Bill S-6 is a fundamental violation of the modern day Yukon treaty relationship

Last Thursday, 150 people packed a room at the Kwanlin Dün Cultural Centre in Whitehorse to discuss what to do about changes the federal government has put before Parliament on the Yukon Environmental and Socio-economic Assessment Act.

In the crowd were people from around Yukon, about one half of First Nation ancestry and the rest equally concerned Yukoners. Most, if not all, were of the view that the amendments, known as Bill S-6, violate the fundamental relationship secured between First Nations, Yukoners and Canadians through land claims agreements, modern treaties that have been in place (at least the first four) since 1993.  

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Those in attendance heard from a panel of aboriginal experts, including Council of Yukon First Nations Grand Chief Ruth Massie, Little Salmon and Carmacks First Nation Chief Eric Fairclough and lawyer Daryn Leas.

Most of the crowd saw the amendments for what they are — an affront not just to the aboriginal people of Yukon who spent 20 years in treaty negotiations, but to all Yukoners. The Umbrella Final Agreement and the 11 treaties express the fundamental value of sharing, the co-management of Yukon in critical areas such as land and water management, land use planning and of course environmental and socio-economic assessment.

During treaty negotiations First Nations agreed to retain less than 10 percent of their traditional territory in exchange for the partnership in management of all Yukon land and resources.  

Critical to this partnership was the establishment of an arms-length body, the Yukon Environmental and Socio-economic Assessment Board, to conduct assessments on projects that affect the environment and people of Yukon.  A key outcome of the 1990s negotiations was the independence of the board, and the capacity to conduct assessments free of interference from any government: First Nation, territorial or federal.  

Imagine the surprise and concern among aboriginal leaders when, following arduous deliberations as part of the five year review of YESAA, and success in reaching agreement on 73 recommendations, Canada announced a “take it or leave it” package of changes that include an additional four changes to the Act, three not discussed with them and one that First Nations adamantly oppose.

The first change allows for the exemption of projects up for renewal. First Nations argue reviews are required where a project may have additional impacts due to climate change, shifts in wildlife migratory patterns, or where cumulative effects may have to be given consideration.  

The second is the ability of the federal government to issue binding policy instructions to assessment board. This goes completely against the principle of independence originally agreed to by all parties.  

Canada can also delegate its power to the Yukon Government, which has reached an all-time low in its relations with First Nations, preferring to meet them in the courts over disagreements on treaty interpretation.  

Finally, new imposed timelines are, as one speaker noted, “ridiculous and nonsensical.”  Data shows that most lower-level assessments are completed in less than 80 days, so why impose a nine month timeline?

Even more substantial is the tightening of timelines for larger projects.  For larger projects — such as construction of a new hydro dam or a large mining project — more time is needed for assessment.  Critics fear the restricted timelines will force assessors to take short-cuts just to meet arbitrarily set legislated deadlines.  

Understandably, First Nations see the bill as a betrayal of the “spirit and intent” of the treaties. This is not just a betrayal by a distant government in Ottawa, but by the Yukon Government whose premier has expressed support for the amendments. Darrell Pasloski’s answer when questioned in the legislature is that if there is a conflict between the legislation and the treaties, the treaties will prevail. This is technically true. But, as seems increasingly common, the result will be a protracted and expensive journey through the courts.  This is not what First Nations want, fighting their treaty partners in the Courts. So much for partnership!  

So where to from here? First Nation leaders want Yukoners’ support for their request to have the Commons’ Standing Committee on Aboriginal Affairs travel to Yukon so MPs can listen first-hand to the concerns of the territory. There was clear consensus on this point at the public gathering.

Since the committee is dominated by Conservative MPs, it’s hard to imagine such a visit taking place. Perhaps the Yukon’s Conservative MP and Senator have the persuasive powers that will prove me wrong. Let’s hope so… the committee could learn a thing or two about partnerships.

Kirk Cameron is a born and raised Yukoner, Whitehorse City Councillor, northern governance consultant, instructor at Yukon College, author of two books and articles on northern political topics and a father of three. He ran for the Yukon Liberal Party in the 2010 byelection.