COMMENTARY
by Ruth Massie & Eric Fairclough
We are pleased that our MP Ryan Leef has penned a letter about Bill S-6 in order to provide the Yukon public with some facts. But, facts can be misleading if they are not presented with the whole story. We are going to finish the stories that Leef began.
Leef states that Bill S-6 came about as a result of the five-year review of the Yukon Environmental and Socio-economic Assessment Act. This is only partly true.
Canada’s initial presentation to First Nations about its proposed amendments to YESAA did not include any references to the five-year review. Instead it stated that the changes were being made to implement Canada’s plan for “responsible resource development in the North” for each of the three territories. Eventually, Canada included many of the amendments that arose from the review.
At the last minute, it also included four significant changes that were never raised before. These are the changes of concern. If they were so important, why didn’t Canada raise the issues during the review between 2008 and 2012?
Leef is correct that First Nations, Canada and Yukon agreed on 72 out of 76 recommendations from the review. But the numbers don’t tell the whole story. We did not reach agreement on three significant issues raised by First Nations throughout the review. Unlike Canada, we diligently raised our major issues during the review. They have not been resolved and not surprisingly, are not part of Bill S-6. Canada is still refusing to discuss those issues.
Leef provides some facts about funding provided to First Nations. The rest of this story is that the funding was not available to support our consideration of the four main areas of concern. First Nations did receive funding during the five-year review and we did participate in that process. As acknowledged by Leef, that funding has no relevance to the concerns we have about Bill S-6 because our concerns are related to proposals that Canada made after the review was over, and the funding was already used.
Leef is also correct that we received funding from June 2013 to March 2014 to discuss Canada’s proposed amendments. There’s more to that story. We used this funding to prepare for, and participate in, meetings with Canada in July 2013, September 2013, November 2013 and February 2014. We did not see Canada’s proposals for the four problematic amendments until February 26, 2014. By that time, most of the funding had already been used, and the little that remained had to be spent before March 31, 2014. Only a tiny portion of this funding was available to support our analysis of these major issues.
In the end, the provision of funding is not the issue. The issue is that Canada refused to work with First Nations in accordance with its constitutional duties, including its duty to act in the honour of the Crown, with respect to our concerns relating to the four problematic amendments.
Leef asserts that the proposed amendment that would permit a delegation of federal powers under the YESAA is authorized by section 2.11.8 of the Umbrella Final Agreement. Section 2.11.8 provides that the government may determine how and by whom any power or authority under a final agreement may be delegated. Unfortunately Leef is misinterpreting this section since it does not authorize the federal minister to delegate his powers under the YESAA to the territorial minister or anyone else.
With respect to the proposed authority for the federal minister to direct the assessment board, Leef states that the minister cannot interfere with assessments. Bill S-6 contains no such constraints and, in fact, proposes that the minister would have very broad authority to issue direction.
Leef states that the UFA provides authority for YESAA to include policy direction. The content of YESAA has to be negotiated by the three parties as directed in sections 12.3.2 of the UFA, not imposed unilaterally by Canada.
Leef states that First Nations will continue to trigger reviews or assessments in our traditional territories if we feel it is necessary. This is simply not true. We have no authority to independently trigger YESAA assessments except for projects on our settlement land, representing less than 10 per cent of our traditional territories.
Finally, Leef asserts that he represented us well at the committee hearings in Ottawa this week. We watched his performance at those hearings. He says he was diligent in asking questions about the four areas of concern that First Nations have. For example, with respect to our concerns about the delegation of authority to Yukon government, Leef asked Minister Valcourt: “Does this fall in line with our government strategy?” That is a question about the Harper government’s strategy, not a question about our concerns. It takes more than that to be diligent about raising our concerns.
We need a YESAA process that is independent from all governments so that assessments can be carried out fully and comprehensively to ensure that the lands, waters and resources of Yukoners are managed and used prudently so that the future generations of all Yukoners will be able to enjoy them. We all understand the need to support and promote development, but we believe that Bill S-6 undermines the integrity and effectiveness of the YESAA process.
Who is Leef representing and what is he representing? Certainly not us!
Ruth Massie is grand chief of the Yukon Council of First Nations. Eric Fairclough is chief of the Little Salmon/Carmacks First Nation.
