Thanks, Mr. Chair. I move that subclause 10(2) of Bill 38 be amended by deleting paragraph (b) and substituting the following:
(b) if the Minister is satisfied that the area meets the purpose of this act, unless,
(i) in the case of a nomination by an Indigenous government or organization, the nominating party has no asserted or established Aboriginal right or title in the area nominated;
(ii) the nomination covers all of the public land within an area of asserted or established Aboriginal right or title;
(iii) the nomination is frivolous, vexatious, or malicious;
(iv) the nomination is solely within municipal boundaries; or
(v) the nomination does not meet any prescribed eligibility criteria.
Thank you, Mr. Chair.
Thank you, Mr. O'Reilly. There is a motion to amend on the floor. The motion is in order. To the motion to amend. Mr. O'Reilly.
Thanks, Mr. Chair. I think, through the questions that I had of the Minister and his staff, I was trying to get to a point where we would better understand how this nomination process is really supposed to work.
I don't want to relive what was written in the dissenting opinion that we read into the House yesterday, but as I understood, the nomination process is supposed to happen quickly and is basically like a checklist. If the supplied information is provided, it should be just a straight conformity check that, once the supplied information is put together, a decision is made on forwarding that area into the candidate review phase. That is where the Minister has discretion, at the end of the day, to decide whether to establish an area, but also give it some interim protection and that the public can have a say in that, in how the boundaries might be set, in who might manage it, and all of that stuff would be negotiated through an establishment agreement.
The nomination phase is really meant to happen quickly, confidentially, and as long as the basic information is submitted, the Minister is supposed to make a decision. I don't understand why there is this unfettered discretion, in my view, in section 10(6), where the Minister may, at the Minister's discretion, reject a nomination area under this section.
In working with the Minister on the committee, we were provided a list of circumstances under which the Minister might decide to reject a nomination. That is what this list is in the amendment, the list that we were provided by the Minister and his staff. These were the reasons why the Minister might not want to accept a nomination. What I have done here is just to incorporate the list that the Minister gave us as the reasons why the Minister could still reject an area for nomination, so it becomes like a conformity check.
I also think of this as like somebody applying for a job. Do you meet the basic requirements? If you do, you get screened in, and you get an interview. That interview is what the candidate area process is all about. That is where everybody has a chance to look at it, decide whether the candidate is good or not, and you have a chance to talk to them, interact with them, you can double-check references, and so on. If everything checks out, they get the job; the area gets established as a protected area.
I think of this nomination process as sort of the basic requirements of something moving forward, a simple conformity check, and if it meets those basic things, it just gets forwarded on to the candidate review process. That is the way that I have understood this to work and its intention, and I think that my effort here is to try to clarify the Minister's authority over that process, to make for an efficient process and make for a fair process. That is what the intention is here. That is all I am trying to do, Mr. Chair, and I look forward to the discussion and debate. Thank you.
Thank you, Mr. O'Reilly. To the motion. Mr. Testart.
Thank you, Mr. Chair. I am proud to support this motion for a second time. I just wanted to clarify, at least, where I am coming from on this. Ministerial discretion is an important feature of all governments, and it is really required for the good function of government as well. That doesn't mean that it can't be guided by very clear criteria.
In this case, when this question was raised by the committee, the Minister's office came back with some very specific examples of where the concerns came out if discretion was completely taken away. As a result, we got a better understanding of where the government's concerns are, and that is what is enumerated in this amendment through subclauses (i) through (iv).
Further, number (v), it reads: "The nomination does not meet any prescribed eligibility criteria." The eligibility criteria will be set by regulations. The Minister still has broad powers. They just need to be spelled out, transparent, and available for nominating parties to see. That's what we're really talking about here. The Minister can prescribe any criteria, including things like mineral values. Mira could be one of its eligibility criteria. Any number of pre-assessments and values taken, those could all be part of eligibility criteria. The Minister still has a great deal of flexibility to exercise discretion under this, but it's just a reverse onus. Instead of the Minister just making a decision and writing it down, the criteria needs to be spelled out clearly.
We're also only talking about the nomination phase, and this is a closed process. The public doesn't know that these nominations are occurring. It is a nomination by Indigenous government or the public government, and that's it. For this period, the only time the public is going to become aware of it is when the candidate phase starts. That's really where you're going to work out whether or not this protected area should be finalized. This just ensures that we get to the public process as quickly as possible, and the reasons; and the Minister's discretion is guided along a path that really spells out what could kibosh a nomination. If that candidate phase, the public weighs in at that point and issues significant concerns around how this thing is working, well, it could be adjusted because that's what determines the establishment.
This doesn't impact the ability of the Minister to effectively use that discretion. It just guides it in the way that's very purpose-specific to both the act, the principle of the act, the principle of the bill, the principle of the nomination period, and I think it's a useful improvement. Thank you.
Thank you, Mr. Testart. To the motion. Mr. Nakimayak.
Thank you, Mr. Chair. It feels like we're hitting rewind here for a second time. We went through these motions in committee last week and they were voted down. Today, they're brought up again.
Mr. Chair, this imposes on government-to-government relations, especially with Indigenous governments in my area. Just in my home town alone, there's a national park and there's a marine protected area. That was developed with the community and co-managed between Inuvialuit and the Sahtu, and the territorial and the federal governments. All of these mechanisms are working and they're in place.
To take away the Minister's discretion on this, I think anybody could come from outside the territory and develop an area of interest, and to me, that's kind of scary from what's already working. The biggest thing for me is it imposes on the very things that we do. We're stewards of the land, as Inuvialuit. For other Indigenous people, I see that they are, and this proposed motion would take that away. For that reason, Mr. Chair, I'm not going to support that motion. Thank you.
Thank you, Mr. Nakimayak. Next, we have Mr. Beaulieu.
Thank you, Mr. Chairman. I think there are a lot of additions on the recommendations that are not necessary. I believe that I would be satisfied that the Minister has discretion for the simple reason that, if the Minister has discretion, then this House has a discretion. This House here, we are elected Members. We are put in here by our Indigenous governments, the people we represent. We represent Indigenous people. We represent non-Indigenous people. Things like vexatious, frivolous, malicious, I don't think those type of words need to be put inside an act. I think that this is too descriptive.
I like the idea that the Minister has a discretion, that we're able as elected Members by the people of the Northwest Territories. I'm elected by people from the Akaitcho and I'd like the opportunity to sit in front of a Minister, whether it's this Minister or another Minister or a different MLA, have an opportunity to sit down with the Minister and discuss these things about the Minister's discretion. This will be necessary if we thought the Minister would go rogue.
As the clerk said, the Minister has certain rules to follow when he's exercising discretion. Some of those rules are including all Cabinet Members and a decision.
I feel that the way the act is written now, it's not too descriptive. It doesn't pin us into a corner, that these areas, where the Indigenous governments make under the (i) in the case of a nomination by an Indigenous government or other organization has no asserted or established Aboriginal right or title in a nominated area. Well, the Indigenous governments think they own title to all the land in the NWT, and that's why there are negotiations. That's why some of these lands had been negotiated. That's why there was a settlement in the Gwich'in. There was a settlement in Inuvialuit, and the Sahtu, and now, we're looking forward to settlement with Dehcho and Akaitcho. I feel that this restricts that, so I would be voting against this motion. Thank you, Mr. Chair.
Thank you, Mr. Beaulieu. Next, we have Mr. Vanthuyne.
Thank you, Mr. Chairman. I don't have much more to add other than, first of all, I do want to say that I appreciate the efforts of the Minister's office in working with the committee in what we came to; that is outlined in the current version. Originally, there was, in fact, a lot less, call it, prescribed eligibility, and there was a lot more Minister's discretion in the original version, so we did come to some compromise. I want to appreciate the efforts that the committee and the department put in getting to the version you see.
However, that said, I also do recognize that the Minister did share with us some of the other outstanding concerns, and what the committee is trying to do. Sorry, not the committee in this instance, what the Member is trying to do, is outline some of those concerns. We can see here in the current version it says, if the Minister is satisfied that the area meets the purpose of this act and any prescribed eligibility criteria, what the Member is trying to do is give a little bit more definition to those prescribed eligibility criteria. It's based on essentially hearing from the department and what their concerns were. In this regard, I will be in support of this amendment. Thank you, Mr. Chair.
Thank you. To the motion. Mr. Nadli.
Thank you, Mr. Chair. I think I have an understanding of the protected areas initiative, and having worked on it from a community perspective for some time, understanding the PAS, in some communities, believing the process, and committed that there was a positive outcome. My understanding of the process is that it used to be in my time, maybe it would be about 10 years ago, a seven-step process. About 10 years ago, some communities were trying to advance areas within their traditional lands. In the interim of a land claim settlement, they took the steps to involve both levels of government. It could be the federal government. It could be representatives from the GNWT solely, of course, led by the First Nations government. Sometimes, in instances for funding resources, bringing along third party NGOs. As an example, Ducks Unlimited has a common vision with Indigenous people to take on conservation initiatives. Out of memory, there were a lot of candidate protected areas that were waiting approval by governments, and that was 10 years ago.
I think with the proposed amendment, it brings some clarity in terms of the possibility of perhaps Canada's protected areas sitting on somebody's shelf and collecting dust or else perhaps maybe bringing upon negotiations between First Nations, industry, and government. I think it's good to be clear, and I think, with the proposed amendments, it brings the level of clarity in terms of the idea of perhaps, you know, yes, we could make a decision on a timely basis, but I think, with the proposed amendment, it brings the level of clarity in terms of how decision-making should happen. So, with that, I will be supporting the amendment. Mahsi.
Thank you, Mr. Nadli. To the motion. Mr. Thompson.
Yes, thank you, Mr. Chair. I know, in my riding right now, I have a community that is looking at trying to get an area protected. They have gone through hoops, and Mr. Nadli is well aware of it and the challenges to move forward. People want clarity. They want to be able to understand exactly what it is, and so, at this point in time, I think we need to be respectful of that. I think this motion does help that.
As for the process, this is part of the process. It is. It was brought to committee. I sat back, and I listened to the committee. It did not pass committee, but it was moved back here. This is what the process is. The motion was defeated there but was brought here so people can speak and debate on it, so I want to make that clear so people understand where it is.
I have reached out to my leadership and told them what was being proposed, and I have not heard anything except that, moving forward with this, they have asked me to support this bill, so I am going to be supporting this bill. Thank you, Mr. Chair.
Thank you, Mr. Thompson. To the motion. Minister McLeod.
[Microphone turned off] ... get a chance to before. I do want to acknowledge the work that went on between committee and the department. We had 34 amendments that were proposed by committee. We accepted 30 of them. There were four we did not accept. Again, they were defeated, and they were brought down to the floor of the Assembly to have further debate on it, which is the right of this Assembly, and I respect that.
The act as written already ensures that the Minister will make transparent and accountable decisions on whether a nominated area can be considered by Executive Council for approval as a candidate area. The act now states that a Minister shall consider an area for approval as a candidate protected area, and those decisions regarding nomination must always be made in accordance with the act and in good faith. If the Minister rejects a nomination, they must provide written reason for that rejection to any nominating Indigenous government or organization.
The proposed list of exclusions was assembled in a matter of hours by departmental staff as examples for committee and by no means was put forward as an exhaustive list. It is simply not possible to have an exclusion list within the act that can reflect all possible scenarios. In the future, as we move into implementation, more guidance to the Minister can be made through the development of regulations to prescribe eligibility criteria. Such criteria shall be based on learned experience for implementation of this important piece of legislation. This is an appropriate and responsible path forward.
An example of a nomination that could not be rejected if this provision was accepted is a nomination made by one Indigenous government or organization that is not supported by another Indigenous government or organization with asserted or established rights in that nominated area, so, for that reason, we will not be supporting the motion. Thank you.
Thank you, Minister. To the motion. Seeing no one further, I will allow the mover of the motion to close debate. Mr. O'Reilly.
Thanks, Mr. Chair. Yes, I appreciate the comments that have been made by everybody, and I would like to respond to some of them in closing here.
There is nothing in this proposed amendment that takes away from the process that is already set out in the bill. What this does, as some of my colleagues have said, is to clarify how the Minister makes a decision on a nominated area. There is nothing in here that will allow other interests to establish protected areas as the honourable Member for Nunakput indicated. There is nothing in here that would allow for NGOs or anybody else to nominate areas. The bill retains that Indigenous governments and the GNWT are the only parties that can nominate areas, and this amendment does not change that in any way. I don't believe this in any way interferes with the government-to-government relationship. This just clarifies how the Minister is going to exercise his or her discretion in deciding whether a nominated area moves forward.
I think I also heard that this might interfere in some way with the ability of Regular MLAs to talk to the Minister about this. I do not see that happening, at all. Of course, MLAs can talk to Ministers at any time. I don't think this paints anyone into a corner. It just clarifies how the Minister is going to exercise his or her discretion.
I agree with my colleagues in that people do want clarity, they want certainty, and they want to know that the nomination process is going to move quickly and that it is a check list and that an area is going to move into the candidate phase, where it has interim protection, and everybody can participate in that, the review of a candidate area.
Once a nominated area is actually accepted, you know, if you look at what section 11.1 says, the Executive Council on the recommendation of the Minister may approve a nominated protected area provided that a bunch of conditions are met, so that is another stop here where the Minister has, working with his Cabinet colleagues, total discretion over whether an area is accepted or not, and that is after the nomination phase. That is another check stop in here, and there are others in the bill where the Minister has discretion over an area moving forward and whether it's change or deregistered and so on.
This is about just ensuring that there is a clear, efficient process for accepting a nominated area and getting it into the candidate phase, where everybody can have a say on it, even other Indigenous governments that may not agree with an area being nominated.
I know that the Minister said that his staff prepared a list quickly in response to committee concerns around the discretion in 10.6. That is what we did, was incorporate those into this amendment. Of course, the Minister still has the ability to bring forward eligibility criteria and regulations, and I look forward to those, seeing what those regulations say in the future.
This is not about taking away anybody's authority. This is about providing clarity and making sure that the nomination process happens quickly and that full consideration of a protected area gets moved into the candidate phase as quickly as we can, and that is where everybody can have a say.
Mr. Chair, I would request a recorded vote. Thank you, Mr. Chair.
