Welcome, everyone. We have a lot of Yukoners, who have come out today to attend and we appreciate it. Thank you for being here.
Before we get started with our first witness of the day, the premier, I'd like to welcome everyone to the meeting this morning. This is the 36th meeting of the Standing Committee on Aboriginal Affairs and Northern Development here in Whitehorse.
I thought I would just quickly let everyone know how a parliamentary standing committee hearing works. We have a very full day today, and we hope everything will go quite smoothly. We'll have to work at keeping on time. I'm sure that not all of you spend your days with your eyes riveted to CPAC watching how Parliament and its committees function, essentially what we will do today, but just so everyone is aware of how a meeting works—and you may have a schedule—we will have panels of individuals who will provide opening statements to the committee, and then each committee member will have time allotted equally to ask the panellists questions or make comments. We'll move from one to the other in that fashion during the day.
If anyone requires translation, we have access to that. When the hearings are in session, people aren't able to take pictures or make recordings.
Other than that, we thank everyone for coming today and we will get started so that we can keep on track.
I'd like to welcome as our first witness this morning, the Premier of Yukon, the Honourable Darrell Pasloski.
We will now turn the floor over to you, Mr. Premier, to make some opening remarks.
Thank you, Mr. Chair. I thank the drummers as well for their welcome.
Mr. Chair, we're here today to convey our support for the passage of Bill as it pertains to the proposed amendments to the Yukon Environmental and Socio-economic Assessment Act, YESAA. We believe that after this bill is passed, there is work to be done here in the territory among first nations and the Yukon government.
As you will no doubt hear today, Yukoners are proud capable people. We like to resolve our own issues as much as possible. We like to work things out Yukoner to Yukoner, government to government. Today I hope we can broaden your appreciation of the Government of Yukon's perspective regarding the benefits of amending this act. I hope to share with you a path forward that I believe advances all interests.
Last year marked 10 years since the devolution of responsibility for lands and resources from the Government of Canada to the Government of Yukon. Devolution, or evolution as I like to call it, marked a turning point in Yukon's modern history. In that pivotal moment, we set out on a road to self-determination and managing our own resources.
The benefits of devolution are tremendous. In our view, what is good for Yukon is good for Canada. When the Yukon Act came into effect on April 1, 2003, Yukon gained law-making authority with respect to the vast majority of our natural resources. This has enabled us to develop sustainable management regimes, working cooperatively with first nations and industry. Since 2003 we've experienced steady prosperity, and private sector contributions to our economy have soared. Our population has increased for the 10th consecutive year.
Over the same period, Yukon's leadership and governance capacity has grown alongside our population. The 20th anniversary of the Umbrella Final Agreement was marked in 2013. The Umbrella Final Agreement, UFA, is a framework for individual Yukon first nations to negotiate their land claim agreements. To date, 11 of Yukon's 14 first nations have modern-day treaties and self-government agreements. This represents almost half of the modern first nation treaties and self-government agreements that exist in the entire country today.
That growth in governance capacity has also informed the modernization of our regulatory regime. For the past 10 years, Yukon has enjoyed a reputation as having one of the most advanced regulatory systems in Canada. Yukon's resource economy has grown since devolution, with the mining and mineral exploration sector continuing to expand and develop.
That said, it is becoming increasingly clear that changes to the legislation before you today are essential in order for Yukon to remain a competitive place to do business.
As you likely know, YESAA is the implementation of chapter 12 of the UFA and the final agreements. Yukoners worked hand in hand for years to create the legislation that came into force on May 13, 2003. Federal, territorial, and first nation partners all play important roles in ensuring that projects undertaken in Yukon are in accordance with the principles that foster economic benefits. Each and every order of government helps appoint the board, acts as a decision body, and informs every assessment. As partners, we ensure protection of the ecological and social systems on which communities, their residents, and societies in general depend.
The proposed amendments to YESAA will, in our view, improve environmental and socio-economic outcomes. Since it came into force, some Yukoners, including some first nations, have expressed concern about the narrow scope of activities that YESAA looked at when considering the possible cumulative effects of projects. These amendments help address those concerns.
Under the proposed legislation, assessors will now consider the socio-economic and environmental effects that are likely to occur from projects, both those that have occurred and those that are going to occur. Taking into account the effects of potential activities is a positive step forward in our environmental stewardship and demonstrates our commitment to Yukon communities.
This act applies throughout Yukon as a single-assessment, neutral process conducted at arm's length from governments. Over the last decade, this process has demonstrated a high level of transparency, with decisions and actions made available to the public through the Yukon online registry system.
However, like most new legislation YESAA requires some, mostly minor, amendments. These mostly minor amendments will enable YESAA to continue to serve our territory well into the future. When Canada pursued amendments to the act, it engaged with the Yukon government, the Council of Yukon First Nations, individual Yukon first nations, and the Yukon Environmental and Socio-economic Assessment Board, YESAB. The changes that have been tabled are a result of the close work of these parties, as was mandated by the YESAA five-year review process.
These changes were also informed by the federal action plan to improve northern regulatory regimes. During the review phase, Canada asked the Government of Yukon to provide input into several amendments that focus on improving the overall efficiency and effectiveness of the assessment regime.
I cannot and I will not speak to first nation views on consultation. To do so would be disrespectful of first nation leaders, who will share or have shared their own views with you. However, I can and I will speak for the Yukon government. In our view the Yukon government was adequately consulted during this phase, and our feedback and our comments were taken into consideration.
Together, these changes stand to benefit Yukon because they focus on the following areas: clarification of roles and responsibilities, cost-effective and efficient processes, and the value and timeliness of the assessment process. It is also essential that Yukon remain competitive with other jurisdictions while aiming to protect and promote the environmental and socio-economic well-being of the territory and its people.
Although in the past YESAA has worked well for Yukoners, we believe these proposed amendments are necessary to remain competitive. The amendments outlined in Bill update the requirement that only the federal government can fulfill. YESAA is, after all, federal legislation.
It is also important, however, that Yukoners resolve concerns among themselves as far as possible. The last time I met with the chiefs, I was clear that I wanted to focus on those issues that we can control. I stand by that statement, and I think Bill offers us just such an opportunity.
Yukon government and first nations have a long history of working together to resolve issues that arise from federal actions and legislation. We did it with the devolution transfer agreement and the oil and gas accord. In both of these cases the federal government did its part, and leaders here in Yukon did our part to iron out differences that held up success. We let the federal legislation or action stand and we negotiated bilateral arrangements that made them work for us as Yukoners.
Today I'm proposing that Yukon leaders once again take up that challenge. I have heard and understood the first nations' concerns with these amendments. Let's be leaders in our own house and negotiate a bilateral accord on implementation that resolves these issues. We've done it before and we can do it again. If there are concerns about policy direction, or capacity, or delegation, let's agree on how those functions will be implemented on the ground. Working government to government is not new to us in Yukon; it is our preferred way of doing business.
We appreciate the federal leadership shown on this matter. We would like to thank our member of Parliament Mr. Ryan Leef, our Yukon senator Hon. Daniel Lang, aboriginal affairs and northern development minister, the , and the former minister, the .
Now is the time to come together as leaders, as chiefs and premier, and as neighbours to find a way to make these amendments work in a way that fits with our values.
In conclusion, Mr. Chair, I believe that the changes Canada has proposed to this legislation will ensure that Yukon continues to be a progressive and responsible place in which to invest and do business and an even better place in which to live, work and play, and to raise a family. I encourage Canada to pass these amendments and would ask the chiefs to sit down as partners in this territory to make our own way.
I thank the committee members for their time. I'm going to ask the Minister of Energy, Mines and Resources to say a few words.
Thank you very much, Mr. Chair.
I too would like to thank the committee for travelling north to Yukon today to hear the concerns of Yukoners with respect to Bill .
The YESAB has some personal connections for me. I was one of the original board members. I actually sat on the executive committee from 2004 to 2007 with, among others, Chief Sidney of the Teslin Tlingit Council, who I understand will appear before you later on this morning.
This legislation is certainly about more than just mining projects, although those get an awful lot of headlines and traction here in the territory. Energy projects, agriculture, forestry, transportation, oil and gas, essentially anything that requires a licence or a permit has to go through the environmental assessment process. I understand that about 220 projects per year are assessed by the board so far at two of the levels: the designated office evaluation and the executive committee screening. We've yet to see a panel review in the territory, but for the most part, the majority get done at that designated office evaluation level.
When it came into effect in the early years, YESAA was widely regarded as one of the most progressive pieces of environmental assessment legislation and process in the country, and a lot of that is owed to the timelines and the certainty that it brought. In more recent years though, the reputation has slipped somewhat, and I think there is an opportunity for us to address the licensing and assessment of these projects in the territory through some of the amendments that are proposed here in Bill as well as through some of the work the Yukon government is doing with respect to water licensing and the quartz mine licensing.
One of the documents we provided to the committee is the 2013 report of the Yukon Minerals Advisory Board. This is a board of individuals appointed by the Yukon government and involved in the mining industry. They produce an annual report, which we table in the Yukon Legislative Assembly. I'd like to read into the record the conclusion of their report, from the second paragraph on page 7:
||In 2013 however, as reflected in this report, YMAB chose to focus on what industry has determined is the key issue negatively impacting the industry; the deterioration in the efficiency and reliability of the assessment and licensing of mining projects in the territory.
It goes on to say:
||The system has become more costly, cumbersome and protracted and the Yukon’s mineral industry is developing an increasingly negative image as an attractive investment destination.
It goes on to conclude that paragraph:
||There is a clear urgency for the Government of Yukon to act.
I'll call the meeting back to order, and we will welcome our next panel here this morning.
With us we have from the Council of Yukon First Nations, Ruth Massie, grand chief, and Daryn Leas, legal counsel.
From Little Salmon Carmacks First Nation we have Chief Eric Fairclough.
From Teslin Tlingit Council we have Carl Sidney, chief , and Tom Cove, director of the department of lands and resources, as well as James Harper, representative.
From Woodward and Company we have as representative, Leigh Anne Baker.
From Tr'ondëk Hwëch'in First Nation we have Chief Roberta Joseph.
From White River First Nation we have Chief Angela Demit and Janet Vander Meer, lands coordinator.
We'll start from the top and go in the order we have in front of us, beginning with the Council of Yukon First Nations.
Grand Chief Massie, the next seven minutes are your time.
Good morning. My name is Ruth Massie. I'm the grand chief of the Council of Yukon First Nations.
Thank you for the opportunity to present our views on Bill to the standing committee, and thank you for your willingness to travel to Yukon to hear all of us.
All Yukoners and interested parties should have the opportunity to make submissions to this committee. This committee owes it to Yukoners, given the importance of the proposed legislation.
You will hear from a number of Yukon first nations today, including many self-governing first nations with constitutionally protected land claim and self-government agreements. These agreements recognize their authority as governments.
CYFN and all 11 self-governing first nations are unanimously opposed to four provisions that are part of Bill . We also unanimously recognize the importance of having a YESAA process that will promote sustainable economic and community development.
As part of that, we also need certainty that projects will not compromise our rights and interests. As currently drafted, Bill does not achieve this balance. In fact, the discussion and concerns about these amendments have already brought a level of uncertainty within industry that never arose during the YESAA five-year review.
During this review, all levels of government—federal, first nations, and Yukon—worked together in accordance with our treaties to improve YESAA. Bill has two types of amendments, those that came before the five-year review and those that Canada introduced unilaterally.
The changes that come from the five-year review represent a compromise that was developed through many hours of discussion. In some cases the changes do not represent our preferred approach, but we continue to support the amendments because we reached a common understanding with Canada and Yukon, and we honour that agreement. The amendments we oppose were introduced unilaterally by the Government of Canada after the federal minister terminated the five-year review discussions. Some of these were proposed to Canada by Yukon. Neither Canada nor Yukon ever raised these issues for discussion during the five-year review. If they were so important, why were they not raised?
I'm going to summarize our opposition to the four proposed amendments and describe the changes we are requesting that the committee recommend and that the House of Commons approve.
Because the government failed to meet its constitutional and common law duties to consult and accommodate, and to date has not met the requirements of the honour of the crown, we strongly urge this committee to address our requests in your report to the House of Commons to implement those recommendations.
We oppose giving the minister full power to issue binding policy direction to the YESAB as proposed in clause 34 of Bill We request that the committee recommend that clause 34 be removed.
On delegation of powers, we oppose giving the minister the power to delegate his powers, duties, or functions to the Yukon government minister as proposed in clause 2 of Bill . We request that the committee recommend that clause 2 be amended by deleting the proposed section 6.1 wording.
On timelines, we oppose the establishment of beginning-to-end timelines for assessments conducted under YESAA.
On exemption from assessment for project renewals and amendments, we oppose the proposed exemption from assessment for renewals and amendments of licences and permits as proposed in clause 14 of Bill . We request that the committee recommend that clause 14 be removed.
CYFN and Yukon first nations spent 20 years negotiating these agreements that achieve the objective of collaboration and partnership. We will not stand by while Canada chips away at our agreements.
On December 1 in the House of Commons, Minister Valcourt encouraged us to use the courts to address our concerns stating, “If the first nations claim that we have failed in our duty to consult, the court will determine the issue, and they are welcome to use the courts.”
It is not our preference to commence court action to address our concerns. In addition to being costly and protracted, court action would damage relationships among the parties and damage economic development in Yukon in our future. Our preference is reconciliation.
The federal government's approach on Bill is a roadblock to reconciliation. Participants in mining, tourism, and other industries are concerned about how Bill S-6 might adversely affect the future for resource development in Yukon. They have echoed our call to the federal government to work with us to find solutions to the concerns we have raised.
Thank you for the opportunity to speak to the committee.
I'd like to introduce myself. I have been the chief of Little Salmon Carmacks First Nation since 2012. I have been a member of the legislative assembly for over 15 years before that, and I served as chief between 1990 and 1996. As such, I am familiar with the final agreements.
I want to note that we are aware of and support the other first nations' statements here today. The Yukon first nations reiterate that the proposed four amendments undermine the spirit and intent of chapter 12 of the final agreements. If the four amendments proposed by Bill are proclaimed, the crown will have breached its constitutional duties owed to Yukon first nations.
The Yukon senator and member of Parliament have pointed out that section 4 of YESAA provides that in the event of an inconsistency or conflict between the final agreement and YESAA, the final agreement will prevail to the extent of the inconsistency or conflict. Section 4 does not address our concerns about the potential breach of our rights. Further to that, we do not understand why our senator and member of Parliament oppose Yukon first nations' and many Yukoners' views on the four objectionable amendments.
First, it's important to understand that chapter 12 outlines the general structure of YESAA and its functions and powers to guide the development of YESAA by Yukon first nations, Canada and Yukon. This means that chapter 12 and its objectives inform the development of the act and its regulations, but chapter 12 does not comprehensively define the structure, function, and powers of the YESAA process. The parties defined the YESAA process in government-to-government negotiations during the development of YESAA. The agreements reached in those discussions can't be changed unilaterally under the constitutional structure of Canada. We assert that the federal government does not have this legal authority.
Second, YESAA originates from and is rooted in our land claim agreements. It manages the use and the development of lands, waters, and resources in Yukon. As a result, implementation of YESAA may affect the exercise of aboriginal treaty rights. In this case, the crown has not acted in accordance with its constitutional duties owed to Yukon first nations. The crown has breached its duties to work with Yukon first nations and take steps to accommodate our concerns. The crown has not acted honourably or fairly. The crown has breached its constitutional duty to act in the honour of the crown. The crown's proposed amendments would serve to infringe on our aboriginal treaty rights, including the rights for independent assessment of projects, or the right for comprehensive reviews for projects in accordance with chapter 12. Canada's proposed amendments would adversely affect the integrity, independence, and effectiveness of the YESAA process.
Despite the concerns raised by Yukon first nations, federal government officials have not engaged in any discussion in good faith with Yukon first nations to address our concerns related to the four proposed amendments. We worked together collaboratively to draft the act and regulations. We need to do the same on any amendments.
For example, in April 2014, Canada specifically requested our input into the suitability of the proposed timelines. We provided written responses opposing the concept of beginning-to-end timelines, and also provided rationales for why the proposed timelines were too short. In May 2014, Canada decided to further shorten the timelines for all assessments, exactly the opposite of what first nations had recommended. Canada was unable to provide a rationale for why it not only failed to accommodate our concerns, but in fact took action in the opposite direction. The federal government would breach its constitutional duty to uphold the honour of the crown if it proceeded unilaterally with the proposed four amendments that do not arise from the collaborative five-year review.
Let's set the record straight. We have listened to the debate in the House of Commons, to the statements made by the ministers responsible, to our own member of Parliament, and to the premier. We are frustrated by the lack of understanding and respect to our treaties shown by them. We need to correct some of that record.
Fact: unlike the processes used for developing YESAA and completing the five-year review, the Government of Canada has not used a collaborative approach to developing the proposed changes to YESAA. In fact, twice we were promised that a joint working group would be established to provide departmental officials with the required information for the development of legislative drafting instructions. It is a fact that a working group was never established, and we were never asked to provide input on the development of drafting instructions for the four amendments.
Fact: the court has been clear that the context of the treaty must be given a large, liberal, and contextual interpretation of the goal of reconciliation. We actually support many of the amendments in Bill , which clearly came from the collaborative five-year review. We do not support Bill S-6 unless the four problematic amendments introduced unilaterally by Canada are removed. In committee discussions on March 24, Mr. Ryan Leef stated that when he met with first nations directly, we stated that we supported “98% of the legislation”. We have never made such a statement.
Fact: contrary to the assertions of Aboriginal Affairs and Northern Development Canada, none of the four amendments was part of the original draft bill that Canada shared with the first nations in June 2013. We did not see these proposals until late February 2014. Canada and Yukon had many opportunities to raise the concepts of policy direction, delegation of powers and timelines, and exemptions for renewals and amendments during the collaborative five-year review, but they never raised the issues at all. When YESAA was developed, it was to replace the Canadian Environmental Assessment Act in Yukon with a made-in-Yukon approach that addressed the treaty requirements. The objective of maintaining a distinct regime defined by our treaties must be paramount over any unilateral objective to harmonize across the north and throughout Canada.
Thank you for the opportunity for us to speak here today to correct some of the information and inaccuracies.
On behalf of my elders, council, and people, I thank the Tr'ondëk Hwëch'in and the Kwanlin Dün first nations for hosting this important meeting in their traditional territory.
[Witness spoke in Tlingit]
My name is Carl Sidney. I am the chief of Teslin Tlingit Council.
The Teslin Tlingit Council signed its final and self-government agreements with Canada and Yukon in 1993. We joined with other first nations in implementing our agreement starting in February 1995. We have recently celebrated 20 years of government-to-government relations guided by our agreements.
We thank the committee for coming north and providing us the opportunity to share our thoughts on Bill . There are many written reports and documents filed with you by the Teslin Tlingit Council and other first nation governments. I am not repeating those details, but it is important for your committee to consider those submissions.
Let me bring you a personal and grassroots perspective. Our first nations people have long been stewards of land, air, and water. A respected Teslin Tlingit elder, Virginia Smarch, described first nations peoples as being part of the land and part of the water. In fact, we all are. It is this ancient belief that has formed the core of who we are as Tlingit people and defines our relationship with mother earth.
Industry and development come and go, but we are here forever and we carry that sacred responsibility. YESAA is connected to those beliefs and values through our agreements and should not be amended without our consent. We entered into the agreements as a way forward as an expression of who we are as people. An essential part of that vision was the recognition of and respect for our land, our water, and the air we breathe. They are a part of us and we are part of our environment for all time. It is our collective responsibility as a treaty party to ensure these unique relationships will be part of our future.
In 2005 I was one of the appointed founding members to the Yukon Environmental and Socio-economic Assessment Board. Together the board spent much energy in the implementation of YESAA by involving the citizens of Yukon at every stage. It is this kind of cooperation among Yukoners led by an independent board comprised of Yukoners that was the way YESAA was put into effect and has worked perfectly well.
The amendments in Bill imposed by Canada at the last minute undermine what we have created together. It is critical to success that we continue to work together as was the vision under our agreements. Canada's stated intention in entering into final agreements was to create certainty about the use and ownership of Yukon land and natural resources. Substantial aboriginal rights, including title, were exchanged for constitutionally protected treaty rights. That was a high price to pay to achieve certainty for all Canadians and the Yukon first nations who have signed agreements and have paid it in full.
In the face of the violations of our final agreements through these amendments we must protect the spirit, letter, and intent of those agreements. The Yukon first nations and their citizens understand that they are a dynamic part of the Yukon society and economy. It was and is our vision to play a leading role in our collective Yukon future.
Together we represent directly and indirectly through our investments in excess of $1 billion in value, and annual revenues in excess of $300 million. We are definitely involved and concerned with Yukon's future and its economy.
Local and global investors are already diverting investments away from Yukon due to uncertainty of litigation and the questionable law and policy decisions of Canada and Yukon. A range of legal options will be open to first nations if these amendments are passed as proposed. Litigation will take place over a number of years undermining Yukon's economy as Yukon is seen as too risky and too uncertain.
We anticipate that individual projects and proponents will be challenged when the projects are being assessed inadequately. Industry and other investors will be bystanders waiting for the results of legal disputes to be worked out in the courts that the governments of Canada and Yukon have invited.
We are aware of and share in the risks and uncertainty of resorting to courts. However, the breaches of the current Conservative government in Ottawa, supported by the Yukon Party government in Yukon, are so severe we fear that we will have no other option.
We and other Yukon first nations need to continue to strive for respectful, effective relationships with industries throughout Yukon, and encourage sustainable development and positive growth for our citizens and all Yukoners, but to achieve our vision and respect our beliefs and values, we must ensure that our agreements are fully understood and recognized.
Teslin Tlingit Council urges this committee to take the steps available to it to recommend removal of the offending amendments. We further call upon all members of Parliament to take the steps available to avoid this increase in uncertainty and related harm to Yukon and to Canada's economy. Teslin Tlingit Council remains willing and available to work with Canada's representative to prepare improvements to the YESAA.
In accordance with the process settled in our final agreements, we call on you, as representatives of the crown, to act honourably as the law and our treaties require.
First of all, I would like to take the opportunity to thank the Standing Committee on Aboriginal Affairs and Northern Development for coming here to Yukon.
I would also like to express my appreciation to Kwanlin Dün and Ta'an first nations for allowing us to be here in speaking to this monumental event.
I'm Roberta Joseph, chief of the Tr'ondëk Hwëch'in in Dawson City. I want to talk to the committee about the process Canada, Yukon, and first nations used to develop YESAA and how that differs from the Bill process.
I want you to understand that things were done differently in the past and they can be done differently now. Not only that, they must be, in order to honour our treaties.
In 1998 Tr'ondëk Hwëch'in signed a modern land claim agreement after over 25 years of negotiations. The crown got what it wanted: clear title to over 95% of our traditional territory. Why would the TH sign an agreement where we kept less than 5% of our traditional territory as settlement land? We relied on processes like YESAA and land use planning to guarantee participation in planning and management on non-settlement land, where we exercise our rights to hunt, fish, and gather.
The Supreme Court of Canada recognized these processes as key features of our final agreement. In the Little Salmon/Carmacks case, Justice Binnie noted that first nations got “a quantum of settlement land...access to Crown lands, fish and wildlife harvesting, heritage resources, financial compensation, and participation in the management of public resources.”
Participation in the management of public resources is critical. YESAA was central to the final agreement bargain, and so was being involved in its development.
Section 12.3.2 of the final agreement directed the CYFN, Canada, and Yukon to negotiate guidelines for drafting YESAA. Because the development assessment process is so important, Yukon first nations, Canada, and Yukon went beyond section 12.3.2. The parties established a tripartite working group to develop YESAA and its regulations. We worked collaboratively with Canada and Yukon throughout YESAA's development, right up to its approval in Parliament. Canada found ways to support collaboration instead of putting up roadblocks to working together.
Collaboration continued after YESAA came into force in 2005. Section 12.19.3 directed the UFA parties to review YESAA after five years. Once again, Yukon first nations were actively involved. Some of the Bill amendments are reforms that we worked on during that five-year review.
We are here today because that respect for our final agreement process is gone. The original YESAA was developed collaboratively over several years. The amendments from the five-year review were negotiated, but when Canada introduced four surprise amendments at the last minute, there was no negotiation at all. Canada acted unilaterally.
To be clear, collaboration between three orders of government was good enough when we created YESAA. Government-to-government negotiation was good enough during the five-year review as well. We didn't agree on everything, but we followed the final agreement instructions and came up with reforms that we could all live with. Most of those did not require changes to YESAA but have already been implemented through administrative actions and changes.
For the few recommendations that required amendments to YESAA, we expected Canada to respect its constitutional duties and treaty requirements to collaborate with us in accordance with chapter 12. Instead, Canada unilaterally tacked on four substantive amendments: delegation, policy direction, timelines, and renewals. Canada ignored its constitutional duties and the collaborative practices imposed by the treaties in section 12.3.2.
Another section, 12.3.3, provided a default in case the parties couldn't agree on drafting guidelines. Under section 12.3.3, Canada can go ahead with drafting, but it has to consult with Yukon first nations during the drafting. In TH's opinion, consultation under 12.3.3 is the second-best option. We would rather participate in instructing the drafters, but we at least have a final right to proper consultation while the drafting is still going on. Of course, the crown has a constitutional duty to consult with TH and where appropriate, accommodate our concerns when it amends YESAA.
Consultation didn't happen. Instead Canada took the third option, surprising us with amendments and an already drafted bill stamped as secret. They wouldn't let us take copies out of the meeting room, and if we weren't at the meeting in person, Canada never provided us with a single copy.
That's not participation under section 12.3.2. It's not consultation under section 12.3.3. It's just forcing it down our throats. It violates our final agreements and is illegal under the common law.
Many Yukon officials have stood in front of this committee and talked about the thousands of hours of consultation that went into Bill . Do not be misled.
It's true: we spent years participating in the five-year review with federal and territorial officials.
These amendments never should have been included in Bill . We join other witnesses who are urging you to strip those changes out. We are not in support of the Yukon member of Parliament on Bill S-6 and would like to see this matter tabled in the House.
[Witness speaks in Northern Tutchone language
I am Chief Angela Demit of White River First Nation.
Mahsì t'sin’ii to Kwanlin Dün and Tr’ondëk Hwëch’in first nations for our coming to their traditional territory.
Mahsì for the opportunity to present our views about Bill to the standing committee.
White River First Nation is a Yukon first nation that does not have a final land claim agreement. We are therefore one of the first nations who have never extinguished our aboriginal rights and title to our lands and waters. We participated in meetings with Canada about the changes to YESAA. Through that experience we have understood that the changes being proposed by Canada have much more to do with an agenda made in Ottawa than with the recommendations that came out of the YESAA five-year review process.
The process was agreed to by all parties to the UFA, including Canada. All Yukon first nations, including White River First Nation, invested in the review process and agreed upon a number of recommendations to improve the development and assessment process under YESAA. The recommendations were based on our experience of the YESAA process in Yukon in its first five years.
The changes to YESAA now proposed by Canada came from outside the five-year review. I hope you will listen carefully to our concerns.
I will start by saying that there are a number of amendments that White River First Nation wanted to see, but which Canada chose not to act on and which are not present in Bill . The most important of these for White River First Nation is the definition in YESAA of “territory”, which for our nation is defined as the border boundary outlined in the UFA.
Our traditional territory goes beyond the UFA boundary, and as a result, large areas of our traditional territory are excluded from the consultation process under the YESAA. The UFA was never intended to be a binding document, and we do not agree that the map in the UFA represents our territory.
We have made our concerns known for many years and we are disappointed that Canada did not take this opportunity to remedy the situation. It is important to us to make it clear on the record that White River First Nation continues to strongly object to the definition of “territory” in YESAA.
Like many other Yukon first nations who are speaking to you today, we feel that there are four amendments of particular concern which are a profound intrusion of the federal and territorial governments into the YESAA process. A core value of the YESAA process is that it is a process that is at arm's length from government. As a Yukon first nation, we can only have confidence in the process when we believe it is independent.
The first is that Canada is proposing that the federal minister can give written policy direction to the YESAA board regarding any of the board's powers, duties, and functions under YESAA, and the board must abide by them. In our view, this power will completely undermine the board's ability to run an independent process free of political interference from the minister. It will also undermine the predictability of the process for all parties.
The second amendment that concerns us would allow the minister to delegate any of his powers, duties, and functions under YESAA to the territorial minister. The federal minister has many powers under YESAA, for example, the power to change the number of assessment districts, to approve the budget for the board, and approve of or reject time extensions for assessments. Giving these powers to the territorial minister makes the YESAA process extremely vulnerable to local political pressure. White River First Nation strongly objects to this.
The third amendment we urge you to reject is the imposition of timelines for YESAA assessments. The board currently administers rules for timelines which are appropriate to the YESAA process and to the specific circumstances of the Yukon. We see this proposal as a heavy-handed imposition of Canada's development objectives on the Yukon.
The fourth amendment that we do not wish to see brought into law would give discretion to the government decision-makers, most likely a territorial official, to allow a company to avoid a YESAA assessment in the case of a project amendment and permit renewal. This would create a great deal of uncertainty for White River First Nation when participating in a project assessment process. If a project can be changed or extended beyond the original proposal, we will not know all of the potential impacts when the project is finally assessed. This poses a serious threat to the protection of our aboriginal rights and is unacceptable to us.
I urge you to respond to our concerns and recommendations so that the amendments do not become law. I further urge you to recommend that this government scrap Bill and continue to consult with the first nations of Yukon to achieve a proposal that all parties can support. This is what reconciliation is all about.
In closing, White River First Nation is a Yukon first nation which has never extinguished aboriginal rights and title to our traditional waters and lands. The YESAA five-year review includes recommendation 58. This recommendation recognizes the needs for all parties to deal with issues specific to Yukon first nations without final agreements. White River First Nation has many outstanding and unique issues in the application of YESAA, as we are a first nation which did not enter into final agreements under the UFA.
Mahsi cho,T'sin'ii for being able to provide our presentation today.
My name is Leigh Anne Baker, and I'm legal counsel with Teslin Tlingit Council.
To answer the question here, you know we go back to the point that litigation is not our first option, and it's not our first choice for moving forward and finding solutions to these amendments, but if this bill passes, the likely outcome will be litigation from one or more Yukon first nations. That might be litigation for breach of the treaty itself.
YESAA is no ordinary piece of legislation. It exists because it's a chapter in the final agreement. It's a chapter that promises a made-in-Yukon environmental and socio-economic development process. It promises participation to Yukon first nations. Chapter 12 needs to be respected and followed when making any changes or proposing changes to YESAA.
In addition to potential litigation for breach of the treaty itself, we are also looking at the fact that the bill as drafted can lead to inadequate and challengeable assessments. This means there could be an increase in litigation on a project-by-project basis as the assessment process itself fails to live up to the promises made to first nations in the final agreements.
Yes, it can be seen as a cornerstone that protects other rights in the final agreement, such as harvesting rights off of settlement land.
In order to avoid litigation, we're proposing that the government come back to the Yukon and back to Yukon first nations to follow the road map and the promise of chapter 12. This means interpreting the final agreements with the goal of reconciliation in mind. We keep hearing this from the court. The goal is reconciliation, not to have increased litigation. It's not to have a government telling us, “If you don't like it, you can sue us”. It means honouring the final agreements and bringing the amendment process back to the table with Yukon first nations.
I'm going to call the meeting back to order.
We'll get started with our second panel of the day.
From the Champagne and Aishihik First Nations we have Chief Steve Smith, who is accompanied by Brian MacDonald, legal counsel, and Roger Brown, manager of environment and natural resources, Department of Lands and Resources.
From the First Nation of Na-Cho Nyäk Dun is Deputy Chief Millie Olsen. Ray Sabo, manager of lands and resources, is accompanying her, as well as Matthias Zinsli, the environment officer, lands and resources.
From the Kwanlin Dün First Nation is Chief Doris Bill.
From the Vuntut Gwitchin First Nation is Deputy Chief Stanley Njootli Senior, accompanied by Pauline Frost, a representative with him as well.
We will move now to the opening statements from our witnesses.
First up is Chief Steve Smith, for the next seven minutes.
Mr. Chairman and members of the committee, I appreciate your invitation to speak at today's public hearing regarding the proposed amendments to the Yukon Environmental and Socio-economic Assessment Act.
As the chief of the Kwanlin Dün First Nation, I would like to say welcome to our traditional territory, which we share with Ta'an Kwach'an Council.
No one can deny Yukon first nations negotiated their agreements in good faith, and as part of those agreements we established our right to be included in decisions that affect Yukon, especially when it involves land, water, and our people.
As you have heard from others, one provision contained in our final agreement requires the establishment of an assessment process that addresses the unique circumstances of Yukon according to principles that have been clearly defined in the final agreement.
While the minister insists the YESAA amendments will bring YESAA in line with other northern jurisdictions, I would like to point out that each territory is distinct in its own way.
Yukon is not the same as the Northwest Territories and Nunavut. Northerners know this very well and have continuously asked that Canada stop lumping us together.
As you have heard, self-governing first nations are concerned that providing the federal minister with authority to unilaterally issue policy direction undermines the autonomy of the board.
When we negotiated our final agreements, we ceded title to over 90% of our traditional territories. ln exchange, our agreements give us the opportunity to be active participants in managing public resources. YESAA was a big part of that.
Our communities, elders, and negotiators always envisioned an environmental and socio-economic assessment process that was independent of political interference from any government: federal, territorial, or first nation. We fought hard for that when we worked collaboratively with Canada and Yukon to develop YESAA. All three parties agreed to follow the principle of establishing an independent board.
To get that independence, we agreed that the board's role on assessments would be limited to recommendations while the governments would retain the ability to make decisions. That was the compromise that Canada and first nations agreed to. We cannot let that bargain be eroded by Canada giving itself the authority to impose its policies on the board.
Providing a single party with authority to direct the board is fundamentally inconsistent with any legislation that stems from our tripartite treaties. While the treaties obligate Canada to enact YESAA, it does not own YESAA and cannot choose to dictate its own policies on the independent assessment body.
The treaties established a mechanism for the parties to collectively refine YESAA and provide guidance to the board. That process was the five-year review, and it could be any subsequent review conducted by the three parties. That process was and is the right mechanism to provide policy direction because any guidance would come from all parties to the treaties.
As you have heard, the five-year review included agreement on 72 of 76 recommendations. At least 42 of these recommendations relate to administrative and policy function of the board including changes to the board's policies, rules, administration, and activities. The board has been actively working to address these recommendations. The collaborative approach in the five-year review is a proven and effective way to address policy matters for the board.
The concept of the federal minister issuing binding policy direction is particularly problematic when we consider that the direction would apply to projects and assessments on our settlement lands. lt is completely contrary to our treaties that the federal government would have unilateral authority to impose policies that may affect land over which it has very limited authority.
In closing, our agreements are as much about building relationships as they are about the settlement of past injustices. When the federal government embarks on one-sided changes to legislation that stems from constitutionally protected treaties without collaboration or true consultation with first nations, it makes one wonder how strong government-to-government partnerships are.
I will quote Kwanlin Dun elder Judy Gingell, who was a member of the delegation that travelled to Ottawa in 1973 to deliver “Together Today For Our Children Tomorrow”, the document that started the negotiation process for the Umbrella Final Agreement and subsequent final agreements with each first nation government. She told industry, “Today development that does not include first nations, and does not consider first nation interests, means you will end up in court. We will defend what we have worked to achieve.”
As Yukon first nations, we are united in our concerns and we are seeking resolution that in some way will get the process back on track. Would court action be our first choice? Obviously not. We are here. Our preference is to use every avenue available to us and mechanisms clearly defined in our negotiated and constitutionally protected agreements, and respectfully, this parliamentary hearing. Yukon first nations have negotiated their final agreements by relying on a relationship based on respect, honesty, and trust. Why is Bill imposed outside of those principles? The approach creates and fuels animosity for all Yukoners. The exploration spending predictions for 2015 already reflect that uncertainty.
I thank you for this opportunity. Mahsi Cho. Gunalcheesh. Thank you.
Good morning. My name is Millie Olsen and I am the deputy chief of the First Nation of Na-Cho Nyäk Dun.
Our newly elected chief, Simon Mervyn, is not able to attend today due to a scheduling conflict and has asked me to represent our first nation at this hearing.
As one of the first signatories of a first nations final agreement, we have celebrated almost 20 years of self-government here in Yukon.
I want to begin by thanking you all for taking the long trip to Whitehorse to host these presentations. I want to recognize that we are here today presenting on the traditional lands of the Ta'an Kwach'an and Kwanlin Dün first nations.
We have already witnessed a few presentations, and I can assure you that all the Yukon first nations unanimously oppose certain provisions included in Bill .
It is of major importance for us to leave future generations with agreements and processes that will ensure the protection of the water, lands, and wildlife while providing for economic opportunities in Yukon. To achieve this goal, all three levels of government will have to work together, and the base for this mutual trust needs to be improved moving forward.
I want to speak to you now in more detail about our concerns about the beginning-to-end timelines that are proposed for assessments. There is no evidence that these proposed timelines will benefit assessments or proponents in Yukon. Unlike many assessment processes in Canada, YESAA has always had timelines. Canada and Yukon requested provisions for timelines when we worked together to develop YESAA, and first nations agreed to this concept. As required in the legislation, the board established timelines for all steps in the assessment process before it began its first assessment. Almost all assessments have been completed within these established timelines.
Some mining proponents in our traditional territory have been vocal in promoting the need for timelines. As with most assessments, YESAA has met the existing timelines for conducting assessments on these projects. Even though in some cases the proponents made substantial changes to their proposals partway through the assessment process, the assessments would have met the timelines proposed in Bill , too.
The timeline proposals in Bill would bring no real benefit to these companies, but they can harm the assessment process. Beginning-to-end timelines as proposed in Bill S-6 threaten to interfere with a process that works. Most risky is the application of those overarching timelines to the review of adequacy of applications. Adequacy review often takes several iterations and the current timelines restrict the time available for assessors to review each iteration.
YESAA currently has timelines for assessors to review each iteration. This approach encourages proponents to prepare comprehensive applications that minimize iterations. Proponents who prepare adequate applications quickly are rewarded under the current process because they can proceed quickly.
On the other hand, the Bill approach of applying a beginning-to-end timeline will reward proponents who prolong the adequacy review phase by using up time with multiple iterations. The approach will penalize assessors and reviewers like first nations because it will shorten the most important public review phase, infringing on our right for comprehensive reviews of projects.
There are big risks for proponents, too, if the beginning-to-end timelines influence the ability of assessors to finish adequacy reviews. If assessors do not have adequate applications, they will more frequently be led to make recommendations that projects be rejected or referred to higher levels of assessment.
During the engagement sessions, officials from the Department of Aboriginal Affairs had assured us that they were not contemplating the inclusion of the adequacy stage in these maximum timelines, but they changed this at the very last minute.
Finally, I want to highlight that the process for seeking extension for timelines as proposed in Bill is cumbersome and likely to create further delays in assessments. Extending timelines would require approval of the Minister of Aboriginal Affairs and Northern Development or the federal cabinet. Unlike many assessment processes, we have timelines in YESAA that work and we should not interfere with those.
Before I conclude, I would encourage you to read the 2013 report from the Yukon Minerals Advisory Board. This committee is made up of members who either represent or work for industry. This committee claims that it is unique in the sense that it can communicate directly to cabinet ministers of the Yukon, rather than sending information through departments.
Within this report, you will find that the recommendations this committee put forward are almost a carbon copy of the four contentious amendments that my colleagues have spoken to here today. They represent their recommendations that protect their interests in the industry. Why do we have a system in place where government acts on the requests of industry, but cannot take the time to work with local governments to plan the future for our citizens and resident Yukoners?
With that I would like to express my appreciation to sit before you today and hope that the recommendations all of our first nations collectively put forward will help you and your colleagues make the right decision on Bill .
[Witness speaks in Gwich'in
Mahsi Cho. Thank you.
I'm Stan Njootli, deputy chief, from Old Crow.
I will read a statement for the record and probably make my own statements after that.
The Vantut Gwitchin government supports the position expressed by other Yukon first nations and CYFN in today's proceedings. With limited time, I will speak specifically about our collective concerns with amendments to YESAA that allow for delegation of authority and exemption from assessment.
The first proposed change to YESAA would allow the federal minister to delegate authority to the Yukon government. This amendment would establish a bilateral federal-territorial process for distribution of responsibilities and powers under YESAA. It excludes Yukon first nations from the discussions and is contrary to the nature of decision-making envisioned in our modern-day land claims agreement.
Mechanisms that have been used in the past to define distribution of power include our final agreements that were directly negotiated by the three parties and in devolution transfer agreements in which Canada, Yukon, and first nations negotiated a devolution protocol accord to establish negotiating principles. The distribution of powers and responsibilities among federal, territorial, and first nations governments can only be resolved through discussions among all the parties. It must not be handed to a single party or a single person, in this case the of Canada. It also must not be constrained to distribution among only two of the three parties that are involved in this agreement.
I want to provide some detail about our concerns with clause 14, proposed subsection 49.1, in the bill that provides a general exemption from assessment when an authorization is renewed or amended unless, in the opinion of a decision body for the project, there is a significant change to the original project.
As stated in the final agreement, one objective of YESAA is to provide for comprehensive and timely review of the environmental and socio-economic effects of any project before the approval of that project. Achieving this objective is not related to whether an authorization is renewed or amended. It is about the scope of a project and the effects that may have been considered in previous assessments. Federal, Yukon, and first nations governments are prohibited from issuing permits or licences to projects unless they have been assessed under YESAA.
For renewals and amendments, if it is decided that the project has already been assessed, then no further assessment is required. These provisions already exist. The Bill approach on the other hand proposes to create a general exemption that lacks the test of whether the scope of the project was considered in previous assessments and whether the effects have been previously assessed. Under this general exemption, projects that will have significant adverse environmental or social effects, including those that affect other modern-day treaties or land claims agreements, could proceed without assessment or appropriate mitigation. These provisions will also create extremely challenging tasks for the assessors and the proponents as they are forced to consider the effects of a project for long periods. Some projects could be 100 years or more. Not only is this impractical and likely to result in failure to achieve the objectives of chapter 12, but it will have the unintended consequences of delaying projects because of the increased likelihood of designated offices bumping assessments to executive committee level, or it could result in a determination that the project should not proceed due to significant adverse impact.
To conclude my comments about the proposed exemptions from assessment, I want to highlight that Bill conflicts with the recommendations from the five-year review that has already been implemented and is proving effective. The YESAB made changes to its policies with respect to the scope of a project it considers in its assessment. By unilaterally initiating this proposed amendment, Canada is reneging on the agreements we reached during the five-year review.
In conclusion, I would like to share my perspective on the importance of YESAA to the Vuntut First Nation. The Vuntut First Nation was among one of the first first nations to sign final agreements with the federal government. From these agreements, the Vuntut First Nation formed its own government.
What I would like to see, between me and you, is that you come to Old Crow and we do a wilderness trip. We'll go on the river and see what it's like there, how pristine that river is. We drink water from that river. Fifty years from now, I want to see the children of this community walk down to that river and drink that water. I think this assessment should allow that to happen when they assess projects that are going to affect that pristine area on the Porcupine River.
I'm inviting you this summer on a boat trip. What do you think about that?
Good morning, Mr. Chair and fellow committee members.
I thank you for the opportunity to speak to the committee this morning. The Champagne and Aishihik First Nations fully support all statements made by the Council of Yukon First Nations and other first nations partners at the table today.
I'd like to open by telling you that my father was Elijah Smith. It was he who, some 43 years ago, presented the original Yukon land claim to then prime minister Pierre Trudeau. He was the driving force behind the negotiation of our land claim and self-government agreements. He served for six years in World War II. It was that experience which taught him that confrontation is always the last resort, and that negotiation and compromise have to be the preferred methods to settle grievances. This is the sentiment that Yukon first nations have always held when reconciling our claims. This ideal is something that we hope Canada and Yukon would subscribe to as well, not always having to settle disagreements in court.
Bill is a roadblock to reconciliation. The unconstitutional bill demonstrates the federal government's unilateralism and lack of understanding of the relationships that arise from the final agreements, the federal government's failure to abide by the collaborative development assessment regime mandated by the final agreements, and the federal government's indifference to fostering productive and collaborative treaty relations with Yukon first nations. This is fundamentally unacceptable.
Our final agreements entailed a promise. They are modern treaties protected by section 35 of the Constitution. They are vehicles of reconciliation between first nations and Canada. The final agreements look backward to address historic grievances, and they also look forward to the future, towards evermore cooperative and collaborative relationships between Yukon first nations, Yukon, and Canada.
The final agreements represent a significant compromise, and they create a new constitutional arrangement in Yukon. Yukon first nations abandoned their claim to aboriginal title over 90% of their traditional territories, an area of almost 484,000 square kilometres roughly the size of Spain, in exchange for the commitments made in the final agreements. That was an enormous compromise.
The establishment of an independent development assessment regime created through negotiation and collaboration between first nations, Yukon, and Canada was one of the treaty commitments in the final agreements. YESAA was the means by which that commitment was fulfilled. YESAA is mandated by, and founded in, the final agreements. It is not an ordinary piece of federal legislation. It emerged from the constitutional compromise that underpins our final agreements
The final agreements required first nations, Yukon, and Canada to negotiate guidelines for drafting YESAA. We did so. We drafted the legislation and regulations together. Establishing YESAA was a success and a demonstration of the cooperation and reconciliation that our agreements demand.
YESAA is a made-in-Yukon law designed to meet the needs of Yukon first nations and Yukoners alike. It is unlike other assessment legislation in Canada because it is guided specifically by treaty obligations.
The federal government had an obligation to enact YESAA, but the federal government does not own YESAA. YESAA is not legislation that Canada may simply alter as it wishes. The federal government cannot unilaterally modify YESAA for its own benefit, or to suit its own preferences.
As we have said, we do not oppose all of the provisions of Bill , but we oppose it unless the unilateral federal amendments to YESAA that undermine the spirit and intent of the final agreements are removed. The details of the changes we expect were identified in Chief Massie's opening remarks today and in our written submission.
By empowering itself to issue binding policy directions to the board, Canada would overturn the careful balance struck during the treaty negotiations and the subsequent constitutionally mandated negotiation of YESAA. By appropriating powers that imperil the board's independence, Canada imperils reconciliation.
In the final agreements, the parties agreed on the constitutionally protected framework for the creation of development assessment legislation in Yukon. Such legislation is to be drafted based on guidelines negotiated by parties, or failing agreement on guidelines, following consultations with first nations. Canada has failed to do that.
In short, Bill demonstrates Canada's disregard for its treaty commitments.
For development in Yukon to be successful, it must be sustainable. It must have social licence. It must have Yukon first nations' and Yukoners' support.
The final agreements and YESAA are designed to ensure sustainable development by, among other things, ensuring trust in the assessment process that leads to development. First nations trust the YESAA regime because they are co-creators and because they have the confidence that the assessment process is independent. By unilaterally amending YESAA in violation of its treaty commitments, Canada undermines first nations' trust in the YESAA process. This will undermine the promise of the agreements and threaten the ability of first nations to support development in our traditional territories.
Recent court decisions, such as the Peel land use planning case in the Yukon Supreme Court, the Tlicho injunction over changes to the land and water boards in the Northwest Territories earlier this year, and the Mikisew Cree case on the federal omnibus bills and demonstrate what happens when our treaties are threatened. That serves no one's interest.
In conclusion, the final agreements will never fulfill their purpose of reconciliation if the federal government persists on its path of unilateralism and disregard for the views of its treaty partners. Our treaty is as much about building relationships as it is about the settlement of past grievances. When Canada unilaterally undertakes major changes to treaty-mandated legislation without collaborating or even truly consulting with first nations, it inflames grievances and strains relations.
By going it alone, Canada has left the honour of the crown behind.
I would like to thank the committee members for their time today.
I thank all of you for your presentations. They were very interesting and certainly in line with other presentations we've heard from other chiefs this morning, which I guess for us reiterates the serious nature and concern of the clauses in this bill that we're dealing with.
First of all, on the bilateral or trilateral approach, it's my understanding that there are trilateral approaches called land claims with three governments. What we're seeing here is the unilateral process that is omitting first nations government, and we cannot overlook that.
The consistent message that I've heard in all of this, which I find very disturbing, is that we have with YESAA a made-in-Yukon approach or law. We have heard people say it's very distinct. We even heard the premier say this morning that it is unique. When I look at that, I ask, why change it? It's held in such high esteem. It seems as if the changes are unilateral by the federal government, supported by the Yukon government, and they have complete disregard for any treaty commitments they've made.
You've told us this morning that there are first nations who actually gave up ownership of land because they had complete trust in this process and how they could still have fair control and fair input into the process. Can you tell me how the changes in this bill are going to have an impact on how you do business in your communities? Can you tell me what process you have now to kind of ratify any compromises you made in good faith and in trust with this government, which have now been broken?
In your presentation you said you really felt that the trust has been broken. It's going to have an impact on how you do business in your land because you had confidence in a process that is going to be changed by the federal government. Do you want to expand on that for me?
Certainly the minister, in his speech and when he appeared before this committee to discuss Bill , obviously fundamentally disagrees that Bill S-6 violates the Umbrella Final Agreement, and he laid out the sections that he believes give the government the authority to proceed with the four amendments we're talking about.
The chief just mentioned the consultation. I guess I'm a little confused because on the four amendments, I have a list here: video conference on the responsible resource development in the north initiative, December 2012; teleconference with CYFN on way forward on amending YESAA, April 2013; mail out to CYFN, Yukon first nations, YESAB, and Government of Yukon of first draft legislative proposal and request for written comments, May 2013; discussion on funding with CYFN, June 2013; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon, July 2013; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon on comments received and AANDC's response, November 2013; mail out to CYFN, Yukon first nations, YESAB, Government of Yukon and industry of revised draft legislative proposal and requested written comments, February 2014; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon on revised draft legislative proposal, February 2014; another similar consultation session, April 2014; again, May 2014; written responses sent, June 2014.
Then I go to funding for stakeholders on these four amendments: Council of Yukon First Nations, $19,637; Champagne and Aishihik First Nations, $9,403; Teslin Tlingit Council, $13,868; Selkirk First Nation, $1,733; Tr'ondëk Hwëch'in, $7,688; Ta'an Kwäch'än Council, $9,403; Kluane First Nation, $10,864; Kwanlin Dun First Nation, $4,403; Liard First Nation, $5,622; White River First Nation, $7,807; Gwich'in Tribal Council, $10,000; Tetlit Gwich'in Renewable Resource Council, $7,290, and that's just specifically on this issue, on these four amendments.
Certainly when this was before the Senate, the critic, Liberal Senator Grant Mitchell said:
|| There has been, I think, quite adequate consultation. It's complicated up there in these territories. You have federal, territorial and Aboriginal interests. Some interests are more defined than others because in many cases they are defined by land claim developed treaties or land claim settlements. In other cases, those have yet to be accomplished. So it is very complex, and the fundamental core of this bill gets to that and is an effort to make all of that better and to make processes in the North better.
Certainly, there's a wide range of views on what constitutes consultation. Maybe if there's any time left, I wonder if there are any comments on whether or not $98,000 and a dozen meetings over the course of a year and a half constitute consultation. I'm a little confused there and would like your comments on that.
I would also like to thank the committee for inviting me to appear before them today as they study Bill .
My name is Wendy Randall and I was appointed chair of the Yukon Environmental and Socio-economic Assessment Board just over two months ago. lt is an honour to speak to this committee about this complex and comprehensive piece of legislation that is so important to Yukoners.
I will try not to take up too much of your time. I'm simply going to provide an overview of the Yukon Environmental and Socio-economic Assessment Act as well as the role of the Yukon Environmental and Socio-economic Assessment Board. For the committee's consideration, I will also speak to the fundamental purposes of the act and then either I or executive director Tim Smith will be available to answer questions.
Chapter 12 of the Umbrella Final Agreement and Yukon first nations final agreements called for the creation, through federal legislation, of an assessment process applicable to all lands within Yukon. Over a decade later, in November 2005, the Yukon Environmental and Socio-economic Assessment Act with its regulations came into force and became the federal statute setting out this process.
The board was established under YESAA, and consistent with the Umbrella Final Agreement, is an independent, neutral, arm's-length body responsible for the administration of the assessment responsibilities of YESAA. The board comprises a three person executive committee, one member of which is also chair of the board. There are four other members at large, for a total of seven board members. The Council of Yukon First Nations nominates three of the board members; the Yukon government nominates two board members, and the Government of Canada also nominates two board members. All board members are appointed by the federal Minister of Aboriginal Affairs and Northern Development Canada.
YESAB is made up of six community-based designated offices and a head office in Whitehorse, which houses the executive committee. The designated offices are responsible for conducting the majority of assessments known as evaluations. They have completed close to 2,000 designated office assessments to date.
The executive committee conducts assessments known as screenings of larger, more complicated projects. Screenings of six projects have been completed with a seventh that is currently in the adequacy review stage. To date there have been no reviews conducted by a panel of the board.
It is important to note that YESAB is not part of government. We are not a regulator. We do not issue permits or authorizations, and we do not make final decisions on projects. We are an independent board that conducts environmental and socio-economic assessments and makes recommendations to decision bodies. Those decision bodies are the three orders of government that have control over land and resources in Yukon, so federal, territorial, and first nation governments.
As chair of the board, I feel it is appropriate for me to convey to this committee the purposes of the act as they were contemplated by the three parties that originally drafted the legislation, those parties being the federal government, the Yukon government, and the Council of Yukon First Nations.
If you were to talk to the parties who created YESAA, they would tell you that it was almost a miracle of drafting to obtain consensus from such diverse sets of needs and interests, and yet they did. At the front of the Yukon Environmental and Socio-economic Assessment Act is section 5. It sets out the purposes of the act agreed to by the parties.
I believe this section is important for the committee to think about during their study of Bill . The purposes of the act as set out in YESAA are unique to Yukon. They are bold. They are comprehensive, and some have potentially competing interests. The board and staff must ask ourselves every day if what we are doing and how we are doing it is in keeping with the purposes of this legislation.
The purposes of the act are as follows:
||(a) to provide a comprehensive, neutrally conducted assessment process applicable in Yukon;
||(b) to require that, before projects are undertaken, their environmental and socio-economic effects be considered;
||(c) to protect and maintain environmental quality and heritage resources;
||(d) to protect and promote the well-being of Yukon Indian persons and their societies and Yukon residents generally, as well as the interests of other Canadians;
||(e) to ensure that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities and their residents, and societies, in general, depend;
||(f) to recognize and, to the extent practicable, enhance the traditional economy of Yukon Indian persons and their special relationship with the wilderness environment;
||(g) to guarantee opportunities for the participation of Yukon Indian persons—and to make use of their knowledge and experience—in the assessment process;
||(h) to provide opportunities for public participation in the assessment process;
||(i) to ensure that the assessment process is conducted in a timely, efficient and effective manner that avoids duplication; and
||(j) to provide certainty to the extent practicable with respect to assessment procedures, including information requirements, time limits and costs to participants.
As you can see, we must balance the diverse needs of all participants in the process, including stakeholders, Yukon first nations, and proponents. YESAA is made-in-Yukon legislation that Yukoners are very proud of.
Thank you, Mr. Chair. I hope this has provided some helpful context for committee members.
I would like to thank Kwanlin Dün First Nation and Tr'ondëk Hwëch'in council for welcoming us into their traditional territory.
Mr. Chairman and honourable members, thank you for the invitation to appear before the committee to speak to Bill , concerning proposed amendments to the Yukon Environmental and Socio-economic Assessment Act. We appreciate the opportunity because, as a Yukon success story, Kaminak wants to ensure that we are governed by an accessible and stable regulatory regime.
My name is Allison Rippin Armstrong, and I am vice-president of lands and environment with Kaminak Gold Corp. Kaminak is a Canadian exploration company that has owned and explored mineral properties in all three of Canada's northern territories. We are currently focused on exploring and advancing the Coffee gold project located in central Yukon within the traditional territory of Tr'ondëk Hwëch'in.
Kaminak is committed to being a good neighbour to all stakeholders, including Yukon first nations, and to that end has engaged local first nations at every stage of the Coffee gold project. Kaminak continues to work closely with our local first nations leaders and communities to minimize project impacts and to create innovative educational and employment opportunities for first nation citizens. Going forward, Kaminak remains committed to being an industry leader in aboriginal engagement.
Kaminak supports regulatory reform that creates efficiencies, stability, and predictability in assessment and regulatory regimes. Stability and predictability create certainty that influences our investment decisions as a company and also attracts outside investment in our company and in the Yukon territory. That being said, Kaminak is concerned that the process through which YESAA is being amended is creating increased distrust between governments and uncertainty in the assessment and regulatory process for current and future projects in Yukon.
Specifically, the YESAA five-year review resulted in a number of recommendations, most of which were supported by the parties involved in the review, including Yukon first nations. We understand that some of the proposed amendments do not accurately reflect comments and recommendations raised during the five-year review, and as a result, instead of celebrating a historic alignment between the governments and Yukon first nations on most of the proposed amendments to YESAA, Yukon first nations have expressed a common position that they intend to take the federal government to court, if Bill is passed as proposed.
Kaminak is very concerned about this development, because court cases create assessment and regulatory uncertainty in addition to extraordinary delay, all of which erodes investor confidence.
Investment in mineral exploration and development is very mobile, and Yukon and Canada are competing in a global market. While investment in a low sovereign-risk country such as Canada is attractive to many investment institutions, the reality is that the mineral exploration industry has never been more globalized.
Since 2009 Kaminak has spent $91 million on exploring the Coffee gold project. Recently, Kaminak completed a preliminary economic assessment and transitioned into feasibility, which we aim to complete at the end of this year. A positive outcome could see Kaminak entering the assessment and permitting phase by mid-2016 and on track to build a gold mine by 2019-20.
Our Coffee gold project has yet to enter the YESAA process. If Bill is passed and challenged in court, the Coffee gold project and our presence in Yukon is uncertain. Kaminak urges the federal government to resume discussions with the first nations to work collectively toward reaching consensus on the proposed amendments to YESAA and avoid a court challenge.
Mr. Chairman and honourable members of the committee, thank you for the time and opportunity to share our views.
Good afternoon, Mr. Chair and members of the parliamentary standing committee. Thank you for the opportunity to provide testimony today on this important legislation.
I'm here today as president of the Yukon Chamber of Mines, as well as in my position as the executive vice-president and chief operating officer of Alexco Resource Corp. With me today, aIso representing the Chamber of Mines and our industry, is Mr. Samson Hartland, who is a director of the chamber, and Mr. Ron Light, vice-president of the chamber and general manager of Capstone's Minto mine.
Let me begin by saying that the Yukon Chamber of Mines and the mining industry in the Yukon support a robust environmental assessment process. Our comments today reflect our belief that the proposed amendments to the Yukon Environmental and Socio-economic Assessment Act will improve the areas of most concern to our industry with respect to the YESAA process.
I would like to address two important proposed sections in this bill that we feel will have the most benefit to mine operators and developers, namely project reassessment, proposed section 49.1, and timelines, proposed section 56.
Let me first start with Alexco's experience in the YESAA process and how it relates to our operations in the Keno Hill silver district. Alexco is a public Canadian mining company. Our primary asset is the Keno Hill silver district located in the traditional territory of the First Nation of Na-Cho Nyäk Dun.
To speak first on project reassessment, the nature of almost all mining districts and operations is that mine plans and ore bodies will change once they go into production according to changes in commodity prices, exploration results, and other cost and operating variables. These changes are generally consistent with current operations, such as an extension of the timeline for the operation of existing facilities or the expansion of current facilities. But under the current YESAA legislation, even if new activities are very similar in nature, new assessments are generally required.
ln the case of Alexco and Keno Hill, we have undergone the YESAA process 10 times over a variety of activities in the past eight years, for activities that are very similar in nature yet have already been assessed. For example, Alexco recently underwent a YESAA designated office assessment for the addition of another similar narrow-vein ore body sitting directly adjacent to and beneath our existing milling facility, a facility that had already been in operation for three years and was in full compliance with all operating permits and licences.
Despite this, the use of the mill for a further period beyond five years was included as part of the assessment for a new underground mine adjacent to the mill, along with the assessment for a new dry stack expansion tailings facility, a facility that had already operated successfully for the past three years.
We have also been required to go back through the entire environmental assessment process, simply to maintain a care and maintenance water licence, to extend the operating period of water treatment facilities from five years to 10 years. These facilities had again successfully operated for several years, but the simple extension of plant operating time required a new assessment.
Similar examples of project reassessment have been experienced at other operating and development projects in the Yukon, including Capstone's Minto mine and Golden Predator's Brewery Creek mine. These are clear examples in which a reasonable decision body could have easily determined that these are not material changes to a project and should not require an additional assessment of the project, and they underscore the importance of proposed section 49.1, project reassessment.
With respect to timelines, we support time limits that include both the adequacy and assessment stages of the YESAA process. Over the past five years, Alexco has undergone a YESAA process four times, specifically for mine development and mine operation purposes.
The adequacy review period of the YESAA process for our latest mine addition has increased fourfold compared with the time required to assess the first new mine and mill in the district. Meanwhile, the overall time required to complete the YESAA process from beginning to end has systematically increased by approximately two and a half times. Currently, the adequacy stage is not included in binding timelines, and our experience has been that this period continues to grow in length and that the adequacy period is used to conduct the assessment outside of the designated timelines.
The current uncertainty in reassessments and continued extensions of the time required for a YESAA assessment have a negative impact upon our ability to efficiently plan and operate our business. By extension, it impairs the competitiveness of Yukon, as a jurisdiction, to assert certainty in mine development and production processes and to attract scarce investment capital.
Finally, Mr. Chair, let me make some remarks on the broader context of the mining community in the Yukon. Nearly all mining operations are developed in a series of phases. In our experience as well as that of other operators and developers in the Yukon, YESAA is not conducive to or aligned with the normal mine operating requirements of sites that are already in operation. At some stage, all current and future mines will undergo normal changes in operations, and the inclusion of these amendments will be important to all current and future operators.
I thank you for your time. I would like to turn over the balance of our allotted time to Mr. Samson Hartland.
Good afternoon, Mr. Chair and members of the parliamentary standing committee.
I'd like to follow up Mr. Thrall's comments with some aspects and perspectives with respect to intergovernmental relations.
The Yukon Chamber of Mines enjoys a positive, constructive relationship with all levels of government. Working with federal, first nations, and Yukon governments, the Yukon Chamber of Mines contributes by ensuring that technical and industry expertise is provided to all parties when working towards creating socio-economic opportunities for communities and Yukoners.
Currently, the Yukon Chamber of Mines is working towards the production of an aboriginal consultation and engagement guidebook for proponents, in partnership with the Council of Yukon First Nations, the Government of Canada, and the Yukon government. This work is being undertaken in order to provide clarity on the consultation and engagement requirements of a proponent when looking to conduct activities that occur on traditional territory of Yukon first nations.
The Yukon Chamber of Mines has provided its long-standing support to the settlement of the Umbrella Final Agreement. As Yukoners, we believed that the UFA would provide certainty for industry and was the next step in respect to the evolution of first nations governments. However, as an industry organization we would be remiss if we did not articulate a concern from industry that the erosion of intergovernmental relations among parties to the UFA over Bill is creating a level of uncertainty that affects the attractiveness of Yukon as a jurisdiction to invest in.
As the trusted voice of mining in Yukon, representing a membership of more than 400, we urge all levels of government to move towards respectful dialogue and to work towards a way by which we can provide socio-economic opportunities for communities and Yukoners while respecting the environment in doing so.
Ms. Armstrong, my question will be for you. You urge that the bill be set aside and that the government come back to the table with Yukon first nations to talk about their concerns. I think they made their concerns pretty clear this morning. Their position was that the four clauses be entirely removed. From that point of view, I'm not entirely sure there's a lot of room to talk about those four pieces. It seems to me they'll be satisfied if those four pieces are completely removed.
Also, when I look at the Yukon Minerals Advisory Board report, they rendered a fairly scathing assessment in 2013. They said they've chosen “to focus on...the key issue negatively impacting industry; the deterioration in the efficiency and reliability of the assessment and licensing of mining projects in the territory.”
They've highlighted that the “proponents' experience securing approvals has worsened dramatically”, and “[G]radual deterioration in the interpretation and administration of existing laws and regulations by government agencies [is creating] uncertainty...affecting capital investment”. They also talk about the deterioration of the investment climate in the Yukon.
One of the signatories to that was Eira Thomas, who is the CEO of Kaminak.
I guess I'm wondering, in light of the fact that Yukon first nations' position is pretty clear on the timeline assessment piece, whether it would be your position now that we just remove the timeline assessment piece entirely, and that would allow us to move on.
Again I want to focus on this annual report of the Yukon Minerals Advisory Board from 2013. This question will go to Ms. Rippin Armstrong.
Page 5 of the document says:
||YMAB puts forth the following recommendations to [Yukon government] as they are achievable and can result in immediate positive impacts in the next three to six months.
One of them is on “Adequacy Review Timelines for YESAA and the Water Board” and states:
||Short timelines for adequacy reviews must be set for YESAA and for the Yukon Water Board.
Under “YESAA Re-assessment Process Clarity”, the report states:
||The process to determine whether a YESAA re-assessment is required when an authorization is renewed or amended needs to be clarified. A more transparent decision-making process is also needed, particularly with respect to how and when these determinations are made by Decision Bodies.
Again, as Mr. Leef said, the report talked about “the deterioration in the efficiency and reliability of the assessment and licensing of the mining projects in the territory” and the “decline” in Yukon in terms of the jurisdiction's ranking as a desirable place to do mining.
Everything I read there was signed off on by Eira Thomas, Kaminak Gold Corp. She wanted the Yukon government to put in adequacy review timelines and YESAA reassessment process clarity in three to six months. Certainly, that would not allow for the level of consultation that we have provided for the last 18 months.
Why did Ms. Thomas and Kaminak want these changes so badly in 2013 and why, now that they are before you in terms of legislation, is there this sudden “where did this come from”? I can tell you that it came from people like those at Kaminak who asked for it. Why the flip-flop on the part of Kaminak? Why are they now saying that what they wanted just two years ago is outrageous at this point?
I think this is quite interesting, because we've had panels of 12 where they've only had an hour, and then we've had small panels where we've had an hour, so I think we wish that we would have had more time to hear from first nations as well.
Ms. Armstrong, I think you've really put it on the table in saying that we need to take this back and we need to have an agreement. The principle of it is that there has been no discussion on those four issues—decent discussion—to try to find common ground on it. I think that's extremely important.
Mr. Thrall, you've talked about how it's important to mining, and I can tell you that, yes, sometimes mining thinks they're doing the right thing. I come from Elliot Lake. I can tell you that the Occupational Health and Safety Act came about because of people who stood up and said, “This is wrong and we need to find common ground on how to make sure our people are going to be safe.”
That is basically what these communities are doing as well. They're saying that we have to look at the social and the economic impacts of this. If there is an issue with the length of the assessment.... Because from what we can understand, if I remember correctly, YESAB has basically indicated that they had come into a disagreement, maybe, on the timelines.
That's one. I'm sure there may have been some other ones, but on the major ones.... For example, I know that Casino.... We're talking about tailings ponds here. We know what happened in B.C. I can tell you what tailings ponds have done in Elliot Lake as well, and how they had to look at remediation of that part when the mines closed down. I understand that when Casino went forward that there were 400-plus questions that YESAB had to ask in order for that project to move forward.
I think what we are looking at is the fact that the government and the territorial government went to the table and said they were ready to do the review. People put their cards on the table and said, “Here are our amendments and here's how we can try to fix this.” Seventy-three of them out of the 76 were accepted, but the problem is that the other ones came in after the fact with no detail.
I think the people want to work together and want to make sure that business and their communities thrive, and they want to make sure they can protect their environment.
I do have a couple of questions. You've indicated that there are two changes that are of most benefit, that you think would be most beneficial to you. What are your views on policy direction and delegation of authority, which are part of this bill? Is it of little benefit? Is there a lot of benefit? Or do you have a statement on that at all?
Indeed we're onto the fruitful piece of the day's meetings. I appreciate that some of the questions have put you in a position between a rock and a hard place. Nonetheless, it's important that the committee ask them.
I'm going to paraphrase a bit of everything we've heard today. Invariably the committee will go back to Ottawa and carefully review all of the testimony, because there has been a lot. I've been taking notes as diligently as possible to make sure I have an accurate reflection of what's been said.
I do know that Yukon first nations are still here and are indeed engaged in this discussion and are listening to this. I think right now they're absorbing what you've articulated and they will indeed have an opportunity to comment on it. I think all committee members look forward to that.
I think the grand chief presented her concerns well today. I think all the chiefs did. They outlined them clearly for us to review. They very clearly articulated that the clause on timelines, the clause on adequacy, the clause on binding policy direction, and the clause on delegated authority should all be removed. In fact, Deputy Chief Olsen, on the issue of timelines, said they wouldn't provide any benefit to industry. We're hearing very polarized comments on that one piece.
In summary, I didn't hear—although, I think we'd love to hear it, if it were expressed—an invitation to meet and talk about those four pieces again. I did hear very clearly talk about removal of those four pieces. Ms. Rippin Armstrong said she has indication that there is a possibility to discuss those four pieces.
Ms. Rippin Armstrong, what level of indication have you received that first nations are indeed very interested in discussing those four pieces? Are there specifics that you can recommend to the committee? I do appreciate it would have been a great question to ask the first nations. I'm sorry that we don't have the opportunity right this second, but I think we can afford that, because they are listening, so we'll get some comments on this.
From your point of view, as an industry stakeholder in this, what have you heard that would indicate there is definitely room to move on the timeline and adequacy pieces, that you could help us with?
I will, thank you. I'll try to get started right away because seven minutes goes by pretty quickly.
Good afternoon, Mr. Chair. My name is Stuart Schmidt. I am president of the Klondike Placer Miners' Association. With me is Randy Clarkson, the executive director of the association.
Legislation concerning YESAB is very important to our industry. We have experienced a great deal of frustration with this process, and we feel that improvements to the process would benefit all Yukoners. The KPMA represents over 100 family-based mining operations in the Yukon as well as many service industries and suppliers. We've been working here for over 130 years as a private sector generator of wealth.
Our industry cumulatively produces over 60 million dollars' worth of gold every year and at least 2.5 times that in spinoff benefits. These are important to the people of the Yukon.
Only water and gravity are used to concentrate placer gold particles. No chemicals, such as mercury or cyanide, are used. No rock acid drainage or other chemical leaching problems occur as a result of placer mining. We are very aware of the importance of environmental stewardship, and we have respect for the land from which we make our living.
Without exception all Yukon placer mines are privately financed operations, and the majority are family owned with many generations working together. This is one of the reasons we can keep operating throughout market cycles even when the stock market is compromising the ability of public companies to operate. This is also one of the reasons we are able to speak freely to you today as we do not have shareholders who worry if they see controversy over legislation in the Yukon.
I employ 24 people, and 11 members of my family and extended family depend on mining for their incomes. Many of my employees have children and families they also take care of. This situation is typical of Yukon placer mines.
Even before the advent of YESAB, our industry had become heavily regulated over the last 20 years with regulations covering all facets of mining from water use, water discharge, stream reclamation, and terrestrial reclamation. The placer industry has more experience with YESAB designated offices than does any other industry or working group in the Yukon. Thirty-eight per cent of the assessments of designated offices have been for placer mines.
There are four parts of this proposed legislation that are controversial.
One is reassessments of project renewals, proposed subsection 49.1(1). For all of our water licences and land use licences that we have already been assessed for, we will need to go through another assessment at renewal. Very minor amendments will also be assessed. Somehow we need to address this issue of assessing the same project multiple times.
Number two is timelines. Placer projects are at the designated office level, so we shall comment on timelines for this level. Since the implementation of YESAB, our timelines for licensing have increased substantially. Since the placer resource is often more difficult to delineate and explore than hard rock resources are, we need to be agile in how we approach our work. Timelines proposed in this legislation are too long for placer mining and could be much shorter. We also think this is an important area for discussion.
Number three is policy direction. We believe that someone should be able to give direction not just to the YESAB board but, somehow, to the designated offices. The designated offices must be accountable for the recommendations and for their information requests. I came across this issue when I asked the head of a designated office who I could appeal an information request to and I was told, “You may not appeal this to anyone. I am the authority here.” All of us are accountable to someone, somewhere. In the case of a politician, it is the electorate. If you're a gold miner, you must pay your bills and follow the rules. Somehow someone needs to be able to give the designated offices direction to ensure consistency and to ensure that they are not bringing their personal bias to this very important job that affects everyone in the community they live in. We believe this is an important area that needs to be dealt with.
Number four is delegation to the minister. This, again, is a very controversial issue. Devolution and the voice of local government, both first nations and Yukon government, make sense to us, so we believe in local decision-making. We supported devolution of the once federal responsibilities to our elected Yukon government, and we feel this was an important milestone for the people of the Yukon. That's all I'm going to say about it until you ask me more questions.
Number five—here I'm adding points to these controversial issues, because there are other issues that simply aren't covered by this bill—is a lack of procedural fairness. This is an additional issue that we did bring up with the Senate. There's a lack of procedural fairness in the YESAB process. YESAB designated offices' procedures for seeking views and information do not follow the rules of natural justice. There are no opportunities for proponents to address last-minute interventions, and most interventions come at the last minute. Once the “seeking views and information period” is over, the proponents need a reasonable amount of time to respond.
A further one is our number six. YESAB is not restricted to receiving only the evidence gained in the information response and in seeking views, period, but routinely solicits information from other sources and other projects without our knowledge or giving us a chance to respond. This is why we never know what to expect in YESAB recommendations. They often come out of the blue.
Number seven is that the decision bodies are not allowed to consider evidence that was not presented during the YESAB assessment. The proponent needs to be able to answer questions and exchange views with the decision body. YESAB is not always accurate. We're only human. We make mistakes. If further questions occur at some point, they should be answered, just like you should be able to ask more questions of the first nations tomorrow if they feel that they didn't get enough information today.
In conclusion, the work we do in the Yukon is simple and straightforward. Our environmental liability is low. When we ask that improvements be made to this legislation, we are not asking that the environment be sacrificed in any way. We are simply asking that we not be sacrificed in the name of legislative arguments and to make environmental screening appear good on paper.
The more onerous this system becomes—and it's rapidly becoming more onerous—the more difficult it is for small companies like mine to work. More and more, we are forced to hire professionals to help us find our way through the system. Our industry is under a regulatory burden that has little to do with real environmental protection and everything to do with a system that needs direction from someone, somewhere.
It is our sincere hope that this committee leaves here with a greater understanding and a determination to find a way through the morass of differing opinions, remembering all the while that there are people on the ground trying to maintain their livelihoods, earn a living, and contribute tax dollars to both the federal and the territorial governments.
We are the ones struggling with this system. Ask your presenters how many times they have gone through the process when they present to you their opinion on this system. Many would change their views of YESAB if they had to experience being the proponent. We are not legislators, nor do we pretend to have a comprehensive understanding of the agreements between first nations and the Yukon and federal governments.
Please help us deal with this difficult situation we find ourselves in.
Thank you for the opportunity to present our views regarding the proposed legislation.
Thank you, Mr. Richards.
I'm happy to be here today. Thank you for the invite. Over the years, I have spent a great deal of time involved in the YESAA process. Today I want to talk primarily about the ex-com—or executive committee—process, so I think you have a bit of both sides of it here with my friends from Klondike Placer Miners' Association.
I'm here to talk about what I see and what my experience is in terms of the amendments related to the YESAA process as a whole. Before I start into what I would call the technical part, I want to preface my remarks by saying something about what I see as the issues.
One of the things that I think has been a benefit in terms of having YESAA—and this is my experience—has been that we've been able to work through large projects. I'm not telling you that there haven't been bumps in the road. There have been a lot of bumps in the road, and there are a lot of things about the YESAA process that I would like to see improved, but in any event, from my perspective, there are parts of the YESAA process that have improved over the years. Whether it's through how YESAA's own internal processes, or rules, or operating rules have changed, I've seen some improvements. We've had some good experiences through the YESAA process, and we've had some costly experiences in the YESAA process.
But whether we get to a point through your work such that we have amendments that we go forward with, I want to talk for a minute about the fact that this YESAA process lives and works here in the Yukon, we all live and work here in the Yukon, and the projects that we do are here in the Yukon. It has to work for all of us. If there are significant differences of opinion on issues, we have to find a way to sort them out, because trying to go through an assessment process and then all the various regulatory processes that we find ourselves subject to is a long and detailed process. If we have certainty around the fact that those processes work, we at least have that comfort, but if we don't have that certainty, then this process doesn't work any of us, and it has to work.
Let me talk about timelines for a quick minute. I believe strongly that there have to be some timelines. Having said that and having told you that I want to talk about the ex-com process, in my previous life we went through three ex-com screenings. That's probably more than anybody, but I might be wrong. Beginning to end, individually, they lasted 10 months and three days, one year and two months, and one year and 12 days. From my perspective, I think the 16 months is a good timeline. It gives people enough time to get their work done from an assessment process view, and certainly the projects that I'm talking about were not small projects. They were big projects.
Part of the process when you look at timelines is that we're talking about assessment timelines and people are talking about project timelines. There's often a big difference. Even if I go through a process—let's pick the middle road and say that it was one year to get from assessment beginning to assessment end—only if that assessment end finishes in May or June do I really get to start a project. If my 12 months end in September or October, I won't be doing anything until May or June of the next year.
Timelines sound simple and they sound easy, but it's really necessary to be clear on them when you're starting to work on projects that are worth hundreds of millions of dollars or tens of millions of dollars. It's an imperative, because you're at risk when you talk about the costs and the budgets for those projects.
The other area that I think is important to talk about is adequacy. Adequacy has to be defined, and it needs some clarity. Now, as to whether or not it's included, I'm not going to debate that. But the problem with some of the pieces of the legislation that companies have a difficult time with is that there's not enough clarity and definition around adequacy.
The last area I want to talk about today is cumulative effects. We've added the term “likely to be carried out” to the legislation, but for the life of me, I don't know what that means. Likely to be when? That's really important. How do you as a proponent deal with cumulative effects that might happen five years down the road? I don't know how you deal with that in an assessment process, because I don't know how you have information to deal with it. That needs some clarity and some definition as well.
The final piece is maybe tied to timelines, but it's really about finishing the YESAA process. When I talk about timelines, 16 months or whatever number people settle on, that for me is one thing, but I think having the ability, under that 16-month period, to put some fences around times of stages is also important. I'll give you the example of what we went through in those three projects. The time to go from a draft screening report to a final screening report was 62, 76, and 82 days, and 76 or 82 days, to go from writing the draft screening report to the final screening report, is just a lot of time when you're trying to get to a project and move it forward. When you have a draft screening report, you have the vast majority of the work done.
I'd put some fences around the stages within the timeline periods. As well, I think we'd all benefit from clarity on a couple of those issues: adequacy and cumulative effects.
Thank you very much, Mr. Chair.
Thank you for your presentations today.
I have a statement that I want to put on the record before I get into my questions. It's from an earlier debate as to whether we throw out the four contentious recommendations that are in this bill or leave them. I think there is an opportunity to sort through those recommendations to the satisfaction of the three levels of government and the parties involved. I want to point out that in the presentations this morning Grand Chief Massie did say in her presentation that their “preference is reconciliation”, and that it would be the process they would prefer to undertake.
I also have a quote from Chief Fairclough. He says that concerns were raised by Yukon first nations to federal officials and that they “have not engaged in...discussion in good faith with Yukon first nations to address our concerns”. They are obviously wanting to do that. There is a desire to do that.
The other quote I would give you is from Chief Bill, who also outlined that first nations “have negotiated their final agreements...on a relationship based on respect, honesty, and trust” and who asks why Bill is allowed to work “outside of those principles”, when that “creates and fuels animosity for all Yukoners”.
I wanted to put that on the record simply because I have sensed, in listening to the presentations today, a tremendous willingness to work towards a consensus and a collaborative relationship here to define the terms and principles of the bill in a way that all levels of government can relate to. I just wanted to outline that.
My question is first of all to you, Mr. Morrison. I was interested to hear that in your experience in the last 10 years in dealing with YESAA you have seen changes for the best. Through practice, I'm assuming, through using the process, all parties have been able to define better understanding and better ways to move forward. For a lot of the things that we're dealing with today, especially timelines, do you feel that they can be resolved and worked out through dialogue within the YESAA process and do not have to be legislated by the Parliament of Canada?
Let me answer the last part of your question first, and then come back at it. I think a lot of things can be worked out. As your preamble statement indicated, I think, there's a willingness here from people to make sure that this process works for everybody going forward. I think I said that as well.
It's not for me to tell governments—the three governments—what should be in legislation, what should be in regulations, and what should be in the operations manual of an assessment organization such as YESAB. As I indicated to Mr. Leef, I think YESAA could in fact figure out what clarity definition is required around “cumulative effects”, and that was the basis of my comment previously.
From the starting days to now, I think YESAB has itself found ways to improve its operations in different areas, such as just getting experience with ex-com submissions, if you want to talk about that. When you go from doing none to one, that's a big leap. When you go from one to three, that's another big leap. But when you get to five, you're starting to get your legs under you and it enables an organization like that to fine-tune it.
But as for what should be in legislation and what should be in rules, I'm not qualified to comment about that. Timelines I think are necessary. From my perspective, how you resolve that issue is really left to the governments that are involved in this process.
Well, part of the problem we're facing is that some designated offices don't understand as well as others do the regulations that regulate placer mining. Some designated offices therefore don't understand the regulations we've been operating under in the past. They might recommend things and advise things to government that are either redundant or just outside the regulatory framework.
What's happened is that this has resulted in some mines not opening. One particular mine that I'm thinking of applied for their water licence well over a year ago. It was a licence renewal. They'd been operating for nine years. They had been operating, at the time of their application, eight and a half years, so they applied well before their licence was due to expire. Surprise: they got a whole bunch of recommendations that....
First of all, in seeking views and everything—it was an adequacy period, to begin with—they got a whole bunch of leading questions, leading them to have to do a whole bunch of environmental studies that they were very nervous about doing and didn't know where to begin. The long and short of it is that they shut down their mining operation for a year. This is a sizable operation, employing probably 15 or 20 people, carrying a debt load and everything. Last fall they decided they couldn't do their fall stripping, which meant they couldn't do their 2015 mining, because they didn't know whether they'd get a water licence, or get one that allowed them to work economically. That was all based on YESAB.
I mean, the only reason they were worried about what their water licence would look like was that it would depend on what the YESAB document would look like and what the decision document would look like. Now, finally, at this late date, they got their decision document. It isn't a very nice one, because it reflects YESAB recommendations. They're definitely not going to be mining this year, because they didn't do their fall stripping and their preparation work. Really, mining takes years of planning ahead, because of the permafrost and everything, to be able to do it in an economical fashion.
They're out of business for a year. This represents three families. It's one family with kids who are married and have children and everything like that. They're well known to people in Yukon. They're very responsible miners. They're very well educated. The proponents are super good at going through the system and everything like that, and here they've been derailed from their mining operation for a year. I also know of others like this.
To us, it appears to be all of sudden changing the rules of the game in midstream, right? It's a bit of a crapshoot in terms of what designated office you get and what they might come up with.
I do want to add some things to the record, Mr. Chair.
First of all, with the comments made by Mr. Leef earlier about the first nations saying that they weren't prepared to negotiate or had asked to be part of the conversation on the four amendments to see if there could be consensus, I'd like to refer you to a letter from the Teslin Tlingit Council, dated March 17. They state that they “...remain committed to resolving these conflicts with Canada outside of the courtroom. Canada must provide us with the opportunity to do that by withdrawing Bill S-6 and by directing Canada's officials to work with our officials to find remedies that do not conflict with the Teslin Tlingit final agreement.” Furthermore, in a letter on June 24 the TTC indicates that “Canada has the opportunity to make the changes to these proposed amendments that can contribute to a more robust Yukon economy and make the territory a preferred place to invest. We would like to help Canada do that.” They would also like to send a delegation to meet with the Prime Minister. This was a letter to the Prime Minister and to Minister Valcourt.
I also want to read out a letter from the Champagne Aishihik First Nation, as follows:
|| We have consistently sought meaningful engagement to negotiate these matters but Canada has yet to demonstrate it will give full and fair consideration of the views of Yukon First Nations. We continue to be stonewalled with clear signals that these amendments are not up for negotiation.
They go on to say the following:
|| Nonetheless, we have offered practical solutions to these concepts that do not necessitate legislative action but could be addressed by other means, and in some cases, point back to the better thought out solutions already agreed to under the Five Year Review. To date, we have been incredibly frustrated that our reasonable requests and observations have been treated with little, to no, regard.
That letter is dated March 26, 2015.
I also want to put into the record a letter that we received. Dated March 26, it was actually sent to the clerk for the committee here. It's from the Yukoners Concerned group. It states:
|| I have lived in Yukon for 30 years surrounded by the most resilient, innovative and progressive people. We worked together in good faith to create the YESSA Act. The First Nations of the Yukon are part of the land, part of the water and we all have a duty to our ancestors to protect it for all our children's sake.
||I and many other Yukon people stand behind the Yukon First Nations opposition to the Bill S-6. We are not going back to colonial rule, we are fed up with our First Nation friends and neighbours having to go to court to protect our rights. There is no going back when we all have had the taste of the promise of self-governance.
I just thought it was important to put this on the record.
One thing we also have to recognize is that when Yukon land claims and self-government legislation was going through Parliament in June of 1984, the Reform-slash-Conservative Parliament voted against it, including Minister John Duncan and actually our colleague Mr. Strahl's father. This is what actually gave effect to these agreements that we're talking about today.
I'm just wondering if this is where the government is trying to go and if they're trying to chisel away at what is before them just because they didn't like it way back then. We have to keep in mind that in 1974, the unelected Conservative Senator Lang was one who was actually against this as well. We have to remain concerned about why we are where we are today.
I don't know if I have any time left, Mr. Chair.
I'd like to start by thanking the committee for travelling to Yukon and taking the time to hear from Yukoners on this important bill.
CPAWS Yukon works with aboriginal and public governments, local organizations, businesses, and citizens to ensure the natural wealth we enjoy today is available for our children tomorrow. Here in the territory we have about 280 members from all walks of Yukon society who demand responsible development that will benefit sustainable communities nestled in healthy, ecologically rich environments. We are currently active participants in land use planning, energy consultations, outreach to and engagement of the public in sustainability initiatives, and of course YESAA.
Our organization has some serious concerns about four sections of the proposed amendments to YESAA that are included in Bill I imagine you've probably heard about some of these earlier today, but I will reiterate them.
With regard to the concept of “significant change” as outlined in proposed subsection 49.1(1), CPAWS Yukon feels that the term “significant change” is both too vague and too subjective. We are concerned that once the project's initial phase has undergone assessment, additional phases, such as major expansions or cumulative minor expansions, could be exempted from screening by YESAB. This amendment increases the challenge of assessments, as not all impacts can be foreseen at the time of the project's initial application phase and may result in negative impacts to the environment, the economy, and Yukon communities.
Our second set of concerns deal with the amendment to the timelines, which are included in proposed subsections 56(1), 58(1), and 23(2). These proposed changes would shorten the timelines for environmental assessments, making it difficult for the YESAA board and staff to meet their duties and obligations. This may ultimately result in the rushing of complex assessments, which will put our environment and communities at unnecessary risk.
Under current legislation, all documentation submitted by the proponent must have undergone an adequacy review before the clock starts ticking. The changes proposed in Bill start the clock as soon as documentation is submitted by the proponent, before an adequacy review has taken place. This amendment poses the risk of significantly reducing the time available to conduct a thorough adequacy review, a critical step to the overall assessment process.
Our third set of concerns deals with the binding policy direction as indicated in proposed section 121.1. We feel that this proposed change appears to be at odds with the intent of the Yukon devolution agreement, which transferred powers from the Government of Canada to the Yukon government.
Further, and probably more significantly, we feel that these amendments jeopardize the independence and impartiality of the assessment process in Yukon and have the potential to permit political interference in what is currently an independent body. YESAB was founded to be a transparent and public process through which all stakeholders are provided the opportunity to learn about and to submit comments on projects proposed in Yukon. The ability of the federal minister to dictate future binding policy directions has the potential to undermine sound environmental stewardship through the systematic stripping away of previously held standards for assessable activities.
Our fourth set of concerns deal with the delegation of federal powers as outlined in proposed section 6. This proposed change does a disservice to the honour of the crown as a signatory of the Umbrella Final Agreement, the UFA, which originally prompted the creation of YESAA. The UFA is a political document between the Government of Canada, the Government of Yukon, and Yukon first nations, and, as such, has always been viewed as a tripartite agreement between these three levels of government. This proposed change could be interpreted as the federal government abandoning its constitutionally entrenched responsibilities under the UFA by delegating federal obligations to Yukon.
Finally, we would like to note that YESAA is a made-in-the-Yukon piece of legislation, and we feel it addresses a set of unique Yukon perspectives that should be honoured and preserved moving forward, not cast aside in the name of conformity.
Thank you so much for the opportunity to speak.
Good day, members of the standing committee, and thank you for allowing me the opportunity to speak with you.
My name is Felix Geithner. I'm a tourism operator and a member of the board of the Tourism Industry Association of the Yukon, also known as TIA Yukon, which represents over 400 tourism businesses in the territory. I've been asked by the board to speak to you on behalf of the tourism industry today about Bill .
First, let me tell you a bit about tourism in Yukon. Tourism is a major driver of Yukon's economy. According to the 2013 Yukon business survey, tourism generated approximately $250 million in 2012 and constituted almost 5% of Yukon's GDP that year. Tourism visitation has grown by an average of 3% per year from 2004 to 2012, with 2013 being the best year on record for tourism visitation. With this fall's announcement of an additional $3.6 million over two years from the federal and territorial governments to go towards a tourism marketing campaign, we expect visitation and tourism revenue numbers to increase even more in the coming years.
It's important for you to get a snapshot of how important tourism is to Yukon's economy. Far too often, people downplay the importance of tourism because its successes are difficult to measure and its profits are scattered throughout a multitude of businesses and sectors. With mining, it's so much easier to draw a line from A to B to show exactly where the money is coming from.
Even when people stop and think about the word “mining”, the mind conjures up images of gold and silver, diamonds and riches, and exploration with cash as the reward. The word “tourism” makes people think about exploring. Not many people think about the monetary value of tourism, but they should. When you add up the revenue from airlines, hotels, car rental agencies, wilderness guiding operations, outfitters, museums, aurora-viewing businesses, plus a big percentage of restaurants, retail shops, and other more indirect sources, tourism stands out as a cash cow, one that if properly cared for will produce forever.
Tourism is a big business in Yukon. It's a slow-growing, steady economy for us that's needed in the territory when Yukon's mining industry goes through one of its bust cycles, as has been the case in the past three years. It makes no sense to make changes such as the ones proposed in Bill unless one knows for a fact that they will not be detrimental to Yukon's tourism industry and are certain to benefit Yukon's mining industry. TAI Yukon calls both these points into question.
In the letter that TAI Yukon wrote to Yukon's MP, Ryan Leef, dated November 21, 2014, we expressed our concern that one of our partners, the Council of Yukon First Nations, was not properly consulted on all points during this process, especially given that YESAA is the cornerstone of the Umbrella Final Agreement. In fact, most of the Yukon public and key stakeholders of the business community, such as TAI Yukon, were not consulted on the bill prior to its introduction. In our letter, we also stipulated that taking land use planning decisions away from the territory will ultimately give tourism operators in Yukon less of a say over land use issues where resource extraction interests conflict with the interests of tourism businesses. These issues continue to trouble the tourism industry.
The most pertinent question isn't why Bill should be prevented from being passed, but why it was ever put forward in the first place in its current form. On April 22, 2010, Yukon Senator Dan Lang addressed a crowd of potential investors as the keynote speaker at the Yukon Forum in New York. According to a news release on the senator's website, Senator Lang praised the Yukon Environmental and Socio-Economic Assessment Board. He described YESAB as “implementing responsible environmental and social guidelines while providing certainty to investors”.
Even when the senator introduced the bill four years later on June 10, 2014, he acknowledged that Yukon's regulatory system has been a model for the rest of the country. The reason he provided for introducing a bill that proposed sweeping changes to a fundamental part of this regulatory regime was the need to involve and maintain a competitive and predictable regulatory system that remains competitive internationally.
Taking something that is a model for the country and giving it a drastic overhaul requires more than an inside design job. Throwing black paint at a white house isn't a renovation; it's a mess.
The extent of the mess this bill has created reached all new levels on November 28, 2014, when the president of the Casino Mining Corporation in Yukon wrote about “Bill S-6 and the negative impact this is having on the territory's mineral industry”. The Casino Corporation believes that if YESAA has the full support of all levels of government, it will provide greater certainty for the mineral industry.
From TIA Yukon's perspective, Bill is a shoddy piece of legislation that sows discord rather than the certainty it sets out to create. More than this, the proponents of this bill have set an adversarial tone in Yukon with Yukon first nations and a number of key organizations and businesses through their attempt to ram it through without adequate consultation. Consultation requires two-way communication. If one party doesn't believe that there was adequate consultation, then there was not adequate consultation.
To get a sense of the tone being set by the government in the House of Commons with regard to this bill, one needs only to listen to Alberta MP , who sits on the Standing Committee on Aboriginal Affairs and Northern Development. On March 11 Mr. Barlow said:
||We have to take some very aggressive steps to get Yukon back to where it was before and regain that success as a resource extraction economy.
TIA Yukon believes that Bill and these aggressive steps should be abandoned by the Government of Canada in favour of meaningful discussions and collaboration with Yukon first nations and all sectors that constitute Yukon's business community, including the tourism industry.
Good afternoon, and welcome to Yukon. My name is Lewis Rifkind and I'm the mining analyst for the Yukon Conservation Society.
I would like to acknowledge that we are on the traditional territory of the Kwanlin Dun and Ta'an Kwach'an first nations.
The Yukon Conservation Society, or YCS, is a grassroots environmental non-profit organization, established in 1968. Our mandate is to pursue ecosystem well-being throughout Yukon and beyond, recognizing that human well-being is ultimately dependent upon fully functioning and healthy ecosystems. We have about 250 members and are currently active participants in land-use planning issues, energy consultations, outreach and environmental education, Yukon Water Board hearings, and Yukon Environmental and Socio-economic Assessment Act applications.
We regularly participate in the YESAA process. There isn't a month that goes by that YCS does not submit comments on a wide variety of projects. I checked over past records, and during 2014, I submitted to YESAA on behalf of YCS comments on 18 unique projects, and I’m but one of four employees at YCS who submit comments. We like to think our comments are helpful and informative to the YESAB staff so that the recommendations they prepare on projects ensure that impacts to the environment are minimized.
As you have probably heard before, we are concerned about four changes being proposed in Bill . Our concerns are as follows. Clause 14 of Bill S-6 proposes adding the following after subsection 49(1):
||49.1 (1) A new assessment of a project or existing project is not required when an authorization is renewed or amended unless, in the opinion of a decision body for the project, there is a significant change to the original project that would otherwise be subject to an assessment.
The term “significant change” is too vague and subjective. YCS is concerned that under this change, projects would be assessed once and then major expansions or cumulative minor expansions such as a mine developing further open pits or an oil company gradually drilling more wells within its existing lease area would not undergo the additional environmental assessments necessary to identify and develop mitigation for economic, environmental, and societal impacts. This is not acceptable.
Second is modification to the time frames in clauses 16 and 17 and subclause 23(2) in Bill . I won't read the wording, but YCS is of the opinion that these proposed changes would shorten the timelines for environmental assessments. Under current legislation, the clock starts ticking only once all the documentation submitted by the project proponent has been reviewed and is deemed adequate. Bill S-6 would start the clock as soon as documentation was submitted by the proponent, not after an adequacy review had been completed.
The proposed changes would run the risk of reducing the time available to conduct a thorough adequacy review. This review is critical to ensuring all appropriate documentation has been submitted prior to the assessment commencing.
The third concern of YCS regards policy direction. Clause 34 of Bill would add the following:
||121.1 (1) The federal minister may, after consultation with the Board, give written policy directions that are binding on the Board with respect to the exercise or performance of any of its powers, duties or functions under this Act.
This proposed change would seem to undo the intent of Yukon devolution, whereby responsible government was transferred to Yukon territorial legislature and away from Ottawa. Furthermore, the proposed change undermines the very foundation of YESAB as a transparent, public process through which all stakeholders are provided the opportunity to learn about and submit comments on projects proposed in Yukon.
Given that the nature of future binding policy directions from Ottawa is unknown, will there be any consultation with Yukoners prior to orders being issued from Ottawa that will have economic, social, and environmental implications for the people and the environment in Yukon?
YESAA is meant to be arm’s length from interference by politicians, proponents, and special interest groups. Let's keep it that way.
A fourth concern regards delegation of the federal minister's powers. Bill in clause 2 would replace section 6 of YESAA with the following:
||6.1 (1) The federal minister may delegate, in writing, to the territorial minister all or any of the federal minister’s powers, duties or functions under this Act, either generally or as otherwise provided in the instrument of delegation.
This proposed change does a disservice to the honour of the crown as a signatory of the Umbrella Final Agreement, from which YESAA was created. The UFA is a political document between the Government of Canada, the Government of Yukon, and Yukon first nations as represented by the Council of Yukon First Nations. This has always been seen as a tripartite agreement between these three levels of government.
This proposed change could be interpreted as the federal government abandoning its constitutionally entrenched responsibilities under the UFA by delegating federal obligations to the Yukon Government. This is unacceptable.
As a helpful suggestion, YCS respectfully suggests that Bill could include a clause that lays out a periodic review of the YESAA legislation. This will ensure that YESAA is reviewed on a regular basis, such as once a decade, and is amended when necessary in an up-to-date and timely fashion.
Thank you for the opportunity to submit these comments. If you have any questions, of course I'm available.
Thank you to the Kwanlin Dün First Nation and the Ta’an Kwäch’än Council for hosting these hearings in their traditional territories.
Thank you to the standing committee for the invitation to present.
I was executive director of the Yukon Conservation Society from 2006 to 2014. Before that I was their forestry coordinator. During my time with the conservation society I participated in many YESAB assessments and took part in the YESAA five-year review.
My interest in presenting as an individual stems from the fact that Yukon first nations final agreements are the law for all Canadians. They are embedded in the Canadian Constitution. The Yukon Environmental and Socio-economic Assessment Act is one of the most important tools for implementing the final agreements. As you've heard here from so many first nations today, the Government of Canada is breaking Canadian law by unilaterally imposing four contentious amendments upon YESAA.
Like most of the speakers you've heard today, I oppose the following four changes to YESAA that are proposed in Bill , the four changes that are so contentious. Of these four proposed amendments, to my knowledge, the public consultation for the YESAA five-year review only consulted about timelines, none of the others. As well, the consultant's report suggested longer timelines for assessments. The consultant's report did not recommend legislated timelines. Therefore, none of these changes to YESAA can validly be considered to stem from the five-year review.
I will briefly comment, just like everybody else, on each of the four proposed amendments.
Allowing the Government of Canada to delegate its powers to the Yukon government is not consistent with the Government of Canada's fiduciary duty. The Umbrella Final Agreement and individual land claims agreements were signed by all three parties. It's not consistent with the honour of the crown for Canada to abdicate these responsibilities. Furthermore, as a less directly involved government, one would hope that Canada would be less susceptible to local political motivations for approving projects, and should provide a more unbiased approach to assessments.
Allowing the Minister of Aboriginal Affairs and Northern Development to provide binding policy direction to the YESAA board is a very disturbing proposal. YESAB is meant to be an independent body, not subject to the political goals of the federal minister. The minister could influence things like timelines and what is considered an assessment. Looking at the four contentious changes proposed by Canada to Bill , one can predict that this kind of policy direction would likely be aimed at weakening YESAA.
Regarding the proposed legislated timelines for assessments, as you know, some of the assessments that go through YESAA are extremely complex. To do its job, YESAB needs the time to comprehensively review projects, get expert advice, and solicit more information from the proponent. First nations and the public also need time to do research, possibly engage experts, and respond.
It appears to me, from looking at the YESAA website, that the timelines proposed in Bill for executive committee screenings would reduce the executive committee screening from a maximum of approximately 30 months to 16 months—so about half the time. There's of course the risk that as a result there would be inadequate assessments. Furthermore, the board's policies and guidelines already include timelines for assessments. YESAB has the knowledge and experience to determine appropriate timelines. In my opinion, the federal government does not.
The proposal that no new assessments would be required for the renewal of projects, or amendments to permits and licences, if a decision body deems there are no significant changes is frankly frightening. I'll give you an example of the kind of situation that this change could make possible. It's an issue that is very top-of-mind for Yukoners right now.
Let's say an oil and gas company underwent an environmental assessment of a drilling program that did not include hydraulic fracturing. Later they want to amend the project to include this controversial process. The Yukon government could decide that no new environmental assessment was required, and the Yukon public would never even know. The impacts of fracking from the project might never be assessed.
But even if a project hasn't changed really significantly and the company is applying for a renewal of a permit, the environmental and socio-economic conditions surrounding the project may well have changed due to things like climate change. There may be changes to wildlife populations in the area for completely other reasons. Water quality impacts, cumulative assessments—all of those things need to be looked at even if a project doesn't involve significant changes.
Furthermore, just even extending the time period of a licence does imply significant changes to the project. With a mining project, for example, there are more tailings, more water impacts, more waste rock to dispose of, and so on. Of course extended time periods for projects need to be assessed.
In conclusion, I'm concerned that a number of organizations that had important information to contribute were not able to present to these hearings. For example, I understand that Mike Smith from the Assembly of First Nations was not given an opportunity to present, although he wanted to. He was one of the negotiators of Yukon land claims. He would have been an expert witness who would have made an important contribution.
I was also surprised that the Yukon Fish and Wildlife Management Board was not allowed to make a presentation as a land claims mandated body. Furthermore, the grassroots organization Yukoners Concerned About Oil and Gas Exploration and Development was also denied the opportunity.
I have to wonder what other well-informed and relevant people and organizations were also excluded from the process.
I appreciate the standing committee making the effort to come all the way to Yukon to hear from Yukoners. I have to admit that I'm a little nervous that these eleventh-hour consultations may not have a lot of meaning, when Bill has already had two readings. I very much hope that this standing committee will prove me wrong and that you will advise the Government of Canada to uphold the laws of Canada by dropping the four controversial amendments to YESAA.
I appreciate everybody's input.
Of course, part of the challenge that we're hearing is that we're seized with this as a committee to weigh things out. On one hand, we have your testimony, Ma'am, where you're talking about YESAA getting better and better, but then we have a YMAB report that talks about the assessments getting worse and worse. We're seized with deciding on whether they are getting better and better or worse and worse. From an industry perspective, they're getting worse and worse; from your perspective, they're getting better and better. That presents an unique challenge for us considering what is actually going on.
On the timeline piece that was brought up, we spoke to the chair of YESAB this morning. She indicated that the average timeframe to complete a review right now is about 57 days, and the timeline is going to move to about 270. That raises a concern, in the sense that what it might do is actually invite greater consultation and more input on a project, and then that would intensify the need for YESAB, or a district office, or the executive council to have the capacity to deal with all the input that's coming in. She felt that there was going have to be some adaptation on YESAB's part to work on that, with in fact the lengthening of the time period.
On one hand, if it's lengthened and we get more input, more feedback, and more stakeholder investment, that should be viewed as a good thing. The capacity and financial piece for YESAB is outside the scope of the bill, but certainly can be addressed by the federal government and the partners involved. Industry has said that the adequacy review right now is being used to conduct the assessment outside of the timelines and that's posing some direct challenges for them.
If YESAB right now is completing these projects in 57 days and then is allowed to extend them to 270 to invite greater stakeholder input, wouldn't that be a good outcome? The chair said that she's not sure that it was the intended outcome, but wouldn't it be viewed a good outcome to have more community engagement and more community input on projects? I think keeping it down to 57 days is great, and if it stretches longer, this provides them the time to provide the broad consultation that everyone is talking about.
Thank you all for your presentations.
It seems there are so many questions left to ask and so little time, but you've certainly given us more to think about, and I appreciate that.
I'll just start off by saying I represent an area not unlike the Northwest Territories in eastern Canada and Labrador. I know the importance of development initiatives. I know they always work better when there's full consultation, agreement by all governments, and respect for first nations, and when input from environmental and conservation groups is listened to and acted upon. At the end of the day, doing so saves everyone a lot of grief and a lot of money, especially industry investors, so I understand fully where you're coming from and your concerns today.
I agree that you can't rush complex assessments. We can all cite examples right across the country of environmental and social monitoring and assessment of projects being rushed so that they have lacked some of the information that was required to make good, sound, reasoned decisions. Many of the assessments were deemed to be inadequate in some ways, but projects moved ahead. We've all seen that. We can cite dozens of examples, I'm sure.
We want to make sure that does not happen in the Yukon. I think that is what I've liked about the model that has been in place. I think for the most part we've heard very good feedback about the YESAA process, from all the people I've heard speak about it, with the exception of the Mining Association of Canada, which had some concerns around timelines, which I think could be easily sorted out with some dialogue and discussion.
My question to you would be on two fronts. One, when we talk about significant change, whether it goes forward for an assessment or not, it is not defined within the act that we're dealing with. How do you define it? Has anyone told you what a significant change constitutes? We would not know. We can all guess. That's about all I, as a panellist, can do right now.
The other piece has to do with the independence of the YESAA process. Right now when you look at these changes from an industry perspective or an environmental perspective or a first nations' perspective, you can say either that it works or that it doesn't work, depending on the government of the day. Governments change. Not all governments are going to have the same will and mandate. Some will be pro-development; some will not. Some will be pro-environment; some will not. What I see now is an independent body that deals with those issues outside of what the principles and philosophy of the government of the day are, whether in the Yukon or in Canada.
I'd like you to comment on those two pieces for us, if you could.
I guess I would just say that the duty to consult and accommodate as necessary has never been defined as an open-ended process in which one party can declare that just as a matter of fact they haven't been adequately consulted. A test has to be made there.
I did want to talk more about policy direction, worries about which were raised by everyone. Policy direction, as I understand it, may only be given with respect to the exercise or performance of YESAB's powers, duties, or functions under the act and cannot be used to change the environmental assessment process itself. It cannot impede the board's ability to perform its legal duties, or expand or restrict the powers of the board. Also, because the board is an independent body, policy direction cannot interfere with active or completed reviews. In addition, policy direction cannot improperly fetter the board's ability to exercise discretion when conducting assessments and making recommendations.
We've learned today that all policy directions are subject to certain limitations. First, they're subject to the application of section 4 of the act, which states that first nations final agreements will prevail in the event of an inconsistency or conflict. Therefore, any policy direction issued must be consistent with the Yukon Environmental and Socio-economic Assessment Act, the Umbrella Final Agreement, and the individual land claim agreements.
Further, there are four examples only of when policy direction has been provided. I mentioned these earlier today. All of them have been to protect the rights and interests of first nations requiring that notification be provided to both the Manitoba and Saskatchewan Denesuliné regarding licences and permits in a given region, providing instruction to the board regarding its obligations under the Deh Cho interim measures agreement, and ensuring that the board carries out its functions and responsibilities in cooperation with the Akaitcho Dene First Nations at its pre-screening board. That was done under a previous government.
So I guess I'm a little bit perplexed given the parameters under which policy direction can be given, given the supremacy of the final agreement, given the laws of the land, as well as the fact that this has only ever been used to protect the interests of first nations, that here seems to be a condition of “if that, then this”. There seem to be several steps down the road that people are taking when the facts seem to indicate that this has only been used to protect the interests of first nations in the past. Maybe I could get some comments on that?
We've been reading some things into the record. Some folks have been able to testify and others aren't able to be here. I'm going to read into the record a letter from the Village of Mayo. They are writing and specifically supporting the four amendments proposed in .
The first piece I'll talk about, which touches on what Mr. Strahl was concluding with when he ran out of time, is around the policy direction and your comments on the trust piece. As well, without putting words into his mouth, I think that Mr. Strahl was just about to conclude that the parameters are very prescriptive in the legislation. There isn't a great deal of latitude that the minister has in prescribing policy direction.
The trust comes from the strength in the law itself, which is prescriptive in nature, about what the minister can do in terms of that policy direction. Indeed, that is what the community of Mayo reports here. It says, “Any policy direction given would have to be consistent with YESAA, the Umbrella Final Agreement, individual land claim agreements or other Yukon legislation.” They go on to continue to support the delegation of authority and timelines and provide some context to each of those pieces.
I want to ask Mr. Rifkind a quick question with the time I have left. It's around the specific “significant change” piece you talked about. I appreciate, on an initial glance, that it's vague. But is it necessarily vague? As Ms. Church pointed out, people have different perspectives on what “significant change” is, but projects will as well, and so will certain ecosystems and certain regions. In one area, a definition of “significant change” could be too broad for a very particular ecoregion. Something very, very small could be a significant change in a sensitive area, whereas in another area it could be absolutely nebulous.
We run a risk of having a really prescriptive definition of “significant change”, where we envision “significant” being rather large on a grand scale. That could actually be detrimental to the review of that project in the protection of the environment, because “significant”, in certain areas, could be very small in nature. Would you agree with that concept? Then, from that point, perhaps you could give us a recommendation on how you would go about defining “significant change” such that it doesn't paint us into that corner, whereby we can reflect that small changes can be significant as well.
I'm going to have to stop it there.
Thank you. That closes off our panel and our hearings for the day.
I want to thank everyone who attended today, both those who attended as witnesses, as these and some others have, and those of you who came as observers. We very much appreciated everyone's cooperation and patience in trying to make the day run smoothly.
I want to have all of you join me in acknowledging all the staff of the committee, who were very helpful in making this day happen. They really did go above and beyond to make this day run smoothly for us, so we say thanks to them.
We also thank the Best Western Gold Rush Inn for all their accommodations for us today.
I want to remind everyone that if anyone has anything they feel they want to add in terms of perspective, or further opinion, or suggestions for the committee, you are certainly always welcome to submit a written brief to the committee, which we will gratefully accept and which all members will take into consideration as well.
Thanks to all of you today.
With that, the meeting is adjourned.