Indigenous and Northern Affairs Committee on March 30th, 2015

[Kyle Seeback, Conservative, Brampton West, ON]

Chief Massie, you were talking about how one of the objections has to do with significant change or reassessment on a project. When you look at the existing legislation, just renewing a licence or a permit is enough to re-trigger an environmental assessment. I think that's part of the issue we've heard from industry.

I think you object to significant change, but do you see there being any middle ground between those two positions? From my perspective, when I look at something like that, requiring a reassessment just for a renewal creates a lot of uncertainty on a project. It also increases costs and doesn't, quite frankly, make a lot of sense to me. Do you see that there's any sort of middle ground on that type of amendment?

[Grand Chief Ruth Massie]

I think, right now with the assessments, it's already happening. We have a lot of proposed projects on the go and industry has come to the first nations to make sure that they are complying with our agreements. When the board gets together, the independent board, we do have representatives from first nations sitting on that board. They make their decisions.

It's the same for first nations doing a project. We go through the assessment process too. We don't always get it right, but it gives the board the opportunity to stop the clock and say that this needs to get fixed, or whatever. We're not always going to get it right, but we sure like to try.

[Kyle Seeback, Conservative, Brampton West, ON]

That would be the same with this change. The board would still make the decision. Whether or not the change or the amendment has been significant to require a new assessment, the board's still going to make the decision.

[Grand Chief Ruth Massie]

Yes, they are.

[Kyle Seeback, Conservative, Brampton West, ON]

You think the board's making the right decisions now, so why do you think the board would not be making the right decisions with the new legislation?

[Grand Chief Ruth Massie]

I think it's when binding policy and direction is coming from the minister that's driving the agenda. They can oversee the board, and that's a big fear for us. We don't have that interference now, and that political interference is potentially there with these amendments going through.

[Daryn Leas]

As a quick comment, it wouldn't be the board that makes that decision; it's the decision body. That's significant.

I just want to pass it over to my colleague Jim Harper, who has dealt with these issues.

[James Harper, Representative, Teslin Tlingit Council]

Good morning, Mr. Seeback. My name is Jim Harper. I'm a lawyer, and I live in the centre of Yukon in Pelly Crossing.

I'm the chief legal adviser to the Selkirk First Nation, where we've had an operating mine that's been through several amendments through the YESAA process.

I want to say two points in answer to your query.

First, in my view, the renewal clause in the bill, the one we're speaking about, is terribly drafted. I've looked at it six times and don't know what the heck it means and how to implement it. That's its own reason to reconsider.

Second, in the amendment case, when we started with what's known as the Minto mine—you'll hear from Capstone this afternoon as part of the chamber's presentation—they went from 1,500 tonnes a day in a $25-million mine to what is now a $200-million-plus capital investment, and we're onto phase V/VI of the expansion. It's not appropriate to leave it to the decision body, which in this case is primarily Yukon, with respect to the mining activities. Otherwise the water board is going to...and Selkirk, right? Those are the parties to the situation. You can't—

[The Chair, Conservative, Blake Richards]

I'll have to stop you there, Mr. Harper.

That will conclude our time with this panel.

Thank you all very much for being here. Thank you for your testimony and your answers to questions.

We'll suspend the meeting now and set up for the next panel.

[The Chair, Conservative, Blake Richards]

I'm going to call the meeting back to order.

We'll get started with our second panel of the day.

From the Champagne and Aishihik First Nations we have Chief Steve Smith, who is accompanied by Brian MacDonald, legal counsel, and Roger Brown, manager of environment and natural resources, Department of Lands and Resources.

From the First Nation of Na-Cho Nyäk Dun is Deputy Chief Millie Olsen. Ray Sabo, manager of lands and resources, is accompanying her, as well as Matthias Zinsli, the environment officer, lands and resources.

From the Kwanlin Dün First Nation is Chief Doris Bill.

From the Vuntut Gwitchin First Nation is Deputy Chief Stanley Njootli Senior, accompanied by Pauline Frost, a representative with him as well.

We will move now to the opening statements from our witnesses.

First up is Chief Steve Smith, for the next seven minutes.

[Chief Steve Smith, Chief, Champagne and Aishihik First Nations]

Excuse me, I'm the last on the list of speakers.

[The Chair, Conservative, Blake Richards]

According to the list I have, you are first. If you'd like to pass the floor to somebody else to begin, that's fine, but I do have you first.

[Chief Steve Smith]

Sure.

[The Chair, Conservative, Blake Richards]

Who is seeking to be first?

Chief Bill, the floor is yours.

[Chief Doris Bill, Chief, Kwanlin Dün First Nation]

Thank you.

Mr. Chairman and members of the committee, I appreciate your invitation to speak at today's public hearing regarding the proposed amendments to the Yukon Environmental and Socio-economic Assessment Act.

As the chief of the Kwanlin Dün First Nation, I would like to say welcome to our traditional territory, which we share with Ta'an Kwach'an Council.

No one can deny Yukon first nations negotiated their agreements in good faith, and as part of those agreements we established our right to be included in decisions that affect Yukon, especially when it involves land, water, and our people.

As you have heard from others, one provision contained in our final agreement requires the establishment of an assessment process that addresses the unique circumstances of Yukon according to principles that have been clearly defined in the final agreement.

While the minister insists the YESAA amendments will bring YESAA in line with other northern jurisdictions, I would like to point out that each territory is distinct in its own way.

Yukon is not the same as the Northwest Territories and Nunavut. Northerners know this very well and have continuously asked that Canada stop lumping us together.

As you have heard, self-governing first nations are concerned that providing the federal minister with authority to unilaterally issue policy direction undermines the autonomy of the board.

When we negotiated our final agreements, we ceded title to over 90% of our traditional territories. ln exchange, our agreements give us the opportunity to be active participants in managing public resources. YESAA was a big part of that.

Our communities, elders, and negotiators always envisioned an environmental and socio-economic assessment process that was independent of political interference from any government: federal, territorial, or first nation. We fought hard for that when we worked collaboratively with Canada and Yukon to develop YESAA. All three parties agreed to follow the principle of establishing an independent board.

To get that independence, we agreed that the board's role on assessments would be limited to recommendations while the governments would retain the ability to make decisions. That was the compromise that Canada and first nations agreed to. We cannot let that bargain be eroded by Canada giving itself the authority to impose its policies on the board.

Providing a single party with authority to direct the board is fundamentally inconsistent with any legislation that stems from our tripartite treaties. While the treaties obligate Canada to enact YESAA, it does not own YESAA and cannot choose to dictate its own policies on the independent assessment body.

The treaties established a mechanism for the parties to collectively refine YESAA and provide guidance to the board. That process was the five-year review, and it could be any subsequent review conducted by the three parties. That process was and is the right mechanism to provide policy direction because any guidance would come from all parties to the treaties.

As you have heard, the five-year review included agreement on 72 of 76 recommendations. At least 42 of these recommendations relate to administrative and policy function of the board including changes to the board's policies, rules, administration, and activities. The board has been actively working to address these recommendations. The collaborative approach in the five-year review is a proven and effective way to address policy matters for the board.

The concept of the federal minister issuing binding policy direction is particularly problematic when we consider that the direction would apply to projects and assessments on our settlement lands. lt is completely contrary to our treaties that the federal government would have unilateral authority to impose policies that may affect land over which it has very limited authority.

In closing, our agreements are as much about building relationships as they are about the settlement of past injustices. When the federal government embarks on one-sided changes to legislation that stems from constitutionally protected treaties without collaboration or true consultation with first nations, it makes one wonder how strong government-to-government partnerships are.

I will quote Kwanlin Dun elder Judy Gingell, who was a member of the delegation that travelled to Ottawa in 1973 to deliver “Together Today For Our Children Tomorrow”, the document that started the negotiation process for the Umbrella Final Agreement and subsequent final agreements with each first nation government. She told industry, “Today development that does not include first nations, and does not consider first nation interests, means you will end up in court. We will defend what we have worked to achieve.”

As Yukon first nations, we are united in our concerns and we are seeking resolution that in some way will get the process back on track. Would court action be our first choice? Obviously not. We are here. Our preference is to use every avenue available to us and mechanisms clearly defined in our negotiated and constitutionally protected agreements, and respectfully, this parliamentary hearing. Yukon first nations have negotiated their final agreements by relying on a relationship based on respect, honesty, and trust. Why is Bill S-6 imposed outside of those principles? The approach creates and fuels animosity for all Yukoners. The exploration spending predictions for 2015 already reflect that uncertainty.

I thank you for this opportunity. Mahsi Cho. Gunalcheesh. Thank you.

[The Chair, Conservative, Blake Richards]

Thank you, Chief Bill.

We'll move next to Deputy Chief Millie Olsen.

[Millie Olsen, Deputy Chief, First Nation of Na-Cho Nyäk Dun]

Good morning. My name is Millie Olsen and I am the deputy chief of the First Nation of Na-Cho Nyäk Dun.

Our newly elected chief, Simon Mervyn, is not able to attend today due to a scheduling conflict and has asked me to represent our first nation at this hearing.

As one of the first signatories of a first nations final agreement, we have celebrated almost 20 years of self-government here in Yukon.

I want to begin by thanking you all for taking the long trip to Whitehorse to host these presentations. I want to recognize that we are here today presenting on the traditional lands of the Ta'an Kwach'an and Kwanlin Dün first nations.

We have already witnessed a few presentations, and I can assure you that all the Yukon first nations unanimously oppose certain provisions included in Bill S-6.

It is of major importance for us to leave future generations with agreements and processes that will ensure the protection of the water, lands, and wildlife while providing for economic opportunities in Yukon. To achieve this goal, all three levels of government will have to work together, and the base for this mutual trust needs to be improved moving forward.

I want to speak to you now in more detail about our concerns about the beginning-to-end timelines that are proposed for assessments. There is no evidence that these proposed timelines will benefit assessments or proponents in Yukon. Unlike many assessment processes in Canada, YESAA has always had timelines. Canada and Yukon requested provisions for timelines when we worked together to develop YESAA, and first nations agreed to this concept. As required in the legislation, the board established timelines for all steps in the assessment process before it began its first assessment. Almost all assessments have been completed within these established timelines.

Some mining proponents in our traditional territory have been vocal in promoting the need for timelines. As with most assessments, YESAA has met the existing timelines for conducting assessments on these projects. Even though in some cases the proponents made substantial changes to their proposals partway through the assessment process, the assessments would have met the timelines proposed in Bill S-6, too.

The timeline proposals in Bill S-6 would bring no real benefit to these companies, but they can harm the assessment process. Beginning-to-end timelines as proposed in Bill S-6 threaten to interfere with a process that works. Most risky is the application of those overarching timelines to the review of adequacy of applications. Adequacy review often takes several iterations and the current timelines restrict the time available for assessors to review each iteration.

YESAA currently has timelines for assessors to review each iteration. This approach encourages proponents to prepare comprehensive applications that minimize iterations. Proponents who prepare adequate applications quickly are rewarded under the current process because they can proceed quickly.

On the other hand, the Bill S-6 approach of applying a beginning-to-end timeline will reward proponents who prolong the adequacy review phase by using up time with multiple iterations. The approach will penalize assessors and reviewers like first nations because it will shorten the most important public review phase, infringing on our right for comprehensive reviews of projects.

There are big risks for proponents, too, if the beginning-to-end timelines influence the ability of assessors to finish adequacy reviews. If assessors do not have adequate applications, they will more frequently be led to make recommendations that projects be rejected or referred to higher levels of assessment.

During the engagement sessions, officials from the Department of Aboriginal Affairs had assured us that they were not contemplating the inclusion of the adequacy stage in these maximum timelines, but they changed this at the very last minute.

Finally, I want to highlight that the process for seeking extension for timelines as proposed in Bill S-6 is cumbersome and likely to create further delays in assessments. Extending timelines would require approval of the Minister of Aboriginal Affairs and Northern Development or the federal cabinet. Unlike many assessment processes, we have timelines in YESAA that work and we should not interfere with those.

Before I conclude, I would encourage you to read the 2013 report from the Yukon Minerals Advisory Board. This committee is made up of members who either represent or work for industry. This committee claims that it is unique in the sense that it can communicate directly to cabinet ministers of the Yukon, rather than sending information through departments.

Within this report, you will find that the recommendations this committee put forward are almost a carbon copy of the four contentious amendments that my colleagues have spoken to here today. They represent their recommendations that protect their interests in the industry. Why do we have a system in place where government acts on the requests of industry, but cannot take the time to work with local governments to plan the future for our citizens and resident Yukoners?

With that I would like to express my appreciation to sit before you today and hope that the recommendations all of our first nations collectively put forward will help you and your colleagues make the right decision on Bill S-6.

Mahsi Cho.

[The Chair, Conservative, Blake Richards]

Thank you very much.

We'll move now to Deputy Chief Stanley Njootli, Senior, from the Vuntut Gwitchin First Nation.

[Stanley Njootli Sr., Deputy Chief, Vuntut Gwitchin First Nation]

[Witness speaks in Gwich'in]

Mahsi Cho. Thank you.

I'm Stan Njootli, deputy chief, from Old Crow.

I will read a statement for the record and probably make my own statements after that.

The Vantut Gwitchin government supports the position expressed by other Yukon first nations and CYFN in today's proceedings. With limited time, I will speak specifically about our collective concerns with amendments to YESAA that allow for delegation of authority and exemption from assessment.

The first proposed change to YESAA would allow the federal minister to delegate authority to the Yukon government. This amendment would establish a bilateral federal-territorial process for distribution of responsibilities and powers under YESAA. It excludes Yukon first nations from the discussions and is contrary to the nature of decision-making envisioned in our modern-day land claims agreement.

Mechanisms that have been used in the past to define distribution of power include our final agreements that were directly negotiated by the three parties and in devolution transfer agreements in which Canada, Yukon, and first nations negotiated a devolution protocol accord to establish negotiating principles. The distribution of powers and responsibilities among federal, territorial, and first nations governments can only be resolved through discussions among all the parties. It must not be handed to a single party or a single person, in this case the Minister of Aboriginal Affairs and Northern Development of Canada. It also must not be constrained to distribution among only two of the three parties that are involved in this agreement.

I want to provide some detail about our concerns with clause 14, proposed subsection 49.1, in the bill that provides a general exemption from assessment when an authorization is renewed or amended unless, in the opinion of a decision body for the project, there is a significant change to the original project.

As stated in the final agreement, one objective of YESAA is to provide for comprehensive and timely review of the environmental and socio-economic effects of any project before the approval of that project. Achieving this objective is not related to whether an authorization is renewed or amended. It is about the scope of a project and the effects that may have been considered in previous assessments. Federal, Yukon, and first nations governments are prohibited from issuing permits or licences to projects unless they have been assessed under YESAA.

For renewals and amendments, if it is decided that the project has already been assessed, then no further assessment is required. These provisions already exist. The Bill S-6 approach on the other hand proposes to create a general exemption that lacks the test of whether the scope of the project was considered in previous assessments and whether the effects have been previously assessed. Under this general exemption, projects that will have significant adverse environmental or social effects, including those that affect other modern-day treaties or land claims agreements, could proceed without assessment or appropriate mitigation. These provisions will also create extremely challenging tasks for the assessors and the proponents as they are forced to consider the effects of a project for long periods. Some projects could be 100 years or more. Not only is this impractical and likely to result in failure to achieve the objectives of chapter 12, but it will have the unintended consequences of delaying projects because of the increased likelihood of designated offices bumping assessments to executive committee level, or it could result in a determination that the project should not proceed due to significant adverse impact.

To conclude my comments about the proposed exemptions from assessment, I want to highlight that Bill S-6 conflicts with the recommendations from the five-year review that has already been implemented and is proving effective. The YESAB made changes to its policies with respect to the scope of a project it considers in its assessment. By unilaterally initiating this proposed amendment, Canada is reneging on the agreements we reached during the five-year review.

In conclusion, I would like to share my perspective on the importance of YESAA to the Vuntut First Nation. The Vuntut First Nation was among one of the first first nations to sign final agreements with the federal government. From these agreements, the Vuntut First Nation formed its own government.

What I would like to see, between me and you, is that you come to Old Crow and we do a wilderness trip. We'll go on the river and see what it's like there, how pristine that river is. We drink water from that river. Fifty years from now, I want to see the children of this community walk down to that river and drink that water. I think this assessment should allow that to happen when they assess projects that are going to affect that pristine area on the Porcupine River.

I'm inviting you this summer on a boat trip. What do you think about that?

[The Chair, Conservative, Blake Richards]

Well, thank you very much. That's very much appreciated.

Thank you for your comments as well.

We'll now conclude the panellists with Chief Steve Smith.

[Chief Steve Smith]

Good morning, Mr. Chair and fellow committee members.

I thank you for the opportunity to speak to the committee this morning. The Champagne and Aishihik First Nations fully support all statements made by the Council of Yukon First Nations and other first nations partners at the table today.

I'd like to open by telling you that my father was Elijah Smith. It was he who, some 43 years ago, presented the original Yukon land claim to then prime minister Pierre Trudeau. He was the driving force behind the negotiation of our land claim and self-government agreements. He served for six years in World War II. It was that experience which taught him that confrontation is always the last resort, and that negotiation and compromise have to be the preferred methods to settle grievances. This is the sentiment that Yukon first nations have always held when reconciling our claims. This ideal is something that we hope Canada and Yukon would subscribe to as well, not always having to settle disagreements in court.

Bill S-6 is a roadblock to reconciliation. The unconstitutional bill demonstrates the federal government's unilateralism and lack of understanding of the relationships that arise from the final agreements, the federal government's failure to abide by the collaborative development assessment regime mandated by the final agreements, and the federal government's indifference to fostering productive and collaborative treaty relations with Yukon first nations. This is fundamentally unacceptable.

Our final agreements entailed a promise. They are modern treaties protected by section 35 of the Constitution. They are vehicles of reconciliation between first nations and Canada. The final agreements look backward to address historic grievances, and they also look forward to the future, towards evermore cooperative and collaborative relationships between Yukon first nations, Yukon, and Canada.

The final agreements represent a significant compromise, and they create a new constitutional arrangement in Yukon. Yukon first nations abandoned their claim to aboriginal title over 90% of their traditional territories, an area of almost 484,000 square kilometres roughly the size of Spain, in exchange for the commitments made in the final agreements. That was an enormous compromise.

The establishment of an independent development assessment regime created through negotiation and collaboration between first nations, Yukon, and Canada was one of the treaty commitments in the final agreements. YESAA was the means by which that commitment was fulfilled. YESAA is mandated by, and founded in, the final agreements. It is not an ordinary piece of federal legislation. It emerged from the constitutional compromise that underpins our final agreements

The final agreements required first nations, Yukon, and Canada to negotiate guidelines for drafting YESAA. We did so. We drafted the legislation and regulations together. Establishing YESAA was a success and a demonstration of the cooperation and reconciliation that our agreements demand.

YESAA is a made-in-Yukon law designed to meet the needs of Yukon first nations and Yukoners alike. It is unlike other assessment legislation in Canada because it is guided specifically by treaty obligations.

The federal government had an obligation to enact YESAA, but the federal government does not own YESAA. YESAA is not legislation that Canada may simply alter as it wishes. The federal government cannot unilaterally modify YESAA for its own benefit, or to suit its own preferences.

As we have said, we do not oppose all of the provisions of Bill S-6, but we oppose it unless the unilateral federal amendments to YESAA that undermine the spirit and intent of the final agreements are removed. The details of the changes we expect were identified in Chief Massie's opening remarks today and in our written submission.

By empowering itself to issue binding policy directions to the board, Canada would overturn the careful balance struck during the treaty negotiations and the subsequent constitutionally mandated negotiation of YESAA. By appropriating powers that imperil the board's independence, Canada imperils reconciliation.

In the final agreements, the parties agreed on the constitutionally protected framework for the creation of development assessment legislation in Yukon. Such legislation is to be drafted based on guidelines negotiated by parties, or failing agreement on guidelines, following consultations with first nations. Canada has failed to do that.

In short, Bill S-6 demonstrates Canada's disregard for its treaty commitments.

For development in Yukon to be successful, it must be sustainable. It must have social licence. It must have Yukon first nations' and Yukoners' support.

The final agreements and YESAA are designed to ensure sustainable development by, among other things, ensuring trust in the assessment process that leads to development. First nations trust the YESAA regime because they are co-creators and because they have the confidence that the assessment process is independent. By unilaterally amending YESAA in violation of its treaty commitments, Canada undermines first nations' trust in the YESAA process. This will undermine the promise of the agreements and threaten the ability of first nations to support development in our traditional territories.

Recent court decisions, such as the Peel land use planning case in the Yukon Supreme Court, the Tlicho injunction over changes to the land and water boards in the Northwest Territories earlier this year, and the Mikisew Cree case on the federal omnibus bills C-38 and C-45 demonstrate what happens when our treaties are threatened. That serves no one's interest.

In conclusion, the final agreements will never fulfill their purpose of reconciliation if the federal government persists on its path of unilateralism and disregard for the views of its treaty partners. Our treaty is as much about building relationships as it is about the settlement of past grievances. When Canada unilaterally undertakes major changes to treaty-mandated legislation without collaborating or even truly consulting with first nations, it inflames grievances and strains relations.

By going it alone, Canada has left the honour of the crown behind.

I would like to thank the committee members for their time today.

Kwä`nä`schis.

[The Chair, Conservative, Blake Richards]

Thank you very much.

We'll move now to questioning from members.

For the first four minutes we have Mr. Bevington.

[Dennis Bevington, NDP, Northwest Territories, NT]

Thank you, again, to the chiefs for participating in this hearing.

I apologize for its being so condensed that we really can't give you the justice that is due to your issues, which are quite obviously so important.

To Chief Bill and the others who spoke to the unilateral policy decisions, you see the Yukon territorial government going along with this abrogation of territorial authority. I think back to the Mackenzie gas project. I was on the Mackenzie Valley Environmental Impact Review Board at the time. A year and a half before any trigger to the assessment board, the manipulation was already taking place with our board. Now that you have the ability to unilaterally put in policy decisions prior to major assessments, it's a shocker to think what that could mean to the process that you enter into going forward. You only have to look at the record of what happened with the Mackenzie gas project.

Has the Yukon territorial government sat down with you and talked about why it has agreed to this type of abrogation of territorial authority?

[Chief Doris Bill]

Not from our end.

[Dennis Bevington, NDP, Northwest Territories, NT]

Has there been no conversation on this?