Indigenous and Northern Affairs Committee on March 30th, 2015

[Yvonne Jones, Liberal, Labrador, NL]

Again, it's common sense when you want to do business in the land that is owned by someone else.

[Samson Hartland]

What you have to understand is that we're talking about the Umbrella Final Agreement here, right? The Umbrella Final Agreement we are not a party to—

[The Chair, Conservative, Blake Richards]

Make it quick, because the time has expired.

[Samson Hartland]

Okay.

[The Chair, Conservative, Blake Richards]

All right.

Mr. Leef, for the final five minutes.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Chair.

Indeed we're onto the fruitful piece of the day's meetings. I appreciate that some of the questions have put you in a position between a rock and a hard place. Nonetheless, it's important that the committee ask them.

I'm going to paraphrase a bit of everything we've heard today. Invariably the committee will go back to Ottawa and carefully review all of the testimony, because there has been a lot. I've been taking notes as diligently as possible to make sure I have an accurate reflection of what's been said.

I do know that Yukon first nations are still here and are indeed engaged in this discussion and are listening to this. I think right now they're absorbing what you've articulated and they will indeed have an opportunity to comment on it. I think all committee members look forward to that.

I think the grand chief presented her concerns well today. I think all the chiefs did. They outlined them clearly for us to review. They very clearly articulated that the clause on timelines, the clause on adequacy, the clause on binding policy direction, and the clause on delegated authority should all be removed. In fact, Deputy Chief Olsen, on the issue of timelines, said they wouldn't provide any benefit to industry. We're hearing very polarized comments on that one piece.

In summary, I didn't hear—although, I think we'd love to hear it, if it were expressed—an invitation to meet and talk about those four pieces again. I did hear very clearly talk about removal of those four pieces. Ms. Rippin Armstrong said she has indication that there is a possibility to discuss those four pieces.

Ms. Rippin Armstrong, what level of indication have you received that first nations are indeed very interested in discussing those four pieces? Are there specifics that you can recommend to the committee? I do appreciate it would have been a great question to ask the first nations. I'm sorry that we don't have the opportunity right this second, but I think we can afford that, because they are listening, so we'll get some comments on this.

From your point of view, as an industry stakeholder in this, what have you heard that would indicate there is definitely room to move on the timeline and adequacy pieces, that you could help us with?

[Allison Rippin Armstrong]

Thank you, Mr. Leef.

It's not so much that I've heard specifics about whether there would be a willingness to move on certain things. But I have heard through numerous conversations, even this morning—and I've been here since 8 a.m.—that the preference is for reconciliation. The preference is to address this.

We've had ample time to have longer discussions since there are only three of us in this one-hour slot. In the previous presentation this morning, the panels had very little time. They put forward their positions and repeatedly this morning, when the first nations were being asked questions, their answers were cut off before they even had a chance to respond. I think we missed out on a lot of really valuable conversation this morning because of the timeframes.

I have loads of examples in my book of questions being asked and then the response being “no time for response”, and then, “Thank you very much. We have to move on”. It's not my place..., and it's unfortunate, but I think you missed out on opportunities to hear those answers expanded upon this morning because of the timelines.

[Ryan Leef, Conservative, Yukon, YT]

I think the committee generally directs witnesses that if they are not able to give a fulsome response and there are additional pieces to answers, they are always invited to follow up with written submissions, which will be valuable. Then we're able to really look through them as we go. It's tough to simply keep track of everything that's been said today. Nonetheless, there have been very valuable things. We appreciate your input on this, and the recommendations from each of you. We certainly look forward to looking everything over.

My time has probably expired, Chair.

Thank you all for your input.

[The Chair, Conservative, Blake Richards]

Thank you, witnesses.

Certainly I will reiterate the point that was just made, that the committee welcomes written submissions at any time. They can be sent in via me to the committee. Anyone who has suggestions is welcome to do that.

We will now suspend briefly to set up for the next panel and then carry on from there.

The meeting is suspended.

[The Chair, Conservative, Blake Richards]

We have with us at this point, from the Klondike Placer Miners' Association, Stuart Schmidt, the president, and Randy Clarkson, the executive director. We also have, as an individual, David Morrison, who is retired and who is the former president and CEO at Yukon Energy Corporation.

We will give each of you an opportunity to make opening remarks and then we'll follow those with questions from the members. We'll start with the miners' association.

Mr. Schmidt, I assume you'll be making the presentation, so the floor is yours.

[Stuart Schmidt, President, Klondike Placer Miners' Association]

I will, thank you. I'll try to get started right away because seven minutes goes by pretty quickly.

Good afternoon, Mr. Chair. My name is Stuart Schmidt. I am president of the Klondike Placer Miners' Association. With me is Randy Clarkson, the executive director of the association.

Legislation concerning YESAB is very important to our industry. We have experienced a great deal of frustration with this process, and we feel that improvements to the process would benefit all Yukoners. The KPMA represents over 100 family-based mining operations in the Yukon as well as many service industries and suppliers. We've been working here for over 130 years as a private sector generator of wealth.

Our industry cumulatively produces over 60 million dollars' worth of gold every year and at least 2.5 times that in spinoff benefits. These are important to the people of the Yukon.

Only water and gravity are used to concentrate placer gold particles. No chemicals, such as mercury or cyanide, are used. No rock acid drainage or other chemical leaching problems occur as a result of placer mining. We are very aware of the importance of environmental stewardship, and we have respect for the land from which we make our living.

Without exception all Yukon placer mines are privately financed operations, and the majority are family owned with many generations working together. This is one of the reasons we can keep operating throughout market cycles even when the stock market is compromising the ability of public companies to operate. This is also one of the reasons we are able to speak freely to you today as we do not have shareholders who worry if they see controversy over legislation in the Yukon.

I employ 24 people, and 11 members of my family and extended family depend on mining for their incomes. Many of my employees have children and families they also take care of. This situation is typical of Yukon placer mines.

Even before the advent of YESAB, our industry had become heavily regulated over the last 20 years with regulations covering all facets of mining from water use, water discharge, stream reclamation, and terrestrial reclamation. The placer industry has more experience with YESAB designated offices than does any other industry or working group in the Yukon. Thirty-eight per cent of the assessments of designated offices have been for placer mines.

There are four parts of this proposed legislation that are controversial.

One is reassessments of project renewals, proposed subsection 49.1(1). For all of our water licences and land use licences that we have already been assessed for, we will need to go through another assessment at renewal. Very minor amendments will also be assessed. Somehow we need to address this issue of assessing the same project multiple times.

Number two is timelines. Placer projects are at the designated office level, so we shall comment on timelines for this level. Since the implementation of YESAB, our timelines for licensing have increased substantially. Since the placer resource is often more difficult to delineate and explore than hard rock resources are, we need to be agile in how we approach our work. Timelines proposed in this legislation are too long for placer mining and could be much shorter. We also think this is an important area for discussion.

Number three is policy direction. We believe that someone should be able to give direction not just to the YESAB board but, somehow, to the designated offices. The designated offices must be accountable for the recommendations and for their information requests. I came across this issue when I asked the head of a designated office who I could appeal an information request to and I was told, “You may not appeal this to anyone. I am the authority here.” All of us are accountable to someone, somewhere. In the case of a politician, it is the electorate. If you're a gold miner, you must pay your bills and follow the rules. Somehow someone needs to be able to give the designated offices direction to ensure consistency and to ensure that they are not bringing their personal bias to this very important job that affects everyone in the community they live in. We believe this is an important area that needs to be dealt with.

Number four is delegation to the minister. This, again, is a very controversial issue. Devolution and the voice of local government, both first nations and Yukon government, make sense to us, so we believe in local decision-making. We supported devolution of the once federal responsibilities to our elected Yukon government, and we feel this was an important milestone for the people of the Yukon. That's all I'm going to say about it until you ask me more questions.

Number five—here I'm adding points to these controversial issues, because there are other issues that simply aren't covered by this bill—is a lack of procedural fairness. This is an additional issue that we did bring up with the Senate. There's a lack of procedural fairness in the YESAB process. YESAB designated offices' procedures for seeking views and information do not follow the rules of natural justice. There are no opportunities for proponents to address last-minute interventions, and most interventions come at the last minute. Once the “seeking views and information period” is over, the proponents need a reasonable amount of time to respond.

A further one is our number six. YESAB is not restricted to receiving only the evidence gained in the information response and in seeking views, period, but routinely solicits information from other sources and other projects without our knowledge or giving us a chance to respond. This is why we never know what to expect in YESAB recommendations. They often come out of the blue.

Number seven is that the decision bodies are not allowed to consider evidence that was not presented during the YESAB assessment. The proponent needs to be able to answer questions and exchange views with the decision body. YESAB is not always accurate. We're only human. We make mistakes. If further questions occur at some point, they should be answered, just like you should be able to ask more questions of the first nations tomorrow if they feel that they didn't get enough information today.

In conclusion, the work we do in the Yukon is simple and straightforward. Our environmental liability is low. When we ask that improvements be made to this legislation, we are not asking that the environment be sacrificed in any way. We are simply asking that we not be sacrificed in the name of legislative arguments and to make environmental screening appear good on paper.

The more onerous this system becomes—and it's rapidly becoming more onerous—the more difficult it is for small companies like mine to work. More and more, we are forced to hire professionals to help us find our way through the system. Our industry is under a regulatory burden that has little to do with real environmental protection and everything to do with a system that needs direction from someone, somewhere.

It is our sincere hope that this committee leaves here with a greater understanding and a determination to find a way through the morass of differing opinions, remembering all the while that there are people on the ground trying to maintain their livelihoods, earn a living, and contribute tax dollars to both the federal and the territorial governments.

We are the ones struggling with this system. Ask your presenters how many times they have gone through the process when they present to you their opinion on this system. Many would change their views of YESAB if they had to experience being the proponent. We are not legislators, nor do we pretend to have a comprehensive understanding of the agreements between first nations and the Yukon and federal governments.

Please help us deal with this difficult situation we find ourselves in.

Thank you for the opportunity to present our views regarding the proposed legislation.

[The Chair, Conservative, Blake Richards]

Thank you very much.

Mr. Morrison, you have some time for opening remarks as well.

[David Morrison, Former President and Chief Executive Officer, Yukon Energy Corporation, As an Individual]

Thank you, Mr. Richards.

I'm happy to be here today. Thank you for the invite. Over the years, I have spent a great deal of time involved in the YESAA process. Today I want to talk primarily about the ex-com—or executive committee—process, so I think you have a bit of both sides of it here with my friends from Klondike Placer Miners' Association.

I'm here to talk about what I see and what my experience is in terms of the amendments related to the YESAA process as a whole. Before I start into what I would call the technical part, I want to preface my remarks by saying something about what I see as the issues.

One of the things that I think has been a benefit in terms of having YESAA—and this is my experience—has been that we've been able to work through large projects. I'm not telling you that there haven't been bumps in the road. There have been a lot of bumps in the road, and there are a lot of things about the YESAA process that I would like to see improved, but in any event, from my perspective, there are parts of the YESAA process that have improved over the years. Whether it's through how YESAA's own internal processes, or rules, or operating rules have changed, I've seen some improvements. We've had some good experiences through the YESAA process, and we've had some costly experiences in the YESAA process.

But whether we get to a point through your work such that we have amendments that we go forward with, I want to talk for a minute about the fact that this YESAA process lives and works here in the Yukon, we all live and work here in the Yukon, and the projects that we do are here in the Yukon. It has to work for all of us. If there are significant differences of opinion on issues, we have to find a way to sort them out, because trying to go through an assessment process and then all the various regulatory processes that we find ourselves subject to is a long and detailed process. If we have certainty around the fact that those processes work, we at least have that comfort, but if we don't have that certainty, then this process doesn't work any of us, and it has to work.

Let me talk about timelines for a quick minute. I believe strongly that there have to be some timelines. Having said that and having told you that I want to talk about the ex-com process, in my previous life we went through three ex-com screenings. That's probably more than anybody, but I might be wrong. Beginning to end, individually, they lasted 10 months and three days, one year and two months, and one year and 12 days. From my perspective, I think the 16 months is a good timeline. It gives people enough time to get their work done from an assessment process view, and certainly the projects that I'm talking about were not small projects. They were big projects.

Part of the process when you look at timelines is that we're talking about assessment timelines and people are talking about project timelines. There's often a big difference. Even if I go through a process—let's pick the middle road and say that it was one year to get from assessment beginning to assessment end—only if that assessment end finishes in May or June do I really get to start a project. If my 12 months end in September or October, I won't be doing anything until May or June of the next year.

Timelines sound simple and they sound easy, but it's really necessary to be clear on them when you're starting to work on projects that are worth hundreds of millions of dollars or tens of millions of dollars. It's an imperative, because you're at risk when you talk about the costs and the budgets for those projects.

The other area that I think is important to talk about is adequacy. Adequacy has to be defined, and it needs some clarity. Now, as to whether or not it's included, I'm not going to debate that. But the problem with some of the pieces of the legislation that companies have a difficult time with is that there's not enough clarity and definition around adequacy.

The last area I want to talk about today is cumulative effects. We've added the term “likely to be carried out” to the legislation, but for the life of me, I don't know what that means. Likely to be when? That's really important. How do you as a proponent deal with cumulative effects that might happen five years down the road? I don't know how you deal with that in an assessment process, because I don't know how you have information to deal with it. That needs some clarity and some definition as well.

The final piece is maybe tied to timelines, but it's really about finishing the YESAA process. When I talk about timelines, 16 months or whatever number people settle on, that for me is one thing, but I think having the ability, under that 16-month period, to put some fences around times of stages is also important. I'll give you the example of what we went through in those three projects. The time to go from a draft screening report to a final screening report was 62, 76, and 82 days, and 76 or 82 days, to go from writing the draft screening report to the final screening report, is just a lot of time when you're trying to get to a project and move it forward. When you have a draft screening report, you have the vast majority of the work done.

I'd put some fences around the stages within the timeline periods. As well, I think we'd all benefit from clarity on a couple of those issues: adequacy and cumulative effects.

Thank you.

[The Chair, Conservative, Blake Richards]

Thank you.

We'll move now to questioning by members. We'll do six-minute rounds again.

Go ahead, Mr. Bevington.

[Dennis Bevington, NDP, Northwest Territories, NT]

Thanks, Mr. Chair.

Thanks to our witnesses today.

Mr. Schmidt, you have a very interesting industry. Of course, it gets lots of publicity.

[Stuart Schmidt]

Unfortunately. It's not very good publicity, I don't think.

[Dennis Bevington, NDP, Northwest Territories, NT]

Fair enough. But in terms of the industry itself here, you say it's about 100 families.

[Stuart Schmidt]

Yes.

[Dennis Bevington, NDP, Northwest Territories, NT]

Are there people who come in on occasion to try to come into the industry?

[Stuart Schmidt]

You mean, like, actors?

[Voices]

Oh, oh!

[Dennis Bevington, NDP, Northwest Territories, NT]

I meant—

[Stuart Schmidt]

Yes, there are. There are, but it's a very low turnover, extremely low. Many of the people who have been in the industry have been in it since their parents were in it, or they've been here for many years.

[Dennis Bevington, NDP, Northwest Territories, NT]

Do you get the occasional bad apple showing up?

[Stuart Schmidt]

Of course.