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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 26, 1996

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[English]

The Chairman: Thank you all for being here, especially those of you who have been asked to come back.

We are still dealing with Bill C-51, An Act respecting the water resources of Nunavut. We greet, from the Department of Indian Affairs and Northern Development, Will Dunlop, Ron Bailey, Brian Gibson, Mary Douglas and Tom Molloy, and from the Department of Justice, Richard Makuch.

You're aware of the comments made when we had the public hearings, and I suspect you're in a position to address by a short presentation. Take the time you need. Usually when I say short I'm asking people to be short, but not this time. We need information to be flowing so that we can deal with this bill and resolve it.

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I invite you, Mr. Dunlop, and any of your colleagues, to make a presentation.

Mr. Will Dunlop (Director, Resource Policy and Transfers Directorate, Department of Indian Affairs and Northern Development): Good morning, Mr. Chairman, and members of the committee. Thank you for inviting us back to speak with you.

You've heard the assertions that the department failed to consult properly in developing this legislation, that the bill is not in accord with the Nunavut Land Claims Agreement, and that Bill C-51 should be withdrawn.

We delivered a written submission to the committee early this morning - sorry about the hour - related to specific sections of the bill.

At this point we would like to comment on the remarks made to you last week by Nunavut Tunngavik Incorporated, NTI. Mr. Tom Molloy, the chief federal negotiator for the Nunavut land claim, has a number of remarks.

Mr. Tom Molloy (Chief Federal Negotiator, Nunavut Land Claim, Department of Indian Affairs and Northern Development): Thank you very much. I was the chief federal negotiator on the Nunavut land claim from March 1982 until the agreement was ratified in 1993. At the time I became responsible for the negotiations, the only subagreement that had been concluded was a wildlife agreement that had not yet been ratified by government. I was therefore involved, and negotiated all of the other provisions of the agreement, including the provisions relating to the Water Board.

While the Water Board represented one of the cornerstones of land and resource management, the negotiation of that subagreement occupied very little time at the negotiating table. As the Water Board was to be an institution of public government and because there was one in existence at the time through the Northern Inland Waters Act, much of the detail that has been found in other management agreements was not required.

The Inuit tabled their water provisions at the October 30 to November 1 session in 1984, where they were reviewed briefly. The government tabled a response in December 1984, and a few days were spent in negotiations. The provisions were again negotiated and concluded on January 18 or 19, 1985.

At each of these sessions to which I made reference, other topics were also being negotiated, so you can see by contrast the length of these negotiations with, say, the Nunavut Impact Review Board, which consumed many months of time.

There was existing legislation, but we did not want to forever cast the Water Board, as it existed, in stone, and there was a need to allow for changes to the board.

In closing, I would like to quote from the Nunavut newsletter of January/February 1985, volume 4, number 1, which is a publication of the Tungavik Federation of Nunavut. It's talking about the Nunavut water provisions:

Later on in the same article it says:

Then, on page 3, in quoting from the then-chief negotiator, Allen Maghagak, it says:

That's all I have to say.

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Mr. Brian Gibson (Senior Offshore Water Specialist, Water Resources Division, Environment and Renewable Resources Directorate, Department of Indian Affairs and Northern Development): Thank you, Mr. Chairman.

I've been with the water resources division of the department for more than 20 years. I was involved in the implementation administration of the Northern Inland Waters Act. I was involved in the negotiations of the water management provisions of the Nunavut Land Claims Agreement. I was the desk officer responsible for the development of the existing legislation in the Northwest Territories Waters Act.

I'd like to provide the committee with a little background on the legislative context within which the water management provisions were negotiated.

When negotiations began on the water provisions of the Nunavut Land Claims Agreement, the Minister of Indian Affairs and Northern Development was responsible for water management in the Northwest Territories. Those responsibilities were carried out under the general mandate provided by the Department of Indian Affairs and Northern Development Act and the specific mandate provided by the Northern Inland Waters Act.

The Northern Inland Waters Act came into force in 1972. Basically, it vested the property and the right to the use of water in Her Majesty in right of Canada. With the exception of domestic uses and some firefighting and emergency flood control uses, any person who wanted to use water either had to be authorized by the regulations or licensed under the act. The same restrictions applied to the deposit of waste.

The minister was provided with the authority to enter into interjurisdictional water management agreements. Offences and penalties were established in the act, and inspection and enforcement powers were provided and carried out by departmental staff designated by the minister.

The unique feature of the Northern Inland Waters Act was the establishment of the Northwest Territories Water Board to carry out the water-licensing function of the water management mandate. Under the act, the Water Board was empowered to issue licences for those uses and deposits of waste that were not authorized under the regulations and to hold public hearings in connection with licence applications. The minister was empowered to approve all licences issued by the Water Board.

I should point out that during the Nunavut Water Board's appearance before the committee last week, the board's legal adviser stated that the minister had no authority to approve licences under the Northern Inland Waters Act. That is not the case. Subsection 11(1) of the Northern Inland Waters Act in the Statutes of Canada 1985, chapter N-25 states:

Thus, when negotiations began on the water provisions of the land claims agreement, the Northern Inland Waters Act and its management regime had been operating for several years. Everyone was familiar with it. For the most part, we're happy with its application.

As indicated earlier by Mr. Molloy, the negotiators agreed that there was no need to create an entirely new water management regime in the provisions in the claim agreement, but that the Northern Inland Waters Act could be used as a basis so that the claims agreement would contain those water management provisions that were identified through negotiation as those that should be different from the provisions contained in the Northern Inland Waters Act.

That, Mr. Chairman, is why article 13 is so short. A legislated water management regime was already in place. The intention was that this regime, which was to be implemented in the Nunavut settlement area, was to be the existing scheme, as modified by the provisions of the claims agreement. Nothing was omitted from article 13.

That's also the reason that article 13 lacks the detail of other articles, such as articles 11 and 12, which deal with the land use planning board and the Impact Review Board, respectively. No legislation existed for such boards, so all the details had to be included in the agreement.

The fact that the claims agreement is silent on any particular issue does not mean that the issue should not be covered by the legislation. What it does mean is that the negotiators agreed that the way the issue was dealt with in the Northern Inland Waters Act was acceptable and that it didn't need to be addressed further in the claims agreement.

An example may help to illustrate this point. The Nunavut Land Claims Agreement provides the Nunavut Water Board with the authority to approve all uses of water and deposits of waste in the Nunavut settlement area, with the exception of the same uses they're exempted from under the Northern Inland Waters Act.

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Section 13.9.1, under the heading ``Enforcement'' states:

That is the only reference in article 13 to enforcement. What is to happen if a person proceeds to use water without the Water Board's approval or if a person does not comply with a licence that the Water Board may have issued? Article 13 is silent on this matter. Does the board have a role?

Under the Northern Inland Waters Act, the board had the authority to cancel a licence if the conditions were not being met.

The department has taken the position that the Nunavut Water Board must continue to have that authority, since it did under the Northern Inland Waters Act. So we've included it in Bill C-51, even though the claims agreement is silent.

In addition, the Northern Inland Waters Act and the Northwest Territories Waters Act contain an extensive scheme for inspection, enforcement, offences and penalties. Again, the agreement is silent.

The department is of the position that the existing scheme is to be included in Bill C-51. To provide the Water Board with a regulatory authority without an enforcement scheme would be, in our opinion, irresponsible.

From the Northern Inland Waters Act we move to the Northwest Territories Waters Act and then on to Bill C-51. I'd like to try to make that transition for you, if I might.

Between 1972 and the time negotiations on the water provisions of the claims agreement began, the department had accumulated several years of experience in administering the Northern Inland Waters Act. Certain problems had been identified, so the department initiated a consultation process through which amendments to the Northern Inland Waters Act would be developed.

The identified problems of the Northern Inland Waters Act were brought to the land claims negotiating table and were discussed in detail there. The negotiators were interested in the amendments we were considering to deal with the problem since the water management provisions of the claims agreement were to take into account current water management legislation.

I know that because I was the one who brought the issues and the proposed amendments to the attention of the negotiators. In the end, when it became apparent that the department was not going to be able to amend the Northern Inland Waters Act prior to the finalization of the claims agreement, the negotiators agreed to lock the responsibilities and powers of the Water Board under the Northern Inland Waters Act into the claims agreement as the basis for the Nunavut Water Board.

At the same time, the negotiators left the door open to include other powers and responsibilities that might eventually be included in an amended Northern Inland Waters Act. To accommodate that possibility, section 13.2.1 of the agreement provides the Nunavut Water Board with responsibilities and powers on a basis at least equivalent to that held by the Nunavut Water Board under the Northern Inland Waters Act.

The words ``at least equivalent to'' do not often appear in a document with the force of law. On their own, they create a great degree of uncertainty. Within the context of how the water management provisions were being negotiated, however, these words do provide a level of certainty, with some flexibility built in as well.

The effect of these words was to allow the legislation that would be developed to implement the provisions of the agreement to include Water Board responsibilities and powers beyond those included in the Northern Inland Waters Act. At the same time, the words guaranteed that the responsibilities and powers provided to the Nunavut Water Board must be at least equivalent to those provided to the Water Board under the Northern Inland Waters Act. Section 13.2.1 does not mean that the responsibilities and powers have to be the same as those under the Northern Inland Waters Act.

Subsequent to the finalization of the land claims agreement, the department was successful in amending the Northern Inland Waters Act. The result was the Northwest Territories Waters Act, which was passed in 1992. It came into force in 1993, a short time after the Nunavut Land Claims Agreement Act.

The new Northwest Territories Waters Act, which is based on the old Northern Inland Waters Act, maintains the basic principles of its predecessor. It contains the amendments that were discussed at the land claims negotiations as well as some additional ones.

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The new act is a much more effective tool for water management than was the Northern Inland Waters Act, and so was used as the basis for the development of Bill C-51. It's important to keep in mind that Bill C-51 is intended to implement a complete water management regime in the Nunavut settlement area, and not deal only with the responsibilities and powers of the Water Board.

With respect to the responsibilities of the Water Board under the Northern Inland Waters Act versus those of the Water Board under the Northwest Territories Waters Act, the department is of the opinion that, with one exception, the Water Board under the new act has more responsibilities and powers than the board under the old Northern Inland Waters Act. The one exception deals with the matter of the minister being able to issue binding policy direction to the Water Board. That provision was not explicitly contained in the Northern Inland Waters Act, but does appear in the Northwest Territories Waters Act.

Thus, in drafting Bill C-51, the Northwest Territories Waters Act was used as the template, with the provision dealing with the ministerial policy direction being dropped, and the provisions of the land claims agreement being implemented.

We refer members to the table that was included in the written material we handed out this morning.

Is that right, Ron?

There's a short, two-page table that compares the various Water Boards under the Northern Inland Waters Act, the Northwest Territories Waters Act, and Bill C-51.

The department believes the result, being Bill C-51, is a piece of legislation that provides a much better water management tool than did the Northern Inland Waters Act. It implements the provisions of the land claims agreement and it provides the Nunavut Water Board with more responsibilities and powers than the Water Board had under the Northern Inland Waters Act.

In its presentation to the committee on November 19, NTI submitted that there is now no rush to put legislation in place because the Nunavut Water Board has been established and is operating under the mandate provided by the land claims agreement. It is the position of the Department of Indian Affairs and Northern Development that the land claims agreement by itself does not provide the necessary framework to provide the legal certainty required by the board to carry out its mandate. The only way to provide that certainty is with legislation.

The department wants to minimize questions of jurisdiction and any uncertainty around the board and its authority. We do not want challenges to the board's duties and powers or to the jurisdiction of the Northwest Territories Water Board or the Northwest Territories Waters Act.

The department endorses the validity of the concerns of the Nunavut Water Board, which were expressed in its presentation to the committee on November 19, that:

Legislation is needed now, Mr. Chairman.

Thank you.

The Chairman: Does that complete your presentation?

Mr. Dunlop: No.

The Chairman: Before we go on, I want to clarify something for the record. When you say ``the negotiators agreed'', could you tell us who you are talking about? Who are the negotiators? Who is represented by those individuals? You mentioned a few times that ``the negotiators agreed''. Could you list them, please?

Mr. Gibson: Several negotiators were involved over the period, I believe. Mr. Molloy might be able to give you a better handle on who those were.

The Chairman: I'm just trying to establish that at one point there was an agreement, and I'd like for the record for it to be stated who reached the agreement we mentioned, please.

Mr. Molloy: In terms of the water provisions, the chief negotiator at the time the agreement in principle subagreement was reached was Allen Maghagak, who then was representing the TFN, which is now referred to as the NTI; me; and Ross McKinnon, who was a member of the federal government team but a representative of the Government of the Northwest Territories.

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The Chairman: Thank you.

Mr. Finlay (Oxford): Mr. Chairman, can I ask a point of information, please?

The Chairman: Very briefly.

Mr. Finlay: Mr. Gibson referred to a comparative table -

Mr. Ron Bailey (Lands Specialist, Resource Strategies, Department of Indian Affairs and Northern Development): There was a last-minute glitch in that table, and it didn't get included in the material. We'll get that to you as soon as we can.

The Chairman: Thank you. Carry on.

Mr. Dunlop: As you've heard, the Tungavik Federation of Nunavut, TFN, the predecessor of NTI, in negotiating the land claim, took the view that there was no need for implementing legislation, and that the various new institutions could take their authority and the powers from the agreement itself. That, however, is not what TFN in the end agreed to. Article 10 of the agreement is quite clear in this respect - Canada has an obligation to develop such legislation, and it's an obligation we take very seriously.

NTI's views to this day mirror the aspirations of TFN. Their views as expressed to us have been consistent and unwavering: a) that no further implementing legislation is needed or wanted; b) that the structure, order, and text to the agreement should be replicated in any implementing legislation; and c) that their concurrence is required before legislation goes forward. No such process or undertaking is contained in the agreement.

The department received special authority to use actual drafts of the legislation as a tool of consultation. Developing legislation in this participatory fashion is far from an appalling process. To the contrary, we submit that it is a transparent and meaningful consultation undertaking.

First discussions with NTI were held in September 1993. Prior to that meeting we distributed our first effort at a Nunavut surface rights bill. At that time, the department put forward its preference to develop the Nunavut surface rights tribunal bill first, the Nunavut water bill next, and legislation dealing with the Planning Commission and the Impact Review Boards last. We expressed the intention to base the Nunavut water legislation on the then new Northwest Territories Waters Act.

In December of 1993 we met again with NTI for discussions about surface rights and water legislation. The next meeting, in February, concentrated on a surface rights legislation. The department then made a conscious effort to concentrate on completing the surface rights legislation. From that time until June 1995 we met six more times with NTI. In that interval the department also held two consultation sessions with the mining and oil and gas industries.

During that period we received a variety of commentary and review, which was given serious consideration and examination in subsequent drafts of the bill. The department produced and distributed five additional drafts of that bill. In the meantime we were growing increasingly anxious with the looming July 1996 deadline.

In June 1995 we and NTI discussed the three other boards. NTI too noted that the July date was approaching, and wondered if we needed legislation at all. We subsequently met with NTI in August 1995 to discuss proceeding with legislation to establish the Water Board, the Planning Commission, and the Impact Review Board. We both agreed that legislation should be as simple and as straightforward as possible.

NTI again pressed for a change in the process of developing federal legislation, and asserted that they should be equal to DIAND in instructing federal drafters. Discussions also developed on the notion of a protocol that might guide future development of legislation and address such issues as disagreements over policy and interpretation, and settle differences.

NTI gave us the first draft of that protocol 11 months later. We responded to that draft in one month and await further word. At the same meeting we raised the idea of holding a workshop using an outside facilitator, with staff and representatives of NTI and the federal territorial governments, to discuss issues around the resource management legislation. That workshop was held in October 1995. This was the beginning of detailed discussion about the water legislation. The attendees there also included representatives from the Impact Review Board, the Planning Commission and the Water Board transition teams.

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The workshop lasted two days and was a full and a frank discussion of legislative issues and board powers. The facilitator's final report came out on November 28, 1995, and reported: ``There was a consensus that the legislation should create a complete code for water management in Nunavut, building on the Agreement and drawing from NIWA'' - the former Northern Inland Waters Act - ``and NWTWA'' - the Northwest Territories Waters Act.

On January 3 of this year we met again with NTI. They suggested that a simple enabling bill be put forward to establish the three boards, with detailed legislation to follow later. NTI was offended that we had begun work on a first draft. As agreed at that meeting, the department forwarded principles that could focus on issues and be used to steer or guide the legislative development. To date, we have no response.

In February 1996 we sent a first and a second draft of the proposed Nunavut Resource Management Act, which would create the regimes for the three boards. In March 1996 we met with some of the members and staff of the transition teams of the Impact Review Board and the Water Board. These meetings were very useful. There was a frank exchange of views about the legislation and the work ahead for the boards to be. The transition teams were organizing imminent meetings and workshops in the north, and we felt it was vital that they be aware of the nature of the draft bill.

At the end of that month, at the end of March, we met again with NTI. Here agreement was reached that we would just concentrate on developing a water bill and is affirmed by section 2.12.2 of that agreement and by subsection 6(1) of the Nunavut Land Claims Agreement Act.

In April we met with NTI and the Government of the Northwest Territories four times. One of the meetings also included the Nunavut Water Board transition team.

Early this May we met again with NTI, and the legislation was advanced through an excellent exchange of views. For example, we dropped the notion of the DIAND minister's ability to give policy direction to the board. For their part, NTI acknowledged that the Water Board should be in one of the larger communities and that such a location, a regional centre, was countenanced in the land claim implementation contract. June 7 was the last meeting with NTI on this legislation.

Consultations with NTI also included subsequent exchanges of correspondence. If the committee so desires, we have a record of that consultation.

The process of consultation employed by the department was and is in accord with the land claims agreement. The department consulted closely with a designated Inuit organization, NTI, and with the Government of the Northwest Territories. We funded the workshop facilitator last year. We discussed issues with NTI. We debated interpretations of the agreement with NTI. We shared drafts of the legislation with NTI.

Mention has been made of our efforts in developing other legislation. The department was indeed busy working on other legislation during that same period. For example, the Yukon Surface Rights Board Act was tabled on October 7, 1994. That bill took approximately 15 months to conclude with the Council for Yukon Indians.

During that same period we were developing the drafting guidelines for the proposed Mackenzie Valley Resource Management Act with the Gwich'in Tribal Council of the Northwest Territories. With the subsequent settlement of the Sahtu Dene and Métis land claim in 1994, we began the actual drafting of that proposed legislation. Hopefully committee members will see that bill soon - I pray. We are committed to working with both the Gwich'in and the Sahtu to produce our fourth draft of the proposed Mackenzie Valley Surface Rights Board Act.

We are presently engaged with the Government of Yukon and the Council of Yukon First Nations in developing our first draft of the proposed Yukon Development Assessment Process Act.

The department takes its responsibilities to implement and honour commitments and land claims settlements very seriously. Assertions to the contrary are unfounded. As to accusations about breaches of fiduciary duty, a matter for very serious consideration, the department would assert that there has been no such breach. To the contrary, officials are mindful in dealings with aboriginal claimant groups of the duty to uphold the honour of the Crown. It's a duty not taken lightly.

The department recognizes that as a land claims agreement, which is affirmed by section 2.2.1, the Nunavut Land Claims Agreement contains rights of the Inuit that are protected by section 35 of the Constitution Act, 1982. The department also recognizes the precedence of the Nunavut Land Claims Agreement over other legislation. It is affirmed by section 2.12.2 of that agreement and by subsection 6(1) of the Nunavut Land Claims Agreement Act.

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NTI has tabled written material with this committee addressing specific sections of Bill C-51. Ron Bailey will speak to that material, which will conclude our remarks.

Mr. Bailey: Mr. Chairman, as you know, last week NTI, the Nunavut Water Board and the Nunavut Planning Commission delivered to you submissions, and as Mr. Dunlop indicated and as you can see in front of you, we've provided you with our response to those submissions.

Over the course of the past 10 months or so, we have resolved many issues with NTI on this bill, but as you are aware, there are still some outstanding issues. I would like to share with you our view on three of those major issues.

The first one is the linkages between the three institutions, namely the Water Board, the Planning Commission and the Environmental Impact Review Board. NTI's point of view here is that the bill does not set out all the provisions of the agreement dealing with the relationship between the Water Board and the other institutions of public government.

DIAND's response is that NTI's proposed amendments are not adequate. The provisions NTI proposes cannot be included in isolation from other provisions in sections 11 and 12 that affect and explain them.

In February 1996 the department sent out draft bills on the three institutions that contained the linkages among them. In light of the time available, the parties subsequently agreed in March 1996 to concentrate only on the Nunavut waters bill because of its key regulatory role, and put off drafting the land use and environmental assessment process until a later date. Setting out these linkages in the water bill would involve doing what we had agreed must be put off to a later date.

Sections 13.4.2 and 13.4.5 of the agreement apply only if there's an approved land use plan. NTI agrees that there are, as yet, no approved land use plans, so the Water Board is not currently required to forward any applications to the planning commission.

In any case, the other linkages within NPC and NURB are in effect by virtue of the Nunavut Land Claims Agreement Act, which ratified the agreement in 1993. It is our intention to deal with the other linkages when drafting the NPC and NURB legislation.

A second outstanding issue is the question of board jurisdiction within national parks. NTI takes a view that the board should have a jurisdiction in national parks. Our view is that section 8.2.12 of the agreement expressly left the resolution of this issue with government. Water use and deposits of waste in national parks are managed under the National Parks Act. The government has chosen to exclude national parks from the board jurisdiction to avoid establishing duplicative water management regimes.

Finally is the question of ministerial approval of water licences. NTI's view is that section 13 of the agreement does not mention ministerial approval of water licences, in contrast with sections 11 and 12, which give the minister a role in relation to actions of the Planning Commission and the Impact Review Board. Thus, section 13 does not allow any such role for the minister.

DIAND's view is that the inclusion of ministerial authority for major water licences retains political accountability for the trade-offs between economic development and environmental protection for the federal government now and Nunavut governments in the future.

Unlike sections 11 and 12, which set out substantially complete regimes, the water provisions of the agreement in section 13 are acknowledged to be incomplete. The details of the new water regime are left up to implementing legislation. The agreement described only a few of the board's powers and established only a few restrictions on the choices government could make for the regime, one of which was that Nunavut Water Board's powers were to be at least equivalent to those provided for the NWT Water Board under the former Northern Inland Waters Act.

At the time the agreement was being negotiated, the water management regime was contained in NIWA. NIWA required ministerial authority for all licences issued by the NWT Water Board. If the agreement was intended to prohibit such an authority, it would have addressed it expressly.

To the extent ministerial approval is considered to restrict licensing power of the Water Board, the Nunavut Water Board's powers will be in excess of those held by the NWT Water Board under NIWA, as the minister had the authority to approve all water licences under that act, and under this bill only approves major licences.

That concludes our presentation.

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The Chairman: I will start by stating that each one of us probably has a different interpretation of what constitutes ``adequate consultation''. I'll leave it up to each member to pass judgement on that, but I can tell you personally that I know there are 150 negotiation tables around this country. I am impressed by the amount of consultation. That is my personal view, not the committee's view. I leave it up to each individual to pass judgement on that.

Members, when we deal with the bill clause by clause, if there are to be amendments they will come from you. This is an opportunity to research and to get information on your intent to amend. We have an opportunity to get information, which could be verified by the other side if you wish.

I will open it up for questions. Keep in mind that eventually we will deal with clause by clause, and if there are to be amendments, we need constructive information.

Monsieur Bachand.

[Translation]

Mr. Bachand (Saint-Jean): You are right, Mr. Chairman. As far as consultation goes, it's very arbitrary right now. Some say there has been enough and others not. I for one don't want to judge too rapidly. I feel a bit like we're an adjudication board today.

Last week, we had before us people saying they hadn't been consulted and today we have people saying they were consulted. I'm a unionist from way back, I was in charge of grievances, and I'll try to get to the facts to have a better idea of what I should do.

Nunavut Tunngavik Inc. put forth one argument last week. They were saying that the bill we were examining was no more or less than a duplicate of the Northwest Territories Water Act. I'd like you to tell me if you think the people from Nunavut Tunngavik Inc. are right or wrong.

Second, in everything I've read, there is the key date of 9 July 1995. On that date, the Surface Rights Tribunal, the Nunavut Water Board, the Nunavut Impact Review Board and the Nunavut Planning Commission should have been established. Why did the date of July 9 go by without anything being done at that level?

Then, the Inuit who came to meet us last week told us that if the key date went by, if the government had not been able to honour the commitments by those dates, then there was no urgency for the matter to be settled any more. So why not discuss the bill in depth? We can feel there is some urgency to act.

In their presentation, they also raised things that left me a little puzzled. I'd like to have your reaction. More particularly, concerning the joint consultation process we were told:

[English]

[Translation]

I'd like to have more specifics on what's being said here.

Mr. Chairman, I know that time is flying but I must admit that personally, I'm not ready to examine the amendments immediately. We'll have to get to the bottom of things, I still have another question to put.

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The Chairman: We have absolutely no intention of doing clause- by-clause today. I think this bill deserves our full consideration and we will give you all the time you need. So we can go for a second round and you'll be able to put all your questions at the same time.

Mr. Bachand: I have a question I'd like to get your reaction to about the consultation. It says:

[English]

[Translation]

I'd like to know why that was delayed. It says there were major and minor things at stake they did not agree on. Why didn't you follow up on their request to wait a little before tabling the bill? In fact, the bill was tabled and today we're stuck with the situation where the committee has to adjudicate and get to the bottom of things between the Inuit from the Nunavut Tunngavik and those who tabled briefs last week as well as the Department of Indian and Northern Affairs. In other words, we were sort of forced to set ourselves up as an adjudication tribunal. I'd like to get your reaction to my questions.

[English]

The Chairman: Are those your questions?

[Translation]

That's a very good question.

[English]

Mr. Dunlop: I'll see if I can address them in the order they were raised.

With respect to the difference, Mr. Bachand, you raised about the July 1995 and July 1996 date, the land claim calls for the legislation to be passed two years after the land claim is settled, and that was July 1993. It further provides an additional year if that date is missed, so there is a provision for one further year. If it's not passed by that third year, the requirements of the land claim kick in and the boards are established with at least the powers that are in the land claim.

So by virtue of the land claim settlement legislation, the three boards exist: Impact Review, Water Board and Planning Commission.

The surface rights board was to be created earlier than that, in February, and that's why we were concentrating on the surface rights tribunal legislation at the cost of all else. That was the first one to be in.

The request made to not table the bill was indeed refused. A number of the points that were made to the minister by NTI as reasons to refuse to table were declined. They are issues we have heard before. We have a difference of opinion and the minister declined to not table the bill.

As to consultations, as I mentioned in my remarks, the first real work on the water bill, on the water legislation, began at the workshop in Yellowknife in October 1995. That's where we got down to issues. That's where the people who were going to be the members of the board, the transition teams, met with government officials, both federal and territorial, and with NTI. It was not a negotiating session, it was a workshop. They were all in the same room facing all the same challenges.

You mentioned that drafting on the water bill didn't begin until April. It began in January. As to surprise or secrecy or without warning, we didn't phone anybody to say we were writing. We were writing.

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I mentioned in my remarks that NTI was offended when we told them in January that we were drafting. We were trying to create the first draft. Indeed, we delivered it in February and we delivered a subsequent draft in February. That subsequent draft had changes in it based on suggestions from NTI, some of which had a lot of merit. That is real consultation. But somebody has to write the first draft, and that's what we were doing in January.

[Translation]

The Chairman: Mr. Bachand, would you -

Mr. Bachand: Okay.

The Chairman: We'll have a second round of questions.

[English]

Mr. Duncan and then Mr. Anawak.

Mr. Duncan (North Island - Powell River): Does the government plan to amend this bill based on some of the comments in this response to the NTI? To take the simplest example, there's concurrence on some of the concerns with English and French.

Mr. Dunlop: There are a number of suggestions that NTI has made that have merit. I think we can concur with some of the translation suggestions. Some of the amendment suggestions are new and we've not seen them before, so we were scrambling a bit this week, but I think some of those suggestions have merit as well. They're listed. Each topic raised by NTI in its written submission to you last week is responded to, one per page, in our written submission. There are a number of amendment suggestions that I think we will be able to concur with.

Mr. Duncan: Does that concurrence go beyond translation to some of the other agenda items, beyond concerns about English and French?

Ms Mary Douglas (Legal Counsel, Legal Services, Department of Indian Affairs and Northern Development): Yes. We identified in total about 26 items that seem to deserve some amendment. Of those there were 7 that touched specifically on the French version, but the balance are either both language versions, or in three instances just the English. The majority touch on both versions of the agreement and flow from the more lengthy comments that NTI and the NWB made on both language versions.

Mr. Duncan: But my question relates to non-language issues. In other words, where there's disagreement with the -

Mr. Anawak (Nunatsiaq): Substantive?

Mr. Duncan: Yes, substantive would be another word.

Ms Douglas: For example, with the comments on ministerial approval, our position remains the same as it's been all along, that there should be a retention of that authority in the bill. Another example is the proposal to put in new sections on the linkages with the other boards, and our position remains the same on that. If those are what you characterize as the substantive issues, we didn't conclude at this point that there was justification to change the bill.

Mr. Duncan: We heard quite a bit of conversation in the lead-in that the negotiators had agreed with the fact that the Northern Inland Waters Act was an acceptable model, and some of that dated back to the 1980s. Nobody is arguing that the Nunavut Land Claims Agreement isn't constitutionally protected, entrenched and so on. As far as I can see, there's nothing in that agreement to indicate that the Northern Inland Waters Act was the acceptable model for the Water Board. Is that stated somewhere in that document, or is this considered to be agreement by silence?

.1200

Mr. Dunlop: The reference is in article 13 of the Nunavut Land Claims Agreement, which is the water management chapter. The reference there is to the Nunavut Water Board having powers no less than those of the board in the Northern Inland Waters Act. The Northern Inland Waters Act and its board was the only model in 1984.

Mr. Duncan: No less than.

Mr. Dunlop: Correct. I think ``at least equivalent to'' is the exact wording.

Mr. Duncan: Okay. That's it for now.

The Chairman: Mr. Anawak.

Mr. Anawak: Listening to the comments made by the officials, and listening to the comments made by the presenters last week, if I were not totally involved in the whole Nunavut issue I'd be completely confused, which is probably the case with -

The thing to remember, Mr. Chair, is whatever the outcome of a bill like this, some of the presenters who were here last week and I have to live with that outcome. Throughout the negotiations on Nunavut, the intent was to try to enable the people of Nunavut to have more autonomy and more control over the territory. As I said, I can listen to both sides and think, well, I believe these people more than the others, but the thing to remember is that there are people who have to live with whatever the outcome is.

I can ask when the consultations about the actual bill started on the role of NTI. The officials might say they started in January, and NTI can say they started in April. I don't think that's the issue any more. The issue is that there are very substantial differences of interpretation or strong objections to some of the things in the draft bill.

When the Nunavut Impact Review Board, the Nunavut Planning Commission and the Nunavut Water Board have objections to a bill like this - Those boards are there to ensure that the best bills are brought forward that will reflect upon the territory of Nunavut.

In my case, because we're not going to go into clause by clause, I am prepared to do more research on this and suggest amendments to this bill with the full understanding that these amendments will not be because of the interpretation between French and English. That's fine for people who want a proper interpretation, but the amendments I will suggest will be fairly substantial.

.1205

So what we have to do, I think, is realize that the people who are objecting to the draft bill are the people who have to live with it.

Thank you.

The Chairman: Does anyone else wish to speak?

Mr. Murphy.

Mr. Murphy (Annapolis Valley - Hants): It is a difficult situation - listening this morning and last week. NTI would say, let's not move, let's drop it and carry on the discussions.

Can you help me here, or can you help the committee? What do you think needs to be done from your perspective to get both sides back to the table to determine a direction?

Mr. Dunlop: We have two major pieces of work ahead with NTI outside of Bill C-51. One is the Nunavut surface rights tribunal bill, which is in my view, not NTI's view, nearly finished.

We have a second but even more challenging piece of work, and that's to develop one bill or two to create the Planning Commission and to create the Impact Review Board, both very important boards, both running right now, both operating, both working.

The challenge is going to be both one of quality and quantity, breadth of time, length of time, but it's also now going to be one of process. The fundamental difference is in that process. This is not a process we have tailored to NTI. We're not directing it at Nunavut claiming groups. It is the same process we employ with the Council for Yukon Indians, the Gwich'in, the Sahtu. There's no difference. We draft, we discuss, we review, and we redraft. I think we're going to have to go and start again.

When we agreed in April to set aside any further work on the Nunavut resource management bill - that is, the pieces to do with the Planning Commission and the Impact Review Board - we did. We set it aside. We have not looked at it. We have not talked about it. We have not discussed it with anyone. So we will be starting again right from where we were eight months ago. I hope we bring you a good bill.

Mr. Murphy: Thank you.

The Chairman: Mr. Anawak.

Mr. Anawak: Excuse me, maybe I should have elaborated a little further.

I'm not trying to take anything away from the minister, but when the minister - and a very busy minister, by the way; much busier than he has ever been in the past - doesn't necessarily have all the time to dwell on, say, a bill like this, when he is asked to table the Nunavut water bill then his understanding is what he gets from the officials, not necessarily the other side, NTI.

My suggestion would be this. The minister is going on a trip shortly, and the president of Nunavut Tunngavik is going to be along on the same trip. I've already talked to the president of NTI to say that maybe this should be an item of discussion during that trip. I guess what I've done is taken it to the political level, and if there is some agreement between the minister and the president of NTI, then we should work from there. Meanwhile, I'll see what my office can do to suggest some amendments.

.1210

The Chairman: Of course, that's agreeable, but can we have an idea of a timeframe? Because I expected some discussion on where we were focusing on which amendments. I was expecting some of that this morning.

As you have said, were you not involved so directly you would be confused. We've been given this much to read. I think this is one bill that merits us opening up on this table to come up with what's troubling us. Let's put it on the table so we can address the issues, because if every time we meet we say next time we'll have it, we'll be here for a long time.

Mr. Anawak: Remember, Mr. Chairman, my role is to represent the interests of Nunavut residents. Your role is to keep the meeting going and to keep the process going. Now, if my role to represent the people of Nunavut sometimes doesn't go as fast as you would like, it's my role to ensure we get the best.

My suggestion is we'll try to come up with the amendments as fast as we can, but you have to remember that as an ordinary MP, I don't have the same resources as the department. All I'm asking for is some time - and I could try to give you a better idea within a day or two - to ensure that we come up with a bill that reflects compromise rather than a bill that we push forward at full speed ahead because we're the government and that's how we're going to do it. I have to try to get a bill that's acceptable to the people I represent, because we're going to have to live with it.

The Chairman: I understand that. Before I go on to Mr. Bachand, my role is to direct this meeting. It doesn't start when I hit the gavel. It starts when we end the last meeting. That's why I approached you, asked you, and was led to believe that some of it would be here. That's the only reason I made that comment. Certainly we'll take the time we need. I don't want to give the impression I'm trying to rush things. I did my work.

Mr. Anawak: I have just one little extra point. Since we were here last, I've had to go to a major conference in Iqaluit, and therefore didn't have the time to put as much into this.

[Translation]

The Chairman: Mr. Bachand.

Mr. Bachand: I think we should especially not start imputing unhealthy or biased motives or intent to each and every one of the members of the committee.

Personally, I think we all need guidance. I understand that my colleague is guided by his people who are from the Nunavut. As far as we're concerned, we are guided by the Official Opposition with a view to finding the best bill possible for those people. They are the ones who are going to have to live with the Act.

I would like to remind you that I and my colleague from the Reform Party, last week, did mention to the people who came to make representations, that it was the first time that we had heard anything about it.

I know that our colleague has a few notches on us, but I would not like to be told that consultation is not important. I'm trying to see how it was done. My mind is not made up. Do I want to introduce amendments, or will I ask what people want, in other words, that the bill be withdrawn, which will mean that we will be voting against it? My mind is not made up. I'm trying to get a sense of the whole question and then I'll make up my mind.

Mr. Dunlop, you said that in January 1996, you had already written the first draft. That's sort of what you're blamed for. They say that in 1996, the officials met with NTI to review draft principles.

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So that means there was a will to structure how we were going to proceed to get to a bill that would obtain everyone's consent.

There's a difference between the fact that in January 1996 you met to draft the guidelines of the legislative process and the fact of showing up in 1996 with an already written first draft. I'd like you to give me further information on that. They are saying that in 1996 you were to meet to discuss the guiding principles of the legislative process while you're telling us that in January 1996 you already had a first draft. There is a problem there.

Are you still saying that you wrote a first draft in January 1996?

[English]

Mr. Dunlop: Let me not put words in anyone's mouth. NTI had utterly no idea we were working on a first draft, none. We met on January 3 and it took some time to get a meeting together because of the Christmas holiday. At that meeting we told them we were working on a first draft. We didn't deliver it to them in January. In fact, we didn't get it finished in January. We were making our first attempt at putting words on paper and pulling those three institutions into one bill. Instead of three different bills we would try to bring it into one thick, big bill for a Water Board, a Planning Commission and an Impact Review Board. We did not finish the first draft until February. We didn't get it out to NTI and the other parties until February.

The discussion in January also centred on principles - not the principles of consultation but the principles of what we believed should be in the bill. Such things as the water management regime should be a complete one. The legislation would not just establish the board and nothing else.

So it's those kinds of principles we were producing in January.

The Chairman: Mr. Duncan.

Mr. Duncan: I, too, like my Bloc colleague, am having some difficulties here. I guess one of the overriding things that comes to mind for me is that maybe it was fairly predictable that there would be this kind of concern.

First of all, the Nunavut Land Claims Agreement really creates circumstances very much akin to those of a province. We now have the type of discussion that you might see going on between a province and the federal government over an issue of jurisdiction.

What we have here is the very first piece of legislation flowing from the Nunavut agreement in 1993. There's a huge philosophical question here, and the federal government has to decide whether it's in or out. When you look at all the ministerial discretion portions of the legislation, the minister does not translate to the Parliament of Canada. So this sort of echoes or rings of the Indian Act in some respects, which is so powerful for the minister.

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We have a consultation issue that's clouded by this litmus test, this English-French translation question. From what I can determine, it's probable that bringing it to this level of debate, to committee, has created an opportunity and a timeframe that has engendered submissions. So that has probably been quite productive.

What I've heard is that this legislation, if it's not amended substantively, will be legally challenged. My question could go to that as well as to section 13.2.1, which was given to me as the rationale for how this legislation would be modelled. I still don't read in section 13.2.1 that it makes the Northern Inland Waters Act the model for this act. If I can't read it that way, I'm sure lawyers can't read it that way. I guess my question is how solid this would be in a court challenge at this point.

Mr. Dunlop: Not to besmirch lawyers, Mr. Duncan, but I think they can read it every way.

Mr. Duncan: So do I.

Mr. Dunlop: Could the bill be challenged in court? Yes, I imagine so. I couldn't begin to speculate what the outcome would be. I am quite certain we have a very solid case for the intentions of the parties, and indeed the success of the parties, in expressing exactly what the intention of article 13 was. I'm fairly certain and quite confident that this bill would not be found to not be in conformance with the land claim agreement.

As to your remark about a province, one of the strengths of the bill is that it establishes a relationship between the board and the minister. It's clear, it's obvious, it's known. There may not be that many linkages, but they're obvious. They're budgetary, approval of major licences. That relationship is the relationship that could be devolved to the Nunavut government. Now, Nunavut is not a province - it's going to be a territory - but nevertheless it's a province-like relationship between a public government institution and an elected minister. I think we have that relationship struck correctly in the bill.

Mr. Duncan: The logic was presented in terms of our having to proceed quickly with this legislation to establish this board because there are two other boards that have to be legislated, and they have to wait for this. That could also be used as the logic for why everyone should be as happy as possible with the establishing of this board prior to establishing the other two boards.

Mr. Dunlop: When I was answering Mr. Murphy's question, it was to the point of where we go from here. I hope I didn't leave the impression that we should speed up on this bill because we have two other boards to create. I wasn't making that linkage at all, and if I left that impression I didn't mean to.

As for the reason for due time or diligence or moving along with bringing attention to the matter of the bill, we have a board operating in Nunavut without legislation. There is uncertainty. They could be challenged not just by proponents, but by third parties, by other parties. What legislation are they using to arrive at their decisions? Are they under Bill C-51 and the protection it affords? Are they in the NWT Waters Act? Are they in the land claim agreement? It is uncertain, they expressed their discomfort, and we share that discomfort. I guess we just think that uncertainty shouldn't be allowed to continue for too long.

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Mr. Gibson: I'd like to clarify one point. It's been mentioned a couple of times here this morning that we've simply taken the NWT Waters Act and the board under the NWT Waters Act and moved them into Bill C-51. That's not what we've done. If you read that article of the agreement that talks about the powers of the board being at least equivalent to the board under the Northern Inland Waters Act, it goes on to say ``and any other'' powers obtained through the agreement.

Bill C-51 is the result of taking the NWT Waters Act and the powers of the board under it, and amending those or adding to them according to the powers provided under article 13 of the agreement. In Bill C-51, there are some authorities granted to the Nunavut Water Board that are very different from those granted to the existing NWT Water Board under the NWT Waters Act. So we have not just simply moved from one into another and changed the name.

The Chairman: Dr. Patry, Mr. Harper, and Mr. Finlay.

Mr. Patry (Pierrefonds - Dollard): Could you go to Mr. Harper, please?

The Chairman: Mr. Harper.

Mr. Harper (Churchill): Thank you, Mr. Chairman.

I'm one of those people who is confused as to what is taking place. I agree with Jack in terms of the process and the concerns he has. Of course, I base this comment on my experience in dealing with the government. There sometimes seems to be a different definition of ``consultation'', a different view as to what it means.

I agree that if it's going to be an act that will affect the people, I think they have to fully understand what this agreement is about, because it's about them. I think we have to take that into consideration even though it may take some time. I don't know what the ramifications might be in terms of deadlines, but I think it's very important that the people, the representatives of the Inuit, have their say and have their concerns heard.

In dealing with this legislation there are going to be other matters that we have to deal with and that are going to be coming forward for Parliament. Those are things that we have to be mindful of, so I'm concerned about the process itself. I'm not really familiar with the agreements itself, but I feel the rights have to be recognized and protected.

I have concerns about this agreement in relation to the federal jurisdiction. On the one hand, we recognize that the people will form a public form of government, but there seems to be an overriding jurisdiction by the federal government. Even though the people who negotiate may have sat at the table as equals, when it comes to jurisdiction and making legislation, somehow the tables are turned upside down. Even though the people may be granted some decision-making powers and jurisdiction, they're still subject to the federal government. Even though this agreement may be, as I understand it, protected under section 35 of the Canadian Constitution, with the Canadian Constitution being the supreme law of the land, it would have that paramountcy over any federal legislation.

.1230

So I'm confused as to what we're doing here, but I'll leave that up to the Inuit and to my friend Jack in terms of trying to deal with this problem. I may understand it later as we proceed.

I'd just like to put those comments forward. Thank you.

The Chairman: Thank you. Mr. Finlay.

Mr. Finlay: Thank you, Mr. Chairman. I too will admit to being somewhat confused.

I have a question relating to something on page 9 of the submission we received from Nunavut Tunngavik Inc. It may be simple, but it has to do with wording and the integrity of the agreement. It says:

I want to know whether or not I'm reading this correctly. It seems to me that it is saying that the initial approval for the use of water or disposable waste must come from the Nunavut Water Board with, in some cases not defined, the approval of the minister as well.

What is the rationale - I think I can figure out what it is - for including ``the approval of the Minister as well''? Is it international? Is it because of environmental concerns? Is it because the minister represents the Queen in right of Canada, and because water is a resource that is not restricted in any sense to any particular geographic area, at least on the edges? Or am I misreading it?

Mr. Gibson: As I mentioned in my presentation, it is our position that silence on any issue in the agreement does not necessarily mean it was not intended to be included in Bill C-51. The issue over the approval of the minister -

Mr. Finlay: I understand that. I'm not buying that argument one way or the other. I'm just asking why this is added. There has to be some rationale. I'm just guessing at it, though, because it doesn't tell me.

Mr. Gibson: The reason we maintain that the minister's authority should continue in Bill C-51 is that under the Northern Inland Waters Act, the minister had to approve all licences issued by the Water Board. There is nothing in the agreement that says that the minister should not approve or continue to approve licences. The agreement speaks to the authority of the Water Board and it grants the authority to the Water Board to approve all uses of water, much as the Northern Inland Waters Act granted authority to the Water Board to approve or issue licences with the approval of the minister.

The difference between the Northern Inland Waters Act and those words that appear in the agreement that grants the authority to the board to approve all uses goes back to the regime under the Northern Inland Waters Act. Under it, a person could get authority to use water in two different ways. It could get a licence from the board or it could be authorized to use water or deposit waste by the regulations. The regulations set out some criteria, and if your use met that criteria, you could be authorized by the regulation. You didn't need a licence by the board, and the board therefore did not approve that use because it was approved by the regulations.

.1235

In 1984 there was a federal court challenge to the provision in the regulations in the act that allowed a departmental member - called the ``controller of water rights'' - to issue these authorizations. What we had in place was a system whereby the Water Board issued licences for certain uses, the minister approved those licences, and a controller of water rights issued authorizations to use water without a licence through the authority of the regulations. The water board did not approve those uses.

When it came time to negotiate the agreement, it was recognized that this was a problem. The federal court decision indicated that the practice we had in place was ultra vires the act. So we had to remove the controller and essentially set up a system whereby you either were licensed by the board or you simply met the criteria of the regulations and could go ahead and use water without anybody issuing you anything.

We recognized that this wasn't acceptable because there were a lot of uses taking place. The TFN recognized that this was a problem and didn't like the fact that the board was being avoided in all these uses for the regulations. Therefore, there is that clause in the agreement that says that the Nunavut Water Board shall approve all uses of water. It therefore removes the ability of people to get approval simply through the regulations. They have to get the approval of the board. It does not speak to the continuing role of the minister such as he had under the Northern Inland Waters Act.

On the reference in the submission - this is my opinion on it, and you'll have to speak to NTI on why they put it there - the words ``in some cases'' stem from the fact that under the NWT Waters Act and Bill C-51, the minister only has to approve certain major licences and the Water Board has the authority to deal with all the other ones. I assume that's why the words ``in some cases'' have been added there.

Did I confuse it further?

Mr. Finlay: No, you've helped.

As a supplementary, is the minister able to approve a major licence without prior approval by the NWB?

Mr. Gibson: No. The act is such that the board continues to issue the licences with the approval of the minister.

Mr. Finlay: So the minister is merely a rubber stamp for some -

Mr. Dunlop: I hope he's not a rubber stamp.

An hon. member: He's not the type.

Voices: Oh, oh!

Mr. Finlay: I realize that. But it says ``all'', and that nobody can do it without the approval of the NWB - and you've said they must issue the licence - or in some cases without the approval of the minister as well. When I read the act originally, I can't remember what it said exactly, but there was some distinction between A and B class and so on. If it's a certain class, then it requires the minister's approval as well.

Mr. Gibson: Yes, that's right.

Mr. Finlay: I take it that the minister can either say yes or no, but he cannot agree unless it has already been approved by the Nunavut Water Board. In other words, he can only say no for some reason. I'm trying to establish - I can think of some reasons that he might feel he has to say no, but I'm not hearing the rationale for that from you. That's what I'm seeking.

Is it because of international considerations? On what basis is it? To me, the minister has to have some basis that is rational. It can't be just a whim - i.e., he doesn't like Placer Dome as well as he likes Inco, so Placer Dome doesn't get a licence and Inco does. That's neither fair nor acceptable.

What is the rationale?

The Chairman: Is the question clear?

Mr. Gibson: Yes.

The minister cannot vary the conditions of the licence. He can accept them or he can reject them and send them back. The bases on which he can reject the licence, we have been advised, are very limited, and are within the area of legal certainty.

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Perhaps I could refer to our legal counsel to help you out.

Ms Douglas: The principle is that the powers of the minister, just like the powers of the board, have to be exercised within the context of the enabling legislation. The objectives of that legislation have to be read from it. In a very general way, it has to do with the use of water and the quality of water. The minister's decision would have to be related to purposes such as that, which are evident in the legislation.

I have no idea whether in fact the minister has ever refused to approve a licence. I therefore couldn't give you an example of what has happened in the past. But if it ever came up in the future, the minister's authority would have to somehow relate to the purpose for which the legislation was effected.

Mr. Gibson: I can provide one example where the minister has in fact refused to sign a licence, and that was because the licence contained a provision that was inconsistent with another federal act. It would have allowed contravention of another federal act.

Mr. Finlay: That's what I surmised. I'd like to think that could be explained and accepted by NTI.

I have one other little question about this phrase ``with the exception of domestic and emergency use''. That means if I'm travelling through Nunavut and I need a drink, I can take one. Is that right?

Mr. Dunlop: Well -

Voices: Oh, oh!

Mr. Finlay: If there's a fire I can scoop some water out of the river and put the fire out.

Mr. Dunlop: Yes.

Mr. Finlay: All right. Thank you.

The Chairman: So we are clear. The minister approves or disapproves, but cannot direct the board to issue a licence against its will.

Mr. Dunlop: Correct.

The Chairman: Okay. Dr. Patry.

[Translation]

Mr. Patry: At the outset, we got the impression it would be a rather easy bill, a sort of repetition of the Northwest Territories Water Act applied to the Nunavut territory but we're finding there may be some problems that had not been foreseen.

I was not there last week because I was on a trip outside the country for the government and I can't tell you what kind of shock the committee felt, but it seems to have been rather important and to be leading to much confusion.

In reading the documents I was given this week, I came to the conclusion there was consultation but perhaps not as much as the people would have wanted. I don't know if NTI would like to have more powers than what it might have had previously with the Northwest Territories Water Act and is using this to try to get more, but for all that I think it is still very important that they provided a document last week. It's a very nice document that forced the department to provide us with answers, within a week, to questions put by NTI.

In reading the answer provided by the department, I think we don't have such a big problem to overcome as the department is ready to accept 25 or 27 recommendations. We're not simply talking about concordance between the French and the English. We were told that some things had been inadvertently forgotten and stuff like that. I think the department is ready to go a good part of the way.

I had other questions, but Mr. Dunlop and Mr. Gibson have already answered in responding to my colleague Mr. Ramsay concerning what will happen if Bill C-51 doesn't pass. The Water Board already exists. My questions were answered but, as Mr. Bachand said, I don't think that the committee's role is to be an adjudication tribunal.

I think that NTI and the department should meet. There are not very many problems that cannot be solved. There are some problems that NTI would like to see resolved concerning the parks and the minister's role.

I think that that's cast in bronze. It can't be changed. So my suggestion to the committee is that the people should meet and come back later with a timetable.

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There's one thing I can find satisfactory. The answers submitted by the department to the NTI questions are totally superior to what we ever got before. It gives us a better understanding of the bill we are examining today.

[English]

The Chairman: Mr. Murphy.

Mr. Murphy: My thoughts are along much the same lines. I'm just drawing a parallel here, because I'm not sure what the timeframe for all of this is. We've been nit-picking to try to take a look at whether there are some holes on either side, and I think that's unfair. We're not arbitrators, nor should we be.

What we're watching now, of course, is Jack wanting to get in the picture, obviously with amendments to protect his own people, but we then would be in the throes of having three things on the table, if you will, and again, I'm not sure if that's the route we should take.

I think from both sides we've put what the issues are on the table. I think this is actually what Bernard is saying. The two parties should go back and begin further discussions, because I think a lot of what NTI was talking about was a process.

From what Diane says, of course they feel they have honoured that process. Maybe they need to go back and work on the process and come up with some of the issues - I'm sure they will - that are outstanding. Then we as a committee would do our rightful task in looking at the end result of that work.

The Chairman: Thank you. Mr. Anawak.

Mr. Anawak: Thank you, Mr. Chairman.

It's true that we're not the arbitrators, and I respect that, but we're the lawmakers. We're going to make the law. This is the important thing to remember. The law we're going to enact is going to impact on the people of Nunavut.

Mr. Dunlop made the statement that if there is a court challenge, the government is not too worried about it. If we listened to NTI, we would hear the same thing. NTI would not be too worried about the outcome of the court challenge, because they think they're on pretty good footing because of the force of the agreement.

There have been some statements made that the Nunavut Water Board is operating in a legislative vacuum, when in fact the Department of Indian Affairs and Northern Development, on page 33 of their submission, quite clearly says:

Mr. Chair, it's quite clear that the need for legislation is there, but the Nunavut Water Board is not operating without force behind it. It's operating with the force of the Nunavut Land Claims Agreement behind it.

Thank you.

The Chairman: Mr. Dunlop, do you wish to respond to that?

Mr. Dunlop: I think there was a question there, at least about expropriation and the provisions in our package on page 33. I think the expropriation provision is abundantly clear, because it does flow from the land claim. However, the relationship with the minister doesn't, and the Water Board can be challenged in that area.

In his remarks, Mr. Gibson mentioned enforcement. There is one mention of enforcement in the land claim, and certainly the Water Board is exposed in the area of enforcement today.

The Chairman: Mr. Duncan.

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Mr. Duncan: I'd like to try to get a grip on exactly what's transpired here.

Mr. Patry, were you speaking as the parliamentary secretary in terms of what is the government's, or the minister's, commitment right now in terms of this legislative package?

Mr. Patry: No. I cannot speak on behalf of the minister. This is a committee with its chair here, and it's the chair who's speaking. It's the committee. That was my personal opinion -

Mr. Duncan: So those were your thoughts.

Mr. Patry: Yes.

Mr. Duncan: Okay.

My question is not to the witnesses so much as it is to Jack.

Would that process be comfortable for you, the process Bernard talked about, where the department and NTI would get together?

The Chairman: I'll allow the question.

Mr. Duncan: I know it's out of order.

The Chairman: I was hoping we'd come back after we're through with the witnesses and decide our process, if that's part of it.

Carry on.

Mr. Anawak: Mr. Chairman, I appreciate the question.

I think NTI and the department have to meet to discuss the issues, but again, it depends on the kind of - NTI can come to us and say, well, yes, they came to us, but they basically told us this is what's going to happen. I have a problem with that. If NTI and Indian Affairs are going to get together, then each side should be willing to discuss this, as the two signatories to the agreement, with equal footing on each side, not one telling the other this is what we're going to do.

So I really don't have a problem with that as long as that understanding is there.

The Chairman: Correct me if I'm wrong, but even if the two agree to changes, they should make a recommendation to this committee. This bill has been tabled. It's up to us to amend it. That's why I always push towards focusing on problem areas.

I suggest we meet on Thursday of next week. I was going to suggest Thursday of this week, but if we are to ask the parties to meet - and we can't force them to meet. I think we can force them to meet us, but we can't force them to meet each other. The need for them to do this has been made clear.

If we meet on Thursday of next week they will have had ample opportunity to meet, to try to resolve things and to try to guide this committee. If it is not done we won't be further ahead than we are now. As a committee we will have to deal with questions of amendments, or if there's been a request of dropping the whole bill. These are issues this committee has to deal with.

If this committee recommends that the bill be dropped, the committee will have to decide whether they want to return it to the House with amendments requesting that it be dropped, and if not dropped, at least consider the amendments. If we just send it outright and say, drop it, and the House decides not to drop it, our amendments won't get in there.

We have a lot of planning to do, and we have to do it well. We will allow sufficient time to treat this bill with the attention it deserves.

Mr. Anawak.

Mr. Anawak: If we can come to some agreement by Thursday of next week - I think there's a difference of opinion on the issues we're discussing here. Some might consider these minor. Others will consider them major. It's a difference of opinion there.

Let's say the department here considers them minor. There'll be a problem, then, because NTI considers them major. In how they deal with them, the department will have an approach of one kind and NTI will have an approach of another kind. Next Thursday we might have something, and I hope we will, but I want to make it quite clear that to us these are substantive issues.

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The Chairman: I suggested Thursday because after next Thursday there's part of a week left before the break for a month and a half. It would be good for everyone to be aware of the areas of concern before we go on our break.

Mr. Anawak: But the water will still flow.

The Chairman: As you said, my job is to get the job done with the committee and that's what I'm going to pursue.

Because somewhere down the line we will do a clause-by-clause, ideally it would be valuable to this committee and to this chair to know and to have identified the clauses that pose no problems. You know the way I like to proceed when we do clause-by-clause. What we all agree on is so easy to dispose of, and I think it's important to do it that way. If we identify all the clauses that we agree on and then identify the concerns of the others, somewhere down the line we'll be able to deal with this. If we're left with two clauses that create big problems, we'll spend all the time in the world.

If that's reasonable and agreeable to the committee, it's the way we'll try to proceed.

Is that okay, Jack?

Mr. Anawak: Yes.

The Chairman: Then we will meet on Thursday, December 5, hoping that we have identified where we're going.

Thank you very much. It was a great meeting, very informative. It showed good discipline and good participation from all.

The meeting is adjourned.

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