Yukon Environmental and Socio-economic Assessment Act
Bill to Amend—Second Reading—Debate Adjourned
November 30, 2017
The Honourable Senator Larry W. Campbell :
Honourable senators, it is an honour for me to rise in the Senate today to speak to Bill C-17, An Act to amend the Yukon Environmental and Socio-economic Assessment Act, or YESAA. In the spirit of realistic reconciliation, I would like to acknowledge that I do so on traditional Algonquin territory.
The YESAA, as honourable senators may know, was passed in 2003 and stems from the Umbrella Final Agreement between Canada, self-governing Yukon First Nations and the Government of Yukon.
As required under the Umbrella Final Agreement, a five-year review of the YESAA was launched in 2008 and concluded in 2012.
The review resulted in 76 recommendations,72 of which were agreed to by all parties.
There was agreement to move forward with the 72 consensus recommendations and not proceed with the remaining four.
Despite spending years working with the Yukon First Nations on the comprehensive review, the Government of Canada added four additional changes outside the process and absent meaningful consultation with the Yukon First Nations.
These changes are not to be confused with the four non-consensus recommendations which were discussed as part of the five-year review; they were entirely new measures brought forward after the five-year review process was completed. These controversial changes included legislated time limits on the review process; exemptions from project reassessments when an authorization is renewed or amended unless there has been a significant change to the project; the power for the federal minister to provide binding policy direction to the Yukon environmental assessment board; and finally, the ability for the federal minister to delegate their powers, duties or functions under the act to the territorial government.
Bill S-6, the Yukon and Nunavut Regulatory Improvement Act, which implemented the consensus recommendations of the review process, also included the four controversial changes previously noted. Bill S-6 received Royal Assent in June 2015.
On October 14, 2015, in response to the passage of these four contentious provisions, three Yukon First Nations — the Champagne and Aishihik First Nations, Little Salmon Carmacks First Nation, and Teslin Tlingit Council — initiated legal action against the Government of Canada and the Government of Yukon in the Supreme Court of Yukon.
The court petition claims that the amendments are in violation of the Yukon Umbrella Final Agreement, that there was inadequate consultation regarding their development and that Canada and Yukon failed to act in accordance with the honour of the Crown.
The Government of Canada is committed to a renewed relationship with indigenous peoples based on the recognition of rights, respect, cooperation and partnership. This includes, wherever possible, pursuing negotiation rather than litigation to resolve disputes between the Crown and indigenous peoples.
After months of discussions, Canada, the Yukon government and Yukon First Nations signed an MOU in April of 2016 that outlined mutually agreed upon steps towards addressing the First Nations’ concerns with changes to YESAA made in Bill S-6. This resulted in the creation of Bill C-17, which was introduced in the other place on June 8, 2016. As a direct result of the bill’s collaborative origin, the self-governing Yukon First Nations pursuing related legal action have adjourned their hearing dates while this bill proceeds.
Bill C-17 proposes to repeal the four controversial changes that were made to YESAA through Bill S-6. As I have already highlighted, these changes were developed outside the original review process of YESAA and caused universal condemnation by the Yukon self-governing nations as well as litigation between the Crown and three of those First Nations.
Bill C-17 repeals legislated time limits on the review process, exemption provisions regarding project reassessments, powers for the federal government to provide binding policy direction to the board and, finally, the ability of the federal minister to delegate duties or functions under the act to the territorial government.
Honourable senators, Bill C-17 is an example of what can be achieved when government works in partnership with indigenous communities at the very beginning of the proposed changes.
The Yukon First Nations were consulted from the very beginning, including on the draft legislative proposal. This bill will re-establish trust with Yukon First Nations and restore legal certainty for responsible resource management, paving the way for increased investment, development and jobs.
Last spring, the Yukon legislature unanimously passed a motion confirming all parties:
. . .supports the efforts of the Government of Canada to restore confidence in Yukon’s environmental and socio-economic assessment process through amendments contained in Bill C-17. . . .
On March 13, the council of Yukon First Nations, the Yukon government and the Yukon Chamber of Mines sent a joint letter to the Government of Canada stating:
The Government of Yukon, self-governing Yukon First Nations, Council of Yukon First Nations and the Yukon Chamber of Mines look forward to seeing Bill C-17 passed, without change, as soon as possible. Your support for the passage of Bill C-17 assures us that the Government of Canada is genuinely committed to reset the relationship between Canada, Yukon and Yukon First Nations.
The letter also stated that they looked forward to passing the bill so that:
. . .the Yukon economy can benefit from the certainty established by the final and self-government agreements in Yukon.
Honourable senators, this bill represents a true consensus. The government also understands that the support of industry groups, including the Yukon Chamber of Mines, is not unconditional. Industry has made it clear that issues such as criteria for reassessments of projects and reasonable time limits for assessments require further discussion and clarity.
First Nations and the governments of Canada and Yukon agree that these issues require a strong policy framework.
Canada, Yukon, self-governing Yukon First Nations, industry and the board are all committed to working in collaboration through the regulatory process to establish practical timelines for the assessment processes and clear and sensible rules for when reassessments may be required.
The Government of Canada has been in ongoing discussions with the Yukon Chamber of Mines, and the chamber stands by their support for passing this bill on an expedited basis with the understanding that these issues will be dealt with through other policy mechanisms shortly thereafter.
The self-governing Yukon First Nations have made clear that passing Bill C-17 is an important show of good faith and a first step in moving forward with these important discussions. However, the minister’s office has already had preliminary discussions with the Chamber of Mines and other partners as to how these future discussions could be structured, and those discussions are ongoing.
This underscores the time-sensitive nature of this legislation, as its passage is also a first step toward moving forward with further work on these critical issues. The government believes that a sustainably developed resource sector is essential to the success of the Canadian economy and, if we get this right, will serve as an important foundation for future economic and job growth.
Unlocking this economic potential must be contingent on environmental sustainability and on impacted indigenous communities being engaged as equal partners. This is not only an indigenous issue, but one with which all Yukoners are extremely concerned. Indigenous peoples must be full partners in designing regulatory frameworks when their constitutionally protected rights are impacted.
This is not just a moral obligation but a legal one, particularly in regions like the Yukon which are subject to comprehensive land claim agreements and self-government agreements.
We know that a sustainably developed resource sector is essential to the economic success of the Yukon. Once indigenous rights and title are recognized, land and water are protected and true partnerships are forged between local and indigenous communities, resource development projects will move forward more quickly and with greater legal certainty.
I urge all senators to support this bill. Thank you.