AANR Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS, NORTHERN DEVELOPMENT AND NATURAL RESOURCES

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES, DU DÉVELOPPEMENT DU GRAND NORD ET DES RESSOURCES NATURELLES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, October 25, 2001

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[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): We'll call the meeting to order.

As you are getting to your places, I understand that we still have a few organizational exercises to perform, but we don't want to go beyond one o'clock. Therefore, we will start.

We are here to deal with Bill C-33, an act respecting the water resources of Nunavut and the Nunavut Surface Rights Tribunal and to make consequential amendments to other acts.

We will spare everyone the usual politeness, protocol, and everything and get to the point, because you didn't come here to listen to me. We came here to listen to witnesses from the Mining Association of Canada. We have with us today: Mike Vaydik, general manager of the Northwest Territories and Nunavut Chamber of Mines; Michael Hardin, general counsel and corporate secretary, Ashton Mining of Canada Inc.; Mike Hine, manager of mineral development, Qikiqtaaluk Corporation; and Pierre Gratton, vice-president, public affairs and communications, MAC.

Let's proceed to the presentation. We are offering you ten minutes each for your presentations; we'll proceed to questions, and you will have an opportunity for closing remarks.

For the record, please give us your name before you present. Thank you.

Mr. Pierre Gratton (Vice-President, Public Affairs and Communications, Mining Association of Canada): Thank you, Mr. Chairman.

First of all, I should just indicate that Mike Vaydik, general manager of the Chamber of Mines, was not able to make it. However, I have two colleagues on my left.

This is Mike Hardin, who is the general counsel and corporate secretary of Ashton Mining of Canada Inc. and who has been actively involved in natural resources and environmental issues in the north since 1973. As a member of the Nunavut, NWT and B.C. law societies for over 20 years, he has practised law and supported mining companies that explore for, develop, and produce mineral resources in Nunavut, NWT, and elsewhere. It might be useful to point out that Mike was one of the first members of the technical advisory committee to the NWT Water Board, and he co-authored a book entitled Mineral Exploration and Mine Development in Nunavut, so we have an expert here.

Mike Hine is vice-president, Nunavut, for the NWT and Nunavut Chamber of Mines. He has been a resident of Iqaluit since 1995, and he established the mineral development department of the Qikiqtaaluk Corporation, where he currently serves as manager of mineral development. This corporation is the economic development arm of the Qikiqtani Inuit Association, one of the three DIOs of the Nunavut Land Claims Agreement.

Now I'll just ask for a quick point of clarification, Mr. Chairman. We were assuming we had 10 minutes total. Are you telling us we have 30 minutes, that is, 10 each?

The Chair: You have 10 minutes each, but if you wish to take 10 minutes total, we will send you your bonus cheque in the mail.

Mr. Pierre Gratton: We'll take more than 10, but we won't take more than 30.

I am, as you mentioned, vice-president, public affairs and communications, of the Mining Association of Canada, otherwise known as MAC. MAC and the chamber submitted a written brief and recommendations for your consideration. We will speak broadly to the issues raised in the brief.

First of all, Mr. Chairman and members of the committee, thank you for inviting us to present our concerns and views on this important matter.

I should state that first and foremost we are here to underscore the urgent need for a regulatory framework governing water and surface rights in Nunavut.

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The mining and exploration industry contributed $129.9 million to the territory's gross domestic product in 1999, making it by far the largest wealth-creating industry in Nunavut. The territory holds significant potential for future mineral production, with promising exploration underway in diamonds and in precious and base metals. There is little doubt that mining will remain for the foreseeable future the most significant source of wealth in Nunavut, with a corresponding importance for the territory's growth and economic self-sufficiency and for future devolution.

Unfortunately, these opportunities in Nunavut are now at serious risk. The absence of a comprehensive water management statute casts significant doubt over the validity of water licences issued at the present time. The government is effectively asking industry to invest high-risk exploration and development dollars against a backdrop of significant legal uncertainty. Even if our industry were prepared to accept the risk of potentially invalid water licences, it is certain that financial backers would not. The very perception that a questionable regime exists deters investment and clouds what would otherwise be Nunavut's bright future for sustainable mineral development.

Canadians generally, and aboriginal and non-aboriginal northerners in particular, place a very high value on the protection of Canada's water resources and the aquatic ecosystems they support. Given these factors, a comprehensive and legally established scheme for water resources is vital, and I'm sure none of the members of this committee would disagree with that point. In other words, we need this legislation not just for mining but for the sake of the health and quality of the northern environment and its people. We respectfully request that the committee ensure that the issues surrounding clause 56 do not for the third time frustrate this important legislative initiative. Further delay of this legislation will be an embarrassment that can only erode public confidence in all the administrative structures that are now undergoing implementation in the new north. The result is harm to the broader public interest, which is contingent upon sound national legislation, such as the present bill.

I'd now like to ask my colleague Mike Hardin to comment on a number of the specific legal points laid out in our written submission on Bill C-33.

Thank you, Mr. Chairman.

The Chair: Mr. Hardin.

Mr. Michael Hardin (General Counsel and Corporate Secretary, Ashton Mining of Canada Inc.; Mining Association of Canada): Mr. Chairman, members of the committee, ladies and gentlemen, in our written brief we have identified five provisions in the legislation that we believe could be improved, could be amended. Some of these are in the nature of housekeeping amendments. Two of them, I would point out, are the result of inconsistencies we've identified between the Nunavut Waters and Nunavut Surface Rights Tribunal Act and its predecessor legislation, the Northwest Territories Waters Act. Our recommendations here reflect the same recommendations the Mining Association of Canada and the NWT Chamber of Mines, as it then was, made in 1991, when the NWT Waters Act was considered by this committee. Those specific provisions are the return of security upon the assignment of a water licence and, number two, the amount of time an applicant should have to appeal a decision of the water board.

I believe the other revisions we've suggested are self-explanatory, and in the discussion that follows I'll be glad to answer any questions you may have in regard to them.

Instead of spending time on those issues, I'd like to make a few comments about clause 56. As we say in our written brief, we have not come here today to continue the very high level of legal negotiation that surrounded clause 56, because we think that people with concerns and issues on both sides of the table have been adequately canvassed and will continue to be canvassed in order to bring this very important piece of legislation to a final form.

There's a lot of history that surrounds ministerial approval of water licences. It goes back some thirty years, when this concept was first introduced into legislation in the Northern Inland Waters Act, which at that time covered both the Northwest Territories, as it then was, and the Yukon. That concept was of course imported into the Northwest Territories Waters Act and the Yukon Waters Act when those pieces of legislation came into effect on June 15, 1993.

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Instead of succumbing to my natural inclination as a lawyer to debate the matter on a legal basis, I'd rather like to revert to the many years of experience I've had advising clients operating in the north on water licences and to think a little bit about the practical implications of ministerial approval.

I think the starting point for that discussion should be a consideration of what a water licence actually is. These are not simple documents. They are very complex and lengthy documents. The water licence recently approved by the Northwest Territories Water Board for the Ekati mine approaches 50 pages in length, with hundreds of terms and conditions, and a comparable water licence was recently issued in respect of the Diavik project. While it's obviously within the discretion of the Nunavut Water Board to set its own terms and conditions, we all know that precedent documents are used, and I think we can expect to see licences of similar complexity issued in the future in respect of mining operations in Nunavut.

The important thing to remember about a water licence is this: after June 15, 1993, when the Northwest Territories Waters Act and the Yukon Waters Act came into force—and this concept is repeated in Bill C-33—each and every provision of a water licence—and there may be hundreds of them—became fully enforceable in a court of law through the criminal justice system, unlike the situation that prevailed before this legislation came into effect. So what the water board does when they establish the terms and conditions of a licence from the viewpoint of the applicant is to establish a very broad and diverse group of legal obligations.

If the licensee or its agents and servants violate any of those obligations in these very complex and far-reaching documents, they can be subject to prosecution in the criminal courts. Of course, the penalties are appropriately severe, as they should be in all pieces of environmental legislation. In the case of a type A licence there is a maximum fine of $100,000 for each day on which the offence continues, and in the case of a type B licence it's somewhat lower. They also attract potential terms of imprisonment. So the water licence is a document with grave legal consequences, consistent with principles that are well-established in other parts of our law.

We believe that in these circumstances, having regard for the nature of a licence and the consequences of offending a licence within the concept that's well-established in the NWT and Yukon and is now proposed for Nunavut, ministerial oversight of that process is not an undesirable thing from the point of view of the applicant and indeed from the point of view of any interested party in the process. We naturally see things from the perspective of the applicant because that's our place in this matter, but other parties may feel the same way. It's important that at the end of the day we all get to the right answer. In our view, continuing the ability of the minister to take one last look at the licence is something that shouldn't be lightly discarded.

The other value that I see in that mechanism, from a legal point of view, is that it may prevent litigation. If the ministerial power is vacated and taken away, the only recourse an applicant or an interested party would have would be to go to the courts. The courts, of course, have an overarching jurisdiction over all of these processes, but I think we all realize that resorting to litigation is time-consuming, expensive, and ultimately undesirable. By incorporating appropriate checks and balances along the way—and we would include the ministerial power as one of those—there's a chance that needless litigation could be prevented.

The third point I'd like to make in respect of the ministerial power has to do with clause 9 of Bill C-33, in which the assignment of this power, among others, to the territorial minister at some future point in time is contemplated. If the ministerial overview power is taken away from this legislation at this point in time, that will also mean that power is not available in the future to be delegated to a minister of the Government of Nunavut. That's another consideration that we submit is important for the committee to give its consideration to.

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With regard to the impasse over clause 56, we understand that some recommendations for compromise have been made in submissions you've already heard and that further recommendations for compromise will be made in submissions you'll hear later today.

Taking all of these factors into account, we believe that the concept of a ministerial overview can be preserved, that reasonable suggestions for addressing the outstanding concerns are forthcoming, and that at the end of the day it is possible to preserve this concept in the legislation but nonetheless meet the concerns that have been expressed with regard to it.

Those are my only comments on the legal elements of the legislation.

I'd now like to turn it over to Mike Hine, who will give you some wrap-up comments on behalf of the Mining Association of Canada and the Chamber of Mines. Thank you.

The Chair: Mr. Hine.

Mr. Mike Hine (Manager, Mineral Development, Qikiqtaaluk Corporation, Mining Association of Canada): Thank you, Mr. Chairman, ladies and gentlemen.

We are going to be within our 30-minute time limit.

Nunavut needs new investment. We have three producing mines currently operating. One is closing next October and the second one is not going to be too far behind it. The third one is operating on a shoestring right now because the price of gold is up a little bit. So we have three mines, and they're a little tenuous. We have to replace these major sources of employment and revenue for the territory, and Bill C-33 is a major part of allowing that to happen.

Nunavut is competing with the rest of the world and the rest of Canada for exploration investment dollars. In terms of the geology and mineral potential, Nunavut is one of the top places in the world. We have the best geology and huge potential and it's relatively unexplored. With the signing of the land claim agreement, the land ownership issue was solved.

Last year the federal government implemented the flow-through tax credit scheme to stimulate exploration investment. Until we have the regulatory certainty of Bill C-33 and some other bills, we won't see the potential of this important budgetary measure. Nunavut can't take advantage of it as fully as we should.

The Geoscience Forum, which is held every November in Yellowknife, is the annual conference on mineral exploration and mining in Nunavut and the NWT. Despite the difficult economic conditions that have prevailed over the last couple of years, attendance at the conference has grown steadily, and this year we expect over 500 people.

The current regulatory issues are a major part of the program at the conference, and Bill C-33 will be one of the issues of greatest concern. There would be a significant boost in the confidence in the regulatory structures that govern northern mineral exploration and development if substantial progress was made on this legislation. Better yet, maybe a third and final reading could be achieved. It would be nice to be able to report that at the conference in November. I hope we won't be disappointed. Ms. Grey is chuckling.

I have one final point. We focused today on Bill C-33. However, with its passage we will then have to deal with the bill's implementation. The boards and agencies in Nunavut and the NWT are facing some serious challenges. In many instances the boards lack the legal, scientific, technical, and financial expertise to implement their responsibilities. They lack the resources to hire people with experience and to keep them. Your committee's ongoing support for the developing northern infrastructure and capacity would be very much appreciated by all people who live and work in Nunavut.

Mining will continue to play a major role in the economy of Nunavut. At the current time it offers the best hope of creating large-scale employment and the associated economic spinoff opportunities for all Nunavummiut. We hope we can count on your support.

Thank you very much.

The Chair: Thank you very much. You were hoping that the third reading would occur before the end of November. I can tell you that as chair I'm ready to go clause-by-clause right now.

But we will do that on Tuesday. If the committee succeeds in completing it on Tuesday, the bill will be returned to the House on Wednesday. That is the plan. But we'll ensure that the members have all the time they require to deal with it.

We'll now turn to questions. We have 35 minutes left. We'll start with a five-minute round.

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Mr. Vellacott.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): You made an interesting comment, Mr. Hardin, on the matter of ministerial oversight. You said if there is none now or if that is deleted or left off from the bill, it cannot be passed on to a territorial minister at some point in the future. Is that an opinion of yours, or is it an indisputable fact that if that is not in the bill, there's no way the territorial minister can ever exercise or assume that power in the future?

Mr. Michael Hardin: I'll try to be brief. It's clear that you could do it. The difficulty is you'd have to amend the legislation. If you took section 56 out of the act now, it would obviously not be part of clause 9. So as the bill presently stands, there wouldn't be authority to delegate to a territorial minister the oversight authority that is currently vested in the federal minister, because there would be no such authority. If you wanted to restore that authority, then you would have to amend the act accordingly.

But if the political will were there, as it is at all times, to reorganize the division of authority between the minister, the board and so forth, there would be no legal impediment I'm aware of to do that. In fact, as I said in my remarks, this process is reflective of a number of federal statutes and provincial statutes.

Mr. Maurice Vellacott: It would make the transition easier when the hand-off occurred, rather than having to go through a whole process here in the House of legislative change, and so on.

Mr. Michael Hardin: Correct. Looking at how long it's taken to bring other northern legislation through the process, that could be a considerable time.

Mr. Maurice Vellacott: You mentioned as well that if there were no ministerial authority, it would have to revert to litigation, from the point of view of the mining industry, and so on. If a ruling were favourable, let's say, to the Mining Association, but somehow differed from the water board, you'd still have the potential, without a minister in place. Then they would have to take it to the courts. Is that right? It would be a legal action on one side or the other. If you were pleased with the decision, obviously you wouldn't dispute it, but they might anyhow.

Mr. Michael Hardin: That's correct. Ultimately, any party to the process can access the review function exercised by the Federal Court. The point I was trying to make was that by having a number of checkpoints along the way, controversy that might eventuate in litigation could be resolved to everyone's satisfaction, thereby eliminating the need to resort to litigation.

Mr. Maurice Vellacott: Are you gently inferring then that the minister would be more—how might I say it—on your side of the issue along the way? Would you never have to press, even if the minister's oversight were there and you disagreed with his decision?

Mr. Michael Hardin: I think it's open-ended. The minister's power, as we know, under the present legislation is to simply return the licence to the board, with reasons, for further consideration. It would be impossible to suggest whether that would be exercised more often in favour of the industry, more often in favour of interveners, or more often in favour of the water board. It's an open-ended authority.

Mr. Maurice Vellacott: You did say though—or at least I got the impression from your comments before and I can check on the record—that somehow it was more of a protection for you. You like the ministerial authority, the oversight, and I gather you feel that for the most part it weighs in as a protection for you. Would that be correct to say?

The Chair: Mr. Gratton.

Mr. Pierre Gratton: No. I think the point being made was in terms of what was in the public interest. It's in the public interest that the oversight exists, not necessarily just exclusively for the mining industry. We think that oversight function benefits all.

Mr. Maurice Vellacott: That's my question for now.

The Chair: Ms. Gray.

Miss Deborah Grey (Edmonton North, PC/DR): Thank you, Chair, and thank you for your presentations.

I have a few questions for Mr. Hine regarding mining. What is being mined now besides gold?

Mr. Mike Hine: Lupin mines gold, and Polaris and Nanisivik both mine lead and zinc.

Miss Deborah Grey: We continue to hear about lots of potential for diamond mining. Is that in another area?

Mr. Mike Hine: There are at least three sites undergoing exploration for diamonds right now in Nunavut.

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Miss Deborah Grey: What kind of money for capital is involved in that? Do you see potential?

Mr. Mike Hine: Right now, I don't think anybody's at the stage where you can make a firm guess on that. I know in the Jericho project they're looking at about $120 million to $130 million as their initial ballpark figure, for a relatively small diamond mine, versus the size you have at Ekati or or Diavik.

Miss Deborah Grey: Do you sense there are good feelings back and forth with the Government of Nunavut—and they're coming in next, so I guess we could ask them that too—for economic development?

Mr. Mike Hine: The sense I have is that there are good feelings between NTI, the Government of Nunavut, and the private sector. NTI has made it very clear that Nunavut is open for business. The Government of Nunavut is saying the same thing.

We're all on the same playing card. Everybody wants to encourage development because right now mining isn't the only bright spot on the horizon, but it gives the realistic possibility of decent employment opportunities for people in the north.

Miss Deborah Grey: Are there pretty good short-term and long-term repayment possibilities?

Mr. Mike Hine: It depends on the price of gold and the price of metal. Right now that's completely out of our hands. But if the price of gold went up to $340, three major mines would probably open up very quickly. If the price of diamonds holds and the quality is good, there's potential there. The price of platinum... yes.

Miss Deborah Grey: How dependent would these mines be on getting water licences?

Mr. Mike Hine: Without a water licence, there's no mine. You can't operate. The milling process requires water; the human resources side requires water. Without the certainty of a water licence, it's going to be difficult for a major mining company to go to a financial institution.

Mike and I talked about it, but the bankers want to see all the permits and all the forms filled out, so there's no uncertainty, if they're going to drop a billion bucks.

Miss Deborah Grey: No surprises.

Have any of the mines had difficulty getting water licences, to this point?

Mr. Mike Hine: Mike can probably address that better than I.

Mr. Michael Hardin: In our brief we mention that minor licences have taken up to 100 days to get. So far, no new producing operation has applied for a water licence in Nunavut because there hasn't been one. There are a number of advanced exploration projects. In my material I have a copy of the licence that was recently granted to the Miramar Mining/Hope Bay Gold advanced exploration project in the Bathurst Inlet area.

The difficulty is that without the legislation and without the regulations that underlie the legislation to start with, all of the various administrative structures that are required to adjudicate these matters are lacking. There's no definitive way to distinguish between type A and type B licences.

So if Ashton, my employer, is applying for a very minor water licence, it attracts some of the same obligations it would if we were applying for a full operating licence. The many years of experience that have been gained by operations in the Northwest Territories are being transferred over to Nunavut, but without the benefit of a statute and regulations comparable to what exists in the NWT, and what existed in Nunavut until July 1998.

The Chair: Mr. Bagnell.

Mr. Larry Bagnell (Yukon, Lib.): Thank you.

Thank you for coming. In relation to clause 56, you had some interesting points. However, the witnesses we had last time basically suggested that because the land claim that takes precedence over this legislation wouldn't allow that, the whole discussion on that—which we've had lots of—was academic. Do you have any comments on that?

Mr. Michael Hardin: As we say in our brief, we have not come to the committee to express a legal opinion on the validity of the arguments presented by the NTI and the counter-arguments presumably presented by DIAND.

It is clear that clause 13 was never intended to be a comprehensive scheme for the management of the use of water and the disposal of waste. It's to the credit of the water board and their staff that they've managed to keep the process moving, in what is a highly unusual situation, from a legal point of view. That's really all I can say.

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Mr. Larry Bagnell: Related to water use, one of our previous witnesses suggested that fisheries regulations were a big aggravation and in fact were not relevant in the north. The national regulations didn't make sense. They were hoping this water board might have the authority to implement those regulations or similar regulations, and deal with that. Of course, it's not provided here in this context, but they put in a submission asking for that. Do you have any comments on that... in permitting mines and everything? Does that comment ring harmonious with you?

Mr. Michael Hardin: The laws tell us that the water board is enjoined from varying any requirement of regulations under the Fisheries Act. The water board is not empowered to include in a term or condition of a licence any condition that is less stringent than the applicable requirements of, for example, the metal mining liquid effluent regulations.

In my experience, the Department of Fisheries and Oceans plays a very active role in reviewing applications for water use and waste disposal. Those considerations are taken into full account in the licence applications I've been involved with by the water board. The question of whether the water board could set more stringent requirements than the Fisheries Act has been litigated. And the result is what we have in our law, that the water board has that power. What they can't do is set less stringent requirements than the requirements under the Fisheries Act regulations.

Mr. Larry Bagnell: My question was more related to taking those particular authorities from the Department of Fisheries and Oceans. Obviously, it's not in this framework, but it would be a new legal framework. Would that be better handled by the water board? Has it been a problem for the Mining Association, let's say, or does the Department of Fisheries and Oceans do a good job in their reasonable criteria?

Mr. Michael Hardin: Everyone is governed by the Fisheries Act, as we all know. The general prohibitions in the Fisheries Act against depositing deleterious substances in waters frequented by fish and the harmful alteration, destruction, or disruption of fish habitat govern mining operations, just as they govern each of us in our individual capacity. So there is no question that the Fisheries Act applies to mining operations.

As far as mines are concerned, the only permitting function that the Department of Fisheries exercises is that the minister is empowered to grant a permit for the harmful alteration, destruction, or disruption of fish habitat. If, for example, you wanted to use an existing lake for tailings disposal, you would have to go to the Minister of Fisheries and Oceans, if that lake contained fish, and ask for that permit.

The mandate of the water board is much broader, covering all other aspects related to the use of water and the disposal of waste. From my perspective as counsel, I don't see any conflict between the Fisheries Act requirements and Bill C-33, or the existing legislation for water use and waste disposal in the north.

Mr. Maurice Vellacott: I'm wondering if you can give us an example, without necessarily citing the name of a company or a project, where the Mining Association of Canada has had some negative experience either with past or current mining projects affected by the absence of a regulatory regime, as in the bill before us here, Bill C-33? Can you generically paint something for us? You talk in terms of it having a chill effect for investors and so on. Are there specific projects where it's beyond the chill, the uncertainty, where this has not been a good scene?

Mr. Michael Hardin: We haven't had a project yet that's gone to financing. When we have a project that goes to financing there are going to be lenders involved. One of the principal things that lenders look for is an opinion from counsel for the borrower and their own counsel that all permits, licences, and other forms of authority required to validly operate the undertaking, in this case a mine, have been granted, are in place, and are fully enforceable in accordance with their terms. In other words, they're properly based in law.

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In these particular instances there is considerable doubt that the absence of legislation like the Nunavut Waters Act, and before it the NWT Waters Act, would allow counsel to give that opinion, simply because there is no underlying statute that counsel could refer to in forming the opinion that there is a permit. It is a valid and legally enforceable permit.

So we're really operating in a very unusual legal vacuum that previously didn't exist in Nunavut.

Mr. Maurice Vellacott: So it's not like there's been a negative experience. It's just that you can't provide a legal assurance that everything's all wrapped up and tight and so on.

The Chair: Monsieur Gratton.

Mr. Pierre Gratton: If you're asking for some kind of horror story, no, but I can tell you I hear over and over again about how awkward it is for mining exploration companies to be operating in a place where they don't have the legal certainty. They're ill at ease. It's not a comfortable place to be in.

I think it's ironic that our industry often gets criticized by environmental groups for being opposed to legislation and regulations and so on, and here we're asking very strongly that we be regulated as soon as possible because we don't like that situation. I think that's actually closer to how we generally behave. Nobody likes to operate outside of the law, and we don't want to operate outside of the law.

Mr. Maurice Vellacott: So in reference to the Northwest Territory regulations, that's not one and the same as having the underlying legislation set—

Mr. Pierre Gratton: Yes. It's a huge difference.

Mr. Michael Hardin: The NWT waters regulations will only apply in Nunavut, assuming there are no changes to this bill, when this bill becomes law. Right now they don't apply in Nunavut. The Nunavut Water Board can refer—in its informal processing of applications—to regulations and practices in NWT or in Yukon, but they have no legal effect in Nunavut at this point in time.

Mr. Maurice Vellacott: That's intriguing to me. I thought that was the whole point. Until this thing was put in place there was some quasi-judicial kind of status to those... but you're saying there's nothing.

Mr. Michael Hardin: No. There is no act. There are no regulations.

Mr. Maurice Vellacott: Okay. What about the fact that we said until legislation was put in place you could operate and so on? What was that all about then? It didn't do anything at all for you.

Mr. Michael Hardin: It's an informal assurance, an informal process, that's been established to bridge the gap between the end of application of the NWT Waters Act in Nunavut and the implementation of Nunavut legislation. In that gap where we presently sit there is no legislation.

Mr. Maurice Vellacott: So it's a shaky bridge, if it's even that good in some sense, at least from your point of view and for the Mining Association. If you call it a bridge, it's not a good bridge.

Mr. Michael Hardin: No, it's not a good bridge.

Mr. Maurice Vellacott: Okay. Thank you.

The Chair: Anyone else? Ms. Karetak-Lindell and then Ms. Grey.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you for coming. Most of my questions have already been addressed so I'll try to take a different approach here.

For the licences that are already issued, are you fully confident there will be a very smooth, eased-over... let's say we pass this by Christmastime, and I'm hoping we will too. If that goes through for the licences that were issued before Nunavut Waters Board had their legal mandate with this bill, you don't anticipate any problems with re-issuing those licences. There's no administrative gap between licences that were issued before and those that will be issued after.

I notice in your submission that you were proposing some amendments, and I don't think you spent a lot of time on them. Perhaps you could help us understand a little more about what you based some of the proposed amendments on.

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The Chair: Mr. Hardin.

Mr. Michael Hardin: The amendments start on page 6 in the English version of our brief.

The first one deals with subclause 55(4), and this really speaks to timeliness. Quite properly, the water board must wait for a certain period of time before it issues what we'll call a minor-level licence, a licence that doesn't require a public hearing, in order to provide for communities, hunters and trappers associations, interested parties, government agencies, and so forth to comment on the licence.

We're suggesting, in order to ensure minor licences move through the system as quickly as possible, consideration be given to reducing the minimum number of days for that to take place from 30 days to 21 days.

That doesn't mean the water board would be required to issue a licence in 21 days any more than they're presently required to issue one within 30 days. What we're suggesting is giving the water board the latitude to do so when they're satisfied all the relevant concerns have been met and the circumstances allow them to proceed with issuance. It's simply to give them a little bit more latitude in ensuring the...

My colleague Mr. Hine can speak much more eloquently than I can to this very brief window of opportunity that exploration programs have in Nunavut, as elsewhere in the north. Time is always a factor. According to experience in the industry, even minor licences can now take up to 90 days, and that also is related to the capacity issue Mr. Hine mentioned.

I'll go to subclause 76(1). This is really a drafting issue. When I read subclause 76(1), and perhaps I don't have it right, the words suggest that either the board or the minister, or both the board and the minister, can determine the amount of security under a water licence.

It's always been a key provision of the licence that the board includes the amount of financial security as a term and condition, and that's of course part of what the minister would ultimately review when he looks at the licence.

I found the drafting awkward and a bit confusing. If it is the intention of the act to continue the practice that the board sets the amount of security, I'd suggest, respectfully, that the drafting of subclause 76(1) might be reviewed with that in mind.

The Chair: Ms. Grey.

Miss Deborah Grey: Yes, I'll give some time for you to carry on.

Mr. Michael Hardin: On subclause 76(5), return of security, as we mention in the brief—

The Chair: Excuse me. I'll chair the meeting.

Ms. Grey, do you wish to speak?

Miss Deborah Grey: Yes, thank you, for the floor.

I'd be interested in hearing some more amendments.

The Chair: Mr. Finlay.

Mr. John Finlay (Oxford, Lib.): Thank you Mr. Chairman.

I have a question arising from reading the brief of the Mining Association. On page 3, there's a word I've never seen before, so I just wanted to ask about it. It says:

Since January 2000, an impressive series of diamondiferous kimberlites has been discovered in the Kitikmeot region, suggesting that the northern Slave craton may host diamond deposits of commercial significance.

Is that Slave crater, or... What is a craton?

Mr. Mike Hine: I guess that would be me.

It is Slave craton. That's the correct word. It refers specifically to a geological package of rocks of a certain age that is referred to as the Slave province or the Slave craton.

Mr. John Finlay: Thank you.

Mr. Chairman, I have a somewhat broader question with respect to—

The Chair: Will you please be brief, and I will allow—

Mr. John Finlay: I will be brief.

The Chair: —a minute or two to Ms. Grey. We want to give our guests a few minutes for closing remarks, and at 12:05 p.m. this meeting is moving onto the next step.

Mr. John Finlay: On this committee we've all been interested for years in economic development in the north and first nations and so on. You spoke in fairly glowing and positive terms about that in the mining industry.

Does the Mining Association of Canada provide any mentoring, any assistance or suggestions to mining companies when they are going to open up either exploration or producing properties in Nunavut? I know the Nunavut government would like to have some pretty strong... I don't know if I'd say guarantees, but at least the understanding that the Inuit population are going to be employed.

• 1155

Are there some barriers to that employment? Is language going to be a barrier? Are skills a barrier? They usually are in many places. What does the Mining Association of Canada suggest in order to handle that problem?

The Chair: Mr. Hardin.

Mr. Michael Hardin: Perhaps just very briefly, Mr. Chairman, I could refer the committee to the Nunavut Land Claims Agreement, which contains very detailed provisions on impact and benefit agreements. Two articles of the NLCA deal with impact and benefit agreements.

One of those articles, article 26, deals with impact and benefit agreements on Inuit-owned lands, which are very important under this entire scheme. Article 27 deals with impact and benefit agreements elsewhere. So the land claim agreement is quite comprehensive in its approach.

Mr. Pierre Gratton: Perhaps more generally, certainly when you're operating in the north... take for example—I'll stay south of 60°—northern Saskatchewan. The population growth of aboriginal peoples in northern Saskatchewan is at such a rate that mining companies in that region are faced with the fact that the only source of local employment in the future is going to be aboriginal people.

There are issues of training, of language, and capacity. There are social issues that companies have to deal with. There are issues of competing lifestyles. By no means do I want to paint a glowing record in this regard, but the industry does recognize its own longer-term best interests will be met by working closely with aboriginal groups to ensure their longer-term goals and interests are met. That includes working with them to provide appropriate training, and designing projects in a way that is respectful of their needs and interests.

I think you're seeing more and more of that, particularly with the newer projects like Raglan in northern Quebec, the diamond projects in the territories, and so on.

The Chair: Miss Grey, you have three minutes for question and answer.

Miss Deborah Grey: Thank you. I gave it a whirl there for more amendments. I won't do that again.

We have heard from the NTI and the Inuit Tapirisat, who had very strong concerns about clause 56 and the ministerial approval process. I get the feeling, and I think we're all agreed, they would really like to have that stricken from the bill altogether. So somehow you have to reconcile those differences. It's always awkward if it's us versus them.

I'm not sure what kind of compromise will be able to be reached in this bill, but you're always trying to reconcile those differences. Rather than being adversarial... When I asked one of them the other day how we would reconcile, it was just basically that you you end up going to court. Then, as you said, you get these huge litigation costs.

Could you just elaborate a little bit on what you said about clause 56? Your second point, I think, was that it may prevent litigation. How are we going to build that bridge to get over that pretty serious hump in their concern?

The Chair: Mr. Gratton.

Mr. Pierre Gratton: I'll start, and then I suspect Mr. Hardin will continue.

I was here listening in on Tuesday and I was heartened that toward the end, some suggestions were put forward by the NTI on possible compromises. I understood, and I'm sure all of you did as well, that is not really what they're after, but on an interim basis, I think it would make it more palatable to them.

One of the suggestions, for example, was to put a time limit on the time a minister gets to provide the final ruling on a licence. From our standpoint as well, that seems extremely reasonable. We don't necessarily like waiting indefinitely either for the final answer. So that is one suggestion I think we might consider seriously—and we hope the government does—as a way of at least making this more acceptable to the NTI.

• 1200

I do think disagreement exists. Clearly, the government must be confident in its own legal position or it wouldn't be going forward. Ultimately, I suppose this is something that has already been brought to court. This particular issue will obviously be resolved in court.

In the meantime, why don't we try to make progress and satisfy the concerns of all parties to the best extent possible?

I don't know if you want to speak to some other compromise options that might exist.

The Chair: Mr. Hardin, you have one minute.

Mr. Michael Hardin: I think that will be taken care of later, Mr. Chair, in the proceedings.

The Chair: You have one minute.

Mr. Michael Hardin: I have nothing further to add.

The Chair: Thank you very much.

We now will allow closing remarks.

Before we end the meeting, I want to apologize to you for rushing. The intent is to allow you all the time we have, not to restrict you from having any of the time. Our predecessors took ten extra minutes. We'll go five minutes beyond and tax the next group for five minutes.

You have four minutes for closing remarks.

Mr. Michael Hardin: I would like to add, Mr. Chairman, some facts Mr. Vaydik, who wasn't able to be with us today, has given us on the employment issue, and the benefits mining has brought to the Northwest Territories, principally through the Ekati project and the Diavik project.

Mr. Vaydik reports over 40% of BHP's workforce at Ekati are northern aboriginal people. Training and employment opportunities are the result. Over 400 northerners, mostly aboriginal, have been trained through mine training at the Ekati mine. BHP has funded an on-site literacy program for its workers.

The Diavik mine, the next project to come into production, is expected to employ more than 500 people directly.

The Yellowknife Dene have more than 100 people working in the diamond mines, resulting in a payroll of $6 million to $7 million. I understand the Yellowknife Dene have a total population of about 650 people, 100 of whom are employed at the mine sites.

There have been spin-off economic benefits as well. The Yellowknife Dene have opened their own diamond cutting and polishing plant, and several other businesses, ranging from catering to a new trucking company hauling ore to the process plant for BHP Billiton's Ekati mine. Other aboriginal groups in the Northwest Territories have enjoyed similar benefits. Under Treaty 11, the Dogrib people have 200 workers directly employed. Many businesses in the communities are also serving the diamond mines.

In summary, the economic benefits from these operations to northern communities and northern peoples can be enormous.

The Chair: Be very brief.

Mr. Pierre Gratton: I have one very quick closing comment that we've made repeatedly over the past hour. We urge you to pass this legislation swiftly.

Thank you very much for your time.

The Chair: It may be of interest to you that, in my riding, I know of twelve mines. One of the mines is a brand-new mine. The water system is a filtering system where they re-use all the water. Nothing escapes. They keep adding water to the system because of evaporation. The system is about 15 metres by 15 metres. The technology will prevent a lot of problems in the future.

Thank you very much for your presentation. We appreciate it. It was very interesting.

We'll go directly to the next group.

• 1205

We will spend the next 55 minutes with the representatives of the Government of Nunavut. We have Mr. Alex Campbell, deputy minister for sustainable development, and Mr. Gordon MacKay, director of minerals, oil and gas.

You have ten minutes for a presentation. Please carry on.

Mr. Campbell.

Mr. Alex Campbell (Deputy Minister, Sustainable Development, Government of Nunavut): Thank you, Mr. Chair, Ms. Karetak-Lindell, member for Nunavut, and members of the committee. We're very glad to be here to make this presentation to the committee.

Also with me is Lois Leslie, our senior legal adviser. When issues of legal background are asked, I'll be calling her to the table.

I have ten minutes?

The Chair: Yes, but we're a little easy.

Mr. Alex Campbell: All right, that's good.

The Government of Nunavut is pleased to have the opportunity to speak to the committee on Bill C-33. Our government is happy to see the legislation tabled. We believe Bill C-33 will provide a greater level of certainty to the regulatory environment in Nunavut. The passage of this legislation will also mark further progress in the implementation of the Nunavut Land Claims Agreement.

However, as we will be outlining later in this presentation, we have some outstanding concerns with the bill that we believe need to be addressed before the bill becomes law.

As the successor government to the Government of the Northwest Territories, the Government of Nunavut is a signatory to the Nunavut Land Claims Agreement. In addition to the specific obligations under the claim and implementation contract that the Government of Nunavut assumes in this capacity, the Government of Nunavut has a responsibility as a public territorial government to protect and promote the interests of the people of Nunavut.

As a public territorial government established pursuant to the land claims agreement, the Government of Nunavut has a further unique role in Nunavut. The Government of Nunavut is the vehicle by which the Inuit of the eastern Arctic have elected to exercise their inherent right of self-government. This fundamental relationship between the Government of Nunavut, the Inuit, and the central role of the Nunavut agreement in Nunavut, together form all activity in the Government of Nunavut.

The Government of Nunavut has an additional interest in Bill C-33. Our government is currently engaged in preliminary discussions with the Department of Indian Affairs, with a view to negotiating the devolution of lands and resource management in Nunavut that is currently exercised by DIAND. With devolution, which we hope will occur within the next three to five years, the Government of Nunavut will assume responsibility for regulating land and water use throughout Nunavut.

While our government has been in existence since April 1, 1999, we are very familiar with the long history of the development of this legislation. Since April 1, 1999, we have been part of the consultation process conducted by the Department of Indian and Northern Affairs.

As the committee knows, Bill C-33 is legislation that comes out of the Nunavut Land Claims Agreement. The agreement requires further legislation relating to four institutions of public government established under the agreement. They are the Nunavut Water Board, Nunavut Impact Review Board, Nunavut Planning Commission, and Nunavut Surface Rights Tribunal. The agreement contemplates that the legislation was to have been passed for the Nunavut Surface Rights Tribunal by January 9, 1994, and with respect to the other three boards by July 9, 1995. The legislation in our view is long overdue.

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Bill C-33 deals only with the Nunavut Waters Act, the Nunavut Water Board, and the Surface Rights Tribunal. These two boards, along with the Nunavut Impact Review Board and Nunavut Planning Commission, were established in 1996 in the absence of the legislation by operation of a default provision in the agreement. While these boards have been operating fully under the terms of the agreement, they have been doing so without the additional legislative detail that would assist the boards in properly carrying out their mandates. We urge the Department of Indian Affairs to complete the development of the two remaining pieces of legislation.

In our presentation this morning we would like to focus on four issues in Bill C-33. All four issues pertain to either the general provisions in front of the bill or part 1. The Government of Nunavut has no comments to make to the committee with respect to part 2 of the bill. The four issues we wish to address are, one, non-derogation of aboriginal and treaty rights, subclause 3(3) of the proposed legislation; two, minister's authority to approve the issuance, amendment, renewal, and cancellation of water licences; three, fees for the use of waters on Inuit-owned lands; and four, inspection and enforcement of water licences.

Non-derogation. Clause 3 of the bill contains the provision commonly referred to as a non-derogation clause. Following the entrenchment of aboriginal and treaty rights under section 35 of the Constitution Act, 1982, the federal government began to insert this type of clause into certain federal statutes. Until approximately 1998, the only formulation of this type of clause in relation to aboriginal and treaty rights employed in the federal statutes was the following:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under Section 35 of the Constitution Act, 1982.

This formulation is found, for example, in the Migratory Birds Convention Act, 1994, subsection 2(3), and the Firearms Act of 1995. Through such a clause Parliament expresses its intent in enacting the legislation not to abrogate or derogate from existing aboriginal and treaty rights and indicates that the legislation must be construed so as to do so. For Inuit, such a clause used in legislation to implement the Nunavut Land Claims Agreement would provide reassurance that Inuit rights under the agreement are not intended to be diminished by this legislation.

Since 1998 the federal government has unilaterally revised the wording of this clause without any consultation with Inuit. The present wording is problematic for the Government of Nunavut in that it does not provide Inuit with the assurances that government does not intend through this legislation to infringe on the aboriginal and treaty rights of Inuit and other aboriginal people.

The Government of Nunavut supports the position submitted to the committee by Nunavut Tunngavik Inc. earlier this week that the present language of subclause 3(3) is unacceptable to Inuit and should be modified or removed entirely. Like NTI we believe the present clause is not effective as a non-derogation clause and in fact effects an opposite result.

Not only does the present legislation not provide assurance that Parliament does not intend to impair existing aboriginal and treaty rights through this legislation, but it creates a more serious concern for Inuit. By limiting the protection of the clause to the “protection provided for aboriginal and treaty rights... by the recognition and affirmation of those rights in section 35”, the provision incorporates the common law authority to infringe on aboriginal and treaty rights first supported by the Supreme Court of Canada in Sparrow. The result is to provide that the act shall not be construed so as to abrogate or derogate from existing rights to the extent that such abrogation and derogation cannot be justified in accordance with the justificatory analysis developed by the court.

This result sets off alarm bells for the Government of Nunavut. Does the act currently contain provisions that diminish Inuit rights under the agreement but which could be justified? If so, subclause 3(3) is of no assistance to Inuit. Does the presence of subclause 3(3) imply some sort of consent by Inuit to any such infringement, given that NTI was consulted in the development of this legislation?

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Neither the Government of Nunavut nor NTI has had satisfactory answers to these questions from the Department of Indian and Northern Affairs. The Government of Nunavut respectfully submits that the committee should recommend that subclause 3(3) be amended by replacing the current text with the formulation found in subsection 2(3) of the Firearms Act. Alternatively, the Government of Nunavut requests that the committee recommend that subclause 3(3) simply be removed from the bill.

The Government of Nunavut further supports NTI's request that clause 3 of the bill be further amended by adding a positive interpretation clause, as submitted to the committee by NTI earlier this week. The Government of Nunavut feels the clause proposed by NTI would probably situate the Nunavut Water Board and the Nunavut Surface Rights Tribunal within the context of the agreement and clearly establish the agreement as the primary reference point in relation to Bill C-33.

On the issue of ministerial authority to approve licences, under clause 56 of the bill, the issuance, amendment, renewal, and cancellation of a type A licence and, if a public hearing is held, a type B licence, are subject to the approval of the minister.

Apart from a requirement to give written reasons where the minister makes a decision not to approve a licensing decision of the board, and a limitation on the minister's ability to refuse approval on the question of compensation, the bill does not impose any restrictions on the exercise of the minister's authority. As the committee has been made aware, through submissions by NTI and the water board, the Nunavut Land Claims Agreement does not deal definitively with the issues of ministerial authority. We appreciate that there are legitimate discussions around that authority.

The Government of Nunavut must also consider this question from the point of view of an elected government, which will, with devolution, assume responsibility for lands and water throughout Nunavut. We feel it is appropriate and necessary that the responsible minister be able to impact licensing decisions where it is in the public interest to do so.

However, the Government of Nunavut does not agree with an unrestricted authority on the part of the minister. That, we feel, is inconsistent with the spirit and intent of the co-management system, which is such an important feature of the agreement, and is also undesirable from an operational point of view. The absence of time limits, for example, on the exercise of this authority contributes to the uncertainty and delay in the regulatory environment.

The Government of Nunavut submits that article 5 of the Nunavut Land Claims Agreement provides a useful precedent with respect to how the exercise of ministerial authority regarding decisions of an institution of public government under the agreement should be structured. Article 5, which deals with wildlife, establishes a Nunavut Wildlife Management Board as an institution of public government. Article 5 was negotiated over a long period of time and contains highly detailed provisions. No further separate piece of legislation was required in relation to the Nunavut Wildlife Management Board.

Key procedural elements relating to the exercise of federal minister authority to approve decisions of the Nunavut Wildlife Management Board include the following: one, a 60-day limit, or such further period as may be agreed upon by the minister and the Nunavut Wildlife Management Board, in which to disallow a decision of the Nunavut Wildlife Management Board with written reasons; two, where the minister has rejected the decision within the time period, the minister is deemed to have accepted the decision of the Nunavut Wildlife Management Board; three, where a decision is disallowed, there would be a requirement that the Nunavut Wildlife Management Board reconsider its decision in light of the written reasons supplied by the minister and make a final decision, which the Nunavut Wildlife Management Board shall make public and forward to the minister for final approval.

The Government of Nunavut proposes that clause 56 be amended so as to include each of these elements in relation to the minister's authority to approve licensing decisions to the Nunavut Water Board.

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On the issue of fees for use of waters on Inuit-owned lands, paragraph 82(1)(m) of the bill states that:

The Governor in Council may, on the recommendation of the Minister, make regulations... prescribing the fees to be paid

(i) for the right to use waters or deposit waste in waters under a licence,

(ii) for the filing of any application with the Board, and

(iii) for inspection of the register maintained under section 78;

The Government of Nunavut supports the position of NTI that the bill should be amended to explicitly exempt Inuit-owned lands from the application of subparagraph 82(1)(m)(i).

The final issue we wish to discuss today is the inspection and enforcement of water licences. In the Government of Nunavut's view, the bill does not adequately address these issues. While the bill provides for inspection, inspectors are designated by and reportable to the minister. The bill does not define what qualifications are required to be appointed as an inspector nor provide a process of establishing such qualifications.

Persons who wish to challenge an inspector's direction may only do so to the minister. In such a case, it is unclear whether this review would be conducted by the minister or by an individual acting for the minister. Who that individual might be, what their qualifications are, and the grounds on which they would hear such a request is unclear.

In our view, the current provisions are inadequate for the following reasons.

One, the health and safety of people and the environment. We have seen numerous environmental problems in the past ten years in the north—for example, the BYG mine in the Yukon, and Colomac in the Northwest Territories. And we are all familiar with the ongoing problems at Giant mine in Yellowknife. We feel strongly that a significant factor in these problems has been inadequate inspection and enforcement.

Two, accountability. In the legislation before you, the inspector reports to the minister. We know operationally the inspectors do not report to the minister. They instead report through a series of individuals who have no accountability and in most cases lack the qualifications to assess the technical issues related to the inspection and enforcement of water licences.

Three, an unbalanced relationship with industry. When an inspector arrives at a mine site to conduct an inspection, they may typically expect to be met by a couple of experienced professional engineers, and perhaps a professional geoscientist. In Nunavut at this time we are not aware that Indian and Northern Affairs has any professional engineers on whom the inspector could rely for advice and direction.

The Government of Nunavut proposes that the bill could be significantly strengthened by providing for the appointment of a chief inspector who would be responsible for the appointment of qualified inspectors. Appeals would be to the chief inspector.

The Government of Nunavut respectfully requests the committee recommend amendments to the bill to provide for the appointment of a chief inspector and to deal with related matters as set out in the appendix to our presentation.

In conclusion, we wish to thank the committee for this opportunity to present the views of the Government of Nunavut on Bill C-33. We urge the committee to consider the changes that we have proposed. We believe these changes will significantly strengthen the bill, make it more consistent with the Nunavut Land Claims Agreement, and significantly enhance the regulatory regime in Nunavut.

Thank you, Mr. Chair.

The Chair: Thank you very much.

Mr. Vellacott, five minutes.

Mr. Maurice Vellacott: Is Mr. MacKay the legal counsel here?

Mr. Gordon MacKay (Director, Minerals, Oil and Gas, Government of Nunavut): No.

Mr. Maurice Vellacott: Do we have legal counsel here?

The Chair: Legal counsel is welcome to sit at the table if you wish to have her with you.

Mr. Maurice Vellacott: My question would be along the lines of what I'd asked our previous guest here. On the whole present interim bridge period, if you will, do you share the view that in the absence of Bill C-33—we don't have that presently—having the reference to the Northwest Territories regulations and so on is bona fide, valid, binding? What would be the view of the legal counsel on that? Do you understand my question or what I'm framing?

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The Chair: Ms. Leslie.

Ms. Lois Leslie (Senior Legal Advisor, Department of Executive and Intergovernmental Affairs, Government of Nunavut): If I understand your question correctly, you're asking about the continuity of legislation in Nunavut.

Mr. Maurice Vellacott: The regime that exists right now, how secure, how sure a thing is that?

Ms. Lois Leslie: There are a number of factors that—

Mr. Maurice Vellacott: You're referencing the Northwest Territories in the regulations, right?

Ms. Lois Leslie: The Northwest Territories Waters Act was in existence in Nunavut and continues to be in existence in Nunavut to the extent that it's not inconsistent with the Nunavut Land Claims Agreement or with any other legislation.

Mr. Maurice Vellacott: Right.

Ms. Lois Leslie: That continues in existence in Nunavut by virtue of the Nunavut Act, which continued laws of general application. It also duplicated all of the territorial legislation as laws of Nunavut on April 1, 1999. So until the Nunavut Waters and Nunavut Surface Rights Tribunal Act is passed, the Northwest Territories Waters Act and all of the regulations under that continue in operation and will be displaced by the provisions of this new bill. This new bill carries on all the regulations until such time as the Governor in Council replaces those regulations.

Mr. Maurice Vellacott: Are you of the view, then, that it's an insecure kind of situation? You would say for mining and others, just come right in, no problem, no need to worry or concern yourself?

Ms. Lois Leslie: From a legislative point of view, I think it will be completely secure under the legislation as it stands.

Mr. Maurice Vellacott: As it stands now?

Ms. Lois Leslie: As it stands now, the legislation is in effect. The only uncertainty is the sorts of issues that are dealt with in this bill in terms of ministerial authority and some of the additional responsibilities of the water board. But the regulatory framework will not change significantly.

Mr. Maurice Vellacott: Okay.

I realize there's a difference between that and the mining industry's perception. They may not necessarily feel that it's a secure, sure environment that you're working in.

The other thing I was going to ask here gets to the matter of the inspectors, and so on—and I'd ask whoever cares to, to respond. We talk in terms of knowing, with different levels and so on, it often gets to where people aren't following through in terms of inspections, and I don't suppose that's unique to Nunavut. But what leads you to believe you would do better, or somehow that there would be no problems of the sort you describe, where people aren't trained, aren't qualified? What are you proposing as an alternative to that?

The Chair: Mr. Campbell.

Mr. Alex Campbell: Mr. Chair, I'd like to defer that question to Gord MacKay.

The Chair: Mr. MacKay.

Mr. Gordon MacKay: The issues on which decisions are now made on inspection and enforcement, on appeal of an inspector, since they go to the minister or whoever is acting for the minister, are determined on the basis of a set of issues that we're not aware of and probably include socio-economic and public policy issues. We feel very strongly that those issues should be dealt at the permitting stage, and we support continued ministerial approval.

For inspection and enforcement issues, we feel that those should be dealt with on a technical basis, and the consideration should be the health and safety of people and the environment. At that point, there should not be public policy issues or socio-economic issues that can come into that decision.

Mr. Maurice Vellacott: So what are you proposing, then? That you're going to deal with it as a territory there and you're going to set up a better scenario?

Mr. Gordon MacKay: We are proposing that this legislation contain provisions to establish a chief inspector, who would be resident in Nunavut, who would be a qualified individual, a professionally qualified engineer who would have the qualifications to make these decisions, to make these rulings, with experience to back that up. This is very common in other legislation, in more modern legislation than the Northwest Territories Waters Act, and it's very common in legislation that has nothing to do with water.

In the building in which I work in Nunavut, the elevator has a tag on it with the chief inspector's signature. The health and safety of people are ensured because that chief inspector inspects and approves that elevator.

Mr. Maurice Vellacott: If you had your druthers or your preferences, where it would be accepted on this, would you want that person answering to somebody within the Government of Nunavut, rather than the minister?

Mr. Gordon MacKay: Before or after devolution?

Mr. Maurice Vellacott: You choose.

• 1230

Mr. Gordon MacKay: With the ministerial authority resting with the Minister of DIAND, the Minister of DIAND would appoint this person. I have not considered and cannot foresee a reporting relationship to the territorial government at this point, prior to devolution, but following devolution, certainly.

Mr. Maurice Vellacott: So you're okay with the scenario where, at present, if that were in the bill itself, he would be reporting to the minister. You don't have a problem, but you're saying it has to be a professional, technical person rather than a departmental bureaucrat.

Mr. Gordon MacKay: Right.

The Chair: Miss Grey.

Miss Deborah Grey: Thank you.

Following devolution, then, to whom would that person be responsible?

Mr. Gordon MacKay: Following devolution, that person would be appointed by a minister of the territorial government of Nunavut.

Miss Deborah Grey: And paid by whom?

Mr. Gordon MacKay: And paid by the territorial Government of Nunavut.

Miss Deborah Grey: Okay, thank you.

It seems to make sense that if somebody needs to understand geology, mining, and all that stuff, it would be a reasonable thing that they would know what they're talking about.

Regarding the fees on the Inuit-owned land, where you made reference to paragraph 82(1)(m), I think we spoke about that the other day when the NTI and the Inuit Tapirisat were in. Who would set those fees, and who would get them?

I think you said you had a problem with the minister setting those fees, and we had a little discussion the other day about who would end up getting those. But who would set them, and who would get them?

The Chair: Ms. Leslie.

Ms. Lois Leslie: At the moment, the way the bill reads, it would be set by the federal government, and the fees would go to the federal government.

NTI, or the designated Inuit organization that has responsibility for surface lands in that area, would also have the ability to raise their own fees as the landowner and retain those fees, but we're talking about an additional authority on the part of government.

Miss Deborah Grey: So technically, then, the Nunavut government would be able to set whatever they are, just on the Inuit-owned lands?

Ms. Lois Leslie: The Nunavut government would be able to, on all crown lands, with devolution. At the moment, it's the federal government's responsibility, throughout Nunavut.

Miss Deborah Grey: Okay.

We talk about devolution, and it seems to come up as a fairly common theme. What are you looking at or hoping for in terms of the amount of time for that? Obviously that's a bit hypothetical.

Mr. Alex Campbell: In the sense of transferring the devolution file, we would be looking at three to five years to get that in place. We are starting discussions already with DIAND to get that process on the go.

Miss Deborah Grey: Okay.

It seems that whatever we all set for ourselves as time limits on anything always needs to be doubled and then goes a little beyond that. Has this process just nicely started for the three to five years, or were we talking about it three to five years ago? I'm new on the committee, so I don't have the history.

Mr. Alex Campbell: When I was—

Miss Deborah Grey: Young.

Mr. Alex Campbell: When I was young and working for the NTI organization, we started discussing devolution, when the Government of the Northwest Territories was still responsible for the territories back in 1994, but because of the dynamics on the west side, with all the different aboriginal groups, that process derailed. In 1999, the process was kick-started by the Nunavut government to at least get some discussions going on that file.

Miss Deborah Grey: Okay.

Mr. Gordon MacKay: One of the biggest challenges to devolution that we recognize is unsettled land claims, and for Nunavut, with the Nunavut Land Claims Agreement in place, that isn't a problem; it isn't an issue in the territory.

Miss Deborah Grey: Okay.

Thanks, Mr. Chair.

The Chair: Before we go to Mr. Bagnell, when a young person like you says, “When I was young...”, imagine the feeling I get.

Mr. Bagnell.

Mr. Larry Bagnell: Just so my colleagues are aware of how devolution will work—because that should be one of our next bills for the Yukon, actually—this is basically a provincial-type power, and the whole regime will be transferred to the territory when the devolution goes through.

• 1235

Just to comment on the question of inspection, or the chief inspector—I'm from the Yukon Territory—I'm not so in favour.

These days the movement for government is not to put too much in legislation but to let people govern; to give them a task they have to do and let them govern. They have to do the inspection and do it well and properly. But don't outline that you have to have this person here and that person there.

In the Yukon, I don't think our problem is with the number or quality of inspectors. It's with what they spend their time inspecting. Or, in relation to mining, if you had a provision requiring bonding, where you have to deal with these disasters—as in the case of the mine you referred to—that would be a much better solution to that problem.

But my question is on clause 56, which I think I agree with you on. I just have to relate it to page 9 of your brief. I said this the other day, but basically, because these are major decisions affecting Nunavut people, and some of the entities or creations of the Nunavut government might have to pay for these things, I think the buck should stop with you.

I just don't understand the third consideration in your proposed regime, where if the decision is disallowed and the minister says no in his final decision, it goes back to the board, who reconsider and then, it says, “make a final decision” and forward it to the minister. So the minister is still in the second round. He still gets the final say. Is that correct?

Mr. Alex Campbell: Yes, you're correct. It's just an opportunity for a second round of review of the issuing of the licence.

Mr. Larry Bagnell: Okay, but would you as the government still have the final say?

Mr. Alex Campbell: Yes.

Mr. Larry Bagnell: Okay. No, I like that. It makes a lot of sense to me, actually. I've been arguing for the same thing in the Yukon related to timelines. You should never put something into government and give them unlimited time to make a decision, or it could never happen.

The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: Thank you.

Over the past several committee turns, we have talked a lot about clause 56 and the ministerial authority. I know it's difficult for the Government of Nunavut to separate themselves totally from this issue because of the devolution section. And I have heard two very opposing sides now, from the NTI delegation that was here the last time and you.

Do you see this as contravening the Nunavut Land Claims Agreement, as NTI states, or do you feel that, as a government elected by the public, you have to have some role in being a higher authority, where you hope—I would hope—you can stop litigation? I know we've talked a lot about how everyone always has that recourse of going to courts over a dispute, but I'm wanting to be reassured that not every one of these would end up in the courts. There has to be some mechanism allowing us to solve these without going to the courts. Can you expand on that?

The Chair: Who will take this? Mr. Campbell?

Mr. Alex Campbell: Yes, thank you, Mr. Chair.

As I indicated in my presentation on page 7 and the top of page 8, we are certainly suggesting there's a role for the minister of a public government in approving licences. The ultimate authority would still lie with the minister. But there has to be, as you said, a process specificying how the institutes of public government are involved in the process leading up to the licence. The three points we suggested, I think, offer a reasonable approach for that involvement with NTI and all Inuit land claim organizations.

Ms. Nancy Karetak-Lindell: What you're saying in your point one is that if there were a 60-day limit and some kind of timeline to expedite the responses—and I know that was something the Mining Association was endorsing also... Do you think that would be a compromise between the two very opposing sides right now?

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Mr. Alex Campbell: We feel it's certainly a reasonable compromise, and that's why, as a government, we're advancing this proposal to the committee right now. I think it's something reasonable that's acceptable to the NTI organization in this case as a precedent that has been set already in other legislation, such as in the west. One of my colleagues can speak to that.

The Chair: Ms. Leslie.

Ms. Lois Leslie: I think Alex is referring to the MacKenzie Valley Resource Management Act, which has similar time limits imposed with respect to the ministerial authority to approve decisions of the boards established under that piece of legislation.

The Chair: You have another minute.

Ms. Nancy Karetak-Lindell: I have forgotten what I was going to say.

The Chair: We'll go to Miss Grey, and we'll make sure everybody has enough time. Miss Grey.

Miss Deborah Grey: I'll just briefly pick up on this business about time limits, because I think that may offer some sort of ultimate compromise for all concerned. Let's just say there was a 60-day time limit. What happens when the minister or the department doesn't react in 60 days? What's the hammer, if you will? Who's going to care if they say, “Aw, shucks, we're over time!”

We face that regularly in the House of Commons—and probably government members too—where we're asking for an answer to an order paper question, or whatever. The law—the rule, the regulation—is that they respond within 45 days. Well, sometimes it's a year and a half. So what clout would there be to make sure, if there were a 60-day time limit, that there really was? What do you see as a solution to that?

Mr. Alex Campbell: What we're suggesting on page 9, in point 2 there, is that where the minister has not rejected the decision within the timeframe, the minister is deemed to have accepted the decision of whatever board. In the case we're referring to, involving the Nunavut Wildlife Management Board as an example, they have those provisions already.

Miss Deborah Grey: That's good. And you would just carry on then and say, “Okay, we'll just assume you've had that.” If they come back and say “Well, no, that's not exactly what we had in mind”, I could see that would become an eternal wrangle as well.

The Chair: Ms. Leslie.

Ms. Lois Leslie: Thank you, Mr. Chair. I think what we're suggesting is that the provision be inserted into the bill so that it's a legal provision deeming the decision to have been approved.

The Chair: Mr. Finlay.

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

I guess my question is for Ms. Leslie. I'm concerned about this non-derogation and abrogation clause, because in your presentation, Mr. Campbell, you quote what's in the act, or suggested to be in the act, I think. You quote, on page 4:

Until approximately 1998 the only formulation for this type of clause in relation to aboriginal treaty rights employed in the federal statutes was the following: “For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under Section 35 of the Constitution Act, 1982.”

You go on for some pages saying that somehow this doesn't cut it, but in your presentation you don't give us the wording you'd like. But I found it in the Nunavut Tunngavik presentation; they propose this wording that you've given me.

But the wording in Bill C-33 right now is:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

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Maybe you can tell me in some way I can understand what significant difference there is in those two wordings, because for the life of me I can't find any.

The Chair: Mr. Campbell.

Mr. Alex Campbell: Yes, Mr. Chair, I'll respond very quickly, and I'll ask Lois just to expand on the issue from the legal perspective.

All we're asking for here is consistency in legislation. If you have a certain wording in one of your federal statutes, we should be consistent with that in other proposed legislation Parliament is enacting. I think that's the point we're trying to make here, that when we have these non-derogation sections in any federal legislation, it should be the same wording. We can't pick and choose what is appropriate according to how we feel today. That's all we're saying here.

Lois can expand on that.

The Chair: Ms. Leslie.

Ms. Lois Leslie: Thank you, Mr. Chair.

The wording you just quoted, Mr. Finlay, from NTI's paper is the existing wording in the bill. The wording we've cited on page 4 is found in the Firearms Act and a number of other, earlier pieces of legislation. It's also found in section 25 of the Constitution Act and is the language we're proposing be used in this bill. The difference, I think—

Mr. John Finlay: Excuse me. You said it's in section 25 of what?

Ms. Lois Leslie: Section 25 of the Constitution Act. It's the same section with respect to the relationship between aboriginal treaty rights and the charter. This section is also found in a number of other pieces of federal legislation that were drafted prior to approximately 1998. Since 1998, changes have been made to this wording, particularly the wording in the bill at the moment, which we're having difficulty with.

The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: Thank you.

This is just for clarification. What you have on page 4 is what you see in the Firearms Act. This is what I understand from your submission, and that's what you would like to see consistently throughout the legislation. It's the same one we already have in another law, the Firearms Act.

Ms. Lois Leslie: That's right, and this version of the non-derogation clause is, we feel, the appropriate version. It does what it's supposed to do, namely it gives protection to aboriginal and treaty rights as protected under section 35. The current language doesn't achieve that result, in our view.

Ms. Nancy Karetak-Lindell: Going back to my earlier question, and just to follow up, you will have your own kick at the can in, say, six years from now, when devolution has happened. With the ministerial authority and what changes you feel should be made... I know this is very hypothetical, but in the event the bill stays as it is with clause 56, you will get your own chance to change the legislation. Is that a possibility, then, to expand on your Government of Nunavut legislation, or does it depend on what we put through now with Bill C-33 as to what your options will be in expanding on the bill? I don't quite understand the implications of what we pass here in the House of Commons. How will that limit the Government of Nunavut in expanding the terms? Let's say that circumstances change. Will this bill as it is eventually limit the GN in devolution?

The Chair: Mr. Campbell.

Mr. Alex Campbell: What we're proposing with these amendments will make it easier for us to have discussions with the Government of Canada on devolution. Many fewer specific issues will need to be dealt with once the devolution file gets close to being resolved.

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We're trying to encourage the Government of Canada to put as many of these things as possible into legislation now so that when the transfer comes to Nunavut, it'll just be a sort of—I don't want to say “rubber stamp”, but we expect to continue with the legislation that has been negotiated here, probably with some minor amendments later in the day.

The Chair: We have time for two more two-minute rounds.

Miss Grey, do you have another question? No?

Mr. Finlay, did you have an opportunity to finish your intervention?

Mr. John Finlay: Not exactly, sir, but I'm still struggling with it.

With regard to the wording as to the protection, maybe you could explain what has been lost.

Ms. Lois Leslie: In our view, inserting that additional language restricting the protection to just the protection given to those rights by section 35 imports into the bill the common law authority to infringe on aboriginal and treaty rights where that infringement may be justified according to the Supreme Court test laid out in the Sparrow decision.

As NTI put forward in their submission earlier this week, it's recognized that aboriginal and treaty rights may be infringed on. What this clause is now doing is making that recognition through the bill. For us it raises alarm bells because it leads us to question whether in fact there are provisions of the bill at the moment that infringe on aboriginal and treaty rights. We invite the department to actually identify those if that's the case.

Mr. John Finlay: Thank you.

The Chair: Ms. Karetak-Lindell, you have two minutes.

Ms. Nancy Karetak-Lindell: I know you're not able to talk about the court case concerning Iqaluit right now, but I just need a little clarification on the condition that was put forth by the water board about burning garbage. Some people felt they were overextending their authority.

I don't know if you're able to comment on this. What do you think? Do you think the GN, let's say in devolution again, should have that authority, or do you think that really comes under the water board and licensing umbrella?

The Chair: Ms. Leslie.

Ms. Lois Leslie: No, I can't comment on specific cases before the courts, but what the court will deal with is whether that's beyond the jurisdiction of the water board as its mandate is defined under the land claims agreement. I think it's clear that it's within the authority of the Government of Nunavut, but whether it's within the authority of the water board to regulate by way of their powers is, I guess, the question before the court.

The Chair: I want to thank you very much for your contribution. Very interesting.

You answered the questions. It's refreshing in Ottawa that when a question is asked... and so did all our witnesses on this bill. I was impressed that when my colleagues asked questions, we did get answers. It helps us a lot in doing our work. Sometimes we're not as clear as you all were when we are asked questions, so we admire it in other people.

I will now allow you five minutes for closing remarks.

Mr. Campbell.

Mr. Alex Campbell: Thank you, Mr. Chair.

I just wanted to summarize some of the points I presented earlier and basically reinforce them.

We want to replace clause 3. We encourage the government to replace clause 3 with the wording found in subsection 2(3) of the Firearms Act of 1995. We also support the inclusion in clause 3 of the positive interpretation article proposed by NTI earlier this week.

We are also suggesting that there be included in the bill the following elements related to the exercise of ministerial authority under clause 56: a time limit of 30 to 60 days, or such further period as may be agreed upon by the minister and the Nunavut Water Board, in which to disallow a licensing decision of the Nunavut Water Board; provisions deeming the minister to have approved a licensing decision where the minister has not responded within that time limit; and where the minister disallows a decision, a requirement that the minister send the decision to the Nunavut Water Board for reconsideration in light of the minister's reasons.

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We're also suggesting that paragraph 82(1)(m) of the bill be amended to explicitly exempt Inuit-owned lands from the application of this provision.

Finally, we're also suggesting an amendment to the bill with respect to the inspection and enforcement of water use and the disposition of waste in the territory as proposed in the appendix to our presentation.

Those are the issues that we've tabled and that we're hoping the Government of Canada will consider in preparing their legislation.

With that, Mr. Chair, I don't have anything else to say, except thank you for the opportunity of allowing the Nunavut government to make this presentation.

In any case, I would just like to add that we support the proposed legislation because, as I said earlier, it's long overdue and it's something that needs to be implemented as soon as possible.

Thank you.

The Chair: Thank you very much.

This concludes this part of the meeting.

The only thing I have for my colleagues is a desire... As we're going to go to the clause-by-clause next Tuesday, in the past, when I chaired meetings where we went clause-by-clause, I asked if anyone had any intended amendments and if they wished to share them with others. There have been occasions when, thanks to sharing them before the meeting, consensus was found, departments managed to adjust, and we were able to have the meeting proceed faster. Those amendments are of course confidential. The clause-by-clause is an in camera meeting, isn't it?

A voice: No.

The Chair: No. But the planning of the meeting and the amendments would be kept confidential. So if you do have some and you wish to proceed that way, please share them with the clerk, who will follow your instructions as to whether you want to share them with everybody or just some. Okay?

A voice: If you wish to disclose them.

The Chair: If you wish. It's your property, and there's no requirement that you do this.

Are there any other comments?

Thank you very much, and have a nice weekend.

The meeting is adjourned.