This is page numbers 5791 - 5838 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 public.

Topics

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I think the heard the word "months." Okay, that's helpful to understand. I just want to turn to 10-6 under the current bill that is before us. It says: "The Minister may, in the Minister's discretion, reject a nomination made under this section." Can someone explain to me what sort of circumstances might lead to the Minister rejecting a nomination? Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. Jenkins.

Jenkins

Thank you, Mr. Chair. The act, as written, does ensure that the Minister will make transparent and accountable decisions on whether a nominated area can be considered by Executive Council for approval as a candidate area. The act was revised for the committee process to state that the Minister shall consider an area for approval, and those decisions regarding a nomination must always be made in accordance with the act and in good faith. There could be a multitude of situations where the Minister may have to reject, to use his discretion or her discretion, to reject a nomination. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. Can I ask whether the department has thought about what sort of criteria the Minister would use in exercising his or her discretion then in deciding whether to accept a nomination or not? Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. Jenkins.

Jenkins

Thank you, Mr. Chair. We did, through this process, have some thinking around possible scenarios that could warrant rejection, but it was simply not possible to have an exclusion list that could, within the act, that could reflect all the possible scenarios that could arise.

In the future as we move into implementation of this act, more guidance to the Minister could be made through the development of regulations to prescribe eligibility criteria, and such criteria that those would be based on learned experience through implementation of this important piece of legislation, and we feel that this would be an appropriate and responsible path forward. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I see that the Minister can prescribe eligibility criteria. Does the Minister or his staff have any thought about how long it might take to develop that list? Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. Jenkins.

Jenkins

Thank you, Mr. Chair. It is one of the areas that we would have to look at. There is some regulatory work that we would need to do in the near future, but it is a process that would need to be discussed, nothing yet to be determined. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I'm sorry; I am going to put the law clerk a little bit on the spot here, if I may. I have a legal question, then. Even though there are, sort of, a checklist of items that the Minister shall consider under section 10(2) of the act, and they include, you know, that the area is made up exclusively of public land, and that there is consent given if there is private land there, that the area has to meet the purpose of this act and any prescribed eligibility criteria. Would it be fair to say that, under 10(6), the Minister still has discretion above and beyond those items that are listed to make a decision to reject an area? Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you, Mr. O'Reilly. I will direct this to our law clerk. Mr. Law Clerk.

Law Clerk Mr. Kruger

Thanks, Mr. O'Reilly. The way that I would interpret this is that, under section 10(2), there are certain mandatory criteria that need to be considered by the Minister, a certain floor of criteria that need to be considered, if you will. Then, under 10(6), the Minister may take matters into consideration and exercise his or her discretion beyond the matter stipulated in section 10(2).

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. Just one more question, if I could, of the law clerk. Under 10(6), it says that the Minister may, in the Minister's discretion, reject a nomination made under this section. Is it fair to say that the Minister has total and unfettered discretion, then, to decide whether to accept a nomination or not? Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. Law Clerk.

Law Clerk Mr. Kruger

There are general rules as to the exercise of Ministerial discretion that would need to be followed. Certainly the Minister would be required to exercise discretion in good faith, in accordance with the purpose of the act, not frivolously, those sorts of things, but those are more general principles that reply to Ministerial discretion generally, and are not necessarily bound to just exercise of discretion under this act.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. That is my understanding of 10(6), that really the Minister can exercise a lot of discretion in deciding whether to accept an area or not for nomination. The Minister, under the act, though, also has a lot of discretion in accepting whether an area that has been nominated gets into the candidate phase and is actually formally established as a protected area. The Minister also has discretion about changing the boundaries of a protected area or even deregistering it, basically, doing away with a protected area. Those are found in other sections of the act. I am just concerned that the Minister has a lot of discretion under 10(6), and as I understood it, this was really sort of to be a conformity check to get it into the candidate process, where there could be full public debate and discussion.

I think I have made my points, Mr. Chair. If I can, can I move on to proposed motions to amend the bill at this point?

The Chair

The Chair R.J. Simpson

Mr. O'Reilly, your time is expiring, and if you wish to raise your hand to move a motion, that is within your rights. Mr. O'Reilly.

Committee Motion 149-18(3): Bill 38: Protected Areas Act - Motion to Amend s. 10(2), Defeated
Consideration In Committee Of The Whole Of Bills And Other Matters

June 5th, 2019

Page 5802

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I move that subclause 10(2) of Bill 38 be amended by deleting paragraph (b) and substituting the following:

(b) if the Minister is satisfied that the area meets the purpose of this act, unless,

(i) in the case of a nomination by an Indigenous government or organization, the nominating party has no asserted or established Aboriginal right or title in the area nominated;

(ii) the nomination covers all of the public land within an area of asserted or established Aboriginal right or title;

(iii) the nomination is frivolous, vexatious, or malicious;

(iv) the nomination is solely within municipal boundaries; or

(v) the nomination does not meet any prescribed eligibility criteria.

Thank you, Mr. Chair.

Committee Motion 149-18(3): Bill 38: Protected Areas Act - Motion to Amend s. 10(2), Defeated
Consideration In Committee Of The Whole Of Bills And Other Matters

Page 5802

The Chair

The Chair R.J. Simpson

Thank you, Mr. O'Reilly. There is a motion to amend on the floor. The motion is in order. To the motion to amend. Mr. O'Reilly.

Committee Motion 149-18(3): Bill 38: Protected Areas Act - Motion to Amend s. 10(2), Defeated
Consideration In Committee Of The Whole Of Bills And Other Matters

Page 5802

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I think, through the questions that I had of the Minister and his staff, I was trying to get to a point where we would better understand how this nomination process is really supposed to work.

I don't want to relive what was written in the dissenting opinion that we read into the House yesterday, but as I understood, the nomination process is supposed to happen quickly and is basically like a checklist. If the supplied information is provided, it should be just a straight conformity check that, once the supplied information is put together, a decision is made on forwarding that area into the candidate review phase. That is where the Minister has discretion, at the end of the day, to decide whether to establish an area, but also give it some interim protection and that the public can have a say in that, in how the boundaries might be set, in who might manage it, and all of that stuff would be negotiated through an establishment agreement.

The nomination phase is really meant to happen quickly, confidentially, and as long as the basic information is submitted, the Minister is supposed to make a decision. I don't understand why there is this unfettered discretion, in my view, in section 10(6), where the Minister may, at the Minister's discretion, reject a nomination area under this section.

In working with the Minister on the committee, we were provided a list of circumstances under which the Minister might decide to reject a nomination. That is what this list is in the amendment, the list that we were provided by the Minister and his staff. These were the reasons why the Minister might not want to accept a nomination. What I have done here is just to incorporate the list that the Minister gave us as the reasons why the Minister could still reject an area for nomination, so it becomes like a conformity check.

I also think of this as like somebody applying for a job. Do you meet the basic requirements? If you do, you get screened in, and you get an interview. That interview is what the candidate area process is all about. That is where everybody has a chance to look at it, decide whether the candidate is good or not, and you have a chance to talk to them, interact with them, you can double-check references, and so on. If everything checks out, they get the job; the area gets established as a protected area.

I think of this nomination process as sort of the basic requirements of something moving forward, a simple conformity check, and if it meets those basic things, it just gets forwarded on to the candidate review process. That is the way that I have understood this to work and its intention, and I think that my effort here is to try to clarify the Minister's authority over that process, to make for an efficient process and make for a fair process. That is what the intention is here. That is all I am trying to do, Mr. Chair, and I look forward to the discussion and debate. Thank you.