Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 13, Evidence of April 29, 2003
OTTAWA, Tuesday, April 29, 2003
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 2, to establish a process for assessing the environmental and socio-economic effects of certain activities in Yukon, met this day at 5:05 p.m.
Senator Tommy Banks (Chairman) in the Chair.
[English]
The Chairman: This is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources continuing on the questions having to do with Bill C-2, which is now before us for study.
Before our witnesses begin, I would like to introduce the members of the committee: Senator Milne, Senator Finnerty, Senator Merchant and Senator Kenny.
Mr. Lee, please proceed.
Mr. Gary Lee, Past President, Yukon Chamber of Mines: It is an honour to be invited to address the Standing Senate Committee on Energy, the Environment and Natural Resources on Bill C-2, the Yukon Environmental and Socio- Economic Assessment Act, known to us in short form as YESAA. Thank you for the opportunity for us to present our views to this committee.
The Yukon Chamber of Mines and the Yukon Prospectors Association represent mining companies, prospectors, geoscientists and service and supply companies involved in the mineral industry.
The Yukon is experiencing an economic crisis. In 2002, the southern Canadian taxpayer paid for 81 per cent of the primary economic generators for the Yukon economy. Only 19 per cent of our economy is driven by non-government sources. Yukoners find that economic position repugnant.
Equally alarming, our census data from 1996 showed a population of 37,766. In 2001, that number dropped to 26,747 people. That is a decrease of almost 7 per cent and it continues to plunge.
With few new private sector jobs, the Yukon is losing an alarming number of young people to other jurisdictions. The loss of our young people is especially felt in our small communities, which are largely First Nation-based. We are losing many of our skilled people. Economically, this is not sustainable.
The aging of the Yukon population is accelerating at a rapid rate. This depopulation of the Yukon is unacceptable and unsustainable for our economy and means ever-greater dependence on southerners.
I have worked in the bush for 28 years and I am four years away from being 60 years of age. The average age that I work with is between 40 and 50, whereas when I first came to the Yukon I generally worked with young people my age or younger.
Since the famous Klondike gold rush of 1898, mineral exploration and mining has been the mainstay of the private sector economy. However, since the mid-1990s, investment in the mineral exploration industry has dropped rapidly due to confusion and uncertainty in the environmental assessment, regulatory process, and restrictions to land access.
During the Yukon Environmental and Socio-Economic Assessment Act, YESAA, consultation process we were given the proposed project regulations for review. At that time, we brought attention to serious concerns with the project regulations and we requested a review of specific clauses. We were informed that we would have the opportunity to bring these concerns to the House of Commons committee. However, this was not the case. We were only allowed to comment on the act. Thus far, there has been no meaningful consultation on the project regulations. This is the critical issue with us at this time.
Other important concerns in the act are timelines, existing projects, rules of the board, district offices and the five- year review. The Yukon Chamber of Commerce is covering these concerns and we will not repeat them here.
This may be our only opportunity to comment on the project regulations. We have just received notice from the Department of Justice and they expect them to come out this summer. That is why we have zeroed in on this issue for our presentation today.
We will deal with the regulations on a daily basis. The devil is in the details. For example, it is proposed that a mineral exploration camp would be subject to YESAA screening after 150-person-days on a mineral claim. If five persons spend more than one month in a camp, they would be required to have the project screened. This is ridiculous because there is no significant environmental footprint from a small exploration tent camp after 30 days.
If we were to compare this to Ontario and Quebec, you would see that there are no limits to the amount of time spent in a mineral exploration tent camp in these jurisdictions. I should clarify that our presentation is on mineral exploration and prospecting and not on mining. Mining is a different process with many more complicated issues to discuss.
Another issue with permitting for camp locations is the necessity for confidentiality. Under the proposed regulations, explorers may be required to disclose their confidential business to the public prior to securing adequate mineral tenure. In order to attract investment, one must be able to maintain confidentiality.
The following are some examples of unreasonable permitting requirements. There are approximately one dozen clauses in the project regulations that we have been trying to amend that must be addressed in order to give us a level playing field with other best practices Canadian jurisdictions.
My colleagues and I have prepared a tremendous amount of research on the rules in other Canadian jurisdictions. We have tried many times in the past to get the bureaucrats to adopt best practices from other successful Canadian jurisdictions. This effort has failed. Now, we request a means by which we can bring this research to the table.
Bureaucrats will not make this decision because it is a political decision. That is why we are emphasizing it before this committee.
The solution to these problems is to make the regulatory process under YESAA workable and to give Yukoners an equal opportunity to compete with other Canadian jurisdictions for investment. Equally important is that the development assessment process, DAP, under the Umbrella Final Agreement was only intended to capture large projects. Without changes it is unaffordable and unworkable for individuals, small business people and small companies.
The people of Yukon look forward to affecting made-in-Yukon solutions to territorial land use issues. The Yukon Chamber of Mines and the Yukon Prospectors Association would like to be involved in formulating the project regulations. Is there any way that you can help us before this becomes a fait accompli in the federal regulatory process?
As a result of a meeting for senators on Friday, May 2 in Whitehorse, Senator Christensen asked us to bring additional material to the table. We have passed out 30 copies of additional information.
The main theme of our research that we did ourselves is Canadian and promotes the idea of equal opportunity to compete with other Canadian jurisdictions. With that in mind, you will see all of the research on this chart. We went to a meeting of prospectors and developers in Toronto where we met with regulatory people from Quebec and Ontario.
We researched their legislation and paid a Toronto consulting firm approximately $10,000 to have this work done. This is all background information that we brought in response to Senator Christensen's request.
In Yukon, we have mine-land-use regulations, which have gone through the Parliament of Canada. We have taken the correct category from our own legislation, compared it to Ontario and Quebec and made recommendations in the last column. The basic theme is to give us equal opportunity with best practices in other Canadian jurisdictions.
There are about 17 clauses in our legislation. Of those 17 clauses, we have major concerns with 12. I will not belabour that point.
We have enclosed photocopies of Yukon economy and statistics. The figures are from the mid-1990s. The blue portion shows that 41 per cent were the private sector portion of the economy. Most of that was mineral development. At the bottom, the red indicates that over 81 per cent is now government and the private sector has shrunk. That is the main point in the material that we submitted.
This is the federal government's response to the final report of the Standing Committee on Natural Resources streamlining environmental regulation for mining. The Honourable Anne McLellan tabled the report in March 1997. Much of what we are requesting is part of government policy. We are asking that the Government of Canada follow this policy because we have not seen that happen thus far.
If senators were to ask the bureaucrats if we have been consulted, they would say "yes.'' However, this is what has actually happened. We did not know when they gave us the package that the regulatory process was going to be streamlined with the act. We realize that there are two separate processes in this case: the legislative and the regulatory processes. It is a tri-party agreement and includes the regulatory process with the act. We did not know that it was going to come into force this summer. We thought that we would go through another process and that is why we brought this material with us today.
We found out from the territorial government and the federal government that the project list and decision body coordination regulations are currently with the legal drafters from the Department of Justice and it is expected that they will be completed in the summer of 2003. We saw this on April 15, 2003, and it came as a complete surprise to us.
We made our issues known during the consultation process. We made it clear that we wanted to be involved in these project regulations. We now find out it is almost a fait accompli.
I draw attention to the House of Commons committee and how this has slipped through the cracks, making it all the more important to have input in front of the Senate. When we presented to the House of Commons committee, this was one of our many issues, but we did not know this was happening.
The important thing is that they voted for the regulations to come back to the committee, but the devils in the details. We noticed that when they put it to a vote, we could come and have public consultation. It was voted down.
Therefore, we have not had any consultation on this. I cannot speak for the other business groups or the Kwanlin Dun, but I know consultation has always been a common theme of all the groups. They will be surprised that they have been blind-sided by this as well.
The Chairman: Ms. Ledwidge and Mr. McIntyre, we would like to have as much time as possible for questions. Bearing in mind what we have heard from Mr. Lee, would you tell us anything substantive to add beyond that?
Ms. Ann Ledwidge, Director, Klondike Placer Miners' Association: I have some details that I would like to add.
I am a geologist and consult to Placer Miners' Association. I am from Dawson City, Yukon and appear on behalf of the Klondike Placer Miners' Association. I am here on a voluntary basis because I feel strongly about the issue being discussed here today, and the impact this legislation will have on the viability of the placer mining industry and on our community.
With me is Ms. Christie, the president of the Klondike Placer Miners' Association. We are an organization that represents Yukon placer miners. There are currently about 100 family-owned placer mining businesses. It is one of the largest private sector employers in the Yukon generating about $50 million for the economy annually.
Placer mining has affected less than one fifth of 1 per cent of the Yukon land base since the 1898 Klondike gold rush. We have repeatedly voiced our concerns with the Yukon Environmental and Socio-Economic Assessment Act from the early stages to the present.
As Mr. Lee said, there has been at best, minimal opportunity for comment and discussion dealing with this proposed legislation. Discussion regarding the regulations has been nonexistent. We have not yet received any response to how our concerns were dealt with or if they were given any consideration at all. We are pleased to be able to present our concerns here today.
We feel that Bill C-2 does not provide a reasonable balance between the environment and the socio-economic goals and because of this it will have serious consequences on our livelihood.
One of our main concerns is that procedural fairness and natural justice must be incorporated in and protected by this legislation. Proponents must have the opportunity to review and comment on interventions. For example, when a placer miner applies for a water license, he or she must have the opportunity to review and respond to any interventions made by other parties in order to clarify, mitigate or refute their claims. YESAA does not ensure that the proponent receives any copies of the letters of intervention. That is a serious flaw that must be rectified.
We do have a workable licensing process for the Yukon placer mine industry through the Yukon Territory water boards, which follow the rules for natural justice and procedural fairness. All information is public, and everyone has a right to be heard in a public forum. This must be maintained within YESAA.
We also have an issue when decision documents from various bodies do not conform. In the case of the placer mining industry, the Yukon Territory Water Board could not issue a licence if the decision document did not conform to the decision document of other departments. There must be a process in place for reconciling different decision documents in a timely manner.
This is an extremely important issue considering the recent announcement by the minister of the Department of Fisheries and Oceans to revoke the Yukon Placer Authorization. It is important considering the uncooperative, antagonistic and biased nature that the local DFO officials have shown during the recent Fifty Mile River hearings.
Without the Yukon Placer Authorization there are no clear guidelines to set out what is or is not allowable on a given creek. It is left for the Department of Fisheries and Oceans local staff to produce a decision document that may be in conflict with the Yukon water boards. What will happen to water licence applications? There is no means to resolve this within YESAA.
Existing projects must not be reassessed. It would contravene any certainty required under YESAA and the UFA.
Why would a placer miner invest all of the family savings if the rules could change after committing to the project? There must be a material change in the project with the proponent applying for an amendment to the existing authorization before an existing project would be subject to a review.
Under this bill, the public must be consulted during the development of the regulations. We cannot allow a limited number of officials and individuals to write these regulations, which is what has happened so far.
Although you have been told that there has been public consultation on the drafting of these regulations, there has been no process or opportunity for meaningful consultation and no chance for input other than by attempting to contact the three negotiators from the three parties. Even though the KPMA has asked for consultations repeatedly, no response has been given to any of our concerns or, to our knowledge, to the concerns raised by others.
Merely providing a copy of the regulations to the public does not constitute public consultation. That is all that they have done.
This is an extremely serious deficiency that must be corrected immediately as there are serious flaws within the regulations. Unfortunately, the following is not detailed in our written submission to the committee. We were told not to deal with the regulations at the parliamentary level and we assumed this was to be the case here as well. I ask that you do give special consideration to the following comments.
The KPMA strenuously objects to the inclusion of all mining land use Class II activities as currently drafted in the project list regulations. Those are some of the low thresholds to which Mr. Lee was referring. Under the Canadian Environment Assessment Act these Class II activities do not require an environmental assessment. There is no basis for the inclusion of these Class II activities in YESAA, and we feel that it is an arbitrary decision that does not reflect any current environmental screening thresholds.
To allow these lower mining land use thresholds to be assessed removes all confidentiality guaranteed under the mining use regulations. It would open it up to being public information.
This lack of confidentiality provides a disincentive to people investing in the Yukon. Why would you do a project here if the information from your project were not going to be held confidential as it would be in another part of the country?
Furthermore, the ramifications of assessing Class II activities under YESAA could be devastating to prospectors and miners. They are typically small testing activities performed as assessment work, that is work that is required to be done every year in order to renew the claims.
What would happen if a miner could not perform the work within the year due to excessive delays in the assessment process? This would be devastating as a miner would not be able to renew the claim. It would have a special significance for claims that are on Category A First Nations settlement land. If those claims were allowed to lapse, the ground would never be open for staking again.
Within the project regulations, water course crossings that are to be used for placer mining or placer exploration undertakings are automatically assessed while the use of the same crossings for any other activity, including quartz mining, industrial, agriculture or even recreation, is not subject to assessment.
Why this blatant discrimination? Has the Department of Fisheries and Oceans been at work here too?
This holds true also for channel and bank alterations of smaller intermittent streams. The Minister of Department of Fisheries and Oceans December 16 misguided and unilateral decision to revoke the Yukon Placer Authorization serves to highlight the completely unfair and biased approach taken toward placer mining in the Yukon.
YESAA is a permitting process that can be improved. The fundamental values of procedural fairness and natural justice must be incorporated in, and protected by, this legislation. There must be a provision for resolution when decision documents do not conform, particularly in the case of water licences. Existing projects should not be reviewed. Public input should be incorporated into the writing of regulations with specific changes to be made regarding mining land use thresholds, watercourse crossing, and channel and bank alterations of small streams.
Although we have brought the same concerns before a parliamentary committee, nothing has been changed. We are concerned that because this is a tripartite agreement negotiated between the federal government, First Nations and the Yukon territorial government, that the Senate committee is powerless to make any changes. We sincerely hope this is not so.
KPMA urges you to uphold the objectives set out for YESAA in the Umbrella Final Agreement, and requests that you consider our detailed written submission.
Mr. Rob McIntyre, Treasurer, Yukon Chamber of Commerce: I would make a couple of points, and one request.
We want to disabuse you of the notion that there has been full and fair good faith consultation on this legislation. That is patently not the case. You may have heard the term "made in Yukon legislation,'' which I am sure is intended to conjure up images of some process that has resulted in a piece of legislation with broad public support. This is very far from the truth.
Most people do not know what it is all about. It is something that has been happening as part of the Yukon Indian land claim, which everyone is in support of, including the Yukon Chamber of Commerce. However, it is just something that has happened.
There has been something called "consultation'' on a non-government organization working group. From our opinion, and from the opinion of most people that have been "consulted,'' it is more salesmanship of a foregone conclusion. There has not been an opportunity.
The second point is that there are flaws in the legislation that could cause significant harm to the economy of the Yukon, to the wealth-producing industries and to business in the territory. Those are my two main points.
We would like to be involved in the implementation of the bill. There is an 18-month period of implementation, and the Yukon Chamber of Commerce would like to be involved in that. We also have asked for a five-year review, and we would like to be involved in that as well. I think you will be hearing later on from some other witnesses who also are looking for a five-year review.
There has not been good consultation. There are flaws in the bill. We need to be involved from this point forward. It is time to have something that is coming out of the land claim that will affect non-beneficiaries as well as beneficiaries. It will affect all Yukoners, and they should be involved in the implementation of that bill.
We ask you to provide that advice to the bill's sponsors when it goes back to the House of Commons. I am not sure of the procedure from here, but a request from the Senate committee to have us involved would be something that we have flown here to get.
I will not read our presentation. There are some technical details, and I know the Chamber of Mines has relied on us to go through those. They are in our written brief, which you have. Other organizations have done the same thing as the Chamber of Commerce. Rather than a shotgun blast of a variety of things, it is just a few issues that pass the test of being critical and could be changed. Those critical issues are included in our brief.
I am ready to respond to any questions that you might have, Mr. Chairman.
Senator Kenny: Mr. Chairman, has the committee received any testimony about the consultations, and do we have the outline from the government's perspective of what has been done?
The Chairman: We have received testimony from the government about consultations. We have heard the other side of the story.
Senator Kenny: Do we know where best to go back to government in the event that more consultations are needed?
The Chairman: I believe we do.
Ms. Ledwidge: May I say something concerning that point? As I was reviewing the minutes from the parliamentary committee meeting that was held in December I came across something that the federal negotiator said. The negotiator said that there was public consultation, and that it was provided in the information package. My point is that just providing it in an information package is not consultation.
The Chairman: I assure you that if the Senate wishes, it can do any number of things with this. It is far from powerless. That is not to say that the Senate necessarily will do something, but the Senate can do something.
Everyone believes that no matter what they have said, they have not been consulted unless what they have to say has been put into place. That is not necessarily true on either side of the fence, and it is equally true from all sides of the fence.
Because of her intimate knowledge of this subject, I will ask Senator Christensen to begin the questioning.
Senator Christensen: In discussions last Friday, you said a lot of the concerns are with the regulations, and what you feel is the lack of consultation. As I pointed out to you, everything that you can get on the record is what will be, in fact, part of the record. When regulations are being developed, your concerns then can be reviewed.
I have done more research since I have returned to work. There are at least three more opportunities as far as regulations go. The regulations are, as you know, ongoing and being developed, and it is my understanding that it will be perhaps June when they will be finalized. However, that is only finalized in this next draft, at which time they will be going out to industry and people to be looked at again. Following that, you have the pre-gazetting, which would incorporate the changes that will be made in the next period. At the end of the 60-day pre-gazetting, persons again can have input into it. Then there is the gazetting, along with 30 days after that in which there is more input. There are three more processes, as far as the regulations go, in which industry and others that are interested can have input.
The Chairman: Then does it not go to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations?
Senator Christensen: It would go to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations once the bill had been passed, and regulations have been finalized. At that point, they have a list of 13 criteria, which is really sort of a fourth avenue, if you will, for industry or others that have concerns about the regulations. If one of any of the 13 criteria could be met, that committee also would be able to review a submission. Although they do not hear witnesses, submissions can be made to them.
We have not come to the end of the regulations that came with the draft bill. It was unusual that the bill was put out for review before it was brought before the House. It was unusual to have some of the regulations with it, as well as the timelines, which I know are causing many problems. In hindsight, perhaps it was not the best thing to do because it has created a lot of difficulties for people.
Concerning placer mining, you said you were concerned about the interventions and the inability of the interveners to be able to see what other interveners say. Yet the regulations require that all the documents with the board are in public and available to anyone to review.
Ms. Ledwidge: Currently, what happens with the water board is that they provide all that information automatically to the proponent. The average person off the street applying for something does not know where to go to look for this information.
We are looking for something that is more helpful to the proponent and provides them with copies of all these letters of intervention. This gives them an opportunity to refute it that way, without them having to dig through the public record.
Senator Christensen: The information is available.
Ms. Ledwidge: We realize that. All the information is public information. I am saying who goes into a government office and asks for this, when they do not even know what has been submitted? Do they keep going back every week?
Senator Christensen: There is a requirement under the UFA that there be a five-year process. You have indicated that you feel that in the legislation there should also be a five-year review process. We are looking at two five-year processes. Would you like to enlarge upon that?
Ms. Ledwidge: What we are looking for is the certainty that it will be done, that if this legislation has to be reviewed, then why not state that clearly in it?
Senator Christensen: It is already in the UFA, which created this legislation.
Mr. Scott Casselman, Vice-President, Yukon Chamber of Mines: Does that mean that YESAA will be screened after five years?
Senator Christensen: Yes. It is a requirement of the UFA that this legislation, which has been created out of the UFA, is required to be reviewed in five years. I followed up on it and asked: Why is it not in here? The concern is that if it is in here it could be interpreted that there be two five-year reviews, both at the same time, which would be quite onerous on everyone.
Ms. Ledwidge: That is not what we are looking for. We are looking for the certainty that it will be reviewed and that someone will not say in five years time, "This legislation does not state that explicitly,'' which has happened in the past.
Senator Christensen: Concerning the development of what we now call YESAA, can you tell me how long the process has been ongoing? It seems as if it has been going on forever. I am talking about the public meetings, et cetera.
Mr. McIntyre: It had a murky start. However, it was somewhere deep in the bowels of the land claims situation, which is decades old. The process set out in Chapter 12 of the Umbrella Final Agreement was a process that was closed to the three groups in the room. However, the consultation on the legislation probably started in 1995-96.
Senator Christensen: That is my understanding as well. At that time I was working with the Yukon Outfitters' Association and we went to some of those hearings to get information.
Mr. McIntyre: This is a piece of legislation that came out of a process that had different goals. It was all about righting the wrongs of the First Nations people, and creating the Yukon Indian land claim. For years and years, that was a secretive process. With regard to legislation that came out of that process Parliament has a higher duty of care than it has with normal legislation that comes out of its normal legislative agenda. It was a social goal to settle the land claim. What came out of it is a piece of legislation that affects everyone doing anything in the Yukon.
Consultation needs to be done in good faith. With regard to a definition of consultation, look at the definition of consultation in the Umbrella Final Agreement. It is something the First Nations fought long and hard to get. It is something about which everyone is often reminded. Consultation must be full and fair and it must be in good faith.
The very fact that you have business and industry associations here telling you today that there are still grave concerns and potential problems for them should tell you something. Whatever it was that was passed as consultation and for however many years it went on, it did not get it right.
The Chairman: In our briefing book there are about 15 pages on which are listed the consultations that have gone on with respect to this legislation, including those held with the Council of Yukon First Nations, the Government of Yukon, Yukon First Nations, north slope interest groups, environmental and outdoor recreational interest groups, the Umbrella Final Agreement board and committees, industry, business and interest groups, as well as open houses, public meetings, workshops and presentations of drafts of this legislation which were presented for review.
We have been proceeding on the assumption that there had been substantive consultation. I am surprised to hear you say there has not been, given these 15 pages that list when and where the meetings took place. That was an interjection, not a question.
Senator Christensen: Do you remember the dates you received the draft legislation and the draft regulations?
Mr. Lee: They are dated June 16, 2001. We got ours by August. We were asked to comment by November.
Senator Christensen: You have had copies of those drafts and you responded to them accordingly?
Mr. Lee: We were asked to respond by November. Everyone was out in the bush when we received the drafts. It was done in the summer. We finally got it done in the fall.
Senator Christensen: A concern raised on a number of occasions had to do with the Mackenzie Valley Resource Management Act, which is now in place and operating. There were concerns with it, as opposed to the YESAA, and changes that should be made to YESAA. Yet there were a number of changes made to YESAA. Do those changes, and I believe there are seven, give you any comfort?
The changes include: more inclusive consideration in the socio-economic efforts, the arm's length of the board to do the assessments instead of a government agency, the CYFN being able to nominate board members and not individual First Nations nominating board members, and the requirement of the board to make rules such as assessment of time limits. The concern was that all those things were not in the Mackenzie Valley legislation. Yet, they learned from some of those mistakes and they have put them into YESAA.
Mr. Lee: I spent quite a bit of time in the Northwest Territories. The first alarm bells went off with regard to expiration. There was a huge working group concerning this issue.
Senator Christensen: Was it on regulations?
Mr. Lee: Yes, which is what we are addressing here. That is the first thing industry looks at. There were many problems with the Mackenzie Valley Resource Management Act. With regard to the simple projects I talked about, they took consultation too far, saying that they had to get interpreters and go to local communities for getting a little sample, et cetera.
I hear that situation has since been corrected. However, the threshold problems have the same problems, which is why we are focusing on those.
Senator Christensen: Would you comment on how you see the six regional offices working, if in your opinion they will work, or do they need more fine-tuning?
Ms. Ledwidge: Even though the whole concept of the designated offices and having them in the communities sounds all very nice, when are you dealing with these small communities, you are introducing a lot of bias into it. You are dealing with your friends and neighbours. They might be your enemies. It is troubling in that respect.
The other troubling thing about it, given our low population base, is getting someone that is qualified to assess diverse industries, from forestry, mining, or someone that might know about a subdivision development that might be going through this assessment. How do you staff an office like that? There will be one person, realistically, in many of these community-designated offices. How do you get someone with the expertise that deals with all of those issues? That is a big concern.
Senator Christensen: It is a good point. I have the same concerns about capacity at all levels, but I guess it is the trade-off we have to make in the North. Do we want Ottawa to be doing it down here?
Ms. Ledwidge: I am not saying that. Just specifically from a placer miners' view, we do have the water board. They are quite experienced in dealing with this. We are hesitant to give that up to someone else that is more generally based and does not deal specifically with it. Ideally, we would like to see the water board doing the assessments.
Senator Christensen: Even though they are a government agency?
Ms. Ledwidge: They are an arm's length, quasi-judicial board.
Senator Christensen: I take it from your comments that you would rather see the water board as the one-window approach as opposed to the three levels approach as propose under the board?
Ms. Ledwidge: Definitely. It is a working solution.
Senator Christensen: What do the rest of the panel members think?
Mr. McIntyre: The water board process is a quasi-judicial nature, which includes all of the rules of procedural fairness and natural justice that were mentioned earlier. These are the kind of things enshrined in that process. It works. It is a Yukon organization. It reports to the executive council office of the Yukon territorial government. It is not an Ottawa thing at all.
I think that the final answer will come with respect to the board itself, how it is staffed, and the rules and the regulations of the board. This will be the rubber hitting the road of this piece of legislation, because it is nothing but a process. It does not set new environmental standards, and it does not make a better world in any way. It is just the mother of all processes. This is the backdrop that we have made in our written presentations, but I think it needs to go through your minds when you look at this.
The Yukon economy is at a critically low level right now. A lot of it is laid at the feet of a cumbersome, onerous, duplicative process. They are not tight environmental standards, just a process that takes years and years. That is why you hear the industry and business concerns when there is a new piece of legislation that describes a bigger process than we have ever seen in this country. It will look at things of a very small nature, and it will be dealt with in small community office.
I do not think our concern is misplaced. I spoke on this before a parliamentary committee in 1989 on behalf of the Yukon Chamber of Commerce with the Canadian Environmental Assessment Act. I was concerned about the sort of things that would be happening. We were aware of the concerns that we might have back then.
This piece of legislation enables a ponderous process that needs some tight reigning in, and it needs rules and regulations of a board. They are not there, and we will not write all the rules here. Parliament is saying, rightly so, "You guys write rules of the board.'' We are saying, "Please involve business and industry in the rules of the board.'' They were not involved in the development of the act, notwithstanding the 15-pages of consultative efforts that might reasonably lead to you assume there has been some good stuff going on. There has been a lot of salesmanship happening in this bill for years. That is quite true. Now it is time to get us in.
Senator Christensen: The bill, and the way it is developed, is the result of a requirement under the UFA.
Mr. Casselman: The UFA, section 12, did mandate that, but the intent when the UFA was negotiated was to screen major processes and major developments. As we see the draft regulations that we have seen so far, they are talking about small tent camps and small operations.
Senator Christensen: There were some concerns regarding the free entry and the staking of claims. That was a major concern?
Mr. McIntyre: That has been changed. That was a major concern. That was changed in the bill.
Senator Christensen: Are you happy with that?
Mr. McIntyre: We are happier than clams; thank you very much.
Senator Milne: You will have to be very careful about these three opportunities Senator Christensen has spoken of to effect the regulations. You will have to carefully watch the timing of particularly the last one when it is posted in the Canada Gazette, because after it is gazetted, you have only 30 days to respond. If this happens while you are out in the bush, it will be even more difficult.
I am saying this because normally committees deal with legislation and not regulations, and I am not really too sure exactly what sort of route we can take to deal with regulations. It may take the route of observations on a report to this bill about our concerns about the concerns that have been raised to this committee about the nature of the regulations and an opportunity to be able to respond properly. This five-year review that is mandated will also take place under this new set of initials. There may be just a direction to the committee itself.
The Chairman: Thank you. I suspect that we may want to ask questions of some more government officials. I think you would agree with that, based on what we have heard today, and very much including the five years to get things down to where we are.
Senator Cochrane: Tell me about the impact that this legislation will have on the economic development in the Yukon. Could you elaborate on that? What impact will this have on your economic development plans?
Ms. Ledwidge: It will chase away many potential investors, people who do not want to deal with more paperwork and something they are not familiar with in other parts of the country. Now, for even lower levels of activity, they have to go through this more onerous process. If they can do that same amount of work in B.C. without doing all that paperwork, they will go there. It will have significant impact on the Yukon economy.
Senator Cochrane: What would the chamber say about that?
Mr. McIntyre: I do not think it would have to be necessarily a negative. A lot will have to do with the constitution of the board, the rules of the board and the regulations. If business and industry groups are genuinely asked for their input, and input is considered fully and fairly as per consultation, then it does not have to be a negative. The whole process is just about shifting decision-making power and empowering a group of people. There is nothing wrong with that. The intention of legislation has not been to grind things to a halt. Certainly the framers of the Umbrella Final Agreement that drafted this bill were not trying to kill the Yukon's economy.
They were trying to right social wrongs and trying to give real meat to the land claim. That is fine and dandy; however, let us make sure there are timelines for the acceptance of a project. There are no timelines now.
The Chairman: We are assured there will be timelines in those regulations. We will ask that question.
Mr. McIntyre: That is what I am saying. Let us be there.
Senator Christensen: You have expressed your concerns on YESAA. YESAA is endeavouring in its own way, however inadequate in your view, to have a one-window approach.
If you do not have YESAA, you are looking at least 16 jurisdictions within the Yukon where you would have to go to have a project reviewed. If you do not have the one-window approach of the board, which is representing all the regions and all the different governments, you would be required to deal with each and every band individually, as well as the federal and territorial governments.
Mr. Casselman: That is not necessarily so. If you were proposing to do work on the land for which the band has now settled, that would be the case. Even under YESAA, you would have to do the same. On Crown land, you would not necessarily have to approach the band to get their approval for work on Crown land.
Senator Christensen: No, but you would have to decide whether it is Crown lands, such as parks, or whether it is territorial lands or one of the 14 First Nations that have either a settlement or lands withdrawn for future settlement processes.
Mr. Casselman: I agree. However, YESAA does not necessarily mean that you can still go and work on First Nations land without having a deal with First Nations.
Senator Christensen: You could deal with one board and it is referred to one of the other areas.
Mr. Casselman: That is correct.
The Chairman: You have our assurance that we are better armed than we were before at our next set of questions to government officials. We will keep you posted and I hope you will pay attention to our Web site where you will find out what they and we say. Thank you for your testimony. It is been informative.
Mr. Rick O'Brien, Chief, Kwanlin Dun First Nation: We appreciate the opportunity to appear before you, even at this late stage.
Kwanlin Dun and Kaska First Nations are not members of the Council of Yukon First Nations. We are independent First Nations. Together, we make up over 40 per cent of the First Nations population in the Yukon.
We have a membership of over 1,000 people in Kwanlin Dun. The traditional territory encompasses Whitehorse, the largest municipality in the Yukon. Our traditional territory encompasses the vast majority of the Yukon's native and non-native people and has the greatest density of population anywhere in the Yukon. Our traditional territory continues to experience the most intensive development activity in the Yukon. It has generally lower environmental qualities, lower wildlife populations and fish stocks and a continuing decline in critical habitat. Generally, the quality of life and the social and economic well-being of many Kwanlin Dun people is significantly lower than most other people living in the traditional Kwanlin Dun territory, notwithstanding the level of development activity.
Mr. Hammond Dick, Tribal Chief, Kaska Nation: My presentation will be about 10 or 15 minutes long and we have provided about 30 copies for the committee's review. Once I finish my presentation, I will be open for questions. I will pass the floor over to Mr. Smith.
Mr. Mike Smith, Chief Land Claims Negotiator, Kwanlin Dun First Nation: Thank you, honourable senators. Kwanlin Dun is not a member of the Council of Yukon First Nations, which means we are not a party to the talks and negotiations that happened in terms of developing Bill C-2, the legislation now before you.
We were invited at the last minute to a briefing on the negotiations that happened between the three parties: the Yukon government, the federal government, and the Council of Yukon First Nations. However, for the most part, we were excluded from all those discussions. As the chief mentioned, we represent a sizeable population of First Nations people in the Yukon.
At this late stage of the game we are proposing two amendments, which we had proposed to the Standing Committee of the House but were ignored. We are pleased to be here to voice our views with respect to those amendments.
Kwanlin Dun has two amendments to propose to Bill C-2. The bill should contain a provision that requires a minister, with the full participation of Yukon First Nations, to conduct a full public review of the provisions and operations of this act within the five years of it coming into effect.
This approach was adopted under the current Canadian Environmental Assessment Act, section 72(1) and section 72(2). We clearly understand that it has been included in the newly proposed Bill C-9.
In the Yukon Umbrella Final Agreement, which was signed in 1995, Chapter 12, under development assessment, subsection 19.3 requires that the parties review the development assessment process five years after the enactment of the legislation. However, in addition to this, those First Nations that are not members of the Council for Yukon First Nations and the general public require a public process that will provide us ample opportunity to revisit and review many of the substantive issues and concerns that have not been addressed, but should be considered another day.
In our view, especially based on our experience with the negotiations of Bill C-2 between Canada, Yukon and CYFN, a legislative commitment to a public review of the act five years following its enactment is critical. The CEEA review proved to be extremely useful. We believe that this review could be useful as well.
Bill C-2 will establish a process that is more complicated than a small jurisdiction such as the Yukon requires. Key issues require further attention and discussion: the status of the decision documents, the effects and compliance monitoring, class, area and strategic level assessments and the consolidated process for enforcement.
The act should contain a provision that establishes a regulatory advisory committee. This approach is found in the CEAA law and could be modelled after it.
Our First Nations want to be assured that we have every opportunity to a meaningful review of the draft regulations that will be developed with the implementation of this act. It is our opinion that stakeholders should also be given this opportunity. In light of our experience with the development of this act, we would like explicit assurance in the proposed legislation that our First Nations will be directly involved in the development of the regulations.
Time is short and I want to assure the committee that a formal statement of our proposals along with the supporting materials will be provided to the committee clerk within the next 24 hours. Upon receipt, I would like to have that material form part of the official record of our intervention and to have copies made available to all members of the committee.
I also want to say, again, that it is unfortunate that CYI, the Canadian government and the government of Yukon did not see fit to consult and involve those First Nations who are not parties to the UFA. It is critical and Kwanlin Dun is still under the Indian Act. We are status Indian people and we are in full command of our Aboriginal rights, which we have not surrendered.
We do not have a treaty with the government but we want to make it very clear to all parties that before any development happens in our land and before this proposed legislation is proclaimed, those provisions are critical to see this working in our territory. That holds true especially in the territories of the Kaska, which is in southern Yukon where most of the development will occur. They do not have a treaty and so their involvement is of critical importance.
The Chairman: Thank you, Mr. Smith.
Mr. Dick: On behalf of the Kaska Nation, I would like to thank the members of this committee for allowing us this opportunity to present our views on Bill C-2. The Kaska are one of the Aboriginal peoples of Canada. Our traditional territory comprises some 93,000 square miles of land stretching from southeastern British Columbia through southeast Yukon and into parts of western Northwest Territories. We are not members of the CYFN. Part of our tradition of territories is located in the Yukon and comprises some 45,000 square miles of land that represents approximately 25 per cent of the Yukon.
The Kaska Nation formally recognizes that the claims to un-surrendered Aboriginal rights titles and interests in and to our traditional territory remain unsettled today. For the purposes of negotiating land claim treaties with Canada the Ross River Dena Council, the Liard First Nation Council, and the Kaska Dena Council represent the Kaska Nation.
We have been attempting to negotiate a number of important related agreements: two First Nations final agreements in the Yukon; two self-government agreements in the Yukon; a transboundary agreement into the Yukon, including self government provisions of those agreements; a transboundary agreement into the Northwest Territories; two transboundary agreements in British Columbia; and a treaty in British Columbia.
I would like to be able to tell the members of this committee that the Kaska Nation is close to achieving a settlement of our claims, particularly in the Yukon. Unfortunately, that is not the case.
The Government of Canada has recently allowed the negotiation mandate to expire and has abandoned negotiations with the Kaska. As a result, we have been left with no option but to turn to the courts to protect our rights in our traditional territory. We would much prefer to resolve our issues at the land claims table, but we are unable to do so because the Government of Canada no longer has a mandate to negotiate with us.
The Kaska are of the view that Bill C-2 contains two very serious flaws, as follows: Bill C-2 does not protect the interests of First Nations, such as the Kaska, who have yet to achieve the settlement of their land claims in Yukon; Canada has not honoured its obligation under chapter 12 16.1 of the Yukon Umbrella Final Agreement. Those obligations are supposed to be honoured prior to the enactment of Bill C-2.
Turning to the purposes of Bill C-2 in respect of the first matter, it is clear that Bill C-2 fails to adequately promote and protect the interests of First Nations, such as the Kaska, who have yet to achieve a settlement of our claims in Yukon.
The purpose of Bill C-2 is set out in clause 5(2). From the Kaska perspective, clauses 5(2)(d), (f) and (g) are of particular importance. These read as follows:
5. (2) The purposes of this Act are
(d) to protect and promote the well-being of Yukon Indian persons and their societies and Yukon residents generally, as well as the interests of other Canadians;
(f) to recognize and, to the extent practicable, enhance the traditional economy of Yukon Indian persons and their special relationship with the wilderness environment;
(g) to guarantee opportunities for the participation of Yukon Indian persons — and to make use of their knowledge and experience — in the assessment process;
In clause 2, on page 9, it states: "Yukon Indian person'' means a person enrolled under a final agreement.
Accordingly, it is clear that Bill C-2 has been structured to protect and promote the interests of only those Yukon Indian people who have managed to achieve a final agreement. We consider this to be unfair and inequitable.
The Kaska believe that Bill C-2 should protect and promote the interests of all Yukon Indian people, regardless of whether their First Nation has been able to achieve a land claims agreement.
From our perspective, the fact that Canada has abandoned the land claims negotiations prior to concluding all the necessary final agreements, transboundary agreements and self-government agreements makes this even more important. The Kaska traditional territory represents 25 per cent of Yukon, and we should not be excluded from the purposes of this act.
Bill C-2 clearly fails to protect the interests of transboundary land claimants such as the Kaska Dena Council of northern B.C., regardless of whether they have achieved a treaty. Again, we believe this is unfair and inequitable. We are of the view that Bill C-2 should not discriminate against First Nations from outside the Yukon that have recognized claims to lands in the Yukon Territory.
As mentioned above, the Kaska are also concerned that Canada has failed to honour its obligations under chapter 12.16.1 of the Umbrella Final Agreement. That paragraph reads as follows:
Government shall make best efforts to negotiate with other relevant jurisdictions in consultation with affected Yukon First Nations, agreements or cooperative arrangements that provide for development assessments equivalent to the screening and review requirements in the Yukon for enterprises or activities located outside the Yukon that may have significant adverse environmental or socio-economic effects on the Yukon.
We understand that chapter 12.16.1 requires Canada to make best efforts to negotiate with the Government of British Columbia and the Government of the Northwest Territories, in consultation with the Ross River Dena Council and the Liard First Nation agreements. These are cooperative arrangements that provide for development assessment equivalent to the screening and review requirements in Bill C-2 for enterprises or activities located in British Columbia or Northwest Territories that may have significant adverse environmental or socio-economic effects on the Yukon.
For the Kaska, the requirements of chapter 12.16.1 are very important because significant portions of our traditional territory are located in British Columbia and Northwest Territories.
Moreover, there are proposed enterprises or activities in those jurisdictions that may have significant adverse environmental or socio-economic effects on the Yukon. For example, in British Columbia, the proposed Liard River hydro project represents the largest hydro project on the books for British Columbia. That project would no doubt have significant adverse environmental or socio-economic effects on the Yukon.
Similarly, there are potential large-scale mining developments proposed for the Northwest Territories portion of the Kaska traditional territory. Again, those developments may have significant adverse environmental or socio-economic effects on the Yukon.
The parties to the Umbrella Final Agreement agreed it in its implementation plan that the provisions of chapter 12.16.1 would be implemented prior to the enactment of Bill C-2. However, to date, Canada has not made best efforts, or any effort at all, to comply with the provisions of chapter 12.16.1.
Similarly, there have been no consultations with the Kaskas in respect of these matters. The Kaska are of the view that chapter 12.16.1 should be honoured prior to the enactment of Bill C-2.
We are of the view that Bill C-2 should be amended to ensure that the interests of all Yukon Indian persons and recognized transboundary claimants are protected regardless whether they have been able to achieve a final self government or transboundary agreement. We are also of the view that Bill C-2 should not be enacted unless and until the provisions of chapter 12.16.1 have been honoured.
I appreciate this opportunity to present the views of the Kaska Nation.
The Chairman: Thank you. I would say to you as well as to our previous witnesses, we thank you. We only crossed the street to come here. All but one of you came a much longer way.
Mr. Dick, where in the undertaking, agreement, or UFA does it say that chapter 12.16.1, has to be honoured before Bill C-2 is brought into effect? My view is that it says that it should be done. I do not see a time reference anywhere in particular.
Mr. Dick: It is set out in the implementation plan of the Umbrella Final Agreement. Therefore, it is one of the provisions of the plan.
The Chairman: Thank you. I will look it up.
Senator Milne: What is the population of the groups that you represent? Mr. Dick, how many Kaska are there?
Mr. Dick: The Kaska Nation is made up of about 3,000 members.
Senator Milne: Mr. Smith or Mr. O'Brien?
Mr. Smith: Kwanlin Dun has approximately 1,000 members.
Senator Christensen: Mr. Dick, does the 3,000 include the British Columbia bands as well.
Mr. Dick: That is correct.
Senator Christensen: There are the two bands in the Yukon and the three in B.C?
Mr. Dick: That is correct.
Senator Christensen: In reading your submission previously, I was certainly very concerned with your statements that you had not been properly consulted, and you feel that you must have more input in this bill. Were there any efforts made to consult with either of your bands prior to just recently?
Mr. O'Brien: Kwanlin Dun participated in the negotiations, but our interests during the consultation process were not recognized. We were totally ignored. It was a process of being more of an observer than anything else.
I would like to state clearly that Kwanlin Dun First Nation does not support this bill.
Senator Christensen: You did at first, did you not? Did you not participate in the process in 1996?
Mr. O'Brien: We had a technician working with CYFN.
Senator Christensen: When did you withdraw from the process?
Mr. O'Brien: We did not withdraw from the process.
Senator Christensen: You continued to support it and be a part of it?
Mr. O'Brien: We were part of it. However, our interests were not recognized. We felt as if we were totally ignored.
Senator Christensen: However, you continued in the process?
Mr. O'Brien: We continued in the process, yes.
Senator Christensen: Mr. Dick, what about the Kaska? Were you involved at an earlier stage?
Mr. Dick: We were involved in the early part of the development of the process. Later on, because of our capacities to deal with the issues, we pretty well left that to CYFN.
Senator Christensen: Did the Kwanlin Dun, the Liard, and Ross River receive funding to participate?
Mr. O'Brien: I can only speak for Kwanlin Dun. We did receive funding for one individual to attend as a technical person.
Senator Christensen: How much funding was received? Do you have any idea?
Mr. O'Brien: I do not know off the top of my head.
Senator Christensen: Do you know, Chief Hammond?
Mr. Dick: No, I do not. The Ross River Dena Council and the Liard First Nation had technical people involved in the process as well.
Senator Christensen: They did receive funding for participation?
Mr. Dick: They did.
Senator Christensen: Chief Hammond, you have been saying that the federal government withdrew from the land claim process and stopped the negotiating. Why did they stop the negotiations?
Mr. Dick: I believe there was a Memorandum of Understanding that needed to be signed off between Yukon First Nations, Ross River, and Liard First Nations within the meaning of the Indian Act. The minister gave those Yukon First Nations a year to conclude a Memorandum of Understanding. We took part in those negotiations, and time ran out as of June 21 of last year.
Since then, Canada has basically walked away from the table, even though they do have a fiduciary responsibility for Ross River and Liard First Nations. We were in the process of concluding our final agreement; and at the time, I believe that we were not too far apart from concluding our final agreement.
The mandate that the minister received from treasury ran out at the end of the last fiscal year, in 2002. Because of certain circumstances, the Kaska were able to get an extension on that until June 21. When that date arrived, we could not agree with the comprehensive offer that was provided to the Kaska Nation.
Senator Christensen: There were other First Nations that were also negotiating their claim: Carcross, White River, Kluane. Their time ran out as well, but their negotiations continued.
Mr. Dick: That is correct. Those Yukon First Nations signed their Memorandum of Understanding to wrap up their negotiations. We felt that there were too many outstanding issues for the Kaska Nation to sign on the MOU.
Senator Christensen: Under the devolution process it is very clear that selected lands that have been withdrawn as a result of the negotiations are protected under an Order in Council. They can be, and are in fact, protected from any development or development process. Does that not give you any comfort?
Mr. Smith: If I may, as we are negotiating orders to protect the land for settlement, the government issues an Order in Council to withdraw lands. However, this is for a certain period of time, for five years. It is not forever.
Senator Christensen: Can it be renewed?
Mr. Smith: Yes, but it is at the behest of government whether or not to renew it. We do not have the right. We can request that it be renewed, but we do not have the right to say that Order in Council will be proclaimed again. There is a concern for a number of First Nations who have been at the table for a long time to resolve those outstanding issues.
You talked about why the government left the table. There was a time set for First Nations to conclude those outstanding issues, and there was a lot of pressure on First Nations to do so. Carcross, Kluane and Kwanlin Dun managed to get to the MOU. So did White River. However, White River has missed the second stage; so we have now three Yukon First Nations who are outside the negotiating process, whereas Kwanlin Dun, Carcross and Kluane still are working on trying to conclude those negotiations to become a party to the UFA.
As of now, we still are not party to the UFA. As a result, those First Nations who have signed for the most part are working together as self-governing First Nations. They really have very little to do with those First Nations who have not reached an agreement.
That is because they feel, in order to get their business done, they cannot wait for the ones who have not concluded. They want to get on with their business. This is why Bill C-2 is being passed right now, to meet the concerns of those First Nations who have reached their final agreement.
The Chairman: That is not why Bill C-2 will get passed, Mr. Smith.
Mr. O'Brien, just before we go to another question, you said that you oppose this bill. Would you tell us, in short, why you oppose it? Is it because of the principle that you are specifically excluded from it, in your view, or is it because of the substance of the bill?
Mr. O'Brien: I would have to say a little of both. First, given our location, we are strategically located in the centre of the Yukon. We are also right smack in the middle of the city limits. So the municipality being excluded puts some hardship on our First Nation.
Second, through the consultation process, I would like to say we were there but we were ignored. Our interests were not recognized.
The Chairman: When you were in the process of being ignored, did you speak and did you present your arguments, or were you simply not referred to? As I mentioned before, people who go into a negotiation, and whose views do not get accepted as part of the outcome of the negotiation, will often say afterwards, we were ignored and we were not properly consulted. However, that is not necessarily the case.
There is an old saying to which I often refer. On Friday morning you can consult the condemned man whether he would like you to chop off his head, and he will likely say that he would rather you did not. On Saturday morning you chop off his head and say, but we consulted with him.
Did you have a chance to present your argument and the argument simply did not prevail, or were you not heard?
Mr. O'Brien: Mr. Smith was our technician at the consultation process. However, just to elaborate a little bit, if I understand what you are saying about consultation, if you can chop off my head I was consulted.
If I told you I am going to break into your house, and I told you three or four times and I finally did it, does that give you the right to call the law on me? I consulted. Is that the same scenario?
The Chairman: The short answer is yes. So it is a bit of both that you are worried about.
Mr. Smith: For the most part, the representations made by ourselves were based on the fact we do not have an agreement and we do not have the assurances under the UFA to participate in the review process and the drafting of those regulations. Those are party to each of the parties, CYFN, the Yukon and the federal government.
We made representations, not on these two amendments but on the whole of the act as well; but because we are not self-governing, our interests are a lot different from those First Nations who have settled their land claims. As a result, those First Nations who have settled are in the majority, 60/40, so obviously we are outvoted. As a result, our representations were dismissed.
The Chairman: Can I ask you a specific question, Mr. Smith? What is there in either the UFA or in Bill C-2 that will stand in the way of a successful land claims negotiation? I cannot see anything in the UFA or Bill C-2 that specifically impedes land claims negotiations.
Mr. Smith: That is not our point. That is the point the Kaska are making. We want to see the act recognize all Yukon First Nations. We want to see a process that invites full public review participation when that happens in the five-year period. We want to get involved and have the right to participate in the development of the regulations. We have lived with being excluded from the UFA and from the CYFN. For example, appointments to all land claims committees are done by the CYFN. We are excluded from that process. We are excluded from appointments to various committees or boards that deal with government.
We want to ensure that not only CYFN but also those First Nations who are not party to that are included in the process. That is the point we wanted to make.
Senator Cochrane: Chief Hammond, could you be more specific and tell us in what ways Bill C-2 does not protect the Kaska Nation?
Mr. Dick: The legislation does not go far enough. The traditional territory of the Kaska Nation transbounds the B.C.- Yukon border as well as the border with the Northwest Territories. There are proposed projects that could have adverse effects on the residents in Yukon, in particular to our communities and to the socio-economic framework of our members.
I have referred to a couple of projects that could have an adverse effect on Yukon, in particular a hydro development or a major mine in the Northwest Territories. We have two mines in the Northwest Territories that have access to that mine site through the Yukon. That may have an adverse effect on our traditional territory. That is to what we were speaking.
The Chairman: Do you mean something getting into some water that would affect you by way of a downstream effect of some kind? How could something occurring in another territory affect you in the Yukon?
Mr. Dick: We have experienced some negative impact already from past projects, in particular the Canol project that took place in 1942. We have mines that are on the books now in Northwest Territories just across the Yukon- Northwest Territories border. They will be hauling ore out of those areas. There may be negative effects from that.
Right now, we have been dealing with the impact of Faro mine, which is a lead zinc mine. That has been in the works for the last 30 years. Even though the mine has been closed down, we are quite concerned about the environmental impact of the tailings or what is left once the mine is abandoned. We are quite concerned about mines being developed and then abandoned. We are concerned about the consequences of this mining activity.
Another project that we are quite concerned about is the Liard River hydro project. It is still on the books of the B.C. government and will be under development until 2040. They have a proposed site "C'' dam on the Liard River just downstream from Liard hot springs. Part of that development would flood lands all the way into the Yukon. The Liard hot springs will be 500 feet underwater.
Senator Christensen: You were saying that because you do not have the land claim you do not have input on regulations, yet anyone in the Yukon is able to have input into the regulations. They do not have to have a land claim or settlement to do that.
Mr. Dick: That is correct. We are not saying that because we are not at the table we do not have a say in how this is developed. We just want to ensure that the committee takes our interests and concerns into consideration.
Senator Christensen: It is my understanding that CYFN has to consult with all Yukon First Nations, not just those that have settlements.
Mr. O'Brien: I will speak strictly from my experience. Unless I am invited I do not attend the leadership meeting at CYFN. When I do attend, I am there strictly as an observer. I do not really have voting capacity at the table. Whenever an available position comes up, I say I am not present as an observer at a CYFN leadership meeting so I do not have a say on who sits on what board that has come out of the CYFA.
Senator Christensen: I assume there would be a letter sent to all of the Yukon First Nations chiefs, whether or not they were members of CYFN, or whether they had a settled land claim or not, requesting names to be submitted for board members.
Mr. O'Brien: I am not saying that CYFN is putting incapable people on these boards. They have done a significantly good job in the past. I have always said that we need to look for neutral ground where we can work together. I came on as chief and this is what I inherited. I have been working hard to try to develop some sort of working relationship with them.
I would say the odd time we have received a letter; but, in most cases, no, we do not. The communication is not there. We operate with very minimal human resources, which is one of the problems we have because of financial restraints and cutbacks. I imagine CYFN is faced with the same problems we are in that capacity.
Senator Christensen: Have you seen anything that you feel would preclude you, or one of your people, from being appointed to that board?
Mr. Smith: This is one of the concerns we addressed at the land claims table. We have made strong representations to government concerning the plan to implement the Umbrella Final Agreement. We have suggested that an amendment be put in that CYI has to consult both Kaska and Kwanlin Dun. We would like it official that Kaska and Kwanlin Dun have to be involved in the decision-making process concerning the selection of persons to the board. There is no doubt that CYI has developed a process to invite all Yukoners to apply if they are interested in sitting on boards. However, those chiefs sitting in camera make the decision. For the most part, we have been excluded. We have not seen any members being appointed to boards and committees. Similarly with the Kaskas, you do not see Kaskas on boards or committees. The process is there, but the right to appoint is not there for us.
Senator Milne: You may already have heard that your first proposed amendment to the bill concerning the operations of this act being reviewed within five years of its coming into effect has already been included.
Mr. Smith: It is a general invitation for people to participate. We are saying that we want more than that. We want the right to sit at the table and make representations directly on those points. It is not good enough for us to be consulted or to be invited to submit our views. We have done that in the past and it comes to no avail. We are not happy with that.
The Chairman: Thank you very much, gentlemen. We are very grateful for your having come here. We will take into account in our next lines of questioning what you have said to us. I appreciate, as we all do, your having enlightened us.
The committee adjourned.