Thank you, Mr. Chair. I move that Bill 38 be amended by adding the following after subclause 98(2):
(3) The Minister shall give notice of any proposed new or amended regulations to be made under this section to Indigenous governments or organizations in the Northwest Territories and relevant renewable resource boards and land use planning boards or bodies, at least 30 days before those regulations are made, and shall
(a) provide an opportunity for those Indigenous governments or organizations, renewable resource boards, and land use planning boards or bodies to present their views to the Minister; and
(b) consider, fully and impartially, any views presented under paragraph (a).
Thank you, Mr. Chair.
Thank you, Mr. Testart. There is a motion on the floor. The motion is still being distributed. Do all Members have a copy of the motion? The motion is in order. To the motion. Mr. Testart.
Okay, thank you, Mr. Chair. This motion is one of two, but I will just speak to this one. It is an amendment, a motion to amend the bill. This is a notice in consideration of new or amended regulation.
What this says is, if the Minister is going to implement new regulations, 30 days before they are made, those regulations are shared with Indigenous governments, renewable resource boards, and land use planning bodies or boards, and those groups are allowed to present their views to the Minister, and the Minister should consider them. It does not require the Minister to consider them. It does not require the Minister to delay implementation of regulations if there is no feedback provided. It just requires formal notice within 30 days. That, I think, is a very reasonable compromise from what the Indigenous organizations, the IGOs, were asking for, which was full co-drafting of regulations, so no regulation-making authority without their explicit cooperation and consent.
That is not what is being proposed here. It's a much more modest proposal that just requires that everyone who co-drafted the legislation is left in the loop when regulations are made. You know, I anticipate a lot of debate, and we will hear people speaking, my honourable colleagues saying that this limits the Minister's ability to act, that this impedes the relationship with Indigenous governments, more that we have heard today. I want to be very clear that Indigenous governments have asked for a similar provision to this, and, again, in no way does this put any limitation on what the Minister can put into regulations. It is a notice period, and it is a very reasonable and modest proposal.
Again, what we heard and what struck me most about this process, because I was somewhat hesitant to embrace co-drafting until I saw it work, I believe in the supremacy of this institution, the supremacy of parliaments as they are representative of a people. However, the devolution agreement has opened up my eyes to something very important, that for many years Indigenous people have not felt like they are participants in the laws of the land. They had their own traditions and laws dating back to time immemorial, and the laws of Ottawa or the laws of Yellowknife or the laws of Edmonton or whatever provincial capital are not necessarily the laws of Indigenous peoples.
Having an opportunity to bring them to the table to cooperatively develop this legislation I think was one of the most powerful moves that the GNWT has made in the post-devolution era and in the era of reconciliation, and it speaks much louder to those principles than I think any provincial or federal government has done before. I want to see this process continue because no one criticized it. They criticized some of the products of the process, but everyone said: this process must remain; it must be strengthened.
We have asked the Minister about how he intends to deal with regulations. I don't think the Minister is blind to these concerns. All we have is a commitment to go back to the intergovernmental council and do a post-mortem, a lessons learned, and then come up with something. We do not know if that is going to be formal process, an informal process, a policy direction. We are not sure what it is. That kind of uncertainty for a mechanism that has been developed in good faith between government-to-government relationships, that really speak to the core value of reconciliation and has realized reconciliation, we have to keep going with that. We cannot risk it to chance.
The other problem is the intergovernmental council does not represent all of the co-drafters who put Bill 38 together, so, to ensure that their interests, as well -- and they all spoke to the process being very conciliatory. We had people, Indigenous organizations, who have taken the GNWT to court on multiple occasions say: this is working; this is a good process, and we are very happy with it.
Seeing that sea change, it's important to, I think, everyone who is taking reconciliation seriously, so I do commend the government for doing that, but I think we should open up a pathway in law that clearly respects those principles. Again, this amendment does not limit the government's ability to make regulations. It is a duty of notice and nothing more than that, and I think it shows respect for our Indigenous co-drafters, respect for our constitutionally entrenched co-management boards and bodies, and is an improvement that shows we are walking the walk and not just talking the talk when it comes to reconciliation. Thank you, Mr. Chair.
Thank you, Mr. Testart. To the motion. Mr. O'Reilly.
Thanks, Mr. Chair. I don't want to rehash what's in the dissenting opinion, but we did receive written submissions from the following Indigenous governments, specifically asking for an opportunity to be involved in the co-drafting of regulations under this bill and others in some cases: Dehcho First Nations, Dene Nation, Gwich'in Land Use Planning Board, Gwich'in Renewable Resources Board, K'atlodeeche First Nation, North Slave Metis Alliance, Northwest Territory Metis Nation, Sahtu Renewable Resources Board, Sahtu Secretariat Incorporated, Tlicho Government, Wek'eezhii Renewable Resources Board.
They all suggested, and in some cases very specific, wording that they wanted to see included in this section of the bill to ensure that they were involved in the co-drafting process of regulations moving forward, so, when we talked about this at committee, there were no other ideas about how to do this. The only idea that came forward was what is offered here, which is not even full consultation. This is at least an effort to provide notice. Even if there were to be developed a consultation process in the future, which I hope there would be, this would not take away from that in any way. This sets the floor. I think that it's a reasonable compromise, and I look forward to hearing what the Minister has to say about this.
We have yet to hear a clear and unambiguous commitment from the the Minister moving forward on how the Indigenous governments are going to be involved in the development of the regulations. If I had that clear commitment from the Minister, we wouldn't need to do this, I don't think. I think then our government would be living up to and honouring the devolution agreement, Indigenous rights, reconciliation, and so on, but we don't have that clear and unambiguous commitment from the Minister.
Now, we did hear evidence from the Sahtu Secretariat Incorporated that the Minister of Industry, Tourism and Investment has actually developed draft language for some kind of an agreement moving forward for how Indigenous governments would be involved in the development of regulations under the post-devolution legislation that his department has proposed, the Mineral Resources Act and the amendments to the two petroleum bills, as well. So I find it curious that we have one department, from the evidence that we have before us from Sahtu Secretariat Incorporated, saying, "We are prepared to enter into some kind of are agreement and arrangement moving forward where Indigenous governments are going to be involved in making regulations," but we have a different Minister, Environment and Natural Resources, who has said so far that there will be a pre-consultation assessment and that, in this lessons learned process, there will be discussion of how Indigenous governments may be involved in regulation-making move forward. That is not the same sort of commitment we are hearing that the ITI Minister has made, so there seems to be a bit of a disconnect there.
I would hope that we can start to at least set the floor for how Indigenous governments, co-management bodies are going to be engaged and involved moving forward. This does not preclude or take away from any agreement that they may reach on full consultation, but this sets a minimum floor of a duty to provide notice. Thanks, Mr. Chair.
Thank you, Mr. O'Reilly. To the motion. Mr. McNeely.
Thank you, Mr. Chair. In recognition of the clock here, also, that is ticking away, I will just mention in the pre-devolution area over the years and the post-devolution area, we are at a milestone developing this post legislation here which really, really reflects a system that is and has been through the engagement session.
Now, to tweak what is existing, I think that this is kind of where we are at, when I look and hear some of the comments being made. It may not be the perfect system here on the post-devolution side of things, but it gives us identification for where room for improvement can be sought.
In the case of the Sahtu secretariat, what is really stopping that organization from going back to the IGC and saying, "Okay, right here, this is my recommendation on improvements to the existing system so that it is more effective"? We can say, "Okay, here is notification." What is notification? "I haven't been notified," or "I want you to notify my co-management structure within the Sahtu land claim." Could that be a phone call? Could that be an e-mail? Could that be a fax? There are a number of identification ways to ensure that, but to legislate that, I think, gets to the point where it doesn't give a lot of flexibility to the government to move in that area of reconciliation, which I think is the overall goal. Otherwise, we won't have an area of pre-devolution and a strengthening process of administration moving forward in a post-devolution area. This is kind of a timely process as we are going through modernization of land claims.
I just summarized all that up here. I am satisfied with the current system, the status quo, and I don't see myself supporting this motion. Thank you, Mr. Chair.
Thank you, Mr. McNeely. To the motion. Mr. Nakimayak.
Thank you, Mr. Chair. As I look at this, as I did the other day, I look at the amendment on (3) where it says, "The Minister shall give notice of any proposed or new amended regulations to be made under this section to Indigenous governments or organizations."
Mr. Chair, I believe NGOs do great work. I work a lot with them nationally and internationally. To me, this is very dangerous. Land claims groups have fought and sweat for years, for generations, in negotiating their land claims and to see the possibility of NGOs having the same power as land claims groups that are not even signed yet, to me, that is dangerous, and it is encroaching on the rights of Indigenous people, where this bill is proposing to work with Indigenous people. For me, I do not accept that.
Mr. Chair, I am just going to use an example with the Arctic Council. All of the Arctic states are voters at the Arctic Council, and NGOs and other non-Arctic states are observers at the Arctic Council. That model works effectively, and that is based on consensus government. Here we are with a consensus government. I think that we need to follow suit and continue that.
To me, Mr. Chair, this has too much control, and it is sort of a slap for all of the hard work that Indigenous governments are working towards for their own self-determination today. I will say this and similar things to the next proposed motion, but for those reasons, Mr. Chair, I will not support this amendment. Thank you.
To the motion. I will allow the mover to close debate. Committee, we are on a tight timeline, so if you want to speak, please get your hand up quickly. Minister McLeod.
I do respect the timeline, but I also respect the process. This is an important piece of legislation, and we should be able to do due diligence.
The absence of any explicit reference to engaging or collaborating with Indigenous governments or organizations in the development of regulations for the Protected Areas Act should not be taken as a lack of commitment by the GNWT to meet its obligations to consult with IGOs, IGOs, IGOs and its commitment to collaborating with Indigenous governments and organizations.
The Intergovernmental Council has undertaken a lessons-learned process on the development of post-devolution legislation and where common processes could be developed around land, water, and resources legislation. Any approach to regulation development needs careful consideration, and consistency will be one of the issues discussed. The approach is part of the consideration in the evolving relationship between the GNWT and Indigenous governments and organizations. Approaches to regulation development must be consistent with lands and natural resources legislation, not better in respect of jurisdictions, including the authority of the Legislative Assembly, will be a key consideration.
As a result, we do not support adding requirements related to this matter in the public Protected Areas Act without further consideration. Such discussions are already occurring with the Indigenous governments at the Intergovernmental Council. As mentioned, discussions regarding common process with respect to land, water, and resources legislation is occurring at the Intergovernmental Council. Indigenous governments and organizations who are not members of the IGC will be engaged by the GNWT. Thank you, Mr. Chair.
Thank you, Minister. To the motion. Mr. Beaulieu.
Thank you, Mr. Chairman. This is a very difficult situation for me. I agree with the Minister that some of these things shouldn't have to be spelled out and shouldn't have to be described in an act for the most part. My issue with this is the Intergovernmental Council, not that I have an issue with the Intergovernmental Council; I have an issue with the lack of membership on the Intergovernmental Council. Although all of our Indigenous groups were given the opportunity to sign a devolution agreement, not all have.
In Dehcho and Akaitcho, we have selected groups that have signed to the Intergovernmental Council and are sitting on the Intergovernmental Council. We are trying to find a way to capture the rest of the Indigenous governments or Indigenous organizations, as it says, I guess, throughout the bill, referring to both the government and the organizations.
Leaving this amendment out essentially leaves out most members of Akaitcho, as one of the community governments has signed onto the Intergovernmental Council, and it also leaves out the Dehcho. Again, this is, of course, certainly not an issue for me, but it is an issue for my colleagues in here. In the Dehcho, two of the communities have signed on, but not all.
This, left as is, unfortunately doesn't really clearly indicate that we are going to include organizations or the governments who have not signed a devolution agreement. I am really quite torn as to what to do with this clause, and I am in favour of reduced words, reduced legislation, that gives the opportunities and the mobility needed inside of the acts in order for us to use our discretion or the Minister to use his discretion, which does include all Members of the Assembly.
Unfortunately, unless it is described, the discretion will exclude people that I represent. It is a difficult thing. It really needs to be put in here that all Indigenous governments, whether they are on the Intergovernmental Council or not, need to be consulted when writing regulations. For that reason, I have to support the add-on to this. I feel like it is described. I know the Minister's intention is good, and I know that the government's intention is good, and it is to reach out to all organizations. Unfortunately, at this point, it appears as though the only place they are reaching to is through the Intergovernmental Council, which, you know, most of the people representing the organizations are on the council. Unfortunately, that is not the case for me. For myself and for the members of Deh Cho and Nahendeh, we do not have representation there when these regulations are being drafted. Thank you, Mr. Chair.
Thank you, Mr. Beaulieu. To the motion. Mr. Nadli.
Thank you, Mr. Chair. My view of the legislation is that it has almost taken the form of provincial light powers and authority of lands and waters, and the jurisdiction, of course, of within the Canadian federation, but I also understand, you know, the region that I come from called the Deh Cho, have not ceded, surrendered, and extinguished, or asserted Aboriginal title, and there are still ongoing negotiations. Those treaties were bilateral in nature between First Nations and the Government of Canada or Canada back in 1921, and so that was a bilateral process from what I understand, and so a lot of the current, our land claims, are trilateral in nature, where you have First Nations, governments, and the GNWT.
My understanding is that a lot of the treaty and Aboriginal rights that haven't been resolved, that are outstanding, that are not settled yet, their rights are entrenched in the Canadian Constitution, and with the same perspective from land claim groups. Their rights are entrenched in the Canadian Constitution. You know, those rights that we talk about, lands and waters or lands, First Nations, are paramount in a lot of respects to the initiatives that we are seeing through at this point. A lot of them, those initiatives were born from First Nations initiating discussions in terms of trying to reach certainty on the ownership and jurisdiction and their sovereignty of their lands and waters.
You know, what has been proposed as an amendment is giving a level of certainty. Yes, we need to be assured that there will be, if a candidate area has been proposed, governments will respond in a given time. You know, it is not going to get lost in the shuffle. That proposal is not going to sit in somebody's closet, or somebody's desk, I should say, and collect dust, but it is going to be acted upon, and that First Nations governments will be involved.
My understanding is that a lot of efforts have been made between Indigenous governments or Aboriginal governments, and with the current department, ENR, advancing this whole legislation towards that today, and of course, committee doing their due diligence, and so I think I would probably more likely gain favour of the amendment that it gives certainty. Because we all seek certainty, and it has to be explicit in terms of how we work with First Nations.
For a long time, treaties and agreements that sometimes were brokered between governments and First Nations were well-intended, but sometimes those are verbal understandings. We understand, we have known for a long time that it remains contentious in terms of how it could be interpreted, so if it is written down explicitly, then the more clarity of the legislation.
I will stand in favour of the amendment.
Thank you, Mr. Nadli. To the motion. Mr. Thompson.
I will try to be quick with this one here. I struggle with this because I have one community that is part of the Intergovernmental Council, but then I have five communities that aren't. Again, it is looking at how we can work together to work with this.
If the Intergovernmental Council included the people who weren't part of the Tlicho and the Deh Cho, and they included as to the process, I think we could be working together, and it would be a positive step. Unfortunately, we have people who have not signed on to devolution, so people are saying, "You have to make decisions that are good for the people." I respect the Minister, and I think he is doing a really good job and he is working with the department, but again, the communities have said, you know, this would be a good, I guess, an amendment that would allow them to have a voice.
For that, I will be supporting the amendment. Thank you, Mr. Chair.
Thank you, Mr. Thompson. To the motion. I will wait until any Members decide whether they want to speak or not. Seeing nothing, I will allow Mr. Testart to close debate on this item. Mr. Testart, please close debate on this motion.
May I ask a point of clarification of the law clerk?
Absolutely. Go ahead.
Thank you. Mr. Law clerk, an issue has been raised around "Indigenous governments or organizations." Could you provide a legal definition of that, please, as it relates to the bill? Thank you.
Thank you. Mr. Law clerk.
Thank you, Mr. Chair. The phrase, "Indigenous governments or organizations" is not a defined phrase in the bill. However, it is a phrase that is used throughout the bill, including in section 10(3), which is the nomination section, and specifically now that section says, "An Indigenous government or organization may nominate to the Minister an area to be considered for approval as a candidate protected area," so it is not a new phrase that appears for the first time in this motion.
In my view, the word "Indigenous" modifies both government and the organizations, and as such, an organization standing alone would unlikely to be captured by the intent of that phrase.
In my view, the phraseology is likely attributable to the various levels of self-government that have been achieved by Indigenous groups in the Northwest Territories, and the phrase I do not think would be restricted to those parties of the Intergovernmental Council. However, as I said, it would not apply to organizations that are not Indigenous. Thank you, Mr. Chair.
Thank you. Further, Mr. Testart.
Thank you, Mr. Chair. Just turning to where we started with this amendment was to mirror language in the Mackenzie Valley Resource Management Act, which has a duty of consultation on governments to consult with Indigenous governments before any regulations are made. We canvassed that with the Minister, with the sponsoring Minister, and it was quite clear that went too far, and there were concerns around precedent.
I don't think the MVRMA has set universal precedent for federal legislation, but I digress. I am happy to accept that rationale.
This does not have the same burden. From the onset, I tried to be very clear in speaking to this motion. It is a duty of notice, 30 days, whenever regulations are changed or to be made. I think my concern, and the concern of my colleague who helped author the dissenting opinion, is a piecemeal and inconsistent approach to how we manage co-drafting, and not just when the legislation comes forward, but when it needs amendment or when regulations are produced. This is an opportunity to set a clear standard of engagement in regulation-making authority as it relates to co-management of land and resources across the concert of bills that are before the House and in future bills going forward.
I appreciate that the Minister is giving us assurances that they are going to work it out at the IGC. That is an important process. That needs to play out, but we have to deal with this bill today. We do not have the opportunity to wait and see if legislative amendments are required. What we heard, quite clearly, is that certainty is what our Indigenous partner governments are looking for. It is not just governments that are coming forward to provide written submissions on a piece of public legislation. They are co-authors of these bills. I think that they have a right to feel like they should be continuing along in the process.
Members have raised their concerns around this amendment, and one of these is around the phrase "Indigenous governments or organizations." The law clerk has provided my understanding of the phrase. It is a phrase that appears in the bill and was discussed at committee. I think that Members raising this, perhaps, are strangers to the facts of this bill and are, perhaps, attempting to make this amendment something that it is not. I believe in free and informed debate, and I think that that debate should be on the motions before us and what we think the motions are.
This motion, again, clearly stated, is a notice period required to all Indigenous governments or organizations in the Northwest Territories, whether or not they are part of the Intergovernmental Council. It is a broad and encompassing relationship piece, and again, it is a duty of notice. It is not a limitation on the government's ability to draft or pass regulations. It just ensures that everyone is in the same loop when important changes are being made. I do not think that it is an unreasonable compromise from the committee's original position, which was full-blown legal consultation on any regulation. This is a huge step back from that, and that is not what is being asked for today.
