Indigenous and Northern Affairs Committee on March 24th, 2015

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

You raise a valid point that seems often to be forgotten. The Umbrella Final Agreement is protected by section 35 of the Constitution Act. This is a constitutionally protected document. That's why I say the Umbrella Final Agreement is the law of the land in the Yukon. Furthermore, when you look at each final agreement with these first nations, again, they are protected by the Umbrella Final Agreement. The legislation also says that this is protected. In the act itself, YESAA, if you look at section 4, as I just mentioned, nothing in this bill can derogate from the rights of first nations, or anybody, that are guaranteed under the Umbrella Final Agreement.

I think that the protection is there. I'm trying to find out why a government would try to derogate from these rights. This is enabling legislation. It enables the environmental assessment of projects in the Yukon in full respect of the obligations we owe, that we have, towards first nations. Just as a last point, I make sure before introducing a bill that it is fully in compliance with our legal obligations and the honour of the crown. That's what we owe to first nations in this country, and it has been done for Bill S-6.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Minister.

The fourth and final point—I think I've touched on the other three areas of concern—is around serious harm and adequacy reviews. I'm just wondering if you can touch on how Bill S-6, or at least the makeup of the YESAB executive committee and the board structure, will allow Yukon first nations to trigger reviews or assessments on their traditional territory and in areas of their jurisdiction and concern when they feel it necessary.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Here, again, these are not affected by these amendments. These processes and these rights are still all there. When we talk about reviews, if at any time there is a need for a review of provisions of the bill, they can be proceeded with. The government cannot commit to have legislated periodic reviews in the act because our position remains that a review of the legislation can be initiated at any time as appropriate.

[Ryan Leef, Conservative, Yukon, YT]

Yes, fair enough, and that's a good point. I'm sorry. I probably wasn't very clear, but that's a good point you're making in terms of the legislative review process. Parliament can seize itself with reviewing legislation when it's deemed appropriate.

I was talking more about how the executive committee and the YESA board itself have guaranteed numbers of Yukon first nation representation, and with that executive committee and the board, they can also in this legislation trigger reviews. For the adequacy review and serious harm piece that they've raised concerns about, they can trigger reviews under this legislation where they deem it necessary. Despite any provision in Bill S-6 that allows serious harm to not be reflected on, reviews can still be triggered under this legislation.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Yes, absolutely. You see, this is not affected at all. The triggers remain the same. As you know, or may know, after Bill S-6 is passed we have to review the regulations, which again is going to be an undertaking where there will be full consultation with first nations and all stakeholders to ensure that the regulations are in line with the proper implementation of the legislative provisions.

[The Chair, Conservative, Blake Richards]

Thank you.

You have about 15 seconds, Mr. Leef, so maybe we'll move on.

I think we have time at this point for another couple of rounds. We'll have one more round for the official opposition, and one more for the government.

We'll move on to you, Mr. Bevington.

[Dennis Bevington, NDP, Northwest Territories, NT]

Thanks, Mr. Chair.

Thank you, Mr. Minister, for meeting with us here today and hearing our point of view and our questions on this bill.

One of the things you've said here gives me a lot of trouble. You've said that these territories are the same and you want to have the same legislation for them, that you want to have a cookie-cutter approach to northern development. It's really not appropriate. I think you should revise your thinking on that. These territories are very different. If you went to New Brunswick and said that you wanted to see the same environmental legislation in New Brunswick as in Prince Edward Island and Nova Scotia, I think you'd have a fight on your hands.

That's what you've created here. You thought that somehow the work you did in the Northwest Territories, much of which was opposed by the people there, is a good reason for why you're now going to come down on the Yukon and take a system that's working and denigrate it by these four amendments, denigrate the system that has been in place, that people agreed to, and that people are working under. Now you're going to put in amendments that were not well accepted in the Northwest Territories. The unilateral binding policy direction that you imposed on the Northwest Territories, the Mackenzie Valley Resource Management Act, was not universally accepted there, not by any means.

When you talk about doing this now in the Yukon to match up to the Northwest Territories, I think you're really just.... That is just a specious argument and you should refrain from it. You should recognize the character of these three territories.

Secondly, on the process you talked about for consultation, what you said to us today negates any consultation. When you say that you went to the first nations with a bill and couldn't give them the bill because it was in a form that was already, under federal rules, not allowed for distribution, you've negated the concept of consultation right there. You've already made up your mind. You've created a bill, so how can you go back and consult with people when you've already created a piece of legislation that you're going to put forward? That's another real problem I see with what you've said here today.

Then you bring out this definition of government that's in your agreement that you have here, and you say that because you define government this way, you can say that the first nations are not governments in the Yukon. No, there is a higher authority here and it's called the Constitution. You have to recognize that as well. We have given first nations rights under the Constitution and they must be respected.

On these three points, I think you've negated much of what you came here to try to accomplish in front of us. I think you should go back and take another look at this legislation. It's not supported by the Yukon people because they're happy with what they have. It's working. They're making their way through a very unique arrangement between first nations and public government that is very important to them.

Even the industry recognizes that. I refer you to a letter from Casino Mining. I refer you to a letter to you from the Tourism Industry Association of the Yukon. These are people who are saying, “Look, stop trying to turn back the clock, stop trying to reassert your paternalistic attitude towards the Yukon, and recognize that we've grown past that.” That's what they're saying to you.

Why are you doing what you're doing? What's the purpose of this, just to create more trouble, to bring us back to the courts like you've done in the Northwest Territories now with the super-board? We have an injunction. Hopefully that injunction will last past the next election and the new government can throw out your legislation. They can throw out that idea of a super-board and bring back what works in the Northwest Territories.

Those are issues that we see, that I see. You've said a lot here today, and I'm just showing you what you've done with what you've said here today.

[The Chair, Conservative, Blake Richards]

Okay. The time has nearly expired—

[Voices]

Oh, oh!

[The Chair, Conservative, Blake Richards]

—unless the minister is very brief.

You have about five seconds.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Back home, we call that a monologue.

[The Chair, Conservative, Blake Richards]

I think that's right.

The last questioner today is Mr. Dreeshen.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much.

Minister, I certainly appreciate your being here today to set the record straight. As we have just heard in the monologue, there are some criticisms that we do hear. One is of course the criticism coming from both the first nations groups and the opposition members that Bill S-6 could infringe upon the rights of Yukon first nations.

However, I've heard you mention, both in the second reading speech we heard, as well as in the discussion on time allocation, and of course here this morning, that Bill S-6 poses absolutely no threat to first nations' rights. I wonder if you could take a few moments to set the record straight on that.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Well, I'd like to repeat this. There is absolutely nothing in Bill S-6 that deviates from the Yukon umbrella agreement or that infringes upon aboriginal or treaty rights. Any suggestion that first nations are some how diminished by this legislation is simply—if I can use the word—false.

In fact, protection for these rights can be found in five legally recognized documents, as I alluded to for the member from the Yukon. These are the Canadian Constitution, in section 35; the Yukon umbrella agreement; the Yukon First Nations Land Claims Settlement Act, an act guaranteeing those rights; the Yukon devolution transfer agreement, also another legislative instrument protecting those rights; and finally, this act itself, Bill S-6 and the Yukon Environmental and Socio-economic Assessment Act.

I would also like to add that several critics have used the argument that although Bill S-6 may not be directly in conflict with the umbrella agreement, it may violate the spirit of the agreement. Well, this too is plainly misleading. I would ask the opposition to turn to the text of the Yukon Environmental and Socio-Economic Assessment Act itself, and to read section 4, which is clear. It states that if—-“if”, okay?—there is “an inconsistency or conflict between a final agreement and this Act, the agreement prevails”. I think we have taken all the steps to ensure and guarantee the protection of those rights. I'm satisfied that this does that.

[Earl Dreeshen, Conservative, Red Deer, AB]

Again, on the point on the assessment processes and taking a look at that, I know that there have also been some allegations that there could be an overhaul of the way in which the environmental assessments are carried out in the Yukon. My understanding is that the bill doesn't make any changes to the fundamental nature of the assessment process but is there simply to provide clarity, certainty, and predictability to proponents, those being both the Yukon government and of course the Yukon first nations alike.

I wonder if you could expand upon that to the committee as to just how that fits in.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Again, it's a good point and that's a good question. You're exactly correct that many people have suggested that Bill S-6 will make significant changes that will undermine the assessment process, but this is simply not the case. I mean, read the bill. For example, I would encourage committee members to look at subsection 47(2) of the Yukon Environmental and Socio-economic Assessment Act. This is the portion of the act that lays out which sorts of projects are assessable under the act.

Mr. Chair, we have made absolutely no changes to this portion of YESAA. All we have done is clarify the existing assessable projects, and in doing so, we have actually ensured that YESAA conforms more closely to the umbrella agreement. Again, paragraph 12.4.1.1 of the umbrella agreement explains that projects and significant changes to existing projects will be subject to the development assessment process. So when you hear the accusations that the issue of significant changes.... It is in the umbrella agreement. A lot of people like to say things and to proclaim things, but there is nothing like the facts to focus the mind.

[The Chair, Conservative, Blake Richards]

That concludes our time for questions today.

Thank you, Mr. Minister, for being here with us.

I will suspend the meeting briefly so that we can clear the room and move in camera for some committee business.

The meeting is suspended.

[Proceedings continue in camera]