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 ("YNRIA") passed on third reading in the House of Commons on June 8, and received royal assent on June 18, 2015. Project proponents will be most interested in the addition of new timelines to the assessment process, which are intended to add certainty to the process. The key changes are:
- Addition of new timelines to the environmental assessment process.
- Flexibility as to whether renewal of licences for projects require assessment.
- The ability for the federal minister to give binding policy directives to the Yukon Environmental and Socio-economic Assessment Board ("YESAB").
- The ability for the federal ministry to delegate all its power to the territorial minister.
YNRIA has two parts:
- The first contains amendments to the Nunavut Waters and Nunavut Surface Rights Tribunal Act, SC 2002, c 10, the legislation setting out the conditions under which the Nunavut Water Board may issue, renew, amend or cancel water licences. These changes will not be addressed in this Bulletin.
- The second amends the Yukon Environmental and Socio-economic Assessment Act, SC 2003, c 7 ("YESAA"), and is the source of some controversy.
Changes to YESAA
In addition to the major changes discussed below, changes contained in YNRIA include:
- making explicit that the new Canadian Environmental Assessment Act, 2012 does not apply in Yukon;
- adding a requirement that the YESAB also consider the cumulative effects from activities that are "likely to be carried out" when conducting an environmental assessment;
- implementing a cost-recovery mechanism requiring proponents to reimburse the federal government for the cost of a project review; and
- allowing members of the Executive Committee or members of a YESAB panel to continue to perform their functions in relation to a screening or review if their term expires or if they move from the jurisdiction before the screening or review is complete.
In addition to these changes, there are a further four more significant changes that have attracted criticism from First Nations in Yukon, each of which is discussed below.
While there were some time estimates previously in place, YNRIA imposes a series of timelines for the various stages of the environmental assessment process. The new timelines are as follows:
- Designated office review: The designated office must conclude its review and make a recommendation within nine months from when a proposal is submitted.
- Executive Committee Review: The Executive Committee must conclude its review and make a recommendation within 16 months from when a proposal is submitted.
- Panel Review: The Executive Committee must establish a YESAB panel and fix its terms of reference within three months. The panel then has 15 months to render a decision.
These timelines do not include the time required by the proponent to gather information or undertake any studies necessary for the review, which is done before a proposal is submitted. Consultations with First Nations are also conducted before project proposals are submitted. Assessing those consultations is done as a part of the overall review and if consultations are deemed to be inadequate by the Executive Committee, then the proponent would be directed to undertake additional consultations. Any such consultations would not be included in the timelines, so the time limits should not have a negative impact on Aboriginal consultations or opportunities for First Nation input.
YNRIA also provides some flexibility with regard to the timelines. Throughout the stages, additional time may be requested from the federal minister. The minister may extend the time limit by a maximum of two months to take into account circumstances that are specific to the proposal for a project. The federal minister may also ask the Governor in Council to make an order further extending the time limit any number of times by periods of any length.
With the implementation of YNRIA, a project is no longer required to undergo a new assessment when renewing or amending an authorization, unless there has been a significant change to the original project. The stated intention of this change is to reduce the administrative burden on the proponent and YESAB, and ensure predictability for established projects.
The legislation does not state what would constitute a "significant change" to a project or what information and input the decision-making body must take into account when assessing whether a new assessment is required. It appears that these decisions will be made on a case-by-case basis by the relevant decision bodies for the project. The decision-maker will rely on the evidence provided by proponents in their application for the renewal or amendment. Presumably, the decision-maker will consider factors such as the location, scale, technology, and infrastructure of the project and whether any changes to these factors are significant enough to warrant a new assessment.
Binding Policy Directives
Perhaps the most controversial of the changes contained in YNRIA is that it gives the federal minister the power to issue binding policy directions to YESAB. YESAB must be consulted before any direction can be given. The directions must be in writing and they must be published. YNRIA states that the direction can be "with respect to the exercise or performance of any of [YESAB's] powers, duties or functions under this Act." While that language is broad, the government has stated that these directions cannot be used to change the assessment process, influence current or future reviews, or expand or restrict the powers of YESAB.
Granting the federal minister the power to issue policy directions is seen by some as affecting the neutrality of YESAB. As stated above, the review process under YESAA was the outcome of negotiations and land settlement agreements between First Nations and the governments of Yukon and Canada. Opponents to the changes of YESAA argue that the power to issue policy directives tips the power balance in favour of the federal government.
It is worth noting that the power to issue policy directions is not unique to Yukon or the YNRIA. The same power exists in the Mackenzie Valley Resource Management Act, SC 1998, c 25, which is the legislation in the Northwest Territories governing the decision-making boards that carry out land use planning, regulate the use of land and water and, and conduct environmental assessments of proposed developments in the Mackenzie Valley.
Delegation of Power
YNRIA also authorizes the federal minister to delegate "all or any of" its "powers, duties or functions under this Act either generally or as otherwise provided" to the territorial minister. This ability to delegate has raised similar concerns from First Nations in Yukon as the policy directions. These groups worry that this change will further tip the balance in favour of the government if there is disagreement with Council of Yukon First Nations.
Environmental Assessment in Yukon - Further Background
YESAA has its roots in the negotiations that took place in the 1980s and 1990s between the federal government, First Nations, and Yukon, which led to the resolution of Aboriginal land claims as well as the devolvement of responsibility for land and resource management from the federal government to the Yukon government.
YESAA defines the environmental and socio-economic assessment process for all development projects in Yukon. It applies to all Yukon lands: federal, territorial, First Nation and private. It is Yukon's equivalent to Provincial and Federal environmental assessment regimes, insofar as it establishes the decision-making framework for project approvals. However, while projects in in the provinces may require both federal and provincial approvals, Yukon is not subject to the environmental assessment process under the Canadian Environmental Assessment Act; YESAA establishes a single assessment process.
Under YESAA, YESAB is given the sole authority to conduct environmental and social assessments of development projects. YESAB is an independent body with seven members, three of which sit on the Executive Committee. The Executive Committee is comprised of one member nominated by the Council of Yukon First Nations, one member appointed by the Yukon government (under YNRIA, the Yukon government no longer has to consult with the federal government) and a Chair that is appointed by the federal government after consultation with the other two Executive Committee members. Of the four remaining YESAB members, two are nominated by the Council of Yukon First Nations, one is nominated by the territorial government and the fourth is a direct appointment by the federal minister.
When YESAA was implemented, it was done so on the basis that it would be subject to a five-year review. This review process began in November 2008 and concluded in March 2012. The review examined all aspects of the Yukon development assessment process and was conducted in three phases: information gathering and issues scoping; issues analysis; and response. The changes to YESAA contained in YNRIA are the outcome of this review.
The changes in YNRIA are intended to harmonize Yukon's environmental assessment process with other jurisdictions in Canada. They are intended to make the process more efficient and provide more certainty to proponents in an attempt to attract development in Yukon. Given the controversy, it remains to be seen whether YNRIA will be challenged or, if implemented, how much of a practical impact it will have on the project approval process.