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

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

Mr. Speaker, I listened to the member's speech, much of which was on Bill C-15, which the House has already passed.

I would like to talk about consultation. I have corrected the record several times, but there have been consultation meetings on the specific issues with which the CYFN has taken issue. From April 2013 until June 2014, over a year, a number of meetings took place. Those first nations requested and received over $98,000 from the government to compensate them specifically for consultation. Clearly, it demonstrates that consultation took place.

The court has also said that the government has a duty to consult and, where appropriate, accommodate. The NDP does not ever reference the “where appropriate” part, and that is my question for the hon. member. Is he suggesting that after consultation has occurred, which it clearly has in this case, and there is no agreement, that first nations have a veto over any development that takes place in this country and over any legislation that takes place in this country, if there is no agreement? If he believes that, he should state it very clearly.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, the problem is that the parliamentary secretary gets up and says “we have consulted” and “look, we have had all of these meetings”. The Conservatives do that every time they go to the Supreme Court or to the appeal court. They do the same thing. They say they have talked to them.

What happens when we dig into it is that we realize that the government has not consulted. It may have had a few drive-by meetings where it presented some of the things that it plans to do to a group of people. It could be a group of hunters and fishers, a group of environmentalists, or a group of school teachers or health care workers, and the government says it has consulted.

What often happens is that the government talks at people and it does not listen to them. It does not take into consideration the opinions and the interests of the people who are participating in that process. It has been found by the courts on numerous occasions—and not just with the Conservative government, but the Liberals adjacent—that the responsibility to consult is much greater than being able to show that there was an appointment one day.

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

Mr. Speaker, I really appreciated the presentation by the hon. member for Dartmouth—Cole Harbour. It is always interesting to hear him speak about the issues that have been brought up in today's debate.

I heard the parliamentary secretary talk about consultations again. Must we remind him that in addition to the constitutional obligation to consult first nations, there is also an obligation to accommodate them with respect to the concerns they have raised during those consultations? The Conservatives are often content simply to hold meetings, but it does not work that way.

In the 2004 Haida Nation case, the Supreme Court said that the duty to consult can go as far as full consent of the nation on very serious issues. The Supreme Court did not go into detail about what constitutes serious issues, but in my opinion, the environment is a serious issue to first nations.

Having read the Supreme Court ruling in the Tsilhqot’in Nation case, I believe that at least nine paragraphs are about consent and at least 11 paragraphs are about control of first nations' traditional territories. We need to take another look at those issues.

Why does my colleague think that the government has not taken an approach that includes partnering, co-operating and collaborating with first nations? Every time it has the opportunity, it fails to meet its obligations.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I appreciate very much the question from my colleague from Abitibi—Baie-James—Nunavik—Eeyouand his leadership on this file, the wisdom he brings to bear as he represents his constituency and brings forward the years of wisdom and experience he has gained from first nations leadership in this country and internationally. I appreciate what he does and the counsel he provides.

I want to indicate to him that I do not understand why the government fails to accept its responsibility in dealing with first nations communities in this country. Conservatives indicate they are trying to make things work better for the companies that are extracting our natural resources, but in talking with the people who lead those corporations, we learn they would rather see a respectful, dependable, responsible process than the kind of confrontation that follows the kinds of approaches the government takes at these negotiations.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, the question I will ask will be very simple.

On September 25, Grand Chief Ruth Massie appeared before the Senate committee on aboriginal peoples and clearly stated that they had been consulted multiple times.

Will the hon. member answer a simple yes-or-no question? Is he saying that this person was providing false information to a committee? Is he stating that she is misleading the committee and that she was not consulted? It is either a yes or a no.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, the member opposite brings out a quote and reports that somebody said something somewhere. That is all good. I have also read testimony in which that same person said something different. All I can do is report here what I have read and what I understand to be the position of an individual, and that is what I present to this House.

If the government has any other information it wants to table, if it wants to call witnesses back, or if it wants to stand the bill and have a special committee look at it again, especially in light of the Supreme Court decision as it related to the umbrella agreement and the Peel land development decision, I think that will probably have an impact on this particular piece of legislation, but maybe that is what we need to do in order to clarify and deal properly with a piece of legislation that inevitably, once again, will be challenged by the people who are affected by it.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, it is not just about consultation. Yes, there has been some consultation, but in other areas there has not been.

The whole thing is about the honour of the crown and respecting treaties and respecting agreements that are currently in place. Maybe my colleague could just explain how much the honour of the crown is at risk here, and the fact that we have heard from mining companies that have indicated that the government needs to ensure that they work together to get it right.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, the point is whether the people who participated in the process feel that they have been consulted and whether the process meets the definition clearly laid out by the Supreme Court on the responsibilities of the crown. It has been done. The responsibilities have been laid out.

However, I want to ask the parliamentary secretary a quick question. On September 18, the member for Yukon said that he agreed with the idea of having public meetings and public consultation on this matter. Why is it the government did not fulfill his request for having public consultation?

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I am pleased to rise to speak on this bill. I met with the group of Yukon representatives yesterday, who raised a lot of concern about the fact that the government put in amendments that they had not agreed to. Not only did they not agree to them, but there was no discussion about them.

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

False, false.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

The member may be saying that is false, Mr. Speaker, but this is exactly what has occurred.

Let me first talk a bit about the bill. I am going to inform the House that New Democrats are opposed to the bill because there has been a flawed process. I am assuming that if my colleague wants to speak, he will have his turn later or can ask me a question.

Basically, the bill was developed behind closed doors. It actually originated out of the Senate, but it should have been a government bill. That is the lack of respect we see from the government when it comes to treaty obligations and constitutional rights.

There has been a lack of public input because of this. I can say that my colleague from the Northwest Territories actually held a meeting on this issue in Yukon, and there was very little standing room at this meeting. That is how important this issue is to the people in Yukon.

I should provide a bit of background on the bill itself, because it has been a little while since we have talked about it and some people may not be familiar with it. Bill S-6 is an act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act. The short title is the Yukon and Nunavut regulatory improvement act. It was introduced in the Senate on June 3, 2014.

The objective of Bill S-6 is to change the regulatory regime in Yukon and Nunavut. The bill is composed of two parts. Part 1 proposes a series of amendments to the Yukon Environmental and Socio-economic Assessment Act and Part 2 proposes amendments to the Nunavut Waters and Nunavut Surface Rights Tribunal Act.

The problem that needs to be emphasized is that the bill unilaterally rewrites Yukon's environmental and socio-economic evaluation system. The system is actually a product of the Umbrella Final Agreement, which settled most of the first nations land claims in the territory. The Yukon Environmental and Socio-economic Assessment Act, the short form of which is YESAA, is seen by most residents of the territory as a made-in-the-Yukon solution to the unique environmental and social circumstances of the territory.

The changes proposed in Bill S-6 are seen as being imposed from the outside to satisfy southern resource development companies. Again we can see that the issue is that the government is listening to industry as opposed to doing it from the ground up, which means starting with the people who actually live and work on these lands.

New Democrats are opposed to this bill, of course, because it was developed without adequate consultation with Yukon first nations and residents of the Yukon and is not supported by the majority of them. Although Part 2's amendments to the Nunavut legislation are largely housekeeping, the Nunavut Water Board did raise some concerns with this part as well.

It is extremely important for us to recognize that Bill S-6 would actually dismantle the environmental and socio-economic assessment process developed in Yukon by Yukoners for Yukon. We can see why people are actually up in arms about what the government is trying to push through.

There has been incomplete consultation, as I have indicated, with Yukon first nations before the amendments were made, but there must be consultations before such amendments are actually proposed. As New Democrats have indicated over and over again, the fact of the matter is that the government has put in amendments that nobody has actually talked about, and it is not the first time that we have seen the government do that. It is grabbing them out of thin air.

The Conservative government, with the full assistance of the Conservative MP and the senator from Yukon, is actually forcing a pro-southern resource company agenda down the throats of Yukoners, so we can see why people are really up in arms about this situation.

As I mentioned, my colleague, the member for Northwest Territories, held hearings on this issue. However, the fact of the matter is that there are four changes that really upset Yukoners.

This is what my colleague said:

One of them is providing the Minister of Aboriginal Affairs and Northern Development the authority to provide binding policy direction to the Yukon Environmental and Socio-economic Assessment Board. This is something that was established in the NWT and there were real concerns with it there. The Yukon, which has been dealing with a different system for the past 10 years, is looking at anything like this as an abrogation of its rights and hard-fought authority over the lands and resources.

However, we have seen this over and over again with the current Conservative government when it tries to give rights to a federal minister to unilaterally make decisions. I think this is of great concern to these people.

On the second change, I will again quote from the speech of my colleague, the member for Northwest Territories:

The second change is the introduction of legislative time limits for assessments.

The third change is allowing the Minister of Aboriginal Affairs and Northern Development to delegate any or all responsibilities to the Yukon government. That is an issue of huge concern to first nations, and Yukoners as well. Yukon has worked out an arrangement between first nations and public government that is critical to the future of the Yukon territory. I do not think anyone would deny that. That relationship is one that the provinces are having more and more trouble with every day. The failure to deal on a nation-to-nation basis at the provincial level is causing all kinds of grief in all kinds of projects right across this country. Therefore, there is concern about how the delegation takes place.

Again, I am quoting from the speech of my colleague from the Northwest Territories when this issue first came before the House:

Then there is the question of creating broad exemptions from YESAA for renewals and amendments of permits and authorizations. People look at that and ask what is going on and wonder how they we make sure it is correct.

Additionally, these amendments favour the Yukon government over Yukon first nations,

—members can see why there are challenges there right now—

the other partner in the YESAA process. The Council of Yukon First Nations has threatened legal action should the bill become law.

As my colleagues have mentioned throughout the debate, the Conservative government is putting forth legislation after legislation that ends up in the courts, and guess what? They lose over and over again. I think when it comes to first nations, the Conservatives have lost something like 200 cases, so we can see that it is not in the best interest of Canadians to table legislation that people are so opposed to.

There is a quick fix here. We can listen to what the changes are, make those changes, and the problem would be solved. It does not cost us a lot of money to do that. However, going through the courts is a different story.

As I mentioned, my colleague held a meeting on this in the Yukon. Talking about the environmental assessment process and having discussions such as this do not normally tempt a lot of people, because a lot of people sometimes do not understand it, but Yukoners do get it. They get it so much that they actually packed that room. Therefore, I think that it is important for the government to listen to the debates that we are having here today, to listen to the comments that were made, to go back and listen to the testimony that was presented, and say, “Hey, maybe we should take a step back here. We can get it right.”

The Conservatives can get it right. All they need is the will to do it.

It is important for me to read some of the testimony that was given before the Senate committee. Grand Chief Ruth Massie of the Council of Yukon First Nations was glad to be there because she wanted to make sure that the council's concerns were heard, in the hope that the government was listening in good faith. She talked about the Council for Yukon Indians that represented Yukon first nations in the land claim negotiations and signed the Umbrella Final Agreement, the UFA, in 1993. The UFA directed the CYFN, Canada, and Yukon to develop legislation to implement the objectives and principles set out in the development assessment found in chapter 12. This is the legislation in the YESAA. They are prepared to do that, but the only thing is that the government has thrown a wrench in there.

I quote from Ruth Massie:

The CYFN has a membership of nine self-governing Yukon First Nations and we work in collaboration with the other Yukon First Nations, including the three unsigned First Nations, with respect to specific projects and initiatives.

This is an organization that has already built a foundation to be able to work together and has been able to move forward on working with mining organizations. It is willing to do that, but it needs to make sure that at the end of the day, mother earth is going to be protected.

She went on to say:

In particular, the CYFN and Yukon First Nations have worked cooperatively to deal with matters relating to the YESAA over the past fifteen years, including its development, implementation and review. The UFA directed the CYFN, Canada and Yukon to complete a comprehensive review of the YESAA in 2008. This is known as the “five-year” review since it was directed to take place five years after the federal enactment of the YESAA. Despite the claims of the federal officials, this review has not yet been completed.

Hold on here. The government put forward this bill, yet there was supposed to be a review and it has not been done yet. There is a problem here.

Grand Chief Massie continued:

For several years during the five-year review the federal officials maintained that no legislative changes would be made to the YESAA in order to implement any recommendations of the five-year review. Canada now proposes that Bill S-6 would amend the YESAA pursuant to its Action Plan to Improve Northern Regulatory Regimes. It is our position that certain amendments to the YESAA proposed by Bill S-6 undermine the spirit and purpose of the YESAA that implements treaty rights of Yukon First Nations and their citizens. These proposed amendments fundamentally alter the operation of the YESAA process. In some cases, these proposed amendments relate to matters that were never discussed during the five-year review or, in other cases, contradict agreements reached by the CYFN, Canada and Yukon during that review.

The government is actually contradicting agreements. We know that is true because we have seen it over and over again.

She went on to say:

If the amendments proposed by Bill S-6 are proclaimed, the Crown will have breached its duty to consult and accommodate owed to Yukon First Nations and its constitutional duty to uphold the honour of the Crown.

In our view, these amendments would infringe rights under our land claim agreements, including the right for independent assessment of certain projects to be carried out in accordance with Chapter 12 of the final agreement. These amendments would also serve to undermine the integrity and effectiveness of YESAA.

Imagine trying to put some legislation in place that undermines the integrity and effectiveness of the act itself. This means that the amendments proposed by Bill S-6 must be rejected or revised. That is why we on this side of the House are standing today to reject this legislation and asking that there be a revision.

There is much more documentation here that I do not have time to speak to.

However, I think it is important to reiterate the fact that representatives came to Ottawa yesterday to raise the issue, to ask that there be some revisions to a bill that will impact their lands and their ability to move forward in certain areas, and on the protection of their environment. Yet we have a minister who has basically shut them down.

I will quote Eric Fairclough, the chief of Little Salmon Carmacks First Nation, from a news release from the CBC, dated yesterday. He said:

The minister shut us down by telling us we were not real governments, and therefore he does not need to make us active participants in changing legislation that arises from our treaties.

If the government side of the House is trying to tell me that that is not what the government said, then there is a problem. However, I cannot see anyone saying that the minister told them they were not a real government. They would not just grab that out of the air. That is a serious allegation.

He went on to say that it “...flies in the face of recent court decisions that have affirmed the duty to consult First Nations.”

Again, it is not just this chief who has actually made the comment. I could go on with respect to another northern aboriginal group that governs a New Brunswick-size chunk of the Northwest Territories, who has already asked the Territory's supreme court for an injunction against a similar federal law to the one we are speaking about today. They indicate that it violates their hard-won treaty. That is the Tlicho. They say:

....the law, to take effect next April, would dilute local decision-making by replacing environmental regulators created by land-claim settlements with a single board controlled from Ottawa.

Critics have said the superboard was the price the—Conservatives—exacted from the territorial government in exchange for rules transferring resource royalties to the territory, which were contained in the same bill.

It is not just in Yukon. It is not just in Ontario. It is not just in New Brunswick. We are seeing this in every province and territory where the government is tabling legislation, pushing it through despite concerns about it, with the result that we find ourselves yet again before the courts.

It is imperative for us to indicate that for legislation to work properly and to foster good relationships, and not just good relationship but great working relationships with our first nation, Inuit, and Métis people, we need to make sure that we have that proper dialogue. We need to make sure that we actually listen to changes that they know will impact them negatively. We need to make those changes before we pass the legislation and end up in court.

Another important thing is that we know that our leader would approach resource development in the north in a respectful and consultative manner, unlike the Conservative government. We need to recognize that that nation-to-nation dialogue is extremely important. We need to ensure that any steps taken in northern development are done with the full participation of northern communities.

It is also important to note a few more things. This is from Grand Chief Ruth Massie and Chief Eric Fairclough. The first nations have four concerns: policy direction to the board, delegation of federal powers to Yukon government, exemptions for renewal and amendments, and timelines for YESSA assessments.

I will close by saying that we must emphasize the fact that the government needs to recognize the necessity of making these changes to the bill. I know that the leader of the Yukon NDP has been working very closely with first nations and supports the position taken by them in calling for these amendments to be made to the bill.

With that, I will close and wait for further questions.

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

Mr. Speaker, I want to deal specifically with the issue of policy direction that the member raised in her speech. There are four examples of policy direction provided to the Mackenzie Valley Land and Water Board, which she referenced. In each case, policy direction was used to clearly communicate expectations based on interim measures agreements with first nations.

I asked this of the member for Timmins—James Bay, who refused to answer, so I will ask this member. On which of the following does she think the minister erred when he issued policy direction: when he required that notification be provided to both the Manitoba and Saskatchewan Denesuline regarding licences and permits in a given region; when he provided instruction to the board regarding its obligation under the Deh Cho Interim Measures Agreement respecting lands withdrawn from disposal; or when he ensured that the board carried out its functions and responsibilities in co-operation with the Akaitcho Dene First Nations and their pre-screening board?

The minister has issued policy directions solely to protect the rights and interests of first nations. Which of those directions would the NDP not have given? Why is the minister wrong to be issuing policy directions that protect the interests of first nations?

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, as the member knows, in any legislation there are some good parts, just as there are some good parts in the budget. However, that does not mean that we have to swallow the bad parts with it.

In looking at this I must reiterate the fact that the majority of the first nations in Yukon have indicated that they are not supportive of this and feel that some changes need to be made to it. They are not against the whole bill, but only against some of the changes the government has made. The government is not listening to the changes being requested.

Again, one of the changes falls under the delegation of federal powers, on which the CYFN has expressedd the following view:

The CYFN opposes any amendment that would allow the AANDC Minister to delegate any or all of his or her powers, duties and functions under the YESAA to the territorial Minister. The CYFN has several concerns relating to this proposed amendment. There is no requirement for the AANDC Minister to obtain the consent of Yukon First Nations before delegating any powers, duties or functions. The AANDC Minister only has to provide notice to the Yukon First Nations.

That is not me saying so, but Grand Chief Ruth Massie of the Council of Yukon First Nations. As I mentioned before, that organization represents a variety of first nations.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I appreciate the comments made by my colleague from northern Ontario. However, one of the things I noticed that the government has done over the past few years, particularly since the 2012 budget, is to attack environmental legislation and environmental assessments, starting in 2012, when the budget implementation act eliminated the Environmental Assessment Act and rebuilt it in such a manner that it was a sham. As a result, there are portions of that bill that have not yet been enacted. There are regulations that were to come later that have not yet been enacted some two years later.

When the government did that, it said that it was just to avoid duplication because the provinces and territories would be doing their own assessments and it did not want to duplicate those with federal assessments. Of course, we know that the end result is that federal issues do not get assessed at all, because the provinces do not have the right. Now we see the government, through its own actions, taking away or diminishing the right of the territories. It is not allowing the territories themselves to amend this legislation. Instead, the government is taking it away from them and reducing the environmental assessments in the territories.

I think it is appalling that this is happening. Would the member like to comment on that?

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, that is exactly why we had that visit yesterday with respect to those concerns.

Here is an article by Kirk Cameron of CBC News about the fact there was a meeting with over a hundred people, who packed a small room at the Kwanlin Dün Cultural Centre. It states:

In the crowd were people from around Yukon, about one half of First Nation ancestry and the rest equally concerned Yukoners. Most, if not all, were of the view that the amendments, known as Bill S-6, violate the fundamental relationship secured between First Nations, Yukoners and Canadians through land claims agreements, modern treaties that have been in place (at least the first four) since 1993.

It goes on to say:

Most of the crowd saw the amendments for what they are—an affront not just to the aboriginal people of Yukon who spent 20 years in treaty negotiations, but to all Yukoners.