Indigenous and Northern Affairs Committee on March 30th, 2015

[Karen Baltgailis]

Well, you can tell that Lewis and I worked together for many years, because he took the words right out of my mouth about a race to the bottom. YESAA is made-in-the-Yukon legislation that is unique in regard to our particular needs. I think it's working really well, and it works better all the time. The YESAA board has been very responsive to the recommendations for changes that came out of the five-year review. I've seen assessments get better and better through the years that I've participated in them.

[The Chair, Conservative, Blake Richards]

Thank you.

We'll move now to Mr. Leef.

[Ryan Leef, Conservative, Yukon, YT]

Thank you very much.

I appreciate everybody's input.

Of course, part of the challenge that we're hearing is that we're seized with this as a committee to weigh things out. On one hand, we have your testimony, Ma'am, where you're talking about YESAA getting better and better, but then we have a YMAB report that talks about the assessments getting worse and worse. We're seized with deciding on whether they are getting better and better or worse and worse. From an industry perspective, they're getting worse and worse; from your perspective, they're getting better and better. That presents an unique challenge for us considering what is actually going on.

On the timeline piece that was brought up, we spoke to the chair of YESAB this morning. She indicated that the average timeframe to complete a review right now is about 57 days, and the timeline is going to move to about 270. That raises a concern, in the sense that what it might do is actually invite greater consultation and more input on a project, and then that would intensify the need for YESAB, or a district office, or the executive council to have the capacity to deal with all the input that's coming in. She felt that there was going have to be some adaptation on YESAB's part to work on that, with in fact the lengthening of the time period.

On one hand, if it's lengthened and we get more input, more feedback, and more stakeholder investment, that should be viewed as a good thing. The capacity and financial piece for YESAB is outside the scope of the bill, but certainly can be addressed by the federal government and the partners involved. Industry has said that the adequacy review right now is being used to conduct the assessment outside of the timelines and that's posing some direct challenges for them.

If YESAB right now is completing these projects in 57 days and then is allowed to extend them to 270 to invite greater stakeholder input, wouldn't that be a good outcome? The chair said that she's not sure that it was the intended outcome, but wouldn't it be viewed a good outcome to have more community engagement and more community input on projects? I think keeping it down to 57 days is great, and if it stretches longer, this provides them the time to provide the broad consultation that everyone is talking about.

Mr. Rifkind?

[Lewis Rifkind]

I'm going to say that it depends.

It depends on the type of project. What I find, when commenting on projects, is that one tends to see the same groups or individuals submitting on, for example, placer mining applications, or within a traditional territory. On extending the timelines on certain types of projects, I don't know if it would get more people or more groups submitting—or shortening it, for that matter.

The vast majority of projects that go through YESAB are quite minor from a development point of view, whether it's small mining operations or small hard rock mineral exploration types of projects. Our concern in regard to the proposed amendment is about when we're talking about big projects, such as, let's say, the Casino mine, which is a hugely complicated project. By starting the clock ticking, we could be in a situation where we have thousands of pages of documents to go through, and if a proper adequacy review isn't done, we're going to be dealing with a case where YESAB could potentially be making decisions with inadequate or incomplete information, because the clock has to tick.

[Ryan Leef, Conservative, Yukon, YT]

Right, and YESAB talked a bit about that this morning in terms of making sure they have a fiduciary duty to do that and achieve that. There are of course provisions in the bill to allow extensions of those time limits to carry on. There is a stopgap measure in place if projects are very complex, such that they can be extended. You're aware of those sections.

[Lewis Rifkind]

Yes. For some of the complicated projects, I would argue that the extensions might not be enough. I'm going to offer an example—

[Ryan Leef, Conservative, Yukon, YT]

They can be indefinite, though.

[Lewis Rifkind]

There are timelines, I believe, where projects eventually expire. Is that not correct?

[Ryan Leef, Conservative, Yukon, YT]

No. The minister can extend those timelines for up to two months on the first additional piece and then they can be extended indefinitely from that point.

[Lewis Rifkind]

That might be a good thing, because if a project goes through without adequate adequacy being done.... If I can refer to the project that was known as the Carmax Copper Mine that went through YESAB with everybody screaming and kicking, it got rejected by the water board because it was deemed that not an adequate enough assessment had been done by YESAB.

The water board was not comfortable with the process, and they killed the project outright. It would have been much better for it to have been completely done at the YESAB stage and to either have been stopped there or have had enough adequacy done so that it was complete by the time it reached the water board. It wasted everybody's time and a huge amount of money. The water board chairman was fuming.

[Ryan Leef, Conservative, Yukon, YT]

That's a fair point—

[The Chair, Conservative, Blake Richards]

We'll have to stop there. That's the time.

We'll move to Ms. Jones.

[Yvonne Jones, Liberal, Labrador, NL]

Thank you all for your presentations.

It seems there are so many questions left to ask and so little time, but you've certainly given us more to think about, and I appreciate that.

I'll just start off by saying I represent an area not unlike the Northwest Territories in eastern Canada and Labrador. I know the importance of development initiatives. I know they always work better when there's full consultation, agreement by all governments, and respect for first nations, and when input from environmental and conservation groups is listened to and acted upon. At the end of the day, doing so saves everyone a lot of grief and a lot of money, especially industry investors, so I understand fully where you're coming from and your concerns today.

I agree that you can't rush complex assessments. We can all cite examples right across the country of environmental and social monitoring and assessment of projects being rushed so that they have lacked some of the information that was required to make good, sound, reasoned decisions. Many of the assessments were deemed to be inadequate in some ways, but projects moved ahead. We've all seen that. We can cite dozens of examples, I'm sure.

We want to make sure that does not happen in the Yukon. I think that is what I've liked about the model that has been in place. I think for the most part we've heard very good feedback about the YESAA process, from all the people I've heard speak about it, with the exception of the Mining Association of Canada, which had some concerns around timelines, which I think could be easily sorted out with some dialogue and discussion.

My question to you would be on two fronts. One, when we talk about significant change, whether it goes forward for an assessment or not, it is not defined within the act that we're dealing with. How do you define it? Has anyone told you what a significant change constitutes? We would not know. We can all guess. That's about all I, as a panellist, can do right now.

The other piece has to do with the independence of the YESAA process. Right now when you look at these changes from an industry perspective or an environmental perspective or a first nations' perspective, you can say either that it works or that it doesn't work, depending on the government of the day. Governments change. Not all governments are going to have the same will and mandate. Some will be pro-development; some will not. Some will be pro-environment; some will not. What I see now is an independent body that deals with those issues outside of what the principles and philosophy of the government of the day are, whether in the Yukon or in Canada.

I'd like you to comment on those two pieces for us, if you could.

[Amber Church]

First regarding your question about “significant change”, it's not defined in the act at the moment. I have to say that the term “significant change” means different things to different people. My definition is probably different from even, say, Lewis's, or the definition of somebody from the Klondike Placer Miners' Association or from that of a citizen pulled off the street. Without a proper definition, it's incredibly hard to comment. We would really welcome knowing what that means, because it's very hard to tell right now.

[Yvonne Jones, Liberal, Labrador, NL]

I hear you.

[Amber Church]

Then to the point on the independent body, I think YESAB has been successful partly because it is independent, and so Yukoners trust it. Let's face it, whatever political party you're in, there are going to be portions of the population that don't trust you. That goes for NGOs as well, and it goes for industry as well. But Yukoners can feel some trust that as an independent body, it is taking it outside of a political context and agendas. If you remove that independence, or even the perception of that independence, you hamper that process and people's faith in it. I think that then destabilizes the relationship further on, because if people can't trust the decisions, that's going to hurt industry more and it's going to hurt the economy more and it's going to hurt the Yukon public more.

[The Chair, Conservative, Blake Richards]

We've reached the time there.

We'll move to Mr. Strahl.

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

Thank you, Mr. Chair.

Mr. Geithner, you mentioned in your opening statement that if one of the parties says there was not adequate consultation, then consultation was not adequate.

To take that to its logical conclusion, do you not envision that test being impossible to meet in some situations when an organization or party that simply didn't want something to proceed could just say consultations were inadequate and, therefore, as you said, that means there wasn't adequate consultation?

In effect, that statement provides a veto to one of the parties in the discussion. Is that what you meant when you said that? I think that would be a very unique position for government to take.

[Felix Geithner]

It would be, for government to take. That's correct. In my position though, I'm looking at both sides. If you look at the Canadian government versus first nations government, part of the discussion here and the final agreement is on whether these agreements are honoured in the process. This is the biggest discussion point involving first nations. I'm just speaking as a third person. That's why the comment was made.

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

I guess I would just say that the duty to consult and accommodate as necessary has never been defined as an open-ended process in which one party can declare that just as a matter of fact they haven't been adequately consulted. A test has to be made there.

I did want to talk more about policy direction, worries about which were raised by everyone. Policy direction, as I understand it, may only be given with respect to the exercise or performance of YESAB's powers, duties, or functions under the act and cannot be used to change the environmental assessment process itself. It cannot impede the board's ability to perform its legal duties, or expand or restrict the powers of the board. Also, because the board is an independent body, policy direction cannot interfere with active or completed reviews. In addition, policy direction cannot improperly fetter the board's ability to exercise discretion when conducting assessments and making recommendations.

We've learned today that all policy directions are subject to certain limitations. First, they're subject to the application of section 4 of the act, which states that first nations final agreements will prevail in the event of an inconsistency or conflict. Therefore, any policy direction issued must be consistent with the Yukon Environmental and Socio-economic Assessment Act, the Umbrella Final Agreement, and the individual land claim agreements.

Further, there are four examples only of when policy direction has been provided. I mentioned these earlier today. All of them have been to protect the rights and interests of first nations requiring that notification be provided to both the Manitoba and Saskatchewan Denesuliné regarding licences and permits in a given region, providing instruction to the board regarding its obligations under the Deh Cho interim measures agreement, and ensuring that the board carries out its functions and responsibilities in cooperation with the Akaitcho Dene First Nations at its pre-screening board. That was done under a previous government.

So I guess I'm a little bit perplexed given the parameters under which policy direction can be given, given the supremacy of the final agreement, given the laws of the land, as well as the fact that this has only ever been used to protect the interests of first nations, that here seems to be a condition of “if that, then this”. There seem to be several steps down the road that people are taking when the facts seem to indicate that this has only been used to protect the interests of first nations in the past. Maybe I could get some comments on that?

[Karen Baltgailis]

I would say there is a lack of trust about what these policy directions are going to be used for. That lack of trust is not surprising considering that there are four amendments to YESAA that the first nations have big problems with, which they did not receive notice about until very late in the process. So is it surprising that people don't trust policy direction coming from the federal government?

[Amber Church]

I would add that just because that's how it's been done in the past, that doesn't always mean that's how it will be implemented in the future. That is another part of the lack of trust issue.

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

But the issue in respect—

[The Chair, Conservative, Blake Richards]

Sorry, but there are only about five seconds left, so you won't have time for an additional question.

We'll move on to Ms. Hughes.

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

Thank you very much.

First of all, I do want to correct the record. A while ago I mentioned 1984 with regard to the Yukon land claims and self-government legislation. But 1984 was when my daughter was born: the legislation was in 1994.

Thank you very much for being here.

My first question is for you, Karen—if you don't mind “Karen”; I would have a hard time saying your last name.