Bag Service #21, Inuvik NT XOE OTO IIMUVIALUIT Tel:(867) 777-7000 Fax:(877) 289-2389 REGIONAL CORPORATION Email: [email protected] Web: www.inuvialuit.com The Honourable Scott Sims, M.P., Chairperson Parliamentary Committee on Fisheries and Oceans 131 Queen Street, Sixth Floor House of Commons Ottawa, Ontario KIA 0A6 November 1,2017 Dear Mr. Simms, Re: Request to recommend amendments to Bill C-55 An Act to amend the Oceans Act and the Canada Petroleum Resources Act Purpose The Inuvialuit Regional Corporation is writing to request that the Committee on Fisheries and Oceans (Committee) recommend an amendment to Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act (Bill C-55) to address a potential treaty rights infringement. We are concerned that proposed changes would insert an authority that, if exercised, would violate Inuvialuit rights under the Inuvialuit Final Agreement (IFA). Context - MPAs In the Inuvialuit Settlement Region The IFA was the first land claims agreement settled north of the 60^*^ parallel. It came into effect June 25,1984 and is a modern treaty under Section 35 of the Constitution Act, 1982. Approximately 60% of the Inuvialuit Settlement Region (ISR) is composed of marine areas: the Beaufort Sea and the Arctic Ocean. Four of the six Inuvialuit communities are located on the coast. Inuvialuit are a marine people and we sustain ourselves - in traditional and modern ways -from the ocean. To date, two Marine Protected Areas (MPA's) have been established in the ISR. The Tarium Nirutait MPA (TNMPA) was established in 2010 and constituted Canada's first Arctic MPA. it covers nearly 1800 square kilometers of the Mackenzie River Delta and estuary in the Beaufort Sea. The Anguniaqvia Nlqiqyuam MPA (ANMPA) was established In 2016 and is Canada's second Arctic MPA. It covers an area of 2,361 square kilometers and is located in Darnley Bay near the Inuvialuit community of Paulatuk. Page 1 of 5 The following maps demonstrate the location of these MPAs. These also demonstrate that Inuvialult have not opposed conservation efforts right in our backyard where these have been designed and established consistent with the principle of free, prior and informed consent. Angunfaqvia niqiqyuam Marine Protected Area TARtUM NIRYUTAIT • U-" Both of these MPAs were created through a collaborative effort among Inuvialult, Department of Fisheries and Oceans Canada, industry, local stakeholders and governments. The process that we have collectively developed for defining marine conservation areas within the ISR respects the right of Inuvlaluit to decide how best to manage our resources. The process provides a necessary opportunity to conduct scientific study, gather data and understand and incorporate Indigenous traditional and local knowledge. As outlined in the section below, the proposed amendment As a note, while the process to establish these MPAs has received appropriate financial support and human resources, the same has not been applied to the implementation phase of these MPAs. Both of the TNMPA and the ANMPA lack an adequate level of resources for ongoing monitoring and management. This results in certain negative impacts that contradict the conservation rationale and the right of Inuvialuit to participate in the management of our resources. First, the effectiveness of the MPAs is diminished as prohibited activities may be allowed to continue unnoticed. Second, climate, migratory pattern and ecosystem changes that indicate the MPA is no longer serving Its purpose may not be observed. This could result in a limitation on development for Inuvialuit without any conservation advantage. Third, Inuvialuit undertake a limitation on development activities without provision for corresponding socio-economic opportunities through involvement in MPA monitoring and management. Inuvialuit expect that these burdens on Inuvialuit will be exacerbated through the hasty establishment of MPAs by Ministerial Order under the Oceans Act and the consequential limitation on development by Prohibition Order under the Canada Petroleum Resources Protection Act(CPRA). Page 2 of 5 Defects in the Proposed Amendments to the Oceans Act and CPRA For convenience, the provisions that we are concerned about are laid out here. Our suggestions as to how these provisions could lead to land claims rights infringement follow. The relevant subsections of proposed Oceans Act Section 35.1 and 35.2 read: Designation of marine protected area — Minister's order (2) The Minister may, by order, designate a marine protected area in any area of the sea that is not designated as a marine protected area under paragraph 35(3)(a) and, in that order, the Minister (a) shail list the classes of activities that are ongoing activities in the marine protected area; (b) shall prohibit, in the marine protected area, any activity that is not part of a class of activities set out in paragraph (a)and that disturbs, damages, destroys or removesfrom that marine protected area any living marine organism or any part of its habitat or is likely to do so; (c) may prohibit, in the marine protected area, any activity that is part of a class of activities set out in paragraph (a) and that is governed by an Act of Parliament under which the Minister is responsiblefor the management, conservation or protection offisheries resources; and (d) may exemptfrom the prohibition in paragraph (b)or (c), subject to any conditions that the Minister considers appropriate, any activity referred to in those paragraphs in the marine protected area by aforeign national, an entity incorporated orformed by or under the laws of a country other than Canada, aforeign ship or aforeign state. Exceptions (3) The prohibitions set out in an order made under subsection (2) do not apply to thefollowing activities: (a) activities that are carried out in response to an emergency situation or that are carried out by or on behalf of Her Majestyfor the purpose of public safety, national defence, national security or law enforcement; and (b) marine scientific research activities that are consistent with the purpose of the designation of the marine protected area and that are authorized underfederal laws or laws of a province, if required to be so authorized. Powers, duties andfunctions 35.2 The Governor in Council and the Minister shall not use lack ofscientific certainty regarding the risks posed by any activity that may be carried out in certain areas of the sea as a reason to postpone or refrain from exercising their powers or performing their duties andfunctions under subsection 35(3) or 35.1(2). The forgoing sections give the Minister relatively unfettered discretion to designate an area as an MPA in an expedited way. This, in and of itself, is not necessarily problematic and may indeed avoid some of the bureaucratic delays associated with establishing an MPA. The issue is that the Minister is authorized to make decisions that may negatively impact treaty rights on the basis of minimal scientific and/or traditional Page 3 of 5 knowledge foundations and without first obtaining free, prior and informed consent of the affected Indigenous group. While Section 32(d) of the Oceans Act does provide for Ministerial consultation under Part II, it is permissive rather than mandatory. Further, while Section 2.1 of the Oceans Act stipulates that nothing in the "Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982", this does not necessarily constitute instruction to consult. Treaty rights holders are then left having to advocate their own consultation entitlements in the face of potentially drastic conservation measures. If that fails, we are left with the burden of establishing infringement of our treaty rights without the scientific data and compendia of traditional knowledge required to do so. As the Supreme Court of Canada confirmed in Clyde River(Hamiet) v. Petroleum Geo -Services inc., the consultative inquiry is not into the environmental impacts per se but rather into the right itself. There has to be a mutual understanding on the core issue of impacts on rights under the land claim agreement before consultation will be considered adequate. Given the significance of an MPA for an affected rights holder, deep consultation Is likely the standard the Crown would need to meet. In our view, once this has been achieved the establishment of an MPA would be an appropriate outcome. The process proposed in Bill C-55 falls short of this standard. Subparagraphs 35.1(2)(a)-(d) delineate how activity within a designated area is "frozen" as of the date of the Ministerial Order. Inuvialuit submit that the impact is not as benign as the frozen footprint analogy suggests. In certain industries, the ability to acquire additional permits, licenses or interests as the research dictates is part of what makes an operation viable. Without this ability to expand in a logical way, proponents may be forced for commercial reasons to terminate operations before the five-year interim period concludes. Without a requirement to consult and accommodate rights holders, this could have significant detrimental impacts on socio-economic rights of Inuvialuit under the IFA. Finally, the exceptions listed under subparagraph 3 do not adequately account for express Indigenous wildlife harvesting rights that may exist within an area designated under Section 35.1(2). To include these activities within the prohibitions