Cameron – A Test for Senators on NWT Devolution

As the Senate Standing Committee on Energy, the Environment and Natural Resources meets to review Bill C-15, Kirk Cameron (in his role as a responsible and independent citizen) advises senators on how to evaluate the bill.

I’ve had a busy week. Last Friday I was winding down my day when I received an urgent communication asking if I would mind appearing before the Senate Committee on Energy, the Environment and Natural Resources. Oh, and by the way, the meeting takes place Tuesday afternoon at 5:00 in Ottawa. Not wishing to miss an opportunity to spend yet more time on airplanes, I immediately booked my ticket and at 5:50 in the morning of February 3rd found myself en route to the nation’s capital, a mere 11 hours away.

Normally I would not have moved mountains (otherwise known as my schedule) to get to Ottawa for such an event, but, given the subject, I felt duty-bound to make the effort.

Why so important? The topic before the senate committee is the review of Bill C-15, the long title of which is (hold onto your hat), An Act to replace the Northwest Territories Act to implement certain provisions of the Northwest Territories Lands and Resources Devolution Agreement and to repeal or make amendments to the Territorial Lands Act, the Northwest Territories Waters Act, the Mackenzie Valley Resource Management Act, other Acts and certain orders and regulations, the short form of which is the NWT Devolution Act. I was heavily involved in the devolution of land and resources in Yukon, and felt it was only right for me to share, along with Yukon’s then Premier, Dennis Fentie, the “lessons learned” from our earlier work on the subject.

It also occurs to me that perhaps my faithful readers might wish to review what I had to say to the senate committee.

And, so, read on….

Thank you for the invitation to speak with you this evening regarding the Yukon experience with devolution, and lessons learned that may be of use to your work on Bill C-15. It is indeed an honor and I am particularly pleased that two fellow northerners are on this committee, Senators Patterson and Sibbeston, whom I have known and worked with off and on for many years.There are three main messages I would like to offer in my opening remarks.

First, this work on C-15 is very much about “nation-building” as other witnesses and committee members have said in earlier meetings on this topic. When addressing the jurisdiction of territorial governments and their structures, we are not dealing simply with administrative agencies of the federal government as I have heard argued in the past. The courts have recognized that in structure and action, as well as their recognition in Canada’s Constitution and the Charter, that we are dealing with “infant provinces” or geo-political entities with “sovereign-like legislative character.” Recently, academics studying the evolution of territories have referred to them as “quasi-provinces” in a number of publications.

I would argue, therefore, that the work before you is about the creation of the next generation of province-like jurisdictions in Canada, based on a partnership if you will between Aboriginal people and public government. Given the importance of this partnership, I emphasize that this is a significant departure from the historical journey of Canada that resulted in the current federation with its ten provinces with their structures and powers set out in the Constitution of Canada.

Why is this new generation of “provinces-in-the-making” so different? The three territories are structurally about cooperative institutions that are the negotiated outcomes of modern treaties and associated self-government arrangements. Indeed the Yukon Act, and the new NWT Act, which are really the “constitutions” of our territories, have provisions that give strength to this principle of governance partnership. One example is found in sections 25(1) and 26 in the bill before you. S.25 speaks to the consistency between powers of territories and provinces; territories cannot have more powers than provinces in effect. Yet s.26 strays into exclusive federal domain, providing the NWT Legislature with the ability to exercise “…its powers under sections 18 and 19 for the purpose of implementing an Aboriginal land claim agreement or a self-government agreement, [to] make laws that are in relation to the matters coming within class 24 of section 91 of the Constitution Act, 1867.”

In addition, many of the key jurisdictions relating to land and resource management that normally fall under provincial authority in the South are, in Yukon, NWT and Nunavut, addressed in the treaties, and implemented through federal legislation to enshrine the elements of the cooperative relationship between Aboriginal and public government. In Yukon two key examples are the Yukon Environmental and Socio-economic Assessment Board and Water Board. In the NWT, as you well know, the MVRMA and its various institutions for environmental assessment (MVEIRB) and the land and water boards are captured in the bill before you today.

My second message is that what you are working on today is not an end point in the maturation of the NWT. If anything it is the start of a long period of “settling in” as the new partnership between Aboriginal and public government matures following the implementation of devolution April 1 of this year. In a post-devolution world most lands and surface and sub-surface resources will be “owned” or controlled by either Aboriginal organizations or by the territorial government. Over the next many years we can expect many debates regarding the pace and direction of land and resources development in the NWT. Today, in Yukon, a highly contentious debate continues regarding the Peel Watershed Land Use Plan. It will take considerable time, and I anticipate more than one court case, before this matter is resolved.

But this is as it should be. Matters falling within the region should be debated and decided upon within the region no matter how difficult the challenge.

The third point I wish to make is that there are no easy comparisons between Yukon and the NWT. The land claims are very different. The ways in which the assessment and resources laws have been treated are very different. And, the structural outcomes of the Aboriginal governance frameworks that were created in Yukon through the treaties and self-government agreements are not the same as those found in the agreements with the Inuvialuit, Gwich’in, Sahtu and Tlicho. In many cases in the NWT, self-government negotiations are not complete. You also do not have a framework agreement like the Yukon’s Umbrella Final Agreement to help bring clarity to questions of consistency between regions of the territory.

Despite these differences, there are two tests I would recommend be brought to your deliberations as you work your way through this bill with its complex array of associated consequential amendments to other legislation.

The first test: Does the part of legislation under scrutiny serve to enhance the partnership between Aboriginal governments (organizations) and the territorial government?

The second test: Without jeopardizing the interest in Aboriginal-public government partnership, does the part under scrutiny further the national interest in supporting the development of territorial governments with the same suite of authorities exercised by provinces within Canada? In other words, does this result in moving what would normally be considered province-like decision making powers to the territorial level?

I have two final points to make.

First, I am very pleased to see the sunset clause relating to s.4(3). Here is a very good example of finding the balance between the two tests I have outlined. Following a ten year period it removes the federal government’s capacity to direct the NWT Commissioner (essentially their Lieutenant Governor) on matters falling within the executive authority of the territorial government. The ten years, however, gives comfort to Aboriginal groups without land claims completed, that the federal government can exercise extraordinary discretion in ensuring land claims can be concluded. We had a similar clause in the Yukon Act. It was most useful in providing a level of comfort to First Nations negotiating their land claims from 2003 to 2013 at which time that section of the Yukon Act was repealed. I note that during the intervening ten years, s. 4(3) of the Yukon Act was not needed to support the negotiations.

Finally, there is one small matter still outstanding relating to Yukon. The question of drawing a boundary line offshore in the Beaufort Sea between Yukon and the NWT was not resolved when the Nunavut Act was passed in 2003. It would appear that Bill C-15 also does not address the matter. It seems to me that the opportunity is before you to clarify that the waters offshore of Yukon are associated with Yukon and not the NWT, thus reflecting a principle of association applying to all provinces with maritime waters, the NWT and to Nunavut.

It may also be useful in some small way in reinforcing Canada’s position regarding the off-shore boundary line between Canada and the United States in the Arctic Ocean. Clarifying the association of Yukon to this off-shore area in the Beaufort will bring our sub-national government most closely affected by the boundary line into the discussion. Canada may wish to give this some consideration as this bill progresses…

Of course there is so much more one could say about northern governance and devolution, but my time is up.

With this I thank you.

Photo credit: Intiaz Rahim under a creative commons license.

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