some of the concerns as well that were raised this morning. They deal more with trying to get clarity than anything else so we don't end up in situations where the thing has to be litigated, where lawyers and negotiators have to get involved. With regard to some of the areas that have been raised, do you think a revisiting of some of the language may be able to - or can you think of any language that may be able to - allay some of the concerns about lack of clarity causing protracted labour pains at some point in the future as we try to clarify which act is doing what?

Mr. Clarke: Since I'm not a lawyer, I don't think I can talk about the actual language and the legal verbiage of the bill. In terms of the practicality - and I think one of the concerns was on the establishment of protected areas in the Nunavut settlement area - that would be done within full cooperation with the board. I can't see any other way of it being done.

In many instances, I expect the proposal would come from or through the board or from the Inuit people. I would assume that depending on the purpose of the marine protected area, there would be access for harvesting by the Inuit unless there are conservation grounds, of course. That was one area that was discussed. So on the practical side I don't see any concern.

The other area mentioned was the problem of access. I think all our hydrography staff, certainly the program managers, are aware of the provisions of the land claims agreement and the requirement to consult with communities and with the boards, as appropriate, to describe their research.

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The Chairman: There's been a query as to whether or not there is specific mention in the act that the processes outlined in the Nunavut Act must be recognized and adhered to.

In that vein, you've also mentioned there are three wildlife management boards currently operational. So whatever we did in this case, you'd have to do in the case of the other two as well, and you never thought that was an option, right?

Mr. Clarke: Yes, the Fisheries Joint Management Committee is the only other one in the Northwest Territories that has marine responsibilities. The other two, the Gwich'in and the Sahtu, are inland boards.

The Chairman: Okay.

Go ahead, Mr. Dhaliwal.

Mr. Dhaliwal: You commented that since this is quite a new partnership and a new act, a lot is still being learned.

One of the points brought out by a number of witnesses is that we probably should have a comprehensive review of the Oceans Act anywhere from three to five years down the line so that if there are problems we aren't predicting at this moment, the fisheries committee could revisit them and maybe even look at some of the concerns being put forward now. Maybe there are problems we will need to look at. Would you support that and think it a good idea?

Mr. Clarke: Hopefully the act can be drafted so these problems won't exist.

Mr. Dhaliwal: But in light of some of the views of the other people, it would probably make good common sense for the committee to have a comprehensive review within three to five years.

Mr. Clarke: It's certainly a possibility.

Mr. Dhaliwal: Okay. Thank you.

The Chairman: I think you just answered a question I was going to ask. In your view, this bill is written in such a way that it should not lead to those conflicts.

Mr. Clarke: I don't think so.

Mr. Verran: You don't think so, but there are just too many assumptions. ``I assume this is the way it's going to be'' and ``I believe this is the way it's going to be''.

Surely, with the magnitude of experience the department and the other interests have, we should be able to get something so we don't have to assume, or else we're going to be in dire conflict down the road. That is what we're trying to avoid, I believe. I don't assume it; I believe it.

The Chairman: Well, I agree with that. The language should be as clear as possible.

I've been around only seven years, but I was here long before that, working for other members. Many times a piece of legislation is passed, and for the people who sit around this table it's as clear as crystal. Then two years later, when the regulators get at it and they start reinterpreting it, it's not the same interpretation. It's not interpreted in the same way as it was meant to when it was debated in the House or at committee.

That's one of the problems when language is unclear, and that is really one of the reasons the legislative process and the committee process are so important. What we may all agree to today may be completely misinterpreted by somebody else sitting in your position or my position two years down the road.

Is there anything else? Okay.

Now we have NTI, with Bruce Gillies, Laurie Pelly and Paul Okalik. Who is going to start off? Laurie?

Ms Laurie Pelly (Legal Counsel, Nunavut Tunngavik Inc.): Yes, thank you.

In his opening remarks, Terry Henderson, DIAND's representative, commented on part of the reason for the supremacy clause, so to speak, that was placed in the act and in the agreement. He suggested that it was for simplicity and management purposes in view of the myriad legislation in existence.

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Obviously it would have been a huge task at that point to go through every bit of legislation and change it to comply with the agreement. I think there were other reasons for that supremacy clause related to the aboriginal people giving up their aboriginal rights in connection with these agreements.

The point is well taken that at that time it was perhaps an insurmountable suggestion that it be done with legislation, but we're now in a very different situation. We have new legislation coming down, and in our view the Government of Canada can't fulfil its obligation to affirm and recognize land claim rights, in exchange for which aboriginal people gave up their rights, by simply adding a general one-line non-derogation clause to every piece of legislation that comes down the pike.

That non-derogation clause is not even needed, because the land claim agreement is already supreme over existing legislation. Just the same, I think a one-line non-derogation clause is insufficient when you have specific sections to which specific rights, powers and authorities of other boards apply.

That's why we're asking for some simple language - I've provided you with it in my written submission - suggesting that where there are other powers or authorities, where boards are required to give their approval, there's a recognition of this fact. If we don't have that, it's clear that when people want to know how the Oceans Act is to operate, they'll go to the Oceans Act, not to the land claims agreement based on a one-line non-derogation clause.

I think it puts an unnecessary burden on the aboriginal organizations, which have limited resources and ability to go up against regulations coming from the Government of Canada, to expect them to monitor those regulations and look for places in which their rights are not in accord with the land claims agreement. I think it's a good idea to sit down with DFO, outside of taking up this committee's time, and talk about those specific items. I'd support the positions taken by Michael d'Eça, and I support them for the reasons he stated.

I'd call your attention to just a few of the provisions. I won't go through all of the provisions that we've suggested changes to, although there are only ten. A couple provide examples of why we feel this language is necessary.

On page 9 of our written submission -

The Chairman: I'm still getting stuck on language. On page 7 of your brief, on clause 16, it says:

You have statutory hours to do that after given processes are gone through. Am I wrong there?

Ms Pelly: I think you are wrong in terms of the specifics. Quoting from section 5.6.16 of the land claim agreement:

The Chairman: But that's subject to which clauses and provisions?

Ms Pelly: It's subject to the provisions that were referenced before - the authority of the minister to accept, vary or reject decisions following his submission of written reasons in accordance with those provisions.

The Chairman: Which means that the provisions acknowledge that the minister has the authority, if processes are gone through, to establish quotas or non-quota limitations within the NSA.

Ms Pelly: No, I would say the minister has the authority to vary the provisions that have been established by the NWMB, but the NWMB has the sole authority to establish them in the first instance.

The Chairman: Maybe we're arguing about how many angels can dance on the head of a pin, but at the end of the day, at the end of the process, the minister, through Governor in Council, if the processes outlined in that act are followed, has the authority.

If you say in clause 16, because we want clarity of language - it seems very unclear to me to state that the government has no authority to establish quota. They have authority and the authority is clearly outlined in that act by process. They have to go through the process. But at the end of the day, at the end of the process, the government still has authority. It's the primacy of the Crown.

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This is all new to us, so we're just trying to figure it out. You're giving us language because you say the language is unclear, but I'm asking if that language is not equally unclear.

Ms Pelly: I take your point, but that is not language that I'm suggesting.

The Chairman: No, but it's language that you state as fact in your brief, and if it's not factual, it makes it more difficult for us.

The Crown has authority here. It has authority that is restricted by process outlined in the act, but it still has authority. So to state that the Crown has no authority to set is misleading and, from what I understand, not right. It does have authority. The authority is restricted by process that's outlined in the act, but it still ultimately has authority. Am I wrong?

Ms Pelly: No, you're not incorrect. But I would add that there is reason for the language in the agreement that the NWMB shall have sole authority to establish those quotas, etc., subject to the terms of the article. The terms of the article are meant to give the Government of Canada ultimate jurisdiction to accept and vary after written reasons and so forth.

So your point is well taken, but I think you must also understand our point, that for 15 years of negotiating the right that's stated in the agreements - ``have the sole authority to establish quotas and non-quota limitations'' - a provision in the Oceans Act that purports to state that the Governor in Council has that authority with no other restrictions upon it is unfair, I think.

Mr. Paul Okalik (Adviser, Nunavut Tunngavik Inc.): The purpose of the agreement was to provide protection for ourselves as Inuit and for our future generations. We are ceding our option title forever, and we want to be able to hunt in the future. We want to be able to feed ourselves like we always did in the past. We put this language in through intensive negotiations, and we want some protection. We want hearings to protect ourselves through the board. That's why we insisted that the board be the sole authority, in the first instance, in regulating our affairs, that it not be left to an offhand decision from the minister.

The Chairman: But that provision is subject to certain things, so you just can't say that it has the sole authority and forget the sections of the other provisions that it's subject to.

Mr. Okalik: At the end of the day he may arrive at a decision, but he has to go through the board and through hearings, and he has 60 days to respond to a decision by the board. And even in those cases, he's limited. He has three conditions that he has to meet to override a decision on harvesting. A decision by the minister to override a decision has to be based on public health or safety reasons. If it contravenes an agreement with another government, an international government or in the principal conservation - those are the only three conditions in which the minister has discretion to overrule a decision by the board in terms of harvesting rights for Inuit and other harvesters. So even the minister's authority to override is limited through the agreement.

So I would question the issue of sole authority for a government because it's limited through the agreement. We negotiated those provisions to protect ourselves. We went through enough problems in the past, and we want to avoid them in the future. That's why I insisted on that type of language in the agreement.

The Chairman: Thanks. I'm sorry about getting off-track there, but I just wanted to get that clear.

Ms Pelly: That's fine. I apologize for anything that's misleading in this document. I included the authority of the minister to accept, reject and vary decisions where I discussed it in general terms, and in more detail on page 4.

At item 7 on page 8, where we're proposing language for the Governor in Council's regulation-making authority to establish marine protected areas - we've been through that and we know that it requires the approval of the NWMB, which ultimately is subject to the minister's authority. But at the top of page 9 we would suggest some simple language stating that with the approval of bodies referred to in clause 29 - I previously identified proposed language for clause 29, which is ``existing and future bodies established pursuant to a land claims agreement'' where such approval is required by a land claims agreement.

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Under item 8, the authority of the Governor in Council to prescribe measures for the conservation and protection of the fishery, again, this authority is not a sole authority of the minister. The NWMB in the first instance will prescribe quotas and non-quota limitations up to the 12-mile limit and in the outer land-fast ice zone. Only if the minister has written reasons for objecting to those provisions that support a valid conservation purpose could the minister override them.

Therefore, we're recommending language, which is in italics, simply adding, as well as ``not inconsistent with Canada's international obligations'':

Subclause 36(1) under item 9 purports to give the Governor in Council emergency power where the Governor in Council is of the opinion that a fishery resource or its habitat is or is likely to be at risk. Under the Nunavut agreement, the governor has the authority to act in emergencies only when urgent and unusual circumstances require an immediate modification in harvesting activities.

You can see that this is not necessarily the same test. In the land claims agreement, in addition, a full review by the NWMB is required immediately after such emergency action. Therefore, we're suggesting that language be added to say that where land claims agreements permit, the Governor in Council may make orders not inconsistent with the requirements of a land claims agreement, because if the regulatory authorities are looking at this for the test of what their regulation-making authority is, that's not the test. It's varied by what is in the land claims agreement, which takes precedence.

On page 10, we're recommending that a provision be added to acknowledge the need for a full review of an order made pursuant to the minister's emergency authority where it falls within the jurisdiction of the Nunavut Wildlife Management Board.

Those are just a few of the provisions that we're requesting language on. I'd be happy to answer any questions.

The Chairman: Mr. Scott, do you have any questions on that?

Mr. Scott: Just a brief question, I suppose. I've been looking through the proposed changes. I'm not a lawyer, Harry, and so it takes me a little while to get through some of the stuff and try to understand it.

My concern with the proposed changes would be that whatever powers and whatever benefits have been conveyed under the Nunavut agreement are not expanded by the inclusion of these clauses in the Oceans Act. Nothing really immediately jumps out at me to suggest they would be, but I would just caution the committee that those are things I would be very concerned about.

The Chairman: That's a good point.

Do we still have somebody from the department who wants to give us some comments? These appear to be very straightforward amendments. What process can we now go through to see if these amendments...? We have to seek some feedback for the department. I'm not a lawyer either, but I'd like to get some feedback. Some of them seem to be innocuous. Maybe there are reasons why they would be problematic that we're not aware of. What processes do you think we should embark upon to see if there is some commonality of opinion on a couple of these issues?

Ms Comfort: I think our lawyers would have to look at it. They may look simple, but they may not be as simple as they appear. I'm not going to ask Ruth to give an on-the-spot legal opinion. That would be rude. So I don't know how long it would take. We'd have to look at them.

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The Chairman: Why don't we do this. I just don't want to spend much more time at the committee dealing with an issue that I think right now should be transferred over to the bureaucracy for good, informed debate. I want somebody to come back and tell us whether or not there is some commonality here. If there's not, I'd like the department to tell us why they think some of these clauses.... Maybe there is something much deeper than this.

Mr. Scott raises a good point. There should be nothing in this bill that broadens or expands the rights, privileges and powers that have been given under the land claims agreement. These are two separate pieces of legislation. They should preserve but they should not add to.

We want to make sure that what was hard fought and won is preserved, but we don't want to do anything that would add to. It's not our job here with this bill.

Go ahead, Mr. Gillies.

Mr. Bruce Gillies (Environmental Coordinator, Nunavut Tunngavik Inc.): Thank you, Mr. Chair.

I'd like to make it clear that in no way was it our intention to come here to try to renegotiate the agreement or expand Inuit rights. We saw a bill that in no way reflected realities as we see them in the agreement on Nunavut. I think we have come forward in good faith. We agree with going into a process to do this. We agree with you. I think our intention is, with all due respect, to help you ensure that the bill, which you say you would like to see simply worded, is not simplistic in terms of the Nunavut Land Claims Agreement. It is complex, you can see that. To leave out any wording reflecting the Nunavut Land Claims Agreement, I think, would put your bill into an area of being simplistic.

The Chairman: It's very clear that on the committee we spend more time on this issue than we have on any of the other issues, so I think it's very clear that the positions you put forward and other organizations from the north have put forward were ones that we were concerned about. You've obviously sparked our interest. I think this thing has to be settled. I'd like this bill to continue to go through process, but let's push it off over to the departmental officials.

If there are no other questions, what I'm going to do on this one is request that the departmental officials take this back and review it within the next few days. I don't know how long some of our witnesses are available, but let's open up a dialogue. Unless there is something there that is much more onerous than what I see on the surface, I think some of this stuff may be able to be negotiated. If it is, it's better for everybody. If it isn't, then I guess as a committee we'll have to sit down and make a determination as to what we think is required in order to address the concerns, whether or not the concerns are addressed, and we'll have to arbitrate the thing and get on with processing this legislation.

I want to thank all of the witnesses today. You've helped us a great deal. We'll probably -

Mr. Verran: To the people at the table, I want to ask whether, in leading up to appearing with the committee, you had any consultations with people from the department who are responsible for dealing with your issues?

Ms Pelly: Not to my knowledge.

Bruce, you have -

Mr. Verran: I guess you didn't try to initiate any, either.

Ms Pelly: If you're talking about the time between our last appearance and this appearance. Or are you talking about the previous time?

Mr. Verran: No, I'm not talking about last week. I'm speaking about leading up to it, over the last couple of months or so.

Mr. Gillies: On that, I would like to add that the chronology of it from our perspective, and I think from listening and talking to other organizations in terms of the process you are concerned about, which you raised with us when we gave our presentation, was why weren't you consulted, how did we get this far...was the problem possibly.

From our perspective, there was a lot that came to the fore with Minister Tobin's vision document, which created some excitement. We were quite excited by it, because we maintain we are quite interested in seeing this bill passed and to unify the ocean management regime. We spent quite a bit of time knocking at DFO's door and the minister's door to determine where it went from there. We read the mission statement, and the vision document sounded good in its general form. Quite frankly, they didn't seem to be organized around it yet. The minister wasn't sure, the cod issue was struck, and we thought, oh, oh.

At any rate, we went on with business as well, because we have a lot of other issues to deal with. There didn't seem to be any correspondence or anything emerging from the vision document moment.

From our perspective - and I'm not saying this is fair - it seemed that the next time, months later, we were sent a bill that had been through first reading. So no, we haven't consulted with or sat down with the people from the Department of Fisheries and Oceans in that way.

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That's not to say that in our piles of correspondence we didn't get correspondence from someone saying that if we would like to meet with department officials at Fisheries and Oceans they'd be willing to do so. I did find that in my pile one day. I phoned someone from the central Arctic fisheries people in Winnipeg who found out that lot number and personnel were no longer working out of our office. If you wish, that was a request to meet with us on this bill. But then other events overtook, I guess. The person was no longer working out of that office - -

The Chairman: Well, anyway, we'll have good consultation over the next few weeks. Aren't we lucky to have governmental processes where people can come in and actually make convincing arguments and probably change legislation?

I'm going to adjourn this formal section of the committee. I'd ask the committee members to hang in, please. We have some business to attend to.

Who's going to quarterback this?

Heidi is going to chat with everybody and figure out when we can get this meeting together to deal with these amendments, next week, whenever.

I want to thank everybody for appearing today.

Does everyone have the motion in front of them? This is housekeeping business. Does somebody want to move the motion? I think we can dispense with the reading of it.

Mr. Wells: I so move.

An hon. member: Seconded.

Motion agreed to [See Minutes of Proceedings]

The Chairman: Thank you. The meeting is adjourned.

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