LS-342E

TABLE OF CONTENTS

BACKGROUND

   A. General

   B. Nunavut Land and Resource Management Institutions

DESCRIPTION AND ANALYSIS

   A. Introductory Provisions

   B. Part 1: Nunavut Waters
      1. Overview
      2. Clauses 4 to 13: General Provisions
      3. Division 1 (Clauses 14 to 41): Nunavut Water Board
      4. Division 2 (Clauses 42 to 80): Licences
      5. Division 3 (Clauses 81 to 93): Regulations, Enforcement, and Offences and Punishment

   C. Part 2: Nunavut Surface Rights Tribunal
      1. Introductory Provisions (Clauses 94 to 96)
      2. Division 1 (Clauses 98 to 131): Establishment and Organization of Tribunal
      3. Division 2 (Clauses 132 to 141): Orders for Inuit-Owned Land
      4. Division 3 (Clauses 142 to 148): Entry Orders for Non-Inuit Owned Land
      5. Division 4 (Clauses 149 to 150): Mineral Rights and Carving Stone
      6. Division 5 (Clauses 151 to 157): Wildlife Compensation
      7. Division 6 (Clauses 158 to 169): General

   D. Part 3 (Clauses 170 to 205): Transitional Provisions, Amendments to This Act
       and to Other Acts, Conditional Amendment

COMMENTARY

   A. NTI Comments on Bill C-51

   B. Bill C-62

   C. NTI Views on Bill C-62

BILL C-62: NUNAVUT WATERS AND
NUNAVUT SURFACE RIGHTS TRIBUNAL ACT

BACKGROUND

Bill C-62, An Act respecting the water resources of Nunavut and the Nunavut Surface Rights Tribunal and to make consequential amendments to other Acts (the Nunavut Waters and Nunavut Surface Rights Tribunal Act), was introduced in the House of Commons on 4 December 1998. The bill would implement provisions of the 1993 Nunavut Land Claims Agreement relating to the management of waters and to the creation of a Surface Rights Tribunal for the newly created territory of Nunavut, established 1 April 1999.

   A. General

In 1977, the Inuit Tapirisat of Canada (ITC) initiated the largest comprehensive land claim in Canadian history. The claim involved over 1,900,000 square kilometres of the central and eastern Northwest Territories, as well as adjacent offshore areas, and creation of a new political territory called Nunavut. The ITC subsequently agreed that the creation of Nunavut would be dealt with apart from the comprehensive claims process.

In 1982, the Tunngavik Federation of Nunavut (TFN) replaced the ITC as the negotiating body for the Inuit. In 1990, the TFN, the Government of the Northwest Territories and the federal government reached an Agreement-in-Principle (AIP), with the Final Agreement on major elements of the land claim concluded late in 1991.

Article 4 of the Final Agreement, entitled "Nunavut Political Development," was pivotal to the conclusion of Nunavut land claim negotiations. It committed Canada to the creation of the Nunavut Government and Territory, following negotiation of a political accord on timing, process and substantive issues. In October 1992, subsequent to a successful plebiscite on the principle of dividing the Northwest Territories, the Nunavut Political Accord ensuring the creation of Nunavut by 1999 was signed.

In November 1992, approximately 70% of the eastern Arctic Inuit ratified the Final Agreement. The Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada was signed by federal, territorial and TFN representatives in May 1993. Under Article 2.2.1, this Nunavut Land Claims Agreement (the Agreement) "shall be a land claims agreement within the meaning of section 35 of the Constitution Act, 1982." Article 4 stipulated, however, that neither the Political Accord nor legislation enacted in accordance with it would form part of the Agreement, or benefit from section 35 protection as a land claim agreement.

The Agreement establishes the Nunavut Settlement Area that covers approximately 2,000,000 square kilometres, or roughly one-fifth of Canada’s land mass. It provides for financial compensation of $1.14 billion, to be paid to the Nunavut Trust for the Inuit over a 14-year period, and Inuit ownership of 350,000 square kilometres of land within the Nunavut Settlement Area, including mineral rights over approximately 10% of these 350,000 square kilometres. In return for these and other guarantees set out in the Agreement, the Inuit agreed to the extinguishment of their Aboriginal title to lands and waters anywhere in Canada or adjacent offshore areas within Canadian jurisdiction or sovereignty.

Federal legislation to ratify the Agreement (the Nunavut Land Claims Agreement Act(1)) and to establish the Nunavut Territory on 1 April 1999 (the Nunavut Act(2)) received Royal Assent in June 1993. The Nunavut Land Claims Agreement Act came into force on 9 July 1993, completing the process for ratification of the Agreement. Also in 1993, responsibility for implementing Inuit obligations under the Agreement, and for ensuring on behalf of the Inuit of Nunavut that governmental signatories to the Agreement fulfil their respective obligations, passed to Nunavut Tunngavik Incorporated (NTI), the successor organization to TFN.

   B. Nunavut Land and Resource Management Institutions

The Agreement sets up structures with responsibilities and authority in the Nunavut Settlement Area in matters of wildlife, land and resource management and environmental protection. Pursuant to Article 5, the Nunavut Wildlife Management Board (NWMB) was established as an "institution of public government" on the date of ratification of the Agreement. Articles 11 - 13 further provide for the creation of the Nunavut Planning Commission (NPC), the Nunavut Impact Review Board (NIRB) and the Nunavut Water Board (Board). Article 21 provides that a Surface Rights Tribunal (Tribunal) must be established if requested by a prescribed Inuit organization, or may be established as an initiative of Government.

Sections 10.1.1 and 10.2.1 of the Agreement stipulate that, unlike the NWMB, the other institutions identified "shall be established by legislation" and "[a]ll [their] substantive powers, functions, objectives and duties … shall be set out in statute." Under the Article 10 timetable, the Tribunal would be set up by or before "six months after" the Agreement’s ratification date, while the NIRB, the NPC and the Board would be established by or before the second anniversary of that ratification.

Section 10.10.1 provides for the contingency that the required legislation might be delayed. It states:

Where the legislation to establish any of the institutions referred to in Section 10.1.1 is not in effect by the first anniversary of the date specified for their establishment,

(a) in respect of the Tribunal, the Minister shall appoint persons as members of the Tribunal; and

(b) in respect of NIRB, the NPC or the NWB, the provisions of the Agreement respecting the appointment of the members of that institution shall be considered to be in effect on that anniversary date, and

upon their appointment, those members shall be considered to have, for all purposes of law, all the powers and duties described in the Agreement.

In the absence of federal legislation to meet the schedule at Section 10.1.1, the four institutions in question have been exercising the "powers and duties described in the Agreement" since 1996. Notwithstanding this reality, Section 10.10.3 of the Agreement also provides that "[g]overnment may, at any time, re-establish in the manner provided for in [other Parts of Article 10], any institution established under Section 10.10.1."

The federal government has taken the position that the Agreement obliges it to constitute the Board and the Tribunal by way of legislation, notwithstanding their up-and-running status.(3) In the case of the Board, legislation is said to be necessary "to clarify the descriptions of the powers of the water board in the agreement and define the jurisdiction of the new board vis-a-vis [sic] the existing Northwest Territories Water Board."(4) In the case of the Tribunal, the obligation is to "establish all substantive powers, functions, objectives and duties … by statute."(5)

DESCRIPTION AND ANALYSIS

Bill C-62 consists of a preamble, 205 clauses and two Schedules. The following discussion highlights selected aspects of the bill and does not review every clause.

   A. Introductory Provisions

The bill’s preamble sets out the context for the proposed Act as the signing of the Nunavut Land Claims Agreement; the coming into force of the Agreement on 9 July 1993; and the undertaking of the Government of Canada in the Agreement to establish the Board and the Tribunal as institutions of public government, and to set out by statute all their substantive powers, functions, objectives and duties.

Like other statutes giving effect to provisions of modern treaties such as the Agreement, Bill C-62 explicitly reiterates the Agreement’s terms giving the Agreement precedence over inconsistencies or conflicts with the bill, which would itself prevail over inconsistencies or conflicts with all other federal legislation except the Nunavut Land Claims Agreement Act (clause 3).

   B. Part 1: Nunavut Waters

      1. Overview

Bill C-62 is the second bill to address the establishment of the Board. Bill C-51, an Act respecting the water resources of Nunavut, was introduced during the 35^th Parliament in June 1996, and was the subject of hearings before the Standing Committee on Aboriginal Affairs and Northern Development in November 1996. That bill did not proceed beyond committee stage. This was largely due to the perceived need for renewed negotiations between officials of the Department of Indian Affairs and Northern Development (the Department) and NTI in order to resolve outstanding differences as to how to ensure implementing legislation reflected the Agreement’s terms.

Like Bill C-51, Part I of Bill C-62 would create the Board to license the use of water and the deposit of waste in Nunavut. Part I defines the Board’s powers and jurisdiction over the regulation, use and management of water in the Nunavut Settlement Area. These powers and responsibilities would be equivalent to those of the Northwest Territories Water Board under the Northwest Territories Waters Act, subject to special provisions in the Agreement. Thus, licence approvals relating to water in the Nunavut Settlement Area would be made in Nunavut rather than the Northwest Territories (NWT).

Part I would require the Board to work with the NPC in the development of land use plans affecting water, and with the NIRB (or, as the Agreement provides, a federal environmental assessment panel(6)) in assessing environmental impacts of proposals for water-related projects in Nunavut.

      2. Clauses 4 to 13: General Provisions

Clause 4 sets out a series of definitions for terms used in this part of the Act. Clause 8 would vest the property in and the right to the use and flow of all water in Nunavut in Her Majesty, subject to the rights, under the Agreement, of the "designated Inuit organization" (NTI or an organization designated by it) in respect of waters. Under clause 9, the Minister of Indian Affairs and Northern Development (the Minister) could delegate various functions under the Act to the territorial Minister responsible for water resources. Clause 11 would prohibit the unlicensed use of waters in Nunavut, subject to prescribed exceptions such as use for domestic or specified emergency purposes.

      3. Division 1 (Clauses 14 to 41): Nunavut Water Board

This portion of the bill pertains to the establishment and organization of the Board. It includes provisions for appointments to and the composition of the Board, as well as the terms of office and remuneration of Board members. Under clause 14(3), one half of the Board membership would be appointed on the nomination of the designated Inuit organization.

Clause 25 provides that the Board would be required to conduct its business and public hearings in both official languages and, on request, in Inuktitut. Clause 26 stipulates that the head office of the Board would be located at Gjoa Haven. Provisions relating to the status and general powers of the Board at clauses 28 to 31 would authorize the Board to acquire and dispose of property, enter into contracts, and sue or be sued in its own name.

Under clause 32(1), the Board would submit an annual budget to the Minister for consideration. Clause 32(4) provides that the accounts of the Board would be subject to an annual audit and, where requested by the Minister, audit by the Auditor General of Canada. The auditor and, where applicable, the Auditor General, would be required to submit audit reports to the Board and the Minister.

Clause 35 describes the objects of the Board as being to provide for the conservation and utilization of waters in Nunavut, except in a national park, so as to provide optimum benefit for residents of Nunavut and all Canadians. Clauses 36 and 37 would require the Board to contribute to the NPC land use planning process in respect of waters, and to cooperate and coordinate its consideration of applications with the NPC and the NIRB, or any federal environmental assessment panel referred to in section 12.4.7 of the Agreement. Under circumstances set out at clauses 38 and 39, the Board’s authority to issue, amend or renew licences could be restricted or delayed by the NPC or the NIRB. Clause 41(1) would permit the Board, either on its own or jointly with the NPC, NIRB and the Nunavut Wildlife Management Board, to make recommendations regarding marine areas.

      4. Division 2 (Clauses 42 to 80): Licences

These clauses set out the rules, procedures and conditions for the issuance of licences by the Board. For example, clauses 51 and 52 outline circumstances in which the Board might, or would have to hold public hearings when dealing with applications for licences. Clause 56(1) stipulates that the issuance, amendment, renewal and cancellation of a type A licence, and if a public hearing was held, a type B licence would be subject to the approval of the Minister.(7) Clauses 58 to 60 address the matter of compensation for existing licence holders and others whose water use would or could be adversely affected by a projected use of waters or deposit of waste. Clause 61 lists factors that the Board would be required to consider in determining whether compensation was appropriate.

Clauses 62 to 67 specifically address the issuance of licences affecting water use and waste deposit on "Inuit-owned land"; this is land owned by the Inuit under the Agreement. Clause 62 would give existing water use by Inuit priority over the licensed use or deposit of waste by any person with a mineral right. According to clause 63(1), the Board would be prohibited from issuing a licence that might substantially alter the quality, quantity or flow of water flowing through Inuit owned-land, unless the applicant had entered into a compensation agreement with the designated Inuit organization, or the Board had determined appropriate compensation. In addition, under clause 64 the Board would be required to collaborate with its NWT counterpart to arrive at a joint determination of compensation for use of water outside Nunavut that substantially altered the water flowing through Inuit-owned land. Clause 65 provides that, for greater certainty, these compensation rules would apply in relation to a body of water that marked the boundary between Inuit-owned land and "other land." Factors that the Board would be required to consider in determining compensation are enumerated at clause 67; they include cumulative effects of the alteration, the cultural attachment of Inuit to the affected land, interference with Inuit rights under the Agreement, and so forth.

Clauses 69 to 74 would establish the Board’s powers to include in a licence "any conditions that it considers appropriate"; define the purposes of fixing conditions as being to minimize adverse effects of or interference from water use or waste deposit; require that the conditions in a licence met minimum standards in prescribed circumstances, relating, for example, to water quality standards or specified fisheries regulations.

Clause 76 is a lengthy provision concerned with the expropriation of land or interests in land in Nunavut. Under clause 76(1), an applicant for a licence might be permitted to expropriate such land or interests, in accordance with the federal Expropriation Act, provided the Minister, on the Board’s recommendation, was satisfied that certain conditions, including the public interest criterion, had been met. Clause 76(4) sets out procedures for resolving disagreements over compensation between the designated Inuit organization and the applicant or licensee through negotiation and/or arbitration. Under clause 76(11), federal Crown lands in Nunavut, or lands of which the federal government had the power to dispose, would not be subject to expropriation. The expropriation of Inuit-owned land would, under clause 76(12), be subject to the relevant part of the Agreement.

      5. Division 3 (Clauses 81 to 93): Regulations, Enforcement, and Offences and Punishment

Clause 81 would give authority to the Governor in Council, on recommendation of the Minister, to make regulations related to various matters associated with water management and deposit of waste in Nunavut, including: the authorization of and conditions governing use of water without a licence; the prescription of criteria to be applied by the Board in determining the type of licence required for a proposed use of waters or deposit of waste Under clause 82, the Governor in Council could direct the Board not to issue licences regarding specified waters, or could prohibit an otherwise authorized use of waters or deposit of waste, in prescribed circumstances, such as to enable comprehensive evaluation and planning to be carried out with respect to those waters, including planning by the NPC.

Clauses 84 to 88 outline proposed measures for enforcement by the Minister or by inspectors designated by the Minister. Clause 85 would authorize an inspector to enter and inspect any place except a private residence where there were reasonable grounds to believe this was necessary to ensure compliance with Part I, the regulations or a licence. In addition, under clause 86 an inspector could, in prescribed circumstances, direct any person to take any "reasonable measures," including cessation of an activity, to prevent water use or waste deposit or the failure of a work related to those functions, or to counteract or remedy resulting adverse effects. Any such direction would be communicated to the Board and to the Minister who, after reviewing the direction, might alter or revoke it. Clause 87 provides that, in prescribed circumstances, the Minister might take preventive or remedial measures in relation to adverse effects resulting from the closure or abandonment of a work related to water use or waste deposit.

Clauses 89 and 90 define conduct that would constitute summary conviction offences under the Act, and the related penalties, both financial and penal.

   C. Part 2: Nunavut Surface Rights Tribunal

Part II of the bill would create the Tribunal and give it jurisdiction to resolve a number of matters, including disputes between Inuit and persons wishing to access Inuit-owned land; between persons who occupied Crown lands and persons holding subsurface rights who wished to access Crown lands; and concerning loss to Inuit as a result of damage to wildlife by development activities.

      1. Introductory Provisions (Clauses 94 to 96)

Clause 94 contains definitions of various terms used in Part II. Clauses 95 and 96 reflect the fact that Aboriginal groups in Canada other than Inuit may have made claims in relation to Nunavut.(8) Clause 95 would require the Minister to review with any such group provisions of Part II other than those implementing obligations under the Agreement, with a view to determining whether those provisions were inconsistent with the matters under negotiation and should be amended. Clause 96 stipulates that, subject to the Agreement, no non-Inuit might enter Nunavut without the consent of the designated Inuit organization. Further, no entry order from the Tribunal would exempt the recipient from any obligation under an Act of Parliament or the Agreement.

      2. Division 1 (Clauses 98 to 131): Establishment and Organization of Tribunal

These clauses provide for the establishment of the Tribunal and set out its powers and procedures. Clauses 98 to 103 provide that the Tribunal would be constituted by way of ministerial appointment and specify the terms of office and remuneration of Tribunal members. As in the case of the Board established in Part I, at least two Tribunal members would have to reside in Nunavut.

Clause 105 provides that the Tribunal would be required to conduct its business and public hearings in both official languages and, on request, in Inuktitut. Clause 106 stipulates that the Tribunal’s head office would be located at Iqaluit. Under clause 111, the Tribunal, like the Board, would be empowered to acquire and dispose of property, enter into contracts, and sue or be sued in its own name. Pursuant to clause 113, the accounts of the Tribunal would be audited annually by the Auditor General of Canada, while clause 114 would require the Tribunal to submit an annual report of its activities to the Minister.

Under clause 116, no person might apply to the Tribunal for an order without first attempting to resolve the matter in dispute by negotiation under prescribed rules. Clauses 116(2) and 117 would restrict the Tribunal’s authority to make orders in certain circumstances, such as where a matter had not been raised by the parties.

Clause 118 would require the Tribunal to deal with applications in an informal and expeditious manner, to give due weight to Inuit knowledge of wildlife and the environment, and, in relation to certain applications, to take into account the importance of wildlife to Inuit.

The remaining clauses of Division 1 are largely concerned with procedural matters such as hearing and disposition of applications, record-keeping and rule-making related to procedures, mediation and costs.

      3. Division 2 (Clauses 132 to141): Orders for Inuit-Owned Land

These clauses prescribe the Tribunal’s authority to make entry orders and set terms and conditions for the use or occupation of or access to Inuit-owned lands for the exercise of mineral rights granted by the Crown or under an Act of Parliament; for access across Inuit-owned land for commercial purposes; and for access to Inuit-owned land, on the application of the federal or territorial government, for the removal of sand, gravel and other construction materials. Clause 138 lists additional terms and conditions the Tribunal might include in an entry order pertaining to a right of access, including terms and conditions aimed at reducing adverse effects on the use and enjoyment of the land by the occupant or Inuit. Clause 139 sets out factors the Tribunal might or would have to consider in determining the amount of compensation payable to the designated Inuit organization and/or the occupant of the land, and outlines proposed methods of payment.

      4. Division 3: Entry Orders for Non-Inuit Owned Land (Clauses 142 to 148)

This division sets out the Tribunal’s authority to issue entry orders and impose terms and conditions with respect to rights of access, for the exercise of specified mineral rights, to non-Inuit owned land (defined as land in Nunavut not Inuit-owned under the Agreement and not owned or occupied by the Crown). Clause 146 describes factors that the Tribunal would be required to take into consideration in determining compensation payable under such an entry order.

      5. Division 4 (Clauses 149 to 150): Mineral Rights and Carving Stone

Clause 149 addresses the Tribunal’s role in evaluating the removal of certain "specified substances"(9) on Inuit-owned land in relation to the exercise of mineral rights. Clause 150 would authorize the Tribunal to resolve conflicts between a designated Inuit organization with a permit or lease for the quarrying of carving stone on Crown lands and a person with mineral rights in relation to those lands.(10)

      6. Division 5 (Clauses 151 to 157): Wildlife Compensation

Under clause 152 of the bill, a "developer" would be absolutely liable, subject to prescribed exceptions, for certain losses or damage associated with wildlife harvesting that were suffered by a claimant (defined as an Inuk or Inuit) as a result of "development activity."(11) Clause 152(2)(c) would set the ceiling for a developer’s liability for the aggregate loss or damage for each incident at $20 million. Clause 152(4) sets out principles that would be applicable to the determination of compensation under the clause, including the general rule that such compensation "must not be a guaranteed annual income in perpetuity." Clause 153 provides for additional rules of liability that would be applicable in prescribed circumstances to the Minister or to the Ship-source Oil Pollution Fund under the Canada Shipping Act.

Clauses 154 to 156 would mandate the Tribunal to consider and dispose of applications related to claims for compensation for loss or damage under this division.

      7. Division 6 (Clauses 158 to 169): General

This section includes general clauses related to Tribunal decisions, the review of Tribunal orders, and the Governor in Council’s regulation-making power. Under clause 162, for instance, a Tribunal order would bind persons who subsequently acquired any interest in the land subject to the order. Clause 165 provides that certain determinations of the Tribunal would be final and binding, subject to prescribed exceptions including Tribunal authority to review its own orders.

   D. Part 3 (Clauses 170 to 205): Transitional Provisions, Amendments to This Act and
       to Other Acts, Conditional Amendment

Part 3 contains relatively routine clauses to provide for necessary transitional considerations (clauses 170 to 174) and consequential amendments necessitated by the bill itself (clauses 175 to 203). Clause 170, for example, provides that the Nunavut Water Board, already established under the Agreement, would continue under this Act, and that acts or decisions of the Board taken before the Act came into effect would be valid, provided those acts or decisions would be valid under the Act. Subject to the same condition, approvals by the Minister and actions of inspectors would also be deemed valid. Clauses 171 to 173 would allow for the transition between the NWT Water Board and the Nunavut Water Board, including the application of certain regulations made under the Northwest Territories Waters Act (clause 173). Clause 174 would provide for the continuation of the Nunavut Surface Rights Tribunal established under the Agreement.

COMMENTARY

   A. NTI Comments on Bill C-51

During consideration of Bill C-51 by the Standing Committee on Aboriginal Affairs and Northern Development in 1996, NTI raised numerous concerns about the process by which the bill had been developed and the substance of the proposed legislation.(12) Broadly speaking, NTI’s substantive objections focused on perceived inconsistencies between the bill and the Agreement. The organization put forth the following general concerns:

• The bill did not accord with the Agreement in numerous respects, but rather replicated provisions of the Northwest Territories Waters Act, with some modifications. Article 13.2.1 of the Agreement, which provides for the establishment of the Board, states that the Board "shall have responsibilities and powers over the regulation, use and management of water in the Nunavut Settlement Area, on a basis at least equivalent to the powers and responsibilities currently held by the Northwest Territories Water Board under the Northern Inland Waters Act RSC 1985, c.N-25." NTI submitted that the citation of the Northern Inland Waters Act should not be interpreted to mean its replacement, the Northwest Territories Waters Act.(13) Secondly, NTI argued that, in any case, the intent of Article 13.2.1 was not to duplicate the current Northwest Territories water regime in Nunavut, and that reference to the NWT Water Board in that provision was relevant only to the minimum scope of the Board’s powers, not to its purpose and objectives;

• Bill C-51 would not provide adequately for an integrated land and water management regime, as contemplated by the Agreement. According to NTI, key provisions setting out the relationship between the Board and other institutions of public government established under the Agreement were incomplete or missing from the bill;

• The bill omitted explicit reference to Inuit rights related to the regulation and use of waters in Nunavut or dealt with them in a peripheral fashion. In NTI’s view, as the Board was being established in the context of a land claims agreement intended to provide certainty and clarity of rights to ownership and use of lands and resources, it was crucial that the legislation recognize Inuit rights regarding waters in Nunavut;

• The roles proposed by Bill C-51 for the Minister and Governor in Council were not supported by the Agreement. Among other matters, NTI objected to the bill’s requirement for ministerial approval of the issuance, amendment, renewal and cancellation of certain classes of licence. NTI was also critical of the authority that the bill proposed be given to the Governor in Council to pass regulations in respect to matters that touched upon the Board’s substantive powers, functions or duties.

Flowing from these general objections, NTI identified concerns with specific clauses of Bill C-51 and, in some cases, proposed new or amended wording. NTI also pointed out a number of inconsistencies between the English and French texts of the bill. In testimony before the Committee, Board representatives supported the analysis put forward by NTI. A representative of the NPC highlighted concerns about its relationship with the Board under the bill.

   B. Bill C-62

Bill C-62 incorporates a number of modifications to the provisions of Bill C-51. Some provide for greater consistency with the Agreement; some respond in varying degrees to concerns identified by NTI. Several changes to the provisions of Bill C-51 are outlined below.

• Under a change in wording in clause 8 of Bill C-62 (clause 7 of Bill C-51), "Waters Vested in Her Majesty" that would be subject to Inuit rights under the Agreement in respect to waters in Nunavut, would refer to waters that are "in" Inuit-owned lands and not just "on or flowing through" those lands.

• Proposed new text in clause 9 (clause 8 of Bill C-51) would provide that any delegation of the federal Minister’s functions to the territorial Minister might not abrogate or derogate from any rights of Inuit under the Agreement. This would provide for greater consistency with Article 2.10.2 of the Agreement.

• Bill C-62 incorporates various changes to clauses in Bill C-51 regarding the Board’s establishment, organization, and operations. A number of these revisions, too, are either aimed at greater consistency with the Agreement, or to some degree reflect concerns identified by NTI. These proposed changes include:

• the addition of a provision to protect members and employees of the NWB from liability in the exercise of their powers (clause 31);

• the removal of Bill C-51’s requirement for the Board to submit an annual report to the federal Minister;

• the addition of a requirement for the auditor and, where applicable, the Auditor General of Canada, to make reports of audits to the Minister (clause 32(4));

• revisions to provisions related to pre-publication and publication of the Board’s rules and by-laws (clause 34);

• several additions to sections dealing with "Objects of the Board," for example by references to specific articles of the Agreement, and with the Board’s relationship to other Nunavut management bodies; and

• the addition of the NWMB to the list of agencies that could act as part of the Nunavut Marine Council as provided for in Article 15.4.1 of the Agreement (clause 41(1)).

• Bill C-62 would also make various revisions to clauses of Bill C-51 concerning licences. While some of these modifications would provide for greater consistency with the Agreement, there are no modifications that respond to NTI’s concerns regarding either the Governor in Council’s regulatory authority over water use or deposit of waste and ministerial approval of water licences.

   C. NTI Views on Bill C-62

NTI has identified outstanding concerns with some clauses in Part I of Bill C-62.(14) Several concerns echo those raised in regard to Bill C-51.

• Non-derogation clause: NTI supports the inclusion of a non-derogation clause to provide that "nothing in this Act shall be construed so as to abrogate or derogate from any existing Aboriginal or treaty right of the Aboriginal people of Canada under section 35 of the Constitution Act, 1982."

• Clause 8: NTI is concerned that, owing to differences in the French and English texts of Bill C-62 (specifically, use of the term "énergie motrice" in the French text), the French text would vest certain rights in Her Majesty that are not mentioned in the English text.

• Clause 35: Clause 35 identifies the objects of the Board as providing "for the conservation and utilization of waters in Nunavut, except in a national park, in a manner that will provide the optimum benefit from those waters for the residents of Nunavut in particular and Canadians in general." Suggesting that the phrase "optimum benefit" might be interpreted in an overly economic fashion, NTI would prefer it to be replaced by the term "well-being."

• Clauses 38 and 52(2)(b): Article 13.4.2 of the Agreement provides that, where the NPC informs the Board that a water application does not conform to land use plans or a variance has not been approved, the application shall be rejected by the Board. NTI is of the view that clauses 38(3) and 52(2)(b) might be interpreted so as to undermine this rejection process.

• Clause 56: Consistent with its position on Bill C-51, NTI takes the position that ministerial approval of licences is not required by the Agreement and thus should not be required by the bill.

• Clause 82(1)(a): According to NTI, the clause as currently worded understates the role of the NPC and does not make reference to other relevant Nunavut resource management bodies. NTI argues that the clause should clearly refer to planning by the NPC (or the NPC in conjunction with government). In addition, the NIRB should be referenced in the clause, as it has a role in "evaluation."

• Clause 139(1)(j): NTI argues that costs of the "applicant" are the costs of doing business and should not be included in the factors that the Tribunal would have to or might consider in determining compensation.

• Clause 152(2)(c): NTI believes that the $20-million ceiling that the clause would set for a developer’s liability for the aggregate loss or damage incurred through a wildlife harvesting "incident" would be too low.