Indigenous and Northern Affairs Committee on June 20th, 2017

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

I'm relating it to a mine.

[Gilles Binda]

If you have an environmental assessment done, the board or at different levels.... There are three different levels in Yukon—a designated office, the executive committee, and a formal review, which has not been conducted yet in Yukon—so you have two levels that have been used.

They produce a report that goes to the decision-making body, be it government or other regulators.

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

Do all three parties, the federal government, the Yukon government, and the first nations, sign off?

[Gilles Binda]

No. It goes to whoever is responsible for making decisions for that type of project. There are, like I've said, consultations all the way up leading to the environmental assessment, where first nations and everybody is consulted and Yukoners in general.

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

Let's go back to my specific mine example. The environmental assessment process has been done. Like any environmental assessment process, it says here are the pros, here are the cons, and we recommend x. Who's signing off on it?

[The Chair, Liberal, MaryAnn Mihychuk]

Ten seconds.

[Stephen Van Dine]

The territorial government, depending on which ministry is directly implicated with the project, whether it's a land ministry, a mining ministry, or environmental.

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

Unfortunately, I'm not going to get into my next question, which is on free, prior, and informed consent issues, and I'm sorry about that.

[The Chair, Liberal, MaryAnn Mihychuk]

That question could come from MP Bossio, if he so chooses.

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

No, I want to follow up on what my colleague, Rémi Massé, was trying to get at. That is, by repealing 49(1), how will these extraneous aspects—the ones that exist outside the project itself—be dealt with? How will they now be dealt with under Bill C-17?

[Gilles Binda]

I was just going to say, the act itself has a whole list of factors that the board must take into consideration in making its decisions when it does environmental assessments. They look at the cumulative effects of a project. They look at the environmental changes. They'll look at all kinds of things—and they're all listed in the act—that they must take into consideration when doing their environmental assessment of a project.

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

Then these are very clearly defined and laid out on a step-by-step basis, that this is what we're going to do in this situation. You actually eliminate the uncertainty of trying to define “significant”.

[Gilles Binda]

Correct.

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

You're actually adding more certainty to the project for the project managers and the mining companies themselves in dealing with an environmental assessment around this particular issue. Even if you look at Bill S-6 itself and those four particular components of Bill S-6, do we not find that, in the long run, instead of trying to accomplish what they were originally trying to accomplish—that is, more certainty around a project, around timelines, around ministerial determination, around being able to assign decision-making powers, etc.—you actually in the end created less certainty for the proponents because you ended up in litigation, you ended up in first nations and non-first-nations communities—settler communities—protesting and fighting these legislative procedures?

[Stephen Van Dine]

I would say that the litigation and the controversy associated with the litigation was certainly a variable in questioning the confidence in the environmental assessment system. That the environmental assessment system was somehow flawed and needed to be corrected was something that Yukoners didn't believe to be the case. The litigation spoke to that directly. Bill C-17 and the process that led to correcting Bill S-6 in these areas was a process that all the parties would agree was the way to go about undertaking change with respect to the environmental assessment legislation.

To your point, those four areas were creating doubt and questions, and required more action on behalf of government. Industry in the end realized there was actually more uncertainty with respect to how those powers were going to be exercised, compared to the existing process, which was working pretty well.

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

It was taking them far outside the timelines they originally thought they were going to have to deal with in the first place. Right?

[Stephen Van Dine]

Yes.

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

Ever since the James Bay agreement, are we not seeing worldwide now that mining companies are starting to recognize that they actually get much further ahead through early-and-often community engagement to try to set the parameters beforehand? In the end, they recognize that it mitigates their own business risk—not just the risk to the environment and to the community—because, once again, they have more certainty in moving forward on these projects.

[Stephen Van Dine]

I have been in this business for over 20 years, and I've seen the creation of a new diamond industry in Canada and regulatory systems being tested by multinational corporations that have come to invest in Canada, in the north in particular. Their level of sophistication in how they are owning due process and community participation and community inclusion has been evident over the last 20 years.

From time to time I work with the Mining Association of Canada, representing the interests of their organization. They have produced community consultation guidelines. The Prospectors & Developers Association of Canada has also taken on business practices, and they have led the world in good business practices.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

That is going to conclude this section of our panel. I appreciate your participation.

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

That was fast.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much. You have done your duty. I appreciate that you came forward.

We are now going to move on to our second panel, which includes people who are calling in from the Yukon.

For the information of the committee, it's my understanding that the bells will ring at 10:10 and we will have a 30-minute period to get to the House for the vote. I believe we have consulted with the Conservatives. I'm going to suggest it would be acceptable to hear from our guests who want to present, and we continue to work until perhaps a quarter after and then we must end the session to go to the House. Is there agreement? Okay.

Do we have anyone on the phone with us at this time? I believe we have two individuals. We are sensitive to the fact that you are three hours earlier, so we are very grateful that you got up so early to join us. Here in Ottawa, we are occupying land that is unceded territory of the Algonquin people, and we are talking about your environmental regulatory process known as YESAA.

Before us is Bill C-17 and we're very pleased that you're able to join us. From Champagne and Aishihik First Nations we have Chief Smith and Roger Brown.

You have 10 minutes and you can choose to split it in any way.

Then we will see if the Little Salmon Carmacks First Nation is joining us. I don't believe they are on the line yet, but if we do have them, they too will have 10 minutes.

Chief Smith.

[Chief Steve Smith, Chief, Executive Council Office, Champagne and Aishihik First Nations]

Thank you, Madam Chair.

I have a really quick note on the Little Salmon/Carmacks First Nation. We've received word that there may have been some emergency issue that happened in Carmacks last night, so that may preclude the chief and his associates from joining the meeting this morning.

First of all, good morning and thank you, Madam Chair, and all committee members, for taking the time to welcome our presentation.

[Witness speaks in Southern Tutchone]

I just gave my traditional name, Kaaxnox. My name is Steve Smith, and I am the chief of the Champagne and Aishihik First Nations. I am a member of the Killer Whale Clan K'etlènmbet people, and I sleep at Takhini Chu, which is the traditional territory of Champagne and Aishihik First Nations.

I just wanted to open with the fact that my father Elijah Smith was chief of the Yukon Native Brotherhood in 1973 when he made the presentation, “Together Today for our Children Tomorrow”, to then prime minister Pierre Elliott Trudeau. It was in the spirit of righting some historic wrongs, but also putting in place a process for which Yukon first nations people would have an ongoing say in the development of the territory that we live in and have occupied since time immemorial.

In 1993 Champagne and Aishihik, along with other Yukon first nations, agreed with Yukon and Canada to conclude the umbrella final agreement. This agreement paved the way for 11 of the 14 Yukon first nations to conclude our individual modern treaties. They are modern treaties protected by section 35 of the Constitution, and they are vehicles for reconciliation between Yukon first nations, Canada, and its citizens.

In addition, we negotiated self-government agreements pursuant to chapter 24 of our final agreement, creating significant first nations jurisdiction, law-making authorities, and financial arrangements. The final agreements looked backwards to address historic grievances, and looked forward towards ever more co-operative and collaborative relationships between Yukon first nations, the Yukon, and the federal government. The final agreements create a new constitutional arrangement in the Yukon.

To reach our final agreements, we made a giant trade-off. In good faith, we abandoned our claims to aboriginal title to over 90% of our traditional territory, in exchange for a promise to secure a range of treaty rights and interests, including the assurance we would have a meaningful role in the management of settlement and non-settlement land, water, and other resources in our traditional territories.

That was the ultimate goal of the 1973 agreements document. Chapter 12, “Development Assessment”, is an essential part of that exchange. It defines the framework for a custom environmental assessment regime that will work in the Yukon. Chapter 12 set forth that the parties would develop the necessary legislation consistent with the objectives set out in that chapter, among other matters. These objectives provided that the development assessment regime:

1) recognizes and enhances, to the extent practicable, the traditional economy of Yukon Indian People and their special relationship with the wilderness Environment;

2) provides for guaranteed participation by Yukon Indian People and utilizes the knowledge and experience of Yukon Indian People...;

3) protects and promotes the well-being of Yukon Indian People and of their communities...;

Between 1997 and 2003, the Council of Yukon First Nations, Canada, and the Yukon government established a joint legislative drafting committee with a chief negotiator and legal and technical advisers for each party. This process resulted in the development of the Yukon Environmental and Socio-economic Assessment Act, and continued as a tripartite process through the development of the “accessible activities” regulations, which brought the regime into effect by December 2005.

Pursuant to chapter 12 of the umbrella final agreement, the parties undertook a comprehensive review of YESAA, known as the five-year review. That process took three and a half years. In that review, we managed to reach an agreement on the majority of the 76 recommendations. On two of the recommendations we agreed to disagree and three we consider outstanding matters. These outstanding matters relate to: one, first nations' role in the decision phase of project assessment; two, adequacy of funding for effective first nations participation; and three, future reviews of the YESAA regime.

In the process through to the conclusion of our final agreement to the development of the act and regulations and conducting the five-year review, we acted in good faith with our treaty partners in the spirit of ongoing reconciliation to move our relationship forward. Unfortunately, the Government of Canada acted unilaterally, imposing several changes to YESAA that have no support from any Yukon first nation. We did everything possible to defend our treaties and work in good faith with government. Regrettably, the federal government breached its constitutional duty to uphold the honour of the crown when it proceeded with the amendments to YESAA relating to the new matters that were not discussed or raised during the five-year review and were only added very late in the consultation process. These amendments were passed in June 2015. After considering our options and working with our first nations partners, we filed a court action in October 2015.

During the last federal election, the Liberal, New Democratic, and Green parties of Canada all made campaign promises to repeal the offending provisions brought about by Bill S-6. Upon discussions with the new federal government, we started moving forward on reversing these changes and calling upon the minister and her cabinet to live up to that promise.

In March 2016, our chiefs, the federal minister, and the Yukon premier all signed a memorandum of understanding to repeal those revisions. As you know, Bill C-17 is a reflection of that very commitment. It was this action that helped defuse some of the contention and allowed us to enter into an abeyance agreement on the promise that Canada move swiftly to repeal those provisions and get the parties back on track, bringing stability and certainty back to our territory, and to enable and promote sustainable development.

We are pleased to see that we are working with federal and territorial governments on a second memorandum of understanding to start dealing with some of the outstanding matters dating back to the five-year review.

We strongly believe this bill reflects a necessary correction for a past action that was unconstitutional and must be addressed. We are also pleased to see that the federal government is addressing the issue of our financial resources to implement our obligations under chapter 12 through our financial transfer agreement.

In closing, I would like to simply say the federal government has an obligation to enact YESAA, but the federal government does not own YESAA. YESAA is not legislation that Canada may simply alter as it wishes. The federal government cannot unilaterally modify YESAA for its own benefit or to suit its own preferences. Implementation must be done according to the spirit and intent of our treaties and must be done so in good faith and always maintain the honour of the crown.

I want to highlight the spirit and intent of our treaties. Many court cases in Canada have always spoken to the spirit and intent. One of the things that we hold dearly within our own final agreement is to ensure that we carry on the spirit and intent of these agreements. Going back to my first comment about my father, Chief Elijah Smith, the intent was not to hold back development. The intent was not to hold back further ability for Canadian citizens to reach their goals and dreams, but was to ensure that Yukon first nations had a rightful place in the development of the Yukon.

Gwänaschis. Thank you for the opportunity to speak to you today.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you. I appreciate your comments and we're going to now move into a series of question and answers.

We are limited in our time, so we have approximately 15 minutes maximum that is available for questioning. There is agreement that we are going to do five-minute question rounds, beginning with the Liberals, then Conservatives, and ending with the NDP.

I'm going to open up the first round of questions to MP Mike Bossio.

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

Thank you, Chair.

Thank you for taking the time to join us today.

We just had INAC in and were asking a number of questions around how is this going to change the relationship between first nations, mining sectors, the territory, and the government, etc. Do you feel that the changes that are going to be made now within Bill C-17 will satisfy exactly what you were just talking about, the responsibility and the duty of the crown to provide the opportunity for first nations to fully participate in governing the environment and financial management, etc. within the Yukon? Is this going to bring you a step further to achieving those ultimate goals?