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]

Tuesday, October 23, 2001

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[English]

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

We're here today 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.

I will proceed to introduce our guests, but as our colleague Nancy approaches the table, I will ask her to introduce to us some people I call the most important people in the room, and that's always the young people.

If we're in politics, it's to create a better future for the next generation, and it's really a privilege for us to have you here with us. I'd like Nancy to tell us a little bit about you so that we can get to know you better.

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Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you.

This morning, I'm very pleased to see the Nunavut Sivuniksavut class. This is a program that started ten years ago, I believe, and it has evolved over that ten years into a kind of bridging program between high school graduates and those wanting to go on to post-secondary education. The waiting list is now so long that people apply a couple of years ahead of time and wait for their turn to be in this program, because the students come from all over Nunavut and it's open to Nunavut beneficiaries. I believe this is one of our success stories about getting our young people involved, so I'm very pleased they could come out to actually see us working in committee.

Welcome to our committee.

Thank you, Ray.

The Chair: Thank you very much, Nancy.

We have three different groups presenting today. What I will do is introduce all of them and invite them to make ten-minute presentations each, at the end of which we will open up to questions from the members of the committee, addressed to anyone they wish. Then, at the end, the witnesses will have a few minutes for closing remarks.

I just want to set the rules of the game. We will establish the number of minutes per question. When we say five minutes, it's five minutes for the question and the answer—and I will stick to that. If you run out of time giving your answer, the trick around Ottawa is that, the next time we ask you a question, you finish the one from before.

I'm pleased to receive our guests. From the Nunavut Tunngavik Inc., we have Mr. James Eetoolook, president, and Mr. John Merritt, legal counsel. From the Nunavut Water Board, we have Mr. Thomas Kudloo, chair, and Mr. William Tilleman, legal counsel. And from the Inuit Tapirisat of Canada, we have Jose Kusugak, president, and Michael d'Eça, legal adviser.

We will start with the presentation from Nunavut Tunngavik Inc.

Mr. James Eetoolook (President, Nunavut Tunngavik Inc.): Thank you.

[Witness speaks in Inuktitut]

My name is James Eetoolook. I'm the acting president of the Nunavut Tunngavik Inc., or NTI. With me today is John Merritt, who is our in-house lawyer at NTI.

To give you an idea about NTI and its role in relation to the implementation of legislation, NTI is not a for-profit company. There is an elected leadership. We represent more than 20,000 Inuit of Nunavut for the purposes of asserting and defending the rights of Nunavut under the 1993 Nunavut Land Claims Agreement. It is our job to ensure that the commitments made to the Inuit under the Nunavut agreement are wholly and faithfully kept.

The Nunavut agreement covers about one-fifth of Canada's land mass. It is a treaty made under section 35 of the Constitution Act, 1982.

A land claims agreement is a contract. Its provisions, in terms of both big-ticket items and points of detail, are the outcome of negotiation and compromise. Neither side gets everything it wants. Implementation of legislation proceeds from radically different starting positions. One of the parties to the agreement gets to prepare legislation according to its interpretation of the agreement. Our experience with the development of this legislation to date is a textbook example of the problems that can arise.

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The parties to the Nunavut agreement anticipated that the legislation in relation to the Nunavut Water Board and Nunavut Surface Rights Tribunal would be enacted within three years of the 1993 coming into force of the agreement. Of course, it is now many years later, and the lack of legislation has created considerable confusion in Nunavut with respect to water management and surface rights issues. This has not bolstered business or public confidence, but it has triggered costly and time-consuming litigation.

The consultation process followed by DIAND in its early efforts to develop this bill could be used as a manual on how not to do it. The wrongheadedness of these efforts was exhaustively put forward by NTI in presentation to this committee in 1996, when the department tried to push forward the present issues of this bill. The 1996 bill was full of departures from the Nunavut agreement. Wisely, the lawmakers on the Commons committee examining that bill put it aside.

In more recent times, there has been some modest improvement in the consultation process followed by the department. Unfortunately, though, the bill in front of the committee continues to fall short, and there are changes that we would like to see.

The first is a positive interpretation provision. The bill should include such a provision that shows it is Parliament's intent, in adopting such a bill, to give active effort to the commitments made to the Inuit on behalf of the Crown in Parliament's 1996 ratification of the Nunavut Land Claims Agreement.

One of the most tiresome problems for aboriginal parties to a land claims agreement at the implementation stage is to prevent government officials from trying to minimize it. We invite the committee to take a stand against the pressure to dumb down the Nunavut agreement. We invite the committee to supply officials with a clear sense of the responsibilities that are being delegated and entrusted to them. This can be done by adding the following provision:

This act shall be interpreted, applied and administered to implement the Nunavut Land Claims Agreement, including the rights provided in that agreement.

NTI has proposed the addition of this provision to the bill to department officials in the past, but it appears the proposed provision causes government officials some unease. It is not readily apparent why.

The second change is freedom of Inuit-owned lands from fees on water usage. The Nunavut agreement divides Nunavut into Inuit-owned lands and Crown lands. Inuit-owned lands comprise about 20% of the land area in traditional use, and they are occupied and held by Inuit in fee simple title. At a common-law level, fee simple land titleholders have various rights with respect to the waters located in their lands and flowing through or along their lands. In the Nunavut agreement, the accorded rights of Inuit landowners is set out in article 20.2.2 of the agreement, which reads:

Subject to the Agreement and any exception identified in the property descriptions of Inuit Owned Lands, the DIO

—which is an Inuit organization—

shall have the exclusive right to the use of water on, in, or flowing through Inuit Owned Lands.

Note that discretion of the right is exclusive.

On first reading an earlier version of the bill, NTI noted that the regulation-making power under subparagraph 82(1)(m)(i) would appear to leave open the possibility of the government collecting fees from the use of waters on Inuit-owned lands. I'm not anticipating this to be anything but a drafting oversight. NTI requested that this interpreted possibility be removed by adding explicit language accepting Inuit-owned lands. To our surprise, this hasn't happened.

A land claims agreement can be compared to two individuals sharing living space. Part of such an arrangement is to allow each party a measure of autonomy and privacy. However, DIAND's view of a shared living space seems to be that what's theirs is theirs and what is ours is theirs as well. Having agreed that the Inuit should have the exclusive right to water on the Inuit part of the shared living arrangement, the department now wants to be able to charge fees for our use of that water.

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One of the objectives of the Nunavut agreement is to promote Inuit economic self-sufficiency. We would like to believe this is also one of the objectives of DIAND as a whole. This attempt to collect fees from Inuit landowners flies in the face of both the Nunavut agreement and common sense. Even if permitted by our agreement, the imposition of such fees on fee simple titleholders would be excessive, and fundamentally hostile to our acquired use and enjoyment of our property. This bill should be amended by amending subparagraph 82(1)(m)(i) to read:

for the right to use waters or deposit waste in waters under licence, excepting waters on, in, or flowing through Inuit-owned land.

The third change is removal of the ministerial approval role. Article 13 of the Nunavut agreement puts responsibility for water licensing decisions in Nunavut squarely in the hands of the Nunavut Water Board. In notable contrast with other articles of the agreement, article 13 does not contain any language reserving authority to second-guess the board. Rather, article 13 relies on the water board to use its specialized expertise, as tested and refined through public hearings, to make appropriate licensing decisions.

We will now go over the technical legal arguments supporting our interpretation of the agreement on the issue that DIAND elaborated, along with the elaboration of our argument on other issues in the appendix to our brief.

DIAND feels the water licences issued by the Nunavut Water Board carry no legal weight in the absence of ministerial approval. This is now a contest in litigation before the Federal Court of Canada. Removal of clause 56 of the bill will prevent similar litigation from arising in the future.

Public confidence has been eroded in Nunavut as a result of how DIAND has dealt with the Iqaluit water licence. At the end of last year, when the board made its decision to attach a condition to the licence that restricted the burning of garbage, then within 30 days of the board's decision, DIAND could have brought an application for judicial review of the water board's jurisdiction to attach such a condition. That did not happen. Instead, by registering unhappiness but not taking any decisive steps, DIAND pushed the water board, the City of Iqaluit, Inuit organizations, and private citizens into a jumble of legal, policy, and administrative uncertainties.

In August of this year, many months after the water board decision, DIAND injected further uncertainty to the situation by communicating that it did not consider the water licence issued by the water board to the City of Iqaluit to have legal force. This action by DIAND has put other water licences in doubt and has prompted further court actions.

A proper interpretation of the Nunavut agreement does not support the proposition that the water board licensing decisions have no consequence in the absence of ministerial approval. In the Nunavut agreement, that requirement did not exist.

Recent events show there is no policy merit in the kind of open-ended ministerial discretion DIAND is seeking. At a minimum, any discretion should be constrained by time limits on when a minister could object to water board licensing decisions—for example, 30 days or 60 days following a board decision. At the moment, DIAND appears comfortable asserting that a minister should be able to overturn a licensing decision years afterward.

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The second item here is objective criteria to limit the circumstances in which a minister could object to a licensing decision. An example would be lack of evidence, or public health or safety concerns. Those are criteria that operate quite well with respect to the Nunavut Wildlife Management Board.

The third thing is opportunity for reconsideration by the water board. This approach would involve the minister exercising discretion to have the board reconsider a decision in light of objective reasons advanced by the minister, rather than relying on blanket rejections. Once again, this technique is employed in other parts of the Nunavut agreement.

Finally, fence-sitting on the minister's rule, if the department believes DIAND should act as some kind of transitional watchdog, then surely there is no need to extend that role indefinitely.

Change number four would be use of an appropriately worded—

The Chair: Excuse me, Mr. Eetoolook.

Mr. James Eetoolook: —non-derogation clause.

The Chair: Do you have any longer on your presentation? We're over by three minutes.

Mr. James Eetoolook: Yes, I do have much more.

The Chair: Okay, then we'll have to move on to the next presenter. We made it very clear that it would be ten minutes.

Mr. James Eetoolook: Okay, thank you.

The Chair: We've gone thirteen minutes, so you should incorporate some of your other things into the answers you will be giving, and into your closing remarks. Hopefully we'll have time, and we can come back to you.

Mr. James Eetoolook: You're going to come back to me for—

The Chair: We will try if we have time. We have two hours, but I just want to be fair to everyone. I don't want this committee to have the reputation that when we ask for 10 minutes, sometimes we go 20 or 25 minutes and then the others end up paying.

We'll move on to the Nunavut Water Board, for 10 to 13 minutes, please.

Mr. Thomas Kudloo (Chair, Nunavut Water Board):

[Witness speaks in Inuktitut]

Good morning, Mr. Chairman, members of the committee. My name is Thomas Kudloo, and I am the chairman of the Nunavut Water Board. I am here today with Philippe di Pizzo, who is the executive director of the board, and with Bill Tilleman, who is the legal counsel for the water board.

First of all, I would like to thank the committee for its invitation today to speak about Bill C-33, the proposed Nunavut Waters and Nunavut Surface Rights Tribunal Act. I can assure you that I say this not just as a standard and polite introduction. On the contrary, because you are in fact the first in five years to have taken the initiative to ask us what we think about the waters legislation.

You may be surprised to know that despite repeated requests to DIAND over the last few years, since 1996, our board has been involved neither in discussions on the development of the waters legislation in general, nor on Bill C-33 in particular. We only received a copy of this bill about a month ago, after we told the Minister of Indian Affairs almost a year ago that we had never seen a copy of the proposed legislation. Indeed, the last time our board had the opportunity to provide some input into the process was in November 1996, when we made a presentation on Bill C-51, an act respecting the water resources of Nunavut, before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development. The past five years that we spent in the dark were quite frustrating, to say the least, and we fully agree with NTI that this way of doing things should be avoided for future implementation of legislation dealing with other components of land and resource management regimes created by the Nunavut Land Claims Agreement, namely land use planning and environmental assessment.

Because we did not have time or the resources to fully review the bill, our presentation will be short and to the point. We had the opportunity to review NTI's detailed submission, and we fully endorse all their recommendations without any exceptions.

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Before moving on to specific issues that the Nunavut Water Board takes with the current version of the bill, I would like to point out that I am aware the committee heard a submission from the City of Iqaluit last week. I would like to point out right from the outset that it would not be inappropriate for me to discuss any issues relating to the Iqaluit water licence.

As you know, NTI has filed an application for judicial review of a decision by the Minister of Indian Affairs to reject the licence issued by the water board. Therefore, out of respect for the Federal Court, I will refrain from making any comments on the Iqaluit file. For the record, though, I reiterate that the board takes the position that the Nunavut Land Claims Agreement does not give the Minister of Northern Affairs the power to approve or reject licences issued by the board. For the committee's interest, I have with me a copy of the Nunavut Water Board's decision on the Iqaluit water licence, and I will leave it with the clerk of the committee.

First, as you are surely aware by now, the Nunavut Water Board is an institution of public government created pursuant to article 13 of the Nunavut Land Claims Agreement. The board has been in operation since July 9, 1996, and I have been the chair of this board since that time. Since its establishment, the board has been fully operational, despite the lack of implementing legislation. For example, in 1997-98, the board held 11 meetings and 3 public hearings, and approved 17 applications and 18 technical reports. Three years later, in 2000-01, we had 14 meetings and one public hearing, and we approved 46 applications and 43 technical reports.

Although the board is eager to have implementing legislation in place, we do not want it at any cost. First and foremost, we want to be sure that any legislation upholds the spirit and the intent of the Nunavut Land Claims Agreement, and that it explicitly acknowledges the agreement's precedence in case of inconsistency or conflict, as stipulated in article 2.12.2 of the Nunavut Land Claims Agreement.

As a general comment, we expect the bill to fully reflect the specific wording of the agreement. For example, clause 26 of the bill stipulates that the head office of the board shall be located at Gjoa Haven. However, article 13.3.9 of the Nunavut Land Claims Agreement simply states, “The NWB shall maintain a head office in the Nunavut Settlement Area.” Among other sections, this is an easy one.

This clause and others in the bill should be reworded to reflect the actual wording of the Nunavut Land Claims Agreement. For example, a consequential one relates to article 13.7.1 of the agreement. In a few words, this article says that “no person may use water or dispose of waste into water without the approval of the NWB.” This particular section is at the heart and soul of the Nunavut Water Board's powers and jurisdiction, but it appears nowhere in Bill C-33.

The current version of the bill contains a number of significant deviations from the spirit and the intent of the Nunavut Land Claims Agreement. I will just mention the two main issues that we take with the bill. The first one, which will not be of surprise to you, has to do with clause 56 of the bill. As NTI has argued very elegantly in their submission, the Nunavut Land Claims Agreement does not give any power to the Minister of Indian Affairs to approve or reject a water licence issued by the Nunavut Water Board.

Clause 56 of the bill is essentially a duplication of a similar clause in the Northwest Territories Waters Act. It does not explicitly or implicitly appear anywhere in the Nunavut Land Claims Agreement, and it violates the spirit and the intent of the Nunavut Land Claims Agreement. I will not add much to NTI's submission, except to say that clause 56 should be deleted altogether from the bill. We believe there are more appropriate recourses for any party, including the minister, to challenge any decision by the board—for example, by filing an application for a judicial review under the Federal Court Act.

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The second most important issue that I would like to bring to your attention is unlicensed water use or deposits of waste into water, permitted by the regulations as per paragraphs 11(2)(a) and 12(2)(a) of the bill respectively. I note that this issue has not been addressed by NTI in their submission.

These two paragraphs refer to uses of water and deposit of waste into water as being exempt from water board approval. They are clearly in contradiction to the Nunavut Land Claims Agreement, which stipulates in article 13.7.1:

With the exception of domestic or emergency uses of water... no person may use water or dispose of waste into water without the approval of the NWB.

There are no exemptions contemplated in the regime established by this agreement except in, again, cases of emergency or domestic use.

Contrary to the scheme created under the agreement, Bill C-33 basically creates three classes of water uses or disposal of waste activities. First, class A includes activities subject to the public hearing. Second, class B includes activities exempt from a public hearing. Third, class C is a new class of water uses and disposal of waste into water, and it is exempt from any board approval or licensing requirement.

On the other hand, the Nunavut Land Claims Agreement contemplates only two classes of the projects. The first ones are those applications for which a public hearing is mandatory, and the second ones are those that can be dealt with summarily. Look at articles 13.7.1 to 13.7.5 of the Nunavut Land Claims Agreement and compare those with the existing wording of Bill C-33.

In closing, I told you at the beginning of my presentation that I believe any water legislation must respect the spirit and the intent of the Nunavut Land Claims Agreement. The current version of the bill simply does not achieve this essential objective. While the majority of its clauses overall are appropriate because of the creation of the exemptions under clauses 11 and 12 and the power given to the minister under clause 56, among other things, it violates a number of critical sections of the Nunavut Land Claims Agreement. For that reason alone the bill should either be amended as requested by NTI, with the addition of the deletion of exemptions mentioned earlier in my presentation; or it should be sent back. The next time around, meaningful consultations should occur—with NTI and with the Nunavut Water Board at the table this time—before the Minister of Indian Affairs introduces another version.

This concludes my presentation, and I have legal counsel Bill Tilleman with me, along with Philippe di Pizzo, if you have any questions.

The Chair: Thank you very much.

We'll move on to the Inuit Tapirisat of Canada.

Mr. Jose A. Kusugak (President, Inuit Tapirisat of Canada):

[Witness speaks in Inuktitut]

Thank you, sir. I am president of the Inuit Tapirisat of Canada, whose board members are the land claims groups in Nunavut, as well as those in the Inuvialuit region of the western Arctic; the Labrador Inuit Association; and the Northern Quebec Makivik Corporation. Some of you might know, too, that I was president of Nunavut Tunngavik from 1994 to 2000. During that time, we were working on Bill C-33's predecessors for some time, so I'm glad to see this has come up again. I don't know why it would take so long, though, because the groundwork was done in 1993.

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Having said I was there from 1994 to 2000, I know about talking to a committee such as the Standing Committee on Aboriginal Affairs and Northern Development. If I was James, I would like to finish my presentation. So, because I'm here to support Nunavut Tunngavik, I would like to suggest that I give my remaining nine minutes to James in order for him to finish off his presentation, because he was just talking about the removal of the ministerial approval role and about developing possible sunsetting of the minister's role on that water legislation. He was just getting into the use of the appropriately worded non-derogation clause.

Can I give my time to him, just so he can finish that?

The Chair: I will rule that you can give your time, provided the Nunavut Water Board doesn't say they want another eight minutes, too.

I'm putting pressure on you.

Mr. Thomas Kudloo: That's okay.

The Chair: Then Mr. Eetoolook has eight minutes left.

Mr. Jose Kusugak: Thank you, sir.

James.

Mr. James Eetoolook:

[Witness speaks in Inuktitut]

The fourth change is use of an appropriately worded non-derogation clause. Subclause 3(3) of the bill should be deleted, to be replaced with the following wording drawn from section 25 of the Canadian Charter of Rights and Freedoms:

(3) 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 the Constitution Act, 1982.

The amendments that accompanied patriation of the Canadian Constitution in 1982 contain non-derogation language with respect to the interaction of the charter with aboriginal and treaty rights. The non-derogation language in section 25 of the charter provided assurance to the aboriginal peoples that the charter was not aimed at taking anything away from aboriginal and treaty rights.

Charter formulation of the non-derogation clause was accepted and appropriated by those responsible for preparing draft legislation, up to and including the firearms legislation in 1996. Over the last few years, however, a few federal bills have come forward with at least two different variations of wordings. Subclause 3(3) of the current bill contains one such variation. NTI is unaware that the import of such variations in wording has ever been brought before the attention of a parliamentary committee, nor have aboriginal peoples been asked to consider the variations. These things in themselves are disturbing, but what is more disturbing is that the liberties taken with the charter formulation of a non-derogation clause debase its value.

The charter formulation could be best understood as a statement of intent. That is, Parliament is not intending anything to be interpreted as taking away from aboriginal or treaty rights. Divergent wording in the current bill could easily be understood as a statement of parliamentary capacity. That is, Parliament is reminding the courts that in certain circumstances, it has the capacity of infringing on those rights despite the protection of aboriginal and treaty rights under section 35 of the Constitution Act, 1982. Your adoption of the divergent wording and non-derogation clause can ironically become a kind of derogation clause. What was designed as a shield becomes a sword.

There are compelling reasons for the committee to reject the current subclause 3(3) and to replace it with the charter formulation. They include a number of ideas.

First, the charter formulation is formed on sound constitutional usage. There is no good reason to divert from it.

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Second, the charter formulation was employed consistently in federal legislation for the majority of bills containing non-derogation language since 1982. There is no evidence that this bill was created in the practice of Parliament.

Third, in the event the government officials believe there is an overriding reason for dropping the charter formulation, their reason should be presented clearly to the appropriate parliamentary committee. It is inappropriate to try to effect such changes through the side door, particularly in the absence of prior and candid consultation with aboriginal people.

Fourth, DIAND has made no effort to point out to this committee if and how this clause should infringe on aboriginal or treaty rights. At minimum, those who at a later date would like to argue that the new law can justifiably infringe on aboriginal or treaty rights, have an obligation to point out the potential infringement to our lawmakers considering that new law, and to spell out why they think such an infringement might be unavoidable. To do less is not in keeping with the role played by lawmakers or with the fiduciary obligation owed by the Crown to the aboriginal people.

Fifth, NTI is a representative of the aboriginal people affected by this proposed law, and we believe that when the Inuit of northern Quebec were first engaged in the Constitution, there was no dispute as to what was standard non-derogation wording. Indeed, Makivik Corporation, representing the natives of northern Quebec, was given firm signals as to DIAND's intention to use the charter formulation. To adapt variant wording now is in bad faith.

In terms of French-language version issues, we have identified a number of changes that should be made to the French-language version of the bill. These changes are set out in the appendix.

In closing, the enactment of appropriate legislation in relation to the Nunavut Water Board and the Nunavut Surface Rights Tribunal is long overdue. The absence of said legislation detracts from the implementation of obligations undertaken by the Crown in the 1993 Nunavut Land Claims Agreement.

Despite the need for such legislation, two things are apparent: first, the bill requires a number of amendments to bring it fully into line with the Nunavut agreement and with a fair and balanced approach to the implementation of that agreement; and second, the consultation process that accompanied the tabling of the bill needs to be corrected. Accordingly, NTI urges this committee, first, to amend the bill in the ways suggested; and second, to communicate to the Minister of Indian Affairs that further legislation aimed at implementing the Nunavut Land Claims Agreement should be developed on a partnership basis with NTI and the Government of Nunavut in order to achieve fair and timely results.

Nakurmiik. Thank you.

The Chair: Thank you.

Before we move on to questions, colleagues, I want to thank you for your patience. We had asked for a 10-minute presentation, but we had a 22-minute presentation. I say this to get it on record, because we were able to do it today, but it may not be possible to do it every time. Our witnesses have to be aware that we have restraints, but it was very interesting and very valuable, so I thank them for that.

The first round will be five minutes, beginning with Mr. Elley.

Mr. Reed Elley (Nanaimo—Cowichan, Canadian Alliance): Thank you very much, Mr. Chairman.

I want to add my own personal thanks to all of you for coming here today. You have travelled a considerable distance. I come from Vancouver Island every weekend, but you came a little further than that. Thank you for sharing your concerns with us about this legislation. I'm glad you have had the opportunity to fully brief us on how you feel about this, and I want to address some questions particularly to the ministerial right in the legislation to approve the permits.

We do have a court case that is now before us. I'd like to ask particularly Mr. Kudloo and Mr. Tilleman—but any others who wish to comment on this, as well—if they foresee any problems with us moving forward on this legislation if, for instance, the court challenge goes against the government. Would that then make that part of the legislation void if we indeed passed it? What kind of a position would we have then? Where would we find ourselves in relation to the legislation at that point, in your view?

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As a second question, do you have any kind of suggestion to make that might get us out of that kind of legal, and maybe even constitutional, dilemma at that point?

Mr. William A. Tilleman (Legal Counsel, Nunavut Water Board): Thank you, sir, and thank you, members of Parliament.

At a minimum, I think it puts the government in an embarrassing position, depending on what the judge would say—and we have no way of knowing. If he agreed with the challenge, then you could have, at worst, something that just simply isn't lawful—that would be clause 56. Maybe something worse would be something that is constitutionally wrong. That simply is an embarrassing situation to be in.

What can you practically do? Eliminate clause 56. In that particular case, the board also finds itself in a difficult situation, because at the time when the letter was sent by the minister, the board was actually in the middle of a rehearing. In other words, the town had applied for amendments, and the board's subsequent hearing of those amendments was pending when the letter came in.

For the record—since it is a matter of public record—the board has actually put the rehearing, including the issue of air emissions and other things the town had not yet done, in abeyance, pending the resolution of the court case. The board finds itself in a tough position, and it has simply stopped its process.

I know the five minutes are up, so I won't go into this now unless there's another question, but my position is that this section clearly violates the land claims agreement, which clearly means the clause will fall in that case. That's my opinion, sir.

Mr. Reed Elley: Would anyone else like to comment on that particular situation?

Mr. John Merritt (Legal Counsel, Nunavut Tunngavik Inc.): NTI's view would be substantially the same as the water board's. I would point out that NTI only rather reluctantly entered into the court case over the summer, because this summer was the first occasion when the Minister of Indian Affairs actively purported to disallow a licensing decision. For a number of years before that, the minister had essentially accepted the board's licensing decisions. NTI only initiated a lawsuit when it became quite clear the minister's active disallowance in fact constituted a challenge to what we understand to be the appropriate interpretation of the land claims agreement.

The fact is that eight months passed between the water board's licensing decision and the minister's disallowance in August. That certainly complicated and confused a great number of people. We found that to be a regrettable part of the whole process as it played out over the winter and the spring.

The Chair: Does someone else have anything for a few seconds?

Mr. Jose Kusugak: Yes, I'll take a few seconds.

I just want to make the point that when the land claims agreement was ratified, Inuit rejoiced in being able to partake in legislation and bills such as this under the agreement, and in being given certain responsibilities on behalf of Canada to make certain decisions and so on. But the government and Nunavut Tunngavik seem to be in implementing the agreement on opposite sides. The other side seems to imply it is them versus us, and that really doesn't help us. Because of the agreement, we do want to partake in what Canada is doing. These are the opportunities that are given to us.

I just want to make sure that point is made in terms of why we think these changes to clauses are necessary. It's to respect that agreement.

The Chair: Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): Thank you very much for being here today, members of the board and members of the panel. Thank you for bringing the youth from Nunavut here with you, too. I think that's really a wonderful idea in order to help to demystify the House of Commons—in their eyes, at least.

I know we only have five minutes, so I will start by recognizing that there was one theme throughout all of your briefs, and that was a grieving over the lack of consultation as the bill got closer to being finished. I do note for the Nunavut Water Board that the last time there was a formal consultation was in February 1998. The bill was first tabled with them in 1997, and there hasn't been any other formal meeting since 1998, according to the records given to us, at least.

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Even though you have listed five specific changes that you would demand, I think clause 56 has risen to the top of the pile in the briefs that I've heard. I would agree that the minister having an overriding veto flies in the face of the whole idea of self-governance of Nunavut and the resources under their domain. I would concur with you.

If they're unwilling—and by “they”, I mean the Liberal government—to delete clause 56, as you recommend, what compromise changes could you put forward to give you some satisfaction or to limit the minister's power to veto what you might want to do in terms of granting permits? Could you answer what specific changes you would recommend that we might put forward as an amendment that would pass?

Mr. John Merritt: In his brief, of course, our president indicated that we don't accept that this power in clause 56 is consistent with the Nunavut Land Claims Agreement. He also indicated that even if our land claims agreement didn't exist, even if you were looking at a bill in the absence of a land claims agreement, it would be NTI's point of view that the minister's discretion should be subject to some constraints here. At the moment, though, it's open-ended. For example, over the events in the winter, spring, and summer of this year, the minister effectively sat on a decision for eight months. In the absence of any kind of disciplining in legislation, for instance, that could happen again.

We identified the four specific things that would be useful if the power were to survive at all. The first is that there should, at a minimum, be some time limits. If the minister is going to make a decision to turn down a licensing decision, he should do so in 30 days, 60 days, or some time period. That is the very kind of standard stuff that you see in all sorts of interactions between ministers and administrative tribunals, so there's nothing unusual about that.

The second item was that it would be useful to have some objective criteria here to say the minister could only effectively disallow or overturn a licensing decision based on a concern about a lack of evidence or a health or public safety concern. I think our president mentioned that our Nunavut Wildlife Management Board, which was established under the agreement, operates that way. The Nunavut Wildlife Management Board can only have its decisions second-guessed for conservation, health, or safety reasons.

The third change would be to have a situation in which, first of all, the minister sends the decision he's unhappy with back to the board for reconsideration, perhaps with a second public hearing. Once again, that feature exists in relation to other boards set up under the land claims agreement.

And the final point that our president raised was sunsetting this. If there's a feeling the minister somehow has to be a political watchdog over the board for quality control purposes for some finite period of time, then sunset this. Say that role will exhaust itself after the board has acquired x number of years' experience, whether it's five years or ten years after the coming into force of the land claims agreement, or whatever date you pick. Sunsetting would also be an attractive feature.

The Chair: You have 45 seconds.

Mr. Pat Martin: Actually, you listed five ultimate amendments that you would like to see. I managed to get four written down, but I missed the very first one that you listed. In your speech, Mr. Eetoolook, could you look up the very first change that you recommended for Bill C-33?

Mr. John Merritt: I believe that was the positive interpretation provision. I think there is some expanded argumentation about that in the appendix that was circulated to the committee members.

Mr. Pat Martin: That's very helpful. Thank you very much.

The Chair: Miss Grey.

Miss Deborah Grey (Edmonton North, PC/DR): Thank you for coming.

On this business about the minister having all power, if you will, or the political watchdog effect, if no such power was given to the minister—which, in deleting clause 56, would obviously be the first choice—then what kinds of self-discipline measures are there? If the minister is not watching—and I don't agree that it's a wise thing for him to be watching—who would then keep an eye on things?

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Mr. John Merritt: I seem to be getting too much air time here, so perhaps the water board would want to expand on this.

NTI's position is that this is the reason we have courts. The Federal Court exists to essentially allow citizens an opportunity to question whether or not a public body or public official has acted within their jurisdiction when making a statutory decision.

In our view, what should have happened in January was that the minister, in not believing the board had jurisdiction to make conditions about burning garbage, should have gone to the Federal Court within the 30 days to question the board's jurisdiction. That's how everybody else has to operate when they're unhappy with a decision struck by a board. There are lots of other places where ministers do make those interventions when they're unhappy with a tribunal's decision.

Miss Deborah Grey: I would hate to see legal counsel arguing for more court decisions, because it does seem a bit self-serving.

Nonetheless, who pays for these court challenges, and how long do we go around saying we're going to sue someone because they did something? Lord knows that's not a healthy thing. How do we get out of this consistent, everlasting wrangle? There has to be an answer to it.

The Chair: Does any other witness wish to provide an answer or a comment?

Mr. William Tilleman: That's a good question, but we're too close to the Supreme Court of Canada for me to disagree with the role of lawyers in this city and this country today.

I agree with Mr. Merritt, but one of the other areas of accountability is simply the members themselves. In other words, these appointments are put forward either by the NTI or by the federal or territorial government, and the members themselves can be replaced. The accountability actually does come from their performance, and that should be, as always, watched closely by the executive branch.

The Chair: Are there any other comments on this issue? Mr. d'Eça.

Mr. Michael d'Eça (Legal Adviser, Inuit Tapirisat of Canada): Just as a brief one, it is a conundrum, but by having the minister give approval, you don't get rid of that conundrum. It's just another step, but you're still going to have—and you should have—judicial review, as well as an appeal process, as the bill provides.

I can't answer the question, but I just point out that having the minister in there isn't a solution to that particular problem that you raise.

Miss Deborah Grey: Thanks, Mr. Chairman. As it's a government bill, I would be interested to hear from the government members how to get out of this pickle.

The Chair: That will be done during clause-by-clause.

Miss Deborah Grey: Super.

The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: As a beneficiary, I find it very disturbing to find out that a lot of my beneficiary agreement funds could be spent on litigation. Especially with the young people here, that's not the picture I would propose to present. I find it very disturbing that this is the way the land claims agreement future is.

I look at subclause 3(1), which says:

Where there is any inconsistency or conflict between the Agreement and this Act, the Agreement prevails to the extent of the inconsistency or conflict.

That's supposed to be reassuring to us, as beneficiaries, that our land claims agreement will prevail. I'm having a little difficulty with the fact that we have all these different interpretations that lead to court cases if our land claims agreement is said to prevail in a bill. I'm trying to figure out a nice, understandable way to bring forth this question. I know we have to have that in all the bills that pertain to a land claims agreement.

Why is our land claims agreement not prevailing in some of the issues that we see before the courts? Is it that the wording in the agreement leaves too much room for interpretation? Is there a way of going through the agreement so that we have settled interpretations of these? I don't know if that's possible. When you have ten different lawyers, you may have ten different interpretations.

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I'm having difficulty—and I'm in a bit of a conflict here, because I'm a beneficiary to this land claims agreement. What practical effect do you see this clause having on this bill and other future bills that are going to come out of it?

I have one other very quick question, but I'll leave room for an answer.

Some of the conditions that were issued by the water board—let's say Iqaluit's—have huge financial implications. I'm trying to figure out if those are taken into consideration by you, as a water board, when you issue a licence? The onus is on the licensee to meet the conditions, but it's very difficult for them if they don't have the resources. I'm just using Iqaluit as an example, but I'm sure there will be other ones in which there are conditions that make it very difficult for a person to meet the deadlines. How do you determine the timeline versus the resources that you feel the licensee will have?

The Chair: You have one minute to give an answer.

Mr. William Tilleman: Yes, sir.

On the first issue of clarity, I think the provision referred to in the bill, the implementing legislation for the land claim, and the land claim itself, were perfectly clear. That is, if there's a conflict or inconsistency, the land claim, being the superior document in law, does prevail.

On the issue of the minister's approval authority, I do believe there is perfect clarity in this agreement. This agreement speaks about a whole bunch of other things besides the water board.

Let's talk about other boards for just 30 seconds. The first ones would be the wildlife board, the planning commission, and the environmental assessment board. The wildlife board is in article 5; the planning commission, in article 11; the environmental assessment, in article 12; and this board, in article 13. In those first three boards, there is a specific reference to the minister and there is a specific reference to the board's function, which is to report to the minister, who then makes the decision in many, if not all, of those decisions. Not so in the water board.

In at least six areas covering the water board, there is no mention of the minister. In article 20, which deals with Inuit water rights, there is no mention of the minister. In fact, in at least one provision, it says that if there's a dispute on compensation between the Inuit organization and industry, it goes to the water board, whose decision is final and binding. There's no uncertainty in that, and there's no ambiguity in this bill vis-à-vis that issue. It's very clear in article 13, and I think courts will find it clear. That is my argument.

Now, what do we do about tough situations in which you come to, for example, the City of Iqaluit? We've heard the board had outlawed or ruled against all air emissions. With respect, that's not true. If you read the decision, you'll find out that what the board did in fact do was to concern itself with emissions that went into fresh water. In other words, it dealt specifically with the deposit of waste into water. It did not regulate all areas of air emissions. It only dealt with those areas that were likely to impact the water.

Yes, it is a tremendous cost—and this was not the first hearing, it was the second—but what cost can you place on the sanctity of human health? Walkerton is the best example. The board is faced with those difficult decisions.

Thank you.

The Chair: Mr. Vellacott.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): The Minister of Indian Affairs and Northern Development stated, in respect to Bill C-33, that it would provide a certainty of access for the resource industry; certainty in the water licensing process; and certainty for members of the board and tribunal, whose decisions in the absence of legislation opened legal challenges. Frequently, the operative word there is “certainty”. He insisted upon that. I would therefore like to know very quickly—and I don't need an extensive or lengthy response here—if you share the minister's opinion that the Bill C-33 regime enhances that certainty. He was pretty dogmatic, pretty adamant that it would. Do you share that view?

Mr. William Tilleman: With respect, I don't want to say that... First, I don't think it does, not on this issue. It does on several other issues, though, so this isn't a bad bill, it's a good one.

On the issue of ministerial approval, Mr. Merritt mentioned how difficult it is to receive a minister's letter eight months after the fact, and a letter likely drafted by staff, especially when it not only says no, but also talks about several other things. It wasn't simply a no, it was a no along with several other issues. I don't want to speak disrespectfully of the minister, because I do respect this minister, but with respect, that is not certainty.

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Mr. Maurice Vellacott: So aside from the issue of ministerial authority, you do believe it will make for a greater certainty, it's good from that point of view, but in respect of the ministerial authority, that's where you would exempt and say, I don't believe it makes for certainty there.

Mr. William Tilleman: Of course it doesn't, sir, because we're now in front of the federal courts, as we should be on this issue.

Mr. Maurice Vellacott: In article 13 of the Nunavut Land Claims Agreement it is stated that the responsibilities and powers of the Nunavut Water Board are to be “at least” equivalent to those of the Northwest Territories board under the Northern Inland Waters Act, which then was replaced in 1992. Article 13 doesn't enumerate the board's specific powers and responsibilities, so how do you interpret that stipulation that the Nunavut Water Board is to have authority at least equivalent to that of the analogous Northwest Territories board?

The Chair: Mr. Tilleman.

Mr. William Tilleman: Yes, sir, I agree. But that is, if you will, the low-water mark. It was then NIWA, and now its the NWT Waters Act, and that is where the board does look to some things, for example, on powers to compel documents. So we do go back to that legislation. That is probably the sticking point between the people who drafted this bill and the position of the Water Board, that they have simply gone back to that legislation, looked at it, and said, the way it was, there was a distinction between classes of licences, and the minister made the decision on the most important ones, and so that's the same for the Water Board.

That is faulty reasoning, with respect, because of the last part of the sentence of the provision you read. The last part of article 13.2 says:

...and any other responsibilities acquired under this Article.

And so, if you take it as a low-water mark, and then you read the last part of that section that says what I quoted, that's the key—no one refers to that, but that's the key.

Mr. Maurice Vellacott: From a legal point of view, then—and maybe this varies all over the map depending on the legal person you talk to—if it doesn't say he has oversight or a supervisory role, but again, it doesn't necessarily exclude him, would it be a unanimous opinion, or are we going to get varying opinions? If it doesn't say he's included, does that automatically exclude him, from a legal point of view?

Mr. William Tilleman: You never exclude a minister, and in this case the minister is involved in the appointments and that significant part of this board. Someone asked Mr. Merritt what options there are. There's a sunsetting option, which would probably be the second preference of this board. The first one is simply to strike clause 56, the second to sunset.

There's a third one. I might actually say something that hasn't been heard here and won't be heard here, and that is that I believe there are times when ministers need to come forward and make decisions. For example, what about projects that are cross-border or national in interest? I believe in those cases ministers have, and should have, a role. So perhaps that would be a suggestion, that in cases where the minister wants to assume the control and the decision-making on a particular file, given the nature of the interest, which is broader than a site-specific case, it could be so stated in the legislation.

I'm only answering your question. I do respect the ministers' mandate, which is huge—they look over the whole country.

The Chair: Ms. Grey.

Miss Deborah Grey: Thanks.

It was mentioned earlier that in all these years since you've been operating you have not been involved in any type of input or consultation. Why do you think that is? That seems astounding to me. And how will it get better, what can you do to improve that, what can we do to improve that in the future?

The Chair: Mr. Tilleman:

Mr. William Tilleman: I need to tell the committee that I know it was and is Minister Nault's intention that we be involved, to his credit. About a year ago he made that known to the board. So why wasn't the board involved? It might have been my fault that I didn't come down here and find whoever had the bill, and if that's my fault, then I'm guilty.

For the record, the way I received the bill, however, was through Mr. Merritt a couple of weeks ago. He gave me a copy he received through I don't know who, and then within days someone else took my copy. So I don't have the latest version, and I don't know why the board hasn't been involved, but I do know it was this minister's intention that the board be involved at least a year ago.

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Miss Deborah Grey: So that's Bill C-33.

Mr. William Tilleman: That's correct.

Miss Deborah Grey: We probably all got it a month ago. I'm talking 1996.

Mr. William Tilleman: To be fair to the government, these are new boards, it's a new territory, and things were tough. We're still trying to make it work—new administrations, devolution. Drafters are busy, ministers are busy, and staff are busy. I don't know what happened, but to be fair to government, this isn't easy.

Miss Deborah Grey: I appreciate that, but maybe I could ask the person who said that to respond. It was one of you two fellows—or whoever wrote the brief, I don't know. But I think it was you, Mr. Kudloo, who said that you had...

The Chair: Bill, could you respond to that please?

Miss Deborah Grey: You said it, so I'd like you to respond to it.

Mr. Thomas Kudloo: I'll ask the executive director to answer that question.

The Chair: Please come forward. We need your name first, your responsibilities, and your title.

Mr. Philippe di Pizzo (Executive Director, Nunavut Water Board): I'm Philippe di Pizzo, the director of the Nunavut Water Board. I can't say why DIAND didn't involve the water board, that's a question you should ask the people at DIAND, but we definitely asked DIAND several times that we be involved. I recall that the last time we were involved was for Bill C-51, and that's five years ago. I don't recall the meeting Mr. Martin referred to or the communications he had about 1998. I'm not aware of that. I have no answer. I don't know why DIAND didn't go.

The Chair: Thank you.

Mr. Martin.

Mr. Pat Martin: Thank you very much.

Moving off the ministerial authority a little bit, there were some other questions. The first thing I had on the list of changes you wished to achieve, at least NTI wished to achieve, was exempting the Inuit-owned lands from fees on water use. Bill C-33 does contemplate the federal government's still being able to charge fees, even on Inuit-owned land. You're asking for it to be changed, but how far do you see the current language going? Would they be able to charge fees on a water bottling plant, or the sale of ice, or the use of water for a sports arena to flood the rink? Is the current language so bad that you would see them actually being able to ding the people who live there for things like that?

Mr. John Merritt: The answer to your question is, yes, and I'd like to expand on that a little by perhaps picking up on the comment Nancy Karetak-Lindell made a while back.

One of the frustrating things about working at an aboriginal organization after a land claims agreement is signed is that you spend a huge amount of time then trying to police the agreement to make sure it gets delivered. I spent ten years involved in the negotiations. Although I'm guilty of being a member of the law society, I didn't spend ten years talking to people in the belief that the courts were the best place to sort out problems. I know Inuit politicians are present, and others spent years of their lives involved in these negotiations, all in the belief that there are compromise solutions, there are negotiated results, one doesn't have to go to the courts to get complicated arrangements struck.

However, when you invest in that kind of agreement and you make those compromises, you then have to, at a minimum, insist that the commitments made will be delivered on, and the frustrating thing is that whenever the agreement is silent on any particular point... Our agreement, for example, does not say in 24 point type that the Inuit shall never pay fees for water use on the lands they own. The reason, from our point of view, the agreement doesn't say this is that we think the common experience in Canada is that when you own land, you don't expect somebody to come along and say that when you want to dip a bucket in the well on the back forty, you have to pay a fee to someone. I'm not talking about municipal services that are delivered in exchange for a price, I'm talking about whether, as owners of the land, you can actually benefit from that by opening a bottling plant, letting somebody swim in the lake, whatever you want to do.

So we find ourselves in the unwelcome position of having to invest a huge amount of time, developing complicated briefs, coming forward as, I guess, screams from the outside, saying, surely we have an obligation at the end of the day to insist that the active use of this agreement has to be defended against the remorseless effort to chip away at the various benefits and rights in there. It's unfortunate we have to spend this time. We don't want to spend time doing this kind of work, but when you're reduced to the point where you couldn't actually put a drinking fountain on a 20,000 square mile piece of land without the government theoretically imposing a fee on that, you have to come forward and make these concerns known.

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Mr. Pat Martin: I think most Canadians would also want that kind of thing limited. Nobody, I think, would contemplate billing people for use of their own water on their own land.

So you're suggesting that language needs to be reworded to say specifically “for the right to use waters or deposit waste and waters under a licence, excepting waters on, in, or flowing through Inuit-owned land”. That's the specific language you need to see in subparagraph 82(1)(m)(i).

Mr. John Merritt: Yes. In our brief I think the president said we had actually suggested that at one point, thinking it was a no-brainer, that the intent of the bill surely couldn't have been to reach into these things. So we put that forward as essentially a suggestion for clarification, only to find, to our complete surprise, that we're now debating this issue. That's not a happy experience.

Mr. Pat Martin: The Nunavut Water Board mentioned the number of licences issued since 1993, even in the absence of the enabling legislation that actually creates your water board. Perhaps you could elaborate. Has the minister always approved the licences you've awarded, or is there still a grey area where the NWB approved a licence and the minister failed to approve that licence? Are we in that legal limbo? What is the status of any licences that may have been turned down or not approved by the minister? Where are we there?

Mr. William Tilleman: I can be brief, sir. The board issues decisions, not recommendations, and as long as I've been with the board, advising them for about four years, the board just simply issues a decision.

Your question was, has the minister ever written back.

Mr. Pat Martin: Or failed to approve.

Mr. William Tilleman: Yes, sir, he has. There are several outstanding decisions where the board has not received—

Mr. Pat Martin: What is the legal status, then, of the Hope Bay joint venture, where they applied for a licence, got granted the licence, and the minister has never approved it. Could the minister wake up one morning, snap his fingers, and take away the permit to use that water?

Mr. William Tilleman: I think the legal status comes from the land claims agreement and the board's position that they're valid as per the land claims agreement. That's the position of the board. They are valid, and if he or she wants to write back, they can do that.

Mr. Pat Martin: Doesn't that set a precedent we can use here, then, that you don't need to have the minister approve a water use permit, because there are examples in Echo Bay Mines and all these groups that are currently using the water without any fear of having it taken it away from them? You've now set the precedent that you do, in fact, have the authority.

Mr. William Tilleman: The board did that four years ago, sir.

Mr. Pat Martin: Well, the board isn't even created legally until Bill C-33 passes, so you've undertaken a measure of self-governance maybe beyond what was contemplated by the government already, and those rulings seem to be standing. I think that sets a very favourable precedent as we argue to have the ministerial authority limited.

The Chair: We're over time, but a comment was made that I think needs to be corrected.

Researcher.

Ms. Mary Hurley (Committee Researcher): Mr. Martin, you suggested that the board isn't established until Bill C-33 is passed. The land claims agreement did provide for the possibility that government legislation would not be enacted in a timely fashion under the terms of the agreement, and so all the boards, the Impact Review Board, the Planning Commission, the Water Board, and the Surface Rights Tribunal, have been up and running since 1996. The land claims agreement does provide for them to operate legally.

Mr. Pat Martin: In the interests of further clarification—

The Chair: We'll have another round.

Mr. Finlay.

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

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I want to look at subparagraph 82(1)(m)(i) for a minute and ask a couple of questions. It says:

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

It doesn't say to whom the fees are to be paid. Am I being naive if I think the intention is that if it's Nunavut-owned land and they're in charge of it, there should be a fee? Are there fees for licences in the Yukon, in the Northwest Territories? There seems to me something terribly different about there being a fee. We can argue about who might set it or whatever, but is there something improper about asking for a fee if you're going to give a licence to someone? You have to do some obvious work that the board does. It has experts to do this work. I'm at a loss.

Also, Mr. Chairman, I'm glad Mr. Tilleman brought this up, because it's bothered me, where it says:

for the right to use waters or deposit waste in waters under a licence, excepting waters on, in, or flowing through Inuit-owned land.

Someone earlier made mention of the fact that water, like many other natural resources, certainly on the surface, doesn't stay in one place. It seems to me there has to be some authority above merely the people concerned in the area if the water is going to flow into somebody else's backyard. If we can't settle that by some higher authority, we're going to have lawsuits about it. If the water flows onto somebody else's land and it carries too much waste, there could be a health problem, and so on.

There's only one other thing I'd like to ask, Mr. Chairman. It seems to me that in a lot of these things there is an ultimate responsibility—and I presume it's the federal government's responsibility in all these things—to provide the basic services and so on. Am I wrong about that?

The Chair: Who will handle this one?

Mr. Merritt, I think, and anyone else after him.

Mr. John Merritt: On the last point, I think I'd respond, with respect, by saying the government's not putting the water on Inuit-owned land. It can do many things, but of the 350,000 square kilometres of land in Nunavut owned by the Inuit much is covered with water, and it's there because God, in His wisdom, is putting it there. So this isn't water being delivered at government expense.

Second, in relation to the collection of fees, I take your point that in theory, when you read paragraph 82(1)(m), and then read the next paragraph along, (n), which talks about prescribing times and manners in which fees would be paid, you could nurse a hope that somehow the fees collected would end up in the hands of Inuit, but I don't think the intent of this bill is to collect those fees and then relay them to Inuit. I think the bill as it's now written is operating with the false belief that somehow the government can collect fees on Inuit-owned lands, just as it would propose to collect fees on crown lands.

You made reference, Mr. Finlay, to the regimes in the Yukon and the Northwest Territories. I think what you see here is a bill that contains a reasoning that all the land in the north continues to be crown land, and it may have made sense in that view of the world to imagine a regime that says, when anyone makes use of crown lands—and crown lands are held for all Canadians—a fee will be attached to the use of those lands. That's a reasonable proposition. What it misses, of course, is that in 1993 the Inuit negotiated and concluded a division of ownership of those lands, and they came out with private property rights over 350,000 square kilometres. It's nice to try to collect rent on something that you used to own, that's a very understandable appetite, and I suppose Inuit would hope anything collected like that is put to good use on behalf of the Canadian public, but it's contrary to the basic reasoning that in 1993 something fundamental changed on the landscape.

That theme is a problem from our perspective, and it plays out in all kinds of legislation. There's a kind of indifference or unawareness in the way these legislative projects get developed as to the impact of that land claims agreement. That agreement is intended to change how people approach the ownership and management of resources in a fundamental way. One reason we wanted the positive interpretation provision is that it would be a nice reminder from Parliament to the government officials, who work for all Canadians, that they're supposed to be active instruments of implementation, not passive resisters.

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The Chair: Mr. Vellacott.

Mr. Maurice Vellacott: Very quickly, I'm not sure who the person would be in the know here, but I need a quick response to get to the heart of my question. At what stage is the NTI court case right now?

Mr. John Merritt: It's at the very opening stages. We had a 30-day window under the federal court rules to respond to the minister's August 13 decision, and we filed the minimum papers necessary to keep the door open for the court action.

Mr. Maurice Vellacott: When is it scheduled to be heard?

Mr. John Merritt: There's not even a scheduled hearing date at the moment, so it's at the very opening stage.

Mr. Maurice Vellacott: Are there any other court cases pending, to your knowledge, concerning this matter?

Mr. John Merritt: A court case was initiated by a private citizen in Iqaluit earlier this year trying to get an injunction to stop the burning of garbage. I think you heard a little more about that on Tuesday last, when the mayor of Iqaluit was here. The interim injunction was denied, but the judge making that decision allowed for the case to come back on at a date in the future.

Mr. Maurice Vellacott: That's the only other one you're aware of?

Mr. John Merritt: Yes.

Mr. Maurice Vellacott: Okay.

I don't know how the request for the federal court reference is framed, so I guess in responding here to me, you can indicate that. I'd like to know if, in your opinion, the proceedings that will take place will settle the issue of the licensing authority generally, or is it just limited to the Iqaluit licence?

Mr. John Merritt: A judge making the decision in relation to that water licence would have to make a decision effecting all similar situations, so it would answer the question generally.

The Chair: Mr. Tilleman.

Mr. William Tilleman: It was not the board's action. It was the judicial review, and NTI filed that, so I don't really want to speak to that. I can give you my opinion, but I'm not sure that would be helpful.

Mr. Maurice Vellacott: Your filing of it is just in respect of the Iqaluit situation—is that correct? I don't know the words or how it's framed.

Mr. John Merritt: Our decision was prompted by the reality that for the first time in August the minister unequivocally purported to disallow a licence. We said, that's the point at which you've violated the land claims agreement, and we contest that.

Mr. Maurice Vellacott: So even in respect of your requesting this reference, it's a little larger than just Iqaluit.

Mr. John Merritt: The implications are broader, because they go to the interpretation of the power of the board to make licensing decisions without the minister's approval.

Mr. Maurice Vellacott: I would assume that we would appreciate, as a committee, receiving whatever kind of stuff you file with the court, any documents, at present or in the future. I don't know when you can divulge that to other interested parties, but I think we would be interested in those documents, either filed or to be filed, at your discretion.

Mr. John Merritt: We'd be happy to do that. Those, of course, are public record documents, and we'd be happy to work with the clerk to make sure they're available to you.

Mr. Maurice Vellacott: Thank you.

The Chair: Thank you.

Mr. Bagnell.

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

Unnusakkut. I thank you for your briefs. I think they're very good and detailed, exceptional actually. I too am very happy that you brought the youth with you. I hope you're taking them to the House of Commons, maybe for question period today at two. If you have a problem getting in, I could arrange that. You should also go to the Senate, because in our government, as you know, a law has to go through both bodies equally, so it would be a great experience for them.

I think it's a good point that obviously, this law can't be inconsistent with your land claim. On the other hand, I'm sure the department wouldn't have proposed a law they felt was inconsistent, so I guess it will be up to the lawyers to battle that out.

I do have a problem, although it occurs in Canada, when there's regulation by these governments that do not also have the responsibility for taking care of the funding or the costs—I think Nancy alluded to that—and also, in that same line, that enforcement is realistic—I think Ms. Grey referred to that. That's why I have sympathy with the intent of some of this legislation.

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But my question is totally different. One of our previous witnesses suggested—and I think they put in a submission to this effect—that certain stipulations in the Fisheries Act were causing them more grief than even the Water Board. In fact, they were stringent and didn't make sense in the north. There have been other problems across the north with that. They thought the Water Board should actually have the authority to rule on those particular provisions about deleterious substances being put into the water. I wondered what the Water Board thought about that concept.

The Chair: Mr. Tilleman.

Mr. William Tilleman: The Water Board has heard in several hearings from the citizens that they would like the board to be more aggressive in enforcing, for example, under the Fisheries Act, which is a very punitive piece of legislation. It has been the board's response that the enforcement mechanisms do not belong to the board, they belong to the appointed inspectors, pursuant to Minister Nault's authority. So the board has probably disappointed some people by stating that all it can do is what article 13 says it can do, relating to the fact that no one can use water or deposit waste into water. So the board, with respect, has focused only on the land claim, though it has interpreted “waste” consistently with what, I believe, courts have done, and that is broadly. But it has not got into the Fisheries Act or any other piece of legislation for which there are currently duly enacted inspectors and others who have that responsibility by law.

Mr. Larry Bagnell: Yes, where do we stand? What I was after was what you thought of a change in the regime, whereby that authority was transferred to you, as opposed to the regime where Fisheries has it at the moment.

The Chair: Mr. Tilleman.

Mr. William Tilleman: I don't know that I have the experience or authority, or, frankly, the respect, because I'm not a beneficiary and I don't live in northern Canada. I know there are those who would like the board to have expanded powers. All I can do is read the law, and I do that for a living. The land claim, to me, was clear, and it is clear. I do believe that if the inspectors were to enforce the licences of the board, the same result would incur, that is, the integrity of the water. So I don't think there's a need for the change in the legislation. Mr. Kudloo will correct me if I'm wrong. I don't have Mr. Kusugak's experience, I don't have Mr. Eetoolook's experience, so I'm probably the wrong person to answer that question.

The Chair: Mr. Martin.

Mr. Pat Martin: We get a lot of turns in this committee. I like that.

The Chair: Well, we stayed at five minutes. Normally we would reduce the time, but I see that we will have time, so everybody will get a full opportunity.

Mr. Pat Martin: I appreciate that.

To finish up on the question I was asking earlier, I've spoken with our researcher, and I understand that article 13.2 does outline the authority of the Water Board, but the authority was really placed there earlier, and they did have the right to make those rulings. I think we've dealt with that in a satisfactory way, and also perhaps even the fees on water use.

What I'd like to give you a chance to expand on is another question I'd like to ask. In your opinion—and to anyone—why does the wording in the non-derogation clause in this bill vary from the one we usually see in new legislation dealing with aboriginal people, even up to and including the firearms bill. Why does the wording vary from the non-derogation clause that we even see in section 25 of the Charter of Rights and Freedoms? In your opinion, what's the motivation? I understand you want it changed, but why do you think they chose to make this wording different from what we're used to seeing?

The Chair: Mr. Merritt.

Mr. John Merritt: That's the second time that question's been posed to me at a parliamentary committee. Mr. Kusugak and I were giving evidence at a Senate committee hearing a couple of years ago on contaminants, and the same question came to us. It's curious, because we seem to be giving free legal advice to Justice.

Anything we say is, of course, vastly speculative as to what's prompting government people to draft things the way they do. We've never been given a fair rationalization of the shift in the consultative process, so that in itself is frustrating. The origin, of course, of the non-derogation clause is all about giving assurance to aboriginal people, and the use of such a provision is to create some interpretive predictability. So when people start moving the words around, lawyers being the suspicious people they are, people then ask what that means—there must be some significance to that.

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Our first position, of course, is that the folks who advocate the change, particularly change from usage anchored in the Charter of Rights and Freedoms, should come from whatever offices they inhabit and tell you why they're changing the wording. That would be an important first step.

Mr. Pat Martin: What do the people you represent fear is going on here?

Mr. John Merritt: Maybe the motive here is to shift from a statement of intent. If you adopt the charter language of derogation, what you're saying, as parliamentarians, is that you don't want the bill read as diminishing aboriginal treaty rights. You've adopted this new measure in the expectation that it won't change aboriginal treaty rights. We know from case law, from the Sparrow decision on, the courts are saying there may be circumstances when Parliament is justified in infringing aboriginal treaty rights. In a world where we saw the events on September 11 I dare say we can all speculate that there might be circumstances where all rights of Canadians have to give way before some broader public purpose. That's an issue of capacity.

I think what we're seeing in the shift here in wording is that Justice is trying to track the case law, so as to always reserve an argument. Something in a new law may indeed infringe on aboriginal treaty rights, but that's okay, because Parliament was only intending to protect those rights to the extent that the courts compelled Parliament to respect those rights. That's a shift from a statement of Parliament's intentions to one of Parliament's capacity.

We don't challenge Parliament's capacity, but what we invite you to do, as lawmakers, is say it's not your intention in this bill to infringe aboriginal treaty rights. If the people proposing this from the department want you to infringe, we think it's their obligation to identify how and why.

Mr. Pat Martin: Let me then ask, do you think there's anything in this bill that does possibly infringe aboriginal or treaty rights? What would be your worst fear?

Mr. John Merritt: I think paying fees on Inuit-owned lands would definitely be an infringement, but I think you know our views on that particular example. It happens to be a good example, though, so I'd say, yes, there's a situation where we'd invite you to avoid that kind of formulation.

Mr. Pat Martin: We should all be looking to recent decisions like Sparrow. Would you agree that it's the obligation of government to act in more of a trust relationship with aboriginal people, to act as their advocate and representative, rather than, in an adversarial role, to seek to diminish or chip away at aboriginal treaty rights?

I don't need to ask you the same question all the time. Anyone may like to speak about Sparrow.

The Chair: It puts pressure on the chair when you ask a somewhat partisan question and there are only a few seconds left of the five minutes, but I'll allow it.

I give the floor to Mr. Merritt.

Mr. John Merritt: I think the answer is, yes.

The Chair: Thank you.

Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: Thank you.

Actually, my question was also on the non-derogation clause Mr. Martin addressed. Maybe I can also give an opportunity to Jose to answer this question, since he was gracious enough to give his time over to the NTI acting president.

Looking at the non-derogation clause, ITC must have some concerns with the changing of the wording, because as he said in the beginning, they do represent all different land claims agreements in the country that now might have different non-derogation clauses referred to them.

The Chair: Mr. Kusugak.

Mr. Jose Kusugak: We are talking about the Nunavut Water Board in this case, so we want to focus on that. When the Nunavut Tunngavik or Inuit Tapirisat of Canada, being representative of all the different land claimant groups, come to make a presentation to different standing committees, we try to focus on, say, the Nogait parks issue with the Inuvialuit.

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It is important, when we're talking about a non-derogation clause, that we do talk about what happened before the land claims—and that was in your original question. It is important to point out that we always say that the Nunavut Land Claims Agreement shall prevail. Because there are some answers that John gave, for example, where people tend to say, well, we had the authority originally, now what happened? And 1993 did happen. That's why these kinds of presentations and hearings are necessary.

The Chair: Mr. d'Eça.

Mr. Michael d'Eça: Thank you, Mr. Chairman.

ITC has been involved with other statutes and the same non-derogation clause the Department of Justice is wanting to introduce, wanting to replace the charter formulation with this new version over the last couple of years. There's a Species at Risk Act, which is before committee at the moment, Marine Conservation Areas Act, also Bill C-10. And the ITC is extremely concerned—and I think it's already been brought out—that the traditional non-derogation clause, through this wording, has been changed into a crown derogation clause. It's been stood on its head. And it does have deep implications for all aboriginal people, certainly for all Inuit.

Again, there has been a real problem in having government, Department of Justice or the particular department seized with the bill, consult appropriately with aboriginal peoples. We can't seem to get that dialogue going. If I could, Mr. Chairman, just briefly, as it might be helpful for you, before the environment committee the associate deputy minister for constitutional affairs of the Department of Justice appeared, Ms. Dawson. She was asked about the non-derogation clause, because we have suggested strongly that it be changed in that legislation. To illustrate the gap between our perceptions, the associate deputy minister says it's slightly more expanded than the non-derogation clauses that have been used. I really can't go into how it developed into the broader wording, but the effect of the wording is pretty close. Ask any leader of any of the national aboriginal organizations or land claims organizations. That is not so. It has been changed from the non-derogation clause to a crown derogation clause.

Our recommendation follows NTI's. Here we're talking about legislation implementing a land claim, as opposed to more general legislation. You ought to stick with the charter formulation, put that in, and send a strong message to the departments who have authority over these matters: if you want to introduce this in the next set of legislation implementing a land claim, or the next piece of legislation you want to put it in, you ought to sit down and closely consult with the aboriginal peoples affected. The common law says you must do so, and in this case the Nunavut Land Claims Agreement is very clear on the matter.

Thank you.

The Chair: Thank you.

As we head for the home sprint, we'll reduce the time. We'll do as many rounds as we can in 20 minutes, but we'll be doing the next round at three minutes, question and answer.

Mr. Vellacott.

Mr. Maurice Vellacott: I want to quickly react to my colleague across the way, Mr. Bagnell, saying he has a bit of a problem with Nunavut having total say, when most of the costs are paid by others. I would have to say I understand what you're saying. In fact, we, as the Reform Party, were making that point about the cost for this territory, remote, with its sparseness of population—just the realities. So, Larry, I guess I would have to agree, but the act is passed now. That got through. I'm not sure that you can go by the back door now and, in effect, amend that. It is a fact that there are the deficits. It's remote, there's sparse population, the realities, getting stuff up there, and so on. So I'm not sure if this would be an attempt to do an amendment, if you will, in the light of having seen the wisdom of what we were saying as a party at the time, trying to adjust it to say, 90% is paid by others, so we need to exercise some more control. I don't know that you can take that back now.

• 1240

My question, though, to our members here, NTI members in particular, is, have any members of the Surface Rights Tribunal been nominated by NTI?

And then I've got a follow-up question as well.

Mr. John Merritt: I believe the answer to that is, yes, informally.

Mr. Maurice Vellacott: Do you believe that half the appointees to that tribunal should be nominated by NTI, as is the case for the Water Board? Is that what you would hold as an organization?

Mr. James Eetoolook: Yes. We've made the appointments to the Nunavut Surface Rights Tribunal. I believe we have four members.

Mr. Maurice Vellacott: So you feel that half should be nominated by NTI, as with the Water Board?

Mr. James Eetoolook: Yes.

Mr. Maurice Vellacott: What's the rationale for requiring that two members of the tribunal be resident in Nunavut, while the same criterion is not applied in the case of the Water Board? For the Surface Rights Tribunal you have a requirement that two be resident in Nunavut, and that's not a requirement in respect of the Water Board at all.

Mr. John Merritt: I think the reasoning at the time the land claims agreement was negotiated was that with respect to boards where either the Government of Nunavut or Tunngavik is making nominations, you can be confident that the people nominated are going to be residents. With respect to a tribunal, where you don't have the same guarantees, it's very important that there be a level of local representation.

To go back to your last question about NTI's hopes for nominations in the future, I would just make the observation that we seem to, of necessity, spend most of our time trying to implement what's already in the agreement, without the luxury of anticipating the improvements that might some day be made to it.

The Chair: Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chair.

Seeing that you're asking for the addition of the positive interpretation clause, which would... Well, the language I've seen is “this Act shall be interpreted, applied, and administered to implement and give effect to the Nunavut Land Claims Agreement.” Seeing that you're asking for that language, do you feel now that the bill is not really designed to implement the 1993 Nunavut Land Claims Agreement? Do you suspect that's the intention of government in tabling this bill?

The Chair: Mr. Tilleman.

Mr. William Tilleman: I don't believe that is the intent of government. It's almost like with my kids—it's not an issue of intent always, it just happens. Clause 56 is here, and it is inconsistent and, in my opinion, in conflict with the land claims agreement. That isn't the whole bill, but that clause.

If I could request anything of the committee, it would be that they read article 13. It is very short, only about eight pages long. And one of the reasons I have to stick to that... Actually, Mr. Bagnell raised the issue: why not the Fisheries Act, why can't you just do that? And many people have echoed his opinion in the north.

One answer to that is that in the land claim, for example, the Water Board only has jurisdiction over fresh water, not over marine waters. And it's clear in the definitions of this agreement that whoever drafted it—some of the men around this table were there—decided that the Water Board would have jurisdiction over fresh water, not marine waters. And so it cannot get into fisheries issues and marine waters, it simply doesn't have that authority.

So again, from the Water Board's perspective, which is article 13, if you read it and stick closely to that, the intent seems to be clear, especially on the minister's approval authority.

The Chair: Colleagues, article 13 is 6.3 in the red binder you received.

We will have Ms. Karetak-Lindell, and then we will go to closing remarks for three or four minutes each.

Ms. Nancy Karetak-Lindell: Thank you.

• 1245

Thank you for all the information we've received. What these things also do is give an opportunity to people from Nunavut to bring to the attention of everyone that we do want to participate in the country, have a role in the consultations, and have an opportunity to say what measures should be taken so that we have that full participation in the country and the decisions that affect us.

I was a little disturbed to hear the complaints about consultation. I know how difficult it is to get the right communication across, and I take this opportunity to say that with these pieces of legislations that come before the House of Commons, I try very hard to make sure that people who are affected have access to them. What do you feel are steps we can take to improve being part of the consultation? How do we make sure that people who are going to be affected by legislation have access to the consultation part?

I would, I guess naively, think that once a proposed law is tabled in the House of Commons, any resident in the country has access to that bill and an opportunity, through their member of Parliament, to present their views. I ask that, I guess, as a point of information, to say, how do we make sure that people participate in consultations, whether it's a formal invitation through the minister responsible for that legislation or a member of Parliament? How do we make sure people know they can make submissions?

Mr. James Eetoolook: I don't know if I can answer Nancy's question. The way I take it, though, I'll try my best to answer it.

I think consultation is very important when it comes to something like enacting a bill that relates to the Nunavut Land Claims Agreement. I think one of the best consultations is to bring the hearing into the area concerned, such as that of the Nunavut Water Board. I think there would be a lot more people attending these kinds of hearings. That's one way, and I think it's one of the best consultations you'll get, bringing a hearing like this into the area for which the law will be enacted.

We use technology today, so there is the Internet. We are consulting with the people concerned, such as NTI and Nunavut Water Board. I don't know if you can come up with a better consultation than talking to people involved. It's one of the best ways to have the parties involved, parties like NTI, the Nunavut government, and the federal government, when you're drafting a certain act that relates to Nunavut. I think that's one of the best consultations you can name.

I don't know if I've answered your question or not, Nancy.

The Chair: Thank you.

For closing remarks we'll try to keep it around three minutes each. We'll start with Nunavut Tunngavik Incorporated.

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Mr. James Eetoolook: We would like to see the bill enacted through Parliament concerning Nunavut Water Board and Nunavut Surface Rights Tribunal. I think it's very important that the parties be involved when you're drafting such legislation, and I would urge the committee to make sure they include the changes we would like to see.

The stakeholders are very important when they take part. Nunavut is Nunavut, and we will live in it. I think it's very important that any decision that relates to Nunavut be done in Nunavut. With any laws that have to be enacted, the people of Nunavut should take part. This is very important to us.

Also, when interpreting the Nunavut Land Claims Agreement, we should make sure we have the same interpretation. It's really hard for us sometimes when the co-signers have a different interpretation. It is very important that we have the same idea, same goal, and same interpretation.

If we work together, we can achieve a lot. I thank all of you for inviting us to this hearing.

The Chair: Thank you very much.

Now we have the Nunavut Water Board.

Mr. Thomas Kudloo:

[Witness speaks in his native language]

What I said in Inuktituk, I'll state very briefly in English.

I thank the chairman and members of the committee for allowing us to make our presentations. We take our job very seriously, and we hope that you will incorporate, or at least consider, our comments.

Thank you.

The Chair: Thank you very much.

Now we will hear from the Inuit Tapirisat of Canada.

Mr. Jose Kusugak: Thank you, sir.

We will be shortening the name to Inuit Tapiri Canada in the next couple of months, and the Inuit Tapirisat of Canada, we hope, will be known as the Inuit Association of Canada. We have for the last 30 years been focusing on what we're doing in the Arctic and different parts of Canada, 30% of Canada. We're developing a new mission, because we have agreements settled, and the only one outstanding is the one in Labrador. Now we want to focus on getting accepted by the rest of Canada, to partake in what's going on in Canada, and so on.

Mr. Vellacott's asked, how do you take the Northwest Territories language to the Nunavut Water Board language and so on? We have been in my time, with Nunavut Tunngavik, trying to explore the possibility that when legislation and regulations are short enough, they should include certain clauses of the land claims agreement, so that they don't just refer to 3.3, for example, but the language is actually there. It does take an effort to go from a legislation book to a land claims book, and sometimes they're not readily available. So I would encourage that as a possibility.

In closing, we'd encourage you to look at the wording of the Nunavut Land Claims Agreement, to see that the minister does not have any approval over the Nunavut Water Board licensing decisions. The rules are not spelled out in the Nunavut Water Board's case, and they are in the other land claims groups, as in the Makivik agreement and the Inuvialuit agreement of the western Arctic. So where they are, the role of the minister is actually spelled out, and it isn't so in the Nunavut Water Board's case.

Thank you for this time.

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The Chair: I want to thank you all very much. Committee members take this very seriously. I haven't been to too many committees where 15 good questions were asked, and we got through 15 questions. So I commend my colleagues for the seriousness they attach to these issues. I thank you for helping us out with it.

To others, we would like to have the room just for members for an in camera meeting. We would like to be done with our meeting in about five minutes, so I would urge everyone to say some very quick goodbyes. We'll have any discussions outside.

[Editor's Note: Proceedings continue in camera]