This is page numbers 5713 - 5790 of the Hansard for the 18th Assembly, 3rd Session. The original version can be accessed on the Legislative Assembly's website or by contacting the Legislative Assembly Library. The word of the day was women. View the webstream of the day's session.

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Committee Report 17-18(3): Special Committee to Increase the Representation of Women in the Legislative Assembly
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Member for Range Lake.

Committee Report 17-18(3): Special Committee to Increase the Representation of Women in the Legislative Assembly
Reports Of Standing And Special Committees

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Caroline Cochrane Range Lake

Thank you, Mr. Speaker.

Election Expense Rebate

The Northwest Territories Elections and Plebiscites Act limits the allowable amount of personal funds a candidate may spend on her or his candidacy to $30,000. Committee heard a proposal to reduce this amount to $20,000 because first, this high amount sets a bar and may have potential candidates shy away from running, and secondly, in the past, very few candidates in the Northwest Territories have spent more than $20,000 on their campaign.

"A suggestion I would make is to lower that amount so that the total of expenses isn't $30 grand. It could be brought to $20. I mean, look at the last election, the average for a winning seat of spending has been something like $15,000 dollars. So spending $30 grand doesn't happen to win you anything, but having that out there as the upper layer certainly does set a tone and that can very easily scare somebody off." (David Waslyciw, Public Hearing Yellowknife, 8 May 2019).

In most of Canada's jurisdictions, the definition of election expenses includes all costs incurred to promote the election of a candidate or a political party and is determined in legislation. Reimbursement of part of the election expenses to candidates is provided in most jurisdictions with the exception of Alberta and British Columbia, and the three territories.

Where reimbursement is available, it is most often based on the candidate having received a minimum of votes, ranging between 5 (Prince Edward Island) and 15 percent (Saskatchewan) of the valid votes cast in their constituency. Candidates who qualify for reimbursements of election expenses may receive between 15 (Canada) and 60 percent (Saskatchewan) of their qualifying expenses, depending on jurisdiction and additional rules.

"It is more the financial issues, how do we run, how do we set up office, get campaign material, [...] a fund would make it easier." (Priscilla Canadian, Public Hearing Fort Providence, 10 January 2019)

Committee heard many comments on the subject of campaign funding and election expenses which is perceived by some women to be a barrier to entering politics. Participants noted that no legislation pertaining to women's access to political financing exists, nor are there organizations in place in the NWT to support women running for office as are found in other jurisdictions. Paying for campaigns was described as tough and fund-raising was also described as difficult. Women explained that they are not comfortable being fundraisers. Many mentioned they do not like the idea of going door-to-door and asking for money.

Women told the committee that they struggle with raising the money required to run an effective campaign. While initiatives like the Campaign Schools can help teach how to overcome this problem, financial incentives and assistance programs would provide additional help to women to run for elected seats.

The committee's research found that formal mechanisms to level the playing field between men and women do not exist in the Northwest Territories. Ideally, up-front financial support would enable non-privileged women to have the funds to run for office. However, it was noted a general mechanism reducing the financial burden after a campaign would also help women. One suggestion made to committee was to provide election expense rebates for women candidates.

Committee considered the recommendation of a NWT election expense rebate and conducted an analysis of how much a rebate program would cost. In the past three elections, candidate expenses varied among ridings and by candidate. The committee looked at how much a rebate program would cost, using certain parameters.

First, any money contributed to the campaign was not counted towards an eligible expense, with the exception of a donation by the candidate themselves, so only money spent by the candidate, that was not covered by a donation was considered an eligible expense for the rebate. Second, a candidate was required to receive a minimum of five percent of the total votes in that riding to be eligible for a rebate. Finally, the committee decided that a cap should be in place, and only allow a 50 percent rebate for eligible election expenses.

The committee looked at two options for this. The first cap was set at $10,000, so a candidate would be eligible for a maximum rebate of $5,000. The second cap was set at $6,000, meaning a candidate would receive a maximum of $3,000 back. In Appendix C, the results of the committee's research are presented, with expenses being listed and possible rebates calculated.

The committee found that women would benefit from a rebate, as female candidates have historically spent more out of pocket than male candidates. In both scenarios, the rebate amount calculated for women would have been higher than for men. Considering scenario two with a cap of $6,000, the average rebate for women would have been $1,430, while for men it would have been $910.

The benefit of a rebate appears larger for women than for men as committee's research has found that in the NWT, women expend more of their personal money for their campaigns. This result confirms the information committee heard from women and their expressed discomfort with raising funds and asking for money. Providing partial reimbursement of candidate election expenses under specified conditions contributes to the removal of barriers for women to run and maintains a fair regime for all candidates.

Based on numbers from the past three elections, the overall cost to government would come to about $60,000 every four years to allow for an election expense rebate.

Recommendation 2

The Special Committee to Increase the Representation of Women in the Legislative Assembly recommends to the Legislative Assembly to create an election rebate for candidates who receive at least 5 percent of the votes cast in her or his electoral district in the NWT, reimbursing 50 percent of eligible personal election expenditures up to a maximum rebate amount of $3,000.

Mr. Speaker, I would like to turn the reading over to the Member from Nunakput. Thank you.

Committee Report 17-18(3): Special Committee to Increase the Representation of Women in the Legislative Assembly
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The Speaker Jackson Lafferty

Masi. Member for Nunapkut.

Committee Report 17-18(3): Special Committee to Increase the Representation of Women in the Legislative Assembly
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Herbert Nakimayak Nunakput

Thank you, Mr. Speaker.

Going Forward

Committee heard from the public that access to role models, mentorship and networking are needed and wanted factors in developing skills and confidence to be successful in politics. Women pointed out that there is a need to increase the opportunities for training in leadership and public speaking. Women mentioned that the creation of local and community discussion groups for women only would be particularly beneficial for women to exchange opinions and develop electoral positions. It was pointed out that these opportunities are currently rare or non-existent and that this gap presents a serious deterrent to female candidacy.

"To have a women-in-leadership course would reinforce a lot of us here to be more confident, and I think by having the course in the community, you will see women come forward." (Joyce McLeod, Public Hearing Fort Providence, 10 January 2019)

NWT Women Lead in Community Leadership

Committee heard that it is not a question of whether or not women have leadership skills. The problem rather is how to encourage women to make the step from local leadership and regional senior positions into the legislature. In addition, it was pointed out that there have been many women deputy ministers in the territorial bureaucracy, raising the question of what it would take to have these women consider and make the move to the legislature and possibly to a role as Cabinet Minister.

Others mentioned that, since there are many women in leadership roles now at the community level, it is support and time that will bring women into the Legislative Assembly. It was stressed that, in addition to and more importantly than Campaign Schools, education is key and it should be part of the dynamic of helping women run. It was mentioned that mentoring and specific training for women, targeted at formalizing leadership skills, would be at least as useful as introducing guaranteed seats.

"Women are as varied in their personal opinions and experience as are men. There should be no assumptions that a "women's issue" impacts or unifies all women in exactly the same way. Strengthen women's advocacy organizations so that the diversity of women's perspectives can be fully represented; including Indigenous women, visible minorities and immigrant women." (Caroline Wawzonek, Written Submission, 1 March 2019)

In 2018, women took many top leadership positions in NWT municipalities; the NWT experienced never before seen numbers of women in leadership at the community level. All four women mayoral candidates in the NWT 2018 fall municipal elections were elected. Committee heard agreement on the need for more promotion to support this change.

A key theme committee heard was that women are comfortable as leaders in their communities but lack connection to formal political spaces. The recent Elect Her report by the House of Commons Standing Committee on the Status of Women also found that there is a gap for women between municipal and national politics. Women generally are motivated to create change and to help people and their communities.

Statistics Canada found that women and men participate in politics in different ways; women tend to spend more time on local and civic issues; and women generally vote at higher rates than men, and women are more likely than men to indicate 'feeling uninformed' as their reason for not voting. (Statistics Canada, House of Commons 2019)

"We need more females in politics because they say women are the future but really it is the female youth that are our future. Having different committees or programs that can help spark female youth interest or get their confidence up can help us." (Female Youth, Public Hearing Tuktoyaktuk, 3 April 2019)

Mr. Speaker, I will now pass it on to the honourable Member for Yellowknife Centre.

Committee Report 17-18(3): Special Committee to Increase the Representation of Women in the Legislative Assembly
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The Speaker Jackson Lafferty

Masi. Member for Yellowknife Centre.

Committee Report 17-18(3): Special Committee to Increase the Representation of Women in the Legislative Assembly
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Julie Green Yellowknife Centre

Mahsi, Mr. Speaker.

Establish a NWT Leadership Program for Women

Committee took note of research on the effect of female role models in countries with women legislators. Women in the legislature were found to contribute to closing the gender gap in political participation. Current research found that women legislators serve as role models for women and the proportion of women in cabinet has a stronger effect on participation than the proportion of women in parliament. Women in the legislative assembly have a significant impact on increasing electoral participation. (Beauregard 2017, Kittilson 2019, Liu and Bannaszak 2017)

Examples of existing programs include the UN Women's programs on leadership and participation, programs that work with civil society to uphold women's rights, and strengthen arrangements for gender equality and women's empowerment.

Offering workshops in communities was another point committee heard as a good tool to reach women. The Deline Got'ine Government hosted the 'Gender and Resurgence' workshop for Indigenous women in early May 2019, to reflect on women's initiatives.

"If there was a leadership program here like the one they have in Nova Scotia, it would ignite women's political participation. We already have mentors available [...]. If we are looking at the residential school area, that generation created the NWT. The schools these people went to, they have hidden degrees and all the experience and knowledge they have; we could teach our own." (Paula Chinna, Public Hearing Norman Wells, 5 April 2019)

Several times, committee heard the recommendation for a NWT leadership program for women in politics. The 'Indigenous Women in Leadership' program was offered as an example that could be adapted in developing an NWT leadership course for women. It is a five-day course taught by a faculty of the Banff Centre for Arts and Creativity geared to "Indigenous women leaders and managers who are responsible for the future of communities and organizations." The program identifies challenges of leadership pertaining to accountability, performance, decision-making, delegation, and mentoring, including social and economic issues, trends and implications.

Committee heard of women in leadership programs offered by St. Francis Xavier University in Nova Scotia as good examples that if adopted in the NWT would ignite women interest in running for elected seats. The Coady International Institute offers women's leadership programs with a separate program focused on Indigenous women.

The committee recommends that the NWT establish a leadership program specifically in support of developing women leadership. Committee heard at every occasion that women in the NWT require support in leadership development and access to leadership networks. Establishing a women's leadership program in the NWT will address this need.

Recommendation 3

The Special Committee to Increase the Representation of Women in the Legislative Assembly recommends the NWT Legislative Assembly support the new NWT Polytechnic University to establish a leadership program designed to assist women to gain the skills and knowledge to take on leadership roles, including territorial, Indigenous and municipal political positions.

CONCLUSION

Committee was tasked to "identify and implement a wide range of strategies, including positive action, public debate, and training and mentoring for women as leaders, to achieve these goals." The committee was pleased by the level of interest demonstrated by participants during community visits. Committee's work has underlined the existing interest and the need for dialogue on the role of and opportunities for women to participate in territorial politics.

Committee noted in its interim report that, because the realities of each jurisdiction will influence the effects that incentives have on women's participation, electoral systems cannot be the sole tool to increase women's representation. Research confirms that it is important to find that mix of measures that will work best within each socio-economic context. Changing the workplace by providing opportunities for work-life balance also can have a positive effect on increasing the share of women in Legislative Assemblies.

Committee is hopeful that implementation of recommended changes in both, the interim and the final report will advance reaching the proposed goals of this Assembly.

Committee recommends that the 19th Assembly continue the work the committee has begun and further identify the measures that are required to increase the representation of women in the NWT Legislative Assembly.

Mr. Speaker, I seek unanimous consent to waive Rule 100(4) and to have Committee Report 17-18(3), Special Committee to Increase the Representation of Women in the Legislative Assembly Final Report, moved into Committee of the Whole for consideration later today.

---Unanimous consent granted

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The Speaker Jackson Lafferty

Committee Report 17-18(3), Special Committee to Increase the Representation of Women in the Legislative Assembly Final Report, has now been moved to Committee of the Whole for further consideration later today. Reports of standing and special committees. Member for Yellowknife North.

Standing Committee on Economic Development and Environment Report On Bill 38: Protected Areas Act
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Cory Vanthuyne Yellowknife North

Thank you, Mr. Speaker. This is the Standing Committee on Economic Development and Environment's Report on Bill 38, Protected Areas Act.

INTRODUCTION

Bill 38, Protected Areas Act, provides the framework for protecting, conserving and maintaining biodiversity, ecological integrity and cultural continuity of the NWT through the creation of a network of permanent protected areas that are representative of the ecosystems and cultural landscape found in the territory.

The bill received second reading and was referred to the Standing Committee on Economic Development and Environment on February 26, 2019.

PUBLIC CONSULTATION

The committee held public meetings in Fort Smith, Hay River, K'atlodeeche First Nation, Fort Providence, Behchoko, Inuvik, Norman Wells, and Yellowknife. Numerous representatives of Indigenous governments, Renewable Resources Boards and non-governmental organizations made public presentations to the committee, either in person or via written submission, including:

  • NWT Metis Nation,
  • K'atlodeeche First Nation,
  • Tlicho Government,
  • Inuvialuit Game Council,
  • Sahtu Secretariat Incorporated,
  • Lutselke Dene First Nation,
  • Dene Nation,
  • City of Yellowknife,
  • Wek'eezhii Renewable Resources Board,
  • Sahtu Renewable Resources Board,
  • Gwich'in Land Use Planning Board,
  • Yamoga Land Corporation,
  • NWT Chamber of Commerce,
  • NWT and Nunavut Chamber of Mines,
  • Canadian Parks and Wilderness Society - Northwest Territories Chapter
  • Ducks Unlimited Canada,
  • Nature United, and
  • A joint submission on behalf of Alternatives North, Ecology North, Canadian Arctic Resources Committee, and Council of Canadians - NWT Chapter

The committee received 20 written submissions. These submissions are attached as Appendix 3. The committee heard broad support for the bill from every presenter, and heard from the Indigenous governments that they were mostly pleased with the drafting process used by the Department of Environment and Natural Resources, although some concerns were noted, which will be addressed later in this report. The committee has decided that it will issue a separate report on the issue of the co-development process used for the post-devolution environmental and resource management legislation.

The committee appreciates the plain language materials supplied by the Minister's office for the public hearings.

The work of the standing committee to amend Bill 38 is set out in this report. The report contains recommendations to government on the development of devolution related legislation, as well as the implementation of this legislation. It also provides a rationale for the motions moved by the committee to amend specific provisions in the bill. These motions are listed in Appendix 1 in order of their appearance in the bill and are referred to in this report by the number assigned in the appendix.

WHAT WE HEARD

This part of the report is organized around the key themes or subject areas raised during the committee's public hearings and in the written submissions received.

Public Registry

Clause 9 of Bill 38 establishes a public registry for protected areas. The committee heard concerns across the territory that the proposed items for inclusion on the registry were too limited in scope, and would not meet the public's expectation for openness and transparency. Several presenters spoke at length about the need for an expanded registry to be included in the bill, and not left to regulations.

While the views of what should be included on the registry did differ, there was broad consensus that what was included in the bill was not adequate. These concerns were raised by not only environmental advocates but also by representatives of the mining industry and business community.

The committee had lengthy deliberations on what to include in the registry to address these concerns. The committee felt it was important to ensure that any official document related to a protected area is included in a registry, including establishment agreements, management plans, formal correspondence to or from a management board and any report on the state of protected areas. The committee also recognizes that there may be some issues of sensitivity, and ensured that some information could be kept off the registry, in accordance with the Access to Information and Protection of Privacy Act. Any changes to the size or status of a protected area will also be recorded on the registry, including any reduction in size and any establishment of a transportation or transmission corridor.

The committee appreciates the Minister's timely responses to committee's questions, and consequently moved Motions 4, 5, 6, 10, 15, 16, and 27 to expand the information that will be included on the registry.

Integration of Co-Management Bodies

In several of the verbal and written submissions received from Indigenous Governments, there was a general concern that the bill must respect any existing land, resources or self-government agreements that have overlapping provisions regarding the conservation of land, cultural sites or ecological areas.

Specifically, there were concerns that the roles of Renewable Resources Boards and Land Use Planning Boards, established under these agreements, were not always clear in relation to the Protected Areas Management Board. Further, Renewable Resources Boards and Land Use Planning Boards were not treated consistently in being given notice or engaged in the review and management of protected areas throughout the bill.

To address these concerns, committee moved the following motions to ensure that Land Use Planning Boards were treated in the same manner as Renewable Resources Boards: 2, 11, 14, 21, and 34.

The committee also found that there were sections of the bill that did not adequately provide for the involvement of Renewable Resources Boards or Land Use Planning Boards in the development of establishment agreements and management plans, as well as being consulted on any transmission or transportation corridors. Accordingly, Committee moved the following motions 13, 18, 19, 25, and 26.

While the committee is confident that these concerns have now been addressed in the relevant sections of the bill, it is evident that better awareness of the paramountcy of the land claim agreements needs to be developed. Therefore, the committee makes the following recommendation:

Recommendation 1

The Standing Committee on Economic Development and Environment recommends that when employing a Technical Working Group for the development of future legislation, the Government of the Northwest Territories include co-management bodies in the process to resolve any conflicts between a provision of that act and a provision found in a land, resources or self-government agreement.

Reports

The committee heard some concerns on the reporting provisions of the bill. While the committee understands the desire to be less prescriptive in the legislation, the committee does recommend that, at the very least, the management boards of the protected areas established under this act be involved in drafting those reports.

Therefore, the committee makes the following recommendation:

Recommendation 2

The Standing Committee on Economic Development and Environment recommends that any required reports on protected areas should be developed in collaboration with the management boards established under this act.

Furthermore, the committee supports the need for flexibility and coordination with other reporting that falls under the Department of Environment and Natural Resources. The committee also notes that there are similar efforts in relation to public reporting on environmental and resource management that have the potential to overlap with the public reporting contemplated in section 97 of Bill 38. For example, the state of the environment reporting proposed in Bill 39: Environmental Rights Act, the state of the environment reporting under section 147(3)(a) of the Mackenzie Valley Resource Management Act, and similar efforts. To help prevent duplication of efforts, the committee makes the following recommendation:

Recommendation 3

The Standing Committee on Economic Development and Environment recommends that any required reports should be coordinated with reports required under other legislation, notably the Mackenzie Valley Resources Management Act and the State of the Environment Report pursuant to Bill 39: Environmental Rights Act, if and when it is passed.

Public Interest

The committee heard from many members of the public that Bill 38 establishes protected areas not just for the benefit of the current population but for future generations as well. There was broad support for this bill, but many comments focused on the importance of protected areas for the future, and that the bill as originally written did not adequately reflect this need.

The committee appreciated hearing from all members of the public who made submissions during the public hearings, and worked diligently to address the broad range of concerns. The committee discussed at length how best to incorporate these issues. The committee felt amending the purpose statement was the most effective way to ensure that the future generations would be considered when decisions were made under this act, and accordingly passed motion 3.

The committee also moved motions 12 and 17 to broaden what could be included in establishment agreements and to ensure that the effects of climate change be considered in management plans.

The committee also wanted to ensure that any area nominated for candidate status be considered in a timely fashion, so as to provide certainty to all parties as to the status of that land. Accordingly, committee moved motion 7. In the event of any reduction in size or delisting of a protected area, committee moved motion 20, to ensure that any adjacent community be consulted.

Transmission and Transportation Corridors

The section of the bill that received the most comment dealt with the establishment of transmission and transportation corridors through a protected area.

Some submissions asked for amendments that would entirely restrict any corridor through a protected area, while others would have allowed for nearly unfettered access to support industrial development. The committee debated these proposals numerous times, and tried to find a balance between them. To that end, the committee moved motion 22 to ensure that prior to any approval of a transmission and transportation corridor, any potential mitigation of potential impact on the biodiversity, ecological integrity and cultural continuity of the protected area be considered. The committee also moved motion 24 to ensure that the public would have an opportunity to comment prior to any corridor being established.

Regular Meetings on Protected Areas

The committee is pleased to see the beginnings of a cooperative and collaborative relationship develop between the Department of Environment and Natural Resources, the Indigenous Governments and organizations and co-management bodies which have a role in preserving protected areas. The committee would like to see this relationship continue to grow. Therefore, the committee makes the following recommendation:

Recommendation 4

The Standing Committee on Economic Development and Environment recommends that the Minister convene regular meetings with Indigenous governments or their designated representatives, protected areas management boards, and relevant co-management bodies for the purpose of promoting cooperative and collaborative working relationships for the effective management of protected areas.

Regulations

The committee heard from numerous Indigenous Governments and organizations that they appreciated the co-operative drafting process that was used on Bill 38, and that they want to see a similar process used for the development of regulations. Accordingly, the committee makes the following recommendation:

Recommendation 5

The Standing Committee on Economic Development and Environment recommends that the Minister develop a process for engaging Indigenous governments in the development of regulations under this and other devolution related legislation.

Clause-By-Clause Review of the Bill

The clause-by-clause review of the bill was held on June 3, 2019. The committee thanks the Honourable Robert C. McLeod, Minister of Environment and Natural Resources, and members of his staff, for their appearance before the committee.

At this meeting, the committee moved 30 separate motions to amend Bill 38. These motions are set out in Appendix 1.

Minister McLeod concurred will all of the committee's motions.

Conclusion

The committee commends the Minister for his willingness to work with committee to expedite the review of Bill 38 in response to public interest and support from Indigenous governments and non-governmental organizations, and working collaboratively with committee on the amendments.

The committee thanks all those who took the time to appear before committee to share their thoughts on this legislation.

Following the clause-by-clause review, a motion was carried to report Bill 38: Protected Areas Act, as amended and reprinted, as ready for consideration in Committee of the Whole.

This concludes the standing committee's review of Bill 38. However, two Members of the committee prepared a dissenting opinion of the report. I will now hand it over to Mr. O'Reilly, the Member for Frame Lake, to read this dissenting opinion. Thank you, Mr. Speaker.

Standing Committee on Economic Development and Environment Report On Bill 38: Protected Areas Act
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The Speaker Jackson Lafferty

Masi. Member for Frame Lake.

Standing Committee on Economic Development and Environment Report On Bill 38: Protected Areas Act
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Kevin O'Reilly Frame Lake

Merci, Monsieur le President.

Dissenting Opinion of Kevin O'Reilly, MLA Frame Lake, and Kieron Testart, MLA Kam Lake
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June 4th, 2019

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Kevin O'Reilly Frame Lake

Introduction

The Standing Committee on Economic Development and Environment was tasked with reviewing Bill 38: Protected Areas Act. Standing committee was able to reach agreement and compromises on a majority of matters. There is recognition of the strong support for the legislation from virtually all presenters in appearances and written submissions. We heard strong support for the co-drafting and co-development process, although there were significant reservations about the tight timelines used in developing this legislation in addition to concerns around the limited time to participate in Standing Committee review of the bill. Co-development of environmental and resource management legislation and regulations is consistent with the Devolution Agreement, section 35 Aboriginal rights in the Charter of Rights and Freedoms and the government's commitment to reconciliation with Indigenous peoples in the Northwest Territories. More is said in our report below.

We appreciate the hard work by standing committee and the Minister to significantly improve the bill by better incorporating co-management, more transparent reporting, increasing access to information and ensuring public participation throughout all aspects of protected areas establishment and management. While we support the expedited timelines to report this bill back to the House, standing committee has accomplished much of the heavy lifting that would have been done if the Technical Working Group had been given sufficient time before the Minister introduced Bill 38 into the House. It is our view that the standing committee also brought value to the legislative process through a focus on accountability, transparency, and public involvement in protected areas establishment and management.

Despite the substantial work of the committee, we believe that there are two major unresolved issues with Bill 38:

  • ministerial discretion over the nominated area process as established under section 10(2)(b) and 10(6); and
  • lack of a clear and unambiguous role for Indigenous governments and co-management authorities in regulation-making under section 98.

MINISTERIAL DISCRETION OVER THE NOMINATED AREA PROCESS

Through working with the Minister and his officials, standing committee gained a better understanding of the protected areas establishment process, including the nomination phase. While committee was initially interested in opening up the nomination phase to public participation, it was brought to our attention that previous efforts under the former Protected Areas Strategy had created high expectations but moved slowly and had some problematic features. For example, there was at least one instance where the lack of interim protection allowed third-party mineral interests to be acquired within the boundaries of a proposed protected area. We agree that the Minister thus had reasonable concerns about this happening again during the nomination phase set out under Bill 38.

Standing committee accepted this need for confidentiality around the nomination process. Some changes to Bill 38 were proposed and accepted that will better reflect a tighter nomination process that expedites the consideration of a protected area to the candidate stage. The candidate area process provides opportunities for public to be engaged on a variety of matters including boundaries.

However, there is still problematic ministerial discretion found in two places in the bill. Section 10(2)(b) requires that the Minister be satisfied that a nominated area "meets the purpose of this act and any prescribed eligibility criteria." The eligibility criteria can be set later in the form of regulations.

Section 10(6) gives the Minister unfettered discretion to reject a nomination, although reasons must be provided to the nominating party. We are of the opinion that this unrestricted discretion is unnecessary and, further, does not serve the public interest. The current ministerial discretion to reject nominations as contained in the bill does not provide sufficient accountability and could very well allow the Minister to reject nominations without shedding any light on the events that may have transpired.

We proposed amendments in Motion 8 to better define "ministerial discretion" in the nomination phase. We adopted additional circumstances, as outlined by the Minister in discussion with committee, as the basis for the discretion set out in section 10(6) and added these to the requirement criteria set out in section 10(b):

  • the nominating party has no asserted or established Aboriginal right or title in the area nominated;
  • the nomination covers all of the public land within an area of asserted or established Aboriginal right or title;
  • the nomination is frivolous, vexatious, or malicious; and
  • the nomination is solely within municipal boundaries.

While we appreciate that there is now agreement that the Minister shall consider nominated areas for candidate protected areas and interim protection, we remain concerned that there are no timelines for a decision by the Minister on a nomination. We are of the view that the nomination process should be done as quickly as possible to ensure that the integrity of the area is preserved and that the public is allowed to engage in the candidate area review process as soon as possible. The real debate and consideration of permanent protection will occur during the candidate area process set out in sections 11-13 of Bill 38. We believe that this public process at the candidate stage satisfies the public right to know information concerning proposed protected areas and allows for adequate and meaningful public participation in the process of determining a protected area.

It is increasingly common for firm timelines to be set out in many environmental and resource management statutes. For example, the Mackenzie Valley Resource Management Act sets out a number of statutory timelines for decisions as follows:

  • section 72.18(1) With respect to a federal area or lands outside a federal area, on an application for the issuance, renewal or amendment of a type A licence, or a type B licence in connection with which a public hearing is held, or if the board intends to consider, on its own initiative, the renewal or amendment of such a licence, the board shall make a decision within a period of nine months after the day on which the application is made or on which notice of the board's intention is published under subsection 72.17(1) or (2) [emphasis added];
  • section 72.18(3) The federal Minister shall, within 45 days after the board's decision is referred to him or her, notify the board whether or not the decision is approved and, if it is not approved, provide written reasons in the notification [emphasis added];
  • section 128(2) The Review Board shall, within nine months after the day on which a proposal is referred to it under section 125 or subsection 126(2) or the day on which it starts to conduct an assessment under subsection 126(3), complete its environmental assessment and make a report of that assessment [emphasis added]; and
  • section 137.4(4) A development certificate shall be issued within 30 days after the first day on which the Review Board has received all applicable decisions [emphasis added].

We are of the view that 90 days should be sufficient for the Minister to make a determination on a nomination and either to reject it with reasons or forward it on to the candidate review process. To remove the unfettered ministerial discretion over the nomination phase and ensure a timely decision on nominated areas, we proposed Motion 9.

Mr. Speaker, I would like to turn the remaining part of the dissenting opinion over to my colleague, the honourable Member for Kam Lake. Mahsi, Mr. Speaker.

Dissenting Opinion of Kevin O'Reilly, MLA Frame Lake, and Kieron Testart, MLA Kam Lake
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The Speaker Jackson Lafferty

Masi. Member for Kam Lake.

Dissenting Opinion of Kevin O'Reilly, MLA Frame Lake, and Kieron Testart, MLA Kam Lake
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Kieron Testart Kam Lake

Thank you, Mr. Speaker.

INDIGENOUS GOVERNMENTS AND CO-MANAGEMENT BOARDS IN REGULATION-MAKING

The committee heard that there was a strong desire and need for direct involvement in the regulation-making under Bill 38 and the other post-devolution bills from virtually every Indigenous government and co-management board that presented or made a written submission as shown in the annex to this dissenting opinion. The evidence shows representations were made directly to the Minister about such direct involvement in regulation-making during the co-drafting process, months before Bill 38 was brought before the House. Some Indigenous governments suggested specific wording and precedents. These positions were represented again before the standing committee during its review of Bill 38. The evidence shows that the following Indigenous governments, co-management boards, and organizations have requested direct involvement in the development of regulations under a Protected Areas Act:

  • 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; and
  • Non-Governmental Organizations (Alternatives North, Canadian Arctic Resources Committee, Council of Canadians - NWT Chapter, and Ecology North).

Involvement in regulation-making is consistent with the manner in which Bill 38 itself was developed, as a co-drafting exercise pursuant to the Intergovernmental Agreement on Lands and Resources. Co-management boards also need to be involved. They are established pursuant to constitutionally protected land rights agreements to ensure Indigenous citizens have a meaningful say in NWT resource management. Co-management boards have well-established procedures and processes that can benefit the Government of the Northwest Territories in co-developing regulations. Co-management boards also have jurisdiction over some of the matters likely to be considered in regulations. They would be expected to carry out or coordinate their activities in relation to Bill 38. Thus, it only make sense to engage them in the development of such regulations. Furthermore, it does not serve anyone's interest to allow ambiguity in legislation over the role of constitutionally entrenched bodies and potentially creates a need for judicial review to settle any lack of consistency in the co-management regime.

We believe it is prudent to ensure that all laws respecting lands and resources passed by the Legislative Assembly are consistent with the acts of Parliament and binding legal agreements between the GNWT and Indigenous governments. New laws must also seamlessly integrate into the co-management system as complementary improvements to the overall regulatory system.

Given the extensive areas left to regulations for further detail, it is only reasonable that there be a clear and unambiguous role for Indigenous governments and co-management boards in regulation-making and this must be reflected clearly in Bill 38. This is not a new precedent as such a provision already exists in the Mackenzie Valley Resource Management Act section 143(1):

"The Governor in Council may, following consultation by the federal Minister with the territorial Minister, first nations and the Tlicho Government, make regulations for carrying out the purposes and provisions of this Part and, in particular, regulations..."

Standing committee has not been given any form of assurance from the Minister on what process, if any, there will be in the future for development of regulations under Bill 38 if and when passed, apart from an indication that there will be a pre-consultation assessment and that all legal obligations will be met. During the clause-by-clause review, the Minister was questioned on the next steps and regulation-making. He stated that the Intergovernmental Council is conducting a lessons learned process on the co-drafting experience and that regulation-making will be one of the items discussed.

The Minister's statement during the clause-by-clause review is problematic from a number of perspectives. The Intergovernmental Council does not include all the Indigenous governments and the co-management boards that were part of the co-drafting process for Bill 38 and other post-devolution legislation. It is not clear when the lessons learned process will be completed and whether there will be any agreement on a process moving forward with involvement or engagement in regulation-making. Standing committee has had a very short window to review and recommend improvements to the bill and should not rely on an outside process for any assurance that this important issue will be resolved. In the absence of a clear and unambiguous commitment from the Minister that the co-drafting process will continue on into regulation-making, we are of the opinion that this is insufficient changes are required to the bill to meet the clear expectations and requests as seen in the evidence before the standing committee.

We proposed Motion 29 to ensure there is a defined opportunity for Indigenous governments to receive notice of regulations under Bill 38, to comment on such regulations and a requirement for the Minister to fully consider any representations received. This does not take away from ministerial authority or discretion over regulations but imposes a duty of notice. Such notice is already the practice in some jurisdictions with regard to general regulation making processes whereby drafts are published in a gazette or on-line. For clarity, this duty of notice is a discrete requirement separate from consultation which has far-reaching legal consequences and may impact the ability for swift development and changes to regulations that may be required from time to time. While the motion may not go as far as some Indigenous governments and co-management boards would like, it is at least a start and moves us closer the "cooperative and collaborative governance with Indigenous governments and organizations" as set out in the preamble of Bill 38.

Lastly, in an effort to reach a reasonable compromise, we have put forward Motion 30 that establishes express authority for the Minister to enter into agreements with Indigenous governments and relevant co-management boards as to how engagement will take place on regulations. The amendment we have proposed does not require agreements but creates authority to do so. We note that the Sahtu Secretariat Incorporated indicated in its submission on Bill 38 that such an arrangement has already been drafted for future regulations under Bill 34 Mineral Resources Act. It is only prudent that there be a clear understanding and agreement on a process moving forward for the development of regulations for all post-devolution legislation. This was the promise of devolution and we have a collective duty to ensure its success.

Conclusion

We reiterate our thanks for all those who have worked very hard to bring Bill 38 forward. We eagerly await the promising start of a real conservation economy for the Northwest Territories, as represented by the passage of Bill 38. The standing committee should feel a great deal of satisfaction with the significant improvements to the bill that were achieved through collaboration between its Members and the sponsoring Minister. Our efforts in this dissenting opinion are aimed at making sure we have a well-functioning and timely nomination process for potential candidate areas.

It was our greatest hope that these matters could be resolved through the standing committee review of Bill 38 but with the accelerated timeframe brought to this process that was not possible. We also wish to continue to build the cooperation established in the co-drafting process of Bill 38 into the regulation-making and implementation, in the spirit of reconciliation and collaboration our residents expect. Thank you, Mr. Speaker.

Dissenting Opinion of Kevin O'Reilly, MLA Frame Lake, and Kieron Testart, MLA Kam Lake
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Masi. Member for Yellowknife North.

Dissenting Opinion of Kevin O'Reilly, MLA Frame Lake, and Kieron Testart, MLA Kam Lake
Reports Of Standing And Special Committees

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Cory Vanthuyne Yellowknife North

Thank you, Mr. Speaker. I seek unanimous consent to waive Rule 100(4) and to have Committee Report 18-18(3), Standing Committee on Economic Development and Environment Report on the Review of Bill 38: Protected Areas Act, moved into Committee of the Whole for consideration later today. Thank you, Mr. Speaker.

---Unanimous consent granted