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.