Myths and Facts - Bill S-6, Yukon and Nunavut Regulatory Improvement Act

Including proposed amendments to the Yukon Environmental and Socio-economic Assessment Act (YESAA)

Myth 1: Proposed amendments to YESAA will drastically change existing land and water regulations.

Fact 1: The proposed amendments to YESAA will not affect land and water regulations, as YESAA governs only the environmental and socio-economic assessment process in Yukon.

The most significant changes to YESAA proposed in Bill S-6 aim to streamline administrative processes and increase their efficiency, effectiveness and predictability.

Myth 2: Yukon First Nations were not adequately consulted on the proposed changes to YESAA.

Fact 2: There has been significant Aboriginal consultation and involvement in the shaping of YESAA from the start.

The Council of Yukon First Nations and other Aboriginal groups were deeply involved in the development of the original YESAA which came into effect in 2003. They were also active participants in the 5-Year Review process, which informed the current legislative proposals.

The Government of Canada shared the first draft of Bill S-6 with Yukon First Nations for review and comment in May/June 2013. Formal consultation sessions followed, which provided the opportunity for First Nations to learn about the proposed amendments, voice their concerns and make recommendations on how to improve the proposals. Feedback received informed a subsequent draft of the legislation, which was shared with First Nations in February 2014. More consultations and opportunities for written feedback followed. Input received helped to shape the current version of the Bill.

Aboriginal groups are also participating in the Parliamentary review process, currently underway. The Government of Canada will maintain an open dialogue with the Council of Yukon First Nations and other Aboriginal groups to address any future questions.

Myth 3: Proposed amendments to YESAA are pushing First Nations out of the YESAA process.

Fact 3: First Nations will remain an important partner in the YESAA process.

All of the legislative proposals contained in Bill S-6 are consistent with the Yukon Umbrella Agreement. In fact, some of the proposed amendments actually strengthen First Nations role in YESAA. For example, under clause 29, section 88.1 of the proposed amendments, when a project reaches the permit/licensing stage, First Nations would be able to add terms and conditions to that permit or license that are in addition to, or more stringent than, the terms and conditions set out in the project's environmental assessment.

Myth 4: The proposed amendments would significantly reduce Aboriginal representation on the Yukon Environmental and Socio-economic Assessment Board (YESAB).

Fact 4: The make-up, structure and processes of the YESAB would not change.

The current co-management approach would continue. The Council of Yukon First Nations would continue to nominate three of the seven board members.

Myth 5: Proposed amendments to YESAA are contrary to existing land claim agreements.

Fact 5: False.

All proposed amendments are consistent with the Yukon Umbrella Agreement and other existing land claims agreements.

Myth 6: The proposed amendments to YESAA will weaken the Act, and reduce environmental protection.

Fact 6: Environmental stewardship will be enhanced.

The proposed amendments to YESAA will actually strengthen the Act by increasing clarity and predictability for assessments, adding cumulative effects from activities that are "likely to be carried out" to the list of things that must be considered during an environmental assessment, reducing duplication of work, introducing a cost recovery regime, encouraging research and greater collaboration with other bodies, and re-affirming First Nations' role in the assessment process.

Myth 7: YESAA amendments will reduce the thoroughness of assessments and will impact First Nation's ability to respond.

Fact 7:The Yukon Environmental and Socio-economic Assessment Board's own statistics show that the proposed time limits are either consistent with or more favourable than the Board's current practice.

Appropriate time limits are an effective way to provide predictability and certainty for proponents, regulators, governments and Aboriginal organizations without sacrificing the integrity of the evaluation process.

For major projects that require an assessment by the Executive Committee, the Act requires that proponents consult affected First Nations before submitting their project proposal. Assessing those consultations is done as a part of the overall review and if consultations are deemed to be inadequate by the Executive Committee, the proponent would be directed to undertake additional consultations. Any such consultations would not be included as proponent time, so the time limits would not have a negative impact on Aboriginal consultations or opportunities for First Nation input.

These amendments to YESAA would also align the Yukon regime with other federal environmental assessment legislation across the North and in the rest of Canada.

The proposed time limits would help improve proponent and investor confidence, provide consistency and transparency to the process, and gain efficiency at all stages of the process.

Myth 8: The territorial government would be able to control the Yukon Environmental and Socio-economic Assessment Board (YESAB), through the delegation of authority from the federal government.

Fact 8: YESAB would remain an independent arms-length body.

Bill S-6 would not give the territorial government control of the Board. Delegated authority could only be given within the framework of existing legislation and land claims agreements, which confirm the independence of the Board.

For example, delegated authority could not be used to change the assessment process, influence current or future reviews, or otherwise impact the independence of the Board. This approach is in line with the regulatory regimes in place in other jurisdictions in the North and the rest of Canada.

Myth 9: The federal Minister of Aboriginal Affairs and Northern Development would be able to control YESAB by giving it "policy direction."

Fact 9: YESAB would remain an independent arms-length body.

Bill S-6 would not give the Minister control of the Board. Policy direction by the Minister could only be given within the framework of existing legislation and land claims agreements, and would primarily be used to ensure common understanding between the Government and the Board. For example, policy direction could be provided on matters such as as board conduct, use of new technology, and fulfilment of roles and responsibilities related to Aboriginal consultation.

"Policy direction" could not be used to change the assessment process, influence current or future reviews, or expand or restrict the powers of the Board. This approach is in line with the regulatory regimes in place in other jurisdictions in the North and the rest of Canada.

Myth 10: Yukon First Nations were not able to fully participate in consultations regarding proposed changes to YESAA.

Fact 10: The Council of Yukon First Nations and other Aboriginal groups were heavily involved in the development of the original YESAA which came into effect in 2005. The Council of Yukon First Nations were also active participants in the 5-Year Review process, and received a total of $425,000 in funding to cover expenses incurred for their participation. The 5-Year Review was completed in March 2012.

The Council of Yukon First Nations and other Aboriginal groups were also consulted on the current proposed changes to YESAA included in Bill S-6, and a total of $220,000 in funding was made available to support their participation. This funding could be used for legal counsel or consultants to assist in reviewing the more technical aspects of the proposals, support for preparing written representations and to cover expenses of attending consultation sessions. To date, $105,985 of available funding has been requested by First Nations in Yukon. Of this total, $19,637 has been provided specifically to the Council of Yukon First Nations.

Myth 11: Bill S-6 will change the current nomination and appointment process to the Yukon Environmental Socio-economic Assessment Board (YESAB).

Fact 11:Bill S-6 will not change the current YESAB structure or the appointment structure.

As is currently laid out in the Yukon Environmental and Socio-economic Assessment Act (YESAA), YESAB is comprised of seven Board members. One member of the Executive Committee is nominated by the Council of Yukon First Nations (CYFN) and one member is appointed by the federal government after consultation with the territorial government. The third member of the Executive Committee, the Chair, is appointed by the federal government after consultation with the other two Executive Committee members.

Of the four remaining Board members, two are nominated by the CYFN, one is nominated by the territorial government and the fourth is a direct appointment by the federal minister. If additional members of the Board are to be appointed, one-half shall be appointed by the Council and one-half by the federal minister in consultation with the territorial minister. The Council shall consult First Nations before nominating a person to the Board.

Bill S-6 will not affect the current YESAA structure. One of the proposed amendments will, however, enable the territorial government to nominate a member of the Executive Committee, instead of having that member appointed after consultation with the federal government. The CYFN already has the power to nominate an Executive Committee member. Giving the Government of Yukon a nomination power (rather than requiring consultation) brings consistency to the nomination and appointment process.

Myth 12:Bill S-6 will allow governments to approve the renewal or amendment of regulatory authorizations for projects without any YESAA assessment.

Fact 12:The renewal or amendment of a regulatory authorization, without doing a re-assessment, would only happen if all decision bodies involved were to agree.

Decisions with respect to whether a project has undergone a significant change will be made on a case-by-case basis by the relevant decision bodies for the project. In determining what constitutes a significant change, decision bodies would consider the evidence provided by proponents for the renewal or amendment and use their judgment to determine whether any identified changes (in terms of location, scale, technology, infrastructure etc.) are significant and warrant a new assessment.

This approach, as laid out in the legislation, is consistent with that of other jurisdictions and is a reflection of good environmental assessment practice. First Nations would have a role in determining whether there has been a significant change when the project is located on settlement land and when the First Nation is a proponent, has the power to issue an authorization or to grant an interest in the land, or has received a funding application for the project.