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Pipe dreaming : federalism and northern environmental policy Wong, Daniel Andrew 2009

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PIPE DREAMING: FEDERALISM AND NORTHERN ENVIRONMENTAL POLICY by DANIEL ANDREW WONG B.A.H., Queen’s University, 2008 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES (Political Science) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) OCTOBER 2009 © Daniel Andrew Wong, 2009 II ABSTRACT The Canadian North poses a clear illustration of the struggle for sustainable development in a context of advanced capitalism. How do northern political institutions and electoral incentives impact the relationships between federal, territorial and aboriginal governments in the field of environmental policy and the prospects of environmental protection? This paper will argue that negotiations for the devolution of resources and environmental activities with low economic significance have borne substantially more fruit, more quickly, than the sticky issues of non-renewable resource exploitation and impact assessment. Case work of select northern environmental policy suggests that the public interest eithe favours utilization of northern resources for economic development or is insufficiently green to overcome collective action problems beyond symbolic commitments to environmental protection. 111 TABLE OF CONTENTS Abstract.ii Table of Contents iii Acknowledgements iv Introduction I Federalism and Canadian Environmental Policy 4 Constitutional Constraints 4 Provincial Resistance 6 Electoral Incentives 8 Harvesting from the Land: Fish in the Water and Fur in the Forests 12 Profiting from the Land: Grandiose Dreams of a Fossil Fuel Future 24 Conclusions 34 Bibliography 36 iv ACKNOWLEDGEMENTS I would like to express my sincere gratitude and appreciation to the following people and organizations: To Prof. Kathryn Harrison. I could not have asked for a more insightful, critical and supportive supervisor. Your ability to balance so many things and still have time for your students has been both a comfort and a motivating push for me. To my examiner, Dr. Glen Coulthard for the care taken to review my paper and his thoughtful questions and comments on the final draft. To Student Financial Assistance GNWT, Yellowknife Elks #315 and in particular the Sahtu Renewable Resource Board for providing funding to make this project possible. To Prof. Graham White, Mindy Willet, John Parker and Peter Bannon, all of whom lent thoughtful advice on my research. To my parents, for supporting my endeavors in immeasurable ways and our dinner table debates that provided the initial inspiration and inception for this project. Introduction Environmental policy is often an endeavor of interjurisdictional comprise and conflict. There is a growing literature from scholars interested in Canadian environmental policy and the implications of our federal system for environmental protection. This paper will follow in those footsteps but look to a new direction. The broader literature on federalism and Canadian environmental policy has tacitly or explicitly ignored the Territories. A northern perspective, aimed at the Northwest Territories (NWT), affords opportunity to examine the implications of a unique federal role and the emergence of aboriginal self-government for environmental protection. A major theme in existing work highlights a predominant history of federal deference to the provinces since the late 1960s (VanNijnatten and Boardman 2009). As most northerners are well aware the federal role in environmental policy is anything but deferential. The federal government still owns and regulates the development and protection of many natural resources in most of the NWT. When applying the existing theoretical and case work it becomes clear that the conventional arguments accounting for federal deference in the environmental policy field can be adapted to the NWT. The literature review in the next section will outline these arguments and explain what form of federal-provincial relations each predicts and how each plays out in the NWT. The conventional arguments say as much about the political-economic and electoral obstacles to stringent environmental protection whether they are applied south or north “of 60” even (or especially) given the unique constitutional role of the federal government in the Canadian Territorie’, To apply these arguments a series of hypothesizes are derived and tested by examining if different types of environmental policy (environmental impact 2assessment or environmental monitoring) or different resources (oil and gas or wildlife) provoke different forms of northern intergovernmental relations (Harrison 2000). For further reference in this paper, unilateralism will refer to governments acting in isolation and without regard for each other’s preferences; collaboration will refer to governments’ mutual design or joint-implementation of policy; and rationalization will refer to the complete transfer or devolution of responsibilities from one government to another (ibid, 13-14). Even the vaguest of accounts on northern political development must reckon with emergence of abori’inal groups as major actors. The literature on Canadian federalism (Abele and Prince 2002; Papillion 2008) and Canadian environmental policy (Hessing, Howlett and Summerville 2005; Booth and Skelton 2004) bring light to the increasing rights of aboriginal groups in resource management. However, work on the implications of aboriginal groups for federal-provincial-territorial relations in Canadian environmental policy is sparse. In the NWT this literature gap is particularly problematic due to the central role aboriginal governments exercise in resource management. The implications of this omission for this paper are as follows. First is the obvious observation that as another layer is adied to the Canadian federal system, authority over environmental regulation in the NWT is now shared between aboriginal, territorial and federal governments. In this context the development of the Mackenzie Valley Resource Management Act between aboriginal and non-aboriginal governments will be examined. The new regime represents a radical and unprecedented form of environmental impact assessment in Canada. Second, aboriginal governments’ electoral incentives differ from non-aboriginal governments in prioritizing traditional land use for cultural and spiritual 3activities. This is not to say that aboriginal people are inherently and consistently “green” but that their governments face competing environmental and economic interests perhaps more akin to “Quebec, which has additional cultural policy imperatives above and beyond its provincial counterparts” (Poelzer 2002, 88-89). The future of environmental protection in the NWT will hinge on the ability of aboriginal governments to translate the rhetoric of “sustainable development” into reality. This paper will conclude that the intergovernmental relations shaping northern environmental policy today cannot be understood by an examination of the constitutional framework or institutional objectives alone; it must incorporate electoral interests into the analysis. This is not to claim that constitutional constraints and institutional objectives are not important factors. A strict institutional analysis cannot, however, explain the varying degrees of devolution success (or failure) over resources and activities with high and low economic significance and different federal, territorial and aboriginal approaches to the form northern economic development should take and degree to which environmental protection should be emphasized. 4Federalism and Canadian Environmental Policy Constitutional Constraints An early theme in the literature focuses on limited constitutional authority as a restriction for the federal government in the environmental policy field (MacKay 2004, 30). The usual point of departure is recognition that the British North America Act (BNA) does not even mention ‘the environment’ and thus does not allocate jurisdiction over environmental protection directly (Parson 2001). Instead, jurisdiction over the environment is gleaned from a variety of overlapping authorities. A “combination of propriety powers and legislative jurisdiction over civil and property rights” (Harrison 1996, 34) provide the provinces with robust claims to environmental protection and resource development within their borders.’ Federal proprietary powers in southern Canada are limited to parks, canals, harbours, Indian reserves and other, sectoral,2 powers. Concurrejit jurisdiction between federal and provincial governments in environmental protection formed the basis of assertions by many scholars in the early 1970s that federal unilateral authority to set and enforce environmental standards was lacking (Gibson 1973). The overlapping and sometimes ambiguous constitutional jurisdiction of the federal government in southern Canada is replaced in the NWT with clear and bold powers to conserve or exploit federal crown land (s. 91 [1A]). Indeed, Gibson (1973, 58) notes, ‘The provinces exercise powers to own all “lands, mines and minerals” (Constitution Act 1867, s. 109), and to control, “management and sale of all the public lands” (s. 92 [5]), in addition to regulatory power over “property and civil iights”(s. 92 [13]), “local works and undertakings” (s. 92[lO]) and “matters of merely local or private Nature in the Province” (s. 92 [16]). 2 The federal government can exercise a variety of sectoral powers to protect the environment within provincial borders, including fish and the waters they inhabit under “Sea Coast and Inland Fisheries” (s.91[12J), obstructions like bridges and dams and pollution from ships on navigable waterways under “Navigation and Shipping” (s. 91 [10]), pesticides in agriculture (s. 95) and regulation of the trucking industry and railways under “Works and Undertakings” (s. 92[lO][a]). 5“. . .the federal crown has, with respect to Canad&s northern territories and its territorial waters, the same proprietary rights that the provinces enjoy within their boundaries”. Crown land includes virtually all land outside of communities and areas where land claims have been settled.3Crown lands are the administrative responsibility of the federal Department of Indian and Northern Affairs.4 The Territorial Lands Act represents the federal legislation responsible for the use, disposition and protection of Crown surface lands. This legislation gives the federal government clear and comprehensive powers to “establish land management zones for protecting the ecological balance or physical characteristics, apart and appropriate Crown land for public purposes and authorize the acquisition of territorial lands for rights-of-way by railways, power companies or pipeline companies” (INAC 1997, 12). However, a focus on constitutional constraints fails to account for the emergence and retreat during the late 1 980s of a markedly new era and “second wave” in Canadian environmental policy (Hoberg 1993). Emboldened not only by a renewed surge of environmentalism in the Canadian public but also a series of Supreme Court decisions to clarify and augment federal constitutional authority in the field,5 Ottawa briefly flirted with stringent and unilateral regulation of toxic substances and other actions before retreating back first to collaboration and then to rationalization vis-à-vis the provinces. In contrast land ownership and administration directly around cities, towns and hamlets undertaken by the territorial government is known as “Commissioner’s Land”. “The Parks Canada Agency and Environmental Canada administer lands in National Parks and Canada Wildlife Areas (Donihee 2000, 47) During the late 1980s a series of legal decisions extended federal authority in the environmental policy field based on broader, conceptual powers granted to it in the Constitution Act 1867, most importantly: the national concern doctrine under the residual power to make laws for the “Peace, Order and good Government of Canada” ([1988) 1 S.C.R. 401, R v. Crown Zellerbach) and criminal law (3 S.CR. 213, para. 97, R. v. Hydro-Quebec). 6As a result, scholars sought to further refine their explanations for federal deference (Mackay 2004, 33). Provincial Resistance Another argument stresses the passive style in which the federal government has intentionally ignored and under-utilized its bona fide legal authority to act aggressively (Valiante 2002, 19-20). In an oft-cited observation, Robert Franson and Alastair Lucas (1977, 25) state, “the excuse of constitutional difficulties is used as a smoke screen to hide the basic unwillingness on the part of those involved to take the actions that are necessary”. In Canada, the necessary actions to address pressing environmental problems have been hampered by robust regional resistance. For example, a major reason Canadian implementation of Kyoto Protocol has met little success is opposition from many provinces, notably Alberta and Ontario, as they seek to protect domestic industry (Harrison 2007). Pursuant to the Constitution Act, 1867 (s. 92 [13, 2], 92A [1]) provincial governments own nearly all of their natural resources. The importance underlying this division stems from Canada’s resource-dependent political-economy. “Staples Theory” is a staple theory to students of Canadian economic history; it asserts that the development and nature of political and economic institutions in Canada can be understood by tracing a history of primary resource production: from furs to wood to wheat to minerals.6 Indeed, a cursory overview of economic development in the Canadian provinces today often highlights a dependence on the extraction and export of one or two primary products (Fafard 1998, 6 For significant contributions on this theme in Canadian economic history see: H.A. Innis’s A History of the Canadian PaqJIc Railway (1923), The Fur Trade in Canada (1930), Settlement and the Mining Frontier (1936) and The Cod Fisheries (1940). 7natural resource industries (Pratt and Richards 1979; Nelles 1974). There is an interesting and growing northern environmental history documenting the sensitivity to the interests of foreign capital and efforts to promote economic development by territorial and federal governments, such as the laissez-faire approach to the hard-rocking mining industry, regulation of Great Slave Lake fisheries (Piper 2009) and northern park policy (Sandlos 2007). The other key point is understanding how “the environment” and “natural resources” are two sides of the same coin, just as rivers can be hydro-power, forests can be lumber and the ground can be gold. Thus, on the one hand, the provinces remain consistently on guard for federal intrusions on the critical policy area of environmental protection (and hence resource development) central to their economic well-being. On the other hand, the federal government is wary to avoid intergovernmental conflict in this area due to increased provincial vigilance in addition to the political imperative of maintaining a harmonious federation (Winfield 2001, 127). Therefore, the federal government is expected to prefer rationalization of environmental jurisdictions to the provinces and only take the lead on issues with international or transboundary implications (Mackay 2004, 34). Acting in similar fashion to a provincial government, federal government ownership of extensive Crown land in the NWT should decrease its willingness to rationalize environmental jurisdiction over resources and activities of economic significance. Indeed, negotiations over non-renewables remain contentious. Underpinning the stickiness of territorial devolution and aboriginal land claim negotiations is a claim forming the first hypothesis of this paper: both aboriginal and non-aboriginal governments will seek jurisdiction over natural resources the more economically significant they are. This 8jurisdiction over natural resources the more economically significant they are. This hypothesis will be tested by comparing if jurisdiction over economically significant resources and activities are more highly sought after than for resources and activities with marginal economic significance by aboriginal and non-aboriginal governments. Electoral Incentives Other scholars have argued that explanations for the traditionally weak federal role based solely on constitutional constraints and provincial resistance are incomplete. Kathryn Harrison and others argue that the level of public opinion on environmental issues is a key indicator to predict the degree to which the federal government is motivated to challenge the provinces with stringent environmental protection. Only once the federal government has decided to act will constitutional constraints and provincial resistance determine the effectiveness of such action. As critiques have noted, it is not often when the federal government has decided to act in favour of stringent environmental protection. In the politics of environmental protection the costs often outweigh the benefits. The benefits from environmental protection accrue to all citizens in the form of clean air, land and water; the benefits are diffuse. The costs from environmental protection usually fall on a smaller number of regulated firms; the costs are concentrated. According to Mansur Olsen’s (1965) theory of collective action, individuals in large groups seeking public goods act as rational, self interested actors by letting others do the hard-work of research and activism because they know benefits are shared diffusely, whether they participate or not. In contrast, individuals in small groups can achieve their selective interests with fewer logistically 9Olsen’s theory implies that stringent environmental protection is politically unpalatable to politicians seeking to avoid lobbying by those suffering from concentrated costs. When firms resist regulation they can do so effectively with the political power, access to senior policy makers and structural advantage they possess in a capitalist economy (Macdonald 2002, 69). Indeed, since “the environment” emerged as a political issue in the 1970s, “Canadian governments have preferred subsidies and information, the options at the non-compulsory or voluntary end of the spectrum of choices” (Simpson, Jaccard and Rivers 2007, 135). However, cyclic bursts of increased public salience on environmental issues (Downs 1972) have provided sufficient en masse support to overcome the obstacles to collective action (Harrison 1996). To date, this has occurred only in three brief periods: 1969-72, 1988-91, 2004-07 (Anderson and Stephenson 2009; Bakvis and Nevitte 1992). The rest of the time, voters may wish for a cleaner environment but remain cognizant of the tradeoffs between environmental protection and job creation when they go to the polls. Only during periods of strong economic performance combined with high-profile environmental incidents has interest in environmental protection dominated public opinion polls. Since the 1 970s, it has been economic and social, rather than the environmental issues that have consistency captured public attention as the most important issues facing Canada. Beyond a coveting of economically significant resources outlined in hypothesis (1), two additional hypothesizes are required to account for the implications of electoral incentives: first, the cyclical salience of environmental issues alters the ability of the state to overcome collective action problems and second, regional differences matter. While all governments should face different electoral incentives across time, territorial and 10 particularly aboriginal governments will prioritize traditional land use for cultural and spiritual activities. Moreover, regional differences imply that while all governments may seek resources of economic significance the benefits from their development to either northern or national economies will be likely contested. A proper account of northern environmental policy must consider the shifting electoral environments federal, territorial and aboriginal state actors operate within. Thus, a second hypothesis will predict that all governments will likely be better able to overcome collective action problems prompting less stringent environmental protection and buck-passing in periods of exceptional public concern. To test this hypothesis the comparison between resources and activities of high and low economic significance in hypothesis (1) will be extended over time to the 1970s to account for public opinion cycles. A proper account of northern environmental policy must also consider the regional diversity of the electoral environments that state actors operate within. While the constituents of aboriginal governments also have the right vote in the territorial election, the overall territorial constituency has a smaller — but still significant - percentage of total aboriginal voters than for any given aboriginal constituency due to large numbers of non aboriginal people living in urban centres in the NWT. Likewise, while all territorial residents vote in the federal election, the NWT is merely a single seat from many more in the federal House of Commons. Thus, a third hypothesis will predict that northern governments will seek jurisdiction over resources and environmental activities with cultural and spiritual significance for aboriginal peoples and prefer to utilize economically significant resources for local development. To test this hypothesis the 11 comparison between resources and activities of high and low economic significance in hypothesis (1) will be extended to account for these regional differences between southern and northern governments. This paper will explore the different hypothesizes offered in greater detail below with the use of evidence from secondary literature accounts as well as direct quotes, policy statements and recorded submissions to audits and commissioned reviews. 12 Harvesting from the Land: Fish in the Water and Fur in the Forests The forests, waterways and animals that inhabit them have long held enormous cultural and spiritual value for aboriginal people in the NWT (Berger 1977). 17.5% of households still rely primarily on hunting and trapping for their food consumption — a figure that rises to 32.7- 42.0% in the rural areas dominated by aboriginal residents (NWT Bureau of Statistics 2008, 71). Forests and waterways are important as wildlife habitat, material and medium for traditional forms of transportation and as specific sites of spiritual significance. In terms of economic significance fur, fish and forest exports are in decline and were valued at a combined $13 million in 2005 (GNWT, 2009). These resources are dwarfed in significance by oil, gas and mining extraction and exploration which contributed $2 billion to the NWT economy in 2007 (GNWT 2009). The commercial value of the NWT’s forests is poor due to the type and size of trees that grow in subarctic boreal forest. Northern forestry as similar to other export industries in the north is also subject to high transportation costs (Canada 2007, 89). The Northwest Territories commercial fishing sector is largely concentrated on the whitefish of Great Slave Lake. Both fishing and fur industries in the NWT have suffered declining productivity since the pre-war period as a result of their distance to market, high operating costs, overharvesting and international political opposition. As part of a small but growing tourism sector, sport fishing did generate $7 million of economic activity in 2005 (Louis 2006, 4). Finally, water resources are increasingly found at the crossroads between competing economic, cultural and environmental uses in Canada and beyond. The ongoing need to divert rivers 13 into dams for electric power generation to service industrial developments and northern communities ensures water will grow in economic significance in the NWT. Hydro projects provided approximately one third of all public and private electrical generation in 2006 (GNWT 2008, 14). Economic optimism for the use of northern wildlife did exist, however, during the first half of the 20th century. As the federal Minister, Arthur Meighen, reasoned in 1919, “furs and meat held great commercial potential for the northern barren lands” (Commission of Conservation 1919, 3-6). John Sandlos (2008, 5) argues that a direct link exists between the federal government’s wildlife policies and expansion of industrial development in the North, “particularly the long-standing idea that northern big game such as caribou and muskoxen should be saved and propagated as part of a domestic ranching economy that would in turn underpin the growth of industry”. Following a series of initiatives to exploit northern wildlife7, federal dreams of subarctic ranching were dampened following the failure of muskoxen and reindeer pilot projects and the “caribou crisis” of the mid-1950s to the late-1960s (ibid, 9). Wildlife jurisdiction was one of the first responsibilities rationalized to the NWT by the federal government. The Constitution Act, 1867 does not make a direct mention of wildlife at the time of confederation (Donihee 2000, 4). But throughout much of the 20thi century and prior the federal government was vested with legislative rights with respect to wildlife in the NWT as ownership of crown land implies proprietary rights over the animals living on the land (Gibson 1973, 64). Then in 1966 the Carrothers Report was This includes an 1917 investigation into the potential of a caribou slaughter near Churchill to relieve wartime food shortages, a Royal Commission in 1919 on the potential for Muskox and reindeer industries and the establishment of a small reindeer herd in the Mackenzie Valley in 1935 (Sandlos 2008, 9). 14 tabled in the House of Commons.8 Following the report, in 1967, the territorial government moved from Ottawa to Yellowknife and was given complete responsibility over the next three years for several departments, among them the Game Management Service under the Department of Industry and Development that managed wildlife administration (Covello 2002, 144). In fact, administration and enforcement of NWT “game law” had already transferred from Ottawa to its regional administrators years earlier in Fort Smith as the Department of Industry and Development underwent re organization to “meet changing conditions in the north and through its emphasis on decentralization gave much more administrative responsibility to the field” (Canada 1959, 24). Two decades prior to the Carrothers Report the authority to pass “game regulations” had been reallocated from the federal cabinet to the Territorial Council (Sandlos 2007, 248). The appointment of a non-federal bureaucrat, Stuart Hodgson, as Commissioner of the NWT in 1967 further solidified northern executive and legislative autonomy over wildlife management both on paper and in practice. The first territorial foray into wildlife management came in 1949 when the territorial government assumed authority to pass regulations. In that year the federal Northwest Game Act was repealed and replaced with the Northwest Territories Game Ordinance which provided for, “the policy of conservation of the wildlife resources for the use and benefit of the resident aborigines” (Rea 1968, 78). Many of the early “game laws” passed by federal and territorial governments included provisions for aboriginal hunting and trapping rights before aboriginal people organized in the Mackenzie Valley as a 8 The report represented the product of a commission tasked with settling several outstanding issues regarding the constitutional future of the NWT. It is regarded as the framework for the devolution of many “provincial-like” responsibilities to the territorial government. 15 significant electoral and political force.9 Special harvesting rights were aimed to reduce expenditures on aboriginal welfare, as were territorial initiatives to revitalize the declining trapping conomyi° However, legislative and spending initiatives to improve the socio-economic conditions of aboriginal people in the NWT aimed to promote economic development as much as to reduce fiscal expenditures. The responsible federal minister remarked in 1930: In all measures adopted for the furthering of the development of the country, the welfare of the native and resident population is given primary consideration.. .It is felt by close observers that the successful development of the North will depend to a large degree on the co-operation of a healthy and contented native population (Rea 1968, 284). When the objectives of economic development and aboriginal welfare came to odds, the former clearly prevailed. Federal intervention in the Great Slave Lake fishery in the 1 930s sought to utilize principles of scientific management to measure maximum exploitation of the resource over time. However, such management entailed the restriction of the domestic, primarily aboriginal, fishery to small and marginalized areas ‘ John Sandlos (2007) documents a history of interdepartmental conflict between federal departments as ministers responsible for Indian affairs repeatedly and often successfully sought exclusions for the harvesting rights of aboriginal people in wildlife preserves and game sanctuaries — much to the chagrin of Parks officials and other bureaucrats seeking exclusive protection for bison and other threatened species. For instance, the Unorganized Territories Game Preservation Act of 1894 imposed closed and open hunting seasons on a variety of NWT game but exempted aboriginal hunters except in the case of Buffalo (ibid, 28). During debates over the Act, minister of the interior, T.R. Daly, argued to the parliamentary opposition that “unfortunately, the inhabitants of the country are dependent upon the game for their food... It is impossible to make the Bill more stringent unless we are prepared to feed these people” (Parliamentary Debates 1894, 3538). Furthermore, aboriginal hunters resisted on many accounts the imposition of federal efforts to conserve wildlife (particularly with regard to protection of big game) throughout the 20th century (Sandlos 2007). 0 In the 1960s efforts were undertaken to provide an inventory of furs and game, design species and habitat rehabilitation programs and introduce trapper training programs in northern schools teaching camp organization, principles of “modern” fur management, “improved” methods of fur preparation and trapping techniques with use of new equipment (Covello 2002, 141). The issuance of general hunting licenses in 1967-68 and abolition of the Arctic Island Preserve in 1969 by the GNWT opened the way for the trophy- hunting of muskox, caribou and polar bears under the rationale that, “. . . we are hunting them for a good purpose: we are hunting them to provide the Eskimo with more money. The money doesn’t go to the Government: the money goes to the Eskimos. And it is our job to accept our responsibility towards the Eskimo people” (GNWT 1969). Similarly, the territorial Game Ordinance of 1949 underwent amendment in 1969 to allow the sale and purchase of caribou meat in order to more cheaply feed Aboriginal government dependents in “institutions such as hospitals, schools and jails” and help improve, “the depressed economy of various groups and settlements” (Covello 2002, 158). 16 of the lake whereas the export-oriented fishery claimed the largest and most productive waters. Piper (2009, 223) notes, “the role of the state was to regulate and shape the fishing industry according to its own objectives” and documents how such regulation infringed and marginalized the geography of traditional aboriginal fisheries on the lake. Today, an increasingly broad range of judicially-defined rights have empowered aboriginal governments as central players in northern resource management. Beginning with the Calder decision in 1973 action by aboriginal groups has led to a series of Supreme Court cases to deny the extinguishment of aboriginal title to land in historic treaties and to affirm the fiduciary obligation of the Crown to consult with aboriginal groups even in areas where land title has not been settled (Poelzer 2002, 92). Subsequent court injunctions against the James Bay hydroelectric project in northwestern Quebec, the ten year moratorium on northern oil and gas development recommended by the Berger Report and the Paulette Caveat’ further emphasized the need for non-aboriginal governments to negotiate “modern treaties” or comprehensive land claim agreements with the aboriginal peoples of Canada if development projects could proceed on their land. On comprehensive land claim agreements, Graham White (2002, 93) writes: In return for formally giving up title to the land and certain related rights, aboriginal organizations receive a variety of benefits, including a cash payment, fee-simple ownership of specified parcels of land (usually 15-20 percent of the entire claim area) including some subsurface rights, hunting and trapping rights throughout the entire claim area, government commitment to negotiate self-government regimes, and representation on a series of land and resource boards. H 1973, Dene chiefs filed a caveat at the NWT land titles office to prohibit further development projects on their territory until issues of land ownership were finalized. Although a favorable ruling by the territorial Supreme Court was overturned by the Supreme Court of Canada on a technicality, the ruling confirmed that aboriginal groups had not extinguished their traditional rights to the land and initiated the need to negotiate modem-day comprehensive land claim agreements. 17 In land claim negotiations aboriginal groups across the NWT have consistently and unremittingly sought to protect their harvesting rights and traditional lifestyle. For instance, aboriginal rights to water access, management and increased participation in regulation are typical of these agreements. Renewable resource boards in aboriginal regions have also been established that can establish policy and propose regulations to the responsible federal/territorial minister regarding private or commercial harvesting for fish, wildlife and forest products, plans for the management or protection of these renewable resources, the designation of conservation areas and endangered species and more; that is to say, these renewable resource boards are the main instruments of renewable resource management in their respective settlement areas. Graham (2002) notes that although they function in an advisory role, their decisions subject to final approval (or not) by a responsible minister, does not detract from their extensive de facto power. In the event a responsible minister is opposed to a set of proposed regulations, he/she must respond to the board in a fixed amount of time (3 0-60 days) providing rationale for the rejection of the board decision. Through this “negative option” the responsible minister now must expend the necessary political capital to justify a rejection and in practice, very few board decisions have been overturned (ibid). More importantly, a new resource management act stemming from claims negotiations in the NWT’s largest watershed, “represents a very powerful mechanism for the protection of the ecosystems of the Mackenzie Valley” (Donihee 2000, 15) by creating an integrated resource management system mandating consideration of and monitoring for cumulative impacts and independent five-year reviews made available to the public. 18 In retrospect, renewable resource related provisions in the land claim agreements circumscribed in a new form the existing aboriginal rights to hunt, trap, and fish and cut wood and draw waler on their lands. Many such rights have existed since the original treaties were signed decades prior. While aboriginal rights to recommend regulations and establish wildlife management policy have been formalized, aboriginal groups in the NWT have been important political players in wildlife management since the 1 970s, in early co-management boards such as the Beverly-Qamanirjuag Caribou Management Board (Kendrick 2000) and hunters’ and trappers’ associations (Covello 2002). As early as 1974, 37 hunter and trapping associations had been formed and given responsibility for trapline designation and polar bear quotas from the territorial government (ibid, 168). Today, the territorial Department of Environment and Natural Resources recognizes hunting and trapping associations as important stakeholders “on all matters concerning renewable resources” (ibid, 169), thereby granting them significant political influence in this area. In the field of wildlife monitoring, the federally funded Canadian Wildlife Service had by the late 1 960s rationalized key responsibilities to the territorial Game Management Division — including barren-ground caribou (ibid, 126). Environmental monitoring in the NWT has in general been characterized by cooperative efforts between federal, territorial and aboriginal governments.’2 12 For example, in 2006 a partnership through the National Air Pollution Surveillance Network, Environment Canada has provided financial support to the territorial Department of Environment and Natural Resources to establish and operate a network of air quality monitoring stations. Following the Inuvialuit land claim settlement in 1984, the federal government rationalized responsibility for wildlife studies to the territorial government to collaborate with Inuvialuit renewable resource boards (except for fisheries studies still undertaken by the federal Department of Fisheries and Oceans). As well, a working group with representatives from aboriginal, territorial and federal governments have been collaborating to design a federally-funded Cumulative Impacts Monitoring Program since 1999. While water monitoring on transboundary river systems and around development sites is still performed by the federal government, responsibility for drinking water quality around communities was rationalized to the territorial government in 1988. 19 In 1987, legislative, inspection and enforcement functions for fire protection and forest management in the NWT passed to territorial jurisdiction with the replacement of the federal Timber Regulations under the Territorial Lands Act with the Forest Management Act and the Forest Management Regulations administered by the Minister of the Department of Environment and Natural Resources, GNWT (INAC 1989, 7). Public outrage followed unusually large burns during the summers of 1979 and 1981 in caribou range and trapping areas of the southern NWT. The large fires ignited a long standing concern from hunters and trappers associations that the federal government was ineffective in protecting critical habitat areas. Frances Abele (1990) notes that public demands for forest management were not nearly as loud as for fire protection, likely due to the marginal impact of commercial enterprises on a vast, relatively intact, forest rangeland. How can electoral incentives account for the territorial desire to approach the federal government for the negotiation of fire and forest management responsibility? Abele suggests that the general tendency of bureaucracies to expand and the larger agenda of northern autonomy primarily motivated the territorial government to seek both responsibilities. While the tendency of governments to perpetually expand their jurisdiction is nowhere conclusive, it seems likely that the overarching objective of northern autonomy is a significant factor — subject to the following qualification. Territorial willingness to accept a larger jurisdiction appears contingent on an agreement for operational and administrative funding to increase in tandem. Not only did the first round of fire and forest management devolution negotiations stall because of a disagreement about funding (Abele 1990, 87) but similar negotiations in the late 1 980s over freshwater fisheries devolution fell apart “with Ottawa’s expenditure profile falling 20 significantly short of Yellowknife’s estimates” (Clancy 1990, 33). Today, the Department of Fisheries and Oceans Canada still manages day-to-day operations, inspection and enforcement pursuant to the federal Fisheries Act and regulations in the NWT. Electoral incentives provoked the initial desire by the territorial cabinet to initiate devolution negotiations on fire and forest management; fiscal negotiations determined if the outcome would be successful. The devolution of wildlife and forest jurisdiction occurred very close to or during periods when public interest in environmental issues was reaching feverish pitches (1969- 72 and 1988-91). Yet hypothesis (2) predicts that all governments will likely be better able to overcome collective action problems (prompting less stringent environmental protection and buck-passing) in periods of exceptional public concern. Is it that the prevailing popular discourse of ecology in 1969-72 primarily concerned itself with pollution issues, not wildlife or forest protection per se (Page 1986, 35)? Wildlife and forest welfare was certainly not first and foremost in the minds of Gallup pollsters whose public opinion polls at the time focused on pollution in their questions probing the degree and salience of th environmental issues (Harrison 1996). Nevertheless, wildlife concerns could be bundled in with pollution issues, such as in Rachel Carson’s bestselling novel, Silent Spring published in 1962. The Canadian Wildlife Act, 1973, authorizing establishment of the National Wildlife Areas (in cooperation with provincial authorities) indicates the federal government sought, at the very least, symbolic legislation for wildlife. While wildlife always mattered for teffitorial politicians it took the destruction of hunting and trapping areas by a particularly bad fire seasons to ignite sufficient public concern for the devolution of fire and forest management. Neither the 21 first nor second wave of Canadian environmentalism was sufficient to prevent federal buck passing over resources with marginal economic significance. When public en”ironmental concerns reached unprecedented heights during the first wave of Canadian environmentalism the federal government did flex some regulatory muscle to reduce pollution (Harrison 1996, 55-64). The Arctic Waters Pollution Prevention Act (A WAPPA) is one example. It was proclaimed under federal authority to “regulate activities effecting federal lands and waters” (VanderZwaag and Duncan 1992, 4). The A WPPA was promulgated after the American supertanker Manhattan navigated through the Northwest Passage stoking Canadian fears of an arctic oil disaster. It stipulates a dumping ban for solid or liquid waste in Canadian waters and a requirement to notify officials in the event of an oil spill. But poor implementation and the timid form of the A WPPA ‘s regulations lead to its eventual ineffectiveness after 1970 as the salience of environmental issues declined (Harrison 1996, 81). 13 However, recent years have witnessed increased federal interest in the Arctic. The revamped federal Northern Strategy included an amendment to the A WPPA (Bill C-3) to extend Canadian waters 200 nautical miles from the nearest Canadian shore and make entry reporting requirements mandatory (The Gazette 2008, A15). The new message from Ottawa to the world that “Canada takes responsibility for environmental protection and enforcement in our Arctic waters” (Transport Canada 2008) coincides with other important developments, most ‘ Recent attention and investment by the federal government in the Canadian Arctic has highlighted problems with the “small, aging, and drastically underfunded” Coast Guard ice-breaking fleet (Canada’s Coastlines 2003, 14-16) and lack of comprehensive surveillance capability. Moreover, AWPPA regulations are undermined by nonbinding requirements under the Vessel Traffic Reporting Arctic Canada Traffic Zone for foreign vessels to report their entry into Canadian waters. 22 notably media and public attention’4 on competing arctic sovereignty claims as circumpolar states vie for the regions vast natural gas resources. The most pressing water impacts in the NWT today stem from developments upstream, namely, growth of the Alberta Oil Sands within the southernmost reaches of the Mackenzie Basin. In 1997 the Mackenzie Master Agreement between the federal government, British Columbia, Alberta, the NWT and the Yukon came into effect. While negotiations for the Mackenzie Master Agreement began during the first wave of public environmentalism they lasted for a quarter century and could only be resolved by resort to general language and voluntary provisions. In respect to the lengthy Mackenzie Master Agreement negotiations, Owen Saunders and Michael M. Wenig (2007, 131) note that “in the absence of any serious indication on the part of the federal government that it will intervene in interj urisdictional disputes.. . upstream jurisdictions will either delay negotiations, or only agree to most modest undertakings”. Likewise, the continuing lack of federal initiative to develop legally enforceable standards for water and air ty’6 and effluent/emission release continues to impair environment effects monitoring and integrated resource management in the Canadian north. Outside of the aforementioned For documentation of the articles, editorials and statements from Canada’s three foreign and defense relations Ministers concerning the “Hans Island Incident” see Huebert (2005, 325-327). ‘ The AWPPA amendment (Bill C-3) is just one aspect of the government’s integrated Northern Strategy to assert and strengthen Canada’s claims to Arctic riches. Penny Becklumb of Transport Canada states, “The predicted rise of commodity prices in the coming years might be expected to increase pressures to finally settle international attic sovereignty issues. The jurisdiction the government seeks to exercise over arctic waters pursuant to Bill C-3 may be viewed in the context of the government’s larger strategy to obtain international recognition of Canada’s claims to ownership of arctic resources” (Library of Parliament, 2009). 16 The federal governme9t has established “National Ambient Air Quality Objectives” established pursuant to the Canadian Environmental Protection Act, 1999. In 2002, the territorial government introduced its own “Guidelines for NWT Ambient Air Quality Standards”. Both are nonbinding guidelines that have been used in voluntary environmental agreements with major development projects (such as diamond mines) in the NWT. They are therefore not enforcement under the new land and water regime in the Mackenzie Valley. Evidence to date suggests that voluntary environmental efforts in Canada have largely failed (Boyd 2003; Harrison and Antweiler 2003). 23 provisions in land claim agreements the federal government still maintains management and administrative responsibilities of northern water resources. In spite of this the territorial government, in concert with aboriginal governments, has been active in the development of a new water management strategy in response to upstream threats. The evidence suggests that cycles in Canadian public opinion have not overcome the diffuse benefits and concentrated costs of northern environmental policy. When it became clear the future of northern economic development would depend solely on non renewable resources locked away under the land, the management of the animals and forests existing on the land became a burden to shed. The first and second waves of Canadian environmentalism were insufficient to force a stronger federal hand in transboundary water negotiations or more stringent drafting and implementation of the A WPPA. In subarctic wildlife and water policy, commercialization, conservation and cost-cutting intersected in ways to expose the economic and fiscal compulsions motivating federal and territorial environmental initiatives. Northern aboriginal and non- aboriginal governments exhibit responsiveness to northern electoral interests in wildlife, forest and water jurisdiction concerning traditional cultural and spiritual land use. In fact, territorial and aboriginal governments in the NWT have been recognized as leaders for their innovative renewable resource management. For instance, the Canadian Boreal Initiative has praised the NWT as: “the leading jurisdiction within Canada in developing balanced solutions for conservation and sustainable use” (GNWT 2008b). The low economic and high cultural and spiritual significance of northern forests can account for aggressiveness with which northern governments have pursued forest protection. 24 Profiting from the Land: Grandiose Dreams of a Fossil Fuel Future Despite a recent contraction related to the economic crisis, the NWT economy has been in the last decade one of the fastest growing in Canada on the back of tremendous investment in the exploration and development of mining and oil and gas resources. Yellowknife’s boom-town days are back, and may be for good as, “The large-scale projects already underway barely scratch the surface of the North’s immense store of mineral, petroleum, hydro and ocean resources” (INAC 2009, 16). Today, economic growth in the NWT relies heavily on the ongoing profitability of non-renewable, export- orientated industries. The Minister of Environment and Natural Resources, GNWT, Michael Miltenberger, summarizes this dependency well: The NWT economy has almost doubled in size over the past nine years, its growth fuelled by strong commodity prices. Demand for our resources spurred mining and oil and gas activity and encouraged interest in multi-billion dollar projects like the Mackenzie Gas Pipeline. The resource sector now directly or indirectly represents almost half of our economy. More than 20 per cent ofNWT residents work in this sector (GNWT, 2009). Non-renewable resources in the NWT offer vast potential for aboriginal and non- aboriginal politicians seeking to claim credit for job creation and to buff their coffers.17 On national interest in subarctic Canada F.H. Underhill (1958, v) writes: No aspect of the iemarkable economic expansion of Canada since World War II has attracted more public attention than the large-scale resource development that has been taking place in our Northwest. What has chiefly characterized this area, in the public mind at least, has been the spectacular big project — the mining enterprises producing uranium and nickel, the water- power harnessed to produce electric power to refine bauxite into aluminum, the wells that extract oil and gas, the pipelines that deliver these fuels to distant centres to consumption, the new highways and air-routes. All this has stirred romantic ideas in the minds of most Canadians and encouraged grandiose dreams about national destiny. 17 The mining industry in the NWT will result in the direct and indirect employment of 4,000 people over the next 10-25 years and produce $2.1 billion in taxes and royalties (Armitage 2005, 188). The Mackenzie Gas Project (MGP) will provide 2,500 jobs (188) and approximately $1.4 billion (depending on natural gas prices) in taxes and royalties over its 25 year operating life (Banta 2007, 84). Moreover, it is expected that the MGP will ignite further spin-off exploration and development of the NWT’s substantial oil and gas reserves. 25 Notwithstanding exceptions such as the Kiondike gold-rush it is generally true that the Canadian public and politicians only discovered what the north was worth following work by scientists and geologists in the post-WWII era. 8 Diefenbaker articulated national aspirations to use northern minerals, like western wheat, to spark the national economy by providing export credits, jobs and investment opportunities (Abele 1987, 312). When advocating the new national development policy of the Conservative Party seven months after winning the largest majority government in Canadian history Diefenbaker (Speech 1958) declared, “This is the message I give you my fellow Canadians.... Jobs! Jobs for hundreds of thousands of Canadian people. A new vision! A new hope! A new soul for Canada”. The recent electoral victory had come on a platform of building a “Canada of the North” based on subsidies for economic infrastructure and increased social assistance spending in the territories. The Conservative Party knew, as did the Liberal Pearson government that replaced it, economic development in the Canadian north had “been popular with voters” (Hamilton 1994, 93). This optimism regarding the North’s economic potential in the 1950s triggered the investment of substantial federal and territorial funds into transportation infrastructure.19 8 Nils Orvik (1973, 2) wrote that throughout most of the 20111 century the Arctic regions have received marginal attention in national politics due to “a persistent low estimate of how much the North was worth”. When realization of the enormous value of the natural resources of the North came clear following “Prudhoe Bay and the successful probes in the Canadian Arctic, few doubted that within a few years it would be technologically feasible and economically profitable” to transfer the North into one of the “greatest energy reservoirs in the world” (ibid,3). Remarking on the renewal of federal interest in the North following this economic optimism, Canadian Prime Minister Louis St. Laurent introduced a bill to establish the Department of Northern Affair by admitting, “It has been said the Great Britain acquired her empire in a state of absence of mind. Apparently we have administered these vast territories of the north in an almost continuing state of absence of mind” (INAC 1989, 13). 19 Much of the funding noured into providing basic infrastructure to reduce high freight costs viewed as a major damper on economic progress in the NWT. In 1958, federal government announced the “Roads to Resources Programme”, other programs under which $64 million dollars was eventually paid for the construction of 2,080 km of highway (Rea 1969, 244). In 1961, the federal government provided $86 million for Canadian National Railways to build a line from Grimshaw, Alberta to Hay River in southern NWT to ease shipment of lead-zinc ore from the Pine Point Mines (House of Commons Debates 1973). 26 Northern contro1 over the administration of lands, the regulatory system and resource revenues remains a central priority of past and current legislative assemblies in the NWT. Premier Roland has invoked the old mantra “northern control for northern resources” and stressed that opportunities for “prosperous, healthy and vibrant communities.. .long sought by residents of the NWT may be within reach” (GNWT 2009a). Generally, the territorial position on resource development echoes that of many aboriginal groups with settled land claims. Richard Nerysoo, a member of the Gwich’in Tribal Council, hopes: we can talk about all the issues that are related to the expectations of the aboriginal people and northern residents about the benefits that could result from industrial and mineral and oil and gas developmDnt in the North. People need to know what the expectations are with regard to benefits agreements. It is no good to talk about finding natural gas in the Liard Valley without looking at the benefits that could result in Fort Simpson or in the Mackenzie Valley everywhere. I do not think we can talk about mining and diamonds without looking at the consequential benefits to all the people in the Mackenzie Valley (Don ihee 2000, 10). Persistent federal control of the non-renewable resource development of the Canadian territories has fueled a long-standing debate regarding the nature of northern development and degree to which the benefits are shared with northern residents2°(Frances et al 2009). Alongside this debate lays the difficulty of negotiating a resource-revenue sharing agreement. Negotiations for the transfer of land and water management from the federal to the territorial government are still ongoing and have taken longer than any other policy area. Aboriginal governments have sought and received surface and sub-surface rights to some portion of their territory and resource-revenue sharing in land claim negotiations. Valuable resources provoke intergovernmental conflict not only on issues of ownership but also control over activities pertaining to resource extraction. Environmental impact 20 The northern economy has been “growth” without “development”; it has not contributed to a sustainable northern economy and many communities still experience high levels of unemployment (Banta 2007). As the case of oil exploration on Bathurst Island (or development at Norman Wells) indicates, “many people, particularly native northerners continue to believe that the (federal) government’s first commitment is and always has been to serve the interests of the energy and mining industry’ (Usher and Beakhust 1973, 126). 27 assessment is a key component in the overall northern regulatory regime. Impact assessment is a process performed by an independent agency that identifies potential environmental impacts of proposed developments, provides mitigative measures and predicts if there will still be environmental impacts after the measures are implemented (Hanna 2005). Prior to the Dene/Metis land claim negotiations in the early 1 980s, the Federal Environmental Assessment and Review Office21 performed impact assessment on development proposals in the NWT. This was performed under a federal policy to perform impact assessment on “federal projects” including those located on Crown lands. However, the Dene/Metis Agreement-in-Principle was groundbreaking in that it was agreed impact assessment would be shared between the federal government and aboriginal groups in the region (MVEIRB 2007). Following settlement of the Gwich’in and Sahtu land claims, work on legislation for a new integrated resource management regime for the Mac!enzie Valley began.22 During the exhaustive negotiations, aboriginal governments stressed their authority over conservation and the right to consultation, while the federal and territorial governments sought a more efficient system with fewer impediments for business (ibid). The application of the Canadian Environmental Assessment Act became a particularly sticky issue that stalled negotiations for months. Federal negotiators sought to defend the Act as the primary form of impact assessment in the Mackenzie Valley. The position of territorial and aboriginal negotiators that ultimately prevailed, however, established the Mackenzie Valley Environmental Impact 21 The Federal Environmental Assessment and Review Office transformed into the Canadian Environmental Assessment Agency in 1995 when the Canadian Environmental Assessment Act came into force. 22 It is unique in Canada that the federal cabinet allowed the actual drafting of legislation to become a negotiated process, that is, the normal course of action is for a bill to receive first reading in the House of Commons before third party deliberations over its final form begin. In this case, an exception was made because the legislation involved ‘the rights of the third parties’ (MVEJRB 2007, 4). 28 Review Board (hereafter referred to as “the Board”) as the dominant23 impact assessment agency. The powers and structure of the Board are laid out in the Mackenzie Valley Resource Management Act which received Royal assent in the House of Commons on December 22, 1998. The Board is composed of eight members, of whom four are nominated by aboriginal governments (Gwich’in, Sahtu, T’licho, and Deh Cho) and four are nominated by non-aboriginal governments (territorial and federal). The entire board nominates its chair. While language of the Act confers discretionary federal power to appoint all nominations to the Board the political reality is that the responsible minister has little choice but to accept the nominations (White 2002, 101). Finally, as a quasi-judicial administrative body, the member and chairperson of the Board are expected to perform their duties in a manner independent of the aboriginal and non-aboriginal governments who submitted their nominations. The most significant difference between the Mackenzie Valley Resource Management Act and the Canadian Environmental Assessment Act is that impact assessment decision- making is decentralized to the various regions in the Mackenzie Valley. All aboriginal regions with settled land claims have their own land and water, renewable resource and land use planning boards. All boards have a mandate to consider all impacts on heritage resources or the social and cultural environment of the residents of the Mackenzie Valley, including direct impacts that are not associated with any change to the physical environment (Haefele and Kimberley 2004, 5). This broader mandate has resulted in 23 In the case public reviews on developments considered to be in the “national interest” or with transboundary implications, a joint-review panel in accordance with sections 40 & 41 of the Canadian EnvironmentalAssessment Act will be struck (Donihee 2000, 69). 29 several controversial decisions by the Board provoking considerable friction with developers and non-aboriginal governments.24 In response to growing complaints from industry (McCrank 2008) in light of the defiance of the Mackenzie Valley Resource Management Act to the structural imperatives of capital accumulation by undermining “certainty” with respect to ownership and jurisdiction, the federal government launched the Northern Regulatory Improvement Initiative in November, 2007 (INAC 2007). The Improvement Initiative commissioned an independent review by Neil McCrank to propose recommendations25for advancing the regulatory regime. The reaction from northern aboriginal and non-aboriginal governments continues to be adverse to many of the proposed recommendations. In contrast they highlight unfulfilled federal promises to properly fund and implement the new integrated resource management system. Initially, the territorial Premier welcomed the report as “long overdue. . . honest and accurate” (GNWT 2008a). However, the official territorial response to the report indicated the main recommendations “may be a disproportionate response” and “oppose(d) both options with regard to restructuring the land and water boards on the 24 For example, in 2005 he Board recommended the rejection a proposal for exploratory drilling in the Drybones Bay area. The environmental impacts of the proposal were marginal; it is the type of project that very rarely gets rejected in Canada. The rationale provided by the board in their report of environmental assessment cited immense cultural concerns raised by members of a small, predominately aboriginal community nearby. The decision was upheld by the responsible federal minister. Two years later, the Board rejected another exploratory drilling project proposal, again citing unpreventable cultural impacts (White 2008, 131); the recommendation was also upheld. 25 The main recommendations of “Road to Improvement” published in May, 2008 outlined two broad avenues for restructuring. The most significant changes in the first option would entail a re-negotiation of land claim agreements to allow the amalgamation of regional land and water boards into a single board for the Mackenzie Valley that would receive, alongside the Board, final decision-making authority from the federal government (McCrank 2008). The second option would follow as the first, except that regional land and water boards would not be abolished but rather cede their quasi-judicial responsibilities to a central board and retain administrative functions (ibid). The report also included over 30 specific improvements for improvement. 30 basis that the existing system is relatively new, needs to be fully implemented and given an opportunity to function as intended” (GNWT 2009b, 6). The territorial government did support the transfer of final decision-making authority to the Board in addition to increased appointment powers of its own and consideration of “additional areas where responsibilities of the Federal Minister under the Mackenzie Valley Resource Management Act should be delegated to the responsible territorial minister” (ibid, 15-18). A representative from the Gwich’in aboriginal government, Norman Snowshoe, commented to Neil McCrank, “Now we hear development is too slow and too complex. I guess that means we must be doing something right” (Terriplan Consultants 2008, 12). Sahtu Grand Chief Frank Andrew highlighted the lofty aspirations of the report for, “The whole Sahtu region has to agree to do the amendments to the land-claims agreement so I don’t know everybody is going to agree to it” (CBC 2008). A letter from a forum representing all the land claim boards in the NWT responded to the Improvement Initiative by stressing, “any options for changes to the regulatory system established pursuant to (land claim) agreements shall require the approval of the parties to those agreements” and added that, “both a timely appointment process and sustained and appropriate multi-year funding are required for the institutions that must deliver the regulatory framework” (NWT Board Forum 2008). Debates regarding the scope and form of a new impact assessment regime have formed the most contentious of issues throughout negotiations and the ongoing implementation of the Mackenzie Valley Resource Management Act. The disagreement is representative of the importance of impact assessment as a lynchpin to moderate or accelerate non-renewable resource developments. For instance, in spite of its peripheral 31 position to the land claim negotiations the territorial government still has much interest in a transfer of regulatory control to its bureaucracies.26Aboriginal groups in the Mackenzie Valley took advantage of land claim negotiations to allow their communities to dictate at what pace, in what region and with what form future non-renewable resource development occurs. However, the federal government has echoed corporate frustration with the new resource management regime when economic development is slowed or stopped. Aboriginal governments have complaints of their own, often citing funding- related capacity issues. In particular, funding for translation services and public interveners that would increase the participatory nature of the new regime is lacking. Furthermore, while some concessions have been made on impact assessment the federal government has not shared authority for many other functions in the northern regulatory regime. Donihee (2000, 80) suggests that institutional alterations wrought by Mackenzie Valley Resource Management Act are only partial, “its regulatory reach is limited to surface land and water use”. Additionally, the federal Northwest Territories Water Act and Territorial Lands Act continue to provide the basis for important elements of the land and water management regimes. Inspection and enforcement responsibilities for land permits and water licenses continue to belong to the federal government. Graham White (2009, 133) characterizes federal retention over enforcement and inspections responsibilities as a “particularly weak link27 in the Mackenzie Valley environmental regulatory regime”. 26 Bob Bailey, a former deputy Minister for the territorial Department of Environment and Natural Resources told Neil McCrank in 2008, “The (territorial government) has much interest in regulatory regimes in the NWT. Regulatory control could be added to the existing regime through devolution of control to the Territorial Government” (McCrank 2008, 103). 27 In a December, 2007 tetter from the Board to the federal government, the Board estimated that “only 46% of their mitigative measures are being implemented by regulatory authorities and that, of those, less that [sic] 50% are actually inspected for purposes of compliance or enforcement” (MVEIRB 2007a). 32 Evidence from this section confirms that federal, territorial and aboriginal governments all seek jurisdiction over economically significant non-renewable resources and the impact assessment process that directly regulates their exploitation. Who benefits from such exploitation, whether it be the North or the Nation, remains today an issue of considerable contestation and historical grievance. The credit of creating jobs and income garnered from northern development raises the stakes for intergovernmental negotiations concerning Crown lands. The federal government still controls vast swaths of territorial land, despite the devolution of virtually every other policy field decades prior. Surface and subsurface rights have been transferred from federal to aboriginal governments, but only to certain are of their territory and following lengthy, judicially-mandated, land claim negotiations. The full implementation of the long-negotiated Mackenzie Valley Resource Management Act is also in doubt following a recent federal initiative to streamline the impact assessment process for companies dissatisfied that the colonial practices of the past have been modified to include participatory measures for aboriginal communities. Finally, the impact of public attention cycles to environmental issues beyond symbolic legislation appears limited. For instance, the most recent wave of Canadian environmentalism has not deterred federal, territorial and aboriginal governments from entertaining grandiose dreams of a fossil fuel future. In spite of the well-documented impacts of climate change in the Canadian North, all governments have remained hesitant to fundamentally jeopardize fossil-fuel development or the exploitation of other non renewables; for instance, all are proponents of the Mackenzie Gas Project. The cornerstone of territorial climate change policy, “A Strategy to Control Greenhouse Gas 33 Emissions in the NWT: 2007-20 1 1”, focuses strictly on territorial government in-house emission reductions while accepting that industry contributes the vast majority of total NWT emissions - a figure that is expected to double with the approval and construction of the Mackenzie Gas Project (GNWT 2007, 9-10). In May 2008, the three northern premiers rejected Stephane Dion’s carbon tax plan because it will “add to the already high costs of energy in the region” (CBC 2008). In recent years, federal, territorial and aboriginal governments have preferred to avoid the political costs of carbon tax and carbon trading schemes in the North by focusing on improving energy efficiency and investments in wind, hydro and biomass initiatives. 34 Conclusions Two main conclusions follow from this paper. First, following hypothesizes (1) and (3): electoral incentives produce different patterns of intergovernmental relations between resources with high or low economic significance, and over time and between northern and southern jurisdictions. For instance, because jurisdiction over fish, fur and forests and environmental monitoring cannot directly help or hamper economic development. negotiations between federal, territorial and aboriginal governments have, in these areas, borne substantially more fruit, more quickly, than the sticky issues of non-renewable resource jurisdiction and impact assessment. Other factors, such as fiscal constraints, have shown to be important factors limiting or allowing devolution once electoral incentives have determined intent to act. Second, electoral incentives discourage environmental protection. Case work of select federal and territorial environmental policy in the NWT suggests that the public interest either favours utilization of northern resources for economic development or is insufficiently green to overcome collective action problems beyond symbolic commitments to environmental protection. Indeed, Thomas Berger (1977, 2) was correct in stating, “What happens in the North.. . will tell us what kind of a country Canada is; it will tell us what kind of a people we are”. Our answer today is that we are a country economically dependent on non-renewable resources and a people that care, first and foremost, about ourjobs. The outstanding question remains the implications of aboriginal political and economic autonomy for environmental protection in the NWT. The evidence presented suggests a strong and resilient spiritual and cultural commitment in the Mackenzie Valley 35 to protect wildlife, forests and water on the one hand, and on the other a willingness to capitalize on non-renewable resource projects. As Poelzer (2002) details, aboriginal groups are political communities with state and societal actors fostering both productive and non-productive interests. Recent work suggests an incompatibility with aboriginal traditional environmental knowledge and values with the necessities of the modern bureaucratic (White 2006) and colonial capitalist state (Coulthard 2007). In this sense, the rhetoric of “sustainable development” may be just as far from reality whether it originates from federal, territorial or aboriginal politicians. 36 Bibliography Abele, Frances (1990). ‘And now for a Northern Solution? 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