Indigenous and Northern Affairs Committee on March 30th, 2015

[Ryan Leef, Conservative, Yukon, YT]

Thank you to all our first nation leadership for providing testimony today. We appreciate it. Gunalchéesh.

Grand Chief, I want to ask you a couple of questions. I apologize for not getting specifically to everybody because of the limited time.

The premier this morning talked about his interest in engaging a bilateral accord with Yukon first nations to talk about the implementation on this piece. Could I get some of your comments on the perspective that the premier has offered?

[Grand Chief Ruth Massie]

Well, Chair, I was a little bit surprised to hear that, but I welcomed hearing that. We haven't had that discussion. The premier has met with our leadership before when we have had our leadership.... That is one road that we have encouraged him to go down, to start the reconciliation. We also asked him to address Bill S-6. If we're not going to come to agreement, it's a little rough to get started on reconciliation if we are not going to agree. He mentioned the consultation over those four amendments. He did not discuss those amendments with us, and neither did you. It came to us in a draft.

If we want to go down the road of reconciliation, our first nations are willing to do that. Up until now, we've spent many years negotiating our agreements to come to an agreement.

[Ryan Leef, Conservative, Yukon, YT]

That's a fair point.

Grand Chief, you did a good job outlining the concerns that you have. I know the committee will be seized with your outline on those pieces.

I want to ask you quickly about some of the pieces in the bill itself that you might find positive. Clause 9, in particular, around the cumulative effects section that's enhancing environmental protection also broadens the aspect of interests of all Yukon first nations. There are a few other clauses in here that ensure inclusion, in particular proposed new section 88.1 that talks about extending authority so that Yukon first nations can indeed impose more stringent conditions on when decisions are made.

I was wondering if you could comment on a couple of those clauses.

[Grand Chief Ruth Massie]

When we went through the five-year review, there were 76 recommendations, and 72 of them ended up in the bill. Most of them are administrative. We did agree with that. Where are the four that didn't come to agreement? We ended up with four proposed amendments that we didn't even hear about. They were in the bill when it came across my desk.

[Ryan Leef, Conservative, Yukon, YT]

Grand Chief, on that, I have a deck in front of me from November 26, 2013, that has that spelled out. That was provided to Yukon first nations from Aboriginal Affairs and Northern Development. It spells those out. Then a draft copy of the bill in secret form was provided. Of course, you may know that Parliament and the department are not allowed to provide a copy of the bill to retain until it's presented to Parliament or to the Senate. But indeed we do have a deck from 2013 that includes those amendments in it.

I want to ask you one specific question on the delegation piece. The premier said that no delegation is contemplated at the time he committed to consultation with the Yukon first nations.

[The Chair, Conservative, Blake Richards]

Unfortunately, Mr. Leef, I have to stop you there. Maybe you'll have an opportunity to ask questions in a further round.

We'll move now to Ms. Jones.

[Yvonne Jones, Liberal, Labrador, NL]

Thank you for your presentations this morning.

I can tell you that I found a lot of the information you've given us very disturbing. Also I heard very unfortunate characterization of the relationships between your three governments in working towards this particular bill, especially when you expose to us things like commitments around working groups that did not get honoured, amendments that were unilaterally tabled by the Government of Canada and Yukon, the fact that you gave up traditional settlement lands because you had confidence in the YESAA process that is now being changed, and of course, most important, your allegation that Canada is ignoring its constitutional duties and treaty requirements to your first nation government.

First of all, with respect to the comment by the minister that if you don't like this, you can bring it to the courts, I think the Government of Canada needs to be very guarded in those kinds of comments. As we know, aboriginal governments have won many cases on constitutional challenges in the courts, and it's not the way we should be moving forward with legislation.

What legal options do you see? Obviously, your preference is to resolve those issues without having to pursue them in the courts. I'd like for you to expand on that and expand on what type of litigation you would have to bring forward, which would be unfortunate in this case.

[Tom Cove]

I think that's part of the reason we asked Leigh Anne Baker to attend, to contribute to that very briefly.

[Leigh Anne Baker, Representative, Woodward and Compagny LLP, Teslin Tlingit Council]

)

Thank you.

My name is Leigh Anne Baker, and I'm legal counsel with Teslin Tlingit Council.

To answer the question here, you know we go back to the point that litigation is not our first option, and it's not our first choice for moving forward and finding solutions to these amendments, but if this bill passes, the likely outcome will be litigation from one or more Yukon first nations. That might be litigation for breach of the treaty itself.

YESAA is no ordinary piece of legislation. It exists because it's a chapter in the final agreement. It's a chapter that promises a made-in-Yukon environmental and socio-economic development process. It promises participation to Yukon first nations. Chapter 12 needs to be respected and followed when making any changes or proposing changes to YESAA.

In addition to potential litigation for breach of the treaty itself, we are also looking at the fact that the bill as drafted can lead to inadequate and challengeable assessments. This means there could be an increase in litigation on a project-by-project basis as the assessment process itself fails to live up to the promises made to first nations in the final agreements.

Yes, it can be seen as a cornerstone that protects other rights in the final agreement, such as harvesting rights off of settlement land.

In order to avoid litigation, we're proposing that the government come back to the Yukon and back to Yukon first nations to follow the road map and the promise of chapter 12. This means interpreting the final agreements with the goal of reconciliation in mind. We keep hearing this from the court. The goal is reconciliation, not to have increased litigation. It's not to have a government telling us, “If you don't like it, you can sue us”. It means honouring the final agreements and bringing the amendment process back to the table with Yukon first nations.

Thank you.

[The Chair, Conservative, Blake Richards]

Thank you. Unfortunately, your time has expired.

We are moving back to Mr. Leef now for the next four minutes.

[Ryan Leef, Conservative, Yukon, YT]

I'll start where we left off, Grand Chief.

You heard the premier say earlier this morning that on the one point of concern about delegation of authority, no delegation is contemplated at this time. The federal government cannot delegate any of the regulations, and the premier has committed to consultation with Yukon first nations if and before any delegation would be contemplated. Is that not some assurance or satisfaction for your concern about the delegation piece?

[Grand Chief Ruth Massie]

I would like our technical adviser to answer that question, but quickly, no, that hasn't been our experience.

I'll hand this over to Mr. Leas.

[Daryn Leas, Legal Counsel, Council of Yukon First Nations]

Thank you. I'll make some quick comments.

To follow up on the grand chief's and the other chiefs' comments, yes, it's a positive step that other governments are recognizing the deep issues first nations have with respect to the amendments. Ideally, this discussion should have taken place a year ago. Instead, we have damaged relationships and threats of litigation, which don't benefit or help anybody.

Certainly we have been very clear on what we see as the appropriate amendments for those four issues. It is great to have an offer from the territorial government to engage in bilateral discussions, but we would need Canada there as well.

A band-aid fix for our concerns on a federal statute and how it is implemented in Yukon is not a satisfactory solution. The solution is to get it right the first time and avoid going to court, or avoid accepting invitations to go to court to get it right.

[Ryan Leef, Conservative, Yukon, YT]

Grand Chief, in respect to the policy direction concern, Bill S-6, under proposed subsection 121.1(2), is explicit in stating:

Policy directions do not apply in respect of any proposal for a project that, at the time the directions are given, has been submitted to a designated office, the executive committee or a panel of the Board.

With that in mind, what specific concerns do you have about binding policy that you envision the minister's having authority over that would affect the independence of the board, respective of the fact that the YESAB and the executive committee are made up of a good percentage of Yukon first nations?

[Grand Chief Ruth Massie]

I'll let our technician answer that question as well.

[Daryn Leas]

One of the key points of YESAA is that it was intended to be independent from all the parties. It was intended not to be an agency of government in which assessments were carried out in that manner prior to YESAA being in place. It was a fundamental discussion by the tripartite working group that Chief Joseph has referred to. We want it at arm's length from first nations governments, from the federal government, and from the territorial government.

We see written instructions as undermining that principle. It brings potential concerns about the credibility and integrity of the assessment process.

[Ryan Leef, Conservative, Yukon, YT]

You would agree, of course, that by no stretch of the imagination can the minister make policy direction that is binding with respect to an assessment itself.

[Daryn Leas]

Sure, but the minister can provide instructions by way of that provision in the statute, if it is passed, dealing with cumulative impacts and the scope of assessments, which effectively change the ground rules of all assessments. Certainly we understand that a minister is not going to issue a policy direction about a specific assessment, but when in fact he or she can change the ground rules of assessments in Yukon, that's our concern.

[The Chair, Conservative, Blake Richards]

Sorry, Mr. Leef, but your time has now expired.

We'll move to Mrs. Hughes for the next four minutes.

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

I know there isn't a lot of time, so I'll try to move this along more quickly.

The Prime Minister had indicated with the apology and then again at a subsequent meeting that he needed to forge a new relationship with first nations. From what we can see in the amendments that are being put forward, do you feel that this is forging a new relationship with first nations at all?

I came here and I was astounded by the lack of snow you have here. I know how warm it was two years ago, so with climate change and the impact that these amendments could have if the minister has that ability....

Again, I think we also have to look at the fact that, when it comes to the negotiation part, the relationship is between the crown and the first nations, not the territorial government and the first nations.

I am just trying to get some sense from you, some comments on climate change, the problematic areas of this bill here, and whether or not this is forging a new relationship.

[Chief Eric Fairclough]

No, what he's basically trying to do is pick away at our final agreement and water it down. How does that improve relationships with first nations? It's the same with the Yukon government in recognizing this is happening. How does that improve relationships with first nations? When it comes to the mining industry, for example, the reason Yukon is so low is that poor relationship that has taken place.

I want to remind people that the federal minister did come to us at one time saying he was absolutely embarrassed that the federal government had not successfully implemented a modern treaty agreement. Then his actions here are to pick away and water down first nations final agreements. It doesn't make sense.

[Daryn Leas]

Certainly, there's not much I can add. I think Chief Fairclough stated it eloquently.

We cannot continue to have implementation of land claim agreements by way of litigation. I think the point should be raised that Yukon first nations negotiated for decades and never once did we go to court during the course of those negotiations. In the last 10 years we've been to court almost every year on implementation matters. That's extremely frustrating. People invested years, millions of dollars, and made significant compromises with respect to aboriginal rights, titles, claims, and interests, and this is where we are.

It's a sad reflection. At the end of the day, those land claim agreements were the basis of the foundation for a new relationship. We're still waiting to develop that relationship and it's getting tougher and tougher, and harder and harder, as relationships continue to deteriorate.

I want to state that we still remain optimistic and hopeful, and stand by those agreements, that one day there will be a full realization of the rights and benefits that benefit all Yukoners under those agreements.

[The Chair, Conservative, Blake Richards]

You have 40 seconds.

[Dennis Bevington, NDP, Northwest Territories, NT]

I have just a quick comment because of the time we have.

This government operates a bit on fear. When they came to the Northwest Territories to change the Mackenzie Valley Resource Management Act, they used the same argument that we're bush league when it comes to dealing with the mining industry and that we need to improve our processes. They pointed at Yukon over and over again. I heard these comments and if you want to google Hansard, you'll see them from your own MP about how well Yukon was doing—

[The Chair, Conservative, Blake Richards]

I'll have to stop you there, unfortunately, Mr. Bevington.

I guess everyone will have to try Google. Exactly.

Our final questions for this panel will come from Mr. Seeback.