Indigenous and Northern Affairs Committee on March 30th, 2015

[Chief Steve Smith]

We have had a couple of conversations, but they were more sharing pieces. They were not what we would term consultation in the strict legal definition of “consultation”. The territorial government has come and presented its case.

At one of our initial meetings, the premier stated that the Yukon government did not put forward any recommendations, and later we learned that two of the recommendations were propositions by the territorial government to the federal government with regard to the four.

[Dennis Bevington, NDP, Northwest Territories, NT]

You make so many valid points here about these four particular amendments. The timeline additions and the general exemption, there is a record within environmental assessment as to the difficulty to initiate those things. How can we better expose these issues to the population of the territory and generally to Canadians? There are serious implications for the future of these three territories.

Can anyone comment? I am just struck with what you have said already.

[Chief Doris Bill]

We have wanted the committee to come here; Yukon first nations made that request when we were down in Ottawa. We would have liked to see this committee sit a lot longer to hear from the people in this room, to hear from the people outside of this room, to hear about the implications of this bill on our communities, on our land. We do not take this lightly.

We will fight it at all costs. We believe that Yukoners deserve a say in what happens here.

[The Chair, Conservative, Blake Richards]

Thank you.

The member's time has expired, so we'll move to Mr. Leef.

[Ryan Leef, Conservative, Yukon, YT]

Thank you to all of you for your well-organized presentations. It was great for each of you to address individual points in your areas of concern.

My first question will be for Chief Bill in respect to the unilateral binding policy direction. This concern was raised earlier this morning. I just want to clarify if it's your understanding of the bill that any binding policy direction cannot be applied to any existing or completed project.

[Chief Doris Bill]

I'm going to defer that to one of our technicians.

Thank you.

[Roger Brown, Manager of Environment and Natural Resources, Department of Lands and Resources, Champagne and Aishihik First Nations]

Hello. I'm Roger Brown for Champagne and Aishihik First Nations.

We acknowledge that the bill does say that, but that's not really the overall issue that we have with this. Again it boils down to one government dictating to an independent board its policy directions.

I want to emphasize that first nations are also highly invested in the Yukon economy and we are proponents as well. We have development corporations that have an interest in and aspirations to develop projects. When we are trying to develop projects that may have life spans of 10, 20, or 30 years, it's a concern to those investments when the project assessment process can be fettered at the whim of government, depending upon the government of the day, whether it's delegated to a territory or if the federal government maintains those binding policy direction opportunities.

We have real, legitimate concerns even from the business development side on the binding policy direction.

[Ryan Leef, Conservative, Yukon, YT]

Okay.

You raised the piece on delegation of authority. I'm sure you heard the premier's testimony this morning where he clearly explained that no delegation of authority at this point is being contemplated and he firmly committed that any delegation of authority would be undertaken with consultation of Yukon first nations.

He also discussed a bilateral approach to the implementation of this. I'm just wondering if I can get your comments. I asked the last panel this very question. I'm just wondering if I can get your comments on that proposal by the premier.

[Chief Steve Smith]

Thank you for that.

We did hear the premier present us with a bit of an olive branch, but the olive branch is a little bit late.

We would have liked to see a trilateral accord set up among the federal, territorial, and Yukon first nations governments to deal with any of these issues that are presented to YESAA. The bilateral accord is good, but it falls short because it lacks the inclusion of the federal government in the picture.

[Ryan Leef, Conservative, Yukon, YT]

We heard that in the previous testimony. Would it be your recommendation then to extend that to a trilateral approach?

[Chief Steve Smith]

Our recommendation is that the government first table the current bill and remove the four contentious issues. Then we can start talking about a trilateral accord that will deal with development in the territory.

[Ryan Leef, Conservative, Yukon, YT]

In respect to the bill, we obviously talk a lot about collaboration, which is very important.

The bill embeds that in particular clauses. Subclause 31(1) refers to “Section 112 of the act is amended...the approval of the ministers and first nations....” The continuing subclause reflects on acts of parliament, territorial law, or first nation law. Some of those pieces of collaboration and recognition for first nations law and first nations governments and first nations approval is very much embedded in this bill.

Have you seen those subclauses, and what are your comments on those?

[The Chair, Conservative, Blake Richards]

The time has expired, but I could allow a very brief response, if someone wants to briefly respond.

[Roger Brown]

I think we would choose to table an answer for that and allow other questions to occur.

[The Chair, Conservative, Blake Richards]

Thank you.

Ms. Jones is next, for the next four minutes.

[Yvonne Jones, Liberal, Labrador, NL]

I thank all of you for your presentations. They were very interesting and certainly in line with other presentations we've heard from other chiefs this morning, which I guess for us reiterates the serious nature and concern of the clauses in this bill that we're dealing with.

First of all, on the bilateral or trilateral approach, it's my understanding that there are trilateral approaches called land claims with three governments. What we're seeing here is the unilateral process that is omitting first nations government, and we cannot overlook that.

The consistent message that I've heard in all of this, which I find very disturbing, is that we have with YESAA a made-in-Yukon approach or law. We have heard people say it's very distinct. We even heard the premier say this morning that it is unique. When I look at that, I ask, why change it? It's held in such high esteem. It seems as if the changes are unilateral by the federal government, supported by the Yukon government, and they have complete disregard for any treaty commitments they've made.

You've told us this morning that there are first nations who actually gave up ownership of land because they had complete trust in this process and how they could still have fair control and fair input into the process. Can you tell me how the changes in this bill are going to have an impact on how you do business in your communities? Can you tell me what process you have now to kind of ratify any compromises you made in good faith and in trust with this government, which have now been broken?

In your presentation you said you really felt that the trust has been broken. It's going to have an impact on how you do business in your land because you had confidence in a process that is going to be changed by the federal government. Do you want to expand on that for me?

[Chief Steve Smith]

We spent 20 years developing our land claim and a further 10 years developing the YESAA process. We went into it in good faith and with the notion that if there were going to be substantive changes to any one of the parts of our land claim agreement, Yukon first nations would be consulted. Many times you hear both federal and territorial leaders speak to the fact that they have consulted with Yukon first nations and that there were a lot of hours and a lot of money spent on the consultation process. However, four of the most contentious amendments were brought in, as you heard earlier, very secretively. It was stamped as secret. We weren't allowed to share it with anybody else. We had to leave all of the documents at the meeting. This was a last-minute approach and was something which, for us, really muddied the waters in terms of having real trust in the process. When we talk about our fundamental issues with regard to the land claim—having stuff brought before us, tabled to us—the Yukon government said that it was adequately consulted and then went on to say that it shared the information with Yukon. That's not consultation.

[The Chair, Conservative, Blake Richards]

Sorry, I'll have to stop it there. We're past time.

We're moving next to Mr. Strahl, for the next four minutes.

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

Certainly the minister, in his speech and when he appeared before this committee to discuss Bill S-6, obviously fundamentally disagrees that Bill S-6 violates the Umbrella Final Agreement, and he laid out the sections that he believes give the government the authority to proceed with the four amendments we're talking about.

The chief just mentioned the consultation. I guess I'm a little confused because on the four amendments, I have a list here: video conference on the responsible resource development in the north initiative, December 2012; teleconference with CYFN on way forward on amending YESAA, April 2013; mail out to CYFN, Yukon first nations, YESAB, and Government of Yukon of first draft legislative proposal and request for written comments, May 2013; discussion on funding with CYFN, June 2013; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon, July 2013; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon on comments received and AANDC's response, November 2013; mail out to CYFN, Yukon first nations, YESAB, Government of Yukon and industry of revised draft legislative proposal and requested written comments, February 2014; consultation session with CYFN, Yukon first nations, YESAB, and Government of Yukon on revised draft legislative proposal, February 2014; another similar consultation session, April 2014; again, May 2014; written responses sent, June 2014.

Then I go to funding for stakeholders on these four amendments: Council of Yukon First Nations, $19,637; Champagne and Aishihik First Nations, $9,403; Teslin Tlingit Council, $13,868; Selkirk First Nation, $1,733; Tr'ondëk Hwëch'in, $7,688; Ta'an Kwäch'än Council, $9,403; Kluane First Nation, $10,864; Kwanlin Dun First Nation, $4,403; Liard First Nation, $5,622; White River First Nation, $7,807; Gwich'in Tribal Council, $10,000; Tetlit Gwich'in Renewable Resource Council, $7,290, and that's just specifically on this issue, on these four amendments.

Certainly when this was before the Senate, the critic, Liberal Senator Grant Mitchell said:

There has been, I think, quite adequate consultation. It's complicated up there in these territories. You have federal, territorial and Aboriginal interests. Some interests are more defined than others because in many cases they are defined by land claim developed treaties or land claim settlements. In other cases, those have yet to be accomplished. So it is very complex, and the fundamental core of this bill gets to that and is an effort to make all of that better and to make processes in the North better.

Certainly, there's a wide range of views on what constitutes consultation. Maybe if there's any time left, I wonder if there are any comments on whether or not $98,000 and a dozen meetings over the course of a year and a half constitute consultation. I'm a little confused there and would like your comments on that.

[The Chair, Conservative, Blake Richards]

There's about 10 seconds.

[Roger Brown]

All I can really say is we've definitely got quite a nuanced and detailed response to that long list there, in terms of the consultation record. Champagne and Aishihik would be happy to table a response to that effect.

[The Chair, Conservative, Blake Richards]

Thank you. We appreciate that. You can certainly do that through me, with a copy to the clerk of the committee.

We will now move to the next round of questioning, and that would come from Ms. Hughes, for the next four minutes.

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

I was going to ask some questions in French, but out of respect for everyone—everyone—who has come here today.... I think it is just unbelievable to see a room this full at a hearing. I don't think I've ever seen that, so I want to congratulate everyone who's here.

You talked about pristine wilderness. You talked about the sensitive landscape. I think I know that this is what you're trying to preserve. You want to make sure that your economy is going prosper, but in doing so you also need to make sure that the legislation and the policies that are in place are the ones that are the best for your community, not just for first nation communities, but for Yukon as well. I want to congratulate you for all the work you've done so far.

When we look at the relationship, I think you have come such a long way with the relationship that's been built here, and over the years we know that's been problematic, both under Liberal and Conservative governments. I think it's very unfortunate that we are where we are today with these amendments that were tabled.

Mr. Leef talked about this deck that was presented in December 2013, I believe it was. Maybe you could explain to me, was this a concept or were there actually details involved? When did you actually get the details of the concept?

[Roger Brown]

The short answer is that during the November 26 meeting we had a very generalized description of the concept being tabled. It wasn't until February 26 that there was a table drop of the specific details of many of the provisions we're opposed to, including the delegation of authority and the binding policy direction matters.

If I may take a bit of time, perhaps I'll just respond on the whole consultation record.

We started back on December 12, 2012. That is when we were notified by fax about a meeting that was following on the next day, within less than 24 hours. We attended that meeting. The only indication was that Canada would be pursuing changes to the YESAA. There was no content whatsoever to that effect.

On February 21 we received a letter from the deputy minister promising the development of a working group. That working group was never established. Our expectation was a tripartite process. By May 30 we had received a letter with a draft bill. We were quite surprised to see a bill in draft form. We thought we would be doing that together. During that meeting there was some offer of funding for the process, and none of the provisions that we're opposed to in the current Bill S-6 were tabled at that time.

Getting back to the point, I'll make this short. It was not until February 26, 2014, that we received the details. Concerning the funding that has been referred to, we had provisions to spend it by the end of the fiscal year. That gave us 22 days, really, to respond to the draft bill. It must be said concerning most of the money we were provided with through agreement in the summer of 2013 that we spent a lot of time using that money to analyze provisions of a draft bill that simply didn't have any of these matters. I'll just leave it at that.

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

In 25 seconds, all I want to ask is, should there be time allocation on a bill such as this one? What is the rush? Shouldn't we get it right?