Indigenous and Northern Affairs Committee on April 21st, 2015

[Tara Shannon, Director, Resource Policy and Programs Directorate, Northern Affairs, Department of Indian Affairs and Northern Development]

There isn't an existing reference to the devolution agreement because of that agreement's structure, which speaks to jurisdictional responsibilities, not explicitly to delegation itself, and I think it's probably best if I turn to legal counsel Tom Isaac to speak to some of the technical issues.

[Tom Isaac, Senior Counsel, Negotiations, Northern Affairs and Federal Interlocutor, Department of Justice]

Thank you, Mr. Chairman.

The amendment would seek to have a delegation be compliant with the Yukon Northern Affairs Program Devolution Transfer Agreement, but that agreement doesn't address any issues with respect to the delegation of authority between the federal minister and the territorial minister.

There would be quite a bit of ambiguity as to what “compliance” would mean. The Yukon transfer agreement doesn't have any provision that a delegation by a federal minister to a territorial minister would be compliant with it. That is not addressed, so the question of what “compliance” would mean would be ambiguous.

The Yukon Umbrella Final Agreement has a provision that allows for public governments to delegate responsibilities among themselves to determine what powers of a public government minister should be exercised by whom.

YESAA has a provision that says the delegation would have to be compliant with those final agreements, and the Yukon Northern Affairs Program Devolution Transfer Agreement itself has a provision that says nothing in that agreement can be inconsistent with the land claim agreements, so from an interpretive prism, it's the government's view that the Yukon final agreement should be the test of whether a delegation is within law or not within law, and not the Yukon devolution transfer.

[The Chair, Conservative, Blake Richards]

Thank you for that.

Mr. Strahl, do you have anything further to add?

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

No.

[The Chair, Conservative, Blake Richards]

Do any other members wish to speak to this amendment?

Seeing none, I would ask, all those in favour of amendment PV-3?

(Amendment negatived [See Minutes of Proceedings])

We will then obviously not proceed with amendment PV-4 because it's identical.

That looks like the end of our amendments on that clause. Can I carry clause 2 on division?

[Niki Ashton, NDP, Churchill, MB]

We're opposed. Yes.

(Clause 2 agreed to on division)

[The Chair, Conservative, Blake Richards]

I see no amendments on clauses 3 through 13. Does the committee want to proceed with clauses 3 to 13 on division?

(Clauses 3 to 13 inclusive agreed to on division)

(On clause 14)

On clause 14, I see that we have some amendments here as well. The first one I have is amendment NDP-2.

Is there anyone from the NDP who wishes to proceed with that one?

Ms. Ashton.

[Niki Ashton, NDP, Churchill, MB]

Yes, Mr. Chair.

It's pretty straightforward. This is one of the core demands made to us by Yukon first nations and Yukoners who oppose Bill S-6. We stand with them in opposing the bill, but in particular in asking for the deletion of clause 14.

[The Chair, Conservative, Blake Richards]

I will have to rule that this amendment unfortunately is not in order. It seeks to delete a clause. As per House of Commons Procedure and Practice, what can be done there instead is that members who do not want to see a clause proceed can certainly vote against the clause. The amendment would not be in order.

We would then move to amendment PV-5. I'll note here as well that amendment PV-6 is identical, so if amendment PV-5 is moved, we cannot proceed with amendment PV-6.

Ms. May, would you like to speak briefly to amendment PV-5?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes, of course, Mr. Chair. As you can see, we were trying to juggle. With so many committees meeting at the same time this week, all having passed those identical motions that require the Green Party to show up for clause-by-clause in all of them, we weren't sure whether it would be Mr. Hyer or me. I apologize for the fact that there are duplicates in the package.

On amendment PV-5, what we're attempting to do is similar to what amendment NDP-2 did, but rather than delete it, we recognize the same difficulty with this section. The brief from the Council of Yukon First Nations has been very clear in finding these sections to be deficient, as these were made at the last-minute and without meaningful consultation with Yukon first nations. The clause as written would automatically exempt projects from being subject to any new assessment if the authorization was renewed or amended. This is viewed with real concern, in that the approach could mean that there would be a wide-scale exemption of many projects.

What I'm attempting to do with this amendment—what the Green Party is attempting to do—is to create a reverse onus, so that in cases where there is an authorization that's renewed or amended there would be an automatic requirement for a review, except when, in the opinion of the board, there is no significant change to the original project. The effect of the bill as drafted could remain the same, but it creates a far greater likelihood that projects that should be reviewed if they are being renewed or amended will receive proper review, unless the board is of the view that they should not.

I recommend to the committee that this is a prudent amendment and would meet at least some of the concerns. Obviously I don't speak for Yukon first nations—I imagine that at this point they are considering constitutional challenges to Bill S-6—but this would be a practical and I think prudent amendment, meeting the spirit of the law.

Thank you.

[The Chair, Conservative, Blake Richards]

Thank you, Ms. May.

Mr. Strahl.

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

We believe this clause reflects section 12.4.1.1 of the Umbrella Final Agreement, which states that “Projects and significant changes to Existing Projects” are “subject to the development assessment process”.

A similar provision exists in the Nunavut Planning and Project Assessment Act in section 145, and in environmental assessment legislation in British Columbia, in subsection 18(6) of the Environmental Assessment Act of British Columbia, so we think it is consistent with the UFA.

[The Chair, Conservative, Blake Richards]

Do any other members wish to speak to this particular amendment?

Ms. Jones.

[Yvonne Jones, Liberal, Labrador, NL]

I'd like to speak in support of this particular amendment because, again, it was one of the areas in which there was a lot of debate, not only in the public forums that we held in Yukon but also in many of the individual meetings that we held with stakeholders in that area. Again, I want to get back to the piece regarding significant change and the fact that it has not been defined in the act and that it really is open to interpretation, which could be very wide-scaled in many cases.

The other piece to this was when they talked about renewing or amending an original project. In lots of cases, circumstances change. We live in the north where we're going through things like climate change. We're going through a lot of environmental changes that could have an impact on different projects at different stages. So sometimes it doesn't have to be significant for it to have tremendous impact and require consultation.

I think the amendment really allows for more flexibility and for more input by people who live in that area, so that they will be able to express their concerns and review at certain points in time where a project may be and what the impact of that project could be in the area where they live.

I don't think the intent of the amendment is to slow development in any way. I don't think the intent is to cause grief to any of the companies that are operating in this area, but rather to be more inclusive, to ensure that there is full awareness and engagement of all people who live there, and that at certain points in time when there are changes in industrial development or projects of significant development, they will at least have an opportunity to provide input and to re-evaluate where those projects are is in terms of their impact upon the Yukon. For those reasons I feel it is important that the amendment be supported by the committee.

[The Chair, Conservative, Blake Richards]

Mr. Strahl.

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

I think I've addressed our opinion on the significant change portion.

However, the second part of this amendment contemplates giving the board additional powers, and I just want to ask the officials whether or not again the original agreements that we're basing this on contemplated that. How would you give the board this new power in the current framework?

[The Chair, Conservative, Blake Richards]

Ms. Shannon or Mr. Isaac, did you want to respond?

[Tara Shannon]

What I would say is that there was initially some consideration of having this rest with the board. However, through consultations it was made clear to us that it would be inappropriate to have the decision of significance rest with the board. That concern was put forward to us by the board itself, as well as by first nations. It is because the board is a recommending body, and it is the decision bodies that actually make the determinations on projects and on those recommendations. Therefore, the decision of a determination of significance more properly rests with the decision bodies. Depending on where a project is located, a first nation could be a decision body, as well as a territorial minister and, in very limited circumstances, a federal minister.

[The Chair, Conservative, Blake Richards]

Do any other members wish to speak to this?

Mr. Bevington.

[Dennis Bevington, NDP, Northwest Territories, NT]

Just in terms of practical consideration, I think back to the Ekati mine decision that was made in 1997. After the decision was made, Ekati deleted one of its pipes from the project, a pipe that would have created a 40-year mine life. Mine life dropped to 25 years without that particular pipe, and that had a significant impact on the economic conditions of that mine for the people of the Northwest Territories.

There was no reassessment of the mine. There was no reappraisal of the mine life in order to maximize the use of natural resources for the people of the north. That decision was made by a federal Liberal minister at the time, and we had to live with it.

When we talk about someone other than a northerner determining significance, we can look at the record, and the record, I think, is not good.

Under the act, the board would be responsible for looking at all aspects of a mining project or any other project, including the social and economic aspects, in terms of their value to the people of that particular region. It's very important that those considerations be taken into account. That's why I think, practically speaking, northerners would like to see northerners making those decisions of significance.

That's my addition to this debate. I'm sure this government in its paternalism will continue on the road that it's on, and we'll have to deal with that, but it's unfortunate that there's not more understanding about these issues by the government.

[The Chair, Conservative, Blake Richards]

Do any other members wish to speak?

(Amendment negatived [See Minutes of Proceedings])

Seeing no other amendments, shall clause 14 carry on division?

[Niki Ashton, NDP, Churchill, MB]

Are we able to have recorded votes on this side?

[Dennis Bevington, NDP, Northwest Territories, NT]

When amendments are being put forward, we will look at having votes. There are no amendments being put forward. Those are not clauses that we're testing.

[The Chair, Conservative, Blake Richards]

Recorded vote, all those in favour of clause 14?

(Clause 14 agreed to: yeas 5; nays 3)

(Clause 15 agreed to on division)

(On clause 16)

On clause 16, I see we have some amendments here as well. First on my list is amendment NDP-3. Does anyone wish to move that?

Ms. Ashton.

[Niki Ashton, NDP, Churchill, MB]

Mr. Chair, we're proposing the deletion of clause 16. This represents a core concern or demand made by Yukon first nations and Yukoners opposed to Bill S-6 and it's seen as being detrimental to their ability to continue to guide the process of development in their territories and their territory. We stand with them in asking for this clause to be removed from Bill S-6.