Indigenous and Northern Affairs Committee on March 30th, 2015

[Dennis Bevington, NDP, Northwest Territories, NT]

No. This is about unilateral direction from the Minister of Aboriginal Affairs to—

[The Chair, Conservative, Blake Richards]

We'll have to stop it there, because we can't get into a two-way conversation after the time has expired.

We'll move now to Mr. Leef.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair.

Thank you to each of you for your comments.

Mr. Morrison, I appreciate your references to the cumulative effects. We've certainly been positioning the cumulative effects angle as a value piece in this bill, because it's providing additional environmental protection and preservation over the course of time. But you did highlight that some of that needs to be defined in a clearer fashion.

Would you anticipate, then, that this is something that YESAA itself would seize itself with in consultation with key stakeholders, first nations and industry, around how you go about setting out what cumulative effects can look like so that you can determine what could potentially happen five years down the road?

[David Morrison]

Thanks, Mr. Leef.

Yes, I think that's certainly a logical possibility of how it could be clarified. To me, the clarification needs to provide two benefits, if you will. It gives the benefit to the proponent that they know what the clear definition is of cumulative effects and what the expectation is when they are preparing a YESAB application. It also then, on the other side of the coin, gives that same clarity to assessors so that, to speak to where Stuart might get frustrated, everybody's playing on the same level playing field. Both sides of the equation understand what the cumulative effects are that need to be considered, and then how they are to be assessed.

I think YESAA, in consultation with stakeholders, could easily do that.

[Ryan Leef, Conservative, Yukon, YT]

Thank you for that comment.

Mr. Schmidt, thank you for your testimony. Anecdotally, you've provided some really tangible examples from your experience of where delays can occur at the district office level. You mentioned that you think somebody should be able to provide policy to the district office, as well as to the board, to ensure consistency in the application. Of course, in part this binding policy piece from the federal minister to the board is designed to provide that consistent application of policy. The one thing I think has gotten the message out a little bit, which does warrant clear communication, is that the binding policy direction envisioned by Bill S-6 with respect to the federal minister's role is not allowed to interfere with any project currently under way or completed. What you're talking about, what is envisioned, is really an administrative type of thing.

Can you speak to whether, if administrative consistency and policy direction were provided at the district office level, that would in turn benefit your ability to work, and, indeed, your ability to adhere to the environmental and socio-economic preservation that we demand in this territory under YESAA?

[Stuart Schmidt]

I'm not sure I understand your question 100%, but whether I do or not, I have a lot of comments.

Going back to the local designated offices, I believe someone needs to be able to give them direction. Right now, as a politician, you're given direction every four years. As a board member of the main YESAA board, you're given direction every four years, because otherwise you won't be reappointed. First nations won't appoint one of their appointees or the federal government won't reappoint one of their appointees if they're not doing their job properly. But at the designated office level, once you're hired, you're just there. You might have personal biases for or against the industry. You can have all kinds of viewpoints that colour the way you do things and the number of questions you ask and what you consider adequate or not. Someone, somewhere, or some government or governments should be able to give some sort of direction to the designated offices to maintain consistency among offices and to maintain fairness.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

Really at the heart of this legislation, YESAA and Bill S-6, is to ensure that we maintain our environmental integrity in this territory and that we maintain our socio-economic responsibilities with that. Those two things involve some very different measures, but both are equally important.

Can you perhaps describe, say, from an industry point of view, how committed to ensuring environmental integrity the people you work with in the placer mining industry are? Do you have examples of that? Also, how committed are you to making sure you participate in the socio-economic responsibilities we all have in our regions and in the territory?

[Stuart Schmidt]

Okay.

The placer industry, itself, as I mentioned earlier, is very different from other industries up here or in different areas of the mining field, as we don't use chemicals or don't create acid rock drainage or anything like that. Most of the people live on the land. They are out there for more months of the year than they are anywhere else, whether it be in town or outside, as we say up here in Yukon. You do get quite fond of the environment you live in. It's your home. A placer mine is really a home for eight months of the year. Families are there and everyone's there. We find ourselves in the situation of trying to prove that we're concerned about the environment, but we are, of course, concerned about the environment that we live in, just as any other Canadian should be. Where you live is where you live.

We think we're not hurting the environment. Finally, out of frustration from the concerns with YESAB and other regulatory bodies, I hired a biologist for a year to spend some months in the mining field. She would get up at three o'clock in the morning and be out in the field, because we have the long daylight, of course. Then you have the birds and everything out, and the bears and the moose are out very early in the morning, so if you get out there at 10 o'clock, you're too late. She spent months going out in the field at three o'clock every morning cataloguing wildlife and the use of ponds and mined-out areas by wildlife, and comparing it to that in the pre-mined areas.

[The Chair, Conservative, Blake Richards]

I'll ask you to sum up very quickly.

[Stuart Schmidt]

Okay. What she found was that, in many respects, the post-mined areas, the areas after mining, were more productive, with more biological diversity than the pre-mined areas. That's not to say that pre-mined areas aren't valuable too, or that unmined areas aren't valuable too. The whole countryside is valuable, but this is to illustrate that we're not destroying the environment irrevocably.

[The Chair, Conservative, Blake Richards]

Thank you.

We'll move now to Ms. Jones.

[Yvonne Jones, Liberal, Labrador, NL]

Thank you very much, Mr. Chair.

Thank you for your presentations today.

I have a statement that I want to put on the record before I get into my questions. It's from an earlier debate as to whether we throw out the four contentious recommendations that are in this bill or leave them. I think there is an opportunity to sort through those recommendations to the satisfaction of the three levels of government and the parties involved. I want to point out that in the presentations this morning Grand Chief Massie did say in her presentation that their “preference is reconciliation”, and that it would be the process they would prefer to undertake.

I also have a quote from Chief Fairclough. He says that concerns were raised by Yukon first nations to federal officials and that they “have not engaged in...discussion in good faith with Yukon first nations to address our concerns”. They are obviously wanting to do that. There is a desire to do that.

The other quote I would give you is from Chief Bill, who also outlined that first nations “have negotiated their final agreements...on a relationship based on respect, honesty, and trust” and who asks why Bill S-6 is allowed to work “outside of those principles”, when that “creates and fuels animosity for all Yukoners”.

I wanted to put that on the record simply because I have sensed, in listening to the presentations today, a tremendous willingness to work towards a consensus and a collaborative relationship here to define the terms and principles of the bill in a way that all levels of government can relate to. I just wanted to outline that.

My question is first of all to you, Mr. Morrison. I was interested to hear that in your experience in the last 10 years in dealing with YESAA you have seen changes for the best. Through practice, I'm assuming, through using the process, all parties have been able to define better understanding and better ways to move forward. For a lot of the things that we're dealing with today, especially timelines, do you feel that they can be resolved and worked out through dialogue within the YESAA process and do not have to be legislated by the Parliament of Canada?

[David Morrison]

Thank you.

Let me answer the last part of your question first, and then come back at it. I think a lot of things can be worked out. As your preamble statement indicated, I think, there's a willingness here from people to make sure that this process works for everybody going forward. I think I said that as well.

It's not for me to tell governments—the three governments—what should be in legislation, what should be in regulations, and what should be in the operations manual of an assessment organization such as YESAB. As I indicated to Mr. Leef, I think YESAA could in fact figure out what clarity definition is required around “cumulative effects”, and that was the basis of my comment previously.

From the starting days to now, I think YESAB has itself found ways to improve its operations in different areas, such as just getting experience with ex-com submissions, if you want to talk about that. When you go from doing none to one, that's a big leap. When you go from one to three, that's another big leap. But when you get to five, you're starting to get your legs under you and it enables an organization like that to fine-tune it.

But as for what should be in legislation and what should be in rules, I'm not qualified to comment about that. Timelines I think are necessary. From my perspective, how you resolve that issue is really left to the governments that are involved in this process.

[Yvonne Jones, Liberal, Labrador, NL]

If I may, I'd be interested in having your view on the other pieces. One, of course, is with regard to the timelines and how adaptable we are in ironing out our own problems without having everything legislated.

When you go forward to YESAB—we're discussing mining right now—isn't the other piece that it's only one part of the process in permitting and licensing for a mining operation? Maybe Mr. Schmidt could answer this as well. Aren't there other processes through the Yukon government and through other entities that would all be compiled to make up that particular timeframe for the company to get from point A to point Z?

[David Morrison]

Well, I'll give you a very brief comment. In addition to going through an assessment process—I'll use the Mayo B hydro project as an example—we would go through a public utility board hearing. We went through a water board hearing. I don't know how many permits we would have had to get to do that work, but it would have been in the tens of numbers.

The regulatory processes overlay and come after that, over and above what the YESAB process does. That's a whole other subject in terms of how complicated the system can be. I know that we're only talking about YESAB today, but the system has a full regulatory piece on top of the assessment, and it can be very complicated.

[The Chair, Conservative, Blake Richards]

Stuart, if you can make it brief, it would be appreciated.

[Stuart Schmidt]

I shall try.

Absolutely, YESAB is the first part. Then there's the decision document from the Department of Energy, Mines and Resources. Then there's the water board. From our perspective, YESAB is the one that potentially takes the longest and can be the most difficult path to go down. The results of the YESAB assessment and recommendations highly colour what your decision document will be and what the water board licence and the land use permit will look like. It's a very time-consuming part of the process, and it's a very critical part of the process right now.

[The Chair, Conservative, Blake Richards]

Thank you.

We'll move now to Mr. Strahl.

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

Thank you very much.

I want to focus on and get a little more information about the designated offices. This is something that's come up in the last couple of panels.

I've certainly heard your frustration on how one designated office may have a completely different interpretation of the rules and regulations and may request completely different things from one proponent than another would. Have you experienced that?

The previous panel said that certainly if you ask the mining companies they'll say that they have definite preferences as to which designated office sees their file. Similarly, do you find that variation? If so, what does that inconsistency cost your companies? How does that negatively affect your ability to do business in the territory?

[Stuart Schmidt]

Well, part of the problem we're facing is that some designated offices don't understand as well as others do the regulations that regulate placer mining. Some designated offices therefore don't understand the regulations we've been operating under in the past. They might recommend things and advise things to government that are either redundant or just outside the regulatory framework.

What's happened is that this has resulted in some mines not opening. One particular mine that I'm thinking of applied for their water licence well over a year ago. It was a licence renewal. They'd been operating for nine years. They had been operating, at the time of their application, eight and a half years, so they applied well before their licence was due to expire. Surprise: they got a whole bunch of recommendations that....

First of all, in seeking views and everything—it was an adequacy period, to begin with—they got a whole bunch of leading questions, leading them to have to do a whole bunch of environmental studies that they were very nervous about doing and didn't know where to begin. The long and short of it is that they shut down their mining operation for a year. This is a sizable operation, employing probably 15 or 20 people, carrying a debt load and everything. Last fall they decided they couldn't do their fall stripping, which meant they couldn't do their 2015 mining, because they didn't know whether they'd get a water licence, or get one that allowed them to work economically. That was all based on YESAB.

I mean, the only reason they were worried about what their water licence would look like was that it would depend on what the YESAB document would look like and what the decision document would look like. Now, finally, at this late date, they got their decision document. It isn't a very nice one, because it reflects YESAB recommendations. They're definitely not going to be mining this year, because they didn't do their fall stripping and their preparation work. Really, mining takes years of planning ahead, because of the permafrost and everything, to be able to do it in an economical fashion.

They're out of business for a year. This represents three families. It's one family with kids who are married and have children and everything like that. They're well known to people in Yukon. They're very responsible miners. They're very well educated. The proponents are super good at going through the system and everything like that, and here they've been derailed from their mining operation for a year. I also know of others like this.

To us, it appears to be all of sudden changing the rules of the game in midstream, right? It's a bit of a crapshoot in terms of what designated office you get and what they might come up with.

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

We've heard certainly opposition, from the opposition and others today, to the solution to that being policy direction from the federal minister. Do you see another way forward to getting that kind of consistency outside of policy direction? What is the solution? If we've identified a problem, and the solution that has been proposed is being rejected by some, is there another solution to that?

To me, shutting a mine for two years is not good enough. We need to improve that.

[Stuart Schmidt]

There are a couple of things. First, we have to admit that all people can make mistakes, so people in a designated office can make mistakes too. There has to some way for people, maybe at the main YESAB board in Whitehorse, to be able to look at a designated office decision and say, “Hold it, guys. You messed up. You didn't really know what you were doing here. We'd like to correct that.” It would be great if something like that could happen.

In my ideal world, probably because I believe in local control of things and I think this whole idea of designated offices is about local control, I would have the people who work in the designated office elected every four or six years, just like city council is elected for a small community. They would truly represent the people locally. At least go through some kind of review process with the main YESAB board every four to six years to review what they've been doing and how they've been doing it. Somehow we need to get more responsibility and local control, perhaps, in this idea.

I don't know; I'm not an authority on this.

[The Chair, Conservative, Blake Richards]

Thank you.

We'll move now to Ms. Hughes.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Thank you very much.

I do want to add some things to the record, Mr. Chair.

First of all, with the comments made by Mr. Leef earlier about the first nations saying that they weren't prepared to negotiate or had asked to be part of the conversation on the four amendments to see if there could be consensus, I'd like to refer you to a letter from the Teslin Tlingit Council, dated March 17. They state that they “...remain committed to resolving these conflicts with Canada outside of the courtroom. Canada must provide us with the opportunity to do that by withdrawing Bill S-6 and by directing Canada's officials to work with our officials to find remedies that do not conflict with the Teslin Tlingit final agreement.” Furthermore, in a letter on June 24 the TTC indicates that “Canada has the opportunity to make the changes to these proposed amendments that can contribute to a more robust Yukon economy and make the territory a preferred place to invest. We would like to help Canada do that.” They would also like to send a delegation to meet with the Prime Minister. This was a letter to the Prime Minister and to Minister Valcourt.

I also want to read out a letter from the Champagne Aishihik First Nation, as follows:

[English] We have consistently sought meaningful engagement to negotiate these matters but Canada has yet to demonstrate it will give full and fair consideration of the views of Yukon First Nations. We continue to be stonewalled with clear signals that these amendments are not up for negotiation.

They go on to say the following:

Nonetheless, we have offered practical solutions to these concepts that do not necessitate legislative action but could be addressed by other means, and in some cases, point back to the better thought out solutions already agreed to under the Five Year Review. To date, we have been incredibly frustrated that our reasonable requests and observations have been treated with little, to no, regard.

That letter is dated March 26, 2015.

I also want to put into the record a letter that we received. Dated March 26, it was actually sent to the clerk for the committee here. It's from the Yukoners Concerned group. It states:

[English] I have lived in Yukon for 30 years surrounded by the most resilient, innovative and progressive people. We worked together in good faith to create the YESSA Act. The First Nations of the Yukon are part of the land, part of the water and we all have a duty to our ancestors to protect it for all our children's sake. I and many other Yukon people stand behind the Yukon First Nations opposition to the Bill S-6. We are not going back to colonial rule, we are fed up with our First Nation friends and neighbours having to go to court to protect our rights. There is no going back when we all have had the taste of the promise of self-governance.

I just thought it was important to put this on the record.

One thing we also have to recognize is that when Yukon land claims and self-government legislation was going through Parliament in June of 1984, the Reform-slash-Conservative Parliament voted against it, including Minister John Duncan and actually our colleague Mr. Strahl's father. This is what actually gave effect to these agreements that we're talking about today.

I'm just wondering if this is where the government is trying to go and if they're trying to chisel away at what is before them just because they didn't like it way back then. We have to keep in mind that in 1974, the unelected Conservative Senator Lang was one who was actually against this as well. We have to remain concerned about why we are where we are today.

I don't know if I have any time left, Mr. Chair.

[The Chair, Conservative, Blake Richards]

You still have a little over two minutes.