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.

[Wendy Randall]

That was one very specific issue with regard to the temporal scope of a certain type of project. My understanding is that in the suggested changes in Bill S-6, the scope of the change is not that narrow.

So yes, that's one example that would probably fit in with that change. As for other areas that would fit in with it, we don't know.

[Wendy Randall]

I guess the best way to answer that is that ultimately decision bodies under this proposal under Bill S-6 will be making a determination of whether a new assessment is required. So until they sort out what that means in practice, it's just impossible for me to comment on how operationally that would work.

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

We talked this morning about significant change quite a bit. Have there been instances where a designated office or the board itself has reviewed projects where it's simply a renewal, that sort of thing? I'm trying to get an idea of the concern there as well.

I know you don't want to get into the politics of it, but have there been cases where you grade...? Does YESAB have its own determination as to what level of review is required already? Would this Bill S-6 amendment take that out of your hands and make that decision for you? What do you do now when you're getting a simple renewal versus...? We heard about a massive expansion at a mine. Obviously, they're treated differently, but maybe you can walk us through that process.

[Wendy Randall]

It will require us to look at our rules again because these timelines are different from what is in our rules. These processes are different from what is in our rules. Part of that will be how we conduct these designated office assessments, if that's what we're speaking to—the ones that are averaging just over 50 days now and the proposed 270 days that's in Bill S-6. Then that will certainly provide participants in the assessment process at the designated office level a lot of room to discuss how they think those assessments should happen, the level of public participation and first nations participation, and the timelines around that.

We currently pride ourselves on meeting and beating timelines—the ones that we have—so this will undoubtedly add a level of pressure for us to extend timelines.

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

Now, you mentioned timelines. You said that you are currently conducting reviews in a shorter time period than is envisioned by the amendments in Bill S-6. Am I correct on that, for the most part?

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

Thank you, Mr. Chair.

I wanted to talk about the amendment in Bill S-6 that allows for board members' terms to be extended. Perhaps you could speak to cases in which that has been an issue before; or is this a forward-looking amendment that says that if a review is under way and a member's term is about to expire...?

Has it happened in the past, that this has affected reviews, and do you see this as a positive change?

[Ryan Leef, Conservative, Yukon, YT]

There's an additional change in Bill S-6 in respect to extension of time limits. There's an initial provision that sets out that there can only be time limit extensions for a maximum of two months, taking into account circumstances specific to a proposal for a project, and then a subsection that follows that allows a recommendation to be made to further extend those time limits for any period.

That, I presume, would have been put in to anticipate much larger-scale projects that might come forward for which the timelines in the bill right now would be impossible to meet.

[Ryan Leef, Conservative, Yukon, YT]

Would that speak to the one outstanding piece of the “significant change” definition? The timelines in Bill S-6 are referring to an assessment as not being required unless there is significant change to a proposal. If you're defining triggers in the regulations, would it start to define what might trigger “significant change”?

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

The premier was here this morning and I think the phrase he used was that the meat in the sandwich is the regulations. I know we're here to seize ourselves of the specifics of Bill S-6 itself, but an act is followed by regulation. I'm just wondering if there are any changes in this act that are leading us toward regulatory development and providing greater certainty and continuance of environmental and socio-economic integrity.

Are you able to speak to any of that “meat in the sandwich” conversation which the premier referred to this morning?

[Tim Smith]

Yes. In terms of suspending an assessment pending a response to an information request, there is little change from current practice. We currently generate statistics. For the committee's benefit, a summary of those statistics is available on YESAB's website. The statistics are divided into both assessment time and proponent time. Where the proponent is taking time to respond to an information request, of course that is not calculated as part of the assessment timeline or the timelines being proposed in Bill S-6.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Ms. Randall, for appearing here today and congratulations on your appointment to the board.

I'm going to ask you a question in particular reference to some of the changes that have moved into Bill S-6, outside of previous YESAA legislation.

In clause 10, proposed subsection 43(2) reads as follows:

If the proponent fails to provide the required supplementary information within the period prescribed by the rules, the designated office, executive committee or panel of the Board may suspend its assessment activities until the proponent provides that information—

How is that different from what currently exists under the legislation?

[Wendy Randall, Chair and Executive Committee Member, Yukon Environmental and Socio-economic Assessment Board]

Thank you, Mr. Chair.

I would also like to thank the committee for inviting me to appear before them today as they study Bill S-6.

My name is Wendy Randall and I was appointed chair of the Yukon Environmental and Socio-economic Assessment Board just over two months ago. lt is an honour to speak to this committee about this complex and comprehensive piece of legislation that is so important to Yukoners.

I will try not to take up too much of your time. I'm simply going to provide an overview of the Yukon Environmental and Socio-economic Assessment Act as well as the role of the Yukon Environmental and Socio-economic Assessment Board. For the committee's consideration, I will also speak to the fundamental purposes of the act and then either I or executive director Tim Smith will be available to answer questions.

Chapter 12 of the Umbrella Final Agreement and Yukon first nations final agreements called for the creation, through federal legislation, of an assessment process applicable to all lands within Yukon. Over a decade later, in November 2005, the Yukon Environmental and Socio-economic Assessment Act with its regulations came into force and became the federal statute setting out this process.

The board was established under YESAA, and consistent with the Umbrella Final Agreement, is an independent, neutral, arm's-length body responsible for the administration of the assessment responsibilities of YESAA. The board comprises a three person executive committee, one member of which is also chair of the board. There are four other members at large, for a total of seven board members. The Council of Yukon First Nations nominates three of the board members; the Yukon government nominates two board members, and the Government of Canada also nominates two board members. All board members are appointed by the federal Minister of Aboriginal Affairs and Northern Development Canada.

YESAB is made up of six community-based designated offices and a head office in Whitehorse, which houses the executive committee. The designated offices are responsible for conducting the majority of assessments known as evaluations. They have completed close to 2,000 designated office assessments to date.

The executive committee conducts assessments known as screenings of larger, more complicated projects. Screenings of six projects have been completed with a seventh that is currently in the adequacy review stage. To date there have been no reviews conducted by a panel of the board.

It is important to note that YESAB is not part of government. We are not a regulator. We do not issue permits or authorizations, and we do not make final decisions on projects. We are an independent board that conducts environmental and socio-economic assessments and makes recommendations to decision bodies. Those decision bodies are the three orders of government that have control over land and resources in Yukon, so federal, territorial, and first nation governments.

As chair of the board, I feel it is appropriate for me to convey to this committee the purposes of the act as they were contemplated by the three parties that originally drafted the legislation, those parties being the federal government, the Yukon government, and the Council of Yukon First Nations.

If you were to talk to the parties who created YESAA, they would tell you that it was almost a miracle of drafting to obtain consensus from such diverse sets of needs and interests, and yet they did. At the front of the Yukon Environmental and Socio-economic Assessment Act is section 5. It sets out the purposes of the act agreed to by the parties.

I believe this section is important for the committee to think about during their study of Bill S-6. The purposes of the act as set out in YESAA are unique to Yukon. They are bold. They are comprehensive, and some have potentially competing interests. The board and staff must ask ourselves every day if what we are doing and how we are doing it is in keeping with the purposes of this legislation.

The purposes of the act are as follows:

(a) to provide a comprehensive, neutrally conducted assessment process applicable in Yukon; (b) to require that, before projects are undertaken, their environmental and socio-economic effects be considered; (c) to protect and maintain environmental quality and heritage resources; (d) to protect and promote the well-being of Yukon Indian persons and their societies and Yukon residents generally, as well as the interests of other Canadians; (e) to ensure that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities and their residents, and societies, in general, depend;

(f) to recognize and, to the extent practicable, enhance the traditional economy of Yukon Indian persons and their special relationship with the wilderness environment; (g) to guarantee opportunities for the participation of Yukon Indian persons—and to make use of their knowledge and experience—in the assessment process; (h) to provide opportunities for public participation in the assessment process; (i) to ensure that the assessment process is conducted in a timely, efficient and effective manner that avoids duplication; and (j) to provide certainty to the extent practicable with respect to assessment procedures, including information requirements, time limits and costs to participants.

As you can see, we must balance the diverse needs of all participants in the process, including stakeholders, Yukon first nations, and proponents. YESAA is made-in-Yukon legislation that Yukoners are very proud of.

Thank you, Mr. Chair. I hope this has provided some helpful context for committee members.

[Ryan Leef, Conservative, Yukon, YT]

I asked the minister last week, in specific reference to the binding policy direction embedded in the legislation, whether it would interfere with assessment. I think we've already answered this question, from your perspective, and know that it's not interfering with assessments.

The minister went on to affirm that the binding policy direction :

[I]n regard to policy direction, any policy direction first would have to be consistent with the land claims agreement and legislation, in this case the Umbrella Final Agreement and the Yukon Environmental and Socio-Economic Assessment Act.

I know this question was posed specifically in the Senate hearings to Daryn Leas, who was providing technical advice. We talked about the implications for land claims and whether or not they would prevail over territorial legislation. He testified in the Senate:

It is true our land claim agreements would prevail over federal or territorial legislation.... [T]hose amendments technically are not affecting the final agreement, or maybe even the fact that the final agreement is going to prevail....

How much confidence do you have, under section 35 of the Constitution Act, under the UFA, under each self-government agreement, and indeed under the proposed sections embedded in Bill S-6 at this current point that refer back to each and every one of those agreements and from the minister's own comments to the committee, that the Umbrella Final Agreement will prevail in respect to these amendments?

I'm sure anybody who is technical is going to respond to that.

[Roger Brown]

The short answer is that during the November 26 meeting we had a very generalized description of the concept being tabled. It wasn't until February 26 that there was a table drop of the specific details of many of the provisions we're opposed to, including the delegation of authority and the binding policy direction matters.

If I may take a bit of time, perhaps I'll just respond on the whole consultation record.

We started back on December 12, 2012. That is when we were notified by fax about a meeting that was following on the next day, within less than 24 hours. We attended that meeting. The only indication was that Canada would be pursuing changes to the YESAA. There was no content whatsoever to that effect.

On February 21 we received a letter from the deputy minister promising the development of a working group. That working group was never established. Our expectation was a tripartite process. By May 30 we had received a letter with a draft bill. We were quite surprised to see a bill in draft form. We thought we would be doing that together. During that meeting there was some offer of funding for the process, and none of the provisions that we're opposed to in the current Bill S-6 were tabled at that time.

Getting back to the point, I'll make this short. It was not until February 26, 2014, that we received the details. Concerning the funding that has been referred to, we had provisions to spend it by the end of the fiscal year. That gave us 22 days, really, to respond to the draft bill. It must be said concerning most of the money we were provided with through agreement in the summer of 2013 that we spent a lot of time using that money to analyze provisions of a draft bill that simply didn't have any of these matters. I'll just leave it at that.

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

Certainly the minister, in his speech and when he appeared before this committee to discuss Bill S-6, obviously fundamentally disagrees that Bill S-6 violates the Umbrella Final Agreement, and he laid out the sections that he believes give the government the authority to proceed with the four amendments we're talking about.

The chief just mentioned the consultation. I guess I'm a little confused because on the four amendments, I have a list here: video conference on the responsible resource development in the north initiative, December 2012; teleconference with CYFN on way forward on amending YESAA, April 2013; mail out to CYFN, Yukon first nations, YESAB, and Government of Yukon of first draft legislative proposal and request for written comments, May 2013; discussion on funding with CYFN, June 2013; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon, July 2013; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon on comments received and AANDC's response, November 2013; mail out to CYFN, Yukon first nations, YESAB, Government of Yukon and industry of revised draft legislative proposal and requested written comments, February 2014; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon on revised draft legislative proposal, February 2014; another similar consultation session, April 2014; again, May 2014; written responses sent, June 2014.

Then I go to funding for stakeholders on these four amendments: Council of Yukon First Nations, $19,637; Champagne and Aishihik First Nations, $9,403; Teslin Tlingit Council, $13,868; Selkirk First Nation, $1,733; Tr'ondëk Hwëch'in, $7,688; Ta'an Kwäch'än Council, $9,403; Kluane First Nation, $10,864; Kwanlin Dun First Nation, $4,403; Liard First Nation, $5,622; White River First Nation, $7,807; Gwich'in Tribal Council, $10,000; Tetlit Gwich'in Renewable Resource Council, $7,290, and that's just specifically on this issue, on these four amendments.

Certainly when this was before the Senate, the critic, Liberal Senator Grant Mitchell said:

There has been, I think, quite adequate consultation. It's complicated up there in these territories. You have federal, territorial and Aboriginal interests. Some interests are more defined than others because in many cases they are defined by land claim developed treaties or land claim settlements. In other cases, those have yet to be accomplished. So it is very complex, and the fundamental core of this bill gets to that and is an effort to make all of that better and to make processes in the North better.

Certainly, there's a wide range of views on what constitutes consultation. Maybe if there's any time left, I wonder if there are any comments on whether or not $98,000 and a dozen meetings over the course of a year and a half constitute consultation. I'm a little confused there and would like your comments on that.