Indigenous and Northern Affairs Committee on March 30th, 2015

[Karen Baltgailis]

That's fine.

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

It's my understanding that you actually went to court on behalf of CPAWS, or with—

[Karen Baltgailis]

It was on behalf of the conservation society, but with CPAWS and the first nations.

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

Yes. Could you tell me why you had to go to court on this? What was the final deal at the end of the day? Who won?

[Karen Baltgailis]

Actually, the situation was surprisingly similar to the present one. Yukon government, after letting the land use planning process go on for years and years, sort of sprang out at the very end with a new land use plan that had not really been consulted upon properly with first nations and the public. The Supreme Court of the Yukon ruled in favour of the First Nation of Na-Cho Nyak Dun, the Tr'ondëk, CPAWS, and the Yukon Conservation Society in saying that government acted improperly.

Basically they could not proceed to implement their unilaterally developed land use plan, which is similar to the unilaterally developed four contentious amendments.

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

We see that they didn't abide by the final agreement, and that is exactly why you found yourself where you were.

I know that court case after court case has been won against the federal government. Just in B.C. alone, I believe, there were 12 cases last year, and first nations won 10 of them. So I can see the apprehension on this specific piece.

We hear over and over again that we're doing this to protect the rights of first nations. Don't you think that's a little bit colonial and paternalistic?

[Karen Baltgailis]

I think the first nations can decide for themselves what rights need to be protected.

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

Earlier on today, I believe in the last panel, Mr. Morrison's last comment was with respect to the cost of projects that are being delayed. I would tend to believe that first nations know first-hand, if not more than everybody else, how difficult it is and how costly it is when projects get delayed. I think they would understand that, given the fact that they're having a hard time getting schools built, and water treatment plants. When they finally do get an okay to go, they get only part of the money. They have to wait maybe another year.

Could you maybe elaborate a little bit on how they should maybe understand the process on that?

[Karen Baltgailis]

I agree with you. And I think you elaborated on that really well yourself.

[Voices]

Oh, oh!

[Karen Baltgailis]

I do have a comment, though, about the issue of delays through the environmental assessment process. I would say, on this concern about the adequacy review, that I think it's incumbent upon proponents to come up with all the full information about the project right away. That would really shorten the process for them.

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

Thank you very much for that.

As well, we heard by way of a letter to the AANDC minister from the Yukon Chamber of Commerce, which is a diverse organization that represents a wide range of business operators in the Yukon, that they are not supportive of binding policy direction and delegation of authority, because they do not respect the treaties.

I'm just wondering if you can elaborate further, if you also agree, on how it may impact businesses. We know how much it impacts tourism as well.

[The Chair, Conservative, Blake Richards]

It will have to be a brief response.

[Lewis Rifkind]

Yes.

I think anytime you have uncertainty you have an impact on business; I assume this is where the direction is going. We all want certainty. I mean, we're not stupid; we know that business creates wealth. It creates jobs. But it has to be done right.

Anytime you get into these legal shenanigans, which could be on the horizon, there will be delays, there will be problems, and a lot of industry might look elsewhere. Even the conservation society does not want that.

[The Chair, Conservative, Blake Richards]

We'll move for our last round to Mr. Leef.

[Ryan Leef, Conservative, Yukon, YT]

Thank you very much.

We've been reading some things into the record. Some folks have been able to testify and others aren't able to be here. I'm going to read into the record a letter from the Village of Mayo. They are writing and specifically supporting the four amendments proposed in Bill S-6.

The first piece I'll talk about, which touches on what Mr. Strahl was concluding with when he ran out of time, is around the policy direction and your comments on the trust piece. As well, without putting words into his mouth, I think that Mr. Strahl was just about to conclude that the parameters are very prescriptive in the legislation. There isn't a great deal of latitude that the minister has in prescribing policy direction.

The trust comes from the strength in the law itself, which is prescriptive in nature, about what the minister can do in terms of that policy direction. Indeed, that is what the community of Mayo reports here. It says, “Any policy direction given would have to be consistent with YESAA, the Umbrella Final Agreement, individual land claim agreements or other Yukon legislation.” They go on to continue to support the delegation of authority and timelines and provide some context to each of those pieces.

I want to ask Mr. Rifkind a quick question with the time I have left. It's around the specific “significant change” piece you talked about. I appreciate, on an initial glance, that it's vague. But is it necessarily vague? As Ms. Church pointed out, people have different perspectives on what “significant change” is, but projects will as well, and so will certain ecosystems and certain regions. In one area, a definition of “significant change” could be too broad for a very particular ecoregion. Something very, very small could be a significant change in a sensitive area, whereas in another area it could be absolutely nebulous.

We run a risk of having a really prescriptive definition of “significant change”, where we envision “significant” being rather large on a grand scale. That could actually be detrimental to the review of that project in the protection of the environment, because “significant”, in certain areas, could be very small in nature. Would you agree with that concept? Then, from that point, perhaps you could give us a recommendation on how you would go about defining “significant change” such that it doesn't paint us into that corner, whereby we can reflect that small changes can be significant as well.

[Lewis Rifkind]

Yes. Look, I work in the nuts and bolts of mining applications and YESAB stuff. One thing that does seem to work is that when you look at the type of class activity in mining—class 1, class 2, class 3, and that sort of stuff—you get triggers happening.

This happens in YESAB as well. You move so many cubic metres of dirt, and boom, you trigger something. You use so much water and you trigger that sort of water licence. It's something that people can get their heads around. If you're a proponent and you're going to move 30,000 cubic metres of rock, you're going to have to fill out these forms and those permissions. That provides certainty. People go in and say that if they're going to expand and going to move this much rock beyond what they did before, they're going to be triggering a YESAB type of trigger.

That, in our opinion, is the way to do it. If you start getting into this nebulous world of, “well, the ecosystem here isn't sensitive”...I mean, who decides that? We'll be arguing forever.

[Ryan Leef, Conservative, Yukon, YT]

I think in the legislation the decision body decides that. I guess my point would be that half of that trigger, in some locations, could be significant. Yes?

[Lewis Rifkind]

No, with all due respect.

On the idea of having these triggers done by the decision body, we could get into situations where we have governments, for argument's sake, that could be quite pro development. They will decide that you aren't triggering and you don't need to do another assessment. It could work the other way too. Supposing you get a very environmentally friendly government in power, they could then say that the slightest thing has a negative impact. Having clear definitions, which, I would argue, could be based on the amount of dirt you're moving, provides certainty to all parties.

[Ryan Leef, Conservative, Yukon, YT]

That's a fair point. I appreciate that. It's an interesting discussion. I have a background in conservation law enforcement, where we clearly recognize that sometimes the slightest of moves is very significant in a particular region. I guess you're presenting a bit of a trade-off here, in that if you have this trigger, in some cases it could risk that out, while in the vast majority it might not.

[Lewis Rifkind]

Yes. By providing firm numbers or firm amounts, you do provide certainty, and you get around a lot of this stuff. I mean, we can't even agree on what the definition of “consultation” is. Once you start throwing numbers out there, things get a bit firmer.

[The Chair, Conservative, Blake Richards]

I'm going to have to stop it there.

Thank you. That closes off our panel and our hearings for the day.

I want to thank everyone who attended today, both those who attended as witnesses, as these and some others have, and those of you who came as observers. We very much appreciated everyone's cooperation and patience in trying to make the day run smoothly.

I want to have all of you join me in acknowledging all the staff of the committee, who were very helpful in making this day happen. They really did go above and beyond to make this day run smoothly for us, so we say thanks to them.

We also thank the Best Western Gold Rush Inn for all their accommodations for us today.

I want to remind everyone that if anyone has anything they feel they want to add in terms of perspective, or further opinion, or suggestions for the committee, you are certainly always welcome to submit a written brief to the committee, which we will gratefully accept and which all members will take into consideration as well.

Thanks to all of you today.

With that, the meeting is adjourned.