Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 16 - Evidence - October 7, 2014
OTTAWA, Tuesday, October 7, 2014
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 6, An Act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Surface Rights Tribunal Act, met this day at 5:01 p.m. to give consideration to the bill.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Richard Neufeld. I represent the province of British Columbia in the Senate, and I am chair of this committee.
I would like to welcome honourable senators, any members of the public with us in the room and viewers across the country who are watching on television. As a reminder to those watching, these committee hearings are open to the public and available via webcast on the sen.parl.gc.ca website. You may also find more information of the schedule of witnesses on the website at ''Senate Committees.''
I would like to now introduce the deputy chair of the committee, Senator Paul Massicotte from Quebec. I will now ask senators around the room to introduce themselves.
Senator MacDonald: Michael MacDonald from Nova Scotia.
Senator Mitchell: Grant Mitchell, Alberta.
[Translation]
Senator Ringuette: Pierrette Ringuette from New Brunswick.
[English]
Senator Wallace: John Wallace, New Brunswick.
Senator Black: Douglas Black, Alberta.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from the province of Quebec.
[English]
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Frum: Linda Frum, Ontario.
The Chair: I would also like to introduce our staff, beginning with Lynn Gordon, our clerk, and our two Library of Parliament analysts, Sam Banks and Marc LeBlanc.
Today, we are continuing our examination of Bill S-6, An Act to amend the Yukon Environmental and Socio- economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act, which was introduced in the Senate and received first reading on June 3, 2014.
In the first portion of our meeting this evening, we are welcoming back officials involved with the bill. From Aboriginal Affairs and Northern Development Canada: Tara Shannon, Director, Resource Policy and Programs, Northern Affairs; and Janice Traynor, Senior Analyst, Environmental Impact Review Board, Northern Affairs. From the Department of Justice, we have Tom Isaac, Senior Counsel.
Thank you very much for being with us this evening. I believe you have some opening remarks, and some of the senators will have questions. The floor is yours.
Tara Shannon, Director, Resource Policy and Programs, Northern Affairs, Aboriginal Affairs and Northern Development Canada: Thank you, Mr. Chairman and honourable senators, for the opportunity to appear here once again to offer assistance in your review of Bill S-6.
I would like to take this opportunity to clarify some concerns from other witnesses who were heard by the committee. With respect to YESAA, I would like to address consultation, delegation of powers, policy direction and exemption from reassessment. I would also like to briefly clarify two points on Part 2 of the bill respecting the Nunavut Waters and Nunavut Surface Rights Tribunal Act: The determination of end of project for the purpose of a water licence, and time limit extensions.
It is the department's position that consultations on Bill S-6 have fulfilled any legal obligations on Canada to consult. Yukon First Nations, the Yukon Government and YESA Board received several iterations of draft proposals and had opportunities to provide both written and oral comments. We considered all the comments and, where appropriate, incorporated changes, then provided written responses explaining our position on the issues raised.
While there were some areas of disagreement, this does not mean that consultation was inadequate. It is our view that we met our duty to consult, and we accommodated where appropriate.
In December 2012, after the completion of the five-year review, the passage of amendments to CEAA 2012, and announcement of the Action Plan to Improve Northern Regulatory Regimes, the Yukon government suggested additional amendments to YESAA to ensure consistency across regimes, including policy direction and the authority to delegate powers to the territorial minister. While these amendments were not discussed as part of the five-year review, Aboriginal Affairs and Northern Development Canada did consult Yukon First Nations on them in 2013 and 2014.
The committee heard from Yukon First Nations that allowing the minister to issue policy direction to YESA Board is counter to the tripartite nature and spirit of the Umbrella Final Agreement, upon which YESAA is based. While the legislation would authorize the minister to provide policy direction after consultation with the board, this direction will not undermine its independence, as policy direction cannot instruct the board regarding any active or completed reviews.
I would like to stress that allowing the minister to provide policy direction would not take a power away from the board. The board will remain able to carry out its mandated function; namely, as an advisory body that conducts reviews and makes recommendations to decision bodies, which may then accept, reject or vary the board's recommendations.
Any issued policy direction must be consistent with both the legislation and with Yukon land claims agreements. As Minister Valcourt emphasized in his testimony to the committee, section 4 of the act provides:
In the event of an inconsistency or conflict between a final agreement and this Act, the agreement prevails to the extent of the inconsistency or conflict.
For some context on the application of policy direction to date, this power has been exercised four times under the Mackenzie Valley Resource Management Act in the Northwest Territories. In each case, policy direction was given to the Mackenzie Valley Land and Water Board to communicate expectations based on interim measures agreements with First Nations. As demonstrated in the Northwest Territories, policy direction can provide clarity for boards, government and Aboriginal groups.
With respect to the issue of delegation, the proposed amendments to YESAA would allow the minister to delegate any or all of his powers, duties or functions to the territorial minister. Delegation would not change the co- management framework set out in the Umbrella Final Agreement. It is also consistent with the goals of devolution, moving decision-making powers closer to home.
Again, I would note that any delegation must be consistent with existing land claims agreements, and the federal minister must provide written notification to First Nations. If, under common law, a proposed delegation would require consultation with Aboriginal groups, then consultation would, of course, occur. As noted by the minister during his appearance, there are no delegations contemplated at this time. I would add that the possible areas for delegation are quite limited and during consultations we were clear that policy direction and board appointments would not be delegated at this time.
Some concerns were also raised with respect to clause 14 that creates new subsection 49.1(1), the provision that projects only undergo reassessment for a renewal or amendment if, in the opinion of the decision body, the original project has significantly changed. It seems that some perceived this as a temporal scoping issue, which can be addressed by the YESA Board in its policies. This amendment is not directly related to the board's temporal scoping practices, though it is consistent with the idea that the board could scope a project to exceed the duration of an authorization, in appropriate circumstances.
This new section was added because it is good environmental assessment practice. Environmental assessments are meant to occur during the development phase of a project so that unless the originally assessed plans significantly change, there is no reason to require another assessment.
This is consistent with the Umbrella Final Agreement, and I would point to paragraph 12.4.1.1, in particular, which states that ''Projects and significant changes to Existing Projects,'' are subject to assessment.
Finally, similar provisions exist in other environmental assessment legislation, such as the Nunavut Planning and Project Assessment Act, which I believe this committee is familiar with, and Regulations under the Canadian Environmental Assessment Act, 2012.
On Part 2 of the bill, as part of the change to allow the Nunavut Water Board to issue, at its discretion, life-of- project licences for type A, or large water licences, questions were raised as to how the end of a project would be determined. To clarify, the board would make this determination on a project-by-project basis. In cooperation with its co-management partners, the board could develop criteria that it would apply in making this determination.
I would also like to briefly clarify the issue of time limit extensions as there appears to have been a misunderstanding of what the bill proposes. The Northwest Territories and Nunavut Chamber of Mines suggested that the amendments should provide the Nunavut Water Board the authority to issue 60-day extensions to the term of a water licence. However, what Bill S-6 actually contains is a provision to allow the minister to extend the time limit for the board's review of a licence application, not to extend the term of the licence itself. This provision does not change the authority for granting extensions to terms of water licences currently under the act.
Thank you, Mr. Chair. My colleagues and I would be pleased to answer any questions committee members may have.
The Chair: Thank you very much for the enlightening notes. Going to questions, I'll ask the Deputy Chair of the committee to begin.
Senator Massicotte: Thank you for being with us again this afternoon. It's much appreciated.
Your presentation was important because, as you know, some First Nations believe that the bill would be contrary to their treaty rights and an affront to their existing agreement. Your understanding of section 4 of the YESAA makes it clear in your mind to say that all amendments being proposed are always subject to section 4, which makes it clear that if there's any conflict between treaty rights and the bill, even as amended, the treaty rights always dominate from a legal principle; do I understand correctly?
Ms. Shannon: Yes, that is correct. That is our understanding.
Senator Massicotte: That's very important for them. As you know, they were threatening legal action if we ever enacted the bill.
Having said that, the other point they made, and they were disappointed, was that in their mind they should be consulted and accommodated. They said two things, which were confirmed by other witnesses, about two amendments in the bill. One was the power to delegate and one was the authority of the minister to issue policy directions. Those were not part of the deliberations of the special committee. And in the First Nations' mind, this was a heavy-handed surprise by the minister in creating such.
Do you want to explain why you chose that option and why you bring it up post-process?
Ms. Shannon: Sure. As the committee is aware, the amendments in the bill derive really from two interrelated processes. First, the five-year review of the act, which the Government of Canada, the Government of Yukon and Yukon First Nations undertook. Second, subsequent to that review, the Government of Canada was also pursuing the Action Plan to Improve Northern Regulatory Regimes to seek alignment with regulatory legislation across the country, alignment of northern regulatory regimes with amendments made south of 60 through the CEAA 2012.
As I noted in my remarks, following the amendments to the CEAA 2012 and the announcement of an expanded action plan, the Yukon government submitted proposals to us, which included the notion of policy direction and delegation of authority.
We looked at those, and in our view the proposals were consistent with what you would see in other northern regulatory legislation. The Mackenzie Valley Resource Management Act, for example, has the authority for policy direction to all boards. It also has a provision allowing the delegation of authority from the federal minister to a territorial minister. We introduced those amendments through the consultation process on the amendments to the bill. It was not part of the five-year review, but it was part of what we consider to be substantive consultations on proposed amendments to the bill subsequent to the conclusion of the five-year review and the announcement of the action plan.
Senator Massicotte: I want to be clear. After five years of study of how to amend the existing bill, maybe with good reason, these two amendments were proposed. Out of simple courtesy, did you call the First Nations up and say, ''Post- mortem we discussed five years but we want two other things introduced into the bill. And please be advised we intend to do so''? Was that done and what was their response?
Ms. Shannon: We put forward as a proposal in terms of a draft bill that included clauses addressing both delegation and policy direction to the First Nations. We had a working group with the First Nations. And the Yukon government was also a participant on that working group. We put those forward for comment and consideration. In response, the First Nations were not in favour of either amendment. However, at no time was there any explanation as to how the proposed amendments were inconsistent with their Aboriginal or treaty rights.
Senator Massicotte: On the issue of delegation, in your presentation you made it clear that there's no intention at this point to delegate the board appointment. ''At this point'' can mean one day, one hour, one month, or one year. It still means you have the authority to do so once the bill is passed. How do you see the bill working if you delegated your authority on that board to the local government? How do you see that board functioning, given that the First Nations is a little bit less than a majority? Could you describe what the resulting board membership would be? How could that affect and why do you not think the First Nations' concern would be valid if ever you did so?
Ms. Shannon: Our response to that would be that it wouldn't change the composition of the board in terms of the fact that Yukon First Nations would continue to have the right to nominate four members to the board. The Government of Canada and the Government of Yukon would have a right with respect to three board members.
Senator Massicotte: Was it a total of seven?
Ms. Shannon: Yes.
Senator Massicotte: I thought the First Nations had a little less than a majority. Are you saying they have the majority? I thought it was three, not four.
Ms. Shannon: Sorry, I was backwards. The First Nations would retain their three nominations, and the Yukon government would have one and the Government of Canada would have two and the chair.
Senator Massicotte: Repeat that, please. Isn't it three territorial, one federal, three First Nations?
Tom Isaac, Senior Counsel, Department of Justice Canada: That's what it is.
Ms. Shannon: That's correct.
Senator Massicotte: Therefore, the reason for the federal government is basically as the arbiter. If you delegate the board membership to the territorial government, it means four territorial, three First Nations. One could easily surmise why they have difficulty with that.
Ms. Shannon: The delegation would be the authority to nominate and appoint. Canada would retain a nomination or appointment to the board.
Senator Massicotte: I appreciate that. But if they so delegate that board membership, it could be for 5 or 20 years. The conclusion is that the territory would have four members and the First Nations would have three. I can see why that's problematic to the First Nations.
Mr. Isaac: Mr. Chair, to add to what my colleague was saying, the land claim agreement requires that four members come from government, essentially, and three members from First Nations. That balance in the land claim agreement wouldn't change. The composition of the government side of that would change if we delegated the power to appoint and the power to nominate to a territorial government. The balance between government and First Nations doesn't change.
Senator Massicotte: As opposed to being two governments and First Nations. I suspect they will have a unified interest. Let me allow other people to ask questions. I'll come back if we have time.
Senator Seidman: Just a supplementary question with regard to delegation of powers, if I might. I wanted some clarification because, Ms. Shannon, you said the possible areas for delegation are quite limited. I'd like a bit of clarification about what types of powers could be delegated and under what circumstances.
Ms. Shannon: It's only those powers that rest with the federal minister, and the federal minister in this case means the Minister of Aboriginal Affairs and Northern Development Canada. It doesn't, for example, include delegation of authorities that rest with other ministers, say the Minister of the Environment.
The list of powers, duties and functions that could be delegated are those with respect to the appointment of board members and the ability to give policy direction — these are all just the authorities of the federal minister under the act — the authority to extend time limits except when it's the Governor-in-Council, as that's cabinet and that could not be delegated; authorities with respect to environmental assessment, so the authority to refer an accepted activity or a new or existing project for assessment in limited cases, and that would be where the minister is a decision body; the authority to renew or amend an authorization without a new assessment, where there's no significant change, and that's linked to new clause 49.1; and authority to request or consent to the review of a plan or studies or research that are conducted by the executive committee.
Then there are two authorities that rest with our minister with respect to joint panels and transboundary projects, and that's the authority to approve an agreement to coordinate a review of a transboundary project and the authority to request the review of an activity outside Yukon which may have significant adverse effects on Yukon.
Senator Black: Mr. Isaac, I have a question for you. It's not directly related to the testimony of Ms. Shannon. I am interested in your view as to the effects of any litigation that any of the Aboriginal bands would take, as they have promised here in testimony. What effect would it have on these amendments, if passed, in your view?
Mr. Isaac: My view is that the bill, as it's being presented, is consistent with law and that any challenge would be unsuccessful. I do not think it would have any effect on this legislation as it's going through.
Senator Black: You would not expect any injunctive applications or, if you did, you would not expect them to be successful?
Mr. Isaac: That's right. I can't speculate on what they will bring, but it's our view that the bill is consistent with law and that any application to challenge it would be unsuccessful.
Senator Mitchell: Thanks for the presentation. It's really well argued, actually. If you're not a lawyer, you should be. However, I'd like to get more precision in your argument about the minister's delegation or ability to retain policy direction. My first question is: If the minister didn't retain it, it would go to the minister from the Northwest Territories in any event, would it not? Somebody is going to have that policy direction power, or if it weren't provided for in this bill, the federal minister would have it anyway. Does it not just reiterate what is exactly the case at this moment, or reinforce it?
Ms. Shannon: Currently there is no policy direction in YESAA, so this is introducing policy direction and the ability of the minister to give binding policy direction to the YESA Board. It is consistent, as I noted, with the policy direction provisions that you find in the Northwest Territories. You are correct that if it's not delegated it continues to rest with our minister, and it's only exercised should he actually issue binding policy direction to the board. I'd like to note as well that before issuing any policy direction, the act would require the minister to consult with the YESA Board.
Senator Mitchell: You listed a number of categories of authorities that relate to policy delegation, and that was very helpful. You mentioned that in fact it's been done I think four times in the case of the Mackenzie Valley Resource Management Act. Can you give us a specific example of the kind of policy direction that the minister exercised rather than just a category; is it possible to do that?
Ms. Shannon: It is. I have three examples in front of me.
He issued policy direction requiring that notification be provided to both the Manitoba and Saskatchewan Dene Suline regarding licences and permits in a given region. Those are groups that have transboundary claims into the Northwest Territories. That direction was really to say you must take into account the asserted Aboriginal rights of these groups.
He also provided instruction to the board regarding its obligations under the Deh Cho First Nations Interim Measures Agreement. Again, this is an Aboriginal group that does not have a settled land claim, so it was a clarification of consultation and related obligations as a result of an interim measures agreement.
Likewise, there was policy direction issued to ensure that the board carries out its functions and responsibilities in cooperation with the Akaitcho Dene First Nation, which is also an unsettled First Nation in the Northwest Territories.
I had referred to four instances, and I want to clarify that in the instance of the Manitoba and Saskatchewan Dene Suline, because they were two separate transboundary groups, there would have been two separate policy directions issued.
Senator Mitchell: In fact, in each of those three or four, the minister's policy direction actually defended Aboriginal rights?
Ms. Shannon: That's correct, yes.
Senator Mitchell: You may have touched on this, too, and I may have missed it. If I did, please forgive me. The review generated 76 recommendations, and 73 are accommodated, as I understand it. One way or another, three aren't, and they're listed. You probably have it at your fingertips.
Ms. Shannon: I do.
Senator Mitchell: Could you give us a quick rundown of where those three are and the issues involved in them so we get some sense of what the consequence of their exclusion is?
Ms. Shannon: Sure. There was a recommendation that the parties should amend YESAA to have a statutory requirement for ongoing five-year reviews. It was the Government of Canada's position at the time that there should be no requirement for an ongoing statutory review of the act as reviews of an act can occur at any time and, in some ways, having a statutory requirement could preclude earlier consideration, if that were determined to be the best approach.
There were recommendations around funding. There was a recommendation to suggest that there be a comprehensive review of funding for governments to participate in the YESAA process. We at that time could not commit to increased funding. There is funding provided for First Nation participation in the YESAA process annually, and that is reviewed when and as appropriate.
The other was that the parties should develop a forum to work together to develop means by which First Nations can be better involved in the decision-making phase. Our response to that was that the act, which is based on the agreement, clearly sets out the roles and responsibilities of each party, the Government of Canada, Government of Yukon and the First Nations, so that no further amendments or processes were required.
[Translation]
Senator Boisvenu: First, I would like to thank you for the information you gave us, especially about the consultation, something that emerged from the testimonies of our aboriginal brothers. That issue bothered me a little. I think you did a good job of setting out how the consultations were held, and I thank you for that.
In your view — or at least in mine — it seems that the disagreement with the aboriginal communities is related to delegation. The people found that, by delegating to a regional, provincial or territorial government, satisfaction was rather mixed. They would have liked the delegation to be given almost to the level of the aboriginal communities.
Was this addressed in the consultations? Was it explained to these people why it is important to delegate in phase one at the regional level, even if it means that the region then re-delegates? Was the problem of the level of delegation discussed?
[English]
Ms. Shannon: My observation would be that much of the focus of the consultations was on the delegation to the Yukon government itself — opposition to the notion.
I would have to go back to look at the notes. I believe that some groups may have recommended or asked why not also delegate to the First Nations themselves. Our explanation throughout was about delegation being consistent with the principles of devolution. The focus during the conversations was on the very limited nature of the delegation authorities and comparing that vis-à-vis the Northwest Territories, where a similar provision exists. The delegation authorities that our minister was able to delegate were much broader.
So we were focused on providing the explanation of what could be delegated and what could not be in an attempt on our part to provide a greater level of clarity about intention or possible intentions behind a delegation provision.
[Translation]
Senator Boisvenu: Based on your involvement in the negotiation and consultation process, do you think this is an irritant that may be a major constraint to successfully applying the act, or are there still ''consultation'' exercises to be done with the communities so that they will accept the level of delegation that the bill assigns for the responsibilities?
[English]
Ms. Shannon: Personally, I don't think that it should impede the implementation of the amendments to the act, as there is no delegation contemplated at this time.
It is important to look at the approach the minister took recently in the Northwest Territories to get a sense of where the minister or the Government of Canada is at on delegation. Although available to him, he could have delegated policy direction and board appointments, and he did not. And that observation was something that was shared multiple times through the consultation process.
Senator Ringuette: In your statement today, you said — and I'm quoting from page 6:
Environmental assessments are meant to occur during the development phase of a project, so unless the originally assessed plans significantly change, there is no reason to require another assessment.
What is a ''significant change''? Who has the authority to decide if it is a ''significant change'' or a minor change?
Ms. Shannon: I am going to look to the EA practitioner beside me. What is or is not a ''significant change'' is actually determined in relation to a project and what was assessed at the time of the original environmental assessment.
Senator Ringuette: But who has the power to say that it is a ''significant change'' to the development proposal or not?
Ms. Shannon: It would be up to what is termed a ''decision body'' under the act. A ''decision body'' is the responsible authority or the regulator.
Because there can at times be more than one decision body involved in a project, we included in the act a provision that states that where there is more than one decision body — and First Nations can be decision bodies where a project is on First Nations land — the decision bodies must consult with each other. But consensus is not required, so if one decision body determines there has been significant change such that a reassessment is required, a reassessment will occur.
Senator Ringuette: Through all the decision projects?
Ms. Shannon: Correct. The project would go back for a reassessment.
Senator Ringuette: I remember one of our witnesses, the Yukon Water Board, saying that one of his projects went from a requirement of the use of water for five years to 10 years; the amount of usage is doubled; is that a ''significant change''?
Ms. Shannon: It would depend on the project itself, and it would depend on the determination of the decision body.
One of the best examples we could provide is as follows: If there were an existing mine project and the proponent was requesting to move the location of a tailings pond, my assumption would be that such would be determined to be a ''significant change.'' In that instance, the project would have to go back for reassessment.
Senator Wallace: Ms. Shannon, one of the regulatory improvements contemplated by Bill S-6 would enable recovery regulations to be enacted in order to recover costs that would be borne by proponents. We had representatives of the Canadian Association of Petroleum Producers before us. They expressed some concern with those provisions.
Could you describe to us the nature of the costs that are contemplated that could be recovered?
Ms. Shannon: The provisions are the cost-recovery regulation-making authority.
The costs that would be recovered are quite limited. They allow for the recovery of costs of the board's review activities that are particular to an application, such as hearings, travel and translation services. This wouldn't be for costs at a designated office level, which, as you know, is the lowest level of assessment in the case of the Yukon. I believe there have been over 1,800 projects assessed at a designated office level as opposed to seven at the executive committee level since the act was first brought into force in 2003.
We have heard, through consultations, not only in Yukon but also in Nunavut and the Northwest Territories, the concerns of industry with respect to the increased cost of doing business in the North and that we not institute regulations that are an impediment to investment. To that, our response has been that it is not the intention of the Government of Canada to implement regulations that would be an impediment to such investment and that we would work closely with industry, First Nations and other stakeholders through the development of regulations to ensure that the regime developed meets the interests of all stakeholders.
Senator Wallace: The types of costs that would be contemplated in those regulations would include costs that the board might incur in hiring expert witnesses?
Ms. Shannon: Correct.
Senator Wallace: The cost of witnesses who may want to appear before the board, including travel and that type of thing?
Ms. Shannon: Correct. Those are the types of costs that could be considered.
Senator Wallace: Can you give us a sense of the magnitude of such costs? Industry wants to minimize costs as they're trying to run a business, and I fully understand that. Are we talking about costs that could be significant compared to the scale of the projects undertaken?
Ms. Shannon: I don't have data on the costs, although we could commit to getting the data. The magnitude of significance would depend on the size of the company proposing a project. If a smaller company were proposing a large project, then the costs of board hearings may be disproportionately large for them, compared to a larger company proposing the same type of project.
Senator Wallace: Obviously, that's the case. Some companies have greater financial abilities than others. I just wanted to get a sense, from past experience, of the significance of these costs, regardless of the ability of the proponent to bear them, that may be contemplated. Can you give us a sense of that?
Ms. Shannon: I should note that the cost recovery is only for reviews, which is the highest level. There hasn't been a review in Yukon to date. The average cost of a review panel in the North ranges from $500,000 to $2 million per project. Their share would be smaller than the total cost, depending on what would be in the regulations.
Senator Massicotte: Mr. Isaac, when you discuss or negotiate anything with anybody else, it is always relative to your negotiating position, position of strength or obligation to negotiate. Without getting into a long legal discussion, when the First Nations testified before us, their opinion, given recent court decisions, was that you would have the obligation to consult and accommodate their concerns. Your presentation made it clear that in your mind your obligation is to consult and if you agree to accommodate their concerns. Talk to me about the two. They felt strongly about that position. Could you talk to me about that? Certainly, that would have determined your flexibility to accommodate their concerns about delegation or policy direction. Could you tell me what your mindset was when you consulted?
Mr. Isaac: It is our view that the consultation process we engaged in for these amendments was one that required the Crown to consult and meaningfully present to the First Nations what we were intending to do, the policy rationale behind it, and the language of the proposed legislation; to give the First Nations an opportunity to present their perspective and views on that; to give those perspectives and views a fulsome and fair consideration; and as part of that if we thought that their views were persuasive from a policy perspective or from a rights perspective, to make the necessary accommodation.
If we came to the conclusion in our analysis that their proposed accommodation was not from a policy perspective or was not consistent with their rights perspective a necessary accommodation, then we didn't accommodate, and we explained to them our rationale for not doing so.
We do not see this consultation as including a legal requirement to accommodate. We see it as including a fair, meaningful and reasonable process to present our proposal, have them present their views on it, to give it fair and good-faith consideration and to make changes where we thought those changes were appropriate either from a policy perspective or to be consistent with their land claim or other rights.
Senator Massicotte: You realize that in recent court decisions over several years, the courts have been tough on the government, not only your government but also the governments of the last decades, whereby the consultation is not from a very good listening point of view. It has been paternalistic and somewhat from a power position of saying yea or nay. Are you saying that in this case we have changed our attitude and it was an active attempt to accommodate them because it didn't make any sense?
Mr. Isaac: I wouldn't say it didn't make any sense but I would say that, from our perspective, what we were presenting and the policy rationale behind it were consistent with the land claim and with our attempts to improve the legislation. When they disagreed with us, we thought that either their disagreement was not based on valid or sound policy decision or their perspective that it was inconsistent with the land claim agreement was incorrect, in our view. We took serious note of all the proposals that the First Nations presented to us; and we gave them serious consideration. We accommodated in some cases and in other cases we didn't accommodate. When we didn't accommodate, we explained the rationale to them.
The Chair: Thank you for answering the questions. You have answered everyone's questions very well.
Honourable senators, we have heard from a variety of witnesses about the proposed legislation and have also received a number of written submissions. We are now at the stage where we will be going through the bill clause by clause.
Before we do this, I remind all honourable senators around the table that if at any point a senator is not clear where we are in the process, please ask for clarification. As the chair, and with our able clerk, we will do our utmost to ensure that all senators wishing to speak have their opportunity to do so. For this, however, I will depend on your cooperation. I will ask that all of you keep your remarks to the point and as brief as possible. Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the result of a voice vote or a show of hands, the cleanest route is to request a roll call vote, which provides clear results. Are there any questions around the table? If not, I believe we can proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-6, An Act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
Clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
In the interests of time, I ask members around the table if they are agreeable to grouping the clauses of the bill according to the parts of the bill?
Hon. Senators: Agreed.
The Chair: If so, I will carefully announce which groupings we are considering, from which clause to which clause. Agreed?
Hon. Senators: Agreed.
The Chair: Carried.
Shall Part 1 of the bill, which deals with the amendments to the Yukon Environmental and Socio-economic Assessment Act, clauses 2 to 40, pages 1 to 17 of the bill, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall Part 2 of the bill, which deals with the amendments to the Nunavut Waters and Nunavut Surface Rights Tribunal Act, clauses 41 to 55, pages 17 to 29 of the bill, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the coming into force clause, clause 56, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
I have one observation that I would like to read into the record and send with the bill. We will just pass it out. It is in both French and English. I will read into the record the observation:
The committee notes the concerns raised around the issue of delegation of authority and urges the government to ensure that any delegation of authority to the territorial government be in keeping with the Umbrella Final Agreement signed with the Yukon First Nations.
Would you like that read in French as well?
Senator Massicotte: I can do your work. if you want.
The Chair: That's what you are getting paid for.
[Translation]
Senator Massicotte: Le comité prend acte des préoccupations liées à la délégation d'attribution et il recommande au gouvernement de veiller à ce que toute délégation d'attribution au gouvernement territorial soit conforme à l'accord- cadre définitif conclu avec les Premières Nations du Yukon.
[English]
The Chair: Does the committee want to discuss this observation at all? Does the committee wish to consider appending the observations to the report?
Senator Black: Agreed.
The Chair: Carried.
Is it agreed that I report the bill with observations to the Senate?
Hon. Senators: Agreed.
The Chair: Carried.
I now have permission to adjourn. Thank you very much.
(The committee adjourned.)