Jean questions Stephen Mills, Ian Robertson and Ken MiKinnon on land planning in Native territories - Dec 8, 2009

Ms. Jean Crowder (Nanaimo—Cowichan, NDP): Thank you, Mr. Stanton.

Thank you for appearing before the committee. Sadly, I also was not on the trip to the Yukon, although I have been in the Yukon in the past. It's beautiful country.

Mr. Mills, I just want to follow up on something you said. You made a distinction between the settlement lands and traditional territory. What happens in a traditional territory for a band that has settlement land? Is that handled differently?

Mr. Stephen Mills: Thank you for the question.

On large-level projects that go to the executive committee, there is a statutory obligation or requirement for a proponent to consult with affected communities and affected first nations prior to submitting a proposal to YESAA.

In the case of our traditional territory, for any project that is partially or totally in one of those traditional territories, there is a statutory requirement for consultation--on the proponent.

Ms. Jean Crowder: Just to interrupt for a second, you said that on settlement land it's the first nations who decide whether a project goes ahead. What happens on traditional territories?

Mr. Stephen Mills: On the settlement lands there are so many blocks, even with my own first nation, the Vuntut Gwitchin in Old Crow, that many projects tend to cover more than one jurisdiction. So we issue one recommendation for an assessment. I'll give you a good example.

We had a large power-line project. In the end, there were three decision bodies and regulators: the Yukon government, the Little Salmon Carmacks First Nation, and the Selkirk First Nation. All three received their recommendations and all three issued what they call a decision document.

All three agreed with our recommendations, which was good, and then they issued whatever regulatory authorizations they needed to, such as land use permits.

A voice: It's very complicated.

Mr. Stephen Mills: It's complicated, but it has worked.

That's why initially everybody was wondering if this was going to work or not. The fact is that it has worked. There have been many cases where you have a first nation and, for instance, a federal decision authority like DFO where they work together to make sure they agree. There's a federal coordination regulation that says different decision bodies are going to work together to try to come up with the same decision on a project. So far, I don't believe they've ever gone against each other.

Ms. Jean Crowder: That's great. That's good news.

Mr. Robertson, you indicated that in the land use planning where the proponents have a proposal to go ahead that's outside of the land use plan, at this point there is no requirement for an amendment to the land use plan. That's a bit of a surprising statement.

I was on a municipal council. We used to have official community plans and we needed to do an amendment--a community process around amending the official community plan--if something came forward that council was recommending. I'm surprised that you don't require an amendment on the land use plan or that there isn't a requirement.

Mr. Ian D. Robertson: I must admit that as a planner I was surprised as well when it came up. I think the way it was envisioned was that in the YESAA process, being at the back end of dealing with a specific proposal, the assessor would have and has a responsibility to work with a proponent to try to see how much can be done to bring a project into alignment.

But what do you do when you have a situation where it says this should be a conservation area and the proponents have found a significant mineral deposit? There is ambiguity there, and basically it's up to the parties to make the decision. If it's too much of a conflict and the YESAA process recommended that the proposal go ahead, the obligation would be on the parties to say no, it shouldn't, not until an amendment is done.

Ms. Jean Crowder: If the parties did agree on a project and it went ahead through the YESAA process, doesn't that undermine the land use plan? Doesn't that set a precedent?

Mr. Ian D. Robertson: Yes. It does in my eyes.

Ms. Jean Crowder: It seems to me that it's pretty fundamental.

Mr. McKinnon or Mr. Mills, I don't know if you have a comment on that.

Mr. Ken McKinnon: The only comment I have is that Ian keeps referring to us as the rear end of the project, which I take total exception to.

Voices: Oh, oh!

Mr. Ian D. Robertson: I didn't say the ass end. You're the rear end.

Mr. Ken McKinnon: We really believe in the land planning process because we feel that it is going to make our job that much easier. In areas where there isn't land use planning, I take.... Well, in the Champagne-Aishihik traditional area, there's a block of land where we're getting application after application for agricultural purposes, on an almost daily basis. We've now refused about 15 applications, but our staff has to go through the total process of assessing every application because there's no land use plan.

The Champagne and Aishihik First Nations have said that because of wildlife movement and because of different traditional cultural pursuits in that area, the land is not suited for agricultural purposes. But without the land use plan, every time we get an application, we have to go through the whole assessment process in coming up with the recommendations. There's a small Kluane land use plan in the area, but not a total plan, and Champagne-Aishihik is objecting to the agricultural applications. We've turned down about 15 of them. We wouldn't have to do all of that extra work if the land use--

Ms. Jean Crowder: It would make everybody's job easier.

Mr. Ken McKinnon: Absolutely.

Ms. Jean Crowder: It would seem that resources need to be put into land use planning to make sure that component is completed--

Mr. Ian D. Robertson: Absolutely.

Ms. Jean Crowder: --and that's certainly lagging.

I think Mr. Mills has a comment.

Mr. Ken McKinnon: I have just one added comment on Stephen's comment on the Carmacks-Stewart transmission line. You see, there were three governments involved in the assessment: Little Salmon Carmacks, because they have a settled land claim or a decision body and acts as a government; Selkirk First Nations, because they have a first nation government and act as a decision body; and then the YG acts as a decision body.

So technically speaking, if each government had decided to do its own assessment process, there would have been three separate assessments instead of the one single assessment that comes under YESAA. That's the beauty of the project, of the YESAA legislation, and that's why we are able to meet those strict guidelines, with the cooperation of all the governments.