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First Nations threaten lawsuit over planned environmental rule changes

Representatives of the Council of Yukon First Nations and its lawyers were in Ottawa this week to protest proposed amendments to the Yukon Environmental and Socio-economic Assessment Act.

Representatives of the Council of Yukon First Nations and its lawyers were in Ottawa this week to protest proposed amendments to the Yukon Environmental and Socio-economic Assessment Act.

They appeared before the Senate committee charged with reviewing those amendments on Thursday morning.

The council asserted that proposed changes to the act were made without consultation of the First Nations and would be illegal if they proceed.

“We have moved, in our opinion, from a co-operative process to a unilateral process, which is a breach of our agreements,” said Mary Jane Jim, councillor with the Champagne and Aishihik First Nations, according to the preliminary transcript of the hearing.

“CYFN does not want to follow the Tlicho and Sahtu path to litigation, and indeed it is not the position of Champagne and Aishihik as well,” said Jim. Those N.W.T. First Nations have sued or promised to sue Ottawa over changes to the environmental regulatory regime there.

However, “if Bill S-6 proceeds as it is, the CYFN and Yukon First Nations will, unfortunately, need to take steps necessary to protect the integrity of their final agreements,” Jim added.

Yukon’s environmental assessment regimes comes out of the Umbrella Final Agreement signed in 1993 between the Yukon, Canada and First Nations.

In 2003 the federal government passed the Yukon Environmental and Socio-economic Assessment Act, and a mandated five-year review process began in 2008.

First Nations assert that the review process was never completed.

The process did not adequately address CYFN’s insistence that future reviews be mandated, that First Nations be funded adequately to participate in assessments, and that First Nations must be consulted on decision documents, Grand Chief Ruth Massie told the Senate committee.

Furthermore, the proposed amendments to YESAA go beyond what was agreed to through the five-year review process.

Eric Fairclough, chief of the Little Salmon/Carmacks First Nation, outlined four amendments that are “deeply concerning” at the Senate committee hearing.

The amendments would allow the federal minister to give policy direction to the Yukon Environmental and Socio-economic Assessment Board without consent of First Nations.

It would also allow the federal minister to delegate that power and any others to the territorial minister without consent of the First Nations.

“The provision would exclude Yukon First Nations from discussions and decisions about future redistribution of power, duties and functions under the YESAA,” said Fairclough.

“The proposed amendment would create a bilateral federal territorial process that would be inconsistent with the intent of the final agreements.”

The amendments could also give a federal or territorial minister the power to exempt projects from going through a new assessment when the project has been changed or is in need of a renewed licence.

This is in direct contravention of what was agreed to in the five-year review process, said Fairclough.

“During the development of the YESAA, the CYFN, Canada and Yukon agreed that the regulations would define which projects are subject to assessments. The proposed amendments would interfere with this approach.”

Finally, Fairclough said that proposed limits to the time that a project can spend in the assessment process “will affect the thoroughness of assessments and the opportunities for Yukon First Nations to complete comprehensive reviews of projects and to provide input.

“These matters were never discussed during the five-year review,” he said.

Yukon Premier Darrell Pasloski also presented to the Senate committee this week.

He told them that he supports the proposed amendments because they will bring the Yukon’s environmental regime in line with other jurisdictions and promote economic development here.

“When (the act) was tabled and proclaimed in 2003, it really put Yukon at the front of the bus,” Pasloski told the News in an interview Wednesday. “It was the envy of the rest of the country. What has happened over the last decade is that as amendments have occurred in other jurisdictions, we move closer to the back of the bus. What this will do will allow us to again be consistent with other jurisdictions, like our neighbours to the east, the Northwest Territories and Nunavut.

“I had one CEO tell me that for every three months that he has been mining, he has spent one month in assessment,” said Pasloski.

NDP Opposition leader Liz Hanson called the proposed amendments “a frontal attack” on Yukon’s environmental assessment process.

“I don’t buy this race-to-the-bottom approach,” she said.

“That’s a fool’s game to be playing, because you and I, taxpayers and citizens of this territory will be on the hook for decisions made by Yukon government to try to appease or to try to say, ‘Oh no, wink wink, you don’t really need to worry about water licences, or you don’t really need to assure us, this government, that you really are abiding by the basic rules and systems that we have in place.’

“Selling out your environment, selling out your territory and creating risk for the future generations is not a way of creating certainty.”

Contact Jacqueline Ronson at