Thank you, Mr. Chair. Finally, I move that this Assembly recommends that the Minister develop a process for engaging Indigenous governments in the development of regulations under this and other devolution-related legislation. Thank you, Mr. Chair.
Committee Motion 148-18(3): Standing Committee on Economic Development and Environment Report on the Review of Bill 38: Protected Areas Act - Process for Development of Regulations, Carried
In the Legislative Assembly on June 5th, 2019. See this topic in context.
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The Chair R.J. Simpson
Thank you, Mr. Vanthuyne. There is a motion on the floor. The motion is in order. To the motion. Mr. O'Reilly.
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Kevin O'Reilly Frame Lake
Thanks, Mr. Chair. I think it's fair to say that all of committee agreed with this recommendation. We all have maybe some different ways we want to go at this. We are going to deal with that when we get to the clause-by-clause review of the bill, but we heard very strong evidence from the Indigenous governments themselves that they want to have a clear role moving forward in development of regulations, similar to the process that was used in actually developing the bill itself. I support the recommendation. I support co-management. This is coming directly from the Indigenous governments themselves. We may deal with this in terms of some amendments when we get to clause by clause, but I stand by this recommendation, and I look forward to a formal response from the Minister. Thank you, Mr. Chair.
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Kieron Testart Kam Lake
Thank you, Mr. Chair. As we discussed in our report, there was an effort to put something similar in law around this, the co-drafting process, so that there would be a clear pathway for engagement of Indigenous governments in the Northwest Territories. When we undertook our standing committee hearing of the bill, the Minister indicated at the time that this discussion would play out at the intergovernmental council. The only concern I have around that is many of the Indigenous governments that were invited to participate in the co-drafting exercise are not signatories to the devolution agreement and are not members of the intergovernmental council. Given that they had an opportunity to have a seat at the table for the co-drafting process, I think it's prudent to continue that process moving on. So giving the Minister the authority to develop a protocol and that is clearly laid out in law just gives certainty to our Indigenous partners that there will be something moving forward. I certainly don't think I heard anything from our consultations that the relationship as it relates to these bills was flawed. I think everyone had very good things to say about a strong working relationship with the GNWT on co-drafting. There were some process issues, but they can work those out. The real priority for me is to ensure that these things continue, so I support this motion.
Again, this is a recommendation to government. It may be moved by the House and accepted by the House, but it's not adopted by the government necessarily, so the government will take its time to respond to these recommendations. I would like to see more certainty. Although I appreciate this motion, we need to go a bit further because that is what we heard and that is our role as lawmakers, to ensure the laws reflect the will of the people. Thank you.
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Some Hon. Members
Question.
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The Chair R.J. Simpson
Question has been called. All those in favour. All those opposed. The motion is carried.
---Carried
Well, that is it for the recommendations. Does committee agree that this concludes our consideration of Committee Report 18-18(3)?
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Agreed.
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The Chair R.J. Simpson
Thank you, committee. This concludes our consideration of the report. We have next agreed to consider Bill 38, Protected Areas Act. It can be found in your big grey binders. I would like to welcome to the floor, in his first official duties on the floor as deputy law clerk, Mr. Toby Kruger. If committee is all ready, I will ask the Minister responsible for Bill 38 to introduce it. Minister McLeod.
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Robert C. McLeod Inuvik Twin Lakes
Thank you, Mr. Chair. I am pleased to introduce Bill 38, Protected Areas Act. The bill sets out the processes for establishing a protected area in the Northwest Territories. The bill lays out the process to nominate the candidate area, how establishment agreements with Indigenous governments or organizations will be entered into for management of a protected area, regulation-making authorities, and prohibited and acceptable activities in a protected area.
Environment and Natural Resources has developed the bill through a partnership process with a technical working group that is comprised of Indigenous governments and organizations and renewable resource boards. Valuable input was also received from a stakeholder advisory group, public engagement, consultation with Indigenous governments and organizations, and other GNWT departments. The department appreciates all comments and recommendations provided through the Standing Committee on Economic Development and Environment review process, and the department is confident that the bill has become stronger with their amendment.
That concludes my opening remarks, Mr. Chair. Thank you.
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The Chair R.J. Simpson
Thank you, Minister. Does the chair of the Standing Committee on Economic Development and Environment have any opening remarks? Mr. Vanthuyne.
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Cory Vanthuyne Yellowknife North
Thank you, Mr. Chair. No further remarks. I appreciate the Minister's comments, and we look forward to going through the bill clause-by-clause. Thank you.
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The Chair R.J. Simpson
Thank you. I understand the Minister has witnesses he wishes to bring into the Chamber. Sergeant-at-Arms, please escort the witnesses into the Chamber. Minister, would you please introduce your witnesses for the record.
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Robert C. McLeod Inuvik Twin Lakes
Thank you, Mr. Chair. I have with me, to my left, Mr. Robert Jenkins, who is the assistant deputy minister of Environment and Climate Change. To my right, I have Ms. Kelly McLaughlin, who is legislative counsel with the Department of Justice. Thank you, Mr. Chair.
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The Chair R.J. Simpson
Thank you. Welcome to the witnesses. I will now open the floor to general comments on the bill, if there are any. Please restrict comments more to the bill, not so much to committee travel and things like that. Do we have any general comments on bill 38? Everything has been said, I guess.
All right, committee, we will move into a clause-by-clause review of the bill. We will defer the bill and title until after consideration of the clauses. We have 101 clauses, so if committee is okay with it, I will move the clauses in groups of approximately 10. Does committee agree?
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Some Hon. Members
Agreed.
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The Chair R.J. Simpson
Thank you, committee. Please turn to page 9 of the bill. I will call out the clauses. If committee agrees, please respond accordingly. Clauses 1 through 9.
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Agreed.
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Shane Thompson Nahendeh
A question for clarification here. When I look through the definition here, I don't see the Deh Cho Interim Measures Agreement or the Deh Cho land use planning process here. Can the Minister explain where that part of this is? Thank you, Mr. Chair.
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Jenkins
Thank you, Mr. Chair. The act will refer to land use planning boards and bodies throughout, so that would capture any bodies associated with that in the Deh Cho. Thank you, Mr. Chair.
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Shane Thompson Nahendeh
Thank you. I just wanted to clarify because I didn't see it in the bill. Thank you, Mr. Chair.
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Agreed.
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Kevin O'Reilly Frame Lake
Thanks, Mr. Chair. Yes, I have some questions. I would like to start with of our witnesses, if I can. I would like to know, and this is with regard to the nomination process for identifying potential protected areas, I would like to know from the Minister's staff: what sort of time frame was required for this nomination process under the old Protected Areas Strategy? Thanks, Mr. Chair.
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Jenkins
Thank you, Mr. Chair. In terms of time frames that we have, with respect to nomination, there are none laid out explicitly in the bill, but it is expected that they would be done without delay. I can't speak, unfortunately, to the time frames that were used during the Protected Areas Strategy. Thank you, Mr. Chair.
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Kevin O'Reilly Frame Lake
Thanks, Mr. Chair. Okay. Can I get some understanding of how the nomination process worked under the old Protected Areas Strategy? Thanks, Mr. Chair.
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Jenkins
Thank you, Mr. Chair. It is my understanding that there was a collaborative process that worked towards nomination of areas. Thank you, Mr. Chair.
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Kevin O'Reilly Frame Lake
Thanks, Mr. Chair. Okay. The Protected Areas Strategy, of course, was not a legislated process in any way, and what we are trying to do here is codify this process in a fairly prescriptive manner. Can the Minister tell us how long he would expect that the nomination process would take place under this bill? Thanks, Mr. Chair.
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Jenkins
Thank you, Mr. Chair. We would have timely decisions made. Again, they are listed. We did accept standing committee's motion to add a clause that an area nominated shall be considered by the Minister without delay. There is a process where that would be nominated, either by an Indigenous government or by the GNWT, and there is quite a process that would move forward between bringing forward a nominated area to Executive Council for their approval as a candidate area, and some of those pieces include the area being reviewed against the purpose of the act. The GNWT must discharge its duty to consult. We would need a description of the boundary sufficient for interim protection. That must be completed. We would need consent from any private land owners, and we would need to make sure that adequate interim surface and subsurface protection public land must be in place. Obviously, Mr. Chair, we would expect that this would take an amount of time into the months to be undertaken. Thank you, Mr. Chair.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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?
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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.