Mr. Speaker, I am rising to speak on Bill S-6, an act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act.
I think the member from western Arctic has clearly outlined the NDP position on the bill, and of course, we are opposing it.
I will focus my speaking time on the Yukon Environmental and Socio-economic Assessment Act aspect of the bill, because that is very controversial.
To give a bit of background, in May 2003, Canada enacted the Yukon Environmental and Socio-economic Assessment Act, or YESAA, in accordance with the provisions of chapter 12 of the Yukon first nations' comprehensive land claim agreements. Yukon first nations agreed to accept less than 9% of their historic land. They accepted this small land settlement partly in exchange for the establishment of a permanent assessment process that would manage all projects in their traditional territories in accordance with the objectives stated in chapter 12. That process is defined in YESAA, which was developed collaboratively by Canada, Yukon, and first nations.
A number of concerns have been raised by the Yukon first nations with regard to this piece of legislation. Following are the the primary concerns.
The Council of Yukon First Nations and Yukon first nations are concerned that the changes proposed in Bill S-6 would be contrary to the intent of the land claims agreements, would undermine the neutrality of the YESAA process, and would reduce the effectiveness of environmental and socioeconomic assessments. First nations' main concerns relate to four amendments that were never raised by Canada during the five-year review.
Number one is policy direction to the board. Clause 34 of Bill S-6 would provide an amendment that would give Canada the power to give binding policy direction to the YESAA board. Canada could choose to delegate this power to the Yukon government. Providing Canada with the authority to issue policy direction would undermine the independence of the board and designated offices. Independence is a fundamental element of the YESAA. During the development of the YESAA, Yukon first nations, CYFN, Canada, and Yukon, discussed this at length.
The following analysis is from a pamphlet called Changes to YESAA Threaten Our Land, Our Economy, Our Yukon. How Bill S-6 affects Yukon. It is a background fact sheet.
Providing a single party with the authority to direct the Board is contrary to the spirit and intent of the YESAA and the provisions of the Final Agreements.
The second piece that is controversial in this bill is the delegation of federal powers to the Yukon government. Providing the Minister of Aboriginal Affairs and Northern Development with authority to delegate powers to the territorial minister without the consent of first nations would create a bilateral process that would exclude first nations from discussions about the balance of power. I will come back to this particular point.
The third sticking point is exemptions for renewals and amendments. This is a particular concern. It is addressed in clause 14 of Bill S-6. Again, I will quote from the background fact sheet:
This amendment allows governments to approve the renewal or amendment of permits and licences for projects without any YESAA assessment. Renewals or amendments could have serious impacts on the environment, regional economies and local communities.
This amendment will make project assessments challenging. Impacts would need to be identified for the entire project life because renewals would likely not have to go through an assessment. For some projects, effects cannot be foreseen at the time of the initial review. This may result in negative impacts to the environment, our economy and communities.
Under the amendment, governments can avoid assessment for renewals and amendments if they decide that the project has not changed significantly. The proposed amendments do not provide a definition for significant change, but rely on the opinion of the regulators. This will create uncertainty, and the perception of political interference, resulting in conflict and could possibly end up before the courts.
The fourth and final concern and objection is on the timelines for the YESAA assessments. The proposed beginning-to-end timelines would affect the thoroughness of environmental and socio-economic assessments and opportunities for first nations' input on major projects. Of course, we know that in many cases, first nations do not have the resources to drop everything and immediately respond to a project when an assessment is required.
It is very concerning and has the appearance of trying to ram through assessments without first nations having adequate time and resources to review them.
What we have heard consistently from the government is that there was consultation and that it was adequate.
I want to start with the United Nations Declaration on the Rights of Indigenous Peoples and reference two articles, because it is important to set a context with regard to consultation. Article 18 says:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 19 states:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
I want to remind the House that the government signed on to the UN Declaration on the Rights of Indigenous Peoples and made a commitment to take some next steps to implement it, but so far it has failed to do anything meaningful or concrete to uphold its international obligations.
I want to address one of the myths with regard to consultation. A paper entitled “Changes to YESAA Threaten our Environment, our Economy, our Yukon” specifically addresses the issue of consultation. This is the myth:
There have been thousands of hours of consultation with First Nations on changes to YESAA over the past 7 years.
Here is the reality:
The Parties discussed the YESAA process for many hours between 2008 and 2011, as part of the YESAA Five-Year Review. It was a review required under the Umbrella Final Agreement (UFA). The Parties to the UFA, the Council of Yukon First Nations..., Canada and Yukon agreed to work together to improve the YESAA process through shared decision making and by consensus, when possible.
The amendments to YESAA under Bill S-6 that are of concern were never discussed and were never raised by Canada during the Five-Year Review. The amendments of concern include: giving binding policy direction to the Board; handing over powers to Yukon; imposing maximum timelines for assessments; and not requiring assessments when a project is renewing or being amended. These new amendments were introduced with little opportunity to ensure adequate consultation and accommodation.
I have outlined those amendments before.
The paper continues:
On February 26, 2014, Canada arrived at a meeting and provided paper copies of these amendments and refused to provide electronic versions to the First Nations that were on the phone for the meeting. This stopped them from being able to participate in a meaningful way.
Yukon First Nations had less than 2 months to review and respond to the changes proposed by Canada. That is not enough time to review important changes to the YESAA law. Consultation means providing the necessary information to the Parties. Canada didn’t do that step. Canada failed to meet the test of its Treaty and common law duty to consult and accommodate.
I have heard the government say that it consulted but that the Yukon first nations did not agree with it, so it was going to go ahead with the amendments, even though there was grave disagreement.
We have heard the Conservative government talk in the House a number of times about an agenda around reconciliation. If it has an agenda around reconciliation, does that not mean respect for its partners?
It signed an umbrella agreement with the Council of Yukon First Nations. I would argue that there is a spirit and intent around these agreements that is about a respectful relationship, a willingness to move toward reconciliation, and an unwillingness to unilaterally impose a federal government's will on first nations. It is fine for the government to say that it has consulted, but if it does not actually do anything about the disagreement to try to resolve it, that is hardly consultation.
Representatives of the Council of Yukon First Nations were in Ottawa because of their grave concerns. They we here at the invitation of the minister and had a meeting with him. CBC's headline was, “Ottawa trip on Bill S-6 ends in insult to Yukon First Nations”. In that meeting, Little Salmon Carmacks First Nation Chief Eric Fairclough said:
The minister shut us down by telling us we were “not real governments”, and therefore he does not need to make us active participants in changing legislation that arises from our treaties.
The article went on to state:
Fairclough says that's an insult that "flies in the face of recent court decisions that have affirmed the duty to consult First Nations."
At the aboriginal affairs committee yesterday, I asked the minister whether or not he had said that. He put it into context, and I will read his response into the record. He stated that “The point I made is under the umbrella agreement, government is defined as being the Government of Canada or the Government of Yukon, so my point was that this delegation is contemplated under the umbrella agreement and it does not define government as being first nations. Their argument is that, under the umbrella agreement, they should be considered governments, and unfortunately, that was not the deal concluded. The umbrella agreement is clear that “government” is defined either as Government of Canada or Government of Yukon. I said that for the purposes of the umbrella agreement, they were not considered and defined as government. That does not mean they are not governments. They are governments but not under the umbrella agreement...”.
We have a government that talks about how it supports all government agreements with first nations. I am not a lawyer, but I know there are many fine lawyers in the House who will tell us that we cannot outline every single possible detail in any agreement, and that what a lot of it comes down to is the spirit and intent. From many presentations and court cases, I can tell members that the rights of first nations have been reaffirmed.
I want to refer to a document from January 2007. It is not a legal document but rather an interpretation. It is entitled, “Recognition and Implementation of First Nation Governments”. This was put out by the Assembly of First Nations. Under “3.3 Core Functions of First Nation Governments”, it states:
The United Nations Development Programme views “capable government” as a precondition to development. Governments are the primary vehicles for promoting social, cultural , and economic development within a society. A capable government must be the one that makes decisions affecting its citizens. A government works best when it is close to those it governs.
It goes on to say:
Communities need to be able to govern themselves with real authorities and jurisdiction. We have governed ourselves effectively in the past and continue to do so despite external impositions like the Indian Act....All regions agreed that First Nation governments have the inherent responsibility and jurisdictions to legislate on those areas that affect their communities.
Surely the changes that are proposed in Bill S-6 would fundamentally affect economic development, the environment that Yukon first nations live in, and their way of life. If that does not meet the test of what should be considered a government-to-government relationship, I do not know what does.
It is not just first nations who are opposing this legislation. I have a number of letters here, which I unfortunately will run out of time reading into the record, but I will quote a few to give members a sense of their flavour.
The Tourism Industry Association of Yukon wrote to the member of Parliament for Yukon stating the following:
On behalf of the Tourism Industry Association of the Yukon, I am writing to express our support for the Council of Yukon First Nations' opposition to particular amendments to the Yukon Environmental and Socio-economic Assessment Act...by the Government of Canada, through Bill S-6. We believe that these changes will have a negative impact on the tourism industry, and for Yukoners overall.
In conclusion, the TIA states:
TIA Yukon asserts that taking land use planning decisions away from the Territory will ultimately give tourism operators in the Yukon less of a say over land use issues where resource extraction interests conflict with the interests of tourism businesses.
The Casino Mining Corporation wrote to the Minister of Aboriginal Affairs and Northern Development stating this:
On behalf of Casino Mining Corporation...I am putting forward our company's concerns regarding the fragility of intergovernmental relations in the Yukon surrounding Bill S-6 and the negative impact this is having on the territory's mineral industry.
It is imperative for Casino that the Yukon Environmental and Socio-economic Assessment Act...has the broad support of all governments in order to ensure the confidence of both project proponents and Yukon residents in the YESAA process and to facilitate investment in the territory....
Casino believes that if the YESAA has the full support of all levels of government, it will provide greater certainty for the mineral industry. To this end, we encourage Canada, Yukon, and Yukon First Nation governments to engage, work collaboratively and find a solution to address the outstanding issues within Bill S-6.
In a letter to the member for Yukon, the Wildlife Conservation Society states:
I am writing on behalf of Wildlife Conservation Society Canada...to express opposition to Bill S-6, recently introduced through the Senate of Canada by the federal government.
I have witnessed the implementation of the Yukon Environmental and Socio-economic Assessment Act...since its inception in 2005, and have been generally impressed by the record of its implementation body....
That is the YESA Board.
Bill S-6 proposes various amendments to the YESAA that will undermine the independence and integrity of the environmental impact assessment process currently administered by YESAB. Therefore the social licence for project approvals that YESAB has gained runs a strong risk of being compromised. Bill S-6 has substantial shortcomings, both in the process by which it has been drafted, and in its content.
The process for developing these amendments and compiling them in draft legislation has been flawed. The original YESAA derives from the Umbrella Final Agreement (UFA) under which Aboriginal claims for rights and title have been settled in Yukon. A review of YESAA was mandated to occur after 5 years of implementation, and that review began in 2008. The subsequent process has been long and ultimately produced Bill S-6. The major problems with the process have been: (i) a number of issues raised by First Nations up to June 2011 were ignored or overlooked without explanation in the Interim Draft Final Report of the review process released by the federal government (March 2012) and in the Final Review Report (October 2012); (ii) some of the stages of the review process were held in camera so there is a lack of transparency and accountability to all the negotiating parties and to the public; (iii) certain stakeholders, notably the non-renewable resource extraction industries, participated in the review process in camera; (iv) Bill S-6 has been introduced by your government without the endorsement of Yukon First Nations which makes it contrary to the spirit and intent of the UFA. In sum, the consultation process has lacked transparency, appears biased, and has not addressed First Nations' concerns which are of equal validity to those of Canada or Yukon in a government-to-government agreement such as the UFA.
There are also reasons for concern about the content of Bill S-6, and I highlight three. First, the Bill provides the option for the federal government (Canada), or by delegation the Yukon Territorial government, to impose policy direction on the Yukon Environmental and Socioeconomic Assessment Board (YESAB). This undermines a stated purpose of YESAA (5, 2(a)) which is to produce a "neutrally-conducted assessment process" at arm's length from government. The existing YESAA already allows the Yukon Territorial government, through the Executive Council Office, the power to accept or reject YESAB recommendations. There is no need, in practical or moral terms, to further remove power and influence from YESAB and place it unilaterally in the hands of one or other government. Doing so goes against the spirit and intent of the UFA and the First Nations' final agreements.
Second, Bill S-6 imposes specific timelines on YESAB for project review. As a result, complex projects will receive relatively cursory review because of a rushed process. It is unclear why this would be needed other than perhaps that the YESAB review process in operation before Bill S-6 has come under criticism from the mining industry when YESAB requests additional information during the process. Speaking from the perspective of a biologist who is aware of ecological impacts brought about by mining operations, this is not a reflection of a faulty review process, but a reflection of inadequate preparation by industry and its consultants. In other words, there is a strong argument to be made that YESAB's reviews have been working well by uncovering poor planning and preparation by project proponents.
Finally, as I mentioned, they also raise the following concern:
Bill S-6 removes the need for any YESAB review of project amendments or renewals, unless there are "significant changes”.
A number of bodies have pointed out the very serious concern that this piece of legislation does not define what significant changes are.
There are other organizations, including the the Canadian Parks and Wilderness Society, and the Yukon chapter of CPAWS, who have also raised very serious objections with regard to the independence and impartiality of the development assessment process. Generally, they are calling on the government to pull this bill and to work with Yukon first nations to make sure that the bill reflects both the spirit and intent of the Umbrella Final Agreement, and the spirit and intent of government-to-government relationships, which would include the Yukon first nations.
Given the number of objections that have been raised by Yukoners, including industry and non-governmental organizations, I would urge this government to take a step back and look at the four key areas where there are very serious objections.