Bill C-88 (Historical)

An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts

Part 1 of this enactment amends the Mackenzie Valley Resource Management Act to establish an administration and enforcement scheme in Part 5 of that Act that includes the issuance of development certificates. It also adds an administrative monetary penalty scheme and a cost recovery scheme, provides regulation-making powers for both schemes and for consultation with Aboriginal peoples and it allows the Minister to establish a committee to conduct regional studies. Finally, it repeals a number of provisions of the Northwest Territories Devolution Act that, among other things, restructure the regional panels of the Mackenzie Valley Land and Water Board, but that were not brought into force.
Part 2 of the enactment amends the Canada Petroleum Resources Act to allow the Governor in Council to prohibit certain works or activities on frontier lands if the Governor in Council considers that it is in the national interest to do so.

Second Reading

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Mr. Speaker, I would point out that Bill C-15 under the previous Parliament received support from the Liberal Party, including from the current Prime Minister.

I will also point out that we had agreements with the 31 first nations communities along the northern gateway pipeline that was killed. They were directly impacted by the northern gateway pipeline. This was worth about $2 billion in economic activity for those first nations communities. They have spoken up loud and clear to say that there are decisions being made in Ottawa that are impacting their economic future.

If we want to reduce poverty in some of these northern communities, responsible resource development is a path forward to create jobs, opportunity and wealth. This is what they are asking for, and I think it is something we should heed.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, my colleague really articulated well that the Liberals like consultation by convenience. He gave a number of examples, such as the moratorium up north in the Beaufort Sea for which the leadership had half an hour of notice, or the tanker moratorium, or Bill C-69. Liberals talk a good talk about consultation, but in actual fact they have not done a very good job, including when, as we found out, they had not done a proper job with the Trans Mountain pipeline.

Does the member think this is part of the government's anti-development plan, in which it consults if people want to shut things down but its does not consult when people want to move forward with economic opportunities in their communities?

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Mr. Speaker, I agree that Bill C-88 is yet another anti-energy policy from the government. It is driving investment out of Canada. It is taking potential opportunities away from those in the north who want a path forward, a path to prosperity by harnessing resources in a very responsible manner, something in which Canada is a world leader. If people in the north are asking for more power to define their future, to create their own path, that is something we should be doing, rather than having an Ottawa-knows-best approach.

I was at the AME Roundup in Vancouver a few months ago. It is a very large mining conference, although not as big as PDAC in Toronto. When we spoke with people in the north, that was the number one issue they were talking about. These were not mining people from big companies; they were juniors, start-ups, people in the middle, all talking about the fact that there is great potential in the north for responsible resource development, but they do not feel that making the north a park, basically, is a way to do that or to create jobs, wealth and opportunity.

We should be listening to those people.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, what we have before us is very positive legislation that ultimately would have a positive impact in northern Canada. That includes being sensitive to the many different stakeholders as well as to the environment in the development of resources and so forth. I believe the Government of Canada has been called upon to do this. I do not share the same pessimism that comes from across the way.

This is a government that has been very good at developing our country as a whole, both from an economic and an environmental perspective. That is one of the reasons we created 900,000-plus jobs.

Does the member feel that there are amendments that the Conservatives will bring forward to try to improve upon the legislation, or is their intention just to vote against it as it is?

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Mr. Speaker, as the member knows, the Liberals have the majority of seats in this Parliament, so they are going to vote for it and we will be voting against it. We will try within the committee structure to work with the Liberals. Whether not they will be receptive to anything proposed from this side of the House is yet to be seen.

The member opposite talked about the economy. Many economists would agree that it is going very well because of the U.S. economy, which is on fire right now, despite what the Liberals are trying to do in slowing down this economy with red tape, regulations and high taxes.

Jobs are created with low taxes and reasonable red tape and regulations—full stop. It is not because the government says that jobs are going to be created or the Liberals come up with a new next great government program. Jobs are created by low taxes and reasonable red tape and regulations, something they are not doing. That is why this economy is going forward. It is not what they are proposing.

[Matt DeCourcey, Liberal, Parliamentary Secretary to the Minister of Immigration]

Mr. Speaker, I will be splitting my time this afternoon with the member for Winnipeg Centre, but first let me acknowledge that we are here on the traditional unceded territory of the Algonquin people.

I stand in support of Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts.

The proposed legislation now before us would modernize the regulatory regime that governs resource development in the Northwest Territories.

The central goal of Canada's approach to regulating resource development in the north has been to realize a project's full potential value while minimizing and mitigating any negative environmental, social and economic impacts. To achieve this goal, regulatory regimes across Canada include measures to assess proposed projects and to track the progress and performance of approved projects.

Environmental impact is a key consideration throughout all phases. In general, and particularly in the north, environmental impact is defined as any effect on land, water, air or any other component of the environment, as well as on wildlife harvesting.

The assessment includes any effect on the social and cultural environment or on heritage resources.

The northern regime has long been ahead of the southern environmental assessment regime in this respect. In the north, regulatory regimes are notably different from those in the rest of Canada, for several reasons. The most significant reason is that many northern indigenous people have concluded land claim agreements with the Government of Canada, and these agreements have created a robust system through which indigenous governments have a meaningful role in processes to review and license proposed resource development projects, have representation on boards, and have a strong voice in the process from the beginning to the end. This is reconciliation in action.

The Mackenzie Valley Resource Management Act is part of the legal framework for resource development in the north. The act authorizes a unique regulatory regime that references a series of comprehensive land claim and self-government agreements with indigenous groups, including the Gwich'in, Sahtu Dene and Tlicho.

The regime features an integrated and coordinated system of boards and ensures indigenous representation. The result is co-management. The Government of Canada, the Government of the Northwest Territories and indigenous governments all participate in reviews of and final decisions about proposed projects.

In recent decades, the north has experienced unprecedented change, and the pace of change continues to accelerate. Territorial governments have acquired new authorities under devolution, for example, and diamond mining has generated billions of dollars in revenues and created thousands of jobs. As well, the impacts of climate change have been greater in the north and have accelerated more quickly there than anywhere else in the world. Given these realities, the regulatory regime governing resource development in the north must evolve to keep pace, and this is the main impetus for Bill C-88.

About eight years ago, the Government of Canada began a process to modernize the regulatory regime at the same time as it moved to devolve greater authorities to the Northwest Territories. In 2014, Canada enacted the Northwest Territories Devolution Act. Along with authorizing devolution, this act also made important changes to the regulatory regime. One of these changes was the amalgamation of four existing boards into a single entity, the Mackenzie Valley Land and Water Board.

Almost immediately, the Tlicho government and Sahtu Secretariat Incorporated launched court actions against Canada. The lawsuits claimed that amalgamation violated land claim agreements. The Supreme Court of the Northwest Territories granted an injunction, which effectively halted amalgamation and prevented the implementation of several elements of the regulatory regime. Bill C-88 proposes to repeal amalgamation, which would resolve the litigation and support Canada's commitment to reconciliation with indigenous peoples.

Bill C-88 would also authorize a series of policy elements that the court injunction also blocked. These elements include development certificates and an enforcement scheme for part 5 of the Mackenzie Valley Resource Management Act. They also include regional studies, extensions of the terms of board members, regulation-making authorities related to consultations, a 10-day pause in the environmental impact assessment process, and a requirement to give proper notice of government inspections of Gwich'in- and Sahtu-owned land.

Together the changes proposed in the legislation now before us would significantly strengthen the regulatory regime in the north. They would ensure that the assessment of environmental impacts would remain paramount in both the review of proposed projects and the monitoring of approved projects. The changes would also ensure that any contravention of a regulation could result in a stiff penalty, such as a large fine, and possibly, incarceration. Bill C-88 would also ensure that indigenous governments would continue to participate meaningfully in reviews of and decisions about development projects in the north.

Another aspect of Bill C-88 aims to further strengthen environmental protection in the Arctic through the Canada Petroleum Resources Act. As my hon. colleagues can appreciate, Canada's Arctic features some of the most fragile ecosystems in the world. Two years ago, the Prime Minister committed to stepping up Canada's efforts to protect Arctic ecosystems. In particular, he called for a ban on any new Arctic offshore resource exploration and extraction. Rather than set a deadline for the moratorium, the Government of Canada committed to reviewing it every five years. The review will focus on an assessment of the latest climate and marine sciences.

Along with imposing a moratorium, the Government of Canada began a series of consultations with territorial and northern indigenous governments and the holders of offshore oil and gas rights in Arctic waters to discuss their interests. A central focus of these consultations was how best to balance environmental and economic concerns and how to protect the offshore environment while pursuing safe, responsible activities that create jobs and economic opportunities in northern indigenous economies. The result of these consultations are the proposed amendments before us in Bill C-88.

First, to complement the moratorium on new licences, the amendments would allow the Government of Canada to ban any oil and gas exploration or development activities under 11 existing exploration and significant discovery licences in the Beaufort Sea.

The amendments would also fix a problem that came to light regarding the plan for a science-based review every five years. Some oil and gas rights in the Arctic offshore will begin to expire before the completion of the next review period. With a ban on activity in the Arctic offshore, these rights suddenly lost all their value. The discussions identified a solution, that being a freeze on the terms of existing rights for the duration of the moratorium. Bill C-88 would authorize this solution.

Canada's regulatory regime is among the best in the world, because it continually seeks to strike an appropriate balance between economic, environmental and social concerns. Key to this ability is the careful and thorough assessment of potential project impacts. An effective regulatory regime makes it possible to foster both economic activity and environmental protection.

The legislation now before us aims to achieve this goal in the north, and I urge my hon. colleagues to endorse Bill C-88 at second reading.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I want to speak to a broader issue. The government has consistently talked about what its priority bills are in terms of moving forward, but our time is getting very short.

The Liberals have accused the Conservatives of stalling on Bill C-91, the indigenous languages legislation, and on Bill C-92, the child welfare bill. They have said that it is absolutely critical that we move forward and get them done. They like to lay the blame for their lack of House management on the Conservatives.

We fully anticipated that we would be talking to the important child welfare legislation. I wonder if my colleague could comment on the fact that his government seems to have priority legislation but does not seem to be able to get things through the House in a timely way. The government ends up cutting off debate on every single piece of legislation that comes along due to its poor House management. This is just another example.

I thought we would be talking about Bill C-92, but we are talking about a bill the government introduced six months ago and that has been on the floor for only a short time, and suddenly we have time allocation.

[Matt DeCourcey, Liberal, Fredericton, NB]

Mr. Speaker, I am always happy to talk about the priorities of this government, those priorities being helping middle-class Canadians and growing the Canadian economy; lifting thousands of Canadians out of poverty; fighting climate change in a meaningful way; and advancing the most important relationship for this government, that being the relationship with indigenous peoples.

Every time we have brought forth measures to grow the economy and support middle-class Canadians, the Conservatives have opposed them. Every time we have brought forth measures to help lift 825,000 Canadians out of poverty, the Conservatives have opposed them.

We have a plan to fight climate change. What do the Conservatives have? They have an unsolicited, unethical mass texting campaign. That is not a climate change plan.

Every time we bring forward investments and measures to advance reconciliation in this country, including in Bill C-88, the Conservatives oppose them.

Our priorities, our plan and our results are clear to Canadians. Why do the Conservatives continue to oppose them?

[Gord Johns, NDP, Courtenay—Alberni, BC]

Mr. Speaker, I want to thank my friend and colleague for taking this important step to reverse some of the wounds the Harper government inflicted on indigenous people.

There are important issues that still have not been addressed and need to be addressed, including adequate drinking water for indigenous peoples, waste water infrastructure, education and the implementation of rights, including in my area, where indigenous people are still in court with the government in an effort to establish the right to catch and sell fish so they can implement rights that are protected under the Constitution. The government continues to fight them tooth and nail. The Liberals have spent over $19 million on lawyers to fight the first nations and indigenous people of my region.

Billions of dollars are needed for many things. I will speak to the housing issue, because the member cannot speak about a case that is in the courts right now.

We know how inadequate housing is. I have 10 first nations in my riding. Ahousaht is one of them. Sixteen people are living in one home in overcrowded, mouldy conditions. They are waiting for adequate housing. The Liberal government promised to build housing for indigenous people.

Could the member speak to why his government has not advanced this promise in the way it needs to so that everyone has healthy, safe and secure housing, as people should?

[Matt DeCourcey, Liberal, Fredericton, NB]

Mr. Speaker, my hon. friend raises the importance of advancing reconciliation and quality of life for indigenous people in this country, and I hope to have many more years to work on that with him in all facets in this chamber.

Our government has made historic investments in overcoming the long-term boil water drinking advisories in first nations communities across this country, and we have had significant results to date. We are on track to meet our target of having no more boil water advisories, long term, in first nations communities in a few years.

We have made significant investments through our $40-billion national housing strategy, a lot of which goes to support indigenous communities.

We have legislation coming forward to deal with the child welfare situation in indigenous communities. We have an important bill in front of Parliament that deals with strengthening indigenous languages in this country, something that is fundamental to the identity of indigenous people here. We also have this legislation, which would advance reconciliation with indigenous people in the north.

These are all elements of the government's broader cross-government agenda to advance reconciliation in a meaningful way. I look forward to continuing to work with my colleague in the years to come to see these important steps taken for all Canadians.

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

[Member spoke in Cree as follows:]

[Cree text translated as follows:]

Mr. Speaker, to all my relations, I say hello. I am very proud to be here.

[English]

Mr. Speaker, I appreciate the opportunity to express my support for Bill C-88. I also acknowledge that we are here on the traditional territory of the Algonquin people.

This important bill proposes to improve the regulatory regime that governs resource development in the Northwest Territories. Equally important, in my view, is the contribution Bill C-88 would make to reconciliation with indigenous peoples.

Throughout much of this country's history, indigenous peoples have been actively prevented from contributing fully to and benefiting equally from the social and economic prosperity that so many of us take for granted. Reconciliation and a renewed relationship with indigenous peoples will help create the conditions needed to close the socio-economic gap that persists between indigenous and non-indigenous Canadians.

Today we have an opportunity to right some of the wrongs of the past and to unlock economic growth for indigenous peoples and all Canadians. We have a chance to create an environment that supports self-determination. This will not only be good for indigenous peoples but will be good for all of Canada.

The National Indigenous Economic Development Board has estimated that engaging indigenous people in the economy at the same rate as non-indigenous people would boost Canada's GDP by 1.5% and create almost $28 billion in economic growth. Several others have suggested that the number is actually much higher.

Reconciliation is a multi-faceted undertaking that ultimately must involve and engage all people in Canada, indigenous and non-indigenous alike. At the personal level, it involves confronting and erasing all prejudice, embracing fresh ideas and throwing out those racist ideas of the past. For the Government of Canada, it involves sweeping changes to legislation, policies and how we approach policy.

Allow me to quote the Prime Minister's description of the challenge facing Canada. He stated:

Reconciliation calls upon us all to confront our past and commit to charting a brighter, more inclusive future. We must acknowledge that centuries of colonial practices have denied the inherent rights of Indigenous Peoples. The recognition and implementation of Indigenous rights will chart a new way forward for our Government to work with First Nations, Inuit, and Métis Peoples and to undo decades of mistrust, poverty, broken promises, and injustices.

The legislation now before us would support reconciliation in a clear and unequivocal way by re-establishing the land and water boards in a manner requested by indigenous communities themselves. The boards would enable three indigenous communities in the Northwest Territories, the Gwich'in, the Sahtu and the Tlicho, to influence resource development in their traditional territories in a direct and meaningful way.

Four years ago, Parliament endorsed legislation to restructure the regulatory regime governing resource development in the Northwest Territories. Part of this plan involved the amalgamation of four boards into a single entity, the Mackenzie Valley Land and Water Board.

Soon after the plan became law, the Tlicho Government and the Sahtu Secretariat Incorporated launched court actions against the Government of Canada. Both indigenous governments challenged Canada's authority to unilaterally eliminate boards that had been legally authorized years earlier. A 1992 comprehensive land claims agreement had established the Gwich'in Land and Water Board, which was given effect by the Mackenzie Valley Resource Management Act in 1998, for instance. In 2003, the Tlicho land claims and self-government agreement had authorized the creation of the Wek'èezhìi Land and Water Board.

The court challenges effectively put a halt to some of the restructuring measures included in the 2014 legislation under the Harper regime. The new Government of Canada agreed to work in co-operation with northern indigenous communities, including the plaintiffs in the court actions, to resolve the impasse and to restructure the regulatory regime in a way that would meet the needs of all concerned.

Representatives of indigenous groups, the Government of Northwest Territories and industry met with federal officials. The meetings inspired the Government of Canada to draft a legislative proposal and to share the draft with all interested parties.

This collaborative effort not only exemplifies the spirit of reconciliation but also illustrates reconciliation in action. It is “reconciliaction”, and it abides by the principles respecting the Government of Canada's relationship with indigenous peoples established last year. For instance, principle 1 states, “The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.”

Principle 5 states, “The Government of Canada recognizes that treaties, agreements, and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect.”

Following this approach soon produced a negotiated solution. We sat down and we negotiated. It is a solution articulated today in Bill C-88. However, to fully appreciate the value of the solution requires an understanding of how it came into being. This was not a case of the Government of Canada imposing its will on others. In fact, the bill before us incorporates the suggestions made by the negotiators representing other groups, including indigenous governments. They were central to this.

One change to the original draft legislation proposal relates to court jurisdiction for judicial reviews of administrative monetary penalties imposed under the regulatory regime. The change ensures consistency with exclusive jurisdiction of the Northwest Territories' Supreme Court under section 32 of the Mackenzie Valley Resource Management Act. A second modification to the original draft legislation aims to ensure consistency with comprehensive land claims agreements. New language was added to clarify consultation obligations related to administrative monetary penalties.

Is it not exciting to talk about administrative monetary penalties? These changes came about because the parties negotiated as equals in an atmosphere of mutual respect and mutual recognition of rights and responsibilities.

Should Bill C-88 become law, if it can make its way through this Parliament, its effects would also foster reconciliation. This is because co-management is central to the regulatory regime envisioned in the legislation now before us. Boards comprised of members nominated by northern indigenous governments and the governments of the Northwest Territories and Canada would render decisions about proposed development projects. Board decisions are legally binding on all parties, including developers. This means that northern indigenous governments would be fully able to exercise their right to self-determination.

The onus has long been on indigenous peoples to prove that their rights exist. For too long, indigenous communities have had to fight to exercise their rights. This is why reconciliation absolutely requires the Government of Canada, on behalf of all Canadians, to base all of its relations with indigenous peoples on the recognition and the implementation of existing rights.

On one level, Bill C-88 would repeal the amalgamation of land and water boards in the Northwest Territories. It would also modernize the regulatory regime governing resource development in the region. On a higher level, Bill C-88 would foster reconciliation with indigenous peoples across Canada. It would demonstrate to indigenous communities across the country that the Government of Canada is committed to reconciliation.

Hon. members of this chamber, the people's House, have an opportunity to show their commitment to reconciliation, and I encourage all of them to join me in supporting Bill C-88.

[Member spoke in Cree as follows:]

[Cree text translated as follows:]

Thank you again, that is all.

[English]

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I listened with great interest to my colleague talking about the importance of consultation and collaboration. Does he not realize that the bill would give a new power to the federal government, which has never been there before, in terms of its ability to prohibit and issue orders when in the national interest and to actually do a complete ban?

The bill does not talk about the government's need to collaborate. It does not talk about consultation. It gives the federal government new powers and authority to completely override both the territorial governments and indigenous governments. Does that not create any concern for the member, given the nature of his speech in which he talked about the importance of collaboration?

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Mr. Speaker, my understanding is that all indigenous governments were involved in negotiating this agreement with Bill C-88, as well as the Northwest Territories government. It has the support of all of these governments because they will be at the table.

Obviously, governments can take actions to try to negate the rights of indigenous peoples. It depends on the government of the day. However, I know that the inherent policy of this government is to work with indigenous peoples. It is not to negate their rights, but to work with them in a collaborative approach.

Perhaps future governments of Canada will move forward in a different manner and try to negate those rights. However, I know that our government is committed to working with indigenous peoples.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I listened with great interest to the words of the hon. member on the other side about the need for new measures to show that the government is sincere about reconciliation and about honouring the rights and interests of indigenous peoples.

Surely, then, the member would support the amendment we are calling for, to actually entrench the United Nations Declaration on the Rights of Indigenous Peoples in the bill. Of course that would deliver on the Prime Minister's promise, from quite some time ago, that he would in fact take action on all 93 of the calls to action by the Truth and Reconciliation Commission. One of those calls to action is exactly that. It is to move forward and entrench those rights in the UN declaration in all federal laws going forward.

Is the member willing to accept that amendment and entrench the United Nations declaration in Bill C-88?

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Mr. Speaker, I was very proud to have the opportunity of trying to get Bill C-262 passed in the House of Commons. It was a great opportunity. I remember speaking with many of my colleagues, the indigenous caucus, and trying to work with the member for Thunder Bay—Rainy River, to ensure that UNDRIP passed in the House of Commons. I know it is before the Senate and the document is not yet law. The senators in the other place have to decide on what will actually occur with that bill and I hope they are able to come to a final conclusion on that.

For me, I think the bill already does incorporate the United Nations Declaration on the Rights of Indigenous Peoples in the law. It ensures that there is respect and self-determination of government. I talked about principles 1 and 5, which recognize self-determination and the right to self-government, which I think is central to the UN Declaration on the Rights of Indigenous Peoples. This goes, part and parcel, with all the other policies we have been doing in the budget, for instance, with water, health, education, economic prosperity, a new fiscal relationship with urban indigenous peoples, and even with emergency management. All of these things are about ensuring that we have an implemented UN Declaration on the Rights of Indigenous Peoples, human rights for all peoples across Canada.