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Standing Committee on Indigenous and Northern Affairs


NUMBER 066 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, June 20, 2017

[Recorded by Electronic Apparatus]

  (0845)  

[English]

    First, we'll start as we regularly do. We're on the unceded territory of the Algonquin people, especially important as we're beginning a process of truth and reconciliation, our government's commitment to move forward on the files, and the fact that we were able to table our unanimous report on the suicide crisis in indigenous communities among indigenous peoples, which I think went quite well.
     We're here to talk about Bill C-17, economic development and land use planning in the Yukon. I want to welcome the department.
    Pursuant to Standing Order 108(2), the motion adopted on Tuesday, May 2, 2017, the committee begins its study of the subject matter of Bill C-17, an act to amend the Yukon Environmental and Socio-economic Assessment Act and to make a consequential amendment to another act.
    We have INAC with us this morning. You have 10 minutes to present, as is standard routine, then we'll open it up for questioning in a rotational manner.
     I turn it over to you.

[Translation]

    Thank you, Madam Chair and honourable members, for the opportunity to appear before you to offer assistance in your subject-matter study of Bill C-17, An Act to amend the Yukon Environmental and Socio-economic Assessment Act.
    Appearing with me are Gilles Binda, acting director, resource policy and programs, and Daniel Pagowski, legal counsel with the Department of Justice.

[English]

    Madam Chair, I will begin by providing some recent history of the evolution of the Yukon Environmental and Socio-economic Assessment Act, known as YESAA, to give some context and understanding of how we arrived at where we are today.
    In 2008, a mandated five-year review of the YESAA was launched as a requirement under the umbrella final agreement, five years after its royal assent. The review was completed in 2012, resulting in 76 recommendations, 72 of which were agreed to by all parties. Some of the recommendations required legislative change in 2014. These changes to the Yukon Environmental and Socio-economic Assessment Act were introduced in Parliament in Bill S-6, Yukon and Nunavut Regulatory Improvement Act.
    However, the bill included additional provisions to those recommended by the review. The majority of these were part of a broader initiative to modernize and streamline the northern regulatory regime. However, Yukon first nations raised serious concerns about four of these provisions. They asserted that the four provisions—time limits on the review process; exempting a project from reassessment when an authorization is renewed or amended, unless there has been a significant change in the project; the ability for the federal minister to provide binding policy direction to the board; and the ability to delegate the federal minister's powers, duties, or functions under the act to the territorial government—did not respect the rights and the interests of indigenous peoples and were not developed using clear, fair, and appropriate processes.
    Madam Chair, I believe you will hear from other witnesses from the Yukon, our first nations partners, and the Yukon government, who will iterate their concerns with these provisions. Suffice it to say it was clear that we all needed to work together to resolve these issues.

  (0850)  

[Translation]

    Following the general election in October 2015, the Minister of Indigenous and Northern Affairs committed to exploring ways to address the concerns raised about the four contentious provisions and to renew the government's relationship with first nations in Yukon.

[English]

     Let's examine in detail how the government came to introduce Bill C-17. In order to resolve these issues stemming from the coming into force of the Yukon and Nunavut Regulatory Improvement Act, formerly Bill S-6, that ultimately led to a court action by being filed by three first nations, we began discussions with Yukon first nations and the Yukon government in December 2015.
    Department officials met with Yukon first nations and Yukon government representatives on January 14, 2016, in Yukon. The outcome of those discussions was positive, and all parties agreed to meet again in the near future. The next meetings, on February 11 and 12, 2016, proved constructive, as the parties agreed to a potential legislative solution to the first nations' concerns. It was also agreed that the parties would move forward on redefining their working relationship in the spirit of co-operation and collaboration.
    A legislative proposal to repeal the four contentious provisions of the Yukon Environmental and Socio-economic Assessment Act was prepared and sent to first nations and the Yukon government for review on March 14, 2016. A third meeting was held between federal officials, Yukon first nations, and Yukon government on March 29, 2016. Canada proposed a small modification to the draft legislative proposal to correct an editorial error.
    The parties agreed to the revised proposal. Canada, the Yukon government, the Council of Yukon First Nations, and the self-governing first nations signed a memorandum of understanding to that effect on April 8, 2016. Representatives from industry were also provided an opportunity to comment on a draft legislative proposal. On March 13, 2017, the Yukon Chamber of Mines co-signed a letter, along with Yukon first nations and the Yukon government, to the Minister of INAC articulating their unqualified support for Bill C-17, urging that it be “passed, without change, as soon as possible”.
    Madam Chair, we recognize that the mining industry has concerns about environmental assessment timelines and project reassessments in Yukon, but they also understand and appreciate the collaborative nature of environmental assessment processes in the north. All parties in Yukon want the economic prosperity that resource development can bring. However, in a political and social landscape that includes public government, self-governing indigenous peoples, and those with constitutionally protected land claims, collaboration and “made in the north” solutions are key. As the parties state in their letter of March 13:
Repeal of these amendments and addressing industry concerns through collaborative framework is critical to re-establishing confidence in the development assessment process in Yukon and to honouring the intent of Final and Self-Government Agreements.
    Madam Chair, Bill C-17 is in direct response to the expressed wishes of Yukon first nations, the Yukon government, Yukon residents, and the mining industry that does business in Yukon. If ever there was an example of independent self-determination by northerners, this is it.

  (0855)  

[Translation]

    Thank you, Madam Chair.
    My colleagues and I would be pleased to answer any questions that committee members may have.

[English]

    Thank you very much.
    Thank you very much.
    We will start the question round now. MPs will move through the first phase in seven-minute blocks of time. We'll start with MP Larry Bagnell.
    Welcome, Larry.
    Thank you to the committee for providing me time. It's not often that one bill affects just one riding. I appreciate all the time that members have set aside for this.
    As well, thank you to all the parties and the House leaders for coming to an agreement to finish the debate last night on the second reading of this bill. I really appreciate it.
    I also appreciate all the work done by the department, as you just outlined, in terms of simply removing four clauses because of a bad process. You've done a lot of diplomatic work, and I certainly appreciate that.
    There was an item that came up in debate—when you sift through all the debate, this was the substantive item—that seemed to be a concern. It was related to timelines. My understanding, and perhaps you could elaborate, is that the problem has now been solved, that there are actually timelines local.... We've heard a lot from members in the House. They want local decisions being made in the Yukon, so the timelines are set by policy of the board. To apply to Mr. Saganash's concern, of course, the first nation has a seat on that board, so those timelines wouldn't exist without their approval as well.
    Maybe you could elaborate on the timelines, because I know it's the one item that all committee members are interested in.
    Timelines certainly are a subject of focus for the board. The YESAA board has established business operating procedures to ensure that it conducts business in a timely and efficient way. Those procedures existed prior to S-6 and the practices therein. Where I would say the concern arose was over whether or not that was sufficient.
     First nations and all Yukoners are certainly very proud of the Yukon Environmental and Socio-economic Assessment Act they developed. They believe it to be one of the more modern pieces of environmental assessment legislation in the country. They're very proud of the collaborative approach that led to the creation of that legislation. It's very competitive with other environmental assessment systems in the country. We are confident that the spirit and intent of the umbrella final agreement to co-create the legislation and a co-management board such as YESAA will have the best views of Yukoners in mind, and will continue to establish the business processes necessary to be a competitive and sustainable view on socio-economic matters for the Yukon.
    You mentioned in your speech, and it came up in the House a lot, that Yukon first nations raised serious concerns. However—just to elaborate so the committee knows—it wasn't just first nations. There were two huge public gatherings. They filled a big room, much larger than this room. The majority of those people were not first nations people. It was on the process of these four clauses being put on Yukoners without a giving them a chance to debate them.
     I think the committee will be very delighted to give them its support. The Yukon legislature in the last few weeks passed a unanimous motion with all parties—Conservative, NDP, Liberal, etc.—supporting this.
    Could you explain how this will provide more certainty? That was certainly an issue raised in the House.
    You may recall that Minister Bennett, along with a number of other ministers, had within her mandate letter an explicit commitment to restore confidence in the environmental assessment process. One of the biggest things that can occur to raise questions and create some ambiguity and uncertainty for an environmental assessment process is to have that process questioned and litigated. Having this litigation action hanging out there created some questions about predictability with respect to projects and some uncertainty with respect to the investment climate and whether or not the board would have the ability to undertake the work in an unfettered, independent way.
    With that focus to restore confidence in the environmental assessment process, we officials dispatched fairly quickly, after the mandate letters were posted, to open up discussions with the parties in Yukon to help find an agreed upon solution as quickly as we could.

  (0900)  

    Did you have any discussions with the mining community?
    We certainly did.
    I think it's safe to say that the mining industry was very interested in the original four provisions. We had several discussions with both the local chamber and the Mining Association of Canada and came to a common understanding that, essentially, there was no industry concern over what I would call the “basic plumbing” of the environmental assessment act in Yukon. They were quite pleased with the fact that projects continued to be reviewed in a timely and predictable way. Their concern was wanting that extra assurance that communities were as interested in timely reviews as they were. I believe they were able to have those discussions themselves with the communities and the parties, and I believe that the best situation possible did occur: communities and the mining industry came together and gave each other assurances that they both were of the same view with regard to timely and predictable review processes.
     You have 20 seconds left.
    I'll close by saying I'm glad you raised the fact that with these four clauses gone, the regime is very competitive with other environmental assessment regimes across Canada, so I didn't have to ask that question.
    Thank you very much.
    Thank you.
    Questioning now goes to MP Yurdiga.
    Thank you, Madam Chair, and good morning to our witnesses.
    This is a very contentious issue for some, and not so much for others. The biggest issue that we're looking at right now is the uncertainty. In the Assiniboine, they're doing the social economic review. Is it policy or is it regulations? Can they change at any time? I know that with Bill S-6 there was certainty that there would always be timelines.
    Could they pull out the timelines at their discretion?
    You're raising the question about the predictability of how the board will behave.
    As far as the timelines go.
    Yes. With that, there is a certain set of understandings that were negotiated through the umbrella final agreement, which then led to the legislation to implement the umbrella final agreement with respect to environmental assessments. Within that, there was an understanding that the board itself would have the ability to set certain operating procedures, and that level of independence was seen as being fairly important to the overall architecture of implementing the umbrella final agreement.
    There's a trust factor that goes along with the establishment of the board and the operating principles. The executive committee of the board certainly continues to lead the country in terms of best practices and making sure that they have efficient processes in place to attract investment and to deal with projects in a responsible manner.
    To turn it around, there has been no suggestion that they would change that approach. In fact, it has been quite the opposite. They've been very focused on meeting and being client-oriented.
    What I'm looking at, they're in charge of their destiny in terms of implementing what they feel is necessary to protect the environment moving forward. What you're saying is that it's up to them. They can eliminate the timelines if they decide to. Am I correct?

  (0905)  

    They have the ability to set their own operating procedures, yes.
    So they have the ability to remove all timelines. That creates uncertainty for industry.
    Also, going to the environmental reassessment, I know from before that if there is no significant change, they don't have to start the whole onerous process from scratch to ensure that they can continue to operate. The way I understand it, that is going to be removed. When your permit's up, you'll have to do the whole assessment again. Is that correct?
    Gilles, did you want to...?
    With the old YESAA, when the YESAA board would scope a project and look at the length of time their assessment would be set at, it would be set to the longest authorization that was required. Let's say the longest was a water licence for six years, then the environmental assessment was good for six years. When the project proponent had to come back for a new water licence, then they would have to go back for a new assessment of the project.
    Since Bill S-6, the board has instituted a new scoping policy which takes in all the information that the proponent now provides, and the scoping and the length of the assessment is now much longer and linked to the information that is provided to the proponent, and is no longer linked to the longest authorization.
    What I'm trying to say is that after the term is up, whether or not the permit's up, and no matter what time period it is, they would have to do a reassessment.
    Not anymore. The assessment is for a longer period than that for which an authorization is required now, because of the new policy that the board has instituted, their new scoping policy, which is more in line with every other jurisdiction in Canada.
     Has your department calculated how much time has been saved for the proponents and associated economic benefits, with the reassessment implemented by BillS-6? Do you have an accounting? Do you know exactly how many people didn't have to go through that reassessment process through S-6?
    If I may, your question assumes that Bill S-6 actually brought about time limits and then this takes those time limits away.
    Those time limits actually existed before Bill S-6 and the board was operating in a very competitive and effective manner. This provision with respect to time limits was over and above the time limits that already existed, and that's what first nations and Yukoners felt was redundant and overly prescriptive.
    Can you give me an example? Say, I have a mine, and I've been operating for five years and my permit runs out in that time period. What are my next steps?
    The great thing about YESAA is that you would have gone through the environmental assessment process, and that environmental assessment process would have guaranteed indigenous participation in that process as well as industry and other intervenors into the discussion. They would have concluded that your mine could operate under whatever conditions had been given, and then you would go through a regulatory phase, which would develop the authorizations for land use and for water use, and for other things. Those regulatory instruments are on a different time horizon. When those instruments run out, you return to the authorizing entity for a renewal.
    At that time, they have to determine, in their best opinion, whether there has been a substantial change to your mining operation. If you started off with gold in your mining operation—
    Thank you.
    —and then you found something additional, like silver, on your property, you would need to probably—
    Do the whole thing over again.
    We like gold more than silver, just in terms of value.
    MP Romeo Saganash.

  (0910)  

[Translation]

    I would like to thank the people from Indigenous and Northern Affairs Canada and the Department of Justice for being here this morning.
    I was involved for a number of years in the process, or in the assessment and review system, under Chapter 22 of the James Bay and Northern Quebec Agreement. It is a process that provides time limits for project assessment and review, which are very clear otherwise. I know that after more than 40 years of this system in northern Quebec, the industry has become accustomed to this process, which at first seemed very difficult and complex. However, over time, everyone has become used to it.
    I listened to your presentation carefully.
    First of all, can you explain the process, from the moment it is initiated and how it is initiated, until the decision is made? This is extremely important, both to the industry and to the people who live in these communities, as well as to the indigenous peoples who have rights and interests at stake because of development. Can you explain the process from point A to the end, so that we can understand it?
    I will try to do this briefly, but it is a long process.

[English]

     The key principle is transparency, and so the project proponent is under an obligation to engage communities early in that process in terms of their intent. Typically, the environmental assessment process begins well in advance of the formal process. What has happened in James Bay, which has been a model for the other regimes across the north, has been teaching industry the benefits of early community engagement and developing those relationships, not only to find out traditional knowledge and how it can mitigate potential impacts in communities, but also to convey what the risks associated with the project are that a community really needs to be mindful of.
    The process potentially begins as early as prospecting, and that would be a good business process. As you said in your introduction, it did take some time for industry to become accustomed to that approach to doing business. I would say that, by all accounts, the systems in James Bay and across the north are where the rest of the country should be going with respect to environmental assessment and community participation.
    Once they have done that work, then they make their application, and it usually gets triggered for an environmental review. The board would then invite the proponent to provide an environmental impact statement that would describe all the potential impacts on the environment based on the proponent's assessments. Then that would go through a public process, and communities would have the opportunity to review the adequacy.
    Once the board has collected the information that it believes is necessary,

[Translation]

    and that provincial and federal governments, scientists and anyone else have been asked,

[English]

then they have to determine whether the information is complete, whether or not the risks can be mitigated, and if the risks can be mitigated, to give some indication of how they should be mitigated. Then they submit the report for approval.
    Once that's done, it's up to the decision-makers to accept the environmental assessment report. In the case of Yukon, that has changed over time from the Minister of Indigenous and Northern Affairs to northerners through devolution, but at the end of the day, they make the call on whether the report is accepted and, if it is, then they proceed to the regulatory phase.

  (0915)  

    Thank you. That seems to be very clear, and it's important in any environmental assessment and review process.
    I chaired the James Bay Advisory Committee on the Environment for many years. The advisory committee is the body that oversees the regime in northern Quebec. I rarely found people who could explain the process from the moment it is triggered to the end when the final decision is taken, so thank you for that.
    I just want to know what the remaining concerns are that have been expressed over this process. That is something we need to be mindful of. Are there strong remaining concerns over the process as we speak?
    As we mentioned in the presentation, we signed a memorandum of understanding with the parties that started the litigation, and that memorandum of understanding was pretty important to rekindling the relationship and to demonstrating that the Government of Canada was committed to undertaking another change process that was inclusive, collaborative, and within the spirit and intent of the umbrella final agreement. I think we were able to achieve that, so I don't believe, in this set of circumstances, that there are any other lingering issues with respect to the process. I believe there is now a desire to continue the conversation. There are now discussions with respect to a second MOU with respect to the parties to talk about life beyond.
    Thank you.
    We're going back to MP Larry Bagnell.
     Thank you.
    I think one of the great by-products of this whole process, thanks to everyone, has been the new working relationship between the Mining Association and the first nations, and I congratulate both of those groups, because there are other issues they're going to discuss in the future. Retracting the four may or may not be good, but because they were put in through a bad process, get them over with and get on with discussions of other improvements.
    Mr. Yurdiga asked a good question. Related to timelines, has the board ever withdrawn timelines so that there's a vacuum, so that there were no timelines?
    Actually, no. The board has set up their time limits through their rules. For the information of the members, they go out and actually consult on those before setting those rules. They meet with first nations and with Yukoners so that they set up those rules based on a consultation process. No, there hasn't been a vacuum.
    So not only does the industry have certainty that there are all these timelines, but it has certainty that they've been developed locally by a local person who lives there, or by the Yukon government there, or the first nations, and there's all this consultation so they make more sense, with all deference to bureaucrats in Ottawa, who may not have had a lot of time in the Yukon understanding them. So that's good.
    In case anyone's listening who doesn't understand the legal context, our modern treaties can't even be changed by us as MPs, because they're constitutionally protected. Could you comment on that—and of course, this is borne out in the treaties—and second, on whether it's good to have the first nations onside for development, for industry when they're doing projects, in the Yukon in particular? This bill would do that, would get them back onside, because every square inch, every square metre of the Yukon is actually the traditional territory of some first nation.
    What I would say is that modern treaties can be changed. They certainly can be changed; they just can't be changed unilaterally by any of the parties. It goes into a partnership approach. Therefore, in order to change it, you need to have the same partners agree that those changes need to occur. That's the way they've been designed, so they can be changed.
    With respect to the larger benefits of the umbrella final agreement, one of the larger principles across all the land claims, including James Bay, was guaranteeing indigenous participation in resource management decisions, not only to have a say over how those resources were to be developed but also to benefit from those resources. The agreements are structured in a manner to allow for economic opportunities associated with resource development and economic participation, but also for environmental sustainability and monitoring and the other requirements to ensure that cumulative effects and similar issues are monitored and tracked.
    Yukon first nations are certainly a sophisticated group in the sense that they have business holdings around the world. They are very interested in making sure they have an attractive place to invest. They know that it's a competitive environment out there, and their companies are looking to them to ensure that they have work for their beneficiaries. I believe it's a bit of a virtuous cycle that's been constructed under the umbrella final agreement process and the environmental assessment process to bring the best expressions to sustainable development that I think you could find anywhere.

  (0920)  

    You made a good point that the Yukon first nations have development corporations. They're some of the biggest landowners in the Yukon. They supply the most employees for industry, and they have a lot of business interests related to mining, so they wouldn't want to do anything that would hurt mining or their own business interests. Is that true?
    I would say that's an accurate portrayal. I'd say that first and foremost is who is making the decision. I think that Yukoners have worked really hard with Canada and all first nations to ensure that there was a process in place whereby they would never be left out of the decisions. Having control over those decisions leads them to a place in which self-determination is part and parcel, and therefore the pace of development is something that they have a chance to influence.
     The hard rock mine most likely to go ahead next in the Yukon—there is only one operating now—is Kaminak, which has been bought by someone else. When the committee was in Whitehorse, did they not speak in favour of this change?
    I can't remember. Most people wanted this change. The Chamber of Mines, which represents all these companies, voiced, through personal communication with me as the lead on the bill and through correspondence now, that they are on side with all these amendments. They are fine with them, going back to the rules that were set by the board.
    The Chamber of Mines has things they'd like to see in YESAA, but they want to get this through so there is certainty and they can continue the good relationship they have now with first nations and everyone, and work on other changes in the future.
    That's correct.
    Thank you.
    Now we are in the five-minute round, and we're moving to MP Viersen.
    Thank you, Madam Chair.
    Thank you to our guests for being here today.
    In your opening statement, you talked about the “unqualified support” of the three groups: the Premier of Yukon, the grand chief of the Council of Yukon First Nations, and the president of the Chamber of Mines. When I read the letter, I see that they've given support, but they seem to have an understanding that the current situation will continue, so I wouldn't say that it's unqualified. I would say they anticipate that the current timelines in which decisions are made and the current framework will be continued.
    Would that be a fair assessment, or you would say that “unqualified support” means unqualified support?
    Well, I have to accept it on face value. On face value, we have received letters of support for these changes from the organizations you referenced. The fact that they have also talked about the system continuing reinforces the point that the original four amendments that were the subject of the litigation weren't necessary to bring about greater certainty with respect to timelines; they were over and above.
    I would take from this that they would like to see that continue, which is what we are attempting to do through this change.
    With the timelines, specifically, it is noted in their briefing document that the average was 53 days to get a decision, which is much better than the maximum time of 270 days.
    Within the Yukon, there seems to be an acceptance that this is working well. Beyond the Yukon, though, where we are trying to attract the money to come and invest in the Yukon, wouldn't it provide certainty to have the long term—that 270 days is the maximum you are going to wait for a decision? Where is it stated now that there is a timeline? You are assuring us that this is going to be the case, but there is no assurance stated anywhere.
    You are sort of taking us out of Yukon and trying to figure out whether there is a national standard.
    Mr. Arnold Viersen: Yes.
    Mr. Stephen Van Dine: Certainly, through budget 2012, there was an interest in establishing predictability and timelines with the environmental assessment processes. I am not the lead official who would be best suited to give you the details on that. Our colleagues at the Canadian Environmental Assessment Agency, NEB, and others would be best placed to describe that.
    In the case of the north, we've described how the co-management system was created as part of the land claim process and therefore is a bit different from the regimes in the rest of the country and how they were established. That being said, there is certainly an interest in making sure, from a best practices point of view, that the north doesn't fall behind and shows some leadership where it can.
    As outlined in the procedures and rules for the YESAA board, they are the ones charged with the responsibility to keep an eye on what the competitive and best practice standards are, and they seem to be doing a very good job on that.

  (0925)  

     There was also a clause in the bill—not in this bill but previously—that allows the government to fund processes in which first nations and industry can negotiate accepted terms when it comes to environmental impact and mining on treaty lands. It's my understanding that the government has not dedicated any money to this fund since it began its mandate. Can you confirm this?
    You have 30 seconds.
    We've done so on a case-by-case basis across the north, and my Yukon information is a bit limited right now.
    Okay. It's not dedicated money at this point.
     No.
    Is the first nations capacity funding building capacity? Are you seeing on the ground that there is capacity being built? Essentially, if there isn't funding dedicated to it, how are we seeing the capacity building happening?
    The issue of participant funding, which is the one that I think you're alluding to, remains an outstanding issue that we're being encouraged to look into.
    Thank you.
    The questioning now moves to MP Massé.

[Translation]

    First, I would like to thank the witnesses from the departments who are contributing to the committee's work this morning. It is greatly appreciated.
    I have a question about project reassessment and renewal.
    Bill C-17 repeals section 49.1 of the Yukon Environmental and Socio-economic Assessment Act, so that a new environmental assessment is not required if a project is amended or renewed. However, if there are significant changes to a project, a new environmental assessment could be requested.
    I would like to know who determines whether significant changes have been made to a project. I'd also like to know what criteria would make it possible to determine what is meant by “significant changes”.

  (0930)  

    Thank you for the question.
    As you said, section 49.1 of the act mentions that the body responsible for a project may be exempt from requesting a new assessment, unless there are significant changes to the project. “Significant” is a word that no lawyer in Ottawa and no drafter wants to touch because it's subjective. These issues have been raised by first nations. What does it mean? Who will make the decision?
    Right now, the decision-makers make the decisions and give authorization under the act. They are the ones who decide whether a project has changed and whether it needs to be submitted for a new assessment. One of the things that first nations have raised is that there are no criteria and that it is random.
    Second—
    But who makes decisions like this? You said that the act mentions certain decision-makers.
    The decision-makers are the government or regulatory bodies, like the Yukon Water Board. They are the ones who determine whether significant changes have been made to a project.
    You are going straight to my second question.
    In its brief to the Standing Senate Committee on Energy, the Environment and Natural Resources, the Aishihik First Nation said:

[English]

The exemption to assess existing projects is far too broad and sweeping in its application. This will prevent a wide range of assessments and fails to acknowledge the impact of cumulative effects.
...The concept of only considering whether the project has changed significantly ignores the fact that social, economic, and environmental conditions and/or societal values...may also change significantly....
    How do we answer those concerns on Ajax from first nations, for instance?
    That's exactly one point that was raised when I was working with them and we put in that amendment. One thing that was raised is that it's fine to look at the project, but then they turned around and asked, “What about the environment?” We live in the north. Climate change is affecting the north a lot more than the south, and we're on permafrost, so there are changing climatic conditions.
     The project might not be changing, but the environment might be changing around the project, which means that maybe the project needs to be reassessed because of all those changing environmental and socio-economic conditions. That is one reason why the first nations did not like this provision: it did not address anything else but the changes to the project and did not look at any other factors.
     It's still not clear to me how we address this with the bill. How do we make sure that we have good, sound decisions that take into account what you just said and that we provide additional clarity in this process?
    I'm still not clear about how can we achieve clarity with this change that doesn't apply, or will maybe apply.
    We are repealing section 49(1), so I think that would hopefully alleviate the concern to a degree.
    We will go on to MP Cathy McLeod.
    Thank you to the officials.
    Thank you, Chair.
    As I listened to your testimony and to the debate and read some of the previous work that has been done, there are two elements that sound like the objection was really about process, but in practice, the issues surround time limits on the review process. I think it has been indicated that, in practice, the YESAA sees that as important and is meeting or exceeding standards.
    To say that it shouldn't be enshrined in legislation, I do struggle with that piece. Regarding the piece around exempting a project from reassessment, it sounds like they have also created, in policy through their board, some process around that.
    Again, having it defined in the legislation, other than perhaps if there was objection to the process, I don't see that as really problematic because I think there appears to be an indication by YESAA that we didn't like the process, but that is an important element.
    As I indicated in the past, I could see perhaps some objection to the federal minister providing binding policy direction because I think, given the spirit, that perhaps was a reasonable thing to review and look at.
    Regarding the fourth component, to be frank, I am a little surprised because often the provinces and the first nations communities are there for the opportunity for delegation, to say that the federal government is going to stay out of your way and that we have authority that we can't give away or walk away from. Therefore, a delegation to a more local community should be embraced by Yukoners.
    As I'm hearing these objections to the process, I'm looking at the three of the four elements and thinking those probably should have been embraced in terms of the legislation. I guess I would have seen a need for perhaps a much more modest revision. Those are some comments.
    Regarding decision-making, take me to the end point of the decision-making around a mining process. It has gone through and you've got your environmental assessment done. Who's meeting? Who's making the decision? Can you give me the dynamics of the yes-or-no decision and who's making it?

  (0935)  

    I'm not sure...a yes or no on what, sorry?
    On whether the environmental assessment's process has been done. Is that mine going to get approval to move forward? Who's actually responsible for the decisions coming up?
    For a project, as Mr. Van Dine pointed out, you start off early from prospecting and everything.
    I'm relating it to a mine.
    If you have an environmental assessment done, the board or at different levels.... There are three different levels in Yukon—a designated office, the executive committee, and a formal review, which has not been conducted yet in Yukon—so you have two levels that have been used.
    They produce a report that goes to the decision-making body, be it government or other regulators.
    Do all three parties, the federal government, the Yukon government, and the first nations, sign off?
    No. It goes to whoever is responsible for making decisions for that type of project. There are, like I've said, consultations all the way up leading to the environmental assessment, where first nations and everybody is consulted and Yukoners in general.
     Let's go back to my specific mine example. The environmental assessment process has been done. Like any environmental assessment process, it says here are the pros, here are the cons, and we recommend x. Who's signing off on it?
    Ten seconds.
    The territorial government, depending on which ministry is directly implicated with the project, whether it's a land ministry, a mining ministry, or environmental.
    Unfortunately, I'm not going to get into my next question, which is on free, prior, and informed consent issues, and I'm sorry about that.
    That question could come from MP Bossio, if he so chooses.
    No, I want to follow up on what my colleague, Rémi Massé, was trying to get at. That is, by repealing 49(1), how will these extraneous aspects—the ones that exist outside the project itself—be dealt with? How will they now be dealt with under Bill C-17?

  (0940)  

    I was just going to say, the act itself has a whole list of factors that the board must take into consideration in making its decisions when it does environmental assessments. They look at the cumulative effects of a project. They look at the environmental changes. They'll look at all kinds of things—and they're all listed in the act—that they must take into consideration when doing their environmental assessment of a project.
    Then these are very clearly defined and laid out on a step-by-step basis, that this is what we're going to do in this situation. You actually eliminate the uncertainty of trying to define “significant”.
    Correct.
    You're actually adding more certainty to the project for the project managers and the mining companies themselves in dealing with an environmental assessment around this particular issue. Even if you look at Bill S-6 itself and those four particular components of Bill S-6, do we not find that, in the long run, instead of trying to accomplish what they were originally trying to accomplish—that is, more certainty around a project, around timelines, around ministerial determination, around being able to assign decision-making powers, etc.—you actually in the end created less certainty for the proponents because you ended up in litigation, you ended up in first nations and non-first-nations communities—settler communities—protesting and fighting these legislative procedures?
    I would say that the litigation and the controversy associated with the litigation was certainly a variable in questioning the confidence in the environmental assessment system. That the environmental assessment system was somehow flawed and needed to be corrected was something that Yukoners didn't believe to be the case. The litigation spoke to that directly. Bill C-17 and the process that led to correcting Bill S-6 in these areas was a process that all the parties would agree was the way to go about undertaking change with respect to the environmental assessment legislation.
    To your point, those four areas were creating doubt and questions, and required more action on behalf of government. Industry in the end realized there was actually more uncertainty with respect to how those powers were going to be exercised, compared to the existing process, which was working pretty well.
    It was taking them far outside the timelines they originally thought they were going to have to deal with in the first place. Right?
    Yes.
    Ever since the James Bay agreement, are we not seeing worldwide now that mining companies are starting to recognize that they actually get much further ahead through early-and-often community engagement to try to set the parameters beforehand? In the end, they recognize that it mitigates their own business risk—not just the risk to the environment and to the community—because, once again, they have more certainty in moving forward on these projects.
     I have been in this business for over 20 years, and I've seen the creation of a new diamond industry in Canada and regulatory systems being tested by multinational corporations that have come to invest in Canada, in the north in particular. Their level of sophistication in how they are owning due process and community participation and community inclusion has been evident over the last 20 years.
    From time to time I work with the Mining Association of Canada, representing the interests of their organization. They have produced community consultation guidelines. The Prospectors & Developers Association of Canada has also taken on business practices, and they have led the world in good business practices.
    Thank you.
    That is going to conclude this section of our panel. I appreciate your participation.
    That was fast.
    Thank you very much. You have done your duty. I appreciate that you came forward.
    We are now going to move on to our second panel, which includes people who are calling in from the Yukon.
    For the information of the committee, it's my understanding that the bells will ring at 10:10 and we will have a 30-minute period to get to the House for the vote. I believe we have consulted with the Conservatives. I'm going to suggest it would be acceptable to hear from our guests who want to present, and we continue to work until perhaps a quarter after and then we must end the session to go to the House. Is there agreement? Okay.
    Do we have anyone on the phone with us at this time? I believe we have two individuals. We are sensitive to the fact that you are three hours earlier, so we are very grateful that you got up so early to join us. Here in Ottawa, we are occupying land that is unceded territory of the Algonquin people, and we are talking about your environmental regulatory process known as YESAA.
    Before us is Bill C-17 and we're very pleased that you're able to join us. From Champagne and Aishihik First Nations we have Chief Smith and Roger Brown.
    You have 10 minutes and you can choose to split it in any way.
    Then we will see if the Little Salmon Carmacks First Nation is joining us. I don't believe they are on the line yet, but if we do have them, they too will have 10 minutes.
    Chief Smith.

  (0945)  

    I have a really quick note on the Little Salmon/Carmacks First Nation. We've received word that there may have been some emergency issue that happened in Carmacks last night, so that may preclude the chief and his associates from joining the meeting this morning.
    First of all, good morning and thank you, Madam Chair, and all committee members, for taking the time to welcome our presentation.
    [Witness speaks in Southern Tutchone]
    I just gave my traditional name, Kaaxnox. My name is Steve Smith, and I am the chief of the Champagne and Aishihik First Nations. I am a member of the Killer Whale Clan K'etlènmbet people, and I sleep at Takhini Chu, which is the traditional territory of Champagne and Aishihik First Nations.
    I just wanted to open with the fact that my father Elijah Smith was chief of the Yukon Native Brotherhood in 1973 when he made the presentation, “Together Today for our Children Tomorrow”, to then prime minister Pierre Elliott Trudeau. It was in the spirit of righting some historic wrongs, but also putting in place a process for which Yukon first nations people would have an ongoing say in the development of the territory that we live in and have occupied since time immemorial.
    In 1993 Champagne and Aishihik, along with other Yukon first nations, agreed with Yukon and Canada to conclude the umbrella final agreement. This agreement paved the way for 11 of the 14 Yukon first nations to conclude our individual modern treaties. They are modern treaties protected by section 35 of the Constitution, and they are vehicles for reconciliation between Yukon first nations, Canada, and its citizens.
     In addition, we negotiated self-government agreements pursuant to chapter 24 of our final agreement, creating significant first nations jurisdiction, law-making authorities, and financial arrangements. The final agreements looked backwards to address historic grievances, and looked forward towards ever more co-operative and collaborative relationships between Yukon first nations, the Yukon, and the federal government. The final agreements create a new constitutional arrangement in the Yukon.
    To reach our final agreements, we made a giant trade-off. In good faith, we abandoned our claims to aboriginal title to over 90% of our traditional territory, in exchange for a promise to secure a range of treaty rights and interests, including the assurance we would have a meaningful role in the management of settlement and non-settlement land, water, and other resources in our traditional territories.
    That was the ultimate goal of the 1973 agreements document. Chapter 12, “Development Assessment”, is an essential part of that exchange. It defines the framework for a custom environmental assessment regime that will work in the Yukon. Chapter 12 set forth that the parties would develop the necessary legislation consistent with the objectives set out in that chapter, among other matters. These objectives provided that the development assessment regime:
1) recognizes and enhances, to the extent practicable, the traditional economy of Yukon Indian People and their special relationship with the wilderness Environment;
2) provides for guaranteed participation by Yukon Indian People and utilizes the knowledge and experience of Yukon Indian People...;
3) protects and promotes the well-being of Yukon Indian People and of their communities...;
    Between 1997 and 2003, the Council of Yukon First Nations, Canada, and the Yukon government established a joint legislative drafting committee with a chief negotiator and legal and technical advisers for each party. This process resulted in the development of the Yukon Environmental and Socio-economic Assessment Act, and continued as a tripartite process through the development of the “accessible activities” regulations, which brought the regime into effect by December 2005.

  (0950)  

     Pursuant to chapter 12 of the umbrella final agreement, the parties undertook a comprehensive review of YESAA, known as the five-year review. That process took three and a half years. In that review, we managed to reach an agreement on the majority of the 76 recommendations. On two of the recommendations we agreed to disagree and three we consider outstanding matters. These outstanding matters relate to: one, first nations' role in the decision phase of project assessment; two, adequacy of funding for effective first nations participation; and three, future reviews of the YESAA regime.
    In the process through to the conclusion of our final agreement to the development of the act and regulations and conducting the five-year review, we acted in good faith with our treaty partners in the spirit of ongoing reconciliation to move our relationship forward. Unfortunately, the Government of Canada acted unilaterally, imposing several changes to YESAA that have no support from any Yukon first nation. We did everything possible to defend our treaties and work in good faith with government. Regrettably, the federal government breached its constitutional duty to uphold the honour of the crown when it proceeded with the amendments to YESAA relating to the new matters that were not discussed or raised during the five-year review and were only added very late in the consultation process. These amendments were passed in June 2015. After considering our options and working with our first nations partners, we filed a court action in October 2015.
    During the last federal election, the Liberal, New Democratic, and Green parties of Canada all made campaign promises to repeal the offending provisions brought about by Bill S-6. Upon discussions with the new federal government, we started moving forward on reversing these changes and calling upon the minister and her cabinet to live up to that promise.
    In March 2016, our chiefs, the federal minister, and the Yukon premier all signed a memorandum of understanding to repeal those revisions. As you know, Bill C-17 is a reflection of that very commitment. It was this action that helped defuse some of the contention and allowed us to enter into an abeyance agreement on the promise that Canada move swiftly to repeal those provisions and get the parties back on track, bringing stability and certainty back to our territory, and to enable and promote sustainable development.
    We are pleased to see that we are working with federal and territorial governments on a second memorandum of understanding to start dealing with some of the outstanding matters dating back to the five-year review.
    We strongly believe this bill reflects a necessary correction for a past action that was unconstitutional and must be addressed. We are also pleased to see that the federal government is addressing the issue of our financial resources to implement our obligations under chapter 12 through our financial transfer agreement.
    In closing, I would like to simply say the federal government has 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. Implementation must be done according to the spirit and intent of our treaties and must be done so in good faith and always maintain the honour of the crown.
    I want to highlight the spirit and intent of our treaties. Many court cases in Canada have always spoken to the spirit and intent. One of the things that we hold dearly within our own final agreement is to ensure that we carry on the spirit and intent of these agreements. Going back to my first comment about my father, Chief Elijah Smith, the intent was not to hold back development. The intent was not to hold back further ability for Canadian citizens to reach their goals and dreams, but was to ensure that Yukon first nations had a rightful place in the development of the Yukon.
     Gwänaschis. Thank you for the opportunity to speak to you today.

  (0955)  

    Thank you. I appreciate your comments and we're going to now move into a series of question and answers.
    We are limited in our time, so we have approximately 15 minutes maximum that is available for questioning. There is agreement that we are going to do five-minute question rounds, beginning with the Liberals, then Conservatives, and ending with the NDP.
    I'm going to open up the first round of questions to MP Mike Bossio.
     Thank you, Chair.
    Thank you for taking the time to join us today.
    We just had INAC in and were asking a number of questions around how is this going to change the relationship between first nations, mining sectors, the territory, and the government, etc. Do you feel that the changes that are going to be made now within Bill C-17 will satisfy exactly what you were just talking about, the responsibility and the duty of the crown to provide the opportunity for first nations to fully participate in governing the environment and financial management, etc. within the Yukon? Is this going to bring you a step further to achieving those ultimate goals?
    Yes, they will. The amendments will align more and bring YESAA into where we were at the conclusion of the five-year review. At the conclusion of the five-year review, these were amendments that were brought in very eleventh hour and were brought in for just a short two-hour window. There were no copies allowed and no electronic copies, and so it sort of threw off everything.
    I think that with Yukon first nations, we had some issues with regard to those four amendments because they spoke to removing Yukon first nations as a key part of any type of review and of any major project. We feel that removing these four provisions in Bill C-17 would closer align to the ultimate objective of YESAA.

  (1000)  

    Are you anti-development?
    No, we're not anti-development.
    Do you feel that the mining sector sees you as anti-development?
    No, I don't feel that. In any of our workings, for Champagne and Aishihik in particular, we are negotiating in the final stages, and we're getting ready to initial an exploration benefits agreement with a mining company within our own traditional territory.
    Anti-development I think is something that is added on to Yukon first nations incorrectly because Yukon first nations are not about anti-development; we're about sustainable development. We're about developing our traditional territory to the alignment of our world view, and that is quite different from a statement of being anti-development. You asked about the mining community within the Yukon and, of course, that worked within Yukon.
    Do you not feel that this will add more certainty around timelines and being able to deliver on those timelines, the fact that you have buy-in from the community of first nations?
     Sorry, can you repeat that?
    The fact that you're now engaged in the process and helping to define the timelines, do you not feel that will add more certainty in being able to achieve those timelines because you have been a part of the process in helping to define the parameters around those timelines?
    Yes, we do. We feel that the way the timelines have been written within YESAA, they are already being achieved. What happens in the timelines is usually a delay getting the proper information, so whenever assessment comes, they effect it, and then they have to re-effect it whenever new information comes in. There's the delay that happens. I think that, whenever we have mining communities supportive of having the process set up, which is to enable them to effect their project in the most efficient manner—
     Thank you very much for your answer. That's great.
    Sorry, but the time has run out for MP Bossio. We'll move to MP Yurdiga.
    Thank you, Madam Chair; and thank you to Chief Steve Smith for joining us this morning.
    Going through the process from Bill S-6 to Bill C-17, it seems that the most contentious issue is the time limits on the review process. Even in Bill C-17, with time limits not being part of the legislation, the time limits still exist within the Yukon Environmental and Socio-economic Assessment Board.
     I don't know why that's a problem in that, in Bill S-6, it was there just as a stopgap measure. Basically, all it said was, yes, we support timelines. Now Bill C-17 is taking that out, but time limits are still there. Am I correct in that analogy?
    Can I defer this to Roger Brown, our technician?
    Absolutely.
     The board has independently developed its own rules and bylaws, including time limits for executive committee assessments and designated office assessments.
    I think the problem with the provisions brought about by Bill S-6 was that it imposed a maximum timeline. In addition to that, if there were any extensions requested, those timelines required the approval of the federal minister, and for any subsequent extensions, cabinet approval. That's one problem in terms of the shift in the balance of power and taking away independence of the board. We support the independence of the board in the original intent of the agreement.
    In addition, though, for complex projects that might be pushing those maximum timelines, Chief Smith definitely spoke to the adequacy of information, how that can eat up time at the beginning of the assessment and limit the amount of time that first nations can participate. We need to be careful in terms of balancing the assurances that first nations can have meaningful, well-informed responses to projects and not be fettered by legislated maximum timelines. Keeping it at the board level for the rules and bylaws allows a degree of flexibility and non-imposition of legislative timelines, which in our view will only lead to considerable conflict if they're pushed.

  (1005)  

    Thank you.
    The process of coming together with industry to work on an environmental assessment was outlined in Bill S-6. The environmental assessment is a large undertaking and is very costly. Has the government delivered on that commitment in the last two years and delivered capacity funding for a working group?
     Not to Champagne and Aishihik.
    Roger.
    We do receive capacity funding to the extent of funding through the fiscal transfer agreements, and those are currently under negotiation. We have been making progress on negotiation of an MOU for resetting our relationship with Canada, the Yukon, and other first nations. That agreement does recognize the need to revisit the adequacy of funding for first nations participation. We are pleased to say that we're very close, that the parties are agreeing on the recommended MOU to move forward to our principles.
    Thank you.
    The questioning now moves to MP Saganash.
    Thank you, Madame Chair.
    Good morning to both of you, and thank you for your testimony.
    One thing we didn't have the opportunity to ask the people from the department who appeared before you is about the issues around free, prior, and informed consent, the concept of consent in the face of development projects on traditional territories.
     I was reminded of the Haida Nation case in 2004, where the Supreme Court talked about the wide spectrum of meaningful consultation in both land claim settlement areas and non-settlement areas. That principle, of full consent of indigenous peoples before development can happen, applied in both settlement and non-settlement areas.
     I'd like your opinion on that. Given this process now in place through this agreement, and now this legislation, where do you see that fundamental right fitting into this entire discussion? In your perspective, once you've gone through the environmental assessment and review process, where does the whole concept of free, prior, and informed consent fit?
     From a high level, I break it up into two areas. One is that through our land claim agreement, we initialled off on areas of mutual negotiation and mutual authority. YESAA is one of those areas in which we, as a partner within the whole environmental assessment process, feel that prior consent is taken care of.
    The second aspect is the actual implementation of YESAA. This goes back to why we felt that whenever projects come before YESAA, a panel made up of all three parties will review the project and allow for the informed consent of Yukon first nations people through the YESAA board. So when these four provisions were implemented, we felt strongly that they removed key aspects of our ability to have Yukon first nations have meaningful input into the project itself and our concerns surrounding the project with regard to the environmental impacts and the socio-economic impacts. By having our land claim agreement, we foresaw the need to actually have input and the ability to imbue our world view and our view of the project, with regard to how it affects Yukon first nations people, into the process. We are always going from the fact that in good faith we said that we would give up 90% of our aboriginal title to our traditional territory, but we wanted to ensure that the process allowed for us to have input into how these projects affect our traditional territory, our environment as a whole.

  (1010)  

    If I understand correctly—I want to be clear on this—once you have accepted to participate in the environmental assessment and review process, you've essentially abandoned your right to withhold consent to a project. Is that correct?
    No, I think with all processes, there are avenues through which we can address grievances. I think that holds true for both the federal and territorial governments as well, and Yukon first nations always have the right to further explore and address issues that are a major grievance. I'm talking about the process for the vast majority of projects that are under review. As I said earlier on, we are not anti-development; we're pro-sustainable development. We want development to occur because we want to have the opportunity to participate in the economy of Canada today. So—
    Thank you.
    I am so sorry to cut you off.
    That's okay. It's no problem.
    It's one of the negative parts of my job, but committee business needs to wrap up.
    We offer our sincere thanks for participating and we wish you all the best. We must close this session at this time.
    For members here, is it the will of the committee to encourage presenters on Thursday to call in rather than come in person in case there may be a change in the House?
    Cathy.
    Absolutely, Madam Chair. I think our motion was that if the House had risen, we wouldn't be meeting.
    Maybe we should start a little later though for those who are, once again, three hours behind.
    If we do not adjourn then we'll make it a teleconference call and start a little bit later. I hear the wishes of the committee.
     Thank you.
    The meeting is adjourned.
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