Indigenous and Northern Affairs Committee on June 20th, 2017

[Chief Steve Smith]

Yes, they will. The amendments will align more and bring YESAA into where we were at the conclusion of the five-year review. At the conclusion of the five-year review, these were amendments that were brought in very eleventh hour and were brought in for just a short two-hour window. There were no copies allowed and no electronic copies, and so it sort of threw off everything.

I think that with Yukon first nations, we had some issues with regard to those four amendments because they spoke to removing Yukon first nations as a key part of any type of review and of any major project. We feel that removing these four provisions in Bill C-17 would closer align to the ultimate objective of YESAA.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Are you anti-development?

[Chief Steve Smith]

No, we're not anti-development.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Do you feel that the mining sector sees you as anti-development?

[Chief Steve Smith]

No, I don't feel that. In any of our workings, for Champagne and Aishihik in particular, we are negotiating in the final stages, and we're getting ready to initial an exploration benefits agreement with a mining company within our own traditional territory.

Anti-development I think is something that is added on to Yukon first nations incorrectly because Yukon first nations are not about anti-development; we're about sustainable development. We're about developing our traditional territory to the alignment of our world view, and that is quite different from a statement of being anti-development. You asked about the mining community within the Yukon and, of course, that worked within Yukon.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Do you not feel that this will add more certainty around timelines and being able to deliver on those timelines, the fact that you have buy-in from the community of first nations?

[Chief Steve Smith]

Sorry, can you repeat that?

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

The fact that you're now engaged in the process and helping to define the timelines, do you not feel that will add more certainty in being able to achieve those timelines because you have been a part of the process in helping to define the parameters around those timelines?

[Chief Steve Smith]

Yes, we do. We feel that the way the timelines have been written within YESAA, they are already being achieved. What happens in the timelines is usually a delay getting the proper information, so whenever assessment comes, they effect it, and then they have to re-effect it whenever new information comes in. There's the delay that happens. I think that, whenever we have mining communities supportive of having the process set up, which is to enable them to effect their project in the most efficient manner—

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you very much for your answer. That's great.

[The Chair, Liberal, MaryAnn Mihychuk]

Sorry, but the time has run out for MP Bossio. We'll move to MP Yurdiga.

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

Thank you, Madam Chair; and thank you to Chief Steve Smith for joining us this morning.

Going through the process from Bill S-6 to Bill C-17, it seems that the most contentious issue is the time limits on the review process. Even in Bill C-17, with time limits not being part of the legislation, the time limits still exist within the Yukon Environmental and Socio-economic Assessment Board.

I don't know why that's a problem in that, in Bill S-6, it was there just as a stopgap measure. Basically, all it said was, yes, we support timelines. Now Bill C-17 is taking that out, but time limits are still there. Am I correct in that analogy?

[Chief Steve Smith]

Can I defer this to Roger Brown, our technician?

[The Chair, Liberal, MaryAnn Mihychuk]

Absolutely.

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

The board has independently developed its own rules and bylaws, including time limits for executive committee assessments and designated office assessments.

I think the problem with the provisions brought about by Bill S-6 was that it imposed a maximum timeline. In addition to that, if there were any extensions requested, those timelines required the approval of the federal minister, and for any subsequent extensions, cabinet approval. That's one problem in terms of the shift in the balance of power and taking away independence of the board. We support the independence of the board in the original intent of the agreement.

In addition, though, for complex projects that might be pushing those maximum timelines, Chief Smith definitely spoke to the adequacy of information, how that can eat up time at the beginning of the assessment and limit the amount of time that first nations can participate. We need to be careful in terms of balancing the assurances that first nations can have meaningful, well-informed responses to projects and not be fettered by legislated maximum timelines. Keeping it at the board level for the rules and bylaws allows a degree of flexibility and non-imposition of legislative timelines, which in our view will only lead to considerable conflict if they're pushed.

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

Thank you.

The process of coming together with industry to work on an environmental assessment was outlined in Bill S-6. The environmental assessment is a large undertaking and is very costly. Has the government delivered on that commitment in the last two years and delivered capacity funding for a working group?

[Chief Steve Smith]

Not to Champagne and Aishihik.

Roger.

[Roger Brown]

We do receive capacity funding to the extent of funding through the fiscal transfer agreements, and those are currently under negotiation. We have been making progress on negotiation of an MOU for resetting our relationship with Canada, the Yukon, and other first nations. That agreement does recognize the need to revisit the adequacy of funding for first nations participation. We are pleased to say that we're very close, that the parties are agreeing on the recommended MOU to move forward to our principles.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

The questioning now moves to MP Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madame Chair.

Good morning to both of you, and thank you for your testimony.

One thing we didn't have the opportunity to ask the people from the department who appeared before you is about the issues around free, prior, and informed consent, the concept of consent in the face of development projects on traditional territories.

I was reminded of the Haida Nation case in 2004, where the Supreme Court talked about the wide spectrum of meaningful consultation in both land claim settlement areas and non-settlement areas. That principle, of full consent of indigenous peoples before development can happen, applied in both settlement and non-settlement areas.

I'd like your opinion on that. Given this process now in place through this agreement, and now this legislation, where do you see that fundamental right fitting into this entire discussion? In your perspective, once you've gone through the environmental assessment and review process, where does the whole concept of free, prior, and informed consent fit?

[Chief Steve Smith]

From a high level, I break it up into two areas. One is that through our land claim agreement, we initialled off on areas of mutual negotiation and mutual authority. YESAA is one of those areas in which we, as a partner within the whole environmental assessment process, feel that prior consent is taken care of.

The second aspect is the actual implementation of YESAA. This goes back to why we felt that whenever projects come before YESAA, a panel made up of all three parties will review the project and allow for the informed consent of Yukon first nations people through the YESAA board. So when these four provisions were implemented, we felt strongly that they removed key aspects of our ability to have Yukon first nations have meaningful input into the project itself and our concerns surrounding the project with regard to the environmental impacts and the socio-economic impacts. By having our land claim agreement, we foresaw the need to actually have input and the ability to imbue our world view and our view of the project, with regard to how it affects Yukon first nations people, into the process. We are always going from the fact that in good faith we said that we would give up 90% of our aboriginal title to our traditional territory, but we wanted to ensure that the process allowed for us to have input into how these projects affect our traditional territory, our environment as a whole.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

If I understand correctly—I want to be clear on this—once you have accepted to participate in the environmental assessment and review process, you've essentially abandoned your right to withhold consent to a project. Is that correct?

[Chief Steve Smith]

No, I think with all processes, there are avenues through which we can address grievances. I think that holds true for both the federal and territorial governments as well, and Yukon first nations always have the right to further explore and address issues that are a major grievance. I'm talking about the process for the vast majority of projects that are under review. As I said earlier on, we are not anti-development; we're pro-sustainable development. We want development to occur because we want to have the opportunity to participate in the economy of Canada today. So—

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

I am so sorry to cut you off.