THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
OTTAWA, Tuesday, December 12, 2017
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-17, An Act to amend Yukon Environmental and Socio-economic Assessment Act and to make a consequential amendment to another Act, met this day at 5 p.m. to give consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
The Chair: Good evening and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
I am Rosa Galvez, I represent Quebec, and I am the chair of this committee. I would now invite the other senators around the table to introduce themselves, after I introduce Maxime Fortin, the clerk, and Sam Banks and Marc LeBlanc, the committee analysts.
Senator MacDonald: Michael MacDonald, Nova Scotia.
Senator Neufeld: Richard Neufeld, British Columbia.
Senator Richards: David Richards, New Brunswick.
Senator Dupuis: Renée Dupuis of the senatorial division of Laurentides, Quebec.
Senator Seidman: Judith Seidman from Montreal, Quebec.
The Chair: On December 6, 2017, the Senate entrusted us with Bill C-17, An Act to amend the Yukon Environmental and Socio-economic Assessment Act and to make a consequential amendment to another Act. Two meetings are scheduled this week to study this bill.
Today we welcome the sponsor of the bill, the Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations and Northern Affairs. She is accompanied by officials from her department, Stephen Van Dine, Assistant Deputy Minister, Northern Affairs; Gilles Binda, Acting Director, Natural Resources and Environment Branch; and from the Department of Justice Canada, Daniel Pagowski, Legal Counsel.
Thank you very much for joining us.
Minister, I invite you to proceed with your opening statement, after which we will go to a question and answer period.
Hon. Carolyn Bennett, P.C., M.P., Minister of Crown-Indigenous Relations and Northern Affairs, Indigenous and Northern Affairs Canada: Thank you very much, Madam Chair. It is an honour to be here and at a new committee for me as we gather on the traditional territory of the Algonquin people to discuss Bill C-17.
As you know, it’s the act to amend Yukon Environmental and Socio-economic Assessment Act, or YESAA is the way it is referred to.
Good afternoon, Senator Patterson.
Thank you, Madam Chair, for introducing our officials. This has been a long journey, and I hope to go to Yukon tomorrow. This is all very timely as we go to visit the territory with the most self-governing nation. This is a very important tribute to their leadership.
As we all know and agree at the table, a sustainably developed resource sector is absolutely essential to the economic success of Yukon. Yukoners have made it clear that unlocking this economic potential must be contingent on environmental sustainability and on impacted indigenous communities being engaged as equal partners.
They understand that this is not only essential to support reconciliation but is also a legal obligation.
This is even more significant in regions like Yukon, which are subject to comprehensive land claim agreements and self-government agreements.
The original 2003 YESAA stems from the umbrella final agreement between Canada, Yukon self-governing First Nations and the Government of Yukon and was subject to a mandatory five-year review.
This was carried out by the previous government and resulted in 72 recommendations which were agreed to by all parties and four that were not. There was agreement to move forward with the 72 consensus recommendations and not to proceed with the remaining four.
Bill S-6, Yukon and Nunavut Regulatory Improvement Act, was introduced in the Senate in June of 2014 and received Royal Assent in June of 2015.
That bill implemented the consensus recommendations from the five-year review, which required legislation.
Unfortunately, the Government of Canada also added four additional provisions which were not included in the 76 recommendations from the five-year review process and, according to Yukon First Nations, was absent meaningful consultation.
On October 14, 2015, in response to the passage of these four contentious provisions, three Yukon self-governing First Nations — the Champagne and Aishihik First Nations, Little Salmon Carmacks First Nation and Teslin Tlingit Council — challenged these provisions in the Supreme Court of Yukon.
The Government of Canada is committed to a renewed relationship with indigenous people based on the recognition of rights, respect, cooperation and partnership.
As you know, Madam Chair, that phrase, “the recognition of rights, respect, cooperation and partnership” is in the mandate letters of every minister.
This includes, whenever possible, pursuing negotiation rather than litigation to resolve disputes between Crown and indigenous peoples.
In this regard, Canada, the Yukon government and Yukon First Nations signed an MOU in April of 2016 outlining the mutually agreed upon steps toward addressing the concerns of First Nations with certain changes implemented through Bill S-6.
As a result, the parties to the litigation have agreed to adjourn their hearing dates to allow for Bill C-17 to be passed.
Bill C-17 seeks to repeal those four contentious provisions which were passed through Bill S-6 in 2015. These provisions include legislated time limits on the review process, exemption provisions regarding project reassessments, powers for the federal minister to provide binding policy direction to the board, and the ability of the federal minister to delegate duties or functions under the act to the territorial government.
Bill C-17 will re-establish trust with Yukon First Nations and restore legal certainty for responsible resource development.
It will also remove a key impediment to increased investment, development and jobs in Yukon.
I would also like to note that the project approvals by the Yukon Environmental and Socio-economic Assessment Board were already meeting or exceeding the timelines imposed through Bill S-6 before the legislation was passed.
I am pleased to tell the committee that the vast majority of Yukoners support this bill. In fact, a unanimous motion supporting Bill C-17 was passed by Yukon legislature last spring.
In addition, the Council of Yukon First Nations, the Government of Yukon and the the Yukon Chamber of Mines issued a joint letter last March urging the passage of Bill C-17, without change, as soon as possible.
The letter also stated that they looked forward to passing the bill so:
. . . Yukon economy can benefit from the certainty established by the final and self-government agreements in Yukon.
I understand you will be hearing directly from all the signatories to that letter during your study, and I believe they would reiterate their support for passing Bill C-17, without amendment, and on an expedited basis.
The government also understands that the support of industry groups, including the Yukon Chamber of Mines, is not unconditional. They have made it clear that issues, including reasonable time limits for environmental assessments and criteria for reassessments of projects, require further discussion and clarity.
First Nations, the Government of Canada and the Government of Yukon agree that issues, including reasonable time limits for environmental assessments and reassessments of projects, require a strong policy framework.
However, Yukon First Nations have been clear that passing Bill C-17 is an important show of good faith and is the first step in moving ahead with these important discussions.
The Champagne and Aishihik First Nations, Little Salmon Carmacks First Nation and Teslin Tlingit Council have also been clear that passing this bill is a prerequisite to abandoning their litigation.
My office has been working closely with the Yukon Chamber of Mines and other partners to lay the foundation for the important and necessary work to ensure that the concerns expressed by industry will be dealt with through other policy mechanisms shortly after the passage of this bill. In fact, I will be in Yukon this week celebrating a new memorandum of understanding that we have signed with the Council of Yukon First Nations, the 11 self-governing First Nations in Yukon and the Government of Yukon.
This MOU sets a framework for how we will work together, in full partnership, to collaboratively implement and improve the Yukon assessment process.
The MOU also creates the space for us to work with industry and others to make sure that their voices are heard as we move ahead.
Bill C-17 clearly demonstrates our intent to work closely with all our partners in Yukon to re-establish the trust with Yukon self-governing First Nations and to restore the legal certainty for responsible resource development.
I urge all senators to support this bill, and I look forward to your questions.
Thank you, Madam Chair. Chi-meegwetch.
The Chair: Thank you very much. Now we will go to questions.
Senator Patterson: I am privileged to be the critic of the bill. I thank the minister and her staff for making themselves available for briefings and for frankly discussing the issues of concern to me.
Bill S-6 that is being repealed today covered Yukon and Nunavut. Two of the provisions being repealed today are the elimination of timelines and the elimination of exemptions for reassessments where there are minor changes in projects, that is, not significant changes in projects. They are now in place in NWT and Nunavut, and I hope it’s temporary.
Temporarily we have a checkerboard in the territories where we have identical timelines and reassessments in Nunavut and NWT, and the absence of those provisions in Yukon.
Would it be the federal government’s policy still that there should be broadly similar regulatory regimes across the three territories?
Ms. Bennett: Senator, that’s an excellent question. As you know so well, because the policy is of co-management it means that our two partners have to be in agreement with the policy.
In this situation where these provisions were not agreed to by the other two parties, it is not our place as the federal government to impose. I was saying to my team the other day, during the briefing, it’s like having a three-legged stool where one leg is longer and more powerful. It doesn’t stand up very well.
We are very keen, as we go forward, to make sure that we have consensus from the First Nations as well as from the Government of Yukon. That is the approach we are taking bottom up.
Senator Patterson: I am delighted to hear the minister is going to Yukon to celebrate this tripartite arrangement, which is working well in my home territory of Nunavut.
You talked about regulatory certainty in your remarks. The chamber of mines also talked about the need to restore legal certainty. I am concerned that there is a commitment to put replacement language in place to deal with the repealed provisions in Yukon terms with the parties involved.
As one of the parties and the author of this legislation, what is the government’s timeline for putting in place policies or regulations to replace these provisions and restore certainty in this jurisdiction?
Ms. Bennett: We are going up there this week to reinforce the fact that a memorandum of understanding was already agreed to in terms of how we go forward on the policy implications that won’t be in legislation, so that we know we can do this with the parties.
It’s important to understand that what was termed reassessment is actually an assessment of new things on both sides. Assessment can be that the project has dramatically changed, or it can be that the environment has dramatically changed in terms of a riverbed or an accumulation of toxic chemicals. It’s really only assessing the bits that have changed, not a reassessment of the whole project.
Senator Patterson: That’s music to my ears.
Ms. Bennett: I think that was where there was a bit of nervousness. I am happy to have the opportunity to clarify that.
On the timelines, as I said in my remarks, Yukon has been exemplary. They’ve been best-in-breed in terms of meeting timelines and getting these things done. Putting timelines into legislation was viewed to be unnecessary, particularly when there were no consequences for not meeting them. It doesn’t make any sense to put something in law if you don’t actually have a consequence for not meeting it.
Again, this is why the territory now and the First Nations felt, “Don't put things in if they really don't have any impact.” What we are celebrating on Friday is the fact that this memorandum of understanding has already been signed as to how we will work together.
Senator Seidman: Thank you very much, minister, for being with us today.
I’d like to pursue Senator Patterson’s line of questioning, if I might, about the timelines. Provisions are being repealed but there are expectations that they will be replaced with something as soon as possible, presumably. In fact you made reference to this in your presentation to us when you said that “passing this bill is an important show of good faith and a first step, according to Yukon First Nations.”
You also alluded to the fact that the Yukon Chamber of Mines is a little disturbed. If I understand correctly, it’s probably because of the fact that there are no regulations and no framework to replace what is being repealed that there is this degree of uncertainty.
All that to ask: This is a first step, but what is your expectation of this timeline? Will it address the issues that are left outstanding as a result of repealing these provisions?
Ms. Bennett: These operational practices already exist right now and have been meeting all the timelines. The chamber of mines did join in writing the letter with Yukon First Nations and the Government of Yukon, telling us to get on with this as quickly as possible so that we could get this impediment out of the way and get going on the kinds of agreements that need to be in place.
The memorandum of understanding means that all three parties will agree to the way forward, even though I think most of them felt that it was working well, that you don’t fix what isn’t broken, and that somehow Bill S-6 fixed stuff that wasn’t broken and now we have to unfix the fix, if that makes any sense.
Senator Patterson: You read my speech.
Ms. Bennett: It sounded familiar.
Yukon has been the envy in the way that companies and First Nations work together. I remember sitting in the Chamber of Commerce in Whitehorse probably 15 years ago. The mining companies and the First Nations were there. They were all actually helping one another to get First Nations to build a company to service this mine.
Many other parts of Canada envy the way that these groups work together and the way that mining companies have felt certainty. As a self-governing nation, they make their own decisions and when it comes to a decision they stick with it.
Everybody understands that it is for us to get this bill through and have the three parties look at the operational review of the processes and whether they can be improved. That’s great, but they’re certainly meeting and exceeding the timelines.
Senator Seidman: You said in your presentation to us, under the title “Further Work Needed”:
The government also understands that the support of industry groups, including the Yukon Chamber of Mines, is not unconditional. They have made it clear that issues, . . .require further discussion and clarity.
For example, what are the issues from their perspective that need more work?
Ms. Bennett: I think it’s that we don’t go backward. They don’t want any delay in going forward. They want to make sure, as the memorandum of understanding explains, the way of working together will be agreed to by all parties and that they will achieve the certainty they want.
Frankly, this period has been disruptive because the First Nations were in court stopping this. The court case is in abeyance and we are moving forward in a real way. They just want to get on with this.
Senator MacDonald: Before I proceed with my questions, I wanted to put something on the record because I thought we should.
The colleague to my right, Senator Neufeld, has been on this committee for nine years. He has been on the steering committee since his appointment to the Senate, and he has been the chair of the committee for five years. I am not sure we really captured that in the last meeting.
I think we were in camera, so I wanted to put on record, on behalf of all of us who have served with him, how much we appreciate having a veteran politician and long-time MLA and cabinet minister in British Columbia serve us and the country on this committee. Senator Neufeld, on behalf of all your colleagues, thank you.
Hon. Senators: Hear, hear.
Senator Neufeld: Thank you.
Senator MacDonald: I have always been intrigued with the North. I remember back in 1999 when Nunavut became a territory. I was also intrigued with the fact that it cost $1 billion to set it up.
Today, the Government of Nunavut gets about $2 billion in transfers for 37,000 people. Nova Scotia, with a million people, gets just over $1 billion. I am not sure what the numbers are for Yukon and Northwest Territories, but I know that the total population is 0.32 per cent of 1 per cent that of the entire population of Canada. Huge transfers are going to these territories.
Could you tell us how much transfer went to the Yukon government through the territorial funding formula in the recent budget? How does that compare to the amount of royalty revenue generated from mineral resource development in Yukon? I am curious as to when we are to help these remote areas raise revenue.
Ms. Bennett: That is a great question. First, we’re all intrigued by the North in the fact that it is such a huge part of our country. Most Canadians don’t understand that Baker Lake is the centre of the country. The Supreme Court has ruled many times in terms of the land. It isn’t rep by pop because we don’t have enough people up there. We have lots of land and we need to assert our sovereignty on that land.
This means that we need to respect the people who live there and make sure that their quality of life is as good as it can be. That’s what the transfer is about, but you’re perfectly right that the issues of resource revenue sharing and how you actually make those sorts of calculations are very important.
Maybe Mr. Van Dine could explain to us how we sort these things out.
Stephen Van Dine, Assistant Deputy Minister, Northern Affairs, Indigenous and Northern Affairs Canada: The building blocks are fairly well described. Essentially, the major transfer mechanism is the territorial formula of financing.
Our colleagues at Finance Canada are responsible for doing a series of calculations. Perhaps we could provide more information to the committee on how they calculate it. Grosso modo, the royalty generation component is calculated in those transfers, so there is some kind of acknowledgment up to a certain amount.
Years ago we used to have this mechanism when this department was responsible for funding, and then certainly Finance Canada after. We had a bit of a perversity clause built in. We would actually deduct any own-source revenue the territory generated from the federal transfer. We realized over time that was not productive to building sustainable economies locally. That perversity factor was removed, and there is now an ability for revenues to be generated and retained up to a certain amount.
One thing not often known about the Yukon government is that, to my knowledge, they have never run a deficit. It’s one of the only jurisdictions in the country where they have been able to meet the books, based in part on the various revenue streams they have been able to bring in, including the TFF.
Senator MacDonald: I still don’t have an answer to my question. How much revenue is being raised up there through royalty and how much money is being transferred?
Mr. Van Dine: We will have to provide those details to the chair subsequently. Those are technical calculations between our colleagues at Finance and the Yukon government.
Senator MacDonald: I have one more supplementary question. I am roughly estimating here. Let's say it is $2 billion for Nunavut and that it is 1.5 for the other two, although I really don’t know the numbers. It could be $4 billion or $5 billion. That’s a lot of revenue being transferred.
Ms. Bennett: I think it’s about one.
Senator MacDonald: Still, it is a lot of revenue being transferred to just over 100,000 people.
Shouldn’t the government be enacting policies that will make it easier for Yukon to grow the economy and become less dependent on territorial transfers?
I believe these provisions will make it tougher.
Ms. Bennett: I think we will have to agree to disagree. What we are doing here is that we are removing the impediments to growing the economy because if the First Nations don’t agree and are tying things up in court, we don’t make progress.
This is something that the territorial government and the First Nations have decided is in their best interests. Our job in the South is not to argue with them about what they need to be able to grow their economy. This is what they’ve said they need.
Senator Dupuis: Thank you, Madam Minister, for helping us to understand this bill before the committee. You told us about the agreement reached in April 2016, whereby the court proceedings were put on hold. Does the agreement contain a provision for the suspension or withdrawal of court proceedings if a bill is passed? I would like to know more clearly what is in the agreement that came out in 2016. It is said that the passage of Bill C-17 is a prerequisite for the withdrawal of court proceedings. Can you tell us more precisely what is in this agreement?
Ms. Bennett: The agreement aims to ensure that we work together with the Yukon government and self-governing First Nations to determine the strategy to be followed if the proceedings need to be suspended or withdrawn.
Senator Dupuis: I would like to be sure I understand. You referred to legal certainty twice in your presentation, and I think you’re right to do so. We know that this is the great obsession of the government, and rightly so, when this type of agreement is concluded. There is already an agreement that provides for a comprehensive territorial claim agreement and provides certainty. Now, we have just concluded another agreement, so I am trying to determine what the legal certainty will be once the bill is passed.
Does legal certainty mean that we are going to withdraw the court proceedings and that we will therefore accept that there may not be other proceedings that are repeated on the same issues? Or is it rather that we will be certain that we have so far agreed on the suspension of court proceedings, but without resolving the problem?
Gilles Binda, Acting Director, Natural Resources and Environment Branch, Indigenous and Northern Affairs Canada: Thank you for that good question, Senator. The content of the agreement indicated that it would remove the provisions of the law that were contentious and that First Nations did not want. In the future, there will be a framework agreement on how we will work together to implement the act. All legislation improves with time, and we have to work together; it was something that had been put aside as part of our work on Bill S-6. Now, we want to work together to anticipate future change and to resolve issues in the implementation of the act.
In addition, there was a more or less verbal agreement that as soon as Bill C-17 was passed, an agreement would be reached. The minister will be announcing this week in Yukon that an agreement, as well as a memorandum of understanding, called a “resetting the relationship MOU”, have been signed. We will be certain that there will be no litigation related to the act.
Senator Dupuis: If I understand correctly, first, we withdraw the litigation. Second, we will work in the future based on a framework agreement. Then, once we have a framework agreement, we will withdraw…
Mr. Binda: Yes, madam.
Senator Dupuis: We will undertake not to re-file proceedings in this regard. Is that right?
Mr. Binda: That’s right.
Senator Dupuis: At the end of the process, we will be certain once the framework agreement for the future is concluded.
Mr. Binda: It has been concluded. We are just waiting…
Senator Dupuis: This agreement has already been signed.
Mr. Binda: Yes, this agreement has been signed. Madam Minister, the First Nations and the Government of Yukon will announce it publicly this Friday, in Yukon.
Ms. Bennett: I think it’s the difference between what needs to be in a bill and what can be resolved through the policies.
Senator Neufeld: Thank you, minister, for being here tonight.
I will focus a bit more on the legal part but not much. I think most of the questions have been asked.
Were there legal things happening between mining companies and the First Nations, or is this a legal case only between Yukon First Nations and the Government of Canada?
Mr. Van Dine: It’s strictly between the First Nations and the Government of Canada.
Senator Neufeld: So it wasn’t holding up any development that was taking place.
Mr. Van Dine: AsMinister Bennett laid out, the fact that there was litigation challenging the act created a level of investment uncertainty and provided a bit of a cloud over the investment climate in Yukon.
Senator Neufeld: You stated in your speech, and I’ve read it in Senator Patterson’s remarks, that they were meeting the timelines. If they were meeting or exceeding the timelines, what was the problem with them? Why are we taking a timeline away?
I come from British Columbia. We have a timeline. There are ways you can move around that timeline, but tell me: What’s the big deal if they’re meeting it or exceeding it?
Ms. Bennett: It’s not the “what”; it’s the “how.” They weren’t agreed upon by the First Nations, so they were imposed. Therefore, they were meeting them but there were also no consequences for not meeting them.
To the First Nations this provision in the law made no sense. It wasn’t necessary and it was already happening, so why put it in a law? That their point of view when it was already working.
This is an operational agreement. It’s about how they choose to work together. It doesn’t need to be put in a federal law.
Senator Neufeld: When you have goalposts to reach and you’re exceeding them, it is interesting to me that they bother you so much you want to take them away. It leads me to believe that something else flows from that. That part bothers me. When I read the Yukon Chamber of Mines issues, it became clear to me that was something that bothers them.
I am not sure right now, but are there any environmental assessments in place? If there are, what happens to those? Do they all of a sudden go through a new rule and start all over again, or do they continue under the old rules until approval? How does that work?
Mr. Binda: When Bill C-17 is passed, the projects that are in place right now remain where they are in the process. They do not go back to square one. They proceed from where they are but with timelines pre-established through the rules by the board.
The board had already set the time limits through the rules, which were consulted upon throughout the territory and were well known by everyone. Now projects will just continue from there, based on those time limits.
Senator Neufeld: That helps me a whole bunch. It would be terrible if they had to go back and start all over again.
The MOU you’re talking about going up there to sign is with the Council of Yukon First Nations, 11 self-governing First Nations of Yukon, and the Government of Yukon. Where does industry fit in here? You said in your speech:
The MOU also creates the space for us to work with industry and others to make sure that their voices are heard as we move ahead.
How does industry work with this MOU? You say it can. Explain that to me a bit.
Ms. Bennett: We have already signed the MOU. Should this bill pass, they’re ready to go forward on how they work together, including how they work with industry. Those are the protocol and the conversation that will begin.
It is the work of the board to deal with industry. That is sort of what the board does. It’s a matter of how they make sure any review of the operational protocols and those kinds of things are agreed upon.
You can’t really end up with a good system if you are not talking to industry. It has to be a shared way of working together such that industry feels very much implicated in.
Senator Neufeld: I have one quick question. You mention in your speech the concerns that industry has, and they do have some. That’s obvious. I’ve been around long enough to know how the process works.
You say in your speech that their problems will be dealt with through other policy mechanisms shortly after the passage of this bill. Tell me what is “shortly.” Where does industry get comfort about “shortly?” Is “shortly” in a month, two months, six months or a year? What is “shortly?”
Ms. Bennett: We’ve already signed a memorandum and the passage of the bill is viewed as a very important first step by the First Nations. They wanted to see this bill passed immediately, because we had already signed the memorandum of understanding, so that they could get to work on sorting out any policy levers or remedies that need to be there.
Senator Neufeld: Can you give me an idea about “shortly?” That’s the question. You signed the MOU; I got that. You’ll meet with industry; I got that. You do say, “shortly after passage of the bill.” Let’s say the bill passes the day after tomorrow or something, what is shortly after that?
Ms. Bennett: This is the guy.
Mr. Binda: The protocol calls for the creation of an oversight group of representatives from the three parties together to direct the issues to be looked at.
We’re planning a meeting early in the new year to start looking at the terms of reference of that working group, how we will proceed, and at the issues.
Senator Neufeld: Shortly.
Mr. Binda: Shortly.
Senator Neufeld: I got you. When are you going to complete it?
Mr. Binda: We work at the pace of our other partners also. They’re at the table with us and it’s a collaborative process.
Senator Richards: Senator Dupuis, Senator MacDonald and Senator Neufeld asked some of the questions I was going to ask.
With all respect, minister, how surprised will you be if and when there is new litigation by the First Nations taking you to court about some other amendment or some other policy which they feel injures their claims and their territory?
What I am saying is that I don’t think this is settled with this bill. Do you think it’s settled with this bill or do you think, as you said, it’s just the beginning?
Ms. Bennett: I think it’s settled with this bill and I think we have an extremely good working relationship with Yukon First Nations.
Our policy, as I said, is to stay out of court. If we can actually get to a table and sort out problems together, that’s a better way of doing things. It’s our intention to continue with the excellent relationship we have with Yukon First Nations.
We will deal with other issues like funding arrangements. We have solved their issue around own-source revenue. We have solved some other issues with them.
My job and my mandate is to stay out of court.
Senator Richards: I am not at all begrudging the First Nations anything, by the way. They deserve a great deal.
I am simply saying that litigation is for when the argument doesn’t go their way. I am asking you: Will you be surprised if that happens with this bill?
Ms. Bennett: On this bill, yes, I would be surprised.
The Chair: I would like to make a reflection because I worked in the North as an engineer for mines doing environmental impact assessments. At the beginning the issue on the timelines was worrying me because of the delays.
Yesterday I was in Quebec City with my assistant for three days of research on the North. The North is changing fast. Models, predictions and assessments are happening at a speed that we cannot imagine.
This is just a reflection. I think that you want to connect the people of the North, the industry and the government, with researchers so that environmental impacts are based on solid recent data.
Ms. Bennett: As somebody who was sort of trained in science, I was excited that the University of Manitoba put sensors in the permafrost on the road from Inuvik to Tuktoyaktuk that we opened a couple of weeks ago so that they could measure, in real time, what’s happening with climate change and all of those things.
Really tight collaboration of research, science and the North is essential now.
Senator Fraser: Not being an expert on science or engineering or the North, I am trying to understand this question of timelines.
The other three points that might be contentious are easier for me to grasp. If the timelines were working anyway, what was contentious about the provision in the bill requiring the timelines? Was it simply a matter of respect that you can’t tell me how to run my affairs, or was it something more profound?
Ms. Bennett: I think it was about respect. This was not a provision that everyone had agreed on. It got inserted and was already working.
Senator Fraser: Why didn’t they agree? I guess that is my question.
Ms. Bennett: They had spent a long time on this review process. There were 72 recommendations in eight years that were agreed on by all three parties. These four came in after the fact and hadn’t been agreed to.
It was the whole five-year review process that had to take place where all the parties were working together on the necessary changes and then these other four were added.
Senator Fraser: It was not a case of timelines having been rejected during the negotiations. It was a question of their coming in later after the negotiations were concluded. Am I right there?
Mr. Binda: You’re correct. The umbrella final agreement covered the creation of YESAA. The other First Nations all had agreements but decided to go with an umbrella final agreement to guide the creation of the act. It called for the board which was being established to set those rules and timelines based on their experience working in the territory.
Senator Fraser: So it was respect.
Senator Patterson: I’d like to follow up a bit on Senator Neufeld’s question about projects already in the regulatory review process.
I understand that a major project is currently in the YESAA review process, a significant project for Yukon.
Mr. Binda, your answer to Senator Neufeld’s question was that they would be grandfathered. I think that was basically what you said. They will stay where they are. They won’t go back to square one. Maybe it was my understanding, but that answer seemed different from the one in the briefing I got.
I notice there are no transition provisions in the bill. Can you explain how a project in the works can be in effect grandfathered without transition provisions in the bill?
I think it should be. Don’t get me wrong. I was pleased to hear that, but that’s my question.
Mr. Binda: You were correct when you pointed out that there were no transition provisions in the act. However, the removal of the time limits that are there did not prevent the time limits that already existed under YESAA from working.
The time limits that were put in were the goal posts on each end, where it started and where it ended.
Senator Patterson: It’s the reassessment I am worried about. They will have to go back and start a whole new environmental assessment process if the entities are applying for approval of a not-significant change.
Mr. Binda: You’re correct. Just for me to let the other senators know how former projects worked, the environmental assessment was only scoped or valid to the length of the longest required authorization.
That has changed. The board has changed their policy and projects are assessed for longer periods, sometimes for many more years so that they don’t have to come back. That resolved one issue, but the industry is saying what will happen on projects that came in after that.
Those projects will not benefit from section 49(1) which allowed decision bodies to look at the project and decide. Based only on if the project had changed and nothing else, they would be allowed to get the regulatory authorities they needed. Now that provision is no longer there.
Projects will go back to the board but not from square one. We have to be clear here. The board does not do reassessments. They will only look at projects for any changes. If there are minor changes, they will do the same thing as section 49(1) did. The board will say, “Go ahead; go to the regulatory.”
If it is changed, the board will assess that portion of the project that has changed since the last environmental assessment. That is what the board does, and then the project will go forward.
In reality, with section 49(1), the board was already doing that for smaller projects. Not having it there should not change it very much. It’s just a different body looking at it. Instead of the decision body, the regulators making the decision, it will be the board making the decision, as it was before.
Senator MacDonald: Mr. Pagowski hasn’t been asked a question, so I’ll throw something his way.
It is fair enough, as the minister mentioned, that she wanted to pursue negotiation rather than litigation to resolve disputes. Of course, it’s always easy to resolve disputes when you always give the other party what they want.
You mentioned the revenue changes. Over $1 billion was going there and then changes were made so they could keep their resource revenue. To paraphrase it, if you rob Peter to pay Paul, you will always have the agreement of Paul. There is no question about that.
My question is for the legal counsel. Three First Nations took the government to court over these provisions. That’s what courts are for when there’s a disagreement; you take things to court.
What was the strength of their legal case? You must have reviewed it. What were the chances of their arguments being held up in court?
Daniel Pagowski, Legal Counsel, Department of Justice Canada: It’s always uncertain when you’re talking about interpretations of a treaty as to how a court is going to view that. This was basically about whether or not the spirit of the treaty had been lived up to. Those were all live issues.
I can’t recall exactly what percentage was placed on the government’s chance versus the First Nations’ chance with respect to the legislation. We were still at the stage that Canada hadn’t yet even filed its defence in the process at the point at which the matter was adjourned, so I don’t know if I can enlighten you too much further on that.
It’s always preferable to try to resolve cases rather than leave them to the courts because it is always uncertain. That’s the first thing you tell just about any client who comes to you to say that they want to sue or they’re being sued.
Senator MacDonald: Of course, arguments around process or consultation are very ephemeral arguments. Whenever someone doesn’t get what they want, they say, “I didn’t like the process; I wasn’t consulted enough.” We’ve heard this a lot. This is another example of that.
Mr. Pagowski: This process did go through the process of vetting and ensuring that Canada had met its obligations as far as consultation went with the First Nations. We proceeded on that basis. No stones were left unturned as far as that went.
The government went forward knowing the consultations that had taken place were deemed to meet the legal test, whether that was the legal minimums or there were possibilities for other debate on the issues in court. That’s always live.
Ms. Bennett: As critic, I would like to say that I was pretty consistent in opposition that the First Nations should have been listened to in terms of what they had agreed to and what there was a consensus on in the review process. Whether or not the legal consultation had taken place in terms of duty to consult, it made no sense to me, or to us, that you would purposely irritate people, when there was a consensus for all of these provisions, by putting in other ones that hadn’t been agreed upon.
It’s supposed to be a tripartite process at the board, so to have the federal government impose on the other two parties didn’t seem right to me. In some ways, the court case was about exactly what we believed at the time.
Senator Dupuis: As I understand it, the Council of Yukon First Nations represents nine of the 14 Yukon First Nations. There were three First Nations in dispute, but I do not know if they are part of the Council of Yukon First Nations. In principle, there are still a number of First Nations who are not parties to the agreement or the litigation. In terms of legal certainty, what happens to the First Nations who are in this situation?
Mr. Binda: Thank you for your question. In the Yukon, 11 First Nations have self-government agreements, and the Council of Yukon First Nations represents a number of them. In addition, three Yukon First Nations do not have self-government agreements. The legislation applies throughout the territory. In the agreement that the department has just concluded, there is a section stating that these First Nations will be involved in discussions and decision-making regarding the future implementation of the act.
The Chair: It would be interesting if we could receive a copy of the MOU. Would that be possible? Okay.
Senator Neufeld: I want to get on the record, as I understand it, minister, that you said it was unfair for the federal government at the time to impose on the other two entities.
The Yukon government was not imposed upon. The Yukon government was totally in favour of these. It was the Government of Yukon, the Government of Canada and the First Nations. I just wanted to put that correction on the record.
Ms. Bennett: I caught myself as I was saying it. Of course, at that time, the Yukon government was in favour of these provisions and in fact that was probably what the previous government was responding to. My job at the time and now was to stick up for the First Nations.
The Chair: Thank you very much for being with us and for your time. We will continue with our next panel.
Welcome to the second portion of this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. We are continuing our study of Bill C-17, An Act to amend Yukon Environmental and Socio-economic Assessment Act and to make a consequential amendment to another Act.
We will now hear, by video conference from Whitehorse, several members of First Nations councils. Please introduce yourselves for the record.
Peter Johnston, Grand Chief, Council of Yukon First Nations: My name is Peter Johnston. I am Grand Chief, Council of Yukon First Nations.
Steve Smith, Chief, Champagne and Aishihik First Nations: My name is Steve Smith. I am Chief, Champagne and Aishihik First Nations.
Dave Joe, Legal Counsel, Champagne and Aishihik First Nations: My name is Dave Joe. I am legal counsel for Champagne and Aishihik First Nations.
Duane Gastant' Aucoin, Yanyeidi Executive Councillor, Teslin Tlingit Council: I am Duane Gastant' Aucoin with Teslin Tlingit Council.
Stephen Phillips, Legal Counsel, Teslin Tlingit Council: I am Stephen Phillips and I am legal counsel with Teslin Tlingit Council.
Richard Sidney, Chief, Teslin Tlingit Council: I am Richard Sidney. I am Naa Shade Heni for Teslin Tlingit Council.
The Chair: I invite you to proceed with your opening statements, after which we will go to a question and answer period.
Mr. Johnston: I am here today to set out comments in respect to the amendments proposed under Bill C-17, in relation to Yukon Environmental and Socio-economic Assessment Act, also known as YESAA.
We have been advised that Yukon First Nations will likely register their views and interests to the standing committee about Bill C-17.
I want to be clear at the outset that CYFN fully supports the views and interests and urges you to take them seriously.
The Council of Yukon First Nations, also known as CYFN, is a successor organization to the Council of Yukon Indians, which represented Yukon First Nations citizens in the land claim negotiations in Yukon and signed the umbrella final agreement, known as the UFA, in 1993.
The UFA directed the CYFN, Canada and Yukon to develop legislation to implement the objectives and principles set out in Chapter 12 of the development assessment. This legislation is YESAA.
The CYFN has a membership of self-governing Yukon First Nations that work in collaboration with other Yukon First Nations, including the three unsigned First Nations, with respect to specify projects and initiatives. In particular, the CYFN and Yukon First Nations have worked cooperatively to deal with matters relating to YESAA over the past 18 years, including its development, implementation and review.
The UFA directed the CYFN, Canada and Yukon to complete a comprehensive review of the YESAA in 2008. This is known as the five-year review and was directed to take place five years after the federal enactment of YESAA. Despite the claims of the federal officials, this review has not yet been completed. For several years during the five-year review the federal officials maintained that no legislative changes would be made to YESAA in order to implement any recommendations to the five-year review. Canada then proposed Bill S-6, which would amend YESAA pursuant to its Action Plan to Improve Northern Regulatory Regimes.
It is our position that the amendments of YESAA enacted through Bill S-6 were contrary to Canada’s legal obligation. As such, the CYFN fully supports the passage of Bill C-17, which reverses the controversial provisions of Bill S-6. In our view, Bill C-17 supports the spirit and purpose of YESAA that implements the treaty rights of Yukon First Nations and their citizens. Bill C-17 will restore the operation of the YESAA process and better reflect the agreements reached by CYFN, Canada and Yukon during the five-year review.
Bill C-17 respects the rights under our land claim agreements, including the rights for independent assessments on certain projects to be carried out in accordance with Chapter 12 of our final agreements. These repeal the provisions that also serve to support the integrity and effectiveness of YESAA. This means the amendments proposed by Bill C-17 must be accepted without revision.
After more than two decades of negotiations with the federal government and the territorial governments, CYFN signed the UFA in 1993. Since then, 11 Yukon First Nations negotiated and ratified the respective comprehensive land claim and self-government agreements in accordance with the UFA. These land claim agreements are known as the final agreements and the land claim agreements within the meaning of section 35 of the Constitution Act, 1982.
Under the UFA, each Yukon First Nation was allocated a specific quantum of land that retained its settlement lands under its final agreement. The UFA’s land quantum of 16,000 square miles is less than 10 per cent of the total area of Yukon territory. This was a difficult bargaining position for the self-governing Yukon First Nations to accept. However, they accepted this limited land quantum since the UFA provided that the lands and resources of Crown lands through their traditional territories would be managed in accordance with the principles and processes established in the final agreements.
In particular, the implementation of the development assessment process pursuant to Chapter 12 established an independent assessment process in federal legislation that acted at arm’s length of Yukon First Nations and federal and territorial governments to undertake socio-economic and environmental assessments of certain proposed projects located on Crown land and settlement land.
This development assessment process is known as YESAA.
We want to draw your attention to four specific amendments that are deeply concerning and which are subject to repeal through Bill C-17. The CYFN and Yukon First Nations maintain that the amendments brought forward by Bill S-6 undermine the independence and the autonomy of YESAA and adversely impact its effectiveness.
On policy direction to the board, the CYFN fully endorses the repeal of any amendment that provides authority to the federal minister to issue binding policy direction to the board with respect to any board powers, duties or functions.
Providing the INAC minister with authority to unilaterally issue policy direction undermines the independence of the board and designated offices when conducting assessments. Independence is a fundamental element of YESAA that was discussed at length by CYFN, Canada and Yukon during the development of YESAA.
Providing any single party with the authority to direct the board is contrary to the spirit and intent of YESAA and the provisions of our final agreements. Neither the YESAA nor the final agreements contemplate that the federal government would have any unilateral power to apply its policies to the assessment of projects under YESAA. While this unbalanced power should not exist for projects of any land base, it’s particularly problematic for the projects that are located on settlement land.
With regard to delegation of federal powers, the CYFN endorses the repeal of the provisions that would allow the INAC minister to delegate any or all of his or her powers, duties and functions under the YESAA to the territorial minister.
Notwithstanding that the YESAA implements treaty rights, this provision excludes Yukon First Nations from discussions and decisions about future redistributions of powers, duties and functions under YESAA. It creates the bilateral federal-territorial process. This approach is not consistent under the intent of our final agreements.
The CYFN endorses the repeal of the provisions and creates a broad exemption from YESAA for the renewals and amendments of permits or authorizations.
This provision is unacceptable since it directly contravenes the agreements reached by the CYFN, Canada and Yukon about the issue as part of the five-year review. It is unnecessary at least for two reasons.
First, previously existing concerns about assessments of renewals and amendments have already been addressed by changes in the board policies, as agreed during the five-year review.
Second, other provisions of the YESAA already allow for projects to proceed without additional assessments if the effects have already been assessed. Bill S-6 provisions interfere with the processes that worked effectively prior to the proclamation of Bill S-6 in 2015.
During the development of YESAA, the CYFN, Canada and Yukon agreed that the regulations would define which projects were subject to assessment. This provision interferes with that approach. Canada has previously stated its intent to proceed with amendments to the regulations. Discussions about the regulations are appropriate forum for addressing exemptions and inclusions of projects from assessment.
The CYFN fully endorses the repeal of the provisions that establish overall timelines for completion of the assessment under YESAA since timelines were already in place prior to Bill S-6.
Bill S-6 timelines for screenings by the executive committee of 15 months and panel reviews at 18 months do not provide adequate time to complete assessments of complex projects that will be subject of these assessments. This affects the thoroughness of assessments and opportunities for Yukon First Nations to complete comprehensive reviews of projects and provide input, a process that the federal government relies on to fulfill its duties of consultation.
The executive committee’s screening process for the Mactung project consumed a total of approximately 34 months of assessor/government time for completion. Therefore, it is unrealistic to expect the assessments of similar projects to be completed in 15 months.
While no panel reviews have been completed under YESAA, timelines of 18 months are not consistent with the durations required or provided in the legislation to complete panel assessments by any other jurisdictions. Given the steps required in YESAA to complete the panel review, the proposed timelines are clearly unrealistic.
The repeal of these provisions is consistent with the objectives under chapter 12. They are in the keeping with the spirit and intent of YESAA that was developed due a comprehensive tripartite process by the CYFN, Canada and Yukon to implement chapter 12.
Subject to the matters raised during the five-year review, it is our view that YESAA has been operating effectively and efficiently since the enactment in 2003. Yet the federal government unilaterally made amendments to YESAA through Bill S-6, contrary to the positions expressed by CYFN and Yukon First Nations. Since we did not request nor support Bill S-6 and in fact strongly opposed the four changes I have discussed, we endorse completely the repeal of the contentious provisions brought into force by Bill S-6. In other words, we urge the passage of Bill C-17 without amendment and as quickly as possible.
I also refer you to the tripartite letter of support for Bill C-17 from CYFN as represented by the Grand Chief, Yukon government as represented by Premier Sandy Silver, and the Yukon Chamber of Mines as represented by President Mike Burke. This letter is dated March 13, 2017, and represents solidarity among the self-governing Yukon First Nations, the Yukon government and the mining community.
We also refer you to the political commitment in the form of the memorandum of understanding among all self-governing Yukon First Nations represented by the respective chiefs, the Yukon government represented then by Darrell Pasloski and the Government of Canada represented by the Honourable Carolyn Bennett, Minister of Crown-Indigenous and Northern Affairs. This MOU is dated April 8, 2016, and signals Minister Bennett’s commitment to support the repeal of the contentious amendments brought into force through Bill S-6.
The MOU acknowledges that the parties wish to honour and respect the spirit and intent of our final agreements and to re-establish the mutual and public confidence in the development assessment process established for Yukon pursuant to our Yukon First Nation final agreements.
In addition, I draw your attention to the recently signed reset MOU, signed by all parties described earlier and which seeks to sustain the relationship among the parties with a view to re-establishing collaboration among themselves for the purpose of implementing fully the development assessment process and facilitating the improvement of the spirit and partnership, respect and cooperation, and in fulfillment of the objectives and commitments of the final agreements.
The parties of the MOU will meet January 12, 2018, to move the MOU from concept into practice. It is another tool the parties are using in connection to Bill C-17 to improve the implementation of YESAA.
In conclusion, we urge the Senate standing committee to give consideration to the presentation and accept the support of Bill C-17 without amendment.
We reaffirm our willingness to work with the federal and territorial governments to ensure the YESAA process continues to be effective and efficient in accordance with our final agreements. Thank you.
Mr. Smith: Good evening to you. Thank you for inviting the Champagne and Aishihik First Nations to share our thoughts and unequivocal support for immediate passage of Bill C-17.
Champagne and Aishihik First Nations occupy a traditional territory in southwest Yukon and northern British Columbia. We represent approximately 1,200 First Nations citizens of Southern Tutchone Sagist and Tlingit ancestry.
The majority of our citizens live within Yukon, with small numbers living both in Alaska and British Columbia. Our principal office is in the heart of our traditional territory in Haines Junction, Yukon. However, we do have branches in Whitehorse to better serve all of our citizens.
In October 2015, the Champagne and Aishihik First Nations joined with Teslin Tlingit Council and Little Salmon Carmacks First Nation in litigating on Bill S-6 to oppose unilateral amendments to the Yukon Environmental and Socio-economic Assessment Act as it was clearly and blatantly inconsistent with the Champagne and Aishihik First Nation final agreement and the honour of the Crown.
As a result of this litigation, which is now in abeyance, the Government of Canada considered four amendments that we, Yukon First Nations, felt were clear breaches of our final agreements.
The current proposed amendments dealing with policy direction to YESAB for unilateral action by the minister to issue policy direction on any of the board’s powers, duties and functions have now been proposed to be repealed.
Delegation of federal powers to Yukon has now been proposed for repeal. The repeal of provisions dealing with broad exemptions from the YESAA process and now referenced to regulations for addressing exceptions and inclusions of projects is a more logical and appropriate form. The provisions that deal with overall timelines for assessment completions have also been proposed for repeal.
We support the foregoing proposed amendments under Bill C-17.
The intent of the agreements was shared decision making. When we signed the final agreements in 1993, we looked forward to giving up almost 98 per cent of our land mass in exchange for shared decision making.
The YESAA process was designed specifically for that, so we would continue to have a say in projects that would adversely affect either the lands and resources or our citizens.
Our first Nations have worked hard to achieve a final self-government agreement. We will continue to work even harder to protect the resulting constitutional rights in these and other agreements.
Recently, in the First Nation of Nacho Nyak Dun v. Yukon appeal decision, Yukon First Nations litigated to maintain the integrity, spirit and intent of Yukon First Nations final agreement. The Supreme Court of Canada, in that decision, made clear that treaty rights must be respected and upheld by the parties and must be consistent with the honour of the Crown.
Yukon First Nations will continue to ensure that the Crown respects our agreements, our constitutional rights and evolving common law. We support our colleagues in their respective submissions, and we look forward to an expeditious passage of Bill C-17, without any additional amendments. For us, Bill C-17 goes to the heart of the four amendments, and we need to have those repealed.
Thank you for your time.
Mr. Sidney: Gunalchéesh to the committee for inviting us to share our thoughts on Bill C-17.
Teslin Tlingit Council is based in and around Teslin, Yukon, with approximately 800 citizens living within and outside our traditional territory. Teslin Tlingit Council signed it final and self-government agreements with Canada and Yukon in 1993. It was one of the first four Yukon First Nations in implementing our agreements, starting in February 1995. We now have 22 years of government-to-government relations guided by our agreements.
We entered into our agreements as a way forward, as an expression of who we are as a people. An essential part of that vision was recognition of and respect for our land, our water and the air we breathe.
They are part of us and we are part of our environment for all time. It is our collective responsibility as treaty parties to ensure these unique relationships will stand the test of time for our future.
The amendments in Bill S-6 unilaterally imposed by Canada at the last minute undermine what we have created together. Therefore, in October 2015, Teslin Tlingit Council joined with Champagne and Aishihik First Nation and Little Salmon Carmacks First Nation, with the support and backing of self-governing Yukon First Nations, to defend our constitutionally protected treaties by commencing litigation in Yukon Superior Court.
We asserted that unilateral actions by Canada and certain provisions of Bill S-6 had breached our final agreements. Fundamentally, Bill S-6 undermined the independent assessment process designed and implemented by and for Yukon as a whole. That development process balanced the goals of appropriate and necessary environmental and socio-economic assessment with responsible sustainable development.
In addition to the unconstitutional manner in which Canada enacted Bill S-6, there were four amendments, in particular, that Yukon First Nations asserted were breaches of the final agreements. The litigation has been placed in abeyance while Bill C-17 is being considered by Parliament.
Bill C-17 addresses those offending amendments in a manner that TTC agrees with and fully supports.
One of the four amendments is policy direction to the YESAB. Teslin Tlingit Council fully supports the repeal of any provision that provides authority for the federal minister to issue binding policy directions to the board respecting any of the board’s powers, duties and functions. Any such authority to unilaterally issue policy direction undermines the independence of the board and designated offices when conducting assessments, the very independence that was designed and implemented as a fundamental element of the YESAA and the final agreements.
Teslin Tlingit Council fully supports the repeal of the provisions that would allow the minister to delegate any or all of his or her powers, duties and functions under Yukon Environmental and Socio-economic Assessment Board to the territorial minister. This provision creates a possible fundamental change in the relationship between the three orders of government in Yukon in a very important area of authority without the consent of Yukon First Nations. Therefore, the provision is inconsistent with the intent and implementation of the final agreements.
Teslin Tlingit Council supports repeal of the provision that creates a broad exemption from the YESAA for renewals and amendments of permits or authorizations. In addition to interfering with effective and efficient assessment process, Canada, Yukon and the First Nations have agreed that YESAA regulations would define which projects are subject to assessment. Therefore, discussions about the regulations are an appropriate forum for addressing exemptions and inclusions of projects from assessment.
Teslin Tlingit Council supports the repeal of provisions that establish overall timelines for the completion of assessments under YESAA since timelines were already in place prior to Bill S-6. Further, Teslin Tlingit Council considers the Bill S-6 timelines for screening by the executive committee and panel reviews do not provide adequate time to complete the assessments of complex projects. This affects the thoroughness of assessments and the opportunities for Yukon First Nations to complete comprehensive reviews of projects and provide input.
Yukon First Nations and their citizens understand that they are a dynamic part of Yukon society and economy. It was and is our vision to play a leading role in our collective Yukon future.
Local and global investors are already diverting investments away from Yukon due to the uncertainty of the litigation, the questionable laws and policy decisions of Canada and Yukon.
We and other Yukon First Nations continue to strive for respectful, effective relationships with industry throughout the territory. We encourage sustainable development and positive growth for our citizens and all Yukoners.
To achieve our vision and respect our beliefs and values, we must ensure that our agreements are fully understood and recognized.
In conclusion, we urge the Standing Senate Committee on Energy, the Environment and Natural Resources to give consideration to this presentation and accept and support Bill C-17 without amendment.
The Chair: Thank you very much for the clear positions and the consensus you have reached among your councils.
We will now have a period of questions and answers. I will ask each senator to mention his name and his region, because we couldn’t do it at the beginning of the presentation.
Senator Neufeld: I am Richard Neufeld, a senator from British Columbia. I actually live in Fort St. John, so I am sure you folks will know where that is.
I basically have one question regarding the four items that this bill actually gets rid of. As I understand it, the present government signed an MOU with you folks in April 2016.
On those four items the previous government put in that you didn’t like so much, why did it take from April 2016 to March 2017 to get to the point of having three pages of legislation?
I am not disputing whether or not we should approve it. I am just wondering why it took so long. Were there some other negotiations that were taking place at the same time?
Mr. Smith: I think the delay was really with regard to the federal government putting forward the bill. There were no additional negotiations between the federal government and either the litigants or the Council of Yukon First Nations as they represented the 11 self-governing First Nations.
Senator Neufeld: It took the present government 21 months to actually put together a bill, that you folks approve of, to remove those four items. Is that correct?
Mr. Phillips: I assisted TTC in the negotiation of that repeal MOU.
According to the timelines the federal government was to introduce the legislation by June 23, 2016, and that deadline was actually met. The legislation was introduced in a timely way. After that, any delays were a matter of how the House of Commons functioned.
Senator Neufeld: I just wanted to clarify that and put it on the record. The minister said that she wanted to stay out of court and to get things done fast. I just wondered why it took so long.
Senator Seidman: My name is Judith Seidman, and I am from Montreal, Quebec.
My question is for Grand Chief Johnston. I would like to know a little bit, if I might, about your experience to date with this whole MOU process.
My colleague asked you about the timeline to date, and I am interested in the upcoming timeline after the agreement is signed.
What’s your understanding of the anticipated timeline for the regulations? Some regulations have to be written to fill in the missing parts after these sections are repealed.
Mr. Johnston: We’re going to develop a separate committee after this. As I stated in my discussion, January 12 will be first meeting to start the dialogue and address some of the concerns of the YESAA participants.
As to when it will reach legislative process, I am not 100 per cent sure when it will go through the territorial court or wherever it needs to, but I know that we are coming together as a group at our first meeting on January 12 to start the process.
Senator Seidman: Do you have any idea, preference, expectation or desire on how long the whole process might take in order to create replacement language for the provisions that will be repealed?
Mr. Johnston: It would be as soon as possible. Obviously, as has been mentioned, mining is starting to have some effect back in the territory. This legislation will allow for that certainty.
We are one of the most secure jurisdictions in Canada, let alone in the world, because of our agreements which outline the provisions that allow us not only to have jurisdiction within our lands but to have that economic opportunity.
Yukon government is well aware of those dynamics. Now it is up to us to create the opportunity for the proponents, the mining companies or the exploration companies, to have certainty that they’re dealing with a safe place to invest.
It is in our best interest to have this as soon as possible.
Senator Seidman: As soon as possible, so you don’t have any way to estimate how long that will take.
Mr. Johnston: That question is beyond me, but I know for a fact that on January 12 we’ll start that dialogue with a special committee that will be comprised of the affected parties.
Rather than going back to court, we want to have the necessary dialogue to work through some of these contentious issues that people say they are affected by.
It allows us, early in the new year, to start working on these situations. As soon as we come to some agreement, we will definitely expect the legislation to follow shortly to ensure that certainty.
Senator Patterson: I am Dennis Patterson, a senator from Nunavut. I happen to be the critic of this bill for the official opposition in the Senate.
I get your point very clearly that it’s essential this bill be passed without amendment. You made your case very clearly. We get the message, and I think that will happen here in the next three days.
Like Senator Seidman, I’d like to know where we go from here. I was pleased to hear you say that Yukon First Nations have an economic interest in the royalties and the opportunities to develop your lands that come from mining development. You were also concerned about investment being diverted away because of current uncertainty.
Mining companies and the chamber signed an agreement to support this legislation, but there was a clear understanding on their part that replacement regulations and policies would have to be developed in cooperation with First Nations, Yukon and federal government to fill the gaps created by repeal of these four provisions.
I am not saying they all should go back in, but the one area I want to mention that is of concern to mining companies and the industry is this business of the need to reassess a project when it changes.
Alexco gave evidence before the committee and the House of Commons. I am sure you are familiar with their silver project. Every time they found a new deposit under the old legislation back in 2011 and 2013, they had to undergo an assessment of their operations and their mill, even though it had already been assessed and even though it was performing quite well, they say, as far as mitigating environmental liability.
I guess I am concerned about that. Would you agree that you should work together wanting to attract investment? There are projects ahead in Yukon. I believe a couple of gold projects are expected to begin operations in 2019, from which hopefully you have a potential to benefit.
Would you agree that it should be a priority to work together and get replacement regulations or replacement language in place to deal with the question of reassessment?
I am talking about the reassessment of projects that change, not the timelines. That one seems to be a priority for the industry.
Is that one you are open to working with, working out and working through collaboratively on a priority basis so as to contribute to the climate of certainty that we all agree is desirable?
Mr. Joe: To answer that question, the YESAA regime is a one-window approach that applies to federal Crown lands, territorial lands, First Nation lands and fee simple lands.
You have asked a question about reassessments of a particular project. We are sensitive to the reality that projects can be reassessed. If there is new development on the project, and I think a new find was how you phrased it, it may be appropriate to reassess at that point in time.
I don’t think we want to assert that there is no need for additional reassessment simply because of the one-window approach that it’s applicable to all lands in Yukon.
We certainly do not wish to impose any inferred or implied uncertainty with respect to that structure. As long as the rules are well known and as long as all of the actors and all of the proponents know what the rules are, we would maintain that’s a fair system and process.
Mr. Phillips: I agree with Mr. Joe on the one-window approach.
I refer you back to the reset MOU which was recently signed. A working group has been formed under that agreement, designed to deal with exactly those types of issues.
We are very aware, and I represent Teslin Tlingit Council in that agreement.
Mr. Johnston: Basically, it was the parliamentary process that slowed down the interpretation or the passage of the bill.
Senator Dupuis: What is your perspective on what the federal government calls “legal certainty” because, as I understand it, you are going to withdraw your court proceedings once the agreement has clarified what the new rules will be?
If I understand the situation correctly, three First Nations have gone to court, and the Council of Yukon First Nations is party to the agreement or the renewal of the MOU. What is your perspective on the First Nations that are not parties to the litigation in court or the renewal of the MOU?
Mr. Johnston: We are a collective up here in the territory, and we’re all of the same thinking that we want this passed.
We do not speak for the three unsigned First Nations, the Kaska nations and the White River, that are not parties to the agreements anyway. We are speaking on their behalf of the remaining 12 as well.
Senator Dupuis: Does this mean that you are convinced that these First Nations will not prevent you from reaching an agreement with the government? I imagine that you, too, have a perspective of legal certainty?
Mr. Johnston: Yes.
The Chair: I want some clarification. Many times during your statement you mentioned complex projects. I think this was in relation with the timelines.
Could you explain, for you, what are complex projects?
Mr. Joe: A complex project could include a big mine, for example, or a hydro project which would require more time to assess the broad impacts from a socio-economic perspective. Those are the large projects that are contemplated within YESAA.
Senator MacDonald: Hello gentlemen. I am Michael MacDonald from Nova Scotia.
Presently the litigation is in abeyance. Can we assume that once this legislation is passed you will be dropping that legal action, and how long will it take to drop it?
Mr. Joe: The short answer is: Yes, it will be dropped by way of instruction in a phone call. It could be very quick once the bill is passed and proclaimed into effect.
The Chair: If there are no further questions, I want to introduce myself. I am the new chair of this Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez, and I represent Quebec.
I thank you very much for your time and availability and for the interesting discussion that we just ended.
(The committee adjourned.).