Indigenous and Northern Affairs Committee on June 20th, 2017

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

With the timelines, specifically, it is noted in their briefing document that the average was 53 days to get a decision, which is much better than the maximum time of 270 days.

Within the Yukon, there seems to be an acceptance that this is working well. Beyond the Yukon, though, where we are trying to attract the money to come and invest in the Yukon, wouldn't it provide certainty to have the long term—that 270 days is the maximum you are going to wait for a decision? Where is it stated now that there is a timeline? You are assuring us that this is going to be the case, but there is no assurance stated anywhere.

[Stephen Van Dine]

You are sort of taking us out of Yukon and trying to figure out whether there is a national standard.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Yes.

[Stephen Van Dine]

Certainly, through budget 2012, there was an interest in establishing predictability and timelines with the environmental assessment processes. I am not the lead official who would be best suited to give you the details on that. Our colleagues at the Canadian Environmental Assessment Agency, NEB, and others would be best placed to describe that.

In the case of the north, we've described how the co-management system was created as part of the land claim process and therefore is a bit different from the regimes in the rest of the country and how they were established. That being said, there is certainly an interest in making sure, from a best practices point of view, that the north doesn't fall behind and shows some leadership where it can.

As outlined in the procedures and rules for the YESAA board, they are the ones charged with the responsibility to keep an eye on what the competitive and best practice standards are, and they seem to be doing a very good job on that.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

There was also a clause in the bill—not in this bill but previously—that allows the government to fund processes in which first nations and industry can negotiate accepted terms when it comes to environmental impact and mining on treaty lands. It's my understanding that the government has not dedicated any money to this fund since it began its mandate. Can you confirm this?

[The Chair, Liberal, MaryAnn Mihychuk]

You have 30 seconds.

[Stephen Van Dine]

We've done so on a case-by-case basis across the north, and my Yukon information is a bit limited right now.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Okay. It's not dedicated money at this point.

[Stephen Van Dine]

No.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Is the first nations capacity funding building capacity? Are you seeing on the ground that there is capacity being built? Essentially, if there isn't funding dedicated to it, how are we seeing the capacity building happening?

[Stephen Van Dine]

The issue of participant funding, which is the one that I think you're alluding to, remains an outstanding issue that we're being encouraged to look into.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning now moves to MP Massé.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Madam Chair.

First, I would like to thank the witnesses from the departments who are contributing to the committee's work this morning. It is greatly appreciated.

I have a question about project reassessment and renewal.

Bill C-17 repeals section 49.1 of the Yukon Environmental and Socio-economic Assessment Act, so that a new environmental assessment is not required if a project is amended or renewed. However, if there are significant changes to a project, a new environmental assessment could be requested.

I would like to know who determines whether significant changes have been made to a project. I'd also like to know what criteria would make it possible to determine what is meant by “significant changes”.

[Gilles Binda]

Thank you for the question.

As you said, section 49.1 of the act mentions that the body responsible for a project may be exempt from requesting a new assessment, unless there are significant changes to the project. “Significant” is a word that no lawyer in Ottawa and no drafter wants to touch because it's subjective. These issues have been raised by first nations. What does it mean? Who will make the decision?

Right now, the decision-makers make the decisions and give authorization under the act. They are the ones who decide whether a project has changed and whether it needs to be submitted for a new assessment. One of the things that first nations have raised is that there are no criteria and that it is random.

Second—

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

But who makes decisions like this? You said that the act mentions certain decision-makers.

[Gilles Binda]

The decision-makers are the government or regulatory bodies, like the Yukon Water Board. They are the ones who determine whether significant changes have been made to a project.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

You are going straight to my second question.

In its brief to the Standing Senate Committee on Energy, the Environment and Natural Resources, the Aishihik First Nation said:

The exemption to assess existing projects is far too broad and sweeping in its application. This will prevent a wide range of assessments and fails to acknowledge the impact of cumulative effects.

...The concept of only considering whether the project has changed significantly ignores the fact that social, economic, and environmental conditions and/or societal values...may also change significantly....

How do we answer those concerns on Ajax from first nations, for instance?

[Gilles Binda]

That's exactly one point that was raised when I was working with them and we put in that amendment. One thing that was raised is that it's fine to look at the project, but then they turned around and asked, “What about the environment?” We live in the north. Climate change is affecting the north a lot more than the south, and we're on permafrost, so there are changing climatic conditions.

The project might not be changing, but the environment might be changing around the project, which means that maybe the project needs to be reassessed because of all those changing environmental and socio-economic conditions. That is one reason why the first nations did not like this provision: it did not address anything else but the changes to the project and did not look at any other factors.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

It's still not clear to me how we address this with the bill. How do we make sure that we have good, sound decisions that take into account what you just said and that we provide additional clarity in this process?

I'm still not clear about how can we achieve clarity with this change that doesn't apply, or will maybe apply.

[Stephen Van Dine]

We are repealing section 49(1), so I think that would hopefully alleviate the concern to a degree.

[The Chair, Liberal, MaryAnn Mihychuk]

We will go on to MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you to the officials.

Thank you, Chair.

As I listened to your testimony and to the debate and read some of the previous work that has been done, there are two elements that sound like the objection was really about process, but in practice, the issues surround time limits on the review process. I think it has been indicated that, in practice, the YESAA sees that as important and is meeting or exceeding standards.

To say that it shouldn't be enshrined in legislation, I do struggle with that piece. Regarding the piece around exempting a project from reassessment, it sounds like they have also created, in policy through their board, some process around that.

Again, having it defined in the legislation, other than perhaps if there was objection to the process, I don't see that as really problematic because I think there appears to be an indication by YESAA that we didn't like the process, but that is an important element.

As I indicated in the past, I could see perhaps some objection to the federal minister providing binding policy direction because I think, given the spirit, that perhaps was a reasonable thing to review and look at.

Regarding the fourth component, to be frank, I am a little surprised because often the provinces and the first nations communities are there for the opportunity for delegation, to say that the federal government is going to stay out of your way and that we have authority that we can't give away or walk away from. Therefore, a delegation to a more local community should be embraced by Yukoners.

As I'm hearing these objections to the process, I'm looking at the three of the four elements and thinking those probably should have been embraced in terms of the legislation. I guess I would have seen a need for perhaps a much more modest revision. Those are some comments.

Regarding decision-making, take me to the end point of the decision-making around a mining process. It has gone through and you've got your environmental assessment done. Who's meeting? Who's making the decision? Can you give me the dynamics of the yes-or-no decision and who's making it?

[Gilles Binda]

I'm not sure...a yes or no on what, sorry?

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

On whether the environmental assessment's process has been done. Is that mine going to get approval to move forward? Who's actually responsible for the decisions coming up?

[Gilles Binda]

For a project, as Mr. Van Dine pointed out, you start off early from prospecting and everything.