The Yukon needs a clearer understanding of what comes after Bill C-17

The reassessment process needs to be formalized before C-17 becomes law

By Jonas Smith & Amanda Leslie

There has been a lot of discussion and resulting consternation surrounding Yukon’s permitting regime over the last few years.

Sadly, much of it has been misdirected to focus on politics versus the practical reality of Yukoners’ need to navigate our development assessment process with clarity to achieve certainty and in essence, to uphold our very livelihoods.

As many Yukoners know, the former federal Conservative government introduced Bill S-6 in 2014, which, among other items, contained four highly controversial amendments to the Yukon Environmental and Socio-Economic Assessment Act (YESAA).

These amendments were introduced outside the previously agreed upon tripartite process between Canada, Yukon and Yukon First Nations.

Yukon First Nations have worked for generations to achieve their self-governing and final agreements and justifiably objected to the introduction of these amendments and subsequently took the federal government to task.

These amendments, from the moment Bill S-6 was introduced, divided us.

It is now time to find a path forward together so that Yukoners are not negatively impacted by political decisions in Ottawa.

We can all be proud that Yukoners understand and agree First Nations must be full and meaningful partners in shaping the course of Yukon’s social and economic future.

Yukoners should also understand that the proposed changes to YESAA were not intended to reduce environmental stewardship. Rather, they were intended to clarify the process for proponents, regulators, governments and citizens so that projects demonstrating benefit – no matter if generated by industry, by municipalities, or by governments – can proceed responsibly.

Facing us now however, is the federal Liberal government’s Bill C-17, currently in its second reading in Parliament, which intends to rescind these amendments without having a replacement ready to implement.

And while these four amendments have stirred debate among academics and on the Yukon cocktail reception circuit, one in particular has dire practical versus political consequences: reassessment.

Bill S-6 formalized a process wherein the decision body – in most cases Yukon government – could determine whether or not an amendment to a project would trigger reassessment.

Project applications from placer and quartz mining to municipal infrastructure improvements to First Nation projects on their settlement lands – and their subsequent assessments and authorizations – are multi-year. As with many things in life, projects can and should inevitably change over time between their initial planning and execution.

To be crystal clear, reassessment applies to all types of projects, but we will use mining as one example.

Neighbouring claims may be acquired, commodity prices fluctuate, new deposits may be discovered and environmental mitigation solutions are created.

If the decision body deemed that a project’s activities were adequately assessed the first time around and no new substantial project effects would arise, Bill S-6 currently gives the decision body the formal authority to exempt the project from reassessment.

This saves considerable time, money and effort, not only on behalf of the project proponent, but for the taxpayer as well. The Yukon Environmental and Socio-economic Assessment Board (YESAB), as well as territorial and First Nations governments are all publicly funded. Exemption from reassessment is practical and common in other jurisdictions with whom Yukon is competing for investment.

Since the passage of Bill S-6, approximately 100 existing projects have applied for exemption from reassessment, and the majority has not required one.

That means for those successful proponents, they did not spend their resources on complicated submissions and instead, could reinvest in their businesses, in their employees and in Yukon community charities and initiatives.

A hundred projects in two years might not seem like many in larger jurisdictions. In Yukon it is considerable.

C-17 is expected to pass this fall which would end these types of exemptions for now.

In its defence, Canada has committed to revisiting the reassessment issue and this time with full Yukon First Nation participation, but not until after C-17 passes.

Meaningful First Nation participation is essential. Industry and municipalities cannot bear yet another botched intergovernmental consultation debacle and its far-reaching adverse effects on relationships and investment in the territory.

Changes to tripartite agreements do not, and should not, happen overnight. However the concern is once the reassessment clause is revoked; it will take months or perhaps years to develop its replacement, leaving Yukon behind other jurisdictions well into the future.

Given the multitude of industry and government projects that have benefitted from this reassessment provision, removing it at this point is like ripping the roof off your house before you have decided what to replace it with – meanwhile leaving Yukon’s development assessment process out in the rain.

Thankfully, a made-in-Yukon solution is within reach.

In April 2016, Yukon First Nations, Canada, and the Yukon government signed a Memorandum of Understanding (MOU) that included outlining how the need for a reassessment is judged. That MOU expires when C-17 becomes the law.

Instead of allowing it to expire, there needs to be a firm commitment – by all three levels of government – to formalize the process officially before Bill C-17 passes.

The majority of those aforementioned 100 projects – and consequently Yukoners – have benefitted from the MOU through its certainty, through jobs, through education and training, and through health, social and wellness programming.

All that remains is for governments to embrace the practical and leave the politics for the next election. By then, they could have 100 more success stories to campaign on.

Jonas Smith and Amanda Leslie are project managers with Prosperity Yukon, a resource industry advocacy group launched earlier this year.