Indigenous and Northern Affairs Committee on June 20th, 2017

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

Can you give me an example? Say, I have a mine, and I've been operating for five years and my permit runs out in that time period. What are my next steps?

[Stephen Van Dine]

The great thing about YESAA is that you would have gone through the environmental assessment process, and that environmental assessment process would have guaranteed indigenous participation in that process as well as industry and other intervenors into the discussion. They would have concluded that your mine could operate under whatever conditions had been given, and then you would go through a regulatory phase, which would develop the authorizations for land use and for water use, and for other things. Those regulatory instruments are on a different time horizon. When those instruments run out, you return to the authorizing entity for a renewal.

At that time, they have to determine, in their best opinion, whether there has been a substantial change to your mining operation. If you started off with gold in your mining operation—

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

[Stephen Van Dine]

—and then you found something additional, like silver, on your property, you would need to probably—

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

Do the whole thing over again.

[The Chair, Liberal, MaryAnn Mihychuk]

We like gold more than silver, just in terms of value.

MP Romeo Saganash.

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

Thank you, Madam Chair.

I would like to thank the people from Indigenous and Northern Affairs Canada and the Department of Justice for being here this morning.

I was involved for a number of years in the process, or in the assessment and review system, under Chapter 22 of the James Bay and Northern Quebec Agreement. It is a process that provides time limits for project assessment and review, which are very clear otherwise. I know that after more than 40 years of this system in northern Quebec, the industry has become accustomed to this process, which at first seemed very difficult and complex. However, over time, everyone has become used to it.

I listened to your presentation carefully.

First of all, can you explain the process, from the moment it is initiated and how it is initiated, until the decision is made? This is extremely important, both to the industry and to the people who live in these communities, as well as to the indigenous peoples who have rights and interests at stake because of development. Can you explain the process from point A to the end, so that we can understand it?

[Stephen Van Dine]

I will try to do this briefly, but it is a long process.

The key principle is transparency, and so the project proponent is under an obligation to engage communities early in that process in terms of their intent. Typically, the environmental assessment process begins well in advance of the formal process. What has happened in James Bay, which has been a model for the other regimes across the north, has been teaching industry the benefits of early community engagement and developing those relationships, not only to find out traditional knowledge and how it can mitigate potential impacts in communities, but also to convey what the risks associated with the project are that a community really needs to be mindful of.

The process potentially begins as early as prospecting, and that would be a good business process. As you said in your introduction, it did take some time for industry to become accustomed to that approach to doing business. I would say that, by all accounts, the systems in James Bay and across the north are where the rest of the country should be going with respect to environmental assessment and community participation.

Once they have done that work, then they make their application, and it usually gets triggered for an environmental review. The board would then invite the proponent to provide an environmental impact statement that would describe all the potential impacts on the environment based on the proponent's assessments. Then that would go through a public process, and communities would have the opportunity to review the adequacy.

Once the board has collected the information that it believes is necessary,

and that provincial and federal governments, scientists and anyone else have been asked,

then they have to determine whether the information is complete, whether or not the risks can be mitigated, and if the risks can be mitigated, to give some indication of how they should be mitigated. Then they submit the report for approval.

Once that's done, it's up to the decision-makers to accept the environmental assessment report. In the case of Yukon, that has changed over time from the Minister of Indigenous and Northern Affairs to northerners through devolution, but at the end of the day, they make the call on whether the report is accepted and, if it is, then they proceed to the regulatory phase.

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

Thank you. That seems to be very clear, and it's important in any environmental assessment and review process.

I chaired the James Bay Advisory Committee on the Environment for many years. The advisory committee is the body that oversees the regime in northern Quebec. I rarely found people who could explain the process from the moment it is triggered to the end when the final decision is taken, so thank you for that.

I just want to know what the remaining concerns are that have been expressed over this process. That is something we need to be mindful of. Are there strong remaining concerns over the process as we speak?

[Stephen Van Dine]

As we mentioned in the presentation, we signed a memorandum of understanding with the parties that started the litigation, and that memorandum of understanding was pretty important to rekindling the relationship and to demonstrating that the Government of Canada was committed to undertaking another change process that was inclusive, collaborative, and within the spirit and intent of the umbrella final agreement. I think we were able to achieve that, so I don't believe, in this set of circumstances, that there are any other lingering issues with respect to the process. I believe there is now a desire to continue the conversation. There are now discussions with respect to a second MOU with respect to the parties to talk about life beyond.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

We're going back to MP Larry Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I think one of the great by-products of this whole process, thanks to everyone, has been the new working relationship between the Mining Association and the first nations, and I congratulate both of those groups, because there are other issues they're going to discuss in the future. Retracting the four may or may not be good, but because they were put in through a bad process, get them over with and get on with discussions of other improvements.

Mr. Yurdiga asked a good question. Related to timelines, has the board ever withdrawn timelines so that there's a vacuum, so that there were no timelines?

[Gilles Binda]

Actually, no. The board has set up their time limits through their rules. For the information of the members, they go out and actually consult on those before setting those rules. They meet with first nations and with Yukoners so that they set up those rules based on a consultation process. No, there hasn't been a vacuum.

[Larry Bagnell, Liberal, Yukon, YT]

So not only does the industry have certainty that there are all these timelines, but it has certainty that they've been developed locally by a local person who lives there, or by the Yukon government there, or the first nations, and there's all this consultation so they make more sense, with all deference to bureaucrats in Ottawa, who may not have had a lot of time in the Yukon understanding them. So that's good.

In case anyone's listening who doesn't understand the legal context, our modern treaties can't even be changed by us as MPs, because they're constitutionally protected. Could you comment on that—and of course, this is borne out in the treaties—and second, on whether it's good to have the first nations onside for development, for industry when they're doing projects, in the Yukon in particular? This bill would do that, would get them back onside, because every square inch, every square metre of the Yukon is actually the traditional territory of some first nation.

[Stephen Van Dine]

What I would say is that modern treaties can be changed. They certainly can be changed; they just can't be changed unilaterally by any of the parties. It goes into a partnership approach. Therefore, in order to change it, you need to have the same partners agree that those changes need to occur. That's the way they've been designed, so they can be changed.

With respect to the larger benefits of the umbrella final agreement, one of the larger principles across all the land claims, including James Bay, was guaranteeing indigenous participation in resource management decisions, not only to have a say over how those resources were to be developed but also to benefit from those resources. The agreements are structured in a manner to allow for economic opportunities associated with resource development and economic participation, but also for environmental sustainability and monitoring and the other requirements to ensure that cumulative effects and similar issues are monitored and tracked.

Yukon first nations are certainly a sophisticated group in the sense that they have business holdings around the world. They are very interested in making sure they have an attractive place to invest. They know that it's a competitive environment out there, and their companies are looking to them to ensure that they have work for their beneficiaries. I believe it's a bit of a virtuous cycle that's been constructed under the umbrella final agreement process and the environmental assessment process to bring the best expressions to sustainable development that I think you could find anywhere.

[Larry Bagnell, Liberal, Yukon, YT]

You made a good point that the Yukon first nations have development corporations. They're some of the biggest landowners in the Yukon. They supply the most employees for industry, and they have a lot of business interests related to mining, so they wouldn't want to do anything that would hurt mining or their own business interests. Is that true?

[Stephen Van Dine]

I would say that's an accurate portrayal. I'd say that first and foremost is who is making the decision. I think that Yukoners have worked really hard with Canada and all first nations to ensure that there was a process in place whereby they would never be left out of the decisions. Having control over those decisions leads them to a place in which self-determination is part and parcel, and therefore the pace of development is something that they have a chance to influence.

[Larry Bagnell, Liberal, Yukon, YT]

The hard rock mine most likely to go ahead next in the Yukon—there is only one operating now—is Kaminak, which has been bought by someone else. When the committee was in Whitehorse, did they not speak in favour of this change?

[Gilles Binda]

I can't remember. Most people wanted this change. The Chamber of Mines, which represents all these companies, voiced, through personal communication with me as the lead on the bill and through correspondence now, that they are on side with all these amendments. They are fine with them, going back to the rules that were set by the board.

[Larry Bagnell, Liberal, Yukon, YT]

The Chamber of Mines has things they'd like to see in YESAA, but they want to get this through so there is certainty and they can continue the good relationship they have now with first nations and everyone, and work on other changes in the future.

[Gilles Binda]

That's correct.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Now we are in the five-minute round, and we're moving to MP Viersen.

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

Thank you, Madam Chair.

Thank you to our guests for being here today.

In your opening statement, you talked about the “unqualified support” of the three groups: the Premier of Yukon, the grand chief of the Council of Yukon First Nations, and the president of the Chamber of Mines. When I read the letter, I see that they've given support, but they seem to have an understanding that the current situation will continue, so I wouldn't say that it's unqualified. I would say they anticipate that the current timelines in which decisions are made and the current framework will be continued.

Would that be a fair assessment, or you would say that “unqualified support” means unqualified support?

[Stephen Van Dine]

Well, I have to accept it on face value. On face value, we have received letters of support for these changes from the organizations you referenced. The fact that they have also talked about the system continuing reinforces the point that the original four amendments that were the subject of the litigation weren't necessary to bring about greater certainty with respect to timelines; they were over and above.

I would take from this that they would like to see that continue, which is what we are attempting to do through this change.