The Canadian Arctic Resources Committee (CARC) is a public interest environmental organization. CARC's mission is to advocate for ecologically sustainable development in the Canadian and circumpolar arctic. CARC was founded in 1971. CARC has participated in a range of public regulatory inquiries and project assessments including the Berger Inquiry, and the Lancaster Sound, Beaufort Sea and BHP environmental assessments. CARC has always been committed to the just settlement of aboriginal claims in northern Canada and to development that meets the needs of northern residents and provides real benefits to northern residents. We also support co-management approaches such as those found in this Bill to the extent they foster local involvement in resource management and greater accountability to resource users.

Some of CARC's current efforts are focused on arguing the case for a comprehensive review of the free miner system of disposing of publicly owned mineral rights. This system is embodied in the Canada Mining Regulations and the Yukon Quartz Act.

CARC does not receive any government funding. We are dependent on membership support and foundation support for specific projects. CARC publishes the journal Northern Perspectives. The most recent issue deals with traditional ecological knowledge and flows from a partnership between CARC and the community of Sanikiluaq on the Belcher Islands.

CARC's written submission is organized as follows. First, we provide a summary of our recommendations. Part 2 provides a context for our comments. This section includes comments on the relationship between Bill C-6 and other land claim implementation legislation and the process for developing this legislation. Part 2 also comments on the purpose and normative underpinnings of the present legislation. Part 3 deals with the land and water provisions of Bill C-6 and Part 4 deals with the assessment provisions of the legislation. Part 5 offers brief comments on the monitoring part of the Bill and Part 6 asks the Committee to consider the possibly prejudicial effects of this Bill on the settlement of outstanding claims in the Valley. This Part also offers comments on the procedural protections offered to groups other than the Gwich'in and Sahtu. The submission concludes in Part 7 with some miscellaneous drafting comments.

There are massive changes occurring in the north with the division of the NWT, the settlement of claims and the devolution of legislative powers and resources to the territorial governments. The legislative agenda of the Minister for Indian Affairs and Northern Development is immense. Bill C-6 is just one of the many pieces of legislation that will be required to implement northern land claims. The committee has already seen some examples of what this entails including the Yukon Surface Rights Act and, in the last session, the Nunavut Waters Bill. Much more is to follow including the assessment legislation for Yukon, the planning and assessment legislation for Nunavut and the surface rights and water legislation for Nunavut. The Committee must also be aware that the Government of Canada is consistently failing to meet the legislative timetable established by the northern land claim agreements.

More specifically, CARC seeks to raise a broader public interest concern in the context of developing legislation such as Bill C-6. CARC is fully cognizant of and supportive of the special constitutional and fiduciary position of the Gwich'in, Sahtu and other First Nations and Aboriginal people. We understand that First Nations are not just another special interest group. At the same time, we fully appreciate that Bill C-6 creates institutions of public government and must protect the broader public interest as well as allowing Canada to fulfill its constitutional responsibilities. The process for developing Bill C-6 has focused on the interests of the Sahtu and Gwich'in almost to the exclusion of all other interests, whether those interests be articulated by Environmental Non- Governmental Organizations (ENGOs) or the mining industry. We suggest that one inevitable result of this focus is that the drafters end up in a confrontational setting in which the wrong questions are being addressed.

Speaking from experience with other implementing legislation, the task the negotiators set themselves is too often that of slugging it out between two competing visions of the "true intent" of the land claim agreement. This is an important and essential question in any implementing legislation, especially where the powers and independence of the Boards are at stake, but to focus on this question to the exclusion of others runs the risk of ignoring the larger questions such as: what are the values (ethical and ecological) that underlay this piece of legislation? What improvements can we make to the existing regime?

We suggest that these questions are particularly pertinent here because this legislation purports to apply outside the Sahtu and Gwich'in settlement areas. This Bill represents an important opportunity for regulatory reform in the Valley. If this opportunity is missed it is not clear when these matters will be back on the parliamentary agenda.

Let us provide one example of how the negotiating process may lead to the exclusion of some broader questions. Bill C-6, notwithstanding its long title does not have an overarching objectives clause. In fact, it contains very few normative statements as to just what it is that integrated management is striving for. In many respects it is a bureaucrat's (and a lawyer's) dream, concerned with the establishment of a multiplicity Boards and the prescription of their powers. Isn't there something missing?

It is true that different parts of the Bill contain purposes or principles clauses (e.g. s. 34 dealing with planning, ss. 114 and 115 dealing with EIA, and to a lesser extent s. 146 dealing with monitoring). But there are also important gaps. For example, Part 4 of the Act establishing the Mackenzie Valley Land and Water Board lacks an objectives clause. Similarly, while s. 58 provides an objectives clause for the regional land and water boards it is hardly a forward looking clause. Why does it make no mention of sustainability values? Why does it make no mention of the importance of preserving and protecting the resource base for subsequent generations as well as for current residents? Why does it not articulate as a purpose the maintenance of healthy and functioning ecosystems? Why does it not refer to the precautionary principle? The present clause reads more like a purposes clause for the 1970s rather than a purposes clause to carry us through into the next century. It is all the more unfortunate because it will replace the TLURs which had, at the time that they were introduced in 1977, a preambular clause, based on what is now s. 4 of the Territorial Lands Act, which was remarkably farsighted for its times:

This legislation is clearly of major significance to the proper management of land and resources in the Mackenzie Valley. It will replace the Territorial Land Use Regulations (TLURs) which have been in place for over 20 years. It significantly modifies the application of CEAA. In the past, the Government of Canada has provided resources to ENGOs and to other stakeholders to participate in and critique the development of legislation such as this. Attempts have also been made with other legislative initiatives to build consensus amongst stakeholders. The establishment of the Regulatory Advisory Committee (RAC) for CEAA provides a case in point. None of those steps have been followed here despite the efforts of CARC and others to persuade the Department to do so. Requests for funding to assist us in developing a more rigorous review of this Bill were rejected. DIAND has never called a meeting of all involved stakeholders to consider the contents of the Bill.

Subject to our earlier comments as to the absence of a normative basis for integrated management, CARC supports the integration of land and water decision-making throughout the Valley. We strongly support the severance of land use regulations from the Territorial Lands Act (TLA) and we suggests that this will have two main benefits. First, it allows the regulations to apply to activities on all lands regardless of who happens to own the lands. Under the current regime the TLURs only apply to Territorial Lands under the administration of the Minister for IAND (TLA, s. 3). Second, the change allows us to separate in our minds the issues of regulation from the issues of ownership. However, it will be important to monitor the development of the regulations to ensure that this separation continues.

The present draft of the regulations exhibits evidence of muddled thinking in this regard. Section 18 addresses, in the English version, the topic of "Eligibility for a Permit". It is not clear why government needs to concern itself with the property relations underlying an application for a permit other than perhaps requiring an applicant to attest to the fact that it has a right from some source to be on the lands in question. This may have made sense when the regulations only applied to "Territorial Lands" but not when the regulations are more clearly concerned with the regulation of land use activities regardless of who happens to be the owner.

We note as well that the proposed regulations will change the thresholds for the issuance of permits in one potentially significant way. Under the current TLURs (s. 9(d)), a Class B permit is required for a campsite that will be occupied for more than 100 person days. This requirement has been dropped from the proposed MVLURs. CARC takes the view that the Crown should know who is carrying out industrial activities on public lands and that the existing requirements make good policy sense. While it may not be appropriate to include this requirement in the MVLURs given our comments above as to separating proprietary and regulatory functions, the TLA will still apply in the Valley and the Crown has the right to know of industrial activities occurring on public lands. Absent this requirement the Crown will have no record.

CARC continues to be concerned as to the ability of the various Boards to discharge their onerous responsibilities under this Bill through the recruitment and retention of appropriate staff. The Bill is structured so as to provide for an annual budgeting process (s. 26). While this is no doubt an important technique for maintaining accountability, at the same time, industry and the public need to be assured that the Boards will be accorded the resources to do the job. The current provisions accord significant discretion to the Minister and they would benefit from being re-drafted by drawing upon the drafting adopted for the offshore boards established for Newfoundland and Nova Scotia. The statutory framework for those Boards has the following features:

One of the underlying issues here is the potential dependence of Boards on government technical advice. This has been a problem for northern water boards over the last couple of decades. There are questions as to the legality of decision-making when Boards become overly reliant on technical advice from government officials.

The prevailing regime for environmental assessments in NWT is established by the Canadian Environmental Assessment Act (CEAA). Section 116 of Bill C-6 establishes the general principle that CEAA will not apply within the Mackenzie Valley subject to exceptions for the national interest (s. 130(1)(c)) and agreements for joint review panels. In a number of particulars Bill C-6 seems to establish standards that are lower than those prescribed by CEAA.

Many of the definitions in C-6 (see s. 2 and s. 111) are more limited than the definitions of CEAA with the apparent consequence that the scope of the assessment will be more limited under C-6. For example, in C-6 a follow-up program (s. 111) is confined to considering measures that are "imposed as conditions of the approval of the project"; CEAA uses the broader term "any measures taken...". Under CEAA, mitigation may include restitution, replacement restoration or compensation; the equivalent term in Bill C-6, (s. 111) "mitigative or remedial measure", is much more narrowly defined.

The role of the public is central in CEAA. It forms one of the four original (now 5, see SC 1994, c.46) objectives of the legislation. The CEAA objective is framed in positive and active terms as an opportunity to participate. This objective is reinforced by the creation of a participant funding program under s. 58(1.1) of CEAA as well as the public registry.

There are several indications that the role of the public is not central to Bill C-6. First, the active language of CEAA is transformed into the passive language of s. 114(c) enuring not a right to participate but ensuring instead that concerns are to be taken into account. Second, the tools to participate in the form of the participant funding program and public registries of CEAA are not replicated in Bill C-6. Section 143(1)(d) of Bill C-6 does provide for regulations for a registry but this falls far short of the strong purposive language of s. 55 of CEAA. Third, there are several examples in Bill C-6 where the public fails to get a mention where one might reasonably expect it to make an appearance. For example, the Review Board can establish guidelines under s. 120 after consulting with First Nations and federal and territorial governments but there is no mention of the public. Similarly, the public is not mentioned in s. 130(4) or s. 136(1) dealing with the distribution of reports. This stands in stark contrast to the strong normative language of s. 36 of CEAA. Neither is the public mentioned in s. 134(1) dealing with the preparation of the terms of reference for a review board.

Other opportunities for political accountability are also missing. For example, while CEAA provides for an annual reporting to parliament and a comprehensive quinquennial review, these are missing from Bill C-6 and are replaced by a requirement of annual reporting to the minister (s. 28).

Finally, we wonder whether these differences between CEAA and Bill C-6 are consistent with national approaches towards the harmonization of the assessment processes of different jurisdictions?

As with CEAA and other assessment legislation, the key to understanding the ambit of this Part of the Bill is to ask what activities will trigger screening and subsequent assessment? Although this Bill contains additional discretionary powers accorded to the various Boards, the key is still s. 124 which specifies (subject to exceptions) that screening will occur if the activity triggers a provision of a territorial or federal law listed by regulation under s. 143(1)(b) of the Bill. This is the Bill's equivalent of CEAA's infamous law list.

We don't have the time to analyse that list in detail and so we will simply content ourselves with two comments. First, it is not clear to us that the mineral industry has been appropriately treated by the draft Statute List Regulations. For example, there is not a single provision of the Canada Mining Regulations that is listed in this set of regulations. Now it would be misleading to leave you with the impression that is all there is in the Statute List Regulations dealing with mining. Mining activities will often be caught by triggers contained in land use and water regulations, but the simple point we make is that we have yet to be convinced that there has been an adequate assessment of appropriate triggers for the mining industry. Let us give you one example. Mineral rights may be withdrawn from staking by the Governor in Council under s. 19 of the TLA and under ss. 11(d) and (f) of the Canada Mining Regulations. This may occur for a variety of reasons including environmental reasons. In CARC's view, a decision to open those lands to staking (i.e. to reverse the withdrawal) should trigger an environmental screening. We would make the same case for decisions to transfer the administration and control of Crown lands from the Minister of the Environment back to the Minister for IAND.

The second point is that there is a remarkable dissonance between the provisions of territorial laws that will trigger and the equivalent provisions in federal legislation. For example, several of the limited number of territorial disposition decisions will act as triggers (e.g. sale or lease of Commissioners' land for a quarry or airport; the issuance of an outfitters licence). By contrast federal disposition decisions are not listed. The trigger thresholds under territorial laws are generally lower than the trigger thresholds for federal laws. Why is this?

CARC applauds the inclusion of Part 6 dealing with monitoring. These are important provisions. It is vital that we learn by doing. These provisions should, over the long run, improve our understanding of the assessment process, of adaptive management and our understanding of the Mackenzie Valley ecosystems. It is unfortunate that these objectives are not more clearly recognized in s.146 of the Bill. CARC also believes that statutory provisions of this nature should allow us to avoid the type of ad hoc solutions that had to be developed to deal with the BHP operation.

CARC's main concern with Part 6 of the Bill is that, apparently, Government has still to decide whether to establish the monitoring authority within a government department or at arms length. This issue is identified in the Sahtu and Gwich'in claims and it is remarkable that government thinking has not progressed to the point where a decision can be made on this score. This suggests that the matter has been given a very low priority within DIAND. CARC believes that this is too important an issue to be left to the drafting of regulations. CARC has been favourably impressed by the work to date of the independent monitoring agency established for the BHP project and we suggest that as a model for adoption here.

As stated above, CARC has always advocated for the just settlement of claims and their implementation. CARC recognizes that, in part, this Bill represents the implementation of the Sahtu and Gwich'in claims. However, the Bill goes beyond that and purports to establish a template for the rest of the Valley and thereby, as a practical matter, no doubt limits the scope of land claim negotiations for Metis and for the outstanding claims of other First Nations in the Valley. It is not to clear to us that this approach will facilitate settlement of these claims.

We note that there is an important distinction to be made between the situation in the Valley and the situation in the Yukon. In the Yukon there is an Umbrella Final Agreement which established parameters for future claims. Government can rely upon that consensual document when developing legislation for Yukon even though not all First Nations have executed Final Agreements. This is not the case in the Valley and any attempt to impose the Sahtu and Gwich'in arrangements on Metis and other First Nations lacks legitimacy. CARC notes that the legislation does not purport to apply to the Inuvialuit region even though that region forms part of the Mackenzie Valley.

We also note that the Bill does little to accommodate First Nation self-government. In fact, insofar as the Bill will apply to First Nation-owned lands it may prove to be an impediment. It is useful to contrast the framework of this Bill with self-government under the Yukon claim. In the Yukon, the self-government agreements (SGAs) envisage that a First Nation will be able to make laws for the management of its settlement lands and that these laws will "back-out" inconsistent territorial laws. The same rule does not apply to federal laws. The SGAs state that the paramountcy principles have yet to be negotiated for conflicts between federal and First Nation laws. In the present case, Bill C-6 constitutes a major re-affirmation of federal occupation of the legislative field. This may make it all the more difficult for First Nations to create legislative space for themselves as part of their self government negotiations.

CARC also notes that the Bill contains several levels of consultation rights. At the top of the pyramid are the Sahtu and Gwich'in, next come other First Nations and Metis (excluded from consultation or involvement in some cases e.g. ss. 8, 147(1)(5), 150(c)). Other Aboriginal peoples are not accorded the same level of consultation opportunities even though their interests may be affected (excluded for example from ss. 8, 90 and 120). This is certainly true of the Inuvialuit who have interests in the Mackenzie system but also of the Inuit of Nunavut. This latter follows because the definition of the Mackenzie Valley contained within the Bill is an artificial definition. It encompasses parts of drainage basins that fall outside the Mackenzie Valley (e.g. portions of the Coppermine drainage basin) and are of particular interest to Inuit. CARC acknowledges that this hierarchy of consultation reflects the particular rights of Gwich'in and Sahtu under their agreements but there is still a case to be made for notification of, and input by, other aboriginal peoples where they have interests that are or may be affected. We have already made the case for public involvement under the assessment provisions of the Bill and no doubt this point could be made more broadly in the present context.