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 Environmental and Socio-Economic Assessment Act

[Anne Minh-Thu Quach, NDP, Salaberry—Suroît, QC]

Madam Speaker, I find it very disappointing that the Conservatives are opposed to Bill C-17, which would allow indigenous communities in Yukon to regain their autonomy and decision-making authority.

When the Conservatives introduced Bill S-6, it was challenged. In fact, it is presently before the courts. The indigenous peoples of Yukon decided, however, to put this challenge on hold while waiting to see whether Bill C-17 would be passed or supported in the House. In fact, they support this bill despite the fact that work remains to be done to ensure that the rights of indigenous peoples are upheld.

It is rather difficult to understand why the Conservatives are opposing this bill when it is what the indigenous peoples of Yukon want. We constantly hear in the House that relations between indigenous and non-indigenous peoples must improve and that there must be a nation-to-nation relationship. The Conservatives oppose this.

We must respect the indigenous peoples. I find it hard to see this respect when the Conservatives are opposing Bill C-17.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, it is my pleasure to rise today to talk about Bill C-17, an act to amend the Yukon Environmental and Socio-economic Assessment Act and to make a consequential amendment to another Act. To be honest, this bill is regressive. It reverses several positive steps taken by the former Conservative government in Bill S-6 in 2015. It is a poorly conceived piece of legislation that, if passed, will gain votes in the southern part of this country at the expense of northern Canada.

on October 3, the Standing Committee on Indigenous and Northern Affairs heard testimony by Mr. Brad Thrall, the president of Alexco Resource Corp. He summed up the problem up best, in stating:

...I'm urging deferral of Bill C-17's passage until all affected and interested parties can deliberate, and mutually determine language to preserve the reassessment and timeline provisions currently within the Yukon Environmental and Socio-economic Assessment Act. Repeal of the reassessment and timeline provisions, as anticipated in Bill C-17, without replacement language ready to go, will perpetuate economic uncertainty, and will negatively impact the competitiveness of Yukon, and will diminish economic and social opportunities for all Yukoners.

Why would we want to pass legislation that would diminish economic and social opportunities, especially in the north? The population of Yukon, according to the last census in 2016, was just under 36,000 people. It is a small jurisdiction. Therefore, we can understand how the benefits and opportunities of one operation can have tremendous benefits for first nations and all Yukon residents in terms of tax dollars, health care, education, employment, and benefit agreements.

The mining industry contributes 20% of Yukon's GDP and Bill C-17 would immediately increase the regulatory burden on project proponents. It would slow down the review process by increasing the number of projects that need to be reviewed and remove the timeline for approval. Mining representatives testified that over the past eight years, the time period required to deem project proposals adequate was increased more than fivefold. Removing the timelines put in by the former Conservative government would damage proponent and industry confidence in the regulatory regime and cause companies to take their investments elsewhere. It is already happening in this country.

The Prospectors & Developers Association told us that it has definitely seen a decline in investment in Canada in the past two years. If members do not believe me, they only need look at what Shell did with the Carmon Creek project in Alberta, an investment of roughly $2 billion. Shell sold its assets in Carmon Creek while going to Europe, citing a more stable investment regime there compared to Canada. This was a major opportunity lost not only for the people of Alberta but the people of Canada and northern Alberta.

Mr. Thrall went on to testify at committee on October 3 as follows:

The current legislation allows proponents of certain projects to apply to the decision body, usually Yukon or first nation governments, under section 49.1, to allow a project to proceed without the need for reassessment. This allows previously assessed projects to proceed to the authorization process without duplication.

As we all know, the reality of mining is that during the process, new ore bodies or extensions to them may be identified. These discoveries may require slight modifications to mine operating plans under the current legislation, but the resulting modifications would generally not require a complete project-wide reassessment.

However, if Bill C-17 is passed, they would, even though there is no significant environmental or socioeconomic impact and no change in the production stream.

Mr. Thrall went on, continuing on October 3:

On the environmental side of our business, we were required to go back through an entire environmental assessment to maintain a water licence to extend the operating period for various water treatment facilities. Ironically, these same facilities were mitigating historic environmental liability, but this simple extension required 134 days of YESAB's time to assess the entire project yet again. Please understand that we firmly support a rigorous environmental assessment process for the Yukon, for new projects and when fundamental changes are made to existing projects. However, small changes to a mine plan or to environmental facilities should not require a “back to square one” assessment. If set back to the previous legislation, uncertainty will prevail, and investment, jobs, benefits, and opportunities for residents and communities will be compromised.

This is just another example of the Liberals making promises without thinking of consequences. The Liberals could have worked to find a solution, addressing everyone's concerns, rather than rushing forward and choosing to handicap Yukon's development for years to come, possibly even decades.

Mr. Jonas Smith, the project manager of Yukon Producers Group, gave compelling testimony to our indigenous affairs committee on October 3 of this year. His focus was on the matters of reassessment. Mr. Smith explained the burden that will be placed on industry, municipalities, and all Yukoners by Bill C-17. He told us:

The absence of a reassessment provision not only negatively affects proponents, but places a strain on the financial and human resources of publicly funded assessors and governments as well.

Another very recent example from a Yukon mine ramping up to production revealed that in these last few months when Bill C-17 has been making its way through Parliament, the company was once again subjected to an expensive, time-consuming, and ultimately unnecessary reassessment. In this case YESAB ultimately determined that reassessment and any further mitigation beyond the original assessment were not required. Yet despite this relatively favourable outcome, the process that led to it still consumed considerable resources from the company and the YESAB assessment office.

He means there were more delays.

It resulted in a missed season of work for the company [up north], where those financial and human resources could have been put to far better use employing citizens of the affected first nation and the community where it operates.

As I mentioned previously, since section 49.1 was enacted in 2015, over 100 projects have applied for exemption from reassessment. These were not only mining proponents, but municipalities as well. The City of Whitehorse, a major employer in our territory's capital, received this determination under section 49.1 for one of its permanent renewals:

“The project has been assessed once by YESAB in 2013. Since that time, the only changes in relation to the project were minor and regulatory in nature. There have been no significant changes to the project and therefore an assessment is not required.”...

It has been suggested, given the number of Yukon's economic sectors that have benefited from this reassessment provision, including industry and municipalities, that removing it before its replacement is in position is like ripping the roof off your house before you've decided what to replace it with and leaving [in this case] Yukoners out in [the cold and] the rain [and the snow] in the process.

Yukon's mining industry is modern, responsible, and innovative. It is a partner at the forefront of research and relationships that balance economic, social, cultural, and environmental values. It and its supporting service and supply companies are our territory's largest private sector employers. It contributes [as I mentioned] 20% to our GDP, a significant number in a small developing jurisdiction [of just under 36,000] otherwise dominated by the public sector.

The mineral industry is committed to working with all orders of government to provide opportunities that allow Yukoners to grow up in the territory, study and train in the territory, and pursue rewarding and well-paying private sector jobs and careers.

In closing, Mr. Smith added at that October 3 meeting:

In conclusion, Madam Chair and committee members, the Yukon Producers Group proposes that a committee of interested and affected government and industry parties be struck to work on replacement for the reassessment and timelines provisions and provide its recommendations for this replacement before Bill C-17 receives royal assent.

If replacement provisions are not in place beforehand, industry, municipalities, and all Yukoners will suffer.

Mr. Burke, the president of the Yukon Chamber of Mines, told us the following on October 3:

I would like to draw your attention to Minister Bennett's commitment in a letter to the Yukon Chamber of Mines dated July 6, 2017, “Once amendments to Bill C-17 have been made, the department is willing to work with Yukon first nations, the Government of Yukon, and stakeholders such as your organization to review these issues in order to identify possible short-term administrative or long-term legislative solutions.”

We appreciate this commitment. However, it is imperative that all orders of government work to undertake and implement solutions to these issues in advance of the passage of Bill C-17 to ensure continuity for all parties involved. The time to start this work is already in the past. Our concerns for the future of our business have been shared with all levels of government. We strongly urge you to begin this work and establish a timeline to report progress on this front.

Mr. Burke went on to tell us the following at that October 3 meeting:

The Yukon Chamber of Mines and our membership support the need for a robust environmental review process. We represent a science-based industry composed of geologists, engineers, tradespeople, and other professional and non-professional occupations, that has made and will continue to make significant investments in reducing the impact our business has on the environment. We do not want to save money at the expense of the environment. That is a myth.

Let me repeat that: “We do not want to save money at the expense of the environment. That is a myth.”

We are at the forefront of reconciliation as we invest in the backyards of Yukon first nations. We are at the forefront of reconciliation as we partner with Yukon first nations and provide economic opportunities where, in many cases, [as we know] few other opportunities exist [in the private sector in this country].

We support the passage of Bill C-17 in order to reconcile with Yukon first nations. We urge the federal government to immediately engage with first nations governments and the Yukon government to find short-term administrative or long-term legislative solutions to the impact of the removal of the reassessments and timelines contained in Bill C-17. The impact of Bill C-17, without addressing these concerns, will have a serious negative impact on investment and mining and exploration projects in the Yukon.

The Yukon Chamber of Mines urges that this work be undertaken to implement solutions to these issues in advance of the passage of Bill C-17 to ensure continuity for all parties involved.

The government has claimed that all stakeholders are 100% behind Bill C-17. That is simply not true. The support was not an unconditional rubber stamp. In fact, the support is contingent on what has been promised by the now Minister of Crown-Indigenous Relations and Northern Affairs. They emphatically told the committee:

The federal and territorial governments must work immediately with first nations governments to address the concerns and risks associated with the removal of the provisions addressing reassessment and timelines from the act.

I will reiterate the commitment the minister made to the Yukon Chamber of Mines when she was there in July. She wrote: “Once amendments to Bill C-17 have been made, the department is willing to work with Yukon first nations, the Government of Yukon, and stakeholders such as your organization to review these issues in order to identify possible short-term administrative or long-term legislative solutions.”

I hope the minister is listening to what stakeholders are telling her. We had three excellent people who came to our meeting on October 3 to address this situation. However, it was back in July that the minister addressed these concerns in Yukon. Now we are into November. The months have passed. All stakeholders, including Yukon first nations, are ready to collaborate to ensure the regulations have something in place to address these major concerns, but the minister's office remains silent, surprisingly. It is imperative that the minister follow through on her commitment that she made in July, and do so very quickly.

Bob McLeod, Premier of Northwest Territories, told the Arctic Circle assembly on October 13, a month ago, that people of the Arctic want what everyone else wants. They want good jobs, they want a good standard of living, they want to be healthy, they want to be educated, and most of all they want a sustainable future for themselves and for their families based on their own vision and their own priorities.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I am more excited about the member's speech than any others today, for several reasons. First, the member is absolutely right. I learned The Cremation of Sam McGee in grade 3. It is why I moved to Yukon and became chair of the Yukon Robert Service Society. I thank the member for bringing back those old memories.

The other reason I love the speech so much is the three main points the member made related to the bill. I am assured now that he will vote for the bill, because they were all in favour of Bill C-17. The first was that if it is different, will people invest there? People will certainly invest there because, as I mentioned to the media this morning, there is full employment there, unlike the rest of the country, because people are investing there. If it has a better assessment regime than anywhere else in the country, it will encourage people to invest. In fact, one of the most senior mining executives in Canada said that to me yesterday. At an assessment forum here yesterday, I was talking to someone yesterday about an assessment in another part of the country that in fact included four assessments, whereas this regime has only one assessment.

The other point the member brought up was by the grand chief of the Council of Yukon First Nation, who believes that it would change the distribution of power to a bilateral one not in the spirit of the treaty. All the comments you raised were criticisms of Bill S-6, the previous bill, the one we are changing. It is great that you have raised them, and since all of your points were in favour of this bill and against the previous one, I am delighted that you will be voting for it.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Mr. Speaker, I totally understand the member's reasoning. However, as the NDP member said, we are talking about Yukon, so I think that we should proceed, and that that is a good thing.

I would now like to talk about centralization. A carbon tax was imposed on the provinces without consulting them. As for health transfers, the government imposed conditions that the provinces opposed but were bullied into accepting. This brings me to the central theme of my speech: devolution.

In the 1980s, under Mulroney, and again under the Harper government, we began a positive process of political devolution that focused much more on Yukon than Nunavut or the Northwest Territories. This bill, Bill C-17, not in its entirety but certainly some of its clauses, works against the very devolution that I believe to be good for the people of Yukon. Why? Because it will eliminate the federal minister's ability to transfer ministerial powers, duties, and functions to a territorial government.

I was very proud to learn about this legislation in 1995. I thought it was fantastic that a Conservative government had introduced it. It is a truly Conservative measure because we support decentralization. As is the case with Britain's Conservatives who ceded power to Scotland, which now has a quasi autonomous parliament, western Conservatives support decentralization. We ceded very important powers to the Yukon government over time.

It actually started with a Liberal government. With the advent of responsible government in the Yukon in 1978, political parties were formed for the first time. Under Mulroney in the 1980s and 1990s, there were transfers of very important federal powers. In 1992, at the end of the Mulroney era, the first nations and the government entered into an agreement. Under the Martin government, Yukon was given all the powers that other provinces had, except over criminal prosecutions.

In Yukon, mining is the main industry. Therefore, it is very important for the people and their government to make their own decisions about environmental assessments and the projects they will accept.

For me, the problem with the Liberals' Bill C-17 is this desire to roll back the powers we delegated to the Yukon government to approve or deny proposed mining and resource development projects. This bill is a definite step backwards in terms of devolution.

This is what the member for Rosemont—La Petite-Patrie was just referring to when he said that one government takes one step forward and the next takes one step back. I think that if there is one thing that successive governments should not go back on, it is this type of important policy on territorial devolution. Yukon was one of the territories that benefited the most. In spite of its flaws, Bill S-6, which was passed in 2015, did a lot for devolution.

In short, it is a shame. That is pretty much all I wanted to say today. In closing, I would like to add that my colleague takes the prize for hardest-working MP. He is a very brave and courageous man, because taking the plane every week as he does must be gruelling.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I am delighted to be here today.

I am pleased to speak to Bill C-17 at third reading. I speak from the traditional territory of the Algonquin Anishinabe.

In 10 words or less, today is all about Bill C-17 removing four clauses illegally put into law. We are all legislators here, and we should be the first to unanimously agree to pass the bill for that reason. That is why, as the minister said, the Yukon legislature was unanimous in passing the bill, including the Yukon Party, which is the Conservatives. I should in theory be able to sit down now and we would vote unanimously to pass the bill, as the Yukon legislature did.

I would like to thank every member in the House today for their thoughtful debate and co-operation in going through report stage very quickly.

I would like to tell a story to give a sense of the feeling behind all of this. People at home can participate in this exercise too. Think about someone who retired and decided he wanted to get into business with a couple of partners or friends of his. They all got together, spent a couple of years working really hard to get a business set up, perhaps a resort in a wealthy country. He would sit and have piña coladas and enjoy himself. His kids were going to high class school. He mortgaged his house. Everything was on the line. It was pretty important to his family and their lives. Then one day when he went to work, he saw a sold sign. One or two of his other partners had sold his dream business, his life savings, and put it into a factory in a third world country with millions of people, in a dangerous slum, where he would have to try to get his kids into school. How would he feel under those circumstances? Obviously he would be very angry. He would feel betrayed. He would be apoplectic. Under those circumstances, what type of relationship would he have with those two partners? Would he ever do business with them again? He could never imagine that.

In the case we are talking about here, the three partners are the federal government, the Yukon government, and the first nations government. They cannot just walk away. From now onward, indeed forever, they have to work together on things for their people. Imagine the great rebuilding of trust that would have to be done with those partners because of this situation.

How did we get here? As the minister said, after 20 years, not just the two years in the scenario we set up, the modern treaty or UFA was signed. It is constitutionally protected, so even we in the House cannot change it. It prescribed that YESAA would be created for assessments in Yukon. That took 10 years and was approved in 2003.

Imagine, as in the case I just talked about, after negotiating for 30 years, all of a sudden one or two of the partners added four significant clauses without negotiation. This is what happened. The four clauses are probably illegal, if not technically, then in the spirit of the law or the honour of the crown. Anything done illegally, regardless of the content, whether good or bad, had to be undone and cancelled. That is basically the end of the story today.

Normally, for that reason, I refuse to talk about any of the content of those four items. Nevertheless, because I have four minutes left, there were some concerns raised that I might try to alleviate a bit. The minister and the opposition have already mentioned the reaching out that has been done. The process will start right away to deal with timelines and reassessments.

I thank the mining association and the mining companies, because in the years when the government was not really following the honour of the crown, individual mining companies made partners with first nations. The chamber of mines worked with the Council of Yukon First Nations and took a great leadership role, so kudos to the mining industry.

In the second reading debate on April 10, 2017, members commented about the removal of time limits. They said that the Liberals were taking out time limits, that we wanted to remove all time limits, that we put time limits on the review process, that we removed timelines, that time limits do matter, that we eliminated timelines, that we would repeal the time limits, that we would remove the time limits. One would think that people watching this and hearing all those comments would think there were no timelines, but timelines were put into the bill when it was established.

In 2003, the bill explained how timelines were created through the rules of the board. They were gazetted and have been in place ever since. My understanding is that they have not changed in all those years. Since the first project was approved in 2005, the timelines have been there and are still working. The opposition said in the second reading debate that it was important to leave decisions in the hands of Yukoners, and that is exactly what this bill would do, because those timelines are created by Yukoners. I am sure that the opposition would rather have people in their ridings setting deadlines for important things as opposed to the government setting them in Ottawa.

Those timelines compare favourably with those in other jurisdictions. Some of the projects take half the time of British Columbia assessments. The timelines have not been lengthened in recent years. There are two categories of projects. For a district office, the average is only 70 days, and for small projects they are considerably shorter. The timeline put in Bill S-6 is 270 days. That is far longer than those projects' timelines. On the executive committee, the other category, the very serious projects, of which there have been only seven, the fault was in the other direction. There was just not enough time put in. What has happened is that first nations have not been able to do the appropriate analysis, nor have the territorial or federal technicians in various departments.

What happens if there is an assessment without the appropriate input or analysis? Two things probably happen. First, for purposes of integrity, the project is rejected. The mining industry or developers would not want that. Second, a chance could be taken and it could be approved, but it could be challenged, especially by first nations, because there are requirements in YESAA for their input.

The final point I would like to make is on reassessments. I have 10 quotes, but I will not read them. There are two things I will say in the limited time I have. First, technically there are no reassessments. If something is exactly the same, section 40 of the act does not allow a reassessment. In fact, what has happened in reality is that when a project comes up, quite often, on the ground, the decision body will say that it is exactly the same, that it is just renewing a licence and it will not go ahead. A lot of the 100 projects the opposition member quite rightly brought up would not be reassessed under the present system, so there would not be 100.

The second thing that happened in that five-year review is that one of the policies changed and they have gone to temporal scoping, which is a good thing. That means that instead of scoping like they used to according to the licence and causing the reassessments that were of concern, they can scope a lot longer in the life of the project, resulting in far fewer reassessments.

For all of those reason and reassurances, I would like to go back to what I said at the beginning. We have to remove four improper clauses. I hope we can do that quickly, because it will bring back certainty for the mining industry, developers, and first nations and, hopefully, start to rebuild the partnership that is so important for any development in Yukon.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Mr. Speaker, today we begin third reading debate on Bill C-17, an act to amend the Yukon Environmental and Socio-economic Assessment Act, or YESAA.

I want to acknowledge that we are gathered on traditional Algonquin territory.

We know that a sustainably developed resource sector is essential to the economic success of Yukon. A prosperous resource sector will serve as an important foundation for Yukon's future economic and job growth.

Yukoners have also made it clear that unlocking this economic potential must be contingent on environmental sustainability and on impacted indigenous communities being engaged as equal partners. They understand that this is not only essential to support reconciliation, but a legal obligation as well.

This is even more significant in regions like the Yukon, which are subject to comprehensive land claim agreements and self-government agreements. The original 2003 YESAA stems from the umbrella final agreement between Canada, Yukon first nations, and the Government of Yukon, which required a five-year review of the YESAA. This was carried out by the previous government and resulted in a number of mutually agreed upon recommendations.

Bill S-6, the Yukon and Nunavut Regulatory Improvement Act, was introduced in the Senate in June 2014 and received royal assent in June 2015.

A large part of the bill implemented the consensus provisions based on the recommendations from the five-year review.

Unfortunately, despite spending years working with Yukon first nations on the comprehensive review, the previous government added four further controversial changes outside that process and pushed them through absent meaningful consultation. As members are now aware, these controversial changes included legislated time limits on the review process; exempting a project from reassessment when a authorization was renewed or amended, unless there had been a significant change to the project; the ability for the federal minister to provide binding policy direction to the Yukon environmental assessment board; and the ability to delegate the federal minister's powers, duties, or functions under the act to the territorial government.

This disregard for meaningful consultation reflected the previous government's unfortunate and misguided paternalistic approach regarding indigenous people in Canada. Rather than working in partnership with indigenous communities to find common ground and mutually beneficial solutions to issues, it forced indigenous peoples to resort to the courts to assert their rights. This not only led to unnecessary costs for all parties, but often caused unnecessary delay, legal uncertainty, and undermined reconciliation.

It also positioned the federal government to lose court case after court case.

In response to the passage of these four contentious provisions, three Yukon first nations launched a court challenge in the fall of 2015. The court petition claimed that the amendments were in violation of the Yukon umbrella final agreement and that there was inadequate consultation. Despite their court action, Yukon first nations entered into subsequent discussions with the governments of Yukon and Canada about how to resolve this situation outside of court. These discussions led to the signing of a memorandum of understanding in April 2016, which clearly outlines the steps required to resolve the first nations' concerns with Bill S-6.

As a direct result of that collaborative process, the Yukon first nations pursuing legal action have adjourned their hearing dates while this bill proceeds.

This bill would re-establish trust with Yukon first nations and restore legal certainty for responsible resource development. It would also remove a key impediment to increased investment, development, and jobs in Yukon.

The vast majority of Yukoners support this bill.

In fact, a unanimous motion supporting Bill C-17 was passed by the Yukon legislature last spring. In addition, the Council of Yukon First Nations, Yukon government, and the Yukon Chamber of Mines issued a joint letter last March, urging the passage of Bill C-17, without change, as soon as possible.

The letter also stated that they looked forward passing the bill so, “the Yukon economy can benefit from the certainty established by the final and self-government agreements in Yukon.” My office spoke with the Yukon Chamber of Mines earlier this week and it confirmed its support for passing the bill on an expedited basis, with the understanding that issues, including reassessments and reasonable timelines, would be dealt with through other policy mechanisms shortly thereafter.

First nations and the Governments of Canada and Yukon agree that issues, including reassessments of projects and reasonable time limits for assessments, 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 Conservative opposition told the committee that the bill should be set aside not just until the process moved forward, but until it was finalized.

The members claim that this is in response to concerns expressed by some industry representatives about delays in moving forward with the regulatory discussions I referenced above. Yukon first nations have been clear. Passing Bill C-17 is an important show of good faith and a first step in moving forward with these important discussions.

It is disingenuous of the Conservatives to cite delays they caused by filibustering this bill last spring as justification for further delaying moving the legislation forward and the subsequent needed regulatory discussions. By trying to further delay, or even derail the bill, the Conservatives risk driving this matter back into litigation and undermining the very certainty for industry for which they claim to be advocating.

Bill C-17 clearly demonstrates our intent to work closely with all partners, including Yukon first nations, the Yukon industry, and the Yukon government, to re-establish trust with Yukon first nations and restore legal certainty for responsible resource development.

I hope all members will support this bill.

[Jonas Smith]

One of the changes contained in Bill S-6 that was taken into consideration was cumulative impacts, so that is one of the amendments that is staying in the bill, even after Bill C-17 passes. Therefore, cumulative effects are being considered under our legislation now.

I just want to clarify one of my previous statements.

Again, we're not trying to further delay this bill. There is a process, which is beyond any of our understanding, regarding how bills make their way through the houses of Parliament, but can we not be having these discussions concurrently? Can we not strike this committee? Can we not be working on this replacement solution, whether it is regulatory, policy, or legislative, while this bill makes its way through Parliament?

[Jonas Smith]

This is based on our experience before and after Bill S-6's amendments.

[Mike Burke, President, Yukon Chamber of Mines]

Good morning, Madam Chair and members of the standing committee. Thank you for the invitation to appear before you today and provide clarity to the support of the Yukon Chamber of Mines for the passage of Bill C-17.

This is an important bill for all Yukoners, one that touches on reconciliation, environmental sustainability, and economic development. In February 2017, the Yukon Chamber of Mines provided support to Yukon first nations in seeking expeditious passage of Bill C-17 recognizing that first nation governments were not fully involved in the development of its predecessor legislation Bill S-6. It is unfortunate that we find ourselves here due to the fact that the process agreed to by all governments was not followed.

The Yukon Chamber of Mines recognizes the involvement of first nations in the development of legislation. Our support to Yukon first nations was also predicated on addressing industry concerns, namely reassessments and timelines, through a collaborative framework with Yukon first nations, the Yukon government and the Government of Canada, a fact that's been overlooked during debates in the House of Commons.

I refer you to the joint press release by the Council of Yukon First Nations, the Yukon government, and the Yukon Chamber of Mines, which contains the following quote from me, the president of the Yukon Chamber of Mines:

The mining industry is on the front lines of reconciliation, as exploration and development activities occur in the traditional territory of all Yukon First Nations. It is with this in mind that the resetting of the relationship between all orders of government brings the opportunity to address challenging issues around timelines & re-assessments through a collaborative framework moving forward.

It is without a doubt that the passage of Bill C-17 needs to occur in order to reconcile with Yukon first nations. The federal and territorial governments must work immediately with first nations governments to address the concerns and risks associated with the removal of the provisions addressing reassessment and timelines from the act.

I would like to draw your attention to Minister Bennett's commitment in a letter to the Yukon Chamber of Mines dated July 6, 2017, “Once amendments to Bill C-17 have been made, the department is willing to work with Yukon first nations, the Government of Yukon, and stakeholders such as your organization to review these issues in order to identify possible short-term administrative or long-term legislative solutions.”

We appreciate this commitment. However, it is imperative that all orders of government work to undertake and implement solutions to these issues in advance of the passage of Bill C-17 to ensure continuity for all parties involved. The time to start this work is already in the past. Our concerns for the future of our business have been shared with all levels of government. We strongly urge you to begin this work and establish a timeline to report progress on this front.

The future of the Yukon mining and exploration community is threatened by a process that is clearly flawed. However, proof has been given of an improved process with the experience to date using these amendments. The mining and exploration community includes first nations communities as we enter a new era in mining where first nations are valued partners in our business.

This partnership brings much needed economic wealth and opportunities to first nations in the Yukon where few opportunities sometimes exist.

I wish to reiterate some of the highlights from previous speakers.

Regarding section 49.1, non-significant modifications to a project, the nature of mining operations is that mine plans and ore bodies will change once they go into production. Very few operations ever know the ultimate number, size, and configuration of all ore bodies in a mine area prior to making a production decision. New ore bodies are often sought within existing mine areas. This process is termed brownfields exploration or within sight of the headframe. The same is true of exploration projects where plans change based on the last soil sample, the last rock sample, or last drill hole result. A completely new reassessment, including previously assessed impacts, should not occur where a mine may want to include a new ore body or an exploration project needs to drill some holes in a new discovery. Only the actual changes to a project need to be assessed.

Since Bill S-6, over 100 authorizations have been sought under the provision with over 60% approved, in other words, not requiring a reassessment of current activities. This section of the act is so widely used that a provision regarding the approval process was contained in an April 2016 memorandum of understanding between the federal, territorial, and Yukon first nations governments. In it a consent provision was provided to Yukon first nations.

The cost savings to proponents and governments is obvious. It is simply inefficient for any party to be reassessed on activities which have already been assessed or which result in a non-significant modification to a project. An example I have been personally involved in is the simple time extension to a project where a five-year expiration plan was approved, but due to the inability to raise capital to conduct expiration, only one year of the assessed plan was completed prior to the expiration date of that permit. An extension of four years to complete the plan was applied for under section 49.1 and was determined not significant and a complete reassessment of the plan was not required. That's common sense.

The current process for determining reassessments has resulted in a decreased pressure on the resources of first nations and YESAB, as well as other government departments that participate in assessments.

Moving on to timelines, under subsection 56(1), YESAB has the ability to elevate the level of review required for an assessment if it is unable to form a view as to whether the project, as proposed, should be recommended for approval. They can move it from designated office to executive committee to a panel review. There is no proposed timeline for this elevation decision, which can therefore result in unreasonable delays, significant costs, and potential legal action, which has already occurred in one case. In addition, no timelines previously existed for the time period that a project is deemed adequate. Mr. Thrall with Alexco provided excellent examples of the impact that can have on a project.

High-performing organizations have setting of targets, including timelines, as a key to superior performance. Proponents, Yukoners, governments, and YESAB itself, should accept no less than being a high-performing organization. Companies that invest in development or projects in the Yukon accept the risk of an approvals process and its timelines. However, that risk increases significantly without the application of specific timelines. Mining projects reaching the stage of undergoing an environmental assessment to go into production have invested millions of dollars, and the time value of money is very significant as they enter into the YESAB and permitting process. You cannot calculate the time value of money if you do not know the parameters for time.

The Yukon Chamber of Mines recognizes the increased pressure on the limited resources of Yukon first nations with the implemented timelines. Government support to increase capacity is essential for Yukon first nations to effectively participate within YESAB reviews in a timely manner.

The Yukon Chamber of Mines and our membership support the need for a robust environmental review process. We represent a science-based industry composed of geologists, engineers, tradespeople, and other professional and non-professional occupations, that has made and will continue to make significant investments in reducing the impact our business has on the environment. We do not want to save money at the expense of the environment. That is a myth.

We are at the forefront of reconciliation as we invest in the backyards of Yukon first nations. We are at the forefront of reconciliation as we partner with Yukon first nations and provide economic opportunities where, in many cases, few other opportunities exist.

We support the passage of Bill C-17 in order to reconcile with Yukon first nations. We urge the federal government to immediately engage with first nations governments and the Yukon government to find short-term administrative or long-term legislative solutions to the impact of the removal of the reassessments and timelines contained in Bill C-17. The impact of Bill C-17, without addressing these concerns, will have a serious negative impact on investment and mining and exploration projects in the Yukon.

The Yukon Chamber of Mines urges that this work be undertaken to implement solutions to these issues in advance of the passage of Bill C-17 to ensure continuity for all parties involved.

Thank you for the opportunity to speak to you today.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you.

The process of coming together with industry to work on an environmental assessment was outlined in Bill S-6. The environmental assessment is a large undertaking and is very costly. Has the government delivered on that commitment in the last two years and delivered capacity funding for a working group?

[Roger Brown, Manager of Environment and Natural Resources, Department of Lands and Resources, Champagne and Aishihik First Nations]

The board has independently developed its own rules and bylaws, including time limits for executive committee assessments and designated office assessments.

I think the problem with the provisions brought about by Bill S-6 was that it imposed a maximum timeline. In addition to that, if there were any extensions requested, those timelines required the approval of the federal minister, and for any subsequent extensions, cabinet approval. That's one problem in terms of the shift in the balance of power and taking away independence of the board. We support the independence of the board in the original intent of the agreement.

In addition, though, for complex projects that might be pushing those maximum timelines, Chief Smith definitely spoke to the adequacy of information, how that can eat up time at the beginning of the assessment and limit the amount of time that first nations can participate. We need to be careful in terms of balancing the assurances that first nations can have meaningful, well-informed responses to projects and not be fettered by legislated maximum timelines. Keeping it at the board level for the rules and bylaws allows a degree of flexibility and non-imposition of legislative timelines, which in our view will only lead to considerable conflict if they're pushed.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you, Madam Chair; and thank you to Chief Steve Smith for joining us this morning.

Going through the process from Bill S-6 to Bill C-17, it seems that the most contentious issue is the time limits on the review process. Even in Bill C-17, with time limits not being part of the legislation, the time limits still exist within the Yukon Environmental and Socio-economic Assessment Board.

I don't know why that's a problem in that, in Bill S-6, it was there just as a stopgap measure. Basically, all it said was, yes, we support timelines. Now Bill C-17 is taking that out, but time limits are still there. Am I correct in that analogy?

[Chief Steve Smith, Chief, Executive Council Office, Champagne and Aishihik First Nations]

Thank you, Madam Chair.

I have a really quick note on the Little Salmon/Carmacks First Nation. We've received word that there may have been some emergency issue that happened in Carmacks last night, so that may preclude the chief and his associates from joining the meeting this morning.

First of all, good morning and thank you, Madam Chair, and all committee members, for taking the time to welcome our presentation.

[Witness speaks in Southern Tutchone]

I just gave my traditional name, Kaaxnox. My name is Steve Smith, and I am the chief of the Champagne and Aishihik First Nations. I am a member of the Killer Whale Clan K'etlènmbet people, and I sleep at Takhini Chu, which is the traditional territory of Champagne and Aishihik First Nations.

I just wanted to open with the fact that my father Elijah Smith was chief of the Yukon Native Brotherhood in 1973 when he made the presentation, “Together Today for our Children Tomorrow”, to then prime minister Pierre Elliott Trudeau. It was in the spirit of righting some historic wrongs, but also putting in place a process for which Yukon first nations people would have an ongoing say in the development of the territory that we live in and have occupied since time immemorial.

In 1993 Champagne and Aishihik, along with other Yukon first nations, agreed with Yukon and Canada to conclude the umbrella final agreement. This agreement paved the way for 11 of the 14 Yukon first nations to conclude our individual modern treaties. They are modern treaties protected by section 35 of the Constitution, and they are vehicles for reconciliation between Yukon first nations, Canada, and its citizens.

In addition, we negotiated self-government agreements pursuant to chapter 24 of our final agreement, creating significant first nations jurisdiction, law-making authorities, and financial arrangements. The final agreements looked backwards to address historic grievances, and looked forward towards ever more co-operative and collaborative relationships between Yukon first nations, the Yukon, and the federal government. The final agreements create a new constitutional arrangement in the Yukon.

To reach our final agreements, we made a giant trade-off. In good faith, we abandoned our claims to aboriginal title to over 90% of our traditional territory, in exchange for a promise to secure a range of treaty rights and interests, including the assurance we would have a meaningful role in the management of settlement and non-settlement land, water, and other resources in our traditional territories.

That was the ultimate goal of the 1973 agreements document. Chapter 12, “Development Assessment”, is an essential part of that exchange. It defines the framework for a custom environmental assessment regime that will work in the Yukon. Chapter 12 set forth that the parties would develop the necessary legislation consistent with the objectives set out in that chapter, among other matters. These objectives provided that the development assessment regime:

1) recognizes and enhances, to the extent practicable, the traditional economy of Yukon Indian People and their special relationship with the wilderness Environment;

2) provides for guaranteed participation by Yukon Indian People and utilizes the knowledge and experience of Yukon Indian People...;

3) protects and promotes the well-being of Yukon Indian People and of their communities...;

Between 1997 and 2003, the Council of Yukon First Nations, Canada, and the Yukon government established a joint legislative drafting committee with a chief negotiator and legal and technical advisers for each party. This process resulted in the development of the Yukon Environmental and Socio-economic Assessment Act, and continued as a tripartite process through the development of the “accessible activities” regulations, which brought the regime into effect by December 2005.

Pursuant to chapter 12 of the umbrella final agreement, the parties undertook a comprehensive review of YESAA, known as the five-year review. That process took three and a half years. In that review, we managed to reach an agreement on the majority of the 76 recommendations. On two of the recommendations we agreed to disagree and three we consider outstanding matters. These outstanding matters relate to: one, first nations' role in the decision phase of project assessment; two, adequacy of funding for effective first nations participation; and three, future reviews of the YESAA regime.

In the process through to the conclusion of our final agreement to the development of the act and regulations and conducting the five-year review, we acted in good faith with our treaty partners in the spirit of ongoing reconciliation to move our relationship forward. Unfortunately, the Government of Canada acted unilaterally, imposing several changes to YESAA that have no support from any Yukon first nation. We did everything possible to defend our treaties and work in good faith with government. Regrettably, the federal government breached its constitutional duty to uphold the honour of the crown when it proceeded with the amendments to YESAA relating to the new matters that were not discussed or raised during the five-year review and were only added very late in the consultation process. These amendments were passed in June 2015. After considering our options and working with our first nations partners, we filed a court action in October 2015.

During the last federal election, the Liberal, New Democratic, and Green parties of Canada all made campaign promises to repeal the offending provisions brought about by Bill S-6. Upon discussions with the new federal government, we started moving forward on reversing these changes and calling upon the minister and her cabinet to live up to that promise.

In March 2016, our chiefs, the federal minister, and the Yukon premier all signed a memorandum of understanding to repeal those revisions. As you know, Bill C-17 is a reflection of that very commitment. It was this action that helped defuse some of the contention and allowed us to enter into an abeyance agreement on the promise that Canada move swiftly to repeal those provisions and get the parties back on track, bringing stability and certainty back to our territory, and to enable and promote sustainable development.

We are pleased to see that we are working with federal and territorial governments on a second memorandum of understanding to start dealing with some of the outstanding matters dating back to the five-year review.

We strongly believe this bill reflects a necessary correction for a past action that was unconstitutional and must be addressed. We are also pleased to see that the federal government is addressing the issue of our financial resources to implement our obligations under chapter 12 through our financial transfer agreement.

In closing, I would like to simply say the federal government has an obligation to enact YESAA, but the federal government does not own YESAA. YESAA is not legislation that Canada may simply alter as it wishes. The federal government cannot unilaterally modify YESAA for its own benefit or to suit its own preferences. Implementation must be done according to the spirit and intent of our treaties and must be done so in good faith and always maintain the honour of the crown.

I want to highlight the spirit and intent of our treaties. Many court cases in Canada have always spoken to the spirit and intent. One of the things that we hold dearly within our own final agreement is to ensure that we carry on the spirit and intent of these agreements. Going back to my first comment about my father, Chief Elijah Smith, the intent was not to hold back development. The intent was not to hold back further ability for Canadian citizens to reach their goals and dreams, but was to ensure that Yukon first nations had a rightful place in the development of the Yukon.

Gwänaschis. Thank you for the opportunity to speak to you today.

[Stephen Van Dine]

I would say that the litigation and the controversy associated with the litigation was certainly a variable in questioning the confidence in the environmental assessment system. That the environmental assessment system was somehow flawed and needed to be corrected was something that Yukoners didn't believe to be the case. The litigation spoke to that directly. Bill C-17 and the process that led to correcting Bill S-6 in these areas was a process that all the parties would agree was the way to go about undertaking change with respect to the environmental assessment legislation.

To your point, those four areas were creating doubt and questions, and required more action on behalf of government. Industry in the end realized there was actually more uncertainty with respect to how those powers were going to be exercised, compared to the existing process, which was working pretty well.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

You're actually adding more certainty to the project for the project managers and the mining companies themselves in dealing with an environmental assessment around this particular issue. Even if you look at Bill S-6 itself and those four particular components of Bill S-6, do we not find that, in the long run, instead of trying to accomplish what they were originally trying to accomplish—that is, more certainty around a project, around timelines, around ministerial determination, around being able to assign decision-making powers, etc.—you actually in the end created less certainty for the proponents because you ended up in litigation, you ended up in first nations and non-first-nations communities—settler communities—protesting and fighting these legislative procedures?