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.

[Chief Steve Smith]

Good morning, Mr. Chair and fellow committee members.

I thank you for the opportunity to speak to the committee this morning. The Champagne and Aishihik First Nations fully support all statements made by the Council of Yukon First Nations and other first nations partners at the table today.

I'd like to open by telling you that my father was Elijah Smith. It was he who, some 43 years ago, presented the original Yukon land claim to then prime minister Pierre Trudeau. He was the driving force behind the negotiation of our land claim and self-government agreements. He served for six years in World War II. It was that experience which taught him that confrontation is always the last resort, and that negotiation and compromise have to be the preferred methods to settle grievances. This is the sentiment that Yukon first nations have always held when reconciling our claims. This ideal is something that we hope Canada and Yukon would subscribe to as well, not always having to settle disagreements in court.

Bill S-6 is a roadblock to reconciliation. The unconstitutional bill demonstrates the federal government's unilateralism and lack of understanding of the relationships that arise from the final agreements, the federal government's failure to abide by the collaborative development assessment regime mandated by the final agreements, and the federal government's indifference to fostering productive and collaborative treaty relations with Yukon first nations. This is fundamentally unacceptable.

Our final agreements entailed a promise. They are modern treaties protected by section 35 of the Constitution. They are vehicles of reconciliation between first nations and Canada. The final agreements look backward to address historic grievances, and they also look forward to the future, towards evermore cooperative and collaborative relationships between Yukon first nations, Yukon, and Canada.

The final agreements represent a significant compromise, and they create a new constitutional arrangement in Yukon. Yukon first nations abandoned their claim to aboriginal title over 90% of their traditional territories, an area of almost 484,000 square kilometres roughly the size of Spain, in exchange for the commitments made in the final agreements. That was an enormous compromise.

The establishment of an independent development assessment regime created through negotiation and collaboration between first nations, Yukon, and Canada was one of the treaty commitments in the final agreements. YESAA was the means by which that commitment was fulfilled. YESAA is mandated by, and founded in, the final agreements. It is not an ordinary piece of federal legislation. It emerged from the constitutional compromise that underpins our final agreements

The final agreements required first nations, Yukon, and Canada to negotiate guidelines for drafting YESAA. We did so. We drafted the legislation and regulations together. Establishing YESAA was a success and a demonstration of the cooperation and reconciliation that our agreements demand.

YESAA is a made-in-Yukon law designed to meet the needs of Yukon first nations and Yukoners alike. It is unlike other assessment legislation in Canada because it is guided specifically by treaty obligations.

The federal government had 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.

As we have said, we do not oppose all of the provisions of Bill S-6, but we oppose it unless the unilateral federal amendments to YESAA that undermine the spirit and intent of the final agreements are removed. The details of the changes we expect were identified in Chief Massie's opening remarks today and in our written submission.

By empowering itself to issue binding policy directions to the board, Canada would overturn the careful balance struck during the treaty negotiations and the subsequent constitutionally mandated negotiation of YESAA. By appropriating powers that imperil the board's independence, Canada imperils reconciliation.

In the final agreements, the parties agreed on the constitutionally protected framework for the creation of development assessment legislation in Yukon. Such legislation is to be drafted based on guidelines negotiated by parties, or failing agreement on guidelines, following consultations with first nations. Canada has failed to do that.

In short, Bill S-6 demonstrates Canada's disregard for its treaty commitments.

For development in Yukon to be successful, it must be sustainable. It must have social licence. It must have Yukon first nations' and Yukoners' support.

The final agreements and YESAA are designed to ensure sustainable development by, among other things, ensuring trust in the assessment process that leads to development. First nations trust the YESAA regime because they are co-creators and because they have the confidence that the assessment process is independent. By unilaterally amending YESAA in violation of its treaty commitments, Canada undermines first nations' trust in the YESAA process. This will undermine the promise of the agreements and threaten the ability of first nations to support development in our traditional territories.

Recent court decisions, such as the Peel land use planning case in the Yukon Supreme Court, the Tlicho injunction over changes to the land and water boards in the Northwest Territories earlier this year, and the Mikisew Cree case on the federal omnibus bills C-38 and C-45 demonstrate what happens when our treaties are threatened. That serves no one's interest.

In conclusion, the final agreements will never fulfill their purpose of reconciliation if the federal government persists on its path of unilateralism and disregard for the views of its treaty partners. Our treaty is as much about building relationships as it is about the settlement of past grievances. When Canada unilaterally undertakes major changes to treaty-mandated legislation without collaborating or even truly consulting with first nations, it inflames grievances and strains relations.

By going it alone, Canada has left the honour of the crown behind.

I would like to thank the committee members for their time today.

Kwä`nä`schis.

[Stanley Njootli Sr., Deputy Chief, Vuntut Gwitchin First Nation]

[Witness speaks in Gwich'in]

Mahsi Cho. Thank you.

I'm Stan Njootli, deputy chief, from Old Crow.

I will read a statement for the record and probably make my own statements after that.

The Vantut Gwitchin government supports the position expressed by other Yukon first nations and CYFN in today's proceedings. With limited time, I will speak specifically about our collective concerns with amendments to YESAA that allow for delegation of authority and exemption from assessment.

The first proposed change to YESAA would allow the federal minister to delegate authority to the Yukon government. This amendment would establish a bilateral federal-territorial process for distribution of responsibilities and powers under YESAA. It excludes Yukon first nations from the discussions and is contrary to the nature of decision-making envisioned in our modern-day land claims agreement.

Mechanisms that have been used in the past to define distribution of power include our final agreements that were directly negotiated by the three parties and in devolution transfer agreements in which Canada, Yukon, and first nations negotiated a devolution protocol accord to establish negotiating principles. The distribution of powers and responsibilities among federal, territorial, and first nations governments can only be resolved through discussions among all the parties. It must not be handed to a single party or a single person, in this case the Minister of Aboriginal Affairs and Northern Development of Canada. It also must not be constrained to distribution among only two of the three parties that are involved in this agreement.

I want to provide some detail about our concerns with clause 14, proposed subsection 49.1, in the bill that provides a general exemption from assessment when an authorization is renewed or amended unless, in the opinion of a decision body for the project, there is a significant change to the original project.

As stated in the final agreement, one objective of YESAA is to provide for comprehensive and timely review of the environmental and socio-economic effects of any project before the approval of that project. Achieving this objective is not related to whether an authorization is renewed or amended. It is about the scope of a project and the effects that may have been considered in previous assessments. Federal, Yukon, and first nations governments are prohibited from issuing permits or licences to projects unless they have been assessed under YESAA.

For renewals and amendments, if it is decided that the project has already been assessed, then no further assessment is required. These provisions already exist. The Bill S-6 approach on the other hand proposes to create a general exemption that lacks the test of whether the scope of the project was considered in previous assessments and whether the effects have been previously assessed. Under this general exemption, projects that will have significant adverse environmental or social effects, including those that affect other modern-day treaties or land claims agreements, could proceed without assessment or appropriate mitigation. These provisions will also create extremely challenging tasks for the assessors and the proponents as they are forced to consider the effects of a project for long periods. Some projects could be 100 years or more. Not only is this impractical and likely to result in failure to achieve the objectives of chapter 12, but it will have the unintended consequences of delaying projects because of the increased likelihood of designated offices bumping assessments to executive committee level, or it could result in a determination that the project should not proceed due to significant adverse impact.

To conclude my comments about the proposed exemptions from assessment, I want to highlight that Bill S-6 conflicts with the recommendations from the five-year review that has already been implemented and is proving effective. The YESAB made changes to its policies with respect to the scope of a project it considers in its assessment. By unilaterally initiating this proposed amendment, Canada is reneging on the agreements we reached during the five-year review.

In conclusion, I would like to share my perspective on the importance of YESAA to the Vuntut First Nation. The Vuntut First Nation was among one of the first first nations to sign final agreements with the federal government. From these agreements, the Vuntut First Nation formed its own government.

What I would like to see, between me and you, is that you come to Old Crow and we do a wilderness trip. We'll go on the river and see what it's like there, how pristine that river is. We drink water from that river. Fifty years from now, I want to see the children of this community walk down to that river and drink that water. I think this assessment should allow that to happen when they assess projects that are going to affect that pristine area on the Porcupine River.

I'm inviting you this summer on a boat trip. What do you think about that?

[Millie Olsen, Deputy Chief, First Nation of Na-Cho Nyäk Dun]

Good morning. My name is Millie Olsen and I am the deputy chief of the First Nation of Na-Cho Nyäk Dun.

Our newly elected chief, Simon Mervyn, is not able to attend today due to a scheduling conflict and has asked me to represent our first nation at this hearing.

As one of the first signatories of a first nations final agreement, we have celebrated almost 20 years of self-government here in Yukon.

I want to begin by thanking you all for taking the long trip to Whitehorse to host these presentations. I want to recognize that we are here today presenting on the traditional lands of the Ta'an Kwach'an and Kwanlin Dün first nations.

We have already witnessed a few presentations, and I can assure you that all the Yukon first nations unanimously oppose certain provisions included in Bill S-6.

It is of major importance for us to leave future generations with agreements and processes that will ensure the protection of the water, lands, and wildlife while providing for economic opportunities in Yukon. To achieve this goal, all three levels of government will have to work together, and the base for this mutual trust needs to be improved moving forward.

I want to speak to you now in more detail about our concerns about the beginning-to-end timelines that are proposed for assessments. There is no evidence that these proposed timelines will benefit assessments or proponents in Yukon. Unlike many assessment processes in Canada, YESAA has always had timelines. Canada and Yukon requested provisions for timelines when we worked together to develop YESAA, and first nations agreed to this concept. As required in the legislation, the board established timelines for all steps in the assessment process before it began its first assessment. Almost all assessments have been completed within these established timelines.

Some mining proponents in our traditional territory have been vocal in promoting the need for timelines. As with most assessments, YESAA has met the existing timelines for conducting assessments on these projects. Even though in some cases the proponents made substantial changes to their proposals partway through the assessment process, the assessments would have met the timelines proposed in Bill S-6, too.

The timeline proposals in Bill S-6 would bring no real benefit to these companies, but they can harm the assessment process. Beginning-to-end timelines as proposed in Bill S-6 threaten to interfere with a process that works. Most risky is the application of those overarching timelines to the review of adequacy of applications. Adequacy review often takes several iterations and the current timelines restrict the time available for assessors to review each iteration.

YESAA currently has timelines for assessors to review each iteration. This approach encourages proponents to prepare comprehensive applications that minimize iterations. Proponents who prepare adequate applications quickly are rewarded under the current process because they can proceed quickly.

On the other hand, the Bill S-6 approach of applying a beginning-to-end timeline will reward proponents who prolong the adequacy review phase by using up time with multiple iterations. The approach will penalize assessors and reviewers like first nations because it will shorten the most important public review phase, infringing on our right for comprehensive reviews of projects.

There are big risks for proponents, too, if the beginning-to-end timelines influence the ability of assessors to finish adequacy reviews. If assessors do not have adequate applications, they will more frequently be led to make recommendations that projects be rejected or referred to higher levels of assessment.

During the engagement sessions, officials from the Department of Aboriginal Affairs had assured us that they were not contemplating the inclusion of the adequacy stage in these maximum timelines, but they changed this at the very last minute.

Finally, I want to highlight that the process for seeking extension for timelines as proposed in Bill S-6 is cumbersome and likely to create further delays in assessments. Extending timelines would require approval of the Minister of Aboriginal Affairs and Northern Development or the federal cabinet. Unlike many assessment processes, we have timelines in YESAA that work and we should not interfere with those.

Before I conclude, I would encourage you to read the 2013 report from the Yukon Minerals Advisory Board. This committee is made up of members who either represent or work for industry. This committee claims that it is unique in the sense that it can communicate directly to cabinet ministers of the Yukon, rather than sending information through departments.

Within this report, you will find that the recommendations this committee put forward are almost a carbon copy of the four contentious amendments that my colleagues have spoken to here today. They represent their recommendations that protect their interests in the industry. Why do we have a system in place where government acts on the requests of industry, but cannot take the time to work with local governments to plan the future for our citizens and resident Yukoners?

With that I would like to express my appreciation to sit before you today and hope that the recommendations all of our first nations collectively put forward will help you and your colleagues make the right decision on Bill S-6.

Mahsi Cho.

[Chief Doris Bill, Chief, Kwanlin Dün First Nation]

Thank you.

Mr. Chairman and members of the committee, I appreciate your invitation to speak at today's public hearing regarding the proposed amendments to the Yukon Environmental and Socio-economic Assessment Act.

As the chief of the Kwanlin Dün First Nation, I would like to say welcome to our traditional territory, which we share with Ta'an Kwach'an Council.

No one can deny Yukon first nations negotiated their agreements in good faith, and as part of those agreements we established our right to be included in decisions that affect Yukon, especially when it involves land, water, and our people.

As you have heard from others, one provision contained in our final agreement requires the establishment of an assessment process that addresses the unique circumstances of Yukon according to principles that have been clearly defined in the final agreement.

While the minister insists the YESAA amendments will bring YESAA in line with other northern jurisdictions, I would like to point out that each territory is distinct in its own way.

Yukon is not the same as the Northwest Territories and Nunavut. Northerners know this very well and have continuously asked that Canada stop lumping us together.

As you have heard, self-governing first nations are concerned that providing the federal minister with authority to unilaterally issue policy direction undermines the autonomy of the board.

When we negotiated our final agreements, we ceded title to over 90% of our traditional territories. ln exchange, our agreements give us the opportunity to be active participants in managing public resources. YESAA was a big part of that.

Our communities, elders, and negotiators always envisioned an environmental and socio-economic assessment process that was independent of political interference from any government: federal, territorial, or first nation. We fought hard for that when we worked collaboratively with Canada and Yukon to develop YESAA. All three parties agreed to follow the principle of establishing an independent board.

To get that independence, we agreed that the board's role on assessments would be limited to recommendations while the governments would retain the ability to make decisions. That was the compromise that Canada and first nations agreed to. We cannot let that bargain be eroded by Canada giving itself the authority to impose its policies on the board.

Providing a single party with authority to direct the board is fundamentally inconsistent with any legislation that stems from our tripartite treaties. While the treaties obligate Canada to enact YESAA, it does not own YESAA and cannot choose to dictate its own policies on the independent assessment body.

The treaties established a mechanism for the parties to collectively refine YESAA and provide guidance to the board. That process was the five-year review, and it could be any subsequent review conducted by the three parties. That process was and is the right mechanism to provide policy direction because any guidance would come from all parties to the treaties.

As you have heard, the five-year review included agreement on 72 of 76 recommendations. At least 42 of these recommendations relate to administrative and policy function of the board including changes to the board's policies, rules, administration, and activities. The board has been actively working to address these recommendations. The collaborative approach in the five-year review is a proven and effective way to address policy matters for the board.

The concept of the federal minister issuing binding policy direction is particularly problematic when we consider that the direction would apply to projects and assessments on our settlement lands. lt is completely contrary to our treaties that the federal government would have unilateral authority to impose policies that may affect land over which it has very limited authority.

In closing, our agreements are as much about building relationships as they are about the settlement of past injustices. When the federal government embarks on one-sided changes to legislation that stems from constitutionally protected treaties without collaboration or true consultation with first nations, it makes one wonder how strong government-to-government partnerships are.

I will quote Kwanlin Dun elder Judy Gingell, who was a member of the delegation that travelled to Ottawa in 1973 to deliver “Together Today For Our Children Tomorrow”, the document that started the negotiation process for the Umbrella Final Agreement and subsequent final agreements with each first nation government. She told industry, “Today development that does not include first nations, and does not consider first nation interests, means you will end up in court. We will defend what we have worked to achieve.”

As Yukon first nations, we are united in our concerns and we are seeking resolution that in some way will get the process back on track. Would court action be our first choice? Obviously not. We are here. Our preference is to use every avenue available to us and mechanisms clearly defined in our negotiated and constitutionally protected agreements, and respectfully, this parliamentary hearing. Yukon first nations have negotiated their final agreements by relying on a relationship based on respect, honesty, and trust. Why is Bill S-6 imposed outside of those principles? The approach creates and fuels animosity for all Yukoners. The exploration spending predictions for 2015 already reflect that uncertainty.

I thank you for this opportunity. Mahsi Cho. Gunalcheesh. Thank you.

[Ryan Leef, Conservative, Yukon, YT]

Grand Chief, in respect to the policy direction concern, Bill S-6, under proposed subsection 121.1(2), is explicit in stating:

Policy directions do not apply in respect of any proposal for a project that, at the time the directions are given, has been submitted to a designated office, the executive committee or a panel of the Board.

With that in mind, what specific concerns do you have about binding policy that you envision the minister's having authority over that would affect the independence of the board, respective of the fact that the YESAB and the executive committee are made up of a good percentage of Yukon first nations?

[Grand Chief Ruth Massie]

Well, Chair, I was a little bit surprised to hear that, but I welcomed hearing that. We haven't had that discussion. The premier has met with our leadership before when we have had our leadership.... That is one road that we have encouraged him to go down, to start the reconciliation. We also asked him to address Bill S-6. If we're not going to come to agreement, it's a little rough to get started on reconciliation if we are not going to agree. He mentioned the consultation over those four amendments. He did not discuss those amendments with us, and neither did you. It came to us in a draft.

If we want to go down the road of reconciliation, our first nations are willing to do that. Up until now, we've spent many years negotiating our agreements to come to an agreement.

[Chief Angela Demit, Chief, White River First Nation]

[Witness speaks in Northern Tutchone language ]

I am Chief Angela Demit of White River First Nation.

Mahsì t'sin’ii to Kwanlin Dün and Tr’ondëk Hwëch’in first nations for our coming to their traditional territory.

Mahsì for the opportunity to present our views about Bill S-6 to the standing committee.

White River First Nation is a Yukon first nation that does not have a final land claim agreement. We are therefore one of the first nations who have never extinguished our aboriginal rights and title to our lands and waters. We participated in meetings with Canada about the changes to YESAA. Through that experience we have understood that the changes being proposed by Canada have much more to do with an agenda made in Ottawa than with the recommendations that came out of the YESAA five-year review process.

The process was agreed to by all parties to the UFA, including Canada. All Yukon first nations, including White River First Nation, invested in the review process and agreed upon a number of recommendations to improve the development and assessment process under YESAA. The recommendations were based on our experience of the YESAA process in Yukon in its first five years.

The changes to YESAA now proposed by Canada came from outside the five-year review. I hope you will listen carefully to our concerns.

I will start by saying that there are a number of amendments that White River First Nation wanted to see, but which Canada chose not to act on and which are not present in Bill S-6. The most important of these for White River First Nation is the definition in YESAA of “territory”, which for our nation is defined as the border boundary outlined in the UFA.

Our traditional territory goes beyond the UFA boundary, and as a result, large areas of our traditional territory are excluded from the consultation process under the YESAA. The UFA was never intended to be a binding document, and we do not agree that the map in the UFA represents our territory.

We have made our concerns known for many years and we are disappointed that Canada did not take this opportunity to remedy the situation. It is important to us to make it clear on the record that White River First Nation continues to strongly object to the definition of “territory” in YESAA.

Like many other Yukon first nations who are speaking to you today, we feel that there are four amendments of particular concern which are a profound intrusion of the federal and territorial governments into the YESAA process. A core value of the YESAA process is that it is a process that is at arm's length from government. As a Yukon first nation, we can only have confidence in the process when we believe it is independent.

The first is that Canada is proposing that the federal minister can give written policy direction to the YESAA board regarding any of the board's powers, duties, and functions under YESAA, and the board must abide by them. In our view, this power will completely undermine the board's ability to run an independent process free of political interference from the minister. It will also undermine the predictability of the process for all parties.

The second amendment that concerns us would allow the minister to delegate any of his powers, duties, and functions under YESAA to the territorial minister. The federal minister has many powers under YESAA, for example, the power to change the number of assessment districts, to approve the budget for the board, and approve of or reject time extensions for assessments. Giving these powers to the territorial minister makes the YESAA process extremely vulnerable to local political pressure. White River First Nation strongly objects to this.

The third amendment we urge you to reject is the imposition of timelines for YESAA assessments. The board currently administers rules for timelines which are appropriate to the YESAA process and to the specific circumstances of the Yukon. We see this proposal as a heavy-handed imposition of Canada's development objectives on the Yukon.

The fourth amendment that we do not wish to see brought into law would give discretion to the government decision-makers, most likely a territorial official, to allow a company to avoid a YESAA assessment in the case of a project amendment and permit renewal. This would create a great deal of uncertainty for White River First Nation when participating in a project assessment process. If a project can be changed or extended beyond the original proposal, we will not know all of the potential impacts when the project is finally assessed. This poses a serious threat to the protection of our aboriginal rights and is unacceptable to us.

I urge you to respond to our concerns and recommendations so that the amendments do not become law. I further urge you to recommend that this government scrap Bill S-6 and continue to consult with the first nations of Yukon to achieve a proposal that all parties can support. This is what reconciliation is all about.

In closing, White River First Nation is a Yukon first nation which has never extinguished aboriginal rights and title to our traditional waters and lands. The YESAA five-year review includes recommendation 58. This recommendation recognizes the needs for all parties to deal with issues specific to Yukon first nations without final agreements. White River First Nation has many outstanding and unique issues in the application of YESAA, as we are a first nation which did not enter into final agreements under the UFA.

Mahsi cho,T'sin'ii for being able to provide our presentation today.

[Chief Roberta Joseph, Chief, Tr'ondëk Hwëch'in First Nation]

First of all, I would like to take the opportunity to thank the Standing Committee on Aboriginal Affairs and Northern Development for coming here to Yukon.

I would also like to express my appreciation to Kwanlin Dün and Ta'an first nations for allowing us to be here in speaking to this monumental event.

I'm Roberta Joseph, chief of the Tr'ondëk Hwëch'in in Dawson City. I want to talk to the committee about the process Canada, Yukon, and first nations used to develop YESAA and how that differs from the Bill S-6 process.

I want you to understand that things were done differently in the past and they can be done differently now. Not only that, they must be, in order to honour our treaties.

In 1998 Tr'ondëk Hwëch'in signed a modern land claim agreement after over 25 years of negotiations. The crown got what it wanted: clear title to over 95% of our traditional territory. Why would the TH sign an agreement where we kept less than 5% of our traditional territory as settlement land? We relied on processes like YESAA and land use planning to guarantee participation in planning and management on non-settlement land, where we exercise our rights to hunt, fish, and gather.

The Supreme Court of Canada recognized these processes as key features of our final agreement. In the Little Salmon/Carmacks case, Justice Binnie noted that first nations got “a quantum of settlement land...access to Crown lands, fish and wildlife harvesting, heritage resources, financial compensation, and participation in the management of public resources.”

Participation in the management of public resources is critical. YESAA was central to the final agreement bargain, and so was being involved in its development.

Section 12.3.2 of the final agreement directed the CYFN, Canada, and Yukon to negotiate guidelines for drafting YESAA. Because the development assessment process is so important, Yukon first nations, Canada, and Yukon went beyond section 12.3.2. The parties established a tripartite working group to develop YESAA and its regulations. We worked collaboratively with Canada and Yukon throughout YESAA's development, right up to its approval in Parliament. Canada found ways to support collaboration instead of putting up roadblocks to working together.

Collaboration continued after YESAA came into force in 2005. Section 12.19.3 directed the UFA parties to review YESAA after five years. Once again, Yukon first nations were actively involved. Some of the Bill S-6 amendments are reforms that we worked on during that five-year review.

We are here today because that respect for our final agreement process is gone. The original YESAA was developed collaboratively over several years. The amendments from the five-year review were negotiated, but when Canada introduced four surprise amendments at the last minute, there was no negotiation at all. Canada acted unilaterally.

To be clear, collaboration between three orders of government was good enough when we created YESAA. Government-to-government negotiation was good enough during the five-year review as well. We didn't agree on everything, but we followed the final agreement instructions and came up with reforms that we could all live with. Most of those did not require changes to YESAA but have already been implemented through administrative actions and changes.

For the few recommendations that required amendments to YESAA, we expected Canada to respect its constitutional duties and treaty requirements to collaborate with us in accordance with chapter 12. Instead, Canada unilaterally tacked on four substantive amendments: delegation, policy direction, timelines, and renewals. Canada ignored its constitutional duties and the collaborative practices imposed by the treaties in section 12.3.2.

Another section, 12.3.3, provided a default in case the parties couldn't agree on drafting guidelines. Under section 12.3.3, Canada can go ahead with drafting, but it has to consult with Yukon first nations during the drafting. In TH's opinion, consultation under 12.3.3 is the second-best option. We would rather participate in instructing the drafters, but we at least have a final right to proper consultation while the drafting is still going on. Of course, the crown has a constitutional duty to consult with TH and where appropriate, accommodate our concerns when it amends YESAA.

Consultation didn't happen. Instead Canada took the third option, surprising us with amendments and an already drafted bill stamped as secret. They wouldn't let us take copies out of the meeting room, and if we weren't at the meeting in person, Canada never provided us with a single copy.

That's not participation under section 12.3.2. It's not consultation under section 12.3.3. It's just forcing it down our throats. It violates our final agreements and is illegal under the common law.

Many Yukon officials have stood in front of this committee and talked about the thousands of hours of consultation that went into Bill S-6. Do not be misled.

It's true: we spent years participating in the five-year review with federal and territorial officials.

These amendments never should have been included in Bill S-6. We join other witnesses who are urging you to strip those changes out. We are not in support of the Yukon member of Parliament on Bill S-6 and would like to see this matter tabled in the House.

Thank you.

[Chief Carl Sidney, Chief, Teslin Tlingit Council]

On behalf of my elders, council, and people, I thank the Tr'ondëk Hwëch'in and the Kwanlin Dün first nations for hosting this important meeting in their traditional territory.

[Witness spoke in Tlingit]

My name is Carl Sidney. I am the chief of Teslin Tlingit Council.

The Teslin Tlingit Council signed its final and self-government agreements with Canada and Yukon in 1993. We joined with other first nations in implementing our agreement starting in February 1995. We have recently celebrated 20 years of government-to-government relations guided by our agreements.

We thank the committee for coming north and providing us the opportunity to share our thoughts on Bill S-6. There are many written reports and documents filed with you by the Teslin Tlingit Council and other first nation governments. I am not repeating those details, but it is important for your committee to consider those submissions.

Let me bring you a personal and grassroots perspective. Our first nations people have long been stewards of land, air, and water. A respected Teslin Tlingit elder, Virginia Smarch, described first nations peoples as being part of the land and part of the water. In fact, we all are. It is this ancient belief that has formed the core of who we are as Tlingit people and defines our relationship with mother earth.

Industry and development come and go, but we are here forever and we carry that sacred responsibility. YESAA is connected to those beliefs and values through our agreements and should not be amended without our consent. We entered into the agreements as a way forward as an expression of who we are as people. An essential part of that vision was the recognition of and respect for our land, our water, and the air we breathe. They are a part of us and we are part of our environment for all time. It is our collective responsibility as a treaty party to ensure these unique relationships will be part of our future.

In 2005 I was one of the appointed founding members to the Yukon Environmental and Socio-economic Assessment Board. Together the board spent much energy in the implementation of YESAA by involving the citizens of Yukon at every stage. It is this kind of cooperation among Yukoners led by an independent board comprised of Yukoners that was the way YESAA was put into effect and has worked perfectly well.

The amendments in Bill S-6 imposed by Canada at the last minute undermine what we have created together. It is critical to success that we continue to work together as was the vision under our agreements. Canada's stated intention in entering into final agreements was to create certainty about the use and ownership of Yukon land and natural resources. Substantial aboriginal rights, including title, were exchanged for constitutionally protected treaty rights. That was a high price to pay to achieve certainty for all Canadians and the Yukon first nations who have signed agreements and have paid it in full.

In the face of the violations of our final agreements through these amendments we must protect the spirit, letter, and intent of those agreements. The Yukon first nations and their citizens understand that they are a dynamic part of the Yukon society and economy. It was and is our vision to play a leading role in our collective Yukon future.

Together we represent directly and indirectly through our investments in excess of $1 billion in value, and annual revenues in excess of $300 million. We are definitely involved and concerned with Yukon's future and its economy.

Local and global investors are already diverting investments away from Yukon due to uncertainty of litigation and the questionable law and policy decisions of Canada and Yukon. A range of legal options will be open to first nations if these amendments are passed as proposed. Litigation will take place over a number of years undermining Yukon's economy as Yukon is seen as too risky and too uncertain.

We anticipate that individual projects and proponents will be challenged when the projects are being assessed inadequately. Industry and other investors will be bystanders waiting for the results of legal disputes to be worked out in the courts that the governments of Canada and Yukon have invited.

We are aware of and share in the risks and uncertainty of resorting to courts. However, the breaches of the current Conservative government in Ottawa, supported by the Yukon Party government in Yukon, are so severe we fear that we will have no other option.

We and other Yukon first nations need to continue to strive for respectful, effective relationships with industries throughout Yukon, and encourage sustainable development and positive growth for our citizens and all Yukoners, but to achieve our vision and respect our beliefs and values, we must ensure that our agreements are fully understood and recognized.

Teslin Tlingit Council urges this committee to take the steps available to it to recommend removal of the offending amendments. We further call upon all members of Parliament to take the steps available to avoid this increase in uncertainty and related harm to Yukon and to Canada's economy. Teslin Tlingit Council remains willing and available to work with Canada's representative to prepare improvements to the YESAA.

In accordance with the process settled in our final agreements, we call on you, as representatives of the crown, to act honourably as the law and our treaties require.

Gunalchéesh.

[Chief Eric Fairclough, Chief, Little Salmon Carmacks First Nation]

Thank you very much.

I'd like to introduce myself. I have been the chief of Little Salmon Carmacks First Nation since 2012. I have been a member of the legislative assembly for over 15 years before that, and I served as chief between 1990 and 1996. As such, I am familiar with the final agreements.

I want to note that we are aware of and support the other first nations' statements here today. The Yukon first nations reiterate that the proposed four amendments undermine the spirit and intent of chapter 12 of the final agreements. If the four amendments proposed by Bill S-6 are proclaimed, the crown will have breached its constitutional duties owed to Yukon first nations.

The Yukon senator and member of Parliament have pointed out that section 4 of YESAA provides that in the event of an inconsistency or conflict between the final agreement and YESAA, the final agreement will prevail to the extent of the inconsistency or conflict. Section 4 does not address our concerns about the potential breach of our rights. Further to that, we do not understand why our senator and member of Parliament oppose Yukon first nations' and many Yukoners' views on the four objectionable amendments.

First, it's important to understand that chapter 12 outlines the general structure of YESAA and its functions and powers to guide the development of YESAA by Yukon first nations, Canada and Yukon. This means that chapter 12 and its objectives inform the development of the act and its regulations, but chapter 12 does not comprehensively define the structure, function, and powers of the YESAA process. The parties defined the YESAA process in government-to-government negotiations during the development of YESAA. The agreements reached in those discussions can't be changed unilaterally under the constitutional structure of Canada. We assert that the federal government does not have this legal authority.

Second, YESAA originates from and is rooted in our land claim agreements. It manages the use and the development of lands, waters, and resources in Yukon. As a result, implementation of YESAA may affect the exercise of aboriginal treaty rights. In this case, the crown has not acted in accordance with its constitutional duties owed to Yukon first nations. The crown has breached its duties to work with Yukon first nations and take steps to accommodate our concerns. The crown has not acted honourably or fairly. The crown has breached its constitutional duty to act in the honour of the crown. The crown's proposed amendments would serve to infringe on our aboriginal treaty rights, including the rights for independent assessment of projects, or the right for comprehensive reviews for projects in accordance with chapter 12. Canada's proposed amendments would adversely affect the integrity, independence, and effectiveness of the YESAA process.

Despite the concerns raised by Yukon first nations, federal government officials have not engaged in any discussion in good faith with Yukon first nations to address our concerns related to the four proposed amendments. We worked together collaboratively to draft the act and regulations. We need to do the same on any amendments.

For example, in April 2014, Canada specifically requested our input into the suitability of the proposed timelines. We provided written responses opposing the concept of beginning-to-end timelines, and also provided rationales for why the proposed timelines were too short. In May 2014, Canada decided to further shorten the timelines for all assessments, exactly the opposite of what first nations had recommended. Canada was unable to provide a rationale for why it not only failed to accommodate our concerns, but in fact took action in the opposite direction. The federal government would breach its constitutional duty to uphold the honour of the crown if it proceeded unilaterally with the proposed four amendments that do not arise from the collaborative five-year review.

Let's set the record straight. We have listened to the debate in the House of Commons, to the statements made by the ministers responsible, to our own member of Parliament, and to the premier. We are frustrated by the lack of understanding and respect to our treaties shown by them. We need to correct some of that record.

Fact: unlike the processes used for developing YESAA and completing the five-year review, the Government of Canada has not used a collaborative approach to developing the proposed changes to YESAA. In fact, twice we were promised that a joint working group would be established to provide departmental officials with the required information for the development of legislative drafting instructions. It is a fact that a working group was never established, and we were never asked to provide input on the development of drafting instructions for the four amendments.

Fact: the court has been clear that the context of the treaty must be given a large, liberal, and contextual interpretation of the goal of reconciliation. We actually support many of the amendments in Bill S-6, which clearly came from the collaborative five-year review. We do not support Bill S-6 unless the four problematic amendments introduced unilaterally by Canada are removed. In committee discussions on March 24, Mr. Ryan Leef stated that when he met with first nations directly, we stated that we supported “98% of the legislation”. We have never made such a statement.

Fact: contrary to the assertions of Aboriginal Affairs and Northern Development Canada, none of the four amendments was part of the original draft bill that Canada shared with the first nations in June 2013. We did not see these proposals until late February 2014. Canada and Yukon had many opportunities to raise the concepts of policy direction, delegation of powers and timelines, and exemptions for renewals and amendments during the collaborative five-year review, but they never raised the issues at all. When YESAA was developed, it was to replace the Canadian Environmental Assessment Act in Yukon with a made-in-Yukon approach that addressed the treaty requirements. The objective of maintaining a distinct regime defined by our treaties must be paramount over any unilateral objective to harmonize across the north and throughout Canada.

Thank you for the opportunity for us to speak here today to correct some of the information and inaccuracies.

[Grand Chief Ruth Massie, Grand Chief, Council of Yukon First Nations]

Good morning. My name is Ruth Massie. I'm the grand chief of the Council of Yukon First Nations.

Thank you for the opportunity to present our views on Bill S-6 to the standing committee, and thank you for your willingness to travel to Yukon to hear all of us.

All Yukoners and interested parties should have the opportunity to make submissions to this committee. This committee owes it to Yukoners, given the importance of the proposed legislation.

You will hear from a number of Yukon first nations today, including many self-governing first nations with constitutionally protected land claim and self-government agreements. These agreements recognize their authority as governments.

CYFN and all 11 self-governing first nations are unanimously opposed to four provisions that are part of Bill S-6. We also unanimously recognize the importance of having a YESAA process that will promote sustainable economic and community development.

As part of that, we also need certainty that projects will not compromise our rights and interests. As currently drafted, Bill S-6 does not achieve this balance. In fact, the discussion and concerns about these amendments have already brought a level of uncertainty within industry that never arose during the YESAA five-year review.

During this review, all levels of government—federal, first nations, and Yukon—worked together in accordance with our treaties to improve YESAA. Bill S-6 has two types of amendments, those that came before the five-year review and those that Canada introduced unilaterally.

The changes that come from the five-year review represent a compromise that was developed through many hours of discussion. In some cases the changes do not represent our preferred approach, but we continue to support the amendments because we reached a common understanding with Canada and Yukon, and we honour that agreement. The amendments we oppose were introduced unilaterally by the Government of Canada after the federal minister terminated the five-year review discussions. Some of these were proposed to Canada by Yukon. Neither Canada nor Yukon ever raised these issues for discussion during the five-year review. If they were so important, why were they not raised?

I'm going to summarize our opposition to the four proposed amendments and describe the changes we are requesting that the committee recommend and that the House of Commons approve.

Because the government failed to meet its constitutional and common law duties to consult and accommodate, and to date has not met the requirements of the honour of the crown, we strongly urge this committee to address our requests in your report to the House of Commons to implement those recommendations.

We oppose giving the minister full power to issue binding policy direction to the YESAB as proposed in clause 34 of Bill S-6. We request that the committee recommend that clause 34 be removed.

On delegation of powers, we oppose giving the minister the power to delegate his powers, duties, or functions to the Yukon government minister as proposed in clause 2 of Bill S-6. We request that the committee recommend that clause 2 be amended by deleting the proposed section 6.1 wording.

On timelines, we oppose the establishment of beginning-to-end timelines for assessments conducted under YESAA.

On exemption from assessment for project renewals and amendments, we oppose the proposed exemption from assessment for renewals and amendments of licences and permits as proposed in clause 14 of Bill S-6. We request that the committee recommend that clause 14 be removed.

CYFN and Yukon first nations spent 20 years negotiating these agreements that achieve the objective of collaboration and partnership. We will not stand by while Canada chips away at our agreements.

On December 1 in the House of Commons, Minister Valcourt encouraged us to use the courts to address our concerns stating, “If the first nations claim that we have failed in our duty to consult, the court will determine the issue, and they are welcome to use the courts.”

It is not our preference to commence court action to address our concerns. In addition to being costly and protracted, court action would damage relationships among the parties and damage economic development in Yukon in our future. Our preference is reconciliation.

The federal government's approach on Bill S-6 is a roadblock to reconciliation. Participants in mining, tourism, and other industries are concerned about how Bill S-6 might adversely affect the future for resource development in Yukon. They have echoed our call to the federal government to work with us to find solutions to the concerns we have raised.

Thank you for the opportunity to speak to the committee.

[Darrell Pasloski]

The first part of the answer to that question is that there was a mandated five-year review. That began in 2008 and concluded in 2012. Through that process there were 76 recommendations. There was unanimous support for 73 of the 76 recommendations, which is truly outstanding. There was no agreement that there had to be agreement on all of the recommendations, but that's a pretty outstanding number.

There was then the review request by Canada as part of their action plan to review northern regulatory regimes. I think what's important to what you're saying is that I disagree about the erosion that you say first nations believe could occur. There's a very important part of YESAA that is not in Bill S-6, because there are no amendments to that part of the act. I am talking about section 4 of YESAA, which clearly states:

In the event of an inconsistency or conflict between a final agreement and this Act, the agreement prevails to the extent of the inconsistency or conflict.

I believe there is no infringement on all the rights, and that—

[Darrell Pasloski]

That's it exactly. This is federal legislation. What I am encouraging and what I've said is that we support this legislation going forward, but I think there's work we can do in the territory.

As leaders in this territory, we've done it in the past. I use the oil and gas accord and the devolution transfer agreement as examples of how Yukon leaders have sat down and found a way forward based on that legislation. I believe there is the opportunity now for leaders to sit down and find out how, on the ground, we can implement these amendments that would go forward with Bill S-6.

[Scott Kent]

Absolutely.

Just so we can get to questions, to close that out then, if you turn to page 6 in that report, two of the recommendations are reflected in Bill S-6. These are on the adequacy review timelines for YESAA and the Yukon Water Board, as well as on YESAA reassessment process clarity.

I'll conclude my remarks with that and welcome questions from members of the committee.

[Scott Kent, Minister of Energy, Mines and Resources, Government of Yukon]

Thank you very much, Mr. Chair.

I too would like to thank the committee for travelling north to Yukon today to hear the concerns of Yukoners with respect to Bill S-6.

The YESAB has some personal connections for me. I was one of the original board members. I actually sat on the executive committee from 2004 to 2007 with, among others, Chief Sidney of the Teslin Tlingit Council, who I understand will appear before you later on this morning.

This legislation is certainly about more than just mining projects, although those get an awful lot of headlines and traction here in the territory. Energy projects, agriculture, forestry, transportation, oil and gas, essentially anything that requires a licence or a permit has to go through the environmental assessment process. I understand that about 220 projects per year are assessed by the board so far at two of the levels: the designated office evaluation and the executive committee screening. We've yet to see a panel review in the territory, but for the most part, the majority get done at that designated office evaluation level.

When it came into effect in the early years, YESAA was widely regarded as one of the most progressive pieces of environmental assessment legislation and process in the country, and a lot of that is owed to the timelines and the certainty that it brought. In more recent years though, the reputation has slipped somewhat, and I think there is an opportunity for us to address the licensing and assessment of these projects in the territory through some of the amendments that are proposed here in Bill S-6 as well as through some of the work the Yukon government is doing with respect to water licensing and the quartz mine licensing.

One of the documents we provided to the committee is the 2013 report of the Yukon Minerals Advisory Board. This is a board of individuals appointed by the Yukon government and involved in the mining industry. They produce an annual report, which we table in the Yukon Legislative Assembly. I'd like to read into the record the conclusion of their report, from the second paragraph on page 7:

In 2013 however, as reflected in this report, YMAB chose to focus on what industry has determined is the key issue negatively impacting the industry; the deterioration in the efficiency and reliability of the assessment and licensing of mining projects in the territory.

It goes on to say:

The system has become more costly, cumbersome and protracted and the Yukon’s mineral industry is developing an increasingly negative image as an attractive investment destination.

It goes on to conclude that paragraph:

There is a clear urgency for the Government of Yukon to act.