Indigenous and Northern Affairs Committee on June 20th, 2017

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, everybody.

First, we'll start as we regularly do. We're on the unceded territory of the Algonquin people, especially important as we're beginning a process of truth and reconciliation, our government's commitment to move forward on the files, and the fact that we were able to table our unanimous report on the suicide crisis in indigenous communities among indigenous peoples, which I think went quite well.

We're here to talk about Bill C-17, economic development and land use planning in the Yukon. I want to welcome the department.

Pursuant to Standing Order 108(2), the motion adopted on Tuesday, May 2, 2017, the committee begins its study of the subject matter of Bill C-17, an act to amend the Yukon Environmental and Socio-economic Assessment Act and to make a consequential amendment to another act.

We have INAC with us this morning. You have 10 minutes to present, as is standard routine, then we'll open it up for questioning in a rotational manner.

I turn it over to you.

[Stephen Van Dine, Assistant Deputy Minister, Northern Affairs Organization, Department of Indian Affairs and Northern Development]

Good morning.

Thank you, Madam Chair and honourable members, for the opportunity to appear before you to offer assistance in your subject-matter study of Bill C-17, An Act to amend the Yukon Environmental and Socio-economic Assessment Act.

Appearing with me are Gilles Binda, acting director, resource policy and programs, and Daniel Pagowski, legal counsel with the Department of Justice.

Madam Chair, I will begin by providing some recent history of the evolution of the Yukon Environmental and Socio-economic Assessment Act, known as YESAA, to give some context and understanding of how we arrived at where we are today.

In 2008, a mandated five-year review of the YESAA was launched as a requirement under the umbrella final agreement, five years after its royal assent. The review was completed in 2012, resulting in 76 recommendations, 72 of which were agreed to by all parties. Some of the recommendations required legislative change in 2014. These changes to the Yukon Environmental and Socio-economic Assessment Act were introduced in Parliament in Bill S-6, Yukon and Nunavut Regulatory Improvement Act.

However, the bill included additional provisions to those recommended by the review. The majority of these were part of a broader initiative to modernize and streamline the northern regulatory regime. However, Yukon first nations raised serious concerns about four of these provisions. They asserted that the four provisions—time limits on the review process; exempting a project from reassessment when an authorization is renewed or amended, unless there has been a significant change in the project; the ability for the federal minister to provide binding policy direction to the board; and the ability to delegate the federal minister's powers, duties, or functions under the act to the territorial government—did not respect the rights and the interests of indigenous peoples and were not developed using clear, fair, and appropriate processes.

Madam Chair, I believe you will hear from other witnesses from the Yukon, our first nations partners, and the Yukon government, who will iterate their concerns with these provisions. Suffice it to say it was clear that we all needed to work together to resolve these issues.

Following the general election in October 2015, the Minister of Indigenous and Northern Affairs committed to exploring ways to address the concerns raised about the four contentious provisions and to renew the government's relationship with first nations in Yukon.

Let's examine in detail how the government came to introduce Bill C-17. In order to resolve these issues stemming from the coming into force of the Yukon and Nunavut Regulatory Improvement Act, formerly Bill S-6, that ultimately led to a court action by being filed by three first nations, we began discussions with Yukon first nations and the Yukon government in December 2015.

Department officials met with Yukon first nations and Yukon government representatives on January 14, 2016, in Yukon. The outcome of those discussions was positive, and all parties agreed to meet again in the near future. The next meetings, on February 11 and 12, 2016, proved constructive, as the parties agreed to a potential legislative solution to the first nations' concerns. It was also agreed that the parties would move forward on redefining their working relationship in the spirit of co-operation and collaboration.

A legislative proposal to repeal the four contentious provisions of the Yukon Environmental and Socio-economic Assessment Act was prepared and sent to first nations and the Yukon government for review on March 14, 2016. A third meeting was held between federal officials, Yukon first nations, and Yukon government on March 29, 2016. Canada proposed a small modification to the draft legislative proposal to correct an editorial error.

The parties agreed to the revised proposal. Canada, the Yukon government, the Council of Yukon First Nations, and the self-governing first nations signed a memorandum of understanding to that effect on April 8, 2016. Representatives from industry were also provided an opportunity to comment on a draft legislative proposal. On March 13, 2017, the Yukon Chamber of Mines co-signed a letter, along with Yukon first nations and the Yukon government, to the Minister of INAC articulating their unqualified support for Bill C-17, urging that it be “passed, without change, as soon as possible”.

Madam Chair, we recognize that the mining industry has concerns about environmental assessment timelines and project reassessments in Yukon, but they also understand and appreciate the collaborative nature of environmental assessment processes in the north. All parties in Yukon want the economic prosperity that resource development can bring. However, in a political and social landscape that includes public government, self-governing indigenous peoples, and those with constitutionally protected land claims, collaboration and “made in the north” solutions are key. As the parties state in their letter of March 13:

Repeal of these amendments and addressing industry concerns through collaborative framework is critical to re-establishing confidence in the development assessment process in Yukon and to honouring the intent of Final and Self-Government Agreements.

Madam Chair, Bill C-17 is in direct response to the expressed wishes of Yukon first nations, the Yukon government, Yukon residents, and the mining industry that does business in Yukon. If ever there was an example of independent self-determination by northerners, this is it.

Thank you, Madam Chair.

My colleagues and I would be pleased to answer any questions that committee members may have.

Thank you very much.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much.

We will start the question round now. MPs will move through the first phase in seven-minute blocks of time. We'll start with MP Larry Bagnell.

Welcome, Larry.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Thank you to the committee for providing me time. It's not often that one bill affects just one riding. I appreciate all the time that members have set aside for this.

As well, thank you to all the parties and the House leaders for coming to an agreement to finish the debate last night on the second reading of this bill. I really appreciate it.

I also appreciate all the work done by the department, as you just outlined, in terms of simply removing four clauses because of a bad process. You've done a lot of diplomatic work, and I certainly appreciate that.

There was an item that came up in debate—when you sift through all the debate, this was the substantive item—that seemed to be a concern. It was related to timelines. My understanding, and perhaps you could elaborate, is that the problem has now been solved, that there are actually timelines local.... We've heard a lot from members in the House. They want local decisions being made in the Yukon, so the timelines are set by policy of the board. To apply to Mr. Saganash's concern, of course, the first nation has a seat on that board, so those timelines wouldn't exist without their approval as well.

Maybe you could elaborate on the timelines, because I know it's the one item that all committee members are interested in.

[Stephen Van Dine]

Timelines certainly are a subject of focus for the board. The YESAA board has established business operating procedures to ensure that it conducts business in a timely and efficient way. Those procedures existed prior to S-6 and the practices therein. Where I would say the concern arose was over whether or not that was sufficient.

First nations and all Yukoners are certainly very proud of the Yukon Environmental and Socio-economic Assessment Act they developed. They believe it to be one of the more modern pieces of environmental assessment legislation in the country. They're very proud of the collaborative approach that led to the creation of that legislation. It's very competitive with other environmental assessment systems in the country. We are confident that the spirit and intent of the umbrella final agreement to co-create the legislation and a co-management board such as YESAA will have the best views of Yukoners in mind, and will continue to establish the business processes necessary to be a competitive and sustainable view on socio-economic matters for the Yukon.

[Larry Bagnell, Liberal, Yukon, YT]

You mentioned in your speech, and it came up in the House a lot, that Yukon first nations raised serious concerns. However—just to elaborate so the committee knows—it wasn't just first nations. There were two huge public gatherings. They filled a big room, much larger than this room. The majority of those people were not first nations people. It was on the process of these four clauses being put on Yukoners without a giving them a chance to debate them.

I think the committee will be very delighted to give them its support. The Yukon legislature in the last few weeks passed a unanimous motion with all parties—Conservative, NDP, Liberal, etc.—supporting this.

Could you explain how this will provide more certainty? That was certainly an issue raised in the House.

[Stephen Van Dine]

You may recall that Minister Bennett, along with a number of other ministers, had within her mandate letter an explicit commitment to restore confidence in the environmental assessment process. One of the biggest things that can occur to raise questions and create some ambiguity and uncertainty for an environmental assessment process is to have that process questioned and litigated. Having this litigation action hanging out there created some questions about predictability with respect to projects and some uncertainty with respect to the investment climate and whether or not the board would have the ability to undertake the work in an unfettered, independent way.

With that focus to restore confidence in the environmental assessment process, we officials dispatched fairly quickly, after the mandate letters were posted, to open up discussions with the parties in Yukon to help find an agreed upon solution as quickly as we could.

[Larry Bagnell, Liberal, Yukon, YT]

Did you have any discussions with the mining community?

[Stephen Van Dine]

We certainly did.

I think it's safe to say that the mining industry was very interested in the original four provisions. We had several discussions with both the local chamber and the Mining Association of Canada and came to a common understanding that, essentially, there was no industry concern over what I would call the “basic plumbing” of the environmental assessment act in Yukon. They were quite pleased with the fact that projects continued to be reviewed in a timely and predictable way. Their concern was wanting that extra assurance that communities were as interested in timely reviews as they were. I believe they were able to have those discussions themselves with the communities and the parties, and I believe that the best situation possible did occur: communities and the mining industry came together and gave each other assurances that they both were of the same view with regard to timely and predictable review processes.

[The Chair, Liberal, MaryAnn Mihychuk]

You have 20 seconds left.

[Larry Bagnell, Liberal, Yukon, YT]

I'll close by saying I'm glad you raised the fact that with these four clauses gone, the regime is very competitive with other environmental assessment regimes across Canada, so I didn't have to ask that question.

Thank you very much.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning now goes to MP Yurdiga.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you, Madam Chair, and good morning to our witnesses.

This is a very contentious issue for some, and not so much for others. The biggest issue that we're looking at right now is the uncertainty. In the Assiniboine, they're doing the social economic review. Is it policy or is it regulations? Can they change at any time? I know that with Bill S-6 there was certainty that there would always be timelines.

Could they pull out the timelines at their discretion?

[Stephen Van Dine]

You're raising the question about the predictability of how the board will behave.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

As far as the timelines go.

[Stephen Van Dine]

Yes. With that, there is a certain set of understandings that were negotiated through the umbrella final agreement, which then led to the legislation to implement the umbrella final agreement with respect to environmental assessments. Within that, there was an understanding that the board itself would have the ability to set certain operating procedures, and that level of independence was seen as being fairly important to the overall architecture of implementing the umbrella final agreement.

There's a trust factor that goes along with the establishment of the board and the operating principles. The executive committee of the board certainly continues to lead the country in terms of best practices and making sure that they have efficient processes in place to attract investment and to deal with projects in a responsible manner.

To turn it around, there has been no suggestion that they would change that approach. In fact, it has been quite the opposite. They've been very focused on meeting and being client-oriented.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

What I'm looking at, they're in charge of their destiny in terms of implementing what they feel is necessary to protect the environment moving forward. What you're saying is that it's up to them. They can eliminate the timelines if they decide to. Am I correct?

[Stephen Van Dine]

They have the ability to set their own operating procedures, yes.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

So they have the ability to remove all timelines. That creates uncertainty for industry.

Also, going to the environmental reassessment, I know from before that if there is no significant change, they don't have to start the whole onerous process from scratch to ensure that they can continue to operate. The way I understand it, that is going to be removed. When your permit's up, you'll have to do the whole assessment again. Is that correct?

[Stephen Van Dine]

Gilles, did you want to...?

[Gilles Binda, Senior Advisor, Natural Resources and Environment Branch, Northern Affairs, Department of Indian Affairs and Northern Development]

Yes, I will answer that.

With the old YESAA, when the YESAA board would scope a project and look at the length of time their assessment would be set at, it would be set to the longest authorization that was required. Let's say the longest was a water licence for six years, then the environmental assessment was good for six years. When the project proponent had to come back for a new water licence, then they would have to go back for a new assessment of the project.

Since Bill S-6, the board has instituted a new scoping policy which takes in all the information that the proponent now provides, and the scoping and the length of the assessment is now much longer and linked to the information that is provided to the proponent, and is no longer linked to the longest authorization.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

What I'm trying to say is that after the term is up, whether or not the permit's up, and no matter what time period it is, they would have to do a reassessment.

[Gilles Binda]

Not anymore. The assessment is for a longer period than that for which an authorization is required now, because of the new policy that the board has instituted, their new scoping policy, which is more in line with every other jurisdiction in Canada.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Has your department calculated how much time has been saved for the proponents and associated economic benefits, with the reassessment implemented by BillS-6? Do you have an accounting? Do you know exactly how many people didn't have to go through that reassessment process through S-6?

[Stephen Van Dine]

If I may, your question assumes that Bill S-6 actually brought about time limits and then this takes those time limits away.

Those time limits actually existed before Bill S-6 and the board was operating in a very competitive and effective manner. This provision with respect to time limits was over and above the time limits that already existed, and that's what first nations and Yukoners felt was redundant and overly prescriptive.