Indigenous and Northern Affairs Committee on Dec. 8th, 2009

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

It would seem that resources need to be put into land use planning to make sure that component is completed--

[Ian D. Robertson]

Absolutely.

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

--and that's certainly lagging.

I think Mr. Mills has a comment.

[Ken McKinnon]

I have just one added comment on Stephen's comment on the Carmacks-Stewart transmission line. You see, there were three governments involved in the assessment: Little Salmon Carmacks, because they have a settled land claim or a decision body and acts as a government; Selkirk First Nations, because they have a first nation government and act as a decision body; and then the YG acts as a decision body.

So technically speaking, if each government had decided to do its own assessment process, there would have been three separate assessments instead of the one single assessment that comes under YESAA. That's the beauty of the project, of the YESAA legislation, and that's why we are able to meet those strict guidelines, with the cooperation of all the governments.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. McKinnon and Ms. Crowder.

Now we'll go to Mr. Rickford for seven minutes.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Thank you to the witnesses for coming down here to Ottawa.

It's nice to see you again, Stephen. I appreciated your interventions in Whitehorse. I want to develop that conversation a little bit more today.

I also want to commend the work YESAB has done. I concur with Mr. Lemay, who said that this is an important process and board that has, in my view, the potential to be a frame of reference for other jurisdictions. Maybe I'll try to flesh some of this out in terms of how we can export that.

I'd just like to drill down on some of the process matters.

Stephen, you mentioned that YESAB had replaced several formal and informal processes. Can you, very briefly, highlight what specific strategies you used to get them on board and whether there was one group--informal versus formal, let's say--that was more difficult than another?

[Stephen Mills]

I think the heavy lifting was done by the negotiators of the Umbrella Final Agreement. We did some of the light lifting, which took a long time after that.

Basically, the federal government had the EARPGO guidelines. Also, the CEAA process was in place for a number of years. But you have to remember that CEAA only applied in cases of federal lands or where there was a federal trigger. A lot of Yukon government land, or what we would call commission lands, was not covered off. They had an informal, non-legislated assessment process.

In 1995, when the final agreements started coming in, you had four first nations that had to assess projects with no assessment regime. You had the Yukon government, with their own informal process. They had what they called the Yukon Environmental Assessment Act and we had CEAA operating, so there was quite a bit of uncertainty.

I think the benefit of YESAA, as Ken McKinnon said, is that it brought them all under one umbrella. CEAA still is not totally out of the Yukon. There is still some authority that rests with the Minister of the Environment to deal with such things as transboundary projects or others.

[Greg Rickford, Conservative, Kenora, ON]

Okay.

I'm interested in the five-year review. Is it anticipated that there will be another five-year review? Are these the timelines?

[Stephen Mills]

The only thing I can say on the five-year review is that it's not our review. It's a review by the three parties: Canada, the first nations, and the territorial government.

[Greg Rickford, Conservative, Kenora, ON]

You seem to suggest, Stephen, that it was a particularly useful process. It was a time to build on some of the strengths and to identify some of the weaknesses, if that's the right word. You gave some specific examples in terms of sector-specific processes and coming to the process initially with more information that dealt with this sector-specific application.

But you identified, in terms of barriers, that there is still a lack of awareness and understanding among some groups that would come to this process. What are you doing to facilitate that? Can you talk briefly about that?

[Stephen Mills]

I can. There are two reviews happening. One is a very formal review under the Umbrella Final Agreement. It's a five-year review of the entire YESAA process, including the legislation, the regulations, how we're performing, and how each first nation and all the other governments are performing.

There's that review, but we've also undertaken our own review at a specific level at designated offices. How can we improve how we conduct assessments under the existing legislation? Some of the comments we're getting feed into both processes.

First nations were concerned about their input. We agreed with them that, yes, we could improve. So when we strike technical committees, we automatically ensure that first nations are part of these technical committees. We bring them in. That's an example.

Also, industry was very concerned about some of the application forms. They said they weren't useful and that an application form designed for each sector would work better. We've adopted that.

Some of the things you will see from that five-year review are just policy changes. On others, we're actually implementing changes to our rules to try to improve the process, because we don't know what the results of that five-year review will be.

[Greg Rickford, Conservative, Kenora, ON]

I just want to move quickly through some topics here. You mentioned an issue around Transport Canada. You were concerned that they were participating at the end. I think, as you say, that probably doesn't do it justice, but it does add risk to a specific project and a lack of certainty.

You said you felt that CanNor could help this process, if I understood you correctly. Are you suggesting that they can be an effective conduit to counsel and advise Transport Canada on whether they should be involved earlier on at specific or strategic parts of the process, and/or are you suggesting that Transport Canada just be involved in other parts of the process? Can you clarify that?

[Stephen Mills]

I think there are two things. Transport Canada will not participate until there's an application later to them. That doesn't occur until after the assessments are completed. So we may be assessing a project and not considering what Transport Canada needs to go ahead. That's a definite problem.

As for the second part of the question on Transport Canada, sorry...?

[Greg Rickford, Conservative, Kenora, ON]

It's just the role of CanNor, very briefly, if you could.

[Stephen Mills]

Oh, sorry. The northern major projects office is different from the major projects office south of 60. We met with them and said that the biggest issue in the Yukon is not the big projects; it's any project where there's uncertainty around the regulators.

[Greg Rickford, Conservative, Kenora, ON]

Okay.

[Stephen Mills]

We've asked them to consider coordinating the federal roles, with Transport Canada and NRCan, for example, and ensuring that they have more timely input into assessments, no matter if it's a little project or a big project. We think that is a really good role for that entity that's being established under CanNor.

Let's be careful how we talk about major projects, because there are only a few major projects in the Yukon, but issues around assessment happen in small or large projects. It's depends more on who the regulators are.

[Greg Rickford, Conservative, Kenora, ON]

Thank you.

Mr. Robertson, I just have two quick questions. You mentioned overlap with the first nations and the Yukon Land Use Planning Council. Are there any dispute mechanisms in place to deal with disagreements as they occur? Can you provide any examples for the committee that--

[The Chair, Conservative, Bruce Stanton]

We'll have to leave it at that, Mr. Rickford. You have one of those two questions out. We'll let the answer come and then we'll go to the next speaker.

Go ahead.

[Ian D. Robertson]

Yes, there is. Essentially what it requires is for the two first nations governments to get together. They have managed to resolve it in several cases. The appeal would not have not gone ahead if the various first nations could not have reached agreement on that point.

Most recently, the Vuntut Gwitchin and the Tr'ondëk Hwëch'in had an overlap issue. The point we were trying to get them to accept, which in the end both parties did, was that from a planning perspective it really didn't matter that there was an overlap, as long as they agreed to work within it.

[The Chair, Conservative, Bruce Stanton]

Very well. Thank you, Mr. Rickford.

Thank you, witnesses.

We'll now go to our second round and I think we will have sufficient time to get through the second round of questions. These rounds are five minutes now, for both the question and the answer.

We'll begin with Mr. Russell for five minutes.

Go ahead.

[Todd Russell, Liberal, Labrador, NL]

Thank you very much.

It's good to see you again, Mr. Mills.

I want to welcome our other two witnesses.

I come from the great Labrador riding. I just want to make that very clear.

[Voices]

Oh, oh!

[Todd Russell, Liberal, Labrador, NL]

How do you deal with claimant groups that do not have a settled land claim? Are they treated as just another Yukoner or Canadian for the purposes of involvement in the environmental assessment process or is there some special way you deal with that?

Because there are asserted claims that haven't been dealt with, as I understand it, or finalized. Would that not impact the nature of the negotiations, their land selections, and things of this nature?

For a group that hasn't had a settled land claim, Mr. Robertson, they would not be included in the land use planning process other than as regular Yukoners as well. Is that the way it is? I'm just trying for clarification. I'm using some words, but I'd like to have some clarification on that.

[Stephen Mills]

The first nations in the Yukon that do not have settled agreements are still caught in the definition of a first nation under YESAA. Our legislation says we must provide guaranteed opportunities for first nations and so on. When it comes to the assessment process, we do not treat a “settled” first nation any differently from the way we treat an “unsettled” first nation. They all provide input. We invite them to technical committees. We go out and meet in their communities on projects and everything else.

The difference is in where the recommendations go. Those first nations that do not have final agreements are not a decision body under our legislation. Also, there are legal issues around the right of Canada or the Yukon to issue permits on unsettled areas. It's not an issue for us to deal with. We simply assess a project as the project is, recommend mitigation, and issue the recommendations.