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 , 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
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.
Thank you, Madam Chair and honourable members, for the opportunity to appear before you to offer assistance in your subject-matter study of Bill , 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.
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
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.
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.
Let's examine in detail how the government came to introduce Bill . In order to resolve these issues stemming from the coming into force of the Yukon and Nunavut Regulatory Improvement Act, formerly Bill , 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 , 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 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.
Thank you, Madam Chair.
My colleagues and I would be pleased to answer any questions that committee members may have.
Thank you very much.
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.
Thank you, Madam Chair.
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.
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,
and that provincial and federal governments, scientists and anyone else have been asked,
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 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.
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.
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?
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 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.
Thank you, Madam Chair.
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.
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 . Upon discussions with the new federal government, we started moving forward on reversing these changes and calling upon the and her cabinet to live up to that promise.
In March 2016, our chiefs, the federal , and the Yukon premier all signed a memorandum of understanding to repeal those revisions. As you know, Bill 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.
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?