Clause 4. Ms. Bisaro.

Thank you, Mr. Chairman. I move that clause 4 of Bill 20 be amended by striking out “any proceedings before a quality assurance committee” in proposed paragraph 14(1)(a) and

substituting “any proceedings before or that have been before a quality assurance committee”.

A motion is on the floor. The motion is in order. The motion has been distributed. To the motion.

Question is being called.

---Carried

Clause 4 as amended.

---Clauses 4 through 9 inclusive approved

Bill 20, An Act to Amend the Evidence Act as amended.

To the bill as a whole as amended.

Does committee agree that Bill 20 as amended, An Act to Amend the Evidence Act, is now ready for third reading?

---Bill 20 as a whole approved for third reading as amended

I’d like to thank the Minister and his witnesses. If I could please get the Sergeant-at-Arms to escort the witnesses out of the Chamber.

The next item of our list is Minister’s Statement 65-16(5), Devolution Agreement-in-Principle - Impact on Land Claims and Protection of Aboriginal Rights. Is committee agreed?

Thank you. First on my list is Mr. Krutko.

Thank you, Mr. Chairman. In regard to the whole devolution process I don’t think we really have had an opportunity to have a discussion on it publicly in the format of this House or Committee of the Whole. I think that we do have to give it due diligence and make sure that we do have some discussion on it.

I believe that devolution has been a long time coming, but at what cost are we willing to proceed. I think the challenge we face, the agreement that we have in front of us, the question is did we get an agreement simply for the sake of getting an agreement or have we got the best agreement we could possibly achieve within the time and resources we put into it.

I think it’s important that we have an agreement that covers all bases, includes the First Nations groups and the people who are affected, endorsing an agreement that will at the end of the day put a

financial burden on future governments of the Northwest Territories, and ensuring that we adequately fund this transfer to the required expenditure that we’re going to need going forward.

I think it’s important to realize that previous Legislatures have had these discussions and I have myself been personally involved in the negotiations of what was called the Northern Accord. At that time all Aboriginal governments were at the table. They did have their own legal counsel. They were able to negotiate and look at the different elements of how they were going to be affected. How the agreements that were negotiated during the Dene/Metis land claim agreements. I again have to stipulate that the Dene/Metis were not able to achieve what’s in the Inuvialuit Agreement, elements such as participation agreements which clearly outline the obligation of industry, whether it’s oil and gas or mining, to deal with the First Nations people in those particular settlement regions. As part of that, the Dene/Metis insisted during the negotiation of the Dene/Metis claim, which is now better known as the modern treaties or regional claims, that we had to clearly specifically identify those arrangements through what we called the Northern Accord agreement. That’s why it’s important to understand that in 1988 when the Northern Accord agreement was signed by then Prime Minister Brian Mulroney and the Government of the Northwest Territories in 1988 it was signed in August, I think it was 18

th

or 20

th

, in which that

morning it was signed by the Government of the Northwest Territories and that afternoon they signed the Dene/Metis agreement-in-principle in Rae-Edzo. The whole understanding was those two arrangements would go hand in hand in light of the Northern Accord process, the Dene/Metis agreement, and ensure that those two arrangements would be clearly stipulated and flowed through the different land claims agreements. Part of the land claims agreements was clearly demonstrated that in negotiation of those agreements it clearly stipulated that the Government of the Northwest Territories shall involve those Aboriginal groups in development and implementation of the Northern Accord Oil and Gas Agreement which was signed September 5, 1988, by Canada and the Government of the Northwest Territories.

Again it’s clearly illustrated that you have to include those Aboriginal governments in whatever you do going forward. Because they do have not only treaty obligations and modern treaty obligations that we as a government have to ensure that they’re included in those processes where we’ve clearly stipulated that they shall be involved in those whole processes.

We also have to look at the needs of not only the northern residents but Aboriginal residents in the confines of the self-government agreements. I know

when I was at the table in 1995 with the Gwich’in Tribal Council in negotiation of those discussions, the issue did come to the table on the funding of self-government agreements. I think it’s important that we do have the resources to fund and top-up self-government agreements, because right now, realizing the cost of running programs and services, the land claims agreements as I stated right now to negotiate self-government agreements you can only negotiate for existing programs and services and the government will only agree to fund them as they presently exist.

By way of future growth and population growth, we’re looking at the area of additional resources. The only other place that you can identify those additional resources is either through tax revenues or revenues that flow from royalties. I think it’s important to realize that we have to be able to fundamentally agree that we have to ensure that the fiscal arrangement that we agree to is sound and that it will be able to take us well into the future. Even in regard to the overall government obligations that we’re looking at by taking over those different powers from the federal government by way of positions and also taking over the obligations regardless whether they’re regulatory obligations or legislative obligations on mining regulations, oil and gas regulations, in regard to the Waters Act. We are looking at taking over the responsibility of governments on all of those elements and I think it’s important to realize that whatever we do, we have to have the resources to do it.

In previous assessments done by previous government that at that time the assessment that they did they stated that they needed some $83 million to take on those federal-type obligations; $83 million. Yet at that time the federal government was offering us $62 million, which we identified was not appropriate to take on those obligations.

The other aspect was also in the area of the cap. Previous agreements did not include a cap and also they included and insisted that Norman Wells had to be part of any negotiations going forward. Again, we see that the federal government has put a cap on the arrangement that we’re looking at and they also include the federal government’s share of the one-third ownership of the Norman Wells oilfield, which is excluded. The one-third share of the Norman Wells oilfield yields some $100 million a year to the federal government at the present projections that are out there. Again, by leaving that to the federal government really undermines the ability for the Northwest Territories to go forward in regard to the fiscal and future growth and costs associated with delivering those programs and services to residents of the Northwest Territories.

As we see, one fire season in the Northwest Territories could almost take half of that $60 million

and swallow it up by a bad fire season. I think we’ve got to be conscious that basically whatever arrangement we agree with going forward does have the arrangements and clearly stipulates that we are benefitting from our resources, that we’re not simply signing the agreement to say, well, we’re going to transfer programs and services to the Northwest Territories and now it’s your problem.

I think we should learn from the Yukon experience in which one of the biggest challenges they faced when they transferred that from the federal government to the Yukon government was just basically trying to bring in line the benefits by way of employment benefits and employee wages from the federal classification of their employees to the territorial government classification, which again, that cost them an additional $10 million which wasn’t part of the original amount that they looked at in regard to allowing for that transfer to take place.

Again, we are no different here and I think, if anything, probably things have gotten a little more rigid with the different court cases that have happened in regard to the overall area that deals with the pay equity case that took place between the federal employees. You’re taking on those obligations now, and, again, we have to be conscious that those obligations we are taking on do not hinder us going forward into the future.

I think also realizing that we do have some major, major projects on the outcome such as, let’s say, the Mackenzie pipeline, major oil and gas deposits that could bring in hundreds of millions of dollars a year in revenues, and again, having a cap in place will very much undermine our abilities to really receive the majority of those revenues to the people of the Northwest Territories.

Again, I think it’s important that we do take the time to review this arrangement and also allow the public to have a say in where we’re going in regard to this arrangement.

Thank you, Mr. Krutko. I have nobody else on my list. Any more general comments on Minister’s Statement 65-16(5)? In that case, I’ll go to Premier Roland as the Minister’s statement was his, if he wishes to make some responses. Premier Roland.

Thank you, Mr. Chairman. The Member raises many points in his comments to the statement I made and I guess what I would do is reiterate the statement itself, that there has been much discussion since the signing of the agreement-in-principle about the speculation that the draft devolution agreement at the time somehow prejudices current Aboriginal rights and negotiations.

In the statement as I gave in this House, that land claim agreements, and I’ll quote again, “land claim

agreements are modern treaties and therefore are constitutionally protected.” In concrete terms that means if there were a conflict between a devolution agreement and a land claim, the land claim prevails. We recognize that and we accept that.

Also, I’ll point out a quote from the document. Mr. Speaker, I would also like to point out that “existing land claim agreements anticipated devolution. The Gwich’in, Sahtu, Tlicho agreements include statements that nothing in the land claim will prejudice the devolution of jurisdictions from Canada to the GNWT.” It is important to understand that this demonstrates that land claims agreements were never intended to prevent the devolution of authorities from Canada to the GNWT. I’ve tried to go a long ways, as the government overall, go a long ways to addressing those concerns that were raised.

The amounts that the Member quoted in previous discussions of $80 million, that was work done… The government of the day had hired a consultant to do an exercise and came up with estimates. Those numbers were our own estimates in preparing for negotiations. The first response to the request on A-base transfers was in the neighbourhood of just over $35 million. This agreement-in-principle is for 65. So we’ve managed to, through that work, up it significantly and ultimately the design and implementation of the regime in place that we adopt and then the government can further change once that authority is drawn with consultation of the groups and negotiations, we’d be able to design that structure.

The cap of 5 percent, that is not a negotiation process for the agreement-in-principle. That is a national program across the country. Finance Canada did a review of equalization and territorial formula financing. It was through that exercise where they said all jurisdictions would be sharing 50-50. So that meant out of $100 we would lose transfers of $50 for those provinces and territories that participated in equalization payments. Now, if a province did not receive any equalization payments they obviously get to keep 100 percent. I don’t think that will ever be the situation in the Northwest Territories, at least not in the foreseeable future, even in 20 to 30 years.

Now, further to that, the three territories, because the Formula Financing Agreement doesn’t exactly deal word for word -- and thankfully so, because if it did we would have a lot less resources in the North -- they came up with the equivalent of that cap that provinces face in Canada, and they came up with a 5 percent of GEB. That is not a negotiation item in the devolution agreement; that is an overall national program.

The Norman Wells issue, in looking at the agreement-in-principle on devolution, in fact, there is a clause there, a section that says Norman Wells

is still something to remain to be discussed from our point of view. Let’s realize that two-thirds of Norman Wells is giving royalties to the Aboriginal groups in the Northwest Territories. It’s the one-third ownership or equity called by the federal government that remains in question and in that sense we agree with what’s being raised out there, that we have to continue to push and try to get a negotiation on that and get that rolled in. The federal government’s position has been consistently that that’s not on the table. Well, we, as part of the devolution agreement, have said it is to be a negotiation item.

The Yukon model is something we, in fact, had sent our people over to the Yukon to learn from their experience. Obviously, we’ve done a good job because the Yukon has recently just come out with a press release and request by the federal government to renegotiate their resource revenue base because they see that on the table. What we have is significantly better than what was done in their previous agreement. In fact, Nunavut is in the process of negotiations or wanting to establish negotiations and is now using our agreement for a point of discussion.

I would say that many of the issues that were raised, I think we are in agreement with. Aboriginal rights are constitutionally protected and they would prevail over a devolution agreement if that devolution agreement was to infringe or be seen to be shown to infringe on the land claims and self-government agreements in the North.

As well, the devolution agreement has language in it that talks about negotiations ongoing that the internal measures are protected and the clause in the agreement that talks about the federal government can come back and withdraw lands that have been transferred if they negotiate a larger land base with the Aboriginal governments that are in negotiations.

As we see and as we had involvement through many years with a number of the groups, indeed at this point in time of the history of the North we feel this is the best agreement that we are able to negotiate and go forward on in signing the agreement-in-principle. Of course, and as the Member is aware, that even as the Inuvialuit, the Gwich’in, the Sahtu, when they signed their framework agreements, that set out the table of what was to be discussed and some of the parameters, but their examples even within the Gwich’in the framework agreement and how they got a better quantum of land than what was initially in that document. The Sahtu I believe did something similar. It shows that there can be an improvement from what is initially put on the table. We, of course, have a number of items that we hope to improve on as we go forward.

As we have, in the past, and as I have spoken with Members and made commitments in the House when Executive’s budget was before this Assembly, that we would continue to reach out and encourage the groups to come to the table and be a part of the process going forward. That door remains open. In fact, as I committed to Members, I would come back to this Assembly with a supplementary appropriation once we come out with a framework and a budget as to reaching out and going into regions and communities to discuss the devolution agreement and a way forward. Thank you, Mr. Chairman.

Thank you, Premier Roland. Comments on the ministerial statement. Mr. Krutko.

Thank you, Mr. Chairman. Again, I think that regardless of what the agreement looks like, we are basically at an area of contention where we have a large majority of the Aboriginal groups, especially throughout the Mackenzie Valley which is basically covered by Treaty 8 and Treaty 11 who have the most at stake. I think a lot of people’s concept of devolution is not simply transferring positions from Ottawa to the Northwest Territories and basically taking over government responsibilities.

Think from the Aboriginal perspective. They look at it differently. It is basically the lands and resources that have sustained them for thousands of years again being threatened by oil and gas development. I think, because of that, the Aboriginal groups have concern because they have seen what the effects can be regardless of whether it’s Norman Wells or the effect on caribou and the effect on their livelihoods. I think that because the connection between the Aboriginal people and the land is so close, without the land and the wildlife, the water, without any of those elements being in place, it affects who they are. I think that is the risk that the Aboriginal groups are concerned about, because they are not at the table and they are being excluded from having so-called rights that are being undermined by this process.

Mr. Chairman, I think it is important to realize that on page 5 of the Northern Accord agreement, clearly it was an Aboriginal rights section that clearly stipulated what is trying to be said. You can say it in one sense by saying you have all these rights, but the rights don’t mean anything unless you are at the table to ensure that you are protecting those rights, you are speaking up for the people, the land and the resources that are under your feet. Again, that is the problem. The problem is that those groups are not at the table. They are not being able to illustrate their issues at the table. By not allowing them that opportunity to partake and have that say prior to the signing of that agreement, that undermines the whole fundamental aspect of

having the agreement that abrogates and derogates from any of the provisions in regards to Aboriginal self-government agreements or treaty rights. There is a whole list of items that you can look at.

In a letter that was submitted to John Todd from Ron Irwin, it clearly illustrates that his concerns even back then that Treaty 8 and the Dehcho Tribal Council were basically being told they are not part of the process so they will just cut them out of the picture and they would deal with those other parts of the Northwest Territories. In the agreement, it is clearly stipulated that by excluding those areas from this application on the devolution agreement, we cannot support any proposal which would have an effect on the transfer of provincial-like authorities imparted to the Northwest Territories and I would, therefore, encourage you to continue discussions with Treaty 8 chiefs and the Dehcho in order to seek their support. This is a federal Minister that wrote this letter. I don’t know what the difference between Ron Irwin or the existing Minister, but those groups still have the right to be heard.

Again, if the Aboriginal groups of the Northwest Territories take us out of this devolution picture, do not apply devolution to our particular region which include the regions of Treaty 8, Treaty 11, this agreement will only apply to those groups that have signed on, which is the Inuvialuit and the Metis.

Again, the Metis do not have a land base. Again, the issue is going to come down to which particular area will this devolution agreement apply to. I think it is fundamental to any process that we do ensure that we integrate those areas regardless if it is a Treaty 8 area, Treaty 11 area, land claim areas, regardless if it is the Inuvialuit, the Gwich’in, the Sahtu, the Tlicho and the Dehcho in anything that you do. Those governments, regardless if it is a self-government with the Tlicho Government, those are government bodies just like we are here at the Legislative Assembly. They have jurisdiction over lands and resources and management authorities in those settlement regions. The powers we are looking at taking over are the same areas that they also have a legal responsibility to uphold either through the land claims settlements to settlement legislation, Section 35 of the Canadian Constitution. I think we have to be clear on this that simply ignoring the problem is not going to go away.

I think that we do as a Legislature, as a government, have a responsibility to basically practice what we say we are going to practice and acknowledge our relationship government to government to government. There are three levels of government in the Northwest Territories, not two. I think that we have to be cognizant of the whole idea that whatever agreement at the end of the day we come out with, it should be for the benefit of all people of the Northwest Territories, not just some

groups that say we will sign up at the expense or the backs of other regions where a lot of these impacts and developments are already taking place.

Again, I think that we do have an obligation not only under the Canadian Constitution, under the land claims agreements that we signed, and more importantly, we passed a motion in this House recognizing the United Nations declaration for Aboriginal peoples. It is clear and no speculation that indigenous people have a right to be heard, but more importantly, to be protected in any sort of government regardless if it is a consensus government in the Northwest Territories or a country in other parts of the world.

Again, I think it is critical or crucial that this government continuing to play hardball will not do anything to improve the situation. We have to allow this process to be heard through a separate table regardless if it’s arbitration in regard to finding an area where we can sit down and discuss issues whether we agree to disagree, but at least let’s start those talks. I think it’s important to realize the issues being raised by the Aboriginal government do have a basis of being concerned. They do have a fundamental responsibility to be challenged.

Mr. Speaker, when we see what happened to Aboriginal people just in the last couple of years on the caribou issue, it scares them. When you have a Minister of Environment unilaterally making the decisions saying sorry, the numbers are down, you can’t hunt, for them it questions the viability of a government to really take into consideration Aboriginal rights and issues that affect them.

So, again, all I ask is let’s find a table to sit at, sit down with the Aboriginal governments, find a way to work out this impasse that we’re under and find an arrangement at the end of the day. We all win and there won’t be any winners and losers in regard to where we go with this devolution agreement. Thank you.

Thank you, Mr. Krutko. General comments on Minister’s Statement 65-15(5). No more? I’ll go back to Premier Roland for any additional comments based on comments heard.

Thank you, Mr. Chairman. Again, I think there were some comments made by the Member and I don’t know if this will just turn into a two-way discussion. He has his strong viewpoints. We have the language in the agreement-in-principle. I made a commitment in this House that in fact if there is any infringement on land claims, that those land claims prevail. We’ve said that, that the groups have been included from the earliest days of 2001 in the framework agreement and in fact in the life of its government through our regional leaders’ table and more specifically when the issue of the agreement-

in-principle on devolution was picked up again with the federal government. We provided funding and the groups participated either as active observers at the main table or as full participants at the main table. I mean, I’ve shown the Members that information, and more important to that is through the agreement-in-principle there was funding set up for Aboriginal groups as well to take part in the work leading up to the negotiations and I’ve even committed in this House that we would come back with a budget to meet with the regions and the community leaders and the communities to go over the agreement-in-principle. Nobody is being excluded. If there’s any exclusion, it’s at the choice of the communities or the regions who make that decision and we have to respect that if that’s the way their process is, but clearly there’s no veto provided to anybody on this file as we go forward.

Now, as we go forward and as we negotiate, a final decision will have to be made at some point, not in the life of this government. What we’ve done here is allow for a process to get into real negotiations going forward and those negotiations have a seat at the table for every region that wants to be there, and I encourage them to do that because there is not only the seat, but there are dollars available. The fact that the devolution agreement talks about protection of Aboriginal rights, constitutional protection, the fact that we as a Government of the Northwest Territories, and even as the Member raised the caribou issue, the settled areas that have clearly established co-management bodies we use that example. In fact, it’s those examples that are used as we talk about how we set up a co-management regime in the rest of the Territory and that is with full Aboriginal participation. So we continue to work on that path. Again, I use this opportunity to say as I stated in this House to Members after the signing of the agreement, that the role we will play, the way forward, is to recognize Aboriginal rights in this whole process and the final agreement that would be voted on at a future date will have to show that that’s the case.

Again, I encourage all the regional leaders to join us as we go forward. In fact, even prior to the official negotiations, as I said, I’d come back once we have a framework and a budget established to come to this House to seek that approval to continue on those discussions because I believe, in the same words the Members used, that we need a win-win here.

Resource revenues, the fact that if you looked at the last five years, as the Minister of Finance stated, we’ve lost $200 million. Every time we go to a community and we go to an AGM or an assembly, there are requests to improve housing, to improve health care, to improve municipal services. This provides some relief to that. Our work has shown, as a Government of the Northwest Territories, which we shared at all the Aboriginal tables, the

cost of self-government is higher than what’s on the table and we need to work together to get the federal government to honour their commitment and their fiduciary responsibility.

So we’re working at all those tables to try to find a way forward. I would say it would be very dangerous if any government, even our government, to then put core funding in place when you’re basing it on a resource revenue that fluctuates, and that’s a dangerous precedent. But we’ve agreed, at least at the starting point, and in fact the AIP, chapter 12, talks about negotiating bilateral agreements on resource revenue sharing of public lands that are included in this transition.

I would say that when you look at the actual process of devolution, there are no new rights being established here. This is in fact drawing down what Ottawa and federal staff are doing today. They’re making decisions on the North. They’re impacting us by those decisions and what conditions are placed on any projects. The fact that when you look across this country, all the provinces already exercise those rights and one territory being the Yukon. As I said earlier, interestingly enough, they’re now requesting a renegotiation based on our agreement, I believe. So, again, I think much of what the Member said and much of what I said are on a very similar path in a sense of trying to find a way to benefit all residents of the Northwest Territories. I think that that provision of chapter 12 of sharing resource revenues, if you look across the country that is the most progressive piece of any agreement with Aboriginal governments in the land when it comes to sharing of resource revenues from public lands. Again, I think that we can find a way forward and that we can find a win-win solution. Thank you, Mr. Chairman.

Thank you, Premier Roland. Next on my list is Mr. Hawkins.

Thank you, Mr. Chairman. I move that we report progress. Thank you.

---Carried

I’ll now rise and report progress. Thank you, committee.