Bill S-6 (Historical)

Yukon and Nunavut Regulatory Improvement Act

An Act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act

Part 1 amends the Yukon Environmental and Socio-economic Assessment Act to provide that the Canadian Environmental Assessment Act, 2012 does not apply in Yukon, to allow for the coordination of reviews of transboundary projects, to establish time limits for environmental assessments and to establish a cost recovery regime. It also amends that Act to provide for binding ministerial policy directions to the Board and the delegation of any of the Minister’s powers, duties and functions to the territorial minister, and allows for a member of the board who is participating in a screening or review to continue to act for that purpose after the expiry of their term or their removal due to a loss of residency in Yukon, until decision documents are issued. In addition, it amends that Act to clarify that a new assessment of a project is not required when an authorization is renewed or amended unless there has been any significant change to the original project.
Part 2 amends the Nunavut Waters and Nunavut Surface Rights Tribunal Act to modify the maximum term of certain licences, to establish time limits with respect to the making of certain decisions, to allow for the making of arrangements relating to security, to establish a cost recovery regime, to modify the offence and penalty regime and to create an administrative monetary penalty scheme.

Yukon and Nunavut Regulatory Improvement Act

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, I remind the parliamentary secretary that in the Haida case, which was 10 years ago now, the Supreme Court indicated that the broad spectrum of consultation includes the full consent of the first nations on important issues. I think that the environment is most definitely an important issue to the first nations. I simply want to remind the parliamentary secretary of that.

I have a very simple question for my colleague. I have noticed a common thread in all of the government's actions since it got a majority in 2011. It has been weakening all of the environmental assessment processes to make it easier to develop natural resources. That is unfair to many people—the first nations, of course, but also people who live in the north. They need to be involved in the decisions that affect them, especially when it comes to the environment.

My colleague mentioned a number of important stakeholders in this process, such as the tourism association and mining companies. Are there any others she could mention to show that the first nations are not the only ones who are upset here, but that there are many people living in the north who care about the environment and the economy?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I want to touch for one moment on the issue around accommodation. The member cited the Haida case from a number of years ago. However, we also had a recent court decision, the Tsilhqot'in decision, which talked about not only consultation but consent. Consent is missing in Bill S-6. There is no consent to the changes that would be made.

With regard to the environment, there are mining companies that have raised objections, environmental organizations, and tourism organizations. It sounds to me as if there are a number of Yukoners who are really concerned about protecting the wonderful, amazing environment up in the Yukon. People want economic development, but they want it done responsibly and sustainably.

What the bill would do is create more uncertainty. It would not protect the environment and it would create uncertainty for some of these projects.

First nations have already indicated that, if the government is not willing to sit down with them and talk about accommodation and consent, this will end up in court, and that would not provide certainty in terms of development of a variety of projects.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, it is an honour today to speak to Bill S-6, a bill from the Senate, an act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act.

I oppose this legislation. I think it is deeply flawed. I would love to hear from the member for Yukon in the House. I do not see him anywhere.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Mr. Speaker, I rise on a point of order. Unless the member thinks we should amend the rules so the member for Yukon can give two speeches at the same stage, perhaps he should stick to order and not point out the presence or absence of a member. Perhaps he could check back in Hansard, where he can read the speech of the member for Yukon.

[The Acting Speaker, Conservative, Bruce Stanton]

I thank the hon. parliamentary secretary for his intervention. Members may know that, in fact, the Standing Orders do indicate that members should avoid any reference to the presence or absence of members in the House. That is an area of speech we tend to stay away from.

In this case, the hon. parliamentary secretary makes a valid point. Therefore, I would encourage the hon. member to perhaps rephrase that comment and perhaps avoid it in future.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I will take your good counsel on this matter.

To further debate on this bill, it is very important that the government understand that environmental protection is a fundamental obligation of this House. We need to ensure that our environment is going to be there for future generations. We all want to benefit from its wealth, from the bounty it brings us, but we need to do it in full consultation and full agreement with the people who live on those lands.

The current government has had extreme difficulty in being able to bring forward legislation that brings this consultation process to the fore. We need to recall previous bills that this side of the House certainly had a lot of difficulty with, such as Bill C-38, which gutted environmental protections in this country. We see with this bill that we are again going in the same direction.

Environmental protection is an obligation; it is a duty on our part. We want to ensure that resources remain. We want to ensure that people can continue to benefit from the wealth that this land brings us. It is not simply a theoretical question. In my riding, when we speak to environmental protection, we are talking about the fundamental industries that make my riding economically viable: the forestry industry, the fishing industry, the mining industry. We need those environmental protections so that future generations can exploit those resources and, unfortunately, Bill C-38 scrapped those.

With Bill S-6, we have a situation where those who live in Yukon have challenged this legislation insofar as they have not been consulted adequately. In fact, there have been threats of legal action against this bill. I sometimes wonder if the current government is not simply here to ensure that lawyers have as much work as possible challenging its bills before the courts. Let us remember that the Supreme Court, over and over again, has identified that the duty to consult is not a duty to be trifled with.

My colleague recently mentioned that the courts, in June of this year, came up with even stronger language. The court has made it clear that the government not only has a duty to consult but has a duty to accommodate. The duty increases with the responsibility and the rights of first nations on their land. In the case of this bill, we have a number of first nations representatives who have told us precisely why they do not agree with this bill.

A few representatives of first nations have been very clear. I will start with Mary Jane Jim, councillor from the Champagne and Aishihik First Nations. She has already testified and has said very clearly that in her opinion there are concerns regarding Bill S-6. They are subject to the matters raised during the five-year review. It is her view that the Yukon environmental assessments have been operating effectively and efficiently since 2003, but that Bill S-6 would amend this process so that the proposed Bill S-6 would breach the Crown's duty to consult and accommodate with respect to the proposed changes to YESAA.

Mary Jane Jim goes on to point out that:

The CYFN and Yukon First Nations assert that the federal government would breach its constitutional duty to uphold the honour of the Crown when it proceeded unilaterally with amendments to the YESAA. These are matters that were not discussed or raised during the five-year review or, in the case of the amendment that would create exemptions for project renewals and changes, contradict agreements reached during the five-year review.

This is the opinion of one person, a representative of first nations. I am going to bring more testimony that was brought to the fore already, to the other House.

Let us be clear. The representatives of first nations are dissatisfied with this bill. This bill does not go far enough in consulting first nations, nor does it go far enough in protecting the environment. It was done in a secretive way. There are a number of organizations that feel that the five-year review process was not respected and they were not allowed the input not only that they were expecting but also that we are duty-bound to supply.

The Nunavut Water Board, for instance, has a number of concerns. It has already brought forward possible amendments; one of them being the question of anticipated duration, which Mary Jane Jim, the councillor from the first nations, has already brought forward in the testimony I just cited. The question of the anticipated duration of appurtenant undertaking is a very ambiguous statement.

The question from the board's perspective is that there is an absence of regulatory definition of what is an anticipated duration, what it means, and it seems to create confusion regarding enforcement. What is an anticipated duration of any project? One would have a hard time defining that from the get-go.

The difficulty is that, if there had been an adequate process of consultation, maybe these issues would have been addressed in the first place.

The problem, again, with the current government is that it is in a terrible hurry to adopt legislation, it does not take the time to consult, and it comes up with legislation that is often flawed, forcing many organizations to bring legislation to tribunals and, ultimately, possibly even the Supreme Court—a very costly, time-consuming undertaking—when in fact it would have been simpler and much more effective if the consultation had been done properly in the first place.

I would like to comment on an issue that the member for Hochelaga also brought forward, that there seems to be a strong sense, a strong flavour of paternalism in the way we deal with first nations, in the way we deal with our territories. When we do not have adequate consultation, the solutions are made in Ottawa and imposed upon people in the north.

Why would we not take the time to bring their concerns forward and have them properly addressed and accommodated for?

The consultation process is not simply a theory where we put up a website and wait for comments to come in. There is an obligation to bring those concerns forward, to address them, and to accommodate them to the extent we are legally obligated, and more. The obligation here is to respect first nations' rights and respect our environment in the long term.

Unfortunately, we seem to making legislation that brings the possibility of exploiting our natural resources at the first possible occasion and in the quickest way to make a buck. However, that is not a long-term view. That is a view that can only bring us forward for a few months, for a few years, but in the long run, we all end up losers in that process.

We should really be looking at why we put in the YESAA in the first place. The Yukon Environmental and Socio-economic Assessment Board has a reason to exist and it was done through partnership. We brought this legislation forward in partnership with our first nations. We brought it forward in partnership with those who live in the Yukon.

Unfortunately, in this particular case, we have decided that it is much more efficient—and it is certainly not my view, but it seems to be the view of the current government—to just bring down legislation as fast as possible, to use the language of the parliamentary secretary, to “knuckle under”, if we do not allow the process to just be steamrolled forward.

I do not see this as a confrontation. “Knuckle under” sounds awfully violent to me. In fact, we should be looking at a process that is conciliatory, a process that is understanding of people's concerns and that takes the time that it takes to bring legislation that upholds our rights and obligations.

There should not be a massive hurry to exploit our resources. They are not going anywhere. We need to be doing this carefully. We need to be doing this properly. We can only extract a resource once. We cannot extract it over and over again. Let us do it properly, let us do it right, and let us do in full respect of our first nations.

When it comes to what we should be doing, we should have a broad public consultation process, not a process that seems to breach the five-year review that we are legally obligated to bring forward. The YESAA should be operating effectively and efficiently, but at this point it does not seem that the amendments that are being brought forward by this bill would support the process that was put in, in the first place.

When it comes to our NDP leader from Yukon, Ms Liz Hanson, she made a very good point at the Yukon legislature, I thought, where we need a relationship built upon dialogue and respect.

She pointed out that 11 years ago, devolution gave the Yukon government province-like powers for land and resource management, that this was an important step in Yukon's history and that it was crucial to Yukon's ability to determine its own future, one that was grounded in respectful relationships among Yukon first nation governments and the Yukon government.

With the proposed changes that the YESAA brought forward, there was a made in Yukon solution for a made in Yukon economy. It was a made in Yukon proposal that was adopted by those who lived in Yukon. Today we have a relationship that does not seem to be based on dialogue and respect. It seems that we are trying to barrel it through.

There was an editorial in Yukon News in June, 2014, around the same time the Supreme Court came down with the ruling that amplified our duties and obligations to first nations. I would like to quote this editorial from Yukon News on June 13. It said:

A long list of people deserve raspberries for this needlessly shady behaviour. At the top of the naughty list are Senator Daniel Lang and [the member for Yukon], who are supposed to ensure that the interests of Yukoners are represented in Ottawa. Instead, they’ve kept the public out of the loop, other than [the member for Yukon] uttering vague generalities about the forthcoming changes without offering any meaningful specifics.

The newspaper goes on to say “shame on them”.

I have difficulty with a process that does not seem to have widespread support and that does not seem to reflect the obligation of consultation.

Let us go back to some discussions that were brought forward by the leader of the Council of Yukon First Nations. Ruth Massie, Grand Chief, who pointed out, “The Council of Yukon First Nations reiterates that the five-year review has not been completed”. Are we respecting our terms, agreements and the obligations? According to the Council of Yukon First Nations, the answer to that is a clear no.

There are three issues that the Yukon first nations say remain outstanding. It is worth mentioning what they are.

The first is:

Future Review: It is expected that the YESAA process will require adjustments to deal with future circumstances and ensure effectiveness and efficiency. Some provisions have not been operational. Therefore, it would be prudent for the parties to commit to undertake another review of the YESAA process in the future.

We need to have continuous reviews and input to ensure our legislation stands up. We need adequate funding for Yukon first nations. This is something we have heard frequently in the House. The government seems to impose obligations on first nations, especially lately. It seems to be imposing obligations that are very onerous. They are obligations that we do not even impose upon ourselves, yet we do not give the first nations the capacity to meet them effectively.

Going back to the testimony that was brought forward by the Council of Yukon First Nations, it says:

If the YESAA process is to operate effectively and efficiently, Yukon First Nations must have the resources to fulfill their duties and participate fully in the assessment of projects within their respective traditional territories. Due to the significant increase in the number, scale and complexity of projects proposed in certain areas of the Yukon Territory, this issue has been raised repeatedly by the Council of Yukon First Nations.

The third point that the Council of Yukon First Nations wish to underline and address as a strong objection to the bill is the engagement with affected Yukon first nations. It said:

The CYFN has proposed that a territorial or federal decision body must engage with the Yukon First Nation when it is considering recommendations from the executive committee or a designated office with respect to projects that may affect its Aboriginal treaty rights, titles and interests. This engagement must take place prior to the issuance of a decision document.

This is probably the one that is of greatest concern to me. I do not understand, knowing what the Supreme Court has said over and over again about our duty to consult and to accommodate, how it is possible that first nations are coming back and saying, yet again, that we should be consulting with them before we impose a decision upon them.

I thought that was made clear by the Supreme Court of Canada. I thought the government actually listened to the laws of this land. We are certainly very busy legislating in this place, but we do not seem to be taking the time to read in this place.

I would really enjoy hearing from government members as to why first nations of our country continuously repeat that they are not being heard. The consultation process is clearly inadequate. From the readings I make of the Supreme Court of Canada rulings, it agrees with first nations on this point. They simply are not being heard as far as our obligations toward them is concerned. First nations have the right to be heard and they have the right to expect that we will accommodate them. Unfortunately, we seem to be steamrolling decisions that do not accommodate them, making it possible for companies to come in and exploit the resources regardless of local concerns.

It is a poison chalice when companies come in and try to exploit a resource without adequate consultation and without adequate local support. Ultimately, the process becomes flawed and those companies must expend enormous resources to backpedal in order to compensate for the lack of work that was done by the government with its legislation. We should not be imposing that kind of burden on our resource companies. We should help them to adequately, properly and respectfully exploit our resources so that long-term benefits can be had by all.

There is no reason why we all cannot benefit from our resources, but unfortunately the Conservative government insists that it knows better than anyone else and steamrolls legislation through at all costs and with all speed. The fact that today two motions were brought to this place regarding time allocation speaks to the fact that the government just simply does not want to take the time to listen.

Bill S-6 proposes amendments that were not even discussed with the Council of Yukon First Nations. This is reason for deep concern. How is it possible that the Council of Yukon First Nations was not consulted regarding the modifications? The Conservatives say that they consulted hundreds of people in Yukon regarding this legislation, and I am happy they have.

However, the Conservatives seem to have side-stepped consultation when it comes to representatives of first nations. I do not understand their reasoning for this. If the Council of Yukon First Nations is saying that it is not being heard, then I suspect this bill is probably yet another one that will be brought before the courts because of its inadequate consultation process. Ultimately, bad consultation means bad legislation. We are not going to have the proper safeguards in place and we are not going to see the benefits being shared as they should.

We should stop being paternalistic in this place. Yukon has the right to govern itself. We have had that discussion in the House. There seems to be agreement in principle that Yukon should have much more autonomy than it has now. Unfortunately, with Bill S-6, we seem to be turning the clock back to a process where the House will decide for first nations and for Yukoners what is best for them. I do not agree with that process.

It is important that we take time to reflect on this legislation. I would like to hear from the parliamentary secretary. I would like to hear from all members of the House. I would especially like to hear any comments that the member for Yukon might have regarding the legislation.

[Mark Strahl, Conservative, Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, as I indicated in my earlier point of order, the member for Yukon has already spoken to the bill during this stage, so he cannot speak again. The member will need to go back and read his remarks in Hansard.

The member should also read the Supreme Court's views on consultation. The Supreme Court of Canada has said that the government has a duty to consult and where appropriate, accommodate. The NDP does not seem to like the part that says “where appropriate”.

The assertion that the CYFN was not consulted on these four issues is demonstrably false. The council received close to $100,000 as reimbursement for the costs associated with the consultation. The grand chief of the CYFN in her testimony before the Senate said, “Although we have been consulted several times...we...have been accommodated”. There absolutely has been consultation.

The Supreme Court has made it clear that there is a duty to consult and where appropriate, where necessary, accommodate. The member is a lawyer. The importance of those words cannot be understated.

Would he not agree that there is a duty to consult, but where appropriate, accommodate? It is not an absolute duty to accommodate.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, that is a reasonable question. That question has been brought to the Supreme Court and other court levels on many occasions. It is certainly an evolving process, but the evolving process is pointing in the direction that we need to be much more forceful and forthcoming in our consultation in order to determine the degree of accommodation that must be had.

I would like to point out that the Council of Yukon First Nations was very clear in its testimony at the Senate. When it came to consultation, Ruth Massie, Chief of the Council of Yukon First Nations, said that Bill S-6 proposed amendments that were not discussed by the Council of Yukon First Nations. It might have been consulted on some aspects, but it was clearly not consulted on others. Therefore, it is pretty hard to determine the level of accommodation if the consultation never happened in the first place.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague for his speech.

What does he think of the way such bills are being introduced? Common sense would suggest that there should be a consensus among the parties before a bill is introduced in Parliament. Had there been discussions, I am sure that there would have been an even greater chance of unanimity among all of the parties in the House.

Does he think that would be the right way to do things given that the Conservatives did the opposite in this particular case? There is no consensus on the bill they introduced, not even within the community it will affect.

Does my colleague think it would be better to turn things around and try to achieve consensus before introducing bills?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I thank my colleague for his question.

This bill has triggered a debate that should have been held in Yukon long before it reached the House. The government should have taken the time to hold consultations. Unfortunately, this is not the first time the government has chosen this approach. The government has invoked closure 84 times to limit the time we have to debate bills in the House. That is what it is doing on the ground too: limiting consultation with the first nations and people.

This government has made it very hard to achieve consensus or gain the support of community groups and organizations. Social acceptance is just not in the picture. That is a big problem.

We cannot continue to have a government that disregards its duty to help people and protect our rights. This government is very ideological and does whatever it wants. Unfortunately, that means that, sooner or later, many of these laws will be challenged in the courts and overturned. Then we will have to start all over again. What a waste.

I would sure like to know why the government wants to hand so much money over to lawyers.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Mr. Speaker, I believe I heard the member say that there was no support for this bill. I would like to read some quotes from the Senate Standing Committee on Energy, the Environment and Natural Resources by a few witnesses who appeared.

Samson Hartland, the executive director of the Yukon Chamber of Mines, indicates the organization is supportive of the bill.

Darrell Pasloski, the premier of Yukon, stated:

In conclusion, Mr. Chair, I believe that the changes to this legislation that Canada has proposed will ensure that Yukon continues to be a progressive and responsible place to invest and to do business, and even a better place to live, raise a family and make a living.

Cathy Towtongie, president of the Nunavut Tunngavik Inc., NTI, has no objections to the modest changes.

Why does the member discount those witnesses at committee and only cites the ones who fit the very narrow view of the bill by the NDP?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, first, I do not think that the bill has no support. It is clear that if the government brought it forward, at the least the government must support this bill, so I will give him that.

If there was a misunderstanding as to that, either I misspoke or he misheard. Either way, the limited support that this bill has will certainly please those it was drafted for. However, regrettably, the first nations have not been properly consulted, as is clear in the testimony. This House has a duty, an obligation to address those concerns, and in this bill, that duty has simply not been reflected.

The member may have a point that some people have been sufficiently addressed and may actually benefit from this bill, and more power to them. Unfortunately, the Supreme Court has made the legal obligations clear and has stressed them on so many occasions on so many challenges that were brought to its attention. I do not understand why the government has not taken the time to reflect on those decisions of the Supreme Court and wonder if this bill is not going to go down that same path and go down in flames.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, in his speech the member was talking about the idea of consultation. At the committee stage we get a sense of the lack of consultation, but we have also heard about the lack of consultation directly, in particular from up north.

We want to be able to reach out to our first nations, our aboriginal peoples, and we should be developing legislation that at least in part takes into consideration many of the leaders of the north. This appears to have not been the case. There does not seem to be a consensus.

The member has pointed out that some factions may be somewhat supportive, but the overwhelming feeling seems to be that the government has not gotten it right. As a result, we should be looking at not supporting the bill.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I believe the member brings a fair point to this place.

If this House is going to take its responsibilities seriously, I would encourage all members to start reading the rulings of the Supreme Court that have, over time, become ever more forceful as to what the duty to consult and to accommodate looks like.

I believe the Supreme Court is showing a degree of frustration with this place because we simply are not taking that responsibility seriously. I believe the first nations are living through that frustration. We can see it in their testimony and we can see it in the disagreements that they have with the legislation brought to this place.

We need to take this duty to consult much more seriously. Unfortunately, an ideological government is badly placed to be able to take that role seriously. I think first nations would be much better off with a change in government, and I am looking forward to 2015.

[The Acting Speaker, Conservative, Bruce Stanton]

Before I recognize the hon. member for Drummond to resume debate, I must inform him that I will have to interrupt him at approximately 2 p.m., when statements by members will begin. As usual, I will indicate when he has one minute left before members' statements are to begin.

Resuming debate, the hon. member for Drummond.