Thank you, Mr. Speaker. Your Standing Committee on Economic Development and Infrastructure is pleased to provide its report on the review of Bill 6, Species at Risk (NWT) Act and commends it to this House.
The Standing Committee on Economic Development and Infrastructure is pleased to report on its review of Bill 6, Species at Risk (NWT) Act.
Bill 6, Species at Risk (NWT) Act, set out the processes to identify, protect and recover species at risk in the NWT. The proposed act will apply to any wild animal, plant or other species managed by the Government of the Northwest Territories. It will apply everywhere in the NWT, on both public and private lands, including private lands owned under a land claims agreement.
Bill 6 received second reading in the Legislative Assembly on October 24, 2008, and was referred to the Standing Committee on Economic Development and Infrastructure for review. The review process began on January 19, 2009, with opening comments from the Minister of Environment and Natural Resources. The committee then conducted public hearings on Bill 6 in the following communities:
Yellowknife on March 30 and April 6, 2009
Dettah on March 30, 2009
Fort Resolution on March 31, 2009
Fort Smith on April 1, 2009
Fort Simpson on April 2, 2009
Fort Providence on April 3, 2009
Norman Wells on April 7, 2009
Tulita on April 8, 2009
Inuvik on April 9, 2009
A list of persons and organizations which participated in the hearings is attached at Appendix A. In addition, several organizations submitted written comments to the standing committee. The written submissions are included in Appendix B. This report reviews the concerns identified through the public review and provides information about the views of the standing committee.
In 1996, all provincial, territorial and federal governments responsible for the management of wildlife agreed in principle to the National Accord for the Protection of Species at Risk. Under the accord, jurisdictions agreed to work together to provide effective protection to all species at risk in Canada and to help those species recover. The accord includes a number of commitments, including a commitment by each jurisdiction to put legislation and programs in place to protect species at risk. The Government of the Northwest Territories signed the accord in 2004.
The federal government passed its Species at Risk Act in 2003. The federal act establishes a process to assess and list species at risk at the national level, including migratory birds, fish and marine mammals. If a species is listed as threatened or endangered under the federal legislation, protection measures apply immediately anywhere in Canada. The federal government has management authority for fish and migratory birds, wherever they occur, as well as management authority for wildlife in national parks, migratory bird sanctuaries and national wildlife areas. Federal protection measures include automatic prohibitions against the killing, harassing, harming, buying, selling or trading of any threatened or endangered species and protecting its residences.
Territorial and provincial governments are responsible for managing other species such as land mammals, amphibians, reptiles, non-migratory birds and insects. Under the federal Species at Risk Act the appropriate jurisdiction is responsible for providing protection to species that are listed at the national level. It also contains a safety net provision whereby if a jurisdiction does not provide effective legal protection, the federal government must step in to protect the species.
At this time I’d like to pass the floor over to my deputy chair, Mr. Jacobson, to continue with the report.
Thank you, Mr. Ramsay. The honourable Member for Nunakput, Mr. Jacobson.
Thank you, Mr. Speaker. Thank you, Mr. Ramsay.
Initial consultation on the Species at Risk legislation began in 1999 in conjunction with consultations on the proposed Wildlife Act. During this initial phase the land claims organizations advocated for a direct role in the drafting of the legislation to ensure that the rights, roles and responsibilities of the cooperative wildlife management processes established under the various land claims agreements were properly addressed.
The Government of the Northwest Territories agreed to an inclusive process for drafting the species at risk legislation that involved the four land claims organizations, the co-management boards and their legal counsel. In 2005 the Species at Risk Working Group was established. They collaborated with Environment and Natural Resources staff in the drafting of the legislation. The working group membership included the Joint Secretariat, the Wildlife Management Advisory Committee, the Gwich’in Tribal Council, the Gwich’in Renewable Resources Board, the Sahtu Secretariat, the Sahtu Renewable Resources Board, the Tlicho Government and the Wek’eezhii Renewable Resources Board. The aboriginal groups with unsettled lands claims -- the Akaitcho Territory Government, Deh Cho First Nation, Northwest Territory Metis Nation, and the North Slave Metis Alliance -- were invited to the working group as observers but declined to participate. They did not want to have the process influence their land claim and self-government negotiations.
The Minister of Environment and Natural Resources tabled a draft Species at Risk (NWT) Act in the summer of 2008 for public review and comment. Revisions were made to the draft based on comments received from aboriginal organizations, wildlife organizations, industry representatives and the general public. The Minister then introduced Bill 6 in the Legislative Assembly in October 2008.
During the public review, standing committee members heard from the four members of the Species at Risk Working Group. The working group membership included the Joint Secretariat, the Wildlife Management Advisory Committee, the Gwich’in Tribal Council, the Gwich’in Renewable Resources Board, the Sahtu Secretariat, the Sahtu Renewable Resources Board, the Tlicho Government and the Wek’eezhii Renewable Resources Board. All endorsed the proposed legislation and spoke of its importance in strengthening the wildlife protection goals under the various land claims and self-government agreements.
Eddie Erasmus, director of the Tlicho Government’s Lands Protection Department and working group member, told committee members it was necessary to establish a unique system for protecting and managing species at risk in the NWT because land claims and self-government agreements have established new responsibilities, rights and obligations for managing all wildlife. Because of those constitutionally protected agreements, it is not possible for any one party acting in isolation to conserve species that may be at risk. Instead, aboriginal governments, co-management bodies and the governments of the NWT and Canada need to work together in a cooperative way to achieve those important objectives.
Mr. Baryluk, resource management coordinator for the Inuvialuit Game Council, told committee members, while it may have taken a while to get here, we believe that the additional time taken has resulted in a draft bill that gives consideration to all the necessary aspects of the various land claims provisions and co-management processes that currently exist in the Northwest Territories. The participation of the land claims organizations at the table while the bill was being drafted produced a stronger bill that the Inuvialuit Game Council can feel comfortable supporting.
Mr. Speaker, I’d like to pass the report on to my colleague Mrs. Groenewegen.
Thank you, Mr. Jacobson. The honourable Member for Hay River South, Mrs. Groenewegen.
Thank you, Mr. Speaker. Thank you, Mr. Jacobson.
Many people who participated in the public hearings raised concerns about whether the federal Species at Risk Act would supersede the proposed NWT legislation. For species in the NWT that are listed under the federal legislation, the Government of the Northwest Territories must show that its laws are providing effective protection for those species. The Species at Risk (NWT) Act will establish the mechanisms to assess the status of a species at the territorial level -- which could differ from the national level -- identify the threats facing the species in the NWT, and identify what actions are necessary to protect, conserve and recover that species. This would fulfill the NWT’s commitment under the national accord and meet the obligation to provide effective legal protection.
It will also allow for the assessment of species that may be at risk in the NWT but are not at risk nationally, and provide the appropriate protection and conservation measures to address threats in the NWT. The proposed NWT legislation will also provide protection to species at risk in the NWT in a manner that recognizes the unique circumstances of wildlife co-management in the NWT.
Throughout the standing committee’s public review process, many questions were raised by presenters about how aboriginal and treaty rights were protected under the proposed legislation. The committee members are confident that the proposed legislation makes the paramountcy of aboriginal and treaty rights over the legislation clear. Clause 2 of the bill ensures that aboriginal and treaty rights cannot be infringed upon by the Species at Risk (NWT) Act. The act also makes it clear that if there is an inconsistency between the act and a land claim agreement, the provisions of the land claim agreements prevail to the extent of the inconsistency. In addition, the preamble to the act also specifically recognizes the constitutional duty of the Government of the Northwest Territories to consult with aboriginal peoples.
Under the act, aboriginal groups with unsettled land claims are not recognized as management authorities because they do not have the same accountabilities established with respect to species management until their land claim or self-government agreement is settled. However, the preamble of the act recognizes that “future agreements with aboriginal peoples whose land claims are not yet settled are likely to address authorities and processes for the management and processes for the management and conservation of species” which thereby allow for a future role as a management authority. However, whenever the interests of these groups are affected, the Minister is bound to consult and accommodate as established in current case law and under section 35 of the Constitution Act.
Management of wildlife resources in the Northwest Territories is shared by three levels of government -- federal, territorial and aboriginal -- and by co-management boards established by land claims agreements. The protection, conservation and use of wildlife resources in the NWT are also bound by case law and aboriginal and treaty rights.
The proposed species at risk legislation establishes a Conference of Management Authorities which will set out a formal process of collaborative decision-making among co-management boards established under land claims and self-government agreements and the Governments of the NWT and Canada which will guide the identification and management of species at risk.
Members of the Species at Risk Working Group who made presentations to standing committee see the concept of the Conference of Management Authorities as the best approach to accommodate the complex decision-making that would be required for species that cross boundaries of two or more land claim areas and allow for coordinated action among the various wildlife co-management structures that exist in the NWT.
The standing committee members agree with the proposed structures to manage and assess species that may be at risk in the NWT. The conference builds on the existing co-management processes and authorities established for wildlife management in the NWT.
Thank you, Mr. Speaker. At this time I would like to turn it over to my colleague from the committee, Mr. Krutko. Thank you.
Thank you, Mrs. Groenewegen. The honourable Member for Mackenzie Delta, Mr. Krutko.
Thank you, Mr. Speaker. The proposed legislation also establishes a Species at Risk Committee (SARC) to assess the biological status of species that may be at risk in the NWT. This assessment would be based on traditional, community and scientific knowledge of the species. The committee would include members appointed by co-management boards and members from areas without settled land claims, who would be appointed by the Minister. Members of SARC would have significant traditional, community or scientific knowledge about northern species and would act independently from their appointing agencies. SARC would make recommendations on the listing of species and on conservation measures for the consideration of the management authorities. SARC will not consider socio-economic effects in its assessment.
The standing committee heard from industry representatives that the SARC should consider socio-economic effects in its species assessment reports. Under the proposed legislation, socio-economic effects, along with biological status of the species and results from any required consultation are considered by the Conference of Management Authorities when attempting to reach a consensus agreement on listing.
The standing committee members agree with proposed legislation which focuses on the biological status of that species based on the best available traditional, scientific and community knowledge. This provides a foundation on which the Conference of Management Authorities can then consider other issues that may be impacted by listing and protection measures, including socio-economic effects.
Other presenters questioned how efficient these structures will be in carrying out their prescribed responsibilities. They were concerned that the process could lead to significant delays in identifying species at risk and in establishing management and recovery plans.
The standing committee members recognize that the proposed timelines for the various processes under the proposed legislation are lengthy and in some cases can be extended. In order to address this issue, the legislation proposes that if the Species at Risk Committee recommends that a species should be listed as being at risk, the species is considered a “pre-listed” species and conservation measures can be put in place immediately. The standing committee is satisfied that this will provide the necessary protection measures for species at risk until a final management plan or recovery strategy is approved and implemented.
The standing committee recommends that the government should closely monitor these costs and implement ongoing evaluation measures to ensure the process operates efficiently and in a cost-effective manner.
The standing committee also recommends that the Minister should review the implementation plans for the Conference of Management Authorities and the Species at Risk Committee with the standing committee.
With that, I would like to pass it on to Mr. Bromley.
Thank you, Mr. Krutko. The honourable Member for Weledeh, Mr. Bromley.
Thank you, Mr. Speaker. The proposed legislation will not contain a list of species at risk in the NWT when it comes into force. Rather, species designated at risk in the NWT under the federal species at risk legislation will be assessed under the processes established in the NWT legislation.
Committee members heard from a delegation of polar bear hunters who described the impact on their livelihood that occurred when the USA designated polar bears as “endangered”. They all acknowledge that there have been negative impacts on the bears over the years; however, they believe the bear population remains relatively healthy. They felt that traditional knowledge was often overlooked in assessments of species’ health. They stressed the need for a balance between scientific and traditional knowledge when assessing species that may be at risk. They support the broad conservation goals that are at the heart of the species at risk (NWT) legislation and believe that appropriate management plans can address the need to both conserve species while at the same time support local economic activities.
Committee members heard from many others who wanted assurances that traditional knowledge would be included in a meaningful way throughout the assessment, listing and recovery processes. Committee members agree that the inclusion of traditional knowledge can improve a species’ assessment and supply much of the information needed for such an assessment when combined with scientific information. More importantly, the inclusion of traditional knowledge supports the meaningful involvement of aboriginal people in species conservation, which may improve local-level acceptance of a species’ status and associated recovery programs.
The standing committee recommends that a series of protocols and guidelines for the collection of aboriginal traditional knowledge be developed to support its inclusion in the assessment and protection measures of species that may be at risk in the NWT.
Given the importance of migratory birds and fish to NWT residents and to the biodiversity on which the northern ecosystem depends, committee members wanted to know why the Department of Environment and Natural Resources excluded them from the proposed NWT legislation. Departmental representatives indicated that in 2002, during the preparation and review of the legislative proposal for the Species at Risk Act, concerns were raised about the GNWT taking on responsibility for costs or activities associated with species under federal jurisdiction, namely migratory birds and fish. The department was given direction that the bill should not include any provisions that would in any way provide the GNWT with responsibility for fish or migratory birds.
The proposed act does enable the Minister to make an agreement with the Government of Canada to assess, but not list, the status of fish and migratory birds in the NWT. This would allow the Species at Risk Committee to assess the biological status of federal species that are not listed under the federal Species at Risk Act or are listed in a category that a co-management board considers inappropriate to their risk in the NWT. The assessment would be provided to the appropriate co-management boards and the federal government, with no obligation on the GNWT to take further action.
The standing committee recommends that the inclusion of fishes and migratory birds in the Species at Risk Act be undertaken as consequential amendments to the new Wildlife Act.
Now I will pass it along to my colleague, Mr. Ramsay. Thank you, Mr. Speaker.
Thank you, Mr. Bromley. The honourable Member for Kam Lake, Mr. Ramsay.
Thank you very much, Mr. Speaker. Thank you, Mr. Bromley. Questions were raised by a number of presenters on the sections of the act relating to habitat conservation provisions and the designation of habitat on private lands (s.79 and s.81). These concerns were primarily focused on whether the Minister could act unilaterally to designate habitat and how the rights of landowners were protected.
Departmental representatives explained that section 79 gives the Minister the authority to put forward regulations to protect habitat that is important to the conservation of any listed or pre-listed species. These regulations would be specific to the requirements of the particular species at risk and could require actions be taken to conserve habitat or prohibit activities that could negatively affect the habitat or restrict the use, access or activities in the habitat area. The legislation also enables the Minister to enter into an agreement with a landowner for the purposes of habitat conservation. As a result of the agreement, the Minister may exempt a landowner from certain regulations prohibiting activities that would affect a listed species. The intent of this provision is to provide options and flexibility to landowners to conserve habitat without having regulations imposed on them and is intended as a way to promote stewardship.
In section 81, where there is an issue of potential designation of private lands, the Minister is obligated to make reasonable efforts to enter into an agreement with a landowner (s.81(1). Habitat can only be designated on private land if:
it is essential to the survival and recovery of the species and designation is necessary for conservation of the species and its habitat, and
there is not enough public land to meet these needs.
If private land is the only choice, the Minister must consult with the owner of the lands before recommending designation. The Minister must also make reasonable effort to enter into an agreement with the owner regarding the impacts of designation, including mitigation of negative impacts resulting from designation and compensation to the owner for economic loss. Only if the Minister and owner cannot come to an agreement would the Minister refer to regulations (which have yet to be developed) to provide compensation.
The standing committee acknowledges the difficulties involved in these types of arrangements and supports the approach identified in the legislation.
Under the proposed legislation, there are some exemptions built into the legislation, particularly those that are necessary for human health and safety. If regulations are made to prohibit possession of a species of risk, there are also exemptions for people who possessed the species before the regulations were made and for a person who uses a species for aboriginal ceremonial, medicinal or cultural purposes.
Of particular concern to some presenters at the public hearings was section 83 (b) that describes the exemption for a person who uses a species for aboriginal ceremonial, medicinal or cultural purposes. Committee heard presenters who felt that the use of the word “persons” was too broad and recommended this exemption should be limited to aboriginal persons.
The standing committee proposed a motion to amend the wording of this clause in the bill. The Minister supported the change.
Stewardship of the land is a fundamental value of aboriginal people and shared by many other residents of the Northwest Territories. They recognize that the use of the land and its resources and the stewardship of those resources have always been linked. Frank Andrew, chief of the Tulita Band, told committee members that “aboriginal people depend on and value the plants and animals and understand our relationship with them. We have effectively managed and protected the land for years because it is so important to our survival.”
In every community committee members visited during the public hearings into Bill 6, the importance of stewardship of our natural resources was reinforced. People clearly recognized that the ultimate purpose of the proposed legislation is to prevent native species from becoming extinct in the first place.
Committee members proposed in a motion that the preamble to the act be changed to include a statement that conservation of species at risk is part of a larger commitment to maintain the biodiversity of the NWT and that all residents of the NWT have a shared responsibility for species conservation and protection. The Minister concurred with the motion.
The standing committee members understand that regulations will be made on a case-by-case basis to make sure they are appropriate for the species and the specific threats it may face in the NWT.
The standing committee recommends that the Minister should use a process which supports the involvement of key stakeholders and consultation with all interested parties during the development of regulations related to this law.
The Standing Committee on Economic Development and Infrastructure thanks all the individuals and organizations who shared their views at the public hearings or provided written submissions. The committee members also thank the Minister of Environment and Natural Resources and the numerous departmental representatives who attended hearings and prepared briefings. Committee members acknowledge that this legislation marks a critical milestone in the recognition of the joint responsibility that the GNWT and aboriginal governments share for wildlife management. The standing committee hopes that this legislation has provided a successful model to move forward with the renewal of the Wildlife Act.
The clause-by-clause review of the bill was held on May 27, 2009, in Yellowknife. At that time, the committee proposed two motions to make amendments to Bill 6, based on the committee’s review and feedback from the public hearings. The committee also considered and approved four minor amendments, clarifying the wording of the affected clauses. The Minister of Environment and Natural Resources concurred with the six motions. The bill was amended, reprinted and returned to the Legislative Assembly for third reading.
Mr. Speaker, that concludes the Report of the Standing Committee on Economic Development and Infrastructure on the Review of Bill 6, Species at Risk (NWT) Act.
