Cameron – YESAA Amendments are an Affront to our Constitutional Relationship

Our Yukon correspondent, Kirk Cameron, examines how Parliament’s proposed amendments to the Yukon Environmental and Socio-economic Assessment Board could effect the relationship between Yukon First Nations and Canada.

A 6.2 magnitude earthquake hit our neighbours last week in Anchorage, Alaska.  Figuratively, a far more substantial “shaker” hit Yukon about the same time with the tabling and debate of 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” in Ottawa. I’m going to focus here on the implications of the amendments to the Yukon Environmental and Socio-economic Assessment Act (YESAA) for Yukon.

I won’t spend time assessing the practical implications of each of the many amendments to YESAA, preferring to focus on the overall impact of the amendment process itself, one that I believe will have a profound effect on the relationship between Canada and Yukon First Nations if these amendments are brought into force. That’s the epicenter of the “big shaker” here.

Okay, first a little “primer” on the origins of the Yukon Environmental and Socio-economic Assessment (YESA) process. It is no big surprise to most of us that a fundamentally important part of the negotiation of Yukon comprehensive land claims – indeed, at its very heart from the First Nations’ perspective – was the proper care and protection of Yukon’s sensitive and diverse environment. As a consequence, where environmental assessment was concerned, the outcome of Treaty negotiations (captured in “Chapter 12 – Development Assessment” of the Umbrella Final Agreement and subsequent Yukon First Nation Land Claims Final Agreements – 11 in total) was that an independent assessment board along with a series of regional designated offices set up through federal legislation would be established to assess not only impacts of development on the physical environment, but also on Yukon people (Aboriginal and non-Aboriginal) and the economy. All lands in Yukon, including within municipal boundaries, would be covered by the YESA process. In many ways, when passed by Parliament in 2003, this Act raised the environmental and socio-economic assessment “bar” considerably in Canada.

Chapter 12 gives a clear picture of the values which all parties agreed should be captured in the development assessment process. Specifically, three of its objectives are important to understanding the interests of setting up the YESA process. First, the process is to recognize and enhance “the traditional economy of Yukon Indian People and their special relationship with the wilderness Environment” (s. It is, furthermore, to provide for “guaranteed participation by Yukon Indian People and utilize the knowledge and experience of Yukon Indian People in the development assessment process” (s. Finally, it is to protect and promote “the well-being of Yukon Indian People and of their communities and of other Yukon residents and the interests of other Canadians” (s.

This third objective is explicit in its reference to the process being a common and shared objective of not only Yukon First Nations’ Citizens, but of Yukoners and all Canadians. In short, in section 35 constitutionally-protected Land Claims Agreements, a process, set up at arm’s length from all governments (federal, territorial and First Nations), was framed to ensure that care and attention would be given to the comprehensive management of Yukon lands and resources, and that this would reflect the shared interests of all parties to the Treaties.

Over the course of almost a decade leading up to the passage of the YESAA in 2003, Canada engaged with the Yukon government and Yukon First Nations on appropriate elements of legislation that would give force and effect to the objectives and provisions of Chapter 12. The YESAA and important regulations on timelines, categories and thresholds of projects requiring assessments, and consultation requirements were enacted in 2003, and the assessment process under this legislation was formally “kick started” November 28, 2005 after implementation details had been worked out. Suffice it to say, a lot of work went in to getting this process defined and in place.

The architects of the YESA process, given that at the time it represented a new, “state of the art”, generation of environmental assessment in Canada, felt that a review would be appropriate at some point following a few years of operations to determine if the YESA process was meeting the objectives of Chapter 12. The chapter sets out the requirement for a comprehensive review of the assessment process. This review was to be “completed five years after the enactment of Development Assessment Legislation” (s. 12.19.3). The review ended up taking over 7 difficult years; initially there was not even agreement on whether the review would include consideration of amendments to the Act itself.

Generally there was some good value in the outcome of the “Five Year Review” that wrapped up October 2012. However three matters, critical from the perspective of Yukon First Nations, were not resolved. First, there was no agreement reached on adequate levels of funding. Second, Canada would not accept a subsequent mandated review of the YESA process. Finally, there was no acceptance of engagement between a Decision Body (set up in the Act as federal departments and agencies, and the territorial government) and a First Nation whose Treaty Rights might be affected by a project in advance of a Decision Document (a critical stage in the overall regulatory process that can set conditions on environmental and socio-economic matters before a project can commence) being issued.

Through the Five Year Review there was agreement reached on a number of changes to the Act itself. In 2014, First Nations were provided with the concepts Canada intended to include in revisions to the YESAA. In effect Canada had closed off the tripartite review process and tabled additional amendments that were not discussed as part of the Five Year Review. These proposed amendments were not discussed in any meaningful way with First Nations. “Engagement” at this point was limited to introductory presentations by First Nations. People “in the know” tell me that Canada informed the parties that the amendments were not open for discussion or change.

The Bill capturing amendments to YESAA was tabled in the Senate earlier this year, and has gone to Committee review. If you wish to spend a little time on line listening to perspectives on this topic, check out September 18, 23 and 25 of the Senate Energy, the Environment and Natural Resources Committee.

In their presentations and in follow up exchange with Senators, Grand Chief Ruth Massie (Council of Yukon First Nations), Chief Eric Fairclough (Little Salmon & Carmacks First Nation) and Councillor Mary Jane Jim (Champagne & Aishihik First Nations), along with legal counsel and officials, enunciated their grave concerns regarding the process. The following paragraphs give you a “flavour” of the input provided.

To Yukon First Nation the YESAA process is a cornerstone of the Treaties. It reflects an agreement between public and aboriginal governments to share responsibility for all environmental, social and economic assessment conducted in Yukon. A good portion of traditional territories throughout Yukon were given up in the Treaty negotiations in favor of a trust relationship on co-management of all lands (First Nations retained Aboriginal Title to only 9% of Yukon).

In their presentation, the point was reinforced that the “big three” critical areas noted above were not resolved in the Five Year Process. Similarly, protest was raised that a number of key changes were found among the amendments before the Senate that were arbitrarily introduced by Canada outside of the Five Year Review process, and these were only presented to First Nations earlier this year with no opportunity for effective engagement meeting the tests of “consultation and accommodation”.

Among these unilateral amendments by Canada are items that fundamentally undermine the principles of the Treaties. One such change undermines the independence of the assessment process itself; the federal Minister will be authorized to issue binding policy directives to the YESA Board (YESAB). There is no requirement for meaningful engagement on these directives whereby First Nations’ interests can be discussed and “accommodated”.

Another one of these substantive changes gives the federal Minister the authority to delegate any of his/her powers to the Yukon government. Potentially this could include the delegation to the Yukon government of the Minister’s authority to issue directives to YESAB. Although the amendments require the Minister to give notice to Yukon First Nations, there is no requirement for meaningful consultation with or consent required from First Nations. Ultimately a bilateral process is being introduced through these arbitrary changes despite the original spirit and intent for there to be a tripartite relationship, based on the Treaties, among Canada, Yukon and First Nations.
A third unilateral change captured in the amendments is allowance for project authorization renewals to bypass the YESA process. First Nations believe the process for renewals is working well now, and does not need to be changed; if anything the issues are with the overall regulatory and permitting process, not the YESA process.

Finally, it is the First Nations’ belief that a tightening of the timelines in the Act is again contrary to their interests, as, with the limitations on resources and increasing numbers and complexity of proposals and associated information, First Nations need more, not less, time to review project materials.

In their presentations, the message was proffered that the Land Claims and the co-management arrangements emanating from the Treaties in Yukon have created, over the past two decades, a significant level of certainty for developers. It is their feeling that the outcome of this unilateral change in the YESA process will be that First Nations will no longer see YESA as a reflection of the Treaty cooperative relationship, and thus will have a significant and lasting destabilizing effect. Ultimately they may elect to take Canada to Court over a fundamental breach of the Treaty relationship if there is not a change in approach here, and this in turn will result in this instability.

Another flaw in process was pointed out by presenters. Yukon First Nations were not individually given standing at the Senate hearings, and yet the Treaties are with the individual First Nations; this did not go unnoticed by them. Fortunately, the Council of Yukon First Nations, in the spirit of collaboration, offered to have individual First Nations join them in the presentation to the Senate Committee.

In conclusion, what we can take away from this is that initially Canada followed proper protocol pursuant to the Treaties by holding the Five Year Review with the First Nations and Yukon Government. Over a number of difficult years they reached understandings on a number of issues. Although there remained outstanding issues of importance to Yukon First Nations, generally there was progress.

When, earlier this year, First Nations received behind closed doors briefings on the substance of Canada’s amendments to YESAA they found significant changes that had not been discussed, and were left with the impression that their input was no longer required. Yet in presentations by the federal officials to the Senate Committee it was stated that the draft before Senators reflected the agreements reached in the Five Year Review. Technically this is correct. However, Canada went beyond the Review in a number of significant matters that were not covered in the Five Year Review or any subsequent substantive engagement with Yukon First Nations. It is the First Nations’ belief that this is a fundamental breach of the Crown’s Duty to Consult.

First Nations are now saying, let’s recommence discussions consistent with the level of effort afforded the Five Year Review as there are items First Nations still believe remain outstanding, not to mention the need for thorough discussion of the new substantive amendments put to the Senate in Bill S-6 that have not been discussed with them. This subsequent work requires commitment to the principles of “consultation and accommodation”.

Without this further work, Bill S-6 as it currently stands will continue to be considered an affront to Yukon First Nations and a fundamental breach of the s.35 constitutionally protected Treaty relationship. First Nations do not want to take Canada to court, but may be forced to if this version of the amended Act is passed by the Parliament of Canada.

Photo credit: Intiaz Rahim under a creative commons license.

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