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.