Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 15 - Evidence - September 25, 2014
OTTAWA, Thursday, September 25, 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 7:59 a.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 all across the country who are watching on television. As a reminder to those watching, these committee hearings are open to the public and are also available via website on sen.parl.gc.ca. You may also find more information on the schedule of witnesses on the website, under ``Senate Committees.''
I would like to introduce the newly elected deputy chair of this committee, Senator Paul Massicotte from Quebec. I will now ask senators around the table to introduce themselves.
Senator Mitchell: Grant Mitchell, Alberta.
Senator Wallace: John Wallace, New Brunswick.
Senator Boisvenu: Pierre-Hugues Boisvenu, Quebec.
Senator Black: Good morning. Doug Black, Alberta.
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator Lang: Dan Lang, Yukon.
The Chair: I would also like to introduce our staff, beginning with the clerk, on my left, Lynn Gordon, and Sam Banks and Mark LeBlanc, our Library of Parliamentary analysts.
On June 17, 2014, the Senate authorized our committee to examine 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. Honourable senators, this bill, the short title of which is the ``Yukon and Nunavut Regulatory Improvement Act,'' was introduced in the Senate and received first reading on June 3, 2014. This is our third meeting on the bill.
Today, it gives me great pleasure to welcome to the first portion of our meeting, from the Council of Yukon First Nations, Grand Chief Ruth Massie; from the Little Salmon/Carmacks First Nation, Chief Eric Fairclough; and from the Champagne and Aishihik First Nations, Mary Jane Jim, Councillor; Brian MacDonald, Legal Counsel; and Roger Brown, Manager of Environment and Natural Resources.
It gives me great pleasure to welcome to all of you today and we look forward to your presentations.
For everybody's information, we have one hour to get through this first portion because we have another witness after that, and then the room is occupied by another committee right away. We would appreciate it if we could have some time at the end to ask some questions. I think some of the senators would like to ask you some questions.
I will turn it over to you, Grand Chief Massie. The floor is yours.
Ruth Massie, Grand Chief, Council of Yukon First Nations: Good morning, senators. I would like to also acknowledge legal counsel for the Council of Yukon First Nations, Mr. Daryn Leas.
My name is Ruth Massie. I'm Grand Chief of the Council of Yukon First Nations. I want to introduce my co- presenters this morning: Eric Fairclough of Little Salmon/Carmacks First Nation and Counsellor Mary Jane Jim of the Champagne and Aishihik First Nations. The Little Salmon/Carmacks First Nation and Champagne and Aishihik First Nations are two of nine self-governing members of the Council of Yukon First Nations.
Daryn Leas and Brian MacDonald, our legal counsels, are attending with us this morning as well. We also have other Yukon First Nation representatives attending as they have a vested interest.
We appreciate this opportunity to speak to you about our concerns with the proposed bill, Bill S-6, with respect to the Yukon Environmental and Socio-economic Assessment Act, known as YESAA. Our presentation will be approximately 25 minutes. I must say, one hour is not adequate to address the proposed act. We urge this standing committee to provide an opportunity for the self-governing First Nations of the Yukon to make presentations for your consideration.
The CYFN is the successor organization to the Council for Yukon Indians that represented the Yukon First Nation citizens in the land claim negotiations in the Yukon. The UFA directed the CYFN, and the Canadian and Yukon governments to develop legislation to implement the objectives and principles set out in ``Chapter 12 — Development Assessment.'' The federal legislation that implements the provisions of Chapter 12 is also known as YESAA.
After more than 20 years of negotiations, the Council of Yukon First Nations signed the Umbrella Final Agreement in 1993 with Canada and the Yukon government. Subsequently, 11 Yukon First Nations negotiated and ratified their respective comprehensive land claim and self-government agreements in accordance with the UFA. These land claim agreements are constitutionally protected under section 35 of the Constitution of Canada. Under the UFA, each Yukon First Nation was allocated 16,000 square miles, less than 10 per cent of the total area of the Yukon Territory. Although difficult to accept this limited land quantum, Yukon First Nations believed that the UFA would provide co- management, as agreed, in accordance with the principles and process established in the final agreements.
In particular, Chapter 12 of the UFA established an independent assessment process that acted at arm's length from the Yukon First Nations and the federal and territorial governments to undertake socio-economic and environmental assessments for projects located on Crown land and settlement land.
Chapter 12 of the UFA intended to establish a made-in-Yukon approach to development assessment. This approach would address the unique legal and socio-economic circumstances of the Yukon and ensure that development assessment in the Yukon is based on Yukon values and principles. Chapter 12 is a cornerstone of our land claim agreements, and it is important to ensure that the lands and resources throughout our traditional territories are managed in the spirit and intent of our agreements. The YESAA and any amendment to it must be consistent with the final agreements and meet the objectives set out in Chapter 12.
Pursuant to the UFA, the CYFN, including Yukon First Nations, Canada and Yukon, undertook a comprehensive review of YESAA. Initially, CYFN, Yukon First Nations, Canada and Yukon worked collaboratively to prepare the interim YESAA review report. In the end, Canada unilaterally finalized the report and systematically rejected the input from the CYFN and Yukon First Nations.
The Council of Yukon First Nations reiterates that the five-year review has not been completed, and three key issues identified by Yukon First Nations remain outstanding. These three key issues are as follows.
4.1 Future Review: It is expected that the YESAA process will require adjustments to deal with future circumstances and ensure effectiveness and efficiency. Some provisions have not been operational. Therefore, it would be prudent for the parties to commit to undertake another review of the YESAA process in the future.
4.2 Adequate Funding for Yukon First Nations: If the YESAA process is to operate effectively and efficiently, Yukon First Nations must have the resources to fulfill their duties and participate fully in the assessment of projects within their respective traditional territories. Due to the significant increase in the number, scale and complexity of projects proposed in certain areas of the Yukon Territory, this issue has been raised repeatedly by the Council of Yukon First Nations.
4.3 Decision Engagement with Affected Yukon First Nations: The CYFN has proposed that a territorial or federal decision body must engage with the Yukon First Nation when it is considering recommendations from the executive committee or a designated office with respect to projects that may affect its Aboriginal treaty rights, titles and interests. This engagement must take place prior to the issuance of a decision document.
While a number of amendments were proposed to the YESAA to implement various recommendations of the five- year review, federal officials were unwilling to consider any amendments to the YESAA to address these three key issues.
The proposed amendments in front of the Senate today were not discussed in the five-year review process with Canada and the Yukon government.
Federal regulatory improvement initiatives: In late 2007, Aboriginal Affairs announced publicly that it had commissioned Mr. Neil McCrank to review the regulatory regimes and systems in the three northern territories. In his report, Mr. McCrank made a single recommendation about Yukon: ``All affected parties should make it a priority to participate in the five (5) year review of the Yukon Environmental and Socio-economic Assessment Act (YESAA), so as to complete the review in a timely fashion.''
Bill S-6 proposes amendments that were not discussed by the CYFN, Canada and Yukon as part of the five-year review. Although the action plan of Canada spoke about legislative changes to the YESAA, the Council of Yukon First Nations and the First Nations were not provided a draft of the proposed amendments to the YESAA referred to in the action plan as set out in Bill S-6 until earlier this year.
Eric Fairclough, Chief, Little-Salmon/Carmacks First Nation: We agree to the issues that have been raised by CYFN with regard to the amendments before us. While the CYFN has concerns about the nature and scope of many of the amendments proposed in Bill S-6, we want to draw your attention to four specific amendments that are deeply concerning. The CYFN and Yukon First Nations maintain that the proposed amendments would undermine the independence and autonomy of the YESAA and adversely impact its effectiveness.
Policy direction to the board: The CYFN opposes any amendments that provide authority to the federal minister to issue binding policy directions to the board with respect to any of the board's powers, duties and functions.
Under this proposed amendment, there is no requirement for the federal minister to obtain the consent of First Nations before issuing policy direction to the board. Providing the federal minister with the authority to unilaterally issue policy direction undermines the independence of the board and designated offices when conducting assessments.
Independence is a fundamental element of the YESAA that was discussed at length by the CYFN, Canada and Yukon during the development of the YESAA. Providing a single party with authority to direct the board is contrary to the spirit and intent of the YESAA and the provisions of the final agreements.
Delegation of federal powers: The CYFN opposes any amendment that would allow the federal minister to delegate any or all of his or her powers, duties and functions under the YESAA to the territorial minister.
The CYFN has several concerns relating to this proposed amendment. There is no requirement for the federal minister to obtain consent of Yukon First Nations before delegating any powers, duties and functions. The federal minister only has to provide notice to Yukon First Nations. The YESAA implements treaty rights. The provision would exclude Yukon First Nations from discussions and decisions about future redistribution of power, duties and functions under the YESAA. It would create a bilateral federal-territorial process that would be inconsistent with the intent of the final agreements.
Exemption for renewals and amendments: The CYFN opposes any amendment that creates a broad exemption from the YESAA for renewals and amendments of permits or authorizations.
This proposed amendment is unacceptable since it would directly contravene the agreements reached by the CYFN, Canada and Yukon about this issue as part of the five-year review. It is unnecessary because previously existing concerns about assessments of renewals and amendments have already been addressed by changes in board policies as agreed during the five-year review. The proposed amendments will interfere with a process that is working effectively. During the development of the YESAA, the CYFN, Canada and Yukon agreed that the regulations would define which projects are subject to assessments. The proposed amendments would interfere with this approach.
Time lines of the YESAA assessments: The CYFN opposes the proposed amendments that establish overall time lines for completion of assessments under the YESAA since time lines are already in place.
The proposed time lines for screening by the executive committee and panel reviews do not provide adequate time to complete assessments of complex projects that will be subject to these assessments. This will affect the thoroughness of assessments and the opportunities for Yukon First Nations to complete comprehensive reviews of projects and to provide input.
While no panel reviews have been completed under the YESAA, the proposed time lines are not consistent with the duration required to complete panel assessments in other jurisdictions. Canada failed to raise these proposed amendments during the five-year review process, where they would have received detailed discussions and considerations. These matters were never discussed during the five-year review.
Mary Jane Jim, Councillor, Champagne and Aishihik First Nations:
[Ms. Jim spoke in an aboriginal language.]
I introduced myself today with a name that was given to me at birth by my grandmother. My Tlingit name honouring my Tlingit ancestry is Dak wa ul. That name was given to me at the age of 19 when I decided to enter politics. I introduce myself honouring my ancestors and my ancestral background.
I'm here today representing Champagne and Aishihik First Nations. I thank my colleagues for allowing me the time to present. I want to continue the presentation and then finish with some of the concerns that Champagne and Aishihik First Nations has with respect to this process.
Concerns regarding Bill S-6: Subject to the matters raised during the five-year review, it is our view that the YESAA has been operating effectively and efficiently since its enactment in 2003. The federal government now wants to unilaterally make additional amendments to the YESAA. We did not request these amendments, nor do support them. These amendments are not necessary.
If Bill S-6 amends the YESAA, the CYFN makes the following assertions.
7.1: The CYFN and Yukon First Nations assert that the amendments to the YESAA proposed by Bill S-6 would breach the Crown's duty to consult and accommodate with respect to the proposed changes to the YESAA.
Federal officials were willing to meet with representatives of the CYFN and Yukon First Nations to provide explanations and clarification about the nature and scope of the proposed amendments and to listen to the concerns raised. But the federal government has not demonstrated any mandate or interest in meaningful consultation or negotiations with the CYFN and Yukon First Nations to address our substantive issues and interests relating to Bill S- 6.
7.2: The CYFN and Yukon First Nations assert that the federal government would breach its constitutional duty to uphold the honour of the Crown when it proceeded unilaterally with amendments to the YESAA. These are matters that were not discussed or raised during the five-year review or, in the case of the amendment that would create exemptions for project renewals and changes, contradict agreements reached during the five-year review.
In addition, the federal government breached its constitutional duties when it refused to complete the five-year review. We have moved, in our opinion, from a cooperative process to a unilateral process, which is a breach of our agreements.
The CYFN and Yukon First Nations assert that the proposed amendments to the YESAA would infringe on their treaty rights under Chapter 12, including the rights for independent assessments of certain projects in accordance with the objectives of Chapter 12. These proposed amendments would impact the integrity, independence and effectiveness of the YESAA process. It is our view that the federal government is not acting in good faith and its actions relating to Bill S-6 constitute bad faith.
In conclusion, we urge the Senate to give consideration to this presentation and to reject Bill S-6 or amend it to address our concerns. We are concerned that an opportunity has not been afforded all First Nations, including Champagne and Aishihik, an opportunity to be heard during these proceedings on a very important matter.
We must point out that the legislative summary 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 dated June 18, 2014, states that the five-year review was finalized in October 2012 and that ``According to departmental documentation, Bill S-6 reflects agreed upon recommendations arising from the review of the Act.''
These statements are misleading and inconsistent with facts. As set out in this submission, Yukon First Nations clearly are not in support of many of the amendments that have been unilaterally incorporated into Bill S-6.
CYFN does not want to follow the Tlicho and Sahtu path to litigation, and indeed it is not the position of Champagne and Aishihik as well. They have to challenge the validity of the amendments made to the environmental assessment process in the Northwest Territories. We do not want to do that at Champagne and Aishihik, and I'm not sure if that indeed is the wish of CYFN.
If Bill S-6 proceeds as it is, the CYFN and Yukon First Nations will, unfortunately, need to take steps necessary to protect the integrity of their final agreements.
As I said earlier, it is not the wish of Champagne and Aishihik to litigate. We are hoping that, through this process, you will provide us with an opportunity to provide a submission from Champagne and Aishihik First Nations. As the grand chief stated earlier, we have given up a good portion of our lands. In order to do that, we gave up that portion to create a trust relationship with Canada and Yukon. That trust relationship is all about partnership; it is not about unilateral decision making.
I will go back to the day we signed our agreement at Champagne and Aishihik, where my grandmother on that day said, ``Now here we are. We've given up everything. We've given up the rights to our land.'' In saying so, I had to remind her that while we have given up the rights to the greater portion of our lands, we also took a giant step and a leap of faith in creating a trust relationship with Canada and Yukon.
Today I sit here as the only member of Champagne and Aishihik — because our chief is in election mode right now — protecting and saying: You have a duty, Canada, to honour the treaty obligations that we signed off so many years ago, and don't prove my grandmother right that we've lost everything. When we tell our elders that we have created a trust relationship, it's not an easy thing to do to say, yes, you have given up your treaty rights, your Aboriginal rights, to a majority of the land so that you can trust someone else to take on that responsibility for you.
Today I want to reiterate that Champagne and Aishihik would want to be allowed to be heard. You have given everybody else the opportunity to be heard in a one-hour segment.
We are a self-governing First Nation that contributes to the greater economy of the Yukon. We contribute well over $20 million a year. Having said that, YESAA has not changed much of anything in terms of economic — these amendments won't change because the economy in the Yukon has done very, very well in the last 10 years. Although I don't have the facts, I would purport to say that the economy has done very well, in fact, because of YESAA in the way it currently is read.
So, again, it is a giant leap of faith to be saying to Canada: You have a duty. You have a duty to consult us. You have a duty and an obligation to protect an agreement that you signed on to, which is actually constitutionally protected.
We also at Champagne and Aishihik would like to say that we need to be heard. I thank the grand chief and my colleague Eric for allowing me to present on their behalf, because we didn't have separate standing, and to be here and take up some of their time as chiefs.
The Chair: Thank you very much for your presentations. We will now go to questions and I will begin with the deputy chair, Senator Massicotte.
Senator Massicotte: Thank you for being with us this morning. I can assure you we hear you loud and clear. We are trying to understand your issues, and we're very sincere in attempting to understand your thoughts on those issues.
Let me try to summarize in my way what I hear from you. I separate the issue: You first are disappointed with the process whereby, in your mind, there is an obligation to consult and accommodate, and you are saying that at the end the federal government did not accommodate. You are saying, ``We did not agree to the following amendments; they chose to prepare the proposed amendments without our consent.'' So you're not pleased with that process.
Secondly, you are saying the proposed amendments could contravene your treaty rights and therefore it is a major issue. You have three or four comments regarding the proposed amendments, because you don't think it respects your existing rights, agreements and discussions, verbal and otherwise.
On the latter point, as you know, the minister responded to say, ``We certainly respect your treaty rights. In fact, the existing agreement in place, section 4, makes it very clear that if there is any conflict with the act, contrary to your final agreement, your treaty rights will override.'' In other words, they make it very clear that is a superseding right that you have.
I must admit that when I read the old act and I read section 4, it seems to be very clear in that respect, but you seem to disagree with that. Could you comment and explain to us why you don't think section 4 protects you in any case relative to your treaty rights?
Daryn R. Leas, Legal Counsel, Council of Yukon First Nations: Good morning. I'll respond quickly to that.
The key issue for us is the fact that these amendments, even if they are approved, ultimately if they are challenged it is going to create a great deal of unnecessary uncertainty. It's going to impact the economy and the relationship between the Yukon First Nations and the federal and territorial governments, impacting the trust-like partnership that Councillor Mary Jane referred to.
It is true our land claim agreements would prevail over federal or territorial legislation, but the key point that we are raising, perhaps as a subtle point, is that it's not just the outcome that is the problem; it's the process as well and the fact that in our view the Government of Canada is breaching its constitutional duties that it owes to First Nations — the duty to act in the honour of the Crown, the duty to take steps to accommodate, and the duty to respect the provisions under our land claim agreement.
We can say at the end of the day that perhaps those amendments technically are not affecting the final agreement, or maybe even the fact that the final agreement is going to prevail over the provisions that we think are out of whack with the final agreement, but in the end it will have tremendous impacts to the economy and to the relationships of the parties around the table who signed the agreements that Councillor Mary Jane Jim referred to.
Senator Massicotte: Let me go one step further. You raised technical issues like timing; you don't agree with the time frame. One could debate forever. But you are also quite concerned with the proviso that the minister has a right to direct or give instructions relative to policy decisions. As you well know, that has not occurred yet, and the same thing with devolution. None of that has occurred.
Maybe you're concerned that the minister will use that to disrupt your existing agreement. But you don't think the minister, if ever he were to do so, that he would say that section 4 is very clear? I'm quite sure you would win in the courts very easily and it would be a lack of acting in good faith to do something contrary to that. But you don't think the minister, if ever he were to suggest a policy directive or some other provision for which you are to be consulted, which is contrary, he would say, ``No, section 4 prohibits me from doing that. I'm not going to do that''?
Why would he do something willingly that contravenes a clear agreement? We always worry about the future, but any reasonable minister would say ``No, I will not touch that because that contravenes that clause.''
Ms. Jim: I am going to make an attempt at this. I'm not as familiar as my colleagues with this bill, but if the federal minister were to delegate that authority, then why wouldn't he delegate that authority in the same instance to a Yukon First Nation, per se? And that allocation is not in the amendment.
Senator Massicotte: He may.
Ms. Jim: It doesn't state that. It really warrants that question of why wouldn't they. If you are going to allocate that kind of authority to the territorial government, why not to a First Nation? We are a self-governing First Nation. We have jurisdiction. We have the ability to create law, make law and enforce law. Why wouldn't you do that?
If you are going to go that one step, go that one step further and allocate that same kind of authority to the First Nation, or leave it as is.
Senator Lang: I would like to welcome my friends and neighbours from the Yukon. I appreciate the time and effort it takes to get here and I know it is a long trip. Welcome and I'm very happy to have you presenting here today and putting forward your point of view.
I would like to set the framework for part of the discussions that should be here today. Perhaps we should talk about some things that bring us together as opposed to where we have differences.
I want to go back to Mary Jane Jim's presentation. She talked about the success of YESAA. It was 11 years ago when this bill came into effect, and we have seen a tremendous increase in our economy in the Yukon and the results of, in part, what this particular board has been able to do with three nominations from the Council of Yukon First Nations participating in a board of seven making very major decisions on behalf of all Yukoners.
I want to set the framework a little further on settlement lands so that our viewers are aware. In one particular case, we have a First Nation where there's a producing mine, where all the royalties accrue to that particular First Nation. They are benefiting tremendously in respect to that development directly and indirectly — all Yukoners are.
Second, a number of benefit agreements with the mining community throughout the territory have been signed or are being negotiated by various First Nations, including, I believe, Chief Fairclough. Hopefully, those are successful.
The point I would like to have the grand chief comment on, so that we look at the Yukon from a positive lens, is to expand a little on what Mary Jane Jim's presentation was about, the successes we had through YESAA and the way it has been working.
Ms. Massie: Thank you, Senator Lang. It is true that we do have a lot of success in our economic development fields. As a matter of fact, Brian MacDonald works in Champagne and Aishihik's development corporation. He could probably even provide you some concrete evidence of the success, as was stated earlier. Yukon First Nations have provided millions of dollars. All of the First Nations have their own corporations. They are successfully off and running. Millions of dollars flow through the economy in the Yukon, and maybe Brian can share some of the experience from their corporation as well.
As stated earlier, YESAA today has been very successful in the projects. What we're worried about are these new amendments coming forward, so maybe I can ask Brian to speak to some of his successes with economic development.
Brian MacDonald, Legal Counsel, Champagne and Aishihik First Nations: One of the challenges of being in a small jurisdiction is we all tend to wear different hats, so while today I'm here as legal counsel to my First Nation, I also participate in one of the economic engines of our community, which is a development corporation.
We have observed a number of the witnesses that have presented. They have spoken about stimulating the economy, and I believe that the YESAA process is very much an economic engine for the Yukon. It's functioning effectively and ensuring that the relationships between First Nations and the various other governments working effectively, and that is critical, in our view as a company, to the success of Yukon's economy. We need to have that certainty as a company to protect the shareholder interests in the various investments that we have.
Our investment portfolio has grown to almost $30 million in actual value. We have revenues of over $65 million in everything from manufacturing, construction and paving, and very recently we have acquired a resource sector innovative technology company.
We have a very broad range of experiences. We employ approximately 170 northerners as well, so we are, I think, a material presence to Yukon's economy. That's just one of the development corporations.
I think across the Yukon, as the grand chief has said, there's significant participation in the economy. So while these presentations do speak to the process, I think that behind that as well there's an appreciation that certainty is required because we all have a vested interest in an economy that works for us.
From our experience, seeing a process that works and our experience as a company and dealing in our sectors, we haven't found any glaring issues with the assessment process.
The permanent process is another matter, but that's not the issue that's before you here today.
Mr. Leas: I appreciate the senator's comment. It is valid as indicated by Brian and the grand chief.
To go a little further, it is important to point out why YESAA works so well in the Yukon. As people said earlier, it is a made-in-the-Yukon process, but even going beyond that, why? How do we achieve that?
We, as in the parties — Canada, CYFN, Yukon First Nations and the Yukon government — spent years in a tripartite working group working with the legislative council for the federal government, developing YESAA and the regulations in the tripartite cooperative process. When we lay that process down to what the process has been for these proposed amendments, there's a real contrast. That's why, quite frankly, we're quite concerned. We have built something that works really well, effectively and efficiently, in the Yukon through a tripartite process over a number of years, and now there are subtle changes that will have significant impacts, in our view.
Senator Lang: I appreciate Mr. MacDonald's overview in respect to his development corporation and his involvement.
Also, as I understand, wearing many hats, maybe it is the grand chief I should direct this to or the president of the First Nations chamber of commerce. Mr. MacDonald is the president.
In my opening remarks I talked about the success of YESAA. Just for the information of other senators, in 2012, statistics were released where First Nation employees in the workforce increased by 41.4 per cent, by 1,200 positions, throughout the economy. What a great story that is for Yukon, for the nation, and it is perhaps an example that the rest of the nation could follow.
We have talked about the seven years and the consultation that has taken place. One can argue, whether one agreed or disagreed with various sections of the act before us, but there have been thousands of hours of consultation. There have been 73 out of 76 policy and legislative amendments agreed to by all the parties in discussion, so a lot of work has been done over the course of the last number of years. We're now on the national agenda. We have a bill before Parliament. That doesn't happen every day.
I would like to know — and maybe the grand chief or Mr. MacDonald could comment — do you agree that this legislation, although you may disagree with a couple sections in the bill, is important to be updated and to be presented through Parliament in view of what we're facing in the Yukon and some of the uncertainty? Mr. MacDonald, I refer to your comment about certainty.
The reality of it is that investors looking to come to the Yukon are viewing our permit process in a very jaundiced way now in view of some of the experiences that they have had. Perhaps, Mr. MacDonald, you could comment on that.
Mr. MacDonald: To be frank, we have had lots of very high level discussions with lots of different companies. None of them expressed a frustration with the assessment process. They have expressed a frustration with the relationships between the First Nations and government and the uncertainty that that creates through, I guess, the litigation environment that seems to be percolating in the Yukon.
That's the uncertainty that creates the issue. For us and for the companies that we have talked with and the other development corporations, it is the issue at the back end of the process that seems to be the greater concern for the companies that we have experienced.
To your point, though, YESAA needs to work well. I think that on the face of the suite of amendments that went through the seven-year review, there seems to be significant value to those improvements.
The issue that is before the committee today that has been raised by CYFN and Little-Salmon/Carmacks First Nation and Champagne and Aishihik First Nations is primarily focused on what we believe are the unilateral amendments that kind of went in parallel with our process, the process that First Nations were participating in. We do not feel that those other amendments were given a full opportunity to be vetted through those discussions. That process yielded some compromises. Yes, First Nations didn't get everything that they hoped for, but they believe in compromise and recognize that everybody has to have something out of these processes.
Those specific amendments they referred to around delegation, around policy, did not have that opportunity to be put forward in that process that was committed to to do the review. That's a fundamental issue that we're struggling with as Champagne and Aishihik. They didn't get a chance to have that fulsome discussion about those issues, and Champagne and Aishihik feel that that is one of our troubling concerns with the process.
Mr. Fairclough: The amendments presented through the five-year review are fine. The four that I listed are not with us and did not go through thousands of hours of consultation. Show me where it is, and maybe you can change my mind. But we're not going to see that.
The other thing is that our final agreements and the creation of YESAA have created a whole pile of certainty with the development community, and that's why we have seen such a boom in the Yukon Territory, to the point where companies have been coming to First Nations and wanting to talk with them and create relationships with them.
These proposed amendments actually have the opposite effect, according to one of the developments that has taken place in my area. It is the opposite effect. It brings uncertainty to them.
Where is this going now? Not a whole lot of discussion took place with regard to these four major points, and I think they need to be considered strongly by the Senate.
If the intent of these amendments before us today is to bring them up to date, modernize them, then fine, focus on that. But don't kick the legs out of our environmental process and our First Nation agreements in doing so. If the intent is to really look at how development could improve in the territory, then maybe there are other ways that we can focus on improving that, but I believe that what we're doing here today is the wrong way.
Senator Black: Thank you all for being here, and thank you very much for your very informative and frank presentations.
I think you can start from the position that everyone around this table understands and respects the duty and the benefits of consultation. That's what I want to come to understand from you this morning.
You have, on pages 6, 7, 11 and 14 in your presentation, made some very strong allegations. You have suggested to us that, in your mind, you have either not been consulted or certainly not adequately consulted. That is what I have heard you to say this morning.
What you have to help me with is that we have heard from others and have been advised that, indeed, there were, between April of 2013 and June of 2014, at least 10 engagements with your organization. Now, I say ``organization'' because I'm not sure specifically with whom, I think possibly with the overreaching federation.
Those are the facts that we have. I would like you, please, to clarify for me whether or not that is accurate.
Ms. Massie: Although we have been consulted several times, we very seldom have been accommodated in our recommendations. You have to know that our UFA is a tripartite process, and you sit down and discuss. We are not here you against whatever. We want things to work.
Senator Black: Of course.
Ms. Massie: We want to provide the certainty for any industry that comes in or for the other governments, and we want to be part and parcel of the overall governance in the Yukon because, legally, we do have 17 orders of government in the Yukon.
Senator Black: Sounds like a nightmare.
Ms. Massie: Well, there are days where it is easy to coordinate, depending on the subject. There are other days where you can be consulted, but, if you're not accommodated, what was the purpose of the exercise?
Senator Black: May I ask, then, two points that arise from that ever so quickly, grand chief? I very much appreciate your openness here. What you have said to me now is that there has been a consultation; you are just not happy with the results of it.
Ms. Massie: Well, there are no results. When you sit there with three parties, you should try to come to agreement, even though you are sitting there having the discussion. Anybody can talk to another party and be consulted and speak their opinion and so on and so forth, but how do you come together to build a good relationship in a working environment or governance environment? It took a lot of years to come to agreement with our final agreements, with the UFA.
Senator Black: I hear you, but help me with this. Some people would suggest — and I don't know whether anyone around this table would suggest — that folks say that consultation is only effective if you get your way. What would you say to that?
Ms. Massie: No, there are times where you do have to sit down and compromise a situation, but it is a meeting of the minds in the end, right?
Senator Black: Okay. That's great.
Ms. Massie: It has to be satisfactory to all of the parties involved.
Senator Black: Thank you very much. Thanks to you all.
Senator Mitchell: Thanks to all of you. It was very impressive; you said 25 minutes and were right on the button, so I'm sure the chair is looking at me sideways about how much time I take. I will be right to the point.
On the issue of the power of the minister, I am very sympathetic, as much as somebody who doesn't live the life that you live and where you live and your experiences, to the idea that somebody could overrule your treaty rights and your traditional rights. Does the minister not have that power now? That power exists right now. It is not as though this bill actually exacerbates it. Nor is it true, it seems to me and I'm not a lawyer, that it would prohibit a change to that power structure in the future. Ultimately, that change in the future would mean that at some point the territories and Aboriginal governments, the territories in particular, become provinces, the minister wouldn't have that power any longer in those ways.
Whereas I can see the point you are making, I'm asking: Does Bill S-6 actually make that any worse? It seems to me that it doesn't.
Mr. Leas: I will make a quick comment in response to that, senator. You are correct. The minister has certain powers, duties and functions under the act. Our problem with allowing the minister by statute to expressly delegate that only to a territorial minister, not to First Nations — the amendment is very clear that it goes to the territorial minister, not to a self-governing First Nation — is the fact that at the development of the legislation the parties agreed that the minister would have that power. That's how that relationship would work among the parties under the YESAA to ensure that necessarily as devolution is happening, the regulators wouldn't have that power, and the federal minister would provide some degree of oversight.
By changing that and allowing that relationship to get altered unilaterally or bilaterally between the Yukon government and federal government is troubling. If, in fact, the amendment said something along the lines of a need for consent from the parties to have that delegation among Yukon First Nations, the federal government and the territorial government, I think we would have a different discussion today about that particular amendment. When you have two parties that have that power and we're left out and not involved in that evolving relationship, it's a problem.
Senator Mitchell: I would like to pursue the environmental review process. I think Chief Fairclough alluded to concerns in that regard. There's at least one improvement in the environmental review process to the extent that it will redefine cumulative effects, so it will not just consider existing projects or those in the process of being built now. Rather, it will have to consider things in the future. Is that any comfort to you at all? From an environmental perspective, cumulative effects are often not considered in the way that they should be.
Mr. Fairclough: Yes, it does give us some comfort, particularly in areas that are heavily impacted. In my traditional territory, we have been calling for that — of course, right? Our concern is the fact that the minister right now, should this amendment go through, could say which project would require an environmental assessment. All he needs to do is give us notice of it as we would have no input; and that's pretty important to us.
Yukon Territory is pretty big, but there aren't a whole lot of people there. The eyes on the land right now are the smaller communities and First Nations. We really go out there and look at the possible everlasting impacts that could come upon us; and those are our interests. The interest is not there with the territorial government in my view, unfortunately. This has been demonstrated in the past, too.
Senator Seidman: There's no question that we sit here listening and taking everything you say extremely seriously.
Chief Massie, in your presentation you said that the five-year review has not been completed, in your opinion, and there's been no accommodation. On the other hand, you also said that three key issues remain outstanding. I would like to know what accommodations were made and why you say that the five-year review is not complete.
Ms. Massie: In the five-year review process, all three parties sat down and went through it. It was extensive over probably a two-and-a-half-year period. I believe there were 76 proposed amendments. Some of them were just language, so they were very quick to resolve. Resolution was reached quite quickly with approximately 60 of the recommendations. Mr. McCrank's report came out, and our technicians all went back to the table to talk about the outstanding recommendations, and they agreed on most of them.
What they didn't agree on was a future review of the YESAA. Does the YESAA need improvement? What's working? What's not working? That's what that whole review was about — besides, the review was legislative. We had asked for future reviews. They removed that, and we said that no, we needed to have reviews regularly because things evolve over time, just like where this environmental act is today. The review was just to take a look at what's working and not working; so that was one thing. They said no to future reviews. Well, is this the last time that this environmental act will be amended, which excludes Yukon First Nations input?
As well, First Nations are involved with the environmental assessment process. They have spent millions of dollars reviewing applications; and, believe me, hundreds of applications come down every month that have to be reviewed. It has cost our First Nations a lot of financial resources to accommodate and participate. Some First Nations don't have the capacity, so the CYFN has to assist at times.
Some projects are very complex, so you have to bring in expertise to address them. Some of these projects are quite new industries, and we have never been involved in that. The decision-making process with what's being proposed now totally excludes us. There are so many levels of government in Yukon, especially with the final agreements where our First Nation members have that say. It is pertinent for them to be part of the decision-making process in the end.
We are trying to build good working relationships in Yukon. I don't think, with the three parties that signed onto our agreements, that they should be able to pick and choose what day they want to have a good relationship. Our experience with the Yukon government has not been good.
Senator Seidman: How much do you think of what was in the final product was bringing a certain degree of consistency, given changes in CEAA 2012, et cetera, across the country to all regions, all provinces and all territories to make it consistent?
Ms. Massie: I think with the creation of YESAA — it was mentioned that it is made in Yukon, for Yukon — because of the final agreements, because we tried to have the tripartite relationship, that it's important for our region because it addresses our region.
With CEAA, it was outside of our region, which meant always having to be in Ottawa to get your proof. It actually brought the regulatory process to our region.
Senator Seidman: Do you not think there is certainty and value in being consistent across the territories and across the country?
Ms. Massie: I'm sure that our technicians and our negotiators had followed along the lines of the CEAA legislation, but I think it's consistent.
Senator Patterson: I just want to say that we and Nunavut are still striving for devolution of federal authority over managing lands and resources to Nunavut. We look at Yukon as a shining light in showing the way, and it is very impressive to hear the progress that I think everyone around the table has described economically in Yukon.
But since YESAA was established 11 years ago, there have been changes. There was the McCrank study that recommended regulatory reform in all three territories. CEAA was amended. As Chief Fairclough said, I think the attempt of this legislation is to update and improve things.
I would like to pick up on what Senator Seidman said again. The global marketplace means that we are competing, not just within Canada but within the world, for investment. It seems to me the three changes that you're concerned about — the minister's delegating authority, the timelines, the ability to extend the licence if there is no significant change — are all in place, all across Canada, in the new N.W.T. devolution regime which was just put in place, and for Nunavut. You've got three members on the YESAA board. You have more than the two governments each on the board. You will have a significant voice in administering any changes that result from these amendments.
I'm curious why you would be opposed to these sections, when it would put you out of line with jurisdictions in the rest of the country and maybe make Yukon a less attractive place for investment than it has been to date.
Ms. Jim: I will comment on that. Champagne and Aishihik, as a self-governing First Nation, has an agreement with Canada, and those agreements are here. They passed legislation in Parliament. That's different than any other jurisdiction, outside of other self-governing First Nations in this country, of which some are in the Northwest Territories and some are in B.C. That's different. That's what makes this process different.
We have a tripartite process. We have a partnership, for lack of a better word. These agreements state very clearly that Canada has an obligation to honour this treaty; and this treaty is what creates YESAA, pure and simple. It didn't create CEAA or anything else in Winnipeg, Ontario, British Columbia. It created YESAA in Yukon Territory, and that's what we are concerned about. We have a stake, as a self-governing First Nation, in what is before us today with respect to our position at that table. So Canada's accommodation, if you will, or lack of, is our concern with respect to the changes to what is before us and the amendment of that bill.
Senator Patterson: I do hope, as Senator Massicotte said, that the strong words of section 4 that, in the event of an inconsistency, the umbrella agreement prevails, which is constitutionally protected, the highest protection that can be given to a law in the land, will give you some comfort moving forward that your agreement will be respected in all aspects.
I would like to ask one other thing that I cannot quite understand. In Nunavut, we are striving — I won't say ``struggling'' — to wean ourselves, to have authority over our lands and resources close to home, taking it away from Ottawa. The Inuit have significant authority through the co-management boards, but the territorial government is beholden to Ottawa. You have a different situation in Yukon, and we look at that as where we want to go.
Now, I'm really puzzled. I hear you saying that you have some ``differences,'' I think was the term used, with the current territorial government. The current government may well change and you would have a voice in that, of course, through your members. Putting that aside, isn't the principle of what someone in your delegation called a made-in- Yukon process, the principle of bringing decisions closer to home, way more important than how you're getting along with the territorial government of the day? We struggle with remote administration in Ottawa today, in Nunavut. Isn't it better to have decision making closer to home than a distant, remote, less accountable government in Ottawa? I will put it crudely: the devil you know and the devil you have a voice in electing and changing.
So this provision of allowing the minister to delegate to a territorial minister, to me that should be welcomed. I don't understand why you would not want to have that policy-making authority right close to home, amongst your fellow citizens of Yukon. I hear you say that it didn't go to First Nations, but it's more than notice. I understand the provision says that the policy directions would only be exercised after consultation with the board. Can you explain to me why that is not in progress?
Mr. Leas: I'll make a couple of comments, senator.
It's important to point out at the outset of this question that this is not about politics; this is not about whether we agree or disagree with the current government of the Yukon or any other government. This is an important point for us on process.
Council of Yukon First Nations supported devolution in 2003. There was a long period of negotiations. At the beginning of that period of negotiations in 1996, the Yukon government and the federal government maintained it was a bilateral process and First Nations were not involved except to be provided notice and to be consulted. We were not full parties. During the discussions of that process, eventually we became parties and eventually signed on to that agreement, and the same thing with the YESAA process. At the same time, there was the development of a tripartite process.
I don't think in any way First Nations are opposed to the concept of devolution and local decision making, local accountability. The point we are trying to raise very clearly is that if those decisions are going to be made, we need to be part of that decision. It cannot be a bilateral decision between the federal government and the territorial government. Those politics and processes are decades gone. We have a new relationship with governments, both in Ottawa and Whitehorse, based on our land claim agreements, evolving from those land claim agreements, and we need to be part of those discussions. That's the nature of governance now in 2014 in the Yukon. That's why we are here today, to say that these decisions on delegation cannot be made simply from the federal government to the territorial government and simply notify us. We need to be part of that discussion.
Senator Patterson: There was a concern expressed about decision body engagement with affected Yukon First Nations that before a final decision is made that may affect a First Nation, there must be engagement with that Yukon First Nation, page 6 of your presentation. I'm curious about that because I would have thought that the regulatory process itself that led to that decision would have allowed for full participation and engagement of affected First Nations for any decision — that the First Nation affected would already have the full opportunity for engagement in the regulatory process. Why would you want to add another final step that could lead to further delays when you should have been already involved along the way?
Ms. Massie: With some projects, I think it would expedite instead of delay projects, with our involvement. The process now is that, when we get notice, we have the opportunity to comment. When you have hundreds of these applications in front of you, it's one at a time. So isn't it better to be at the table when all of the discussions are happening, instead of the discussions going from room to room? If it's going to involve all the parties, then it should be there.
Also, some of these projects happen within the traditional territories and settlement land of the self-governing First Nations. By law and by agreements, they should be involved.
There was a comment earlier about thousands of hours of consultation. When you get together for a meeting and share information, is that consultation?
The Chair: Thank you. Everyone will have noticed that we went over time. I have taken time out from the next presenter. Senator Wallace is the last questioner.
Senator Wallace: Grand Chief Massie, let us go back to the issue of consultation. I listened carefully to the concerns you expressed to Senator Patterson and Senator Black, in particular. At one point, you responded to Senator Black and said, ``Yes, there were consultations, but there was not total agreement by all parties at the table.'' It strikes me that that sometimes happens; it's hard to get everybody on every issue in total agreement.
Back to Bill S-6, it's my understanding from the presentation made by Minister Valcourt that there were extensive consultations with all parties, including First Nations, leading up to the drafting of the final form of Bill S-6; that through that process, numerous drafts of the bill were circulated to the parties, including First Nations; and that there were specific accommodations or adjustments made to the final form of the bill at the specific request of the Yukon First Nations. That left us with the impression that the process was responding to concerns of First Nations.
Did everyone agree to everything? I don't think he left us with that impression, but I wonder whether it is accurate as I described it. Did First Nations find that those accommodations were made in the final form of Bill S-6 to some of the issues at least?
Ms. Massie: Perhaps I could have some of our technicians answer those questions, as they were in their caucus meetings with this.
Mr. Leas: ``Consultation'' does not mean ``you have to agree with us.'' Clearly the courts have said that when the federal government is making decisions affecting our treaty rights, there is a duty to consult, listen to us, hear what our points of view are, and then take steps to accommodate the concerns we have raised.
As the grand chief said, there is a fundamental difference — and it's true that drafts were provided and that federal government officials met us with at our request to explain the provisions, but there was never the dialogue that took place about trying to develop language to accommodate our concerns. I think that is fundamentally where we fall short: It's not enough to come and share the information and provide clarifications; we are looking for actions in good faith to deal with our concerns.
Those are the concerns that have been raised in writing to the federal minister's office over the last two or three years on these particular issues.
Conversely, with the five-year review amendments, it was clear. We had a lot of dialogue, and that's why the process took so long. Recommendations were made there. For the most part, except for the three we raised, we have been able to deal with it. That never took place with these four issues that were raised today.
Senator Wallace: You say that the accommodation or the consultation process wasn't just to convey information. You leave me with the impression that that's all that was accomplished. We'll perhaps have to follow up on this, but my understanding from the minister's presentation is that Yukon First Nations made specific requests for accommodation and that those were addressed. So the back and forth wasn't simply to convey information but to address specific issues. We will follow up on that.
Mr. Leas: With some issues — certainly on the issues we are not raising today — we are pleased. But with regard to the four issues we have highlighted in our presentation this morning, we are deeply troubled that accommodation was not made to deal with our particular issues.
Roger Brown, Manager of Environment and Natural Resources, Champagne and Aishihik First Nations: With the respect to accommodations, it's very important to follow through and look at some of the track there.
The only thing I can provide is an example. Some of the witnesses who have presented before you to describe what accommodations have been made I think are misleading, and some have been inaccurate or don't convey the right thing. For example, one the witnesses you heard had presented that one of the First Nations had requested a cumulative effects assessment as a likely provision. Well, that was actually discussed during the five-year review where we all came to agreement on that. The fact remained that at an earlier iteration of the draft bill, it was not there. So the First Nations in the meeting had noted, ``Hey, what about this? We agreed to it in the five-year review.'' It was simply notifying the early drafters that someone must have mistakenly left out that provision we agreed to.
On another matter, there is the idea that if you have already had an assessment, you are not required to have one again; this issue of project renewals. Earlier iterations of the draft had suggested this could be a matter addressed through regulatory-making authority under the act in section 122. Then it evolved into, ``No, we're just going to have a very big umbrella legislative provision that prevents requirement for reassessment unless determined by a decision body that is significant.'' In fact, we were asking for even the regulatory thing to be taken out, because we had already had a remedy in the five-year review, which was for it to be dealt with through a scoping policy process. So we are very surprised by where we are today.
The Chair: Thank you, Grand Chief Massie, Chief Fairclough and Ms. Mary Jane Jim.
I want to put on the record that I took the liberty of taking 20 minutes out of the next presenter's time to accommodate a large group and allow them time to actually present. I'm sure you appreciate that. I'm sure the next presenter is going to appreciate how much it means to you to have had that extra time. Thank you very much. I appreciate it.
Senator Massicotte: This is to strictly tell you that we heard you clearly. But being the optimist that I am, I heard one good piece of information from you. When you talk about delegation, you said you had problems with the provincial government but you very much trust the federal government. That was very refreshing to hear that from you.
The Chair: Welcome to the second portion of this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. We are continuing our examination of Bill S-6, the proposed Yukon and Nunavut regulatory improvement act.
It gives me great pleasure to welcome our second panel from the Yukon Energy Corporation, David Morrison, President and CEO.
I want to thank you, Mr. Morrison — you came a long way too — for giving up some of your time to the previous panel. I appreciate it very much. The floor is yours, sir.
David Morrison, President and CEO, Yukon Energy Corporation: Thanks for the opportunity to come and speak to you today about the YESAA amendments, as I'll call them. I don't have a long introductory set of remarks, but I have what I think are some important points.
We're not going to talk — at least I hope not — about the issues that the previous panel discussed. Those are not my issues. I'm here to tell you today that as Yukon Energy, we have probably been through more YESAA screenings than anyone else, so we are the meat-and-potatoes guys here. We want to talk about the practicalities of the process and the relationship that a lot of these amendments have to making the process better.
We have been through three executive committee screenings. I would guess that's two more than anybody else has ever been through. We have been through 33 designated office screenings; 39 screenings through the YESAA process.
Timelines are imperative. In order to help the committee understand this, I want to talk for a minute about how projects work. Projects don't work on other people's timelines. Projects work within a fairly logical set of processes when you go forward to try to build things. First you do some planning; then you do some environmental baseline; you do some preliminary engineering and you start moving projects forward. Projects move forward not when every ``I'' is dotted and ``T'' is crossed and they're ready to go. They move forward about halfway through their life, and they move into these screening processes. Having screening processes that don't have defined timelines, and strictly defined timelines, makes it very difficult for people who are investing millions and hundreds of millions of dollars.
In the last five years, we have spent over $250 million advancing projects, more than anyone else has spent in the Yukon, outside of government. I think in some way you could say we are government; we are certainly a Crown corporation. As a Crown corporation, we are used to being regulated. We are regulated, regulated and regulated. We're used to regulation that has very clear, well-defined and well-prescribed operating frameworks. I would say that as much as YESAA has grown and improved over its life, it has some ways to go, and I think some of these amendments that you are talking about will really be helpful in that respect.
Although I heard the debate around how and where the policy directive piece fits, I'd like to speak to you about why I think the policy directive piece is very important. You can't have an entity that doesn't have a parent, that can't be guided by someone. When you are trying to guide an organization or an entity, a regulator or an assessment body such as YESAA, you can't always have it going back to a legislature to get legislative change when you are talking about the practicalities of how an assessment process or regulatory process can be refined to make it work better.
I would ascribe to Senator Patterson's view that regulation by someone closer to us is better than someone far away, but I would not throw the baby out with the bathwater on the policy directive piece. I think it's important that someone can guide an organization through its growth period, and someone has to be responsible and have the ability to set policy, guidance and framework in order to do that. It's imperative that organizations such as YESAA, which I'm grouping into this regulatory bundle of things, have consistency, fairness and transparency. That can be improved because organizations, economies, and provinces and territories grow and change over time, and somebody has to have that guiding hand.
Without going on and on about it, my experience over the years — and I've been doing this a long time. This grey hair isn't only from stress; it's from age, as well, and experience. We can fight about the intricacies of things or we can, in my view, look at the practicalities and look at building things and making them better.
There are a couple of other points before I get into giving examples of where there are issues. Adequacy, in my opinion, is almost the most important thing that could be dealt with here in terms of how it's defined and the fact that it has to be defined and clear. As much as your timelines are welcome and as much as your timelines really define, from my perspective, the bigger issue of executive committee and designated office timelines being shrunk, I don't think they're shrunk enough, in my opinion, because they still allow a lot of time to go through a process. This process has all kinds of starts and stops over and above those 16 months. Yes, I understand why you have to have some leeway built into things, but right now that leeway is unfettered. It doesn't have any fences, and it needs fences. It needs to be clear for all parties what the definitions of those things are, because coming in and doing what you think is the right thing, and having somebody tell you it's not adequate, is esoteric; it doesn't give clarity to the process. When you are spending tens or hundreds of millions of dollars, you need to know the rules of the game and they need to be clear and consistent.
Timelines are very important, as I have said, but the consistency of the process is very important. When I get down to timelines, I'd like to see some breakdowns within the process that give me an idea of how you get from one step to the next step, not just the strict 16-months on the executive committee or 9-months on the decision body.
To give you an example, from issuing a draft screening report to getting a final screening report should be a fairly straightforward and short process. You have done all the work. You have taken all the comments. You have had your consultants and experts look at it, and you have actually written a draft screening report.
On our LNG projects, which we just had through the YESAA, it was 82 days to go from a draft screening report to a final screening report. I don't know; how do you take 82 days? Thirty days for public comment and 52 more days to write a report that you have already written. That is too long, and I don't know what happens in that period of time.
Sixty-two days for Mayo B; 76 days for Carmacks-Stewart to get from the draft screening report to the final screening report. Seventy-six days for a project that is a transmission line. Not one pole in water anywhere, no issues, mostly following the highway.
You have got to look at projects. I can see that some project that is large and has a huge environmental imprint might take 16 months, but I would like to see some consideration around smaller, less impactful projects. Maybe there's a more straightforward process in terms of timelines.
I hadn't wanted to comment on it — and it wasn't part of my intention to comment on it — but I just have two final points, and then I will give senators the floor.
Senator Patterson or Senator Mitchell raised the question of adding cumulative effects to the issue. I want to caution you on cumulative effects. I would say it is probably a very good example of something that has to be properly defined and given certainty from the proponent's point of view as well as the assessor's point of view.
We built a transmission line. I will use this as an example, even though cumulative effects weren't brought into it to the same extent as I think you are talking about. The cumulative effects piece on a transmission line, because it was raised, was, ``Well, that's opening this area to economic development. We need to assess that.''
I beg you to help me define how you would assess that because there is no economic development. How do you know what is going to happen? How long do you think it's going to take? When is it going to happen?
Yes, I think these things are all well and good to add, and I'm a big supporter of regulatory processes. However, you really have to be in a position to clearly define them and manage these processes in a way that doesn't just open this big question up and cause further delays and further differences in determining what cumulative effects are, how they are defined.
We have had some good YESAA experiences and we have had some negative ones, and one of the issues has to do with — I can't remember the phrase — trying to harmonize processes, not duplicate processes. I will give you an example from both Mayo B, our hydro project, and the LNG project we just built.
We are regulated on those projects and everything else we do by an economic regulator, the public utility board, just like all other provincial regions, with the exception of Saskatchewan. They are an economic regulator. YESAA has always relied on them to deal with these questions: Is this project economic? Is it the best choice in terms of alternatives for the options being looked at?
In this last hearing, at the eleventh hour, as part of this getting from draft screening report to final screening report, they decided they would go out and get an economic analysis done of the project. We had just been through a three- or four-month process with our public utility board, an exhaustive process — six hundred written questions — and YESAA decides it is going to go off and get another opinion, in their view, from somebody who did weeks, if not a month or so, of work and came back and said I don't know what because we never saw the report.
The same thing happens in a different light with the water board. We go through a YESAA process, which looks at the environmental footprint and the use of water and all of those issues, and then we're off to the water board to do exactly the same thing. It is months and months and months.
I know that people can't control when people apply for projects and how these processes roll out, but there has to be consideration given to the costs that are happening to the proponent.
My final point is that there are often costs, and we have no way to dispute the costs or refute them other than by going through a referral-back process by saying that we're not going to do it.
On the Carmacks-Stewart line, in the YESAA final screening report, they moved a section of the transmission line. They moved it from our routing, and they picked the route. It was $2 million to change the route. That's a lot of money, and we had no say. Our only say was that we could go back, but now we're talking about a process of six, eight or nine months more. So you eat it and keep going, but these are not insignificant.
We have got to find ways of having rules that deal with these kinds of issues. I think having the minister — and, in my mind, I don't care if it's federal or territorial — be able to set these policy directives and make sure these things are transparent and well prescribed is an imperative part of this process.
I would argue for more time, but you probably won't give it to me. So I'm ready for questions, Mr. Chair.
The Chair: Thank you very much. We'll start with Deputy Chair Massicotte.
Senator Massicotte: Thank you, Mr. Morrison, for being with us. You know our chairman well.
Talk to me about process. You were in the cog and you were involved in the last five years when you reviewed the existing act. You heard from our previous witnesses that they had 76 recommendations, 72 unanimous, and that this is an important improvement and an important act. What they're very upset about is that the policy directive paragraph, as well as the delegation paragraph, was brought in at the end and not discussed with your group. Is that the case?
Mr. Morrison: I can't comment, Senator Massicotte, on where that was brought in. I wouldn't be part of that tripartite group. We were certainly allowed to comment. We provided comments, but I don't know where all of that piece took place.
Senator Massicotte: On the policy, you make an argument saying that it is very important and useful and that we need somebody to decide and give direction. Was that part of the 76 recommendations that the group came up with and said, ``We need to insert such policy direction?''
Mr. Morrison: That I don't know. I don't know where that came from in the process; I'm just saying it's good.
I don't know regulatory processes or boards that don't have this. In the Yukon Public Utilities Act that we're governed by, which is the one I'm most familiar with, that power exists. The minister can give direction and make policy for the public utility board. My friend Senator Patterson, I don't know if it's in Nunavut because I'm not as familiar, but certainly, when it was the Northwest Territories, that policy existed there as well.
I wouldn't have paid that much attention to where it came up in the process. I just look at the concept itself, and I know how important that is.
Senator Lang: I would like to welcome Mr. Morrison here. You gave a very good overview with respect to the meat and potatoes of the actual process itself, and that's why, in part, this legislation is here, to make it more efficient. Later on next week I think we will hear from other proponents that have gone through the process, and they will describe their difficulties and successes.
There is something I want to follow up on a little further. That's the question from Senator Massicotte about the policy and the ability for the minister or, quite frankly, the department in consultation with the board, to develop policies that give discipline to the system.
I would like to have you describe further how you would see that working. If you were the minister and were put in the position to say that for cumulative effects, I think there should be a policy and clearly describe what that policy is, within a general framework, so that a proponent would know how that is, how do you see putting that policy in effect?
Mr. Morrison: To me, there is a myriad of ways you could do that. It would be part of a consultative process. You would want to sit down with folks who could articulate that in a draft that might get circulated or you could sit around the table and get input, go away and come back with a draft and circulate it. But for a number of these items, what they need is a definition and clear boundaries so that everyone understands where they can go and where they can't, and what is to be considered.
There are folks who can help do these things but it would then be, ``Okay, let's have a discussion around the table between the parties and develop this.'' Not everybody is going to get everything they want, but at least you will be able to define it and perhaps it can be refined as it goes forward.
Senator Lang: I would like to move to another area, which is the question of the issues raised earlier today. I believe they were very sincere in how they presented their positions. At the same time, we know we have a piece of legislation that is very important to Yukon. As I think Senator Wallace said, consultation doesn't mean that you get everything you have requested. At the end of the day, there are some compromises and in some cases the other point of view prevails.
I will make this comment: You and I both know, being from the Yukon — and as the premier said very clearly the other day — that our process, if we don't have changes, is very much behind what every other jurisdiction in Canada presently has in place. How important and imperative do you feel this legislation is to ensure that we regain our competitive position with the rest of Canada, the Northwest Territories and Nunavut so that we can carry on with attracting investment?
Mr. Morrison: It is easy sometimes to say, well, it is just an assessment process and everybody has assessment processes so you have to let them have a life of their own. I don't think that's the case. Getting the processes right is highly important in a day where money can travel much more freely than it ever could.
There is competition for the investment dollar, and it is highly competitive. One of the things about Yukon is that much as you have all seen how beautiful it is — and how much those of us who live there like being there — it does have a high cost of business. If you add to that cost by regulatory or assessment processes that are lengthy, cumbersome and not easy to understand or navigate, you add another chink in the armour. You are adding up to a point where maybe you have pushed the rock too far and you are back down the hill again.
People look at all these things. It isn't just the fact that there are some minerals in the ground; it is how we get them out of there. Where do they go? What's the process? How much does it cost? When I indicated that these processes can add cost to projects, they can add significant cost to processes, particularly when they're not well defined. That mushiness adds time, and time is very costly.
You might get a two-month delay in an assessment process that costs you a year from a construction point of view, because you have missed the construction window. Those things really add up. They add up significantly.
Senator Seidman: Thank you very much. You have provided the pragmatic viewpoint to us and we appreciate that enormously.
If I could make a point, which almost everybody who asked questions has made, that has to do with your support and point of view that an individual providing broad policy direction to this growing body is of enormous import, and the amendments provide very clear limitations on that. They provide boundaries when it says in 121.1(2) that ``Policy directions do not apply in respect of any proposal for a project that, at the time the directions are given, has been submitted to a designated office, the executive committee or a panel of the Board.'' So there are very defined limitations.
Mr. Morrison: As there should be. Nothing should be open-ended.
Senator Seidman: Exactly. The minister was very clear about that when he was here because that was an issue.
You have a lot of experience and have given us examples of how things weren't working. Could you succinctly, maybe without specific examples, tell us from your point of view what ways the current system has not been working?
Mr. Morrison: I will give you a couple of examples of specifics, but in a general sense in terms of issues. I want to speak here more at the executive committee level, which I'm personally more familiar with.
The YESAA office does not necessarily have expertise in that industry or that process, so if we come in with this LNG project, nobody in that office has been through it, doesn't know what a gas engine is, doesn't know what gasification equipment is, has no clue; fine. So they go out and get experts.
Certainly in this case they got experts. We agreed around the table, as stakeholders, on the limits. One of the issues is the impact of the process if there's a spill or a dangerous situation. It was very clear that it is limited to the boundary of the property.
Well, those were YESAA's experts. Then they decided, for some reason, they were going to get other experts who told them something else. But what they were doing was getting into the role of the regulator. They were crossing a boundary and talking about what are really regulatory issues and they were told that by the regulator, but they still wanted to go out and do that work.
One of the difficult issues is that you have a lot of people giving you a lot of comments. How do you address them? At some point, they don't have the resources to do that, so they may need more resources.
More importantly, it is the lack of understanding. We were going through a designated office screening on an air emissions permit for our diesels and we get questions: ``Tell us how you're going to operate the diesel, system-wide.'' We're talking about one community at a designated office. ``Tell us how you're going to operate this system, system- wide. Why are you going to do it this way or that way?'' Those are operational issues that have nothing to do with the air emissions in that community.
They tend to stray out of their area, which is why I talked earlier about needing to understand the adequacy, but you also have to understand the roles what you are really assessing. You are assessing what's in front of you. Whether you want to stray or people want to make comments about things, they tend to get dragged off, I would say.
One of the things I really like about the YESAA, and I would be at fault for not saying this, is the ability to go in and talk to them, whereas you can't talk to most regulators. You can have a discussion with them. You don't always win, but at least you get an opportunity to state your case, and that's important. It is important in all this process to realize that you're going to win some and lose some. You are going to get regulated. You are going to have an environmental decision that doesn't have everything you want in it, but that's not the point. The point is to do the best job and as long as it is done fairly and transparently, I think we're all winners.
Senator Black: I sense a very high level of frustration, Mr. Morrison. Coming from the energy industry before I came here, I understand where that is coming from.
Mr. Morrison: Yes.
Senator Black: You have reviewed the proposed legislation. Have you any suggestions for things you would want in addition to what you see?
Mr. Morrison: I thought about that, and I don't think so. My answer would only stay that way if the amendments in the bill go forward. They're very important amendments.
Senator Mitchell: It was understandably your frustration in the 82-day example and the 62-day example — you alluded to what may be the answer to that in an earlier answer. Is it a capacity problem, a budget problem or a problem of not having a sense of urgency? Do they need more people or money?
Mr. Morrison: I wouldn't have experience enough to say they need more people, but my sense is that they do. We were at an executive committee screening and a couple of others were coming in the door but there were inadequacies, and it is not a big office. They're looking for people. In conversations I've had with members of the executive committee, I've heard them say they're scrambling to find some people to try to get through it.
The difficulty is that it can be a real roller coaster. You can have a whole bunch of projects in and then you might not have any for a bit. You will get one and then maybe there's a whole bunch of others. You can't manage the timing of how these projects come in. That's one of the challenges; so overall, probably, yes.
Also in the process, there have to be clear targets of how you get from point A to point B. They struggle with that at times as well and with the experience of the staff they have.
[Translation]
Senator Boisvenu: Mr. Morrison, thank you very much for being here. And I would like to thank you again for your hospitality when we visited the Yukon in the spring. Personally, I thoroughly enjoyed it.
I spent about 10 years working as a senior manager at Québec's environment ministry, so I appreciate your frustration. The private sector would always point to two major irritants: the amount of time it took to obtain approvals and, especially, the lack of any distinction between high-impact projects and low-impact ones. I would often see employees take longer to deal with a low-impact project, and to develop legislation addressing production methods rather than desired results. This was a major source of frustration for companies.
I am not sure whether you heard the previous panel of witnesses. Correct me if I am wrong, but I gather that the people in the Yukon's Aboriginal communities are uneasy about having the minister delegate some of his powers to an authority other than them. I would like to know which of the two schools of thought you, as the proponent, subscribe to. Is it better to delegate this kind of responsibility to a provincial or territorial authority, like the Yukon, or to hand the power directly over to a local authority, like the Aboriginal community? Which is your preference? My understanding, given what we heard from one witness, is that the issue seems to have more to do with politics than the environment. What is your view on the matter in terms of efficiency and effectiveness? As far as the powers that are about to be delegated under Bill S-6 are concerned, would it be better to delegate them to a provincial authority, like the Yukon, or a more local one, like an Aboriginal band or community?
[English]
Mr. Morrison: I know enough about politics that I should probably dance around this one. Seeing as I'm here, let me try to be helpful without getting too much into the issue of politics.
I will start by telling you that our LNG project was just permitted through the regulatory process. There were 38 permits required before we could put a shovel in the ground. I tell you that by way of trying to be helpful, Senator Boisvenu, because I think there are levels; it isn't one or the other but a combination.
At the local level we are dealing with First Nations directly. Our LNG project is a good example as we're on Kwanlin Dun First Nations traditional territory, which is on our land, and Ta'an Kwach'an First Nations. We have a partnership with KDFN as they will be 50 per cent owners of this project. In some instances, they are decision bodies in projects.
As I said before in response to Senator Patterson's point, my preference is that it be more local than farther away. Quite frankly, would it bother me if the directive power stayed with the federal government? That wouldn't bother me at all.
Whatever government is in Ottawa and whatever government is in the Yukon will come and go. There will be changes. If you are going to bring it down to the local level, to individual First Nations, you are starting to bring it down too far. The practicality is that they have abilities on their lands and on their properties to make rules, laws, standards and guidelines. For example, on our Carmacks-Stewart transmission line, we cross Selkirk First Nation, Little-Salmon/Carmacks First Nation and other First Nation lands. We are on settlement lands and have right-of- ways. We were prescribed what we could and couldn't do on those lands for those specific areas responding to each of the First Nations.
When you think about it that way, there is ability for all levels of government and municipalities within Yukon. We have permits from the City of Whitehorse, the Yukon government and the federal government. It is a fairly broad scope.
I don't want to think of it as a level of government or politics; I look at it more in terms of the practicalities. If it's a problem moving from the federal government down to the territorial government, then leave it at the federal level. I don't care, as long as somebody has an ability that is not legislation-based so that we don't have to go through a Parliamentary process to guide the ship; and the ship always needs to be guided by someone.
The Chair: Mr. Morrison, thank you kindly for giving up some of your time. We appreciate that. Thank you for your remarks, which were very good and will form part of our decision making.
Mr. Morrison: Thank you for the opportunity, senator.
(The committee adjourned.)