Agreed.
Okay. With that we’ll take a short break and when we come back we’ll proceed with Bill 7 and Bill 19.
---SHORT RECESS
I’d like to call Committee of the Whole back to order. Prior to going on break, we agreed to proceed with reviews of Bill 7 and 19. We will start off with Bill 7. Agreed?
Agreed.
Agreed. Alright. The first thing we will do is go to the Minister responsible to introduce the bill. Minister McLeod.
Mr. Chairman, I am here to present Bill 7, Community Planning and Development Act. This new legislation was developed in response to requests from municipal governments, the Northwest Territories Association of Communities, the Local Government Administrators of the Northwest Territories, and professional community planners.
I would like to acknowledge the hard work of representatives of the NWT Association of Communities and the professional planners on our Peer Review Group, who all made important contributions at various stages to the development of this bill.
Community planning can be simple or complex, depending on the needs and desires of the community. Our aim is to have legislation that serves all municipalities, from the smallest to the largest, which enables communities to meet their visions for the orderly development of their municipalities.
Thank you, Mr. Chairman. I look forward to hearing comments from the Members, and answering any questions.
Thank you, Mr. Minister. We’ll now go to the chairman responsible for the standing committee that reviewed the bill to make opening comments on the bill. Mr. Ramsay.
Thank you, Mr. Chairman. The Standing Committee on Economic Development and Infrastructure held public hearings on Bill 7, Community Planning and Development Act, during the months of April and May of 2011 in Yellowknife, Fort Smith, Ulukhaktok, Inuvik, and Aklavik. The clause-by-clause review with the Minister began on May 10, 2011, and concluded on August 15, 2011.
During the May 10, 2011, review of the bill with the Minister, the committee passed a motion to amend the bill by adding a provision stating that nothing in the act shall be construed as to abrogate or derogate from Aboriginal or treaty rights, that anything authorized by the act must be carried out in accordance with land claim agreements where they apply, and that land claim agreements and legislation are paramount in case of a conflict with this act.
Similar provisions are found in other Northwest Territories legislation such as the Species at Risk Act. The Minister did not concur with this amendment and so the bill was not amended. The Minister requested time to seek legal advice on the implications of the amendment.
During the August 15th conclusion of the clause-by-clause review, the Minister advised that direction has been given for the development of amendments to include similar provisions in the Interpretation Act, which applies to all NWT legislation. This legislation would come forward during the life of the 17th Assembly. The committee and the Minister did agree to one minor, non-substantive amendment during the clause-by-clause review of the bill.
Following the clause-by-clause review, a motion was carried to report Bill 7, Community Planning and Development Act, to the Legislative Assembly as ready for consideration in Committee of the Whole as amended and reprinted.
Mr. Chairman, this concludes the committee’s opening comments on Bill 7. Individual Members may have additional questions or comments as we proceed. Thank you.
Thank you, Mr. Ramsay. Would the Minister like to bring witnesses into the Chamber?
Yes, I would, Mr. Chair.
Committee agreed?
Agreed.
Agreed. Thank you. Sergeant-at-Arms, if I could get you to escort the witnesses into the Chamber.
Minister McLeod, if I could please get you to introduce your witnesses into the record.
Thank you, Mr. Chair. I have with me today to my left, Mr. Mike Aumond, deputy minister of Municipal and Community Affairs; Ms. Bev Chamberlin, director of lands administration; and, Mr. Mark Aitken, director of legislation division with the Department of Justice. Thank you.
Thank you, Mr. McLeod. Are there any general comments to the opening remarks? Mr. Krutko.
Thank you, Mr. Chair. I did have issue with regard to the need for the abrogation and derogation clause. I think it’s important to realize that this type of legislation does have an overarching effect on land claim agreements. Lands have been designated for Indian branch lands or IAB lands, better known.
We have reserves in the Northwest Territories. We also have claims that have lands within the specific boundaries that were negotiated in comprehensive claims which are called municipal lands within the confines of municipalities. I think, as we have learned, it’s very difficult to try to imply or basically build a house in the Northwest Territories when it comes to IAB lands or, for that matter, block land transfers in communities to either expand your boundaries which will encroach on land claims lands adjacent to communities or along the boundaries of communities regardless if it’s in the Inuvialuit Settlement Region, 7(1)(a), 7(1)(b) lands, or rural and hinterlands in the land claim areas.
Mr. Chair, I think it’s imperative that we do realize that this legislation will have a direct effect on the land claim agreements, the Indian branch lands in those municipalities and the status that they flow through, through the Indian Affairs branch in Ottawa. We’ve realized through self-government and land claim arrangements that are in place, the Aboriginal people will have land management authorities within those municipalities and the lands they will use for self-government reasons. You can’t be short-sighted to assume we will put this in another act later on.
We are discussing the Wildlife Act in this House, hopefully in the next couple of days. In there, there is also an abrogation and derogation clause. Several other pieces of legislation have come through this House with abrogation and derogation clauses. So the reason that the Minister has given is not comforting to me, the people I represent or the claimant groups in the Northwest Territories. I think it’s very important that we ensure the legislation we pass through this House does recognize the constitutionality of Section 35 with regard to land claims, treaty rights, and Aboriginal rights in Canada.
As a Legislature, we have that obligation and we must ensure that that is implied in whatever legislation we put forward.
Mr. Speaker, I know we gave the Minister the opportunity and the benefit of the doubt to consider such an amendment in the drafting of this legislation and by going clause by clause, but it was refused by Cabinet. I will be requesting that we reinstate that wording at some point.
I would just like to ask the Minister, for the sake of time and consideration, that you do take into consideration all these elements that I’ve raised and mentioned regarding the land claims agreements, municipal lands in communities, IAB lands and a requirement for those lands in communities, if anything happens you have to have a band council resolution which has to be agreed to by the band council to have any activities take place on those lands. Also, that those lands are held with special types of protection under the treaties and under the Indian treaties and under the Indian Act in Ottawa.
I would just like to know why it is that you have not taken those considerations into effect when we decide to pass this legislation.
Thank you, Mr. Krutko. Minister McLeod.
Thank you, Mr. Chair. We did take a look at the proposed motion by the Member back in May and then we have gotten legal advice, and our position is it’s basically telling us we have to obey the law.
My understanding of Aboriginal or treaty rights is they cannot be extinguished or abrogated by a legislative act. I think we all know there are only two ways to extinguish or abrogate Aboriginal or treaty rights, and one is with the consent of the Aboriginal party in the form of a modern day treaty, and the other one is an amendment to the Constitution. So we believe that the Aboriginal land claims are federal legislation and, in our opinion, would take precedence over territorial legislation. There is nothing we can do to abrogate or derogate from the Aboriginal rights. Thank you.
As a land claims negotiator with the Dene/Metis claim process, the Gwich’in, the Sahtu, my main obligation was to do the land selection. Municipal land selections in the Sahtu and the Gwich’in and also in the Dene/Metis claim were a very strategic part of those land claim agreements. Lands were selected in the communities in the Sahtu, in the Gwich’in Settlement Region, for specific special purposes. They were used for rural lands, hinterlands, commercial lands, residential. Again, there was a lot of time and effort put into selecting lands in communities for these type of purposes, so that in the future there will be lands in those communities and there will be certain aspects that will apply to these lands which are unique compared to other lands in the community such as exempted lands from taxes where you don’t have to pay taxes on certain lands if you don’t develop the properties.
With this legislation imposing these plans, whether it’s subdivisions or looking at consideration of a new residential area and imposing that on the claimant groups where they may not have an interest in developing those lands for those particular purposes but not being consulted prior to the plans to be concluded, totally undermines the whole reason for getting lands in communities in the first place through land claim agreements.
The same thing applies to lands in a lot of the communities which still exist by way of Indian branch lands. The Housing Corporation should know, and as the Minister of the Housing Corporation, how hard it really is to get land developed in our communities on IAB lands because of the special and unique status that that land has. You have to get a band council resolution from the particular band by way of a motion to do anything with those lands. Those lands still retain the status of Indian branch lands well over the life of the House.
I think it’s that type of situation we are in here. We can’t lose sight that you are imposing a piece of legislation that would have direct implications on those lands, and those communities and those groups are not the municipal councils of these communities. The bands are not the municipal governments in those communities or regions.
I think it’s imperative that you look at this and also take into consideration, in light of the reasons that I give. Thank you.
Whatever the land claim groups, present or future, settle, we intend to abide by it. We are not proposing to change anything within the land claim groups. It’s just enabling the communities to make these decisions and not imposing on anybody. Thank you.
Again, as we all know, most community planners and people that basically make these decisions don’t come from the communities. Most of the decisions are made at the regional...or Yellowknife on how those plans are going to be imposed and developed. How can you, without having the wording in this legislation, ensure that they take that into consideration and just assume that somebody understands the land claim agreements or somebody understands that you do have the unique situations that I mentioned? So without having the wording in this agreement, you are assuming that hiring somebody from southern Canada and coming in as a lands officer in a community will know that land claims agreements exist. But by mentioning it in the legislation, those rights will have to be considered when you look at the planning act and consider those types of developments taking place when you’re implementing this type of legislation. Thank you.
The department has no more community planners within the regional offices. Most of the community planning is done within the communities themselves, and if they do have someone that they bring from outside the community, I’m sure the community will school them quite quickly on the land claims. Because it’s our intent, and I think it’s been proven in the past, that all departments take the land claims quite seriously and there’s a consultation process that needs to take place in any decisions that may have an effect on the land claims. But again I point out the fact that the land claims are federal legislation and nothing that we do in this act will extinguish any rights at all. Thank you.
Thank you, Minister McLeod. Next on my list is Mr. Beaulieu.
Thank you, Mr. Chair. I just have a couple of questions along the same line of questioning as Mr. Krutko. In the communities what I’m being told by some of the homeowners that are now elders that originally go about to construct their homes on what they’re referring to as treaty land and may be legally called Indian Affairs branch lands but referred to as treaty land, I’m wondering if there was a process at some point where the federal government transferred their lands to the GNWT, and if there was a process, when did this process take place. Thank you.
Thank you, Mr. Beaulieu. Ms. Chamberlin.
Thank you, Mr. Chair. The Member is asking about the process for the transfer of Indian Affairs branch land to the Commissioner. We’ve not had a request for that to happen, especially now with the negotiation of the Akaitcho claim in your area. There has been no discussion about the transfer of Indian Affairs branch land to the community. Thank you.
Mr. Chairman, I have two separate situations where I’m dealing with land, and there’s an elder in a HAP unit that was built on what was essentially her cousin’s land where a unit that was constructed by the Department of Indian Affairs prior to any units being constructed for use by the NWT Housing Corporation. In essence, I’m talking about the Northern Territorial Rental Program, which was actually constructed under a program called Eskimo and Indian Housing. It goes back a long way. These other units were constructed in the late ’50s and early to mid-‘60s and they were homes that were issued to treaty Indians. This home is now considered part of Commissioner’s land, and the elder, although I don’t think she pays taxes, is required to do so. But this is not a tax issue. This is an issue of trying to figure out the process of how that occurred.
I’m just going to give you the second scenario, as well, Mr. Chairman, so that I can have something more recent. I have very recently dealt with a lease, a municipal lease or a land lease or, I’m sorry, maybe it’s a tax. But anyways, the lease or taxes that are paid to the GNWT on an annual basis. However, there was an indication that that unit was sitting on that same piece of land prior to 1980, and the land was then referred to Indian Affairs branch land. I’m just wondering if the department is aware of how that occurred.
Thank you, Mr. Beaulieu. Minister McLeod.
The Member’s questions are valid. As far as the Community Planning Act, I’m not sure how it fits in. To be quite honest, I’m not well aware of the situation the Member is speaking of, but we will have a look at it and see how all this occurred and we’ll communicate that to the Member.
It’s just my concern that when any act is passed that pertains to the town planning and any community planning and development, if it refers to land, then I would like to know that the Aboriginal governments that have not settled land claims yet, as Ms. Chamberlin said, Akaitcho, that they be afforded the full potential for obtaining lands under their land claim within the municipal boundaries and those were referring to those pieces of land as Indian Affairs branch land. But I’m aware that over a period of the last several years or even a few decades, that those lands have slowly transferred from the federal government to the territorial government, and so that the Minister said he would look into it, I am satisfied with that but I just wanted to provide more context to my questions.
Thank you, Mr. Beaulieu. More of a comment for clarification, but I’ll go to the Minister anyway. Minister McLeod.
Thank you, Mr. Chair. In terms of land selection for land claims self-government processes, it’s a separate process. This piece of legislation doesn’t really have any impact or adverse impact one way or the other on that selection process. Through that selection process you can select Crown or Commissioner’s land, so this act is really just around giving the community government some more authorities on how they want to manage which lands they currently have within their boundaries. It doesn’t really have an impact one way or the other with respect to land selection. Thank you.
Thank you, Mr. Aumond. I don’t have anybody else on my list for general comments. What is the wish of committee? If it’s agreed, no further general comments. We will go to clause-by-clause review of the bill. The clause-by-clause review starts on page 9. Clause 1. Mr. Krutko.
Thank you, Mr. Chair. I’d like to move a motion that Bill 7 is amended by adding the following after section 1:
1.1
(1) For greater certainty, nothing in this act shall be construed so as to abrogate or derogate from Aboriginal or treaty rights of the Aboriginal peoples of Canada under Section 35 of the Constitution Act, 1982.
(2) An action or thing authorized by this act must be carried out in accordance with any applicable land claims agreement.
(3) If there is a conflict or an inconsistency between a provision of this act or the regulations a provision of a land claims agreement or legislation approving, giving effect to and declaring valid a land claims agreement, the provision of the land claims agreement or legislation prevails to the extent of the conflict or inconsistency.
Thank you, Mr. Krutko. A motion is on the floor. The motion has been distributed. The motion is in order. To the motion. Mr. Krutko, as mover of the motion.
Thank you, Mr. Chairman. As I stated earlier, the majority of positions I meant, but I think if you take a close look at exactly where you look at the Indian branch lands and the management of those Indian branch lands by bands in our communities. Also in regard to the municipal lands in our communities, there are special arrangements.
I find it kind of odd from the Minister and the deputy stating that they don’t have anything to do with it because it’s a federal land claim agreement. Those municipal lands that were selected through the land claim agreement are in our communities. There are special circumstances that you have to consider in regard to lands in communities, regardless, for public purposes. It’s spelled out in the land claims agreements. It also talks about the area of real property taxes and exemptions of certain property taxes by way of those land claim agreements.
I think also realizing that in any changes to the municipal boundaries, there’s a process that this government has to go through with the land claims organizations communities by way of a special process for expropriation. You have to follow that process. It’s in the constitutional land claim agreement. There’s a process to expropriate lands for public purposes.
The same thing with regard to the land claims agreements where a lot of the IAB lands that exist today, I find it kind of odd that someone mentioned that there was no IAB land swap. The whole idea of land claims is to eventually eliminate IAB for land claims settlement regions and transfer to the Aboriginal governments by swapping out those IAB lands in communities and bringing them under the umbrella land claim agreements. There are certain provisions for taxation, 15-year tax holiday where the federal government will pay those taxes.
Also, like I mentioned, like Mr. Beaulieu mentioned earlier, a lot of these lands that the Housing Corporation built houses on in communities on IAB lands, those lands had to be swapped for other lands in exchange that we release that IAB land under the Housing Corporation units or you told the Housing Corporation to move those houses off those lands. That was the situation in Aklavik, where Aklavik at one time was designated a reserve status. They had a large block land transfer in Aklavik to set up a reserve back in 1958 and that reserve still exists today, and it probably still exists in other communities in the Northwest Territories.
I think it’s imperative that you don’t lose sight of the obligations that we have. By spelling this out in this legislation and having similar clauses that we have in other legislation that were passed through this House in regard to abrogation and derogation, it clearly identifies to the parties that are going to basically implement this legislation that that has to be taken into consideration when you develop such legislation as Community Planning and Development Act so that when you’re doing your planning, when you’re doing your development you realize and contemplate that those activities have to be considered and have to be looked at before any planning can be concluded or also implemented by way of the development act.
With that, I again strongly encourage other Members to support the motion. I think it is needed in the confines of this type of legislation where there is a definite conflict between the municipal governments and the band communities in those communities where those lands, regardless of who’s doing the planning or who’s doing the development, you have to take into consideration these unique situations of lands.
Like I mentioned in regard to the IAB status, that is similar to almost the same status as the reserves in southern Canada. That’s why you have to get a band council resolution every time you try and do something with Indian branch lands from the Housing Corporation to municipal government, or even to a band government where you have to pass a band council resolution. You have to get the legal authority to do any developments on those properties, and I think that you can’t lose sight of that in the confines of this legislation.
Thank you, Mr. Krutko. To the motion, Mr. Ramsay.
I must say I applaud the tenacity of my colleague from the Mackenzie Delta on this issue. I will support his amendment that he’s bringing forward today.
I remember back to the committee meeting and I know the government is going forward with a way to be more consistent in this area with the Interpretation Act that’s going to come into play during the life of the 17th Assembly. I think we have to be consistent. We’ve dealt with other pieces of legislation that have this clause in it. I see nothing wrong with adding this amendment. I always say, better safe than sorry.
I’m going to support my colleague from the Mackenzie Delta in this amendment.
Thank you, Mr. Ramsay. To the motion, Mr. Bromley.
I find myself agreeing with the Minister that there should be no reason to include this clause in this piece of legislation. The land claims legislation, the settlement legislation has these clauses in it, and it’s clear that that is the law and we know that it takes precedence over all other legislation. Unfortunately, although the Minister has suggested, I believe, that we put this in the Interpretation Act and therefore there would be even greater clarity if it was needed, the government has been totally inconsistent in applying this clause in their legislation. So we find it lacking and proposed to be lacking in this legislation at the same time that they’re bringing forward legislation before this House right now where the clause is included. This sort of inconsistency makes me realize that the greater certainty is not there, because they have not shown that it’s a certain thing by including it in some and others not in legislation before this House today.
I think a big part of it is Mr. Krutko’s point as sponsor of this motion, that people who are actually fulfilling this legislation will not be aware of this background legislation that does take precedence in every case, and that’s the certainty we’re looking for here. I think the government has had a responsibility and has failed in bringing a broad understanding by both the bureaucracy and the public, and to some extent the Aboriginal governments. I make the same complaint in bringing the same degree of understanding to their constituents, their beneficiaries about this legislation.
Certainly the general public was never included in either the land claims negotiations or its implementation and they are finding out about this piecemeal. As a result, there’s a lot of unnecessary strife because they simply are not aware.
This, of course, highlights the need for courses both for the beneficiaries, obviously by Aboriginal governments, but certainly for the public and civil service by this government. There have been I know the odd ones here and there, but we need a comprehensive and consistent program there to ensure that our employees are aware of this legislation as they fulfill their duties.
I do agree with the Minister there should be no need for this clause. I think putting it into the Interpretation Act would be a good solution, once these concerns have been taken care of.
So given the inconsistency gaps and deficiencies I’ve noted, I support this motion while suggesting the government begin raising awareness of land claims law, followed by putting this clause into the Interpretation Act, as has been suggested, and removing it from its seemingly random use in legislation, again aiming for that consistency that is required. I will be supporting the motion.
Thank you, Mr. Bromley. To the motion, Mr. Menicoche.
I believe that, like my colleagues have previously indicated, there are other pieces of legislation that do have this clause and I don’t see why it shouldn’t be in here. I could be corrected, but I don’t think the Minister disagreed either. He’s just saying wait until later. Unfortunately, we’re late into our government and any guarantees for the 17th Assembly is not guaranteed either, because priorities change, et cetera. For myself, as well, overarching legislation to have this clause to affect all the other clauses can be done, and I certainly look forward to that. However, I believe that the point of power is in the moment and we do have an opportunity to include this, so I certainly support the concept and I will be voting in favour.
Thank you, Mr. Menicoche. To the motion, Mr. Beaulieu.
I, too, will be supporting this motion. I think that if it gives comfort to the individual land claims negotiations people that are concerned that sometimes we would pass an act in the House here that could adversely affect their ability to complete negotiations, then that’s something that we want.
This is something that provides clarity and, as it says in Clause 3, if there’s a conflict, then this is a good way to resolve the conflict, and it’s also consistent with some of the other acts where we’ve included this clause. I will be supporting the motion.
Thank you, Mr. Beaulieu. To the motion, Ms. Bisaro.
My comments are very similar to those that my colleagues have already expressed. I, too, believe that this clause is probably not necessary, but until we have the proposed amendment to the Interpretation Act passed through this House so that we have a clause which is consistent and which covers all of our legislation, I feel that it is only fair that we include it in this particular act as a whole.
I am struck by the response of the Minister and Cabinet relative to this particular suggestion that they have denied including these clauses in this act but have seen fit to include it in the Wildlife Act which is before the House. That doesn’t make sense to me. I do support having a blanket application of this clause in the Interpretation Act and I think at the time that that amendment to the Interpretation Act takes place, that we should also make amendments to every act that we have and remove it from all the acts that we do have, so, as is pointed out by the Minister, we have a consistent application of the intent of these clauses. I think it specifically needs to be here, as well, because community governments will use this act in their community planning and development.
There’s a sad lack of education of the NWT residents on the impact that land claims negotiations has. Many of our community government staff and/or councillors may not be fully aware of the implications of a land claims agreement. The fact that this clause is in the act, if they are looking at the act for specific information relative to community planning and development, they will then be...it will be highlighted for them that they need to also look at land claims agreements to make sure that they’re not contravening something which has already been established in a land claims agreement. Until the Interpretation Act is amended and we have these clauses in the Interpretation Act so that it applies to all of our legislation across the GNWT, I support adding it to this particular bill.
Thank you, Ms. Bisaro. To the motion, Mr. Yakeleya.
The amendments that Mr. Krutko brought forward seem to be in order. It seems to, for myself, give some clarity to the Community Planning and Development Act; some certainty.
Without question, when this act comes into force, the community planners not only in municipalities but Aboriginal governments are clear on where they stand. The interpretation of this amendment for myself, I’m of the opinion of the comments by Mr. Menicoche is the 17th I’m not too sure if there’s going to be or how the interpretation issue will be handled with this specific wording. Today we have the ability and power to make these changes today and not leave it up to fate in the 17th. So that’s my comments, Mr. Chair, and I will be supporting the amendment.
Thank you, Mr. Yakeleya. Next on my list, Mr. Roland.
