Indigenous and Northern Affairs Committee on March 30th, 2015

[Roger Brown]

The short answer is yes.

[The Chair, Conservative, Blake Richards]

Thank you.

For our final slot for questioning for this panel, we turn to Mr. Leef.

[Ryan Leef, Conservative, Yukon, YT]

I asked the minister last week, in specific reference to the binding policy direction embedded in the legislation, whether it would interfere with assessment. I think we've already answered this question, from your perspective, and know that it's not interfering with assessments.

The minister went on to affirm that the binding policy direction :

[I]n regard to policy direction, any policy direction first would have to be consistent with the land claims agreement and legislation, in this case the Umbrella Final Agreement and the Yukon Environmental and Socio-Economic Assessment Act.

I know this question was posed specifically in the Senate hearings to Daryn Leas, who was providing technical advice. We talked about the implications for land claims and whether or not they would prevail over territorial legislation. He testified in the Senate:

It is true our land claim agreements would prevail over federal or territorial legislation.... [T]hose amendments technically are not affecting the final agreement, or maybe even the fact that the final agreement is going to prevail....

How much confidence do you have, under section 35 of the Constitution Act, under the UFA, under each self-government agreement, and indeed under the proposed sections embedded in Bill S-6 at this current point that refer back to each and every one of those agreements and from the minister's own comments to the committee, that the Umbrella Final Agreement will prevail in respect to these amendments?

I'm sure anybody who is technical is going to respond to that.

[Brian MacDonald, Legal Counsel, Champagne and Aishihik First Nations]

Thanks, Ryan.

I'm not going to get into the comments that were.... I think Daryn spoke.... Well, I'm not going to speak to that stuff.

Generally, what we have demonstrated here is a concern for the processes and the ways the agreements are interpreted. When we get into the discussion about consultation, it is not just, “Here's the information”; I think you have to look more deeply. That's why we speak to the concept of deep consultation. It's about a dialogue.

The agreements say that there should be sufficient form and notice of the issue to be consulted on, sufficient time to respond, full and fair consideration of the response. What we're trying to demonstrate through this discussion is that these didn't occur, and that is the treaty. The treaty is about that relationship and being able to do that.

Would I say this is consistent with it? No.

[Ryan Leef, Conservative, Yukon, YT]

On one hand we have content, and on another hand we have process. First and foremost, the content needs to be solid so that we don't have a degradation of our environmental regime here in Yukon and so that our socio-economic considerations are well invested. You're making the point that process can in some forms and fashion affect that. I appreciate your point.

I wonder, though, would you not consider the bill—and I think there's value for the public to understand this piece.... It is an unusual step to provide a bill in its draft form, in secret form, so that you can actually look at it ahead of time. There's not joint drafting of a federal piece of legislation, but the minister cannot disclose it before it is tabled in Parliament.

Would you not consider the bill itself as brought forward a sufficient forum to understand exactly the direction you're going in, in light of the fact that the deck really did spell out those four pieces in it? Then it moved in a subsequent meeting to the actual legislation.

You had an opportunity to look at it. Is that not a sufficient forum?

[The Chair, Conservative, Blake Richards]

Time is actually about to expire, but given that this is our last round of questioning, I think it would be appropriate to allow a brief response.

[Brian MacDonald]

I will be brief.

This piece of legislation was born out of a trilateral process. Drafting instruction even started through that trilateral process. The origin of it was about the relationship, and three parties worked together in drafting the original bill. To suggest that it is a unique.... It is unique, and so I think that going forward they should have anticipated that the amendments would also be done and carried out under the same principle. I don't think it's sufficient to say, “We met our obligation and now we can carry on unilaterally in this process.” I don't think that's what chapter 12 contemplated.

[Ryan Leef, Conservative, Yukon, YT]

Thank you for that.

[The Chair, Conservative, Blake Richards]

Thank you to all of our panellists on this panel and the others this morning.

We'll now suspend our meeting briefly to allow members and the committee staff to have a quick bite to eat, and we'll return for our afternoon session.

[The Chair, Conservative, Blake Richards]

We'll call our afternoon session to order now.

With us for the first 45 minutes this afternoon will be the Yukon Environmental and Socio-economic Assessment Board. We have Wendy Randall, chair and executive committee member, as well as Tim Smith, executive director.

We will start with some opening remarks and then we will have some questions from members for the remaining time.

Ms. Randall, you'll be making the opening presentation, I assume. The floor is yours.

[Wendy Randall, Chair and Executive Committee Member, Yukon Environmental and Socio-economic Assessment Board]

Thank you, Mr. Chair.

I would also like to thank the committee for inviting me to appear before them today as they study Bill S-6.

My name is Wendy Randall and I was appointed chair of the Yukon Environmental and Socio-economic Assessment Board just over two months ago. lt is an honour to speak to this committee about this complex and comprehensive piece of legislation that is so important to Yukoners.

I will try not to take up too much of your time. I'm simply going to provide an overview of the Yukon Environmental and Socio-economic Assessment Act as well as the role of the Yukon Environmental and Socio-economic Assessment Board. For the committee's consideration, I will also speak to the fundamental purposes of the act and then either I or executive director Tim Smith will be available to answer questions.

Chapter 12 of the Umbrella Final Agreement and Yukon first nations final agreements called for the creation, through federal legislation, of an assessment process applicable to all lands within Yukon. Over a decade later, in November 2005, the Yukon Environmental and Socio-economic Assessment Act with its regulations came into force and became the federal statute setting out this process.

The board was established under YESAA, and consistent with the Umbrella Final Agreement, is an independent, neutral, arm's-length body responsible for the administration of the assessment responsibilities of YESAA. The board comprises a three person executive committee, one member of which is also chair of the board. There are four other members at large, for a total of seven board members. The Council of Yukon First Nations nominates three of the board members; the Yukon government nominates two board members, and the Government of Canada also nominates two board members. All board members are appointed by the federal Minister of Aboriginal Affairs and Northern Development Canada.

YESAB is made up of six community-based designated offices and a head office in Whitehorse, which houses the executive committee. The designated offices are responsible for conducting the majority of assessments known as evaluations. They have completed close to 2,000 designated office assessments to date.

The executive committee conducts assessments known as screenings of larger, more complicated projects. Screenings of six projects have been completed with a seventh that is currently in the adequacy review stage. To date there have been no reviews conducted by a panel of the board.

It is important to note that YESAB is not part of government. We are not a regulator. We do not issue permits or authorizations, and we do not make final decisions on projects. We are an independent board that conducts environmental and socio-economic assessments and makes recommendations to decision bodies. Those decision bodies are the three orders of government that have control over land and resources in Yukon, so federal, territorial, and first nation governments.

As chair of the board, I feel it is appropriate for me to convey to this committee the purposes of the act as they were contemplated by the three parties that originally drafted the legislation, those parties being the federal government, the Yukon government, and the Council of Yukon First Nations.

If you were to talk to the parties who created YESAA, they would tell you that it was almost a miracle of drafting to obtain consensus from such diverse sets of needs and interests, and yet they did. At the front of the Yukon Environmental and Socio-economic Assessment Act is section 5. It sets out the purposes of the act agreed to by the parties.

I believe this section is important for the committee to think about during their study of Bill S-6. The purposes of the act as set out in YESAA are unique to Yukon. They are bold. They are comprehensive, and some have potentially competing interests. The board and staff must ask ourselves every day if what we are doing and how we are doing it is in keeping with the purposes of this legislation.

The purposes of the act are as follows:

(a) to provide a comprehensive, neutrally conducted assessment process applicable in Yukon; (b) to require that, before projects are undertaken, their environmental and socio-economic effects be considered; (c) to protect and maintain environmental quality and heritage resources; (d) to protect and promote the well-being of Yukon Indian persons and their societies and Yukon residents generally, as well as the interests of other Canadians; (e) to ensure that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities and their residents, and societies, in general, depend;

(f) to recognize and, to the extent practicable, enhance the traditional economy of Yukon Indian persons and their special relationship with the wilderness environment; (g) to guarantee opportunities for the participation of Yukon Indian persons—and to make use of their knowledge and experience—in the assessment process; (h) to provide opportunities for public participation in the assessment process; (i) to ensure that the assessment process is conducted in a timely, efficient and effective manner that avoids duplication; and (j) to provide certainty to the extent practicable with respect to assessment procedures, including information requirements, time limits and costs to participants.

As you can see, we must balance the diverse needs of all participants in the process, including stakeholders, Yukon first nations, and proponents. YESAA is made-in-Yukon legislation that Yukoners are very proud of.

Thank you, Mr. Chair. I hope this has provided some helpful context for committee members.

[The Chair, Conservative, Blake Richards]

Thanks, Ms. Randall.

We will now turn to questions from the members. We'll probably have time for about six minutes per member, at this stage.

We'll start with Mr. Bevington.

[Dennis Bevington, NDP, Northwest Territories, NT]

Thank you for the presentation, Ms. Randall and Mr. Smith.

You gave us a profile of the board. One of the issues that have engaged us here is policy-making. You have a whole number of things that you have to match up to in terms of that description. How is your policy formulated to date? How do you set the rules of engagement for the board?

[Wendy Randall]

The board is responsible for the overall assessment framework of YESAA. We have a number of policies. We have rules that we can make under our legislation. Rules are primarily with regard to timelines and processes for assessments.

At the beginning, at the implementation of YESAA initially, and then further down the road when we did a review of the designated office rules, we did that with a pretty broad public consultation. We consulted with Yukoners, proponents, environmental groups, Yukon first nations, and anyone who had an interest in the YESAA process, to try to gather people's interests and hopefully come to some way of representing those in our policies and processes.

[Dennis Bevington, NDP, Northwest Territories, NT]

Do you have policy vis-à-vis the actual development of the terms of reference for projects? Do you have a framework that you use, and how was that developed?

[Wendy Randall]

Unlike some of the other jurisdictions, we do not have a terms of reference process under YESAA, if that's what you are referring to. We do have guidance for proponents, for both designated office assessments and executive committee level assessments.

[Dennis Bevington, NDP, Northwest Territories, NT]

How have those guidance rules been set since inception?

[Wendy Randall]

Currently, those are primarily set through the overall assessment framework as directed by the board, again with much public consultation with people who are involved in the process.

[Dennis Bevington, NDP, Northwest Territories, NT]

You are saying that there are a number of areas where policy is used on the board, where there are rules, procedures, and terms that you will bring to bear. Is that a fair assessment of what you do?

[Wendy Randall]

Yes, that is correct.

[Dennis Bevington, NDP, Northwest Territories, NT]

Has your board taken a position on any of these issues that are in front of us, the four major issues we face here that are the controversial issues going forward?

[Wendy Randall]

The board's role is to implement the legislation that is in front of us. Whatever that legislation may be, it will be our role to find a way to implement it. That is how we see our role.

[Dennis Bevington, NDP, Northwest Territories, NT]

Basically, you are in front of the committee here simply for information on how the board operates. Is that correct?

[Wendy Randall]

Yes. I was asked to appear in front of the committee.

[Dennis Bevington, NDP, Northwest Territories, NT]

Fair enough. That keeps you in a neutral position.

I am just trying to find out how you can relate, then, to the questions that are in front of us, how we can extract from you some information about how.... Did you have timelines in the previous...? Do you operate under any kind of timeline at the present time?