Tuesday, May 21, 1991 - 1:30 p.m.
Speaker: I will now call the House to order. At this time, we will proceed with Prayers.
Speaker: We will proceed with the Order Paper.
Introduction of Visitors.
Are there any Returns or Documents for tabling?
Are there any Reports of Committees?
REPORTS OF COMMITTEES
Hon. Ms. Hayden: I have the honour to present the Twelfth Report of the Standard Committee on Public Accounts. As well, I have the honour to present the report of a Select Committee on Constitutional Development.
Introduction of Bills.
Notices of Motion for the Production of Papers.
Notices of Motion.
Statements by Ministers.
Formula Financing Agreement, 1991/92 - 1994/95
Hon. Mr. Penikett: I rise today to inform the House that the federal Minister of Finance signed the new formula financing agreement last week.
The new arrangement covers the fiscal years 1990/91 through and including 1994/95 years and there is provision for a third-year interim review of the formulas operation. A phase-in provision delays the full force of the new arrangement until 1992/93. In 1990/91 we experienced 50 percent of the impact and in the current year, 1991/92, we are subject to 75 percent of the formulas ultimate impact.
We estimate that under the new formula, the territory will receive $58 million less than it would have had the previous formula continued in operation. For the first time, the rate of change in our population as compared to the rate of change in the Canadian population will be a factor in determining the federal transfer payment. For this reason, it is extremely important that every Yukoner be counted in the national census that will take place in June of this year. The new arrangement also introduces some aspects of the Canadian equalization system into our financing arrangements in that the territorys tax capacity, our ability to raise tax revenues, is a part of the grant calculation.
However, and unfortunately, a non-equalization concept, tax effort, or the ratio of our actual tax revenues to our tax capacity, is also a factor of the grant calculation.
It is the introduction of this ratio that results in the loss of grant monies under the new arrangement.
In simple terms, the federal government is saying that we do not tax our citizens heavily enough because our calculated tax effort is below our calculated tax capacity. We could not disagree more with this contention. Our apparent tax effort appears low only because our high cost of living mitigates against higher tax rates. In other words, a taxpayer in the Yukon cannot possibly bear the same tax rates as a taxpayer in Quebec or Ontario, who earns the same income. The high living cost here requires a portion of the Yukon taxpayers income that, in Quebec or Ontario, would be available to pay taxes.
The federal government has not taken account of this fact in the formula arrangement to which we are now subject.
Perhaps the most discouraging part of the new agreement is the disincentive to economic development. For every $1.00 of volume-induced tax revenues raised in the Yukon as a result of increased economic activity, our grant will decrease by approximately $1.40. It is difficult to understand the reasoning on the part of the federal government that led to the inclusion of this particular element. Since we have, to date, been unable to convince the federal government to change their position on this matter, it is something we shall just have to live with for the time being.
The 1992-93 estimates to be presented at the fall sitting will reflect the full impact of the new formula financing arrangements. Even without this reduced growth rate in our funding, it would be impossible to meet all the very real needs in the Yukon that require attention. We must continue to rank these needs such that the principal goals and objectives of our government, such as land claims, sustainable development, healthy communities and good government, continue to be adequately funded.
Despite the reduction in the federal transfer payment inherent in this new formula, we believe substantial progress toward the achievement of the four goals I have just mentioned can be achieved. We also believe this can be accomplished without jeopardizing the financial position of the territory.
Mr. Phelps: I would like to say that I am pleased that the accord has finally been signed. There was an aspect of uncertainty. Some of us feel uneasy from time to time, particularly in view of the drastic cutting that is going on in most of the jurisdictions in the south.
I am always intrigued by this government, in that they never seem to appreciate or say how much we are getting as a government, but seem to dwell on the possible cutbacks or what we are not getting, rather than what we are. While this may be politically smart it seems to me to some extent to show a lack of appreciation for the very real contribution that the taxpayers in the rest of the country make in helping the Yukon be a financially viable region of the country. It seems to me that at the present time we, as a region, are being treated extremely well, when one takes the time to compare the assistance given, on a per capita basis, to the maritime regions of Canada or the have-not provinces.
It surprises many Canadians when they travel here to find out that we really have not been hit by the effects of the recession that is being felt so drastically in central Canada and in other parts of Canada.
Should we be hit to any extent by that recession, the disincentive the Minister spoke of in his ministerial statement would work in the reverse: we would get a large infusion of money to keep our finances at a basic level that we could count on.
In summary, I am pleased that this agreement has been signed. It has reduced some uncertainty. We should occasionally acknowledge our good fortune and thank our fellow Canadians to the south for their assistance in Yukons way of life.
Hon. Mr. Penikett: I thank the Leader of the Official Opposition. I regard it as a significant day when I am capable of intriguing him.
It would be a mistake to describe the government and people of the Yukon as ungrateful or as being ingrates with respect to the formula arrangements. They are, in broad terms, good arrangements. They are preferable to the former situation wherein this government had to go cap in hand.
At the same time, they are arrangements that the designers of the formula intended to have in place to facilitate equitable treatment of Canadians everywhere in the country, according to the best principles of Confederation. I think that the formula can be justified anywhere in the country on those grounds.
The part we have a particular problem with, as I mentioned in the statement, is what we call the perversity element in the formula. We have been trying to develop our economy and reduce our dependence on the federal government in the last few years. We would have hoped that the federal government supported this goal. Unfortunately, in the new formula we have a situation where for every new dollar in tax volume we raise, we will be penalized to the tune of $1.40.
This gives us a disincentive to develop our economy and, in terms of both the local and national interest, I think this is a mistake and a problem that all sides of this House will want rectified in future arrangements, if it can be.
Speaker: This then brings us to the Question Period.
Question re: Faro strike
Mr. Phelps: I have some questions for the Minister responsible for Economic Development: Mines and Small Business with regard to the continuing strike at Faro, which has been going on for about seven weeks now, with the impact on the general economy of the Yukon continuing to grow.
Last week, the Minister said he would not take any action to speak to both sides in order to express this governments concerns and to see whether or not this government could assist in any way to find a solution. Is the Minister still taking the position that he will not take a proactive role?
Hon. Mr. Byblow: To clarify the position stated last week, contrary to what the Member interpreted, I said I would not be interfering in the negotiations of the current labour dispute in Faro.
More importantly than ever, however, we would continue communications with both sides. That is occurring on a regular and ongoing basis. I am personally in contact with officials of the Steelworkers, as well as officials of the company, on a regular basis. We are encouraging both sides to resume negotiations, and we will maintain the position that open communications between both sides, leading to a favourable settlement, is in the best interests of all parties.
Mr. Phelps: Any objective observer would be left with the impression that this government is not doing much at all with regard to trying to impress upon both sides that we had better end this strike soon.
Has the Minister yet communicated with the federal Minister of Labour to seek an appropriate role for this government with regard to trying to get talks going and get the strike over with?
Hon. Mr. Byblow: I have not spoken to the Federal Minister of Labour. The jurisdiction of labour disputes falls within the realm of the federal Minister of Labour. He has exercised his authority under the Canada Labour Code to appropriately appoint a conciliator, who has reported and who has failed to provide any support to that settlement.
It is not the appropriate action for me, or any Member of this government, to interfere in due process. The Member is quite aware of labour jurisprudence and recognizes that third parties interfering in a labour dispute is not appropriate action.
Mr. Phelps: We are not talking about interference. We are talking about this government doing something to try to see if there is some way that they can assist in resolving this dispute, which is having an impact in Yukon, not in Ottawa.
Will the Minister communicate with the federal Minister of Labour to see whether or not there is some appropriate role for this government to play in resolving this dispute?
Hon. Mr. Byblow: An appropriate role for this government is to maintain open communications with both side and encourage them to resume negotiations. It is not appropriate to interfere in federal labour jurisprudence and that is not the action contemplated.
As I indicated in my opening remarks, we are in constant communication with both sides. We have an open-door policy and will provide any assistance to achieve some settlement, if requested by both sides.
There has not been a request by either side to involve ourselves, much less to interfere, in those labour negotiations. Certainly, we are concerned about the impact on the economy and we are monitoring that closely. We will continue to encourage the two sides to resume negotiations at the earliest opportunity.
Question re: Faro strike
Mr. Phelps: Communicating with the Minister of Labour in order to see whether or not there is some appropriate role that we can take, as a government, does not amount to interference in any way. I am absolutely flabbergasted that this step has not been taken.
I would like to move on to another area pertaining to the strike and ask whether the Minister knows how long the strike can continue without jeopardizing the contracts that Curragh has with customers for delivery of ore.
Hon. Mr. Byblow: The Member in his preamble, again referred to a matter that is the responsibility of the federal Minister in terms of labour dispute matters. The federal Labour Code is very clear in the process to be followed in matters of labour dispute.
If the Member is suggesting that the federal Minister is not exercising his responsibility, then he should say so, but certainly it is not my responsibility to assume jurisdiction in a matter that is not within our jurisprudence.
With respect to the Members question on the economy, there is no question that impacts are being felt; they were felt the day after the strike. Take the Yukon Alaska drivers for example.
We are monitoring, through Economic Development, impacts in the consumer spending and retail businesses, impacts on suppliers, particularly as affecting the strike. We are conscious of the increasing impact that the strike is having.
Mr. Phelps: I can only hope that someday in the distant future some history buff will be reading Hansard and will focus on the last question and the answer that was given in response to it.
My question was not about the economy. My question was whether or not the Minister knew how long the strike could continue without jeopardizing the contracts Curragh has with customers for delivery of product.
Hon. Mr. Byblow: I cannot speak for the company and its contracting relations with its market. I am generally aware of some of the contracts.
Curragh Resources has a variety of contractual arrangements. They range in terms of commitment and, at the same time, some of the contracts clearly are not obligatory in the event of a labour dispute.
Mr. Phelps: Can the Minister tell us, then, whether or not Curragh may lose contracts and buyers permanently if the strike continues?
Hon. Mr. Byblow: That is a hypothetical question. I cannot speculate. Certainly the possibility exists that Curraghs market position could be injured by a strike of some duration. By the same token, it would be in their interests, as well as ours, to address the matter of the labour dispute.
Question re: Faro strike, ore truck traffic
Mr. Phelps: I have asked the last question for a reason and that has to do with the concern that the constituents of mine have with regard to the ore truck traffic on the Klondike highway. Can the Minister tell us whether or not there is any indication that, when the strike is settled, the ore trucks and the mine may have to try and play catch up to deliver the product that has not been delivered during the duration of the strike?
Hon. Mr. Byblow: That is a very reasonable question. It is certainly one that has not been raised by the company and certainly one that we will be taking into account when a settlement occurs.
Mr. Phelps: I wonder if the Minister can tell us when Mt. Hundere will start delivering product to Skagway and whether or not we know who the trucking contract will be going to?
Hon. Mr. Byblow: The current schedule on Mt. Hundere calls for production to begin in late July. That is still within the general schedule that was set some time ago. The most recent discussions with officials of the Mt. Hundere venture indicate that that schedule is expected to be kept, so the short answer is: late July or possibly early August.
Mr. Phelps: The Minister did not answer as to who was going to be trucking the ore and I would like to again put that question to him and ask, in addition, whether or not his department, the Department of Community and Transportation Services, is doing anything to ensure that there will be coordination between the two trucking companies that haul ore over the South Klondike highway to Skagway?
Hon. Mr. Byblow: The contract for the ore haul for Mt. Hundere has not been disclosed publicly. The matter of coordination is being closely dealt with by officials of my department. In fact, I have met with officials of the Mt. Hundere venture on numerous occasions in the past several months with respect to load limits, ore truck configuration, safety matters, frequency of the route use as well as the route itself. We will have an ore haul bulk commodities agreement in place and we are finalizing the details of that agreement now.
Question re: Yukon College heat and ventilation system
Mrs. Firth: My question is for the Minister of Education and the Minister of Government Services, and it relates to the lawsuit at the Yukon College for the heating ventilation and air conditioning system. The law firm, Swinton and Company, has been retained to look after this lawsuit for $150,000. Presently, there are deficiencies and dysfunctions with respect to the system. I would like to ask the Minister if he could give us an update on the status of the lawsuit and how much longer they expect it to go on?
Hon. Mr. McDonald: The Member caught two of the three Ministers involved in the situation when she asked me for an answer. Unfortunately, she did not question the Minister who is responsible for the lawsuit, the Minister responsible for Justice. I think she described the basic situation adequately; there are some deficiencies currently in the system and, because the situation is likely to be before the courts - or it could be before the courts; I am not at liberty to describe it further than that. I do not know how long the lawsuit will take. I know from past experience that the Porter Creek C lawsuit was only wrapped up very recently, and I think it was in examination for discovery for probably three or four years. Consequently, I do not know exactly when this matter will be resolved, but we are pursuing it through our legal counsel, as the Member has mentioned, and we expect to have a positive resolution for the government as soon as possible.
Mrs. Firth: The lawsuit has been going on for some time now. I believe it started in the spring of 1988. The concern I had previously raised was whether the recoveries we get are worth all the costs that go into the lawsuit.
Could the Minister of Government Services update us as to exactly what the problem is with the system? We hear it is very inadequate and dysfunctional at times, and is causing some distress for the people who are working there, as well as for those who are getting their education there.
Could the Minister give us an update as to how the system is functioning and what the deficiencies are?
Hon. Mr. McDonald: I would not want to say anything in this Legislature that may jeopardize our position, when this matter is carried forward for judgment in the courts. I am going to have to decline on the Members offer to further describe it.
However, I think it is important to point out that the problems that are being faced, in the main, have not caused considerable discomfort for the student and staff population of Yukon College. However, they do remain inadequate, and we believe they are serious enough that they should be carried forward for a judicial decision.
After having given this matter some very careful thought, and weighing the pros and cons of proceeding forward to the courts, at some expense, we have come to the conclusion that it is very much worth our while to carry it forward. Therefore, we are pursuing this with the architectural firm, as well as with the builders and project manager. We hope to have a positive resolution before too long.
Mrs. Firth: The Minister keeps referring to it as being before the courts and therefore he cannot comment. This particular lawsuit has not gone to court yet, or is my information inaccurate? I was under the impression that it had not gone before the courts yet and there was almost a dysfunction, at times, of the system and that it was even getting to the extent that some people were suffering from some respiratory problems from the system. Has it even gone to court? If not, when is it expected to? Perhaps the Minister of Justice should answer.
Hon. Mr. McDonald: I really must insist that I am not the Minister, despite the fact that the Member continues to ask me the question. I am not the Minister responsible for the department that is managing this matter through the legal system.
I do not believe the matter has not gone to court, although I can have that checked. I do know that it is being examined by lawyers from all parties concerned. The situation is presently being reviewed. It could easily go to court if a resolution is not found. I will undertake to update the Member, if she keeps insisting on asking me the question, as soon as I can bring the information back to the House.
Question re: Hunting out of season
Mr. Lang: I would like to ask a question of the Minister of Renewable Resources. It has to do with the taking of wildlife out of the normal hunting season by Indian hunters.
The Minister will recall that approximately 10 days ago a number of pregnant ewes were shot in the Ross River area, close to the road and with easy access to the hunters. I do not know if the Minister is aware of this, but over the past weekend a letter to the editor of one of the local newspapers appeared with a number of serious allegations. Apparently, in game zones 7 and 9, a minimum of six moose, most of them cows and a number of them pregnant, have been taken over this past year. As the Minister knows, game in zones 7 and 9 have been declining, as far as moose populations are concerned, and most hunters cannot hunt there.
I want to ask the Minister if he can verify that this type of hunting has been taking place in game zones 7 and 9 over the past year?
Hon. Mr. Webster: I cannot verify at this time if the hunting activities mentioned by the Member opposite have taken place over the past year, with respect to the killing of cow moose that are pregnant, but I will get that information for the Member.
Mr. Lang: There seems to be more and more stories coming forward in respect to this type of harvesting, specifically in game zones 7 and 9, primarily around Whitehorse and primarily cow moose, where they are obviously easily accessible. Subsequently, quite a number are being taken out of what we would term as the normal hunting season. I want to ask the Minister: can he provide this House with all reported incidents of native and non-native harvesting of game, out of what we term the normal hunting season over the past three years?
Hon. Mr. Webster: Just to understand the question correctly, is the Member asking for all reported cases of moose taken in games zones 7 and 9 over the last three years throughout the territory out of hunting season? That is correct. I will endeavour to get that information and report back to the Member.
Mr. Lang: I appreciate that. As the Minister and all Members know, it is a very important aspect if we are going to have wildlife to manage here in future years.
I want to ask the Minister if he has been in contact with the various First Nations with respect to working out arrangements with them so that this type of hunting will be curtailed in the future?
Hon. Mr. Webster: I am not personally involved with the First Nations to discuss this matter, but authorities with the fish and wildlife branch have had contact with some of the First Nations to have them review the matter internally and to take the necessary measures to prevent hunting that is not in the best interest of maintaining the species.
Question re: Hunting, game zone 5
Mr. Lang: As the Minister knows, as the years go by, more and more hunting regulations are coming into effect for the harvesting of game.
We were made aware, not too long ago, about game zone 5 in respect to the situation regarding the caribou herd in the Aishihik Lake area and the fact that it is coming under a lot of predator and local hunting pressures. Obviously, hunting is going to be curtailed in that area.
In the land claim agreement, the government of the Yukon Territory, which has the responsibility for wildlife, is presently negotiating what is termed the basic need level for the harvesting of wildlife in the territory through the land claims process.
Can the Minister provide this House with the information and data that his department is using to justify the need levels throughout the territory?
Hon. Mr. Webster: At this time we do not have that information available. We are still in the process of compiling it to determine what the basic need level would be for each First Nation. Those need levels are based on past histories.
Mr. Lang: One of the provisions of the agreement to establish the basic need levels is and I quote, Government of the Yukon and First Nations may agree to conduct a study to define more clearly the factors. When it talks about the factors, it is talking about the harvesting requirements in certain areas.
Could the Minister tell us, as far as the First Nations are concerned, whether or not there are studies underway to be able to determine what a basic need level would be for particular areas throughout the territory?
Hon. Mr. Webster: I can confirm that studies are currently underway. These studies will determine need levels for each species that have been traditionally hunted by each First Nation in their traditional area and what their requirements will be to meet the needs of their members.
Mr. Lang: There are quite a number of non-native Yukon hunters. These Yukoners harvest wildlife in the normal hunting seasons throughout the year.
Can the Minister assure us that once the negotiations are concluded, that the rights for non-native hunters to harvest wildlife will be protected and there will be acceptable levels made available to them through the process that has just been undertaken?
Hon. Mr. Webster: It has been a consistent policy of the Government of Yukon all along during the land claims negotiations that we seek fair access to the game for all Yukoners. As to guaranteeing acceptable levels of each species for harvesting by non-aboriginal people, that can only be determined by the health of the species in each of the areas of the territory.
Question re: Hunting out of season
Mr. Lang: I want to go back with respect to the information the Minister provided to the House. There were studies in all the areas, as far as the First Nations were concerned, trying to assess what the needs level would be with respect to game counts and this type of thing.
Would the Minister commit to this House to provide us with the information, once these studies have been concluded, and give us a list of where the studies are taking place, who is doing them and when they will come to an end, so we will have an idea of what we are talking about?
Hon. Mr. Webster: I can make that information available when the studies are complete.
Question re: Formila financing agreement
Mr. Nordling: My reading of the ministerial statement on the signing of a new formula financing agreement is that there is no actual reduction in the federal transfer payment, but we will be receiving $58 million less over five years than our most optimistic projection.
In the first year of this new agreement, being 1990/91, we received over $10 million more than the previous year. Can the Minister of Finance tell us how much the annual increase will be for the next four years, in actual dollars?
Hon. Mr. Penikett: I thank the Member for the question. The Member quoted me as saying the amount would be $58 million less than our most optimistic forecast. That is not what I said. I said there was $58 million less than there would have been, had the old agreement continued in place. It is a somewhat different thing. I suspect I am a much more optimistic person than the Member is, so his calculation is wrong on this score.
The point about exactly how much we will get in the next few years, throughout the life of this agreement, is impossible to precisely determine, because of the other factors in the agreement. The condition of our economy will have a bearing, as will the results of the census to be taken this year, and the condition of the national economy. There is an element called the provincial local factor, which is an element of this agreement.
The perverse element in this formula is such that, if we were to have a very healthy economy, and a significant increase in tax volume, then our grant would be cut by 140 percent of whatever that amount was.
The other scenario is, if the economy was less healthy, the impact of that reverse element would not be as great.
I want to take the Members question seriously. I would like to table information in the House to show the high and low scenarios or projections under this formula and hope he will understand that the various elements contributing to the make-up of the grant each year may change in ways that are, at this moment, impossible to predict.
Mr. Nordling: I think that would be helpful. I would like more specifics from the Minister with respect to what this government is going to do. He has told us what is wrong with the formula financing agreement but I would like to know this governments position with respect to increasing our tax effort. What is the federal government indirectly asking us to do? Do they want us to impose a sales tax or raise the Yukon income tax, and what will this government do?
Hon. Mr. Penikett: I thank the Member very much for the question. Our specific response to this formula, now that it has been signed, will be outlined in the next budget to be brought before this House. Our position is very clear: the federal government wants us to increase taxes here; our position is that Yukoners cannot afford it, and we are very, very uninclined to do so. Mr. Wilson was very keen that we raise the taxes here; we knew that Yukoners would object, and that has been our position throughout and it continues to be our position.
Mr. Nordling: I am pleased to hear that and I am pleased to hear, from the ministerial statement, that it will be accomplished without jeopardizing the financial position of the territory.
I would also like to know what this governments approach is to economic development and whether this agreement will change that approach. Is the government going to discourage economic development in order to maximize dollars from Ottawa or will it continue with all vigour to encourage economic development and make the Yukon more self-sufficient?
Hon. Mr. Penikett: I thank the Member again for the question. May I compliment him on the excellent questions he is asking today?
Our approach to economic development is laid out in the Yukon Economic Strategy. It is confirmed in the economic development agreement, which will be signed tomorrow by my colleague the Minister of Economic Development and the federal government. Our position continues to be that, for the good of this territory, both constitutionally and economically, we want to reduce our dependency on the federal government. What we are very saddened about is that this new formula gives us a disincentive; it does not encourage us to do so.
We are going to have to deal with the realities of this formula in our next budget. Our commitment to continue to develop this economy remains. The strategy adopted on both sides of this House continues to be one that we will be trying to put into place, with annual reviews, and we hope the new economic development agreement that we have will also give us the ability to continue the work that we have done in trying to strengthen and broaden the Yukon economy.
Question re: Elk
Mr. Phillips: Several weeks ago the Department of Renewable Resources released several elk in the Tutshi area. The release was carried out in two stages. The bulls were trucked to the area and released first and the second group of cows and yearling calves were flown in in April and were held for a short time in a corral before they were released. I would like to ask the Minister if they placed radio collars on any of the bulls in the first release, and if we did could he tell us if these elk eventually joined the existing herds in that area?
Hon. Mr. Webster: I am not sure at this time if some of the radio collars were placed on some of the bulls. I am not at this time aware if tracking their whereabouts has led to the two fractions of the herd merging into one.
Mr. Phillips: I wonder if the Minister could bring back to the House what monitoring has been done of these herds? Could he tell us if we have had any more mortalities among those bulls and if, in fact, they have joined up with the herd, as that was the intention of placing the elk in that area.
Hon. Mr. Webster: I will ask officials in my department to compile the information and report back as soon as possible.
Mr. Phillips: I understand that radio collars were put on some of the cows that were flown into that area. I wonder if the Minister could tell us if the cows that were placed in the same vicinity as the other elk have actually joined up with the existing herd and if there were any more mortalities in that group of cows and young calves we released? If there were more mortalities, could the Minister tell us what those elk died from?
Hon. Mr. Webster: I will include that information as well in my return.
Question re: Alaska Highway maintenance funding
Mr. Brewster: My question is for the Minister of Community and Transportation Services. Earlier today, the Minister was reported as saying that the $1.1 million that was supposed to be cut by the federal Department of Fublic Works for maintaining the Alaska Highway may be returned. This may be a happy moment for all of us.
However, May 2, 1991, in this House, the Minister said the budget had been cut from $12.2 to $10.7 million. This is a difference of $1.5 million. I would like to know which figure is correct.
Hon. Mr. Byblow: Both are. The original cut of $1.5 million takes into account $400,000 worth of disputed claims and charges that are assigned to the previous year. They are essentially bookkeeping adjustments.
The actual physical maintenance dollars for the current budget year are $10.7 million plus $1.1 million, which, in effect, is just $400,000 short of the $12.2 millioncited earlier.
Mr. Brewster: That means $400,000 goes into red tape instead of the Alaska Highway. This is typical government.
The Minister appears to be in the dark about how money is going to be spent on maintaining the Alaska Highway. I would like to know if there is close consultation between his department and the federal Department of Public Works about the maintenance costs for the highway.
Hon. Mr. Byblow: It is not accurate to suggest that my officials are in the dark about maintenance requirements of the Alaska Highway. My officials work very closely with Public Works Canada officials and are in an ongoing consultation with respect to upgrading the highway in poorer sections and engineering preparations for eventual and total upgrade.
The Member must remember that we are beginning the devolution talks now. My officials, along with Public Works Canada officials, are in the beginning stages of setting those details into place for devolving responsibility for the highway. That, as a first premise, requires known numbers about the cost of maintaining and upgrading that highway.
My officials have thorough knowledge - and work very closely with Public Works Canada - about details about maintenance and upgrading of that highway.
Mr. Brewster: Has the Minister received anything in writing from the Minister of Public Works about the Alaska Highway funding?
Hon. Mr. Byblow: No, I have received nothing in writing, but I am quite confident that the correspondence is en route. I am advised, through officials and by Mr. MacKays office, that the funding that was intended to be cut, and was cut at one point, which we received in writing from Public Works Canada, will be restored.
Speakers Ruling re Motion No. 61
Speaker: The time for Question Period has now lapsed.
Before proceeding to the Orders of the Day, the Chair wishes to draw the attention of the House to the words of Motion No. 61, standing on todays Order Paper in the name of the Member for Tatchun. It reads as follows:
THAT this House urges the federal government to maintain the Flight Services Station and IFR system at the Watson Lake Airport.
On December 12, 1990, the House debated and agreed to Motion No. 28, moved by the Member for Watson Lake. The motion stated:
THAT it is the opinion of this House that the federal government should maintain the existing the Ministry of Transport Services at Watson Lake Airport.
Because the House has already received a decision during this session on the matter raised in Motion No. 61, the Chair must order that Motion No. 61 not be put on the Order Paper.
May I have your further pleasure?
Notice of Business
Hon. Mr. McDonald: Pursuant to the provisions of Standing Order 14(5), I would request the unanimous consent of the House to call the following motions: Motion No. 52, Motion No. 39, Motion No. 20, Motion No. 38, and Motion No. 45 under Motions Other Than Government Motions, when that business is called on Wednesday, May 22, 1991.
I would also request the unanimous consent for Motions for the Production of Papers not to be called.
Speaker: Is there unanimous consent?
All Hon. Members: Agreed.
Speaker: Unanimous consent has been granted.
Hon. Mr. McDonald: I move that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.
Speaker: It has been moved by the Hon. Government House Leader that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.
Motion agreed to
The Speaker leaves the Chair
COMMITTEE OF THE WHOLE
Deputy Chair: I will call Committee of the Whole to order and declare a five-minute recess.
Hon. Mr. McDonald: As all Members know, we will be conducting our business this afternoon by introducing witnessess before Committee. There is a formality that we must move a motion to that effect this afternoon, so I will move the motion now.
Motion re witnesses before Committee
Hon. Mr. McDonald: I move
THAT David Tait, Bob Jickling, Hector MacKenzie, Terry Bergen, John Bailey, Rob McIntyre, Larry Carlyle, City of Whitehorse, Michael Brandt, Judy Dabbs, Wayne Hrynuik, Wendy Boothroyd and Bob van Dijken appear as witnesses before Committee of the Whole during debate on Bill No. 20 entitled Environment Act.
Motion agreed to
Deputy Chair: I would like to welcome Mr. David Tait, representing White Pass.
Mr. Tait: My name is David Tait and I represent White Pass Transportation Limited.
Deputy Chair: Do you have an opening statement, Mr. Tait?
Mr. Tait: Mr. Chairman and Members of the Legislative Assembly, I wish to express our appreciation for the opportunity to touch on some of our concerns relative to Bill No. 20, the Environment Act. White Pass is eager, as we are sure most Yukoners are, to have an effective and workable environment act which achieves an effective balance between environmental protection and sustainable development.
Unfortunately, we are not of the opinion that Bill No. 20, as originally drafted and presented for public consideration, or as redrafted and tabled in this House, will, over the long run, be either effective or workable. Bill No. 20 has been often referred to as framework legislation, which will depend upon regulations to make it effective and workable.
We have two concerns. The first concern is that under law, in the absence of regulations, the act will apply. Because the definitions and many of the clauses are so vague and general, the act in itself could become somewhat of a spinning, loose cannon.
Our second concern is: given the importance of environmental legislation and the impact that environmental legislation has on all our lives, it seems only reasonable and logical that Bill No. 20 would be drafted with, at the very least, some key attending regulations. This would give Yukoners and outsiders with an interest in the Yukon, some idea of what they will be living under and dealing with when regulations come into play.
The apparent attack on personal rights and freedoms contained in the discussion draft of the Environment Act, and now the apparent built-in ability to dodge public input to regulation development in the tabled draft, does nothing to soothe or allay our concerns.
Our recommendation to this House is that the work already done on Bill No. 20, be enhanced by an ongoing effort to continue to tighten up the wording of the act and to establish basic regulations pertinent to the act, before the act becomes law. We do not care how long this process takes. In other words, it could be done in a month or six months. For the act to be effective and workable, we feel more work on the drafting simply must be done.
Historically, it is relatively easy to pass a bill into law, but it is enormously difficult to amend or revoke existing legislation. We wish to suggest that three to six months spent now on making sure that Bill No. 20 is effectively drafted, will save years of frustration and turmoil in the future.
At this point I would like to relate to some specifics in support of what has just been said. The definitions are broad and far reaching. They should be tightened up, particularly the definitions of contaminant, environment and natural environment. As an example, the definition contained in natural environment, is extremely broad and we have serious concerns about how the court will interpret cultural and aesthetic values associated with air, land and water; organic and inorganic matter; ecosystems and ecological relationships. This definition requires serious redrafting, otherwise it could cover virtually everything carried out in the Yukon.
Another example is the definition of solid waste, which again is very broad and includes normal day-to-day garbage. The definitions should be developed for reasonable notice, person and refuse. There are others too numerous to mention.
Section 8 of the act permits lawsuits to be instituted against individuals, including children, companies and municipal corporations, if they are deemed to have impaired, or to be likely to impair, the natural environment. By authority of section 8.4, the Government of Yukon may commence an action, but, not against itself. Because activity is not defined in this section, a gray area results.
Of interest to Yukoners who think speedy passage of this act will produce immediate results, is the fact that this section will not apply until either regulations are developed or until October 1, 1996, whichever comes first. Presumably, after October 1, 1996, this section will apply with or without regulations.
We have to wonder what will constitute a standard of proof. It is not stated, so we have to assume that it would be a normal civil lawsuit. Add to this confusion the fact that the word impair is not defined, and one rapidly draws the conclusion that this is just one of many examples in Bill No. 20 where more work has to be done in the drafting process. This becomes terribly important, considering the fact that the act creates a case where there is absolute liability on any defendant. The defence of due diligence or acting reasonably will not apply in this section, although it does apply to other sections of the act.
It is virtually impossible to address all of our concerns over the construction and intent of Bill No. 20 in the five minutes that have been allotted. Please allow me just to highlight a few of our other concerns.
First, when one considers the impact of existing federal legislation relative to environmental considerations in the Yukon, we have one ball game. We foresee a second ball game where the Government of Yukon, acting with impunity under Bill No. 20, can have a second set of rules for its own activities relative to the environment. A third ball game could come as a result of choices made by the First Nations relative to the environment at some later date.
Finally, the rest of us are left to bear the brunt of all the force this act can convey to about one percent of the Yukon land mass that the Government of Yukon administers under the Yukon Act. We will be playing at least four ball games on the same diamond, at the same time, and only one team, a relatively small one - the private business sector - stands to lose big.
Our understanding is that unless the federal government agrees to be bound under this act, it, and consequently the Yukon territorial government, will not be legally bound by the act. As it is presently drafted, it is not clear whether or not the YTG is in fact bound by Bill No. 20. This is just one more area where we feel added work is required.
We have wanted to express our concerns over the validity of permits and licences once issued: section 18. We wanted to talk about section 19(2), where limits should be set on expenses. We wanted to express our concern that section 20 is far too broad and confusing, particularly section 20(2), section 20(4) and section 20(5), which provide no remedies. Our concern is that section 22 is broad and confusing. Our concern is that section 28, section 29 and section 30 appear to allow the Minister to opt out of consultation on regulations. Our concern is that there is no guarantee of a public hearing under section 31. Our concern is that section 33 is a risk to normal business, with no absolute guarantee of a public hearing. Our concern is that the annual review of section 46 should be an independent audit. Our concern is to see section 61 restricted. Our concern is that section 84 is potentially extremely expensive, time consuming and open-ended. Our concern under section 98 leaves special-waste generation in limbo. We are concerned about the absence of a fair hearing under section 109 and section 110. We are concerned that section 121 does not require a hearing, nor is there an appeal permitted. Our concern under section 158 is that operation in accordance with regulations, statutory authority or permits provides no protection. Our concern is that, considering the broad definitions, section 183 is too broad.
In closing, I wish to point out that it now appears that there will be three provisions for entry to a private dwelling without a warrant: section 139(1), section 154(3) and section 155(1). There was only one in the initial draft.
Given the excessive penalties under the act, businesses contemplating entry into the Yukon will surely reconsider their options. Employees working for firms that must work in environmentally sensitive areas will reconsider their jobs rather than risk personal bankruptcy.
The act is not clear to us as to whether YTG employees hired under the Public Service Commission Act, section 170, would suffer the same penalties under the act as would private sector employees. We feel this needs clarification.
Bill No. 20 provides absolutely no certainty to those trying to live within its law. The absence of clarity in too many sections of Bill No. 20 makes the bill totally untenable.
Please slow down, and do it right.
Hon. Mr. Webster: I would like to thank Mr. Tait for his presentation today. Perhaps I should start backwards - with Mr. Taits conclusion that this bill is totally untenable for the number of reasons cited. It is quite a lengthy list of concerns, covering a number of parts of this act. To my mind, I believe quite a number of the concerns are misconceptions. For example, the concern about search and seizure provisions of the act - I know the witness is concerned about this because he raised it at a public meeting and he stated again today that he believes very firmly that there are four sections in this act that will enable authorities to search and seize a private dwelling. I want to make it very clear that this is, indeed, a misconception. Subject to clause 152, dealing specifically with private dwellings, there will be no searches and seizures of a private dwelling without a warrant, anywhere in this act.
That is just one example, but a very important one because many people have raised it in the past during discussions of the draft act. It is a very important one to point out.
I think the witness holds a number of misconceptions about this act and how it will work, and I am wondering why he has refused on at least four, possibly five, separate occasions, offers from the Department of Renewable Resources to speak to some of his concerns, which would make him more comfortable with the bill? Incidentally, the bill has been reviewed by many organizations, some with legal counsel, and they do not interpret the act the same way as Mr. Tait does. Why is that the case?
Mr. Tait: I think the Minister has just very clearly identified what is wrong with this act. I read it and get one impression; other people read it and get another impression, and it is our feeling that when an act is written, it should be written so that everyone reading it gets the same impression.
We have taken this document to legal people and asked for their opinions, and we find that we get varying opinions. All of that leads to our concern about the lack of clarity within the act.
In the case of search and seizure, I stand by my position that, as we read and understand this act, there are three areas that would allow entry into a household without a warrant.
Hon. Mr. Webster: I would like to ask the witness about something he raised during his introductory remarks. He said that in his opinion there was no effective balance struck between sustainable development and economic development in the territory in Bill No. 20.
Could the Witness point to an example of another piece of environmental legislation in this country that has more references to sustainable development and more balance between the economy and the environment?
Mr. Tait: I have made no effort to familiarize myself with every environmental act in the country, so I am not prepared to answer that question.
Hon. Mr. Webster: Perhaps I could ask Mr. Tait another question. Does not the creation of the Yukon Council on the Economy and the Environment, whose role is to promote sustainable development, and which has representation from business, give some comfort to Mr. Tait in our ability to strike a balance between economic and environmental concerns?
Mr. Tait: Again, our feeling is that a council of that nature may muddy the water more than it clarifies it. Right now, we have no way of knowing how people will be selected to sit on that body. As a result, we feel that is just a way to further fuzzy-up this whole area and make it very difficult for the business community to deal with.
We see too many boards, committees, and so forth, and too many departments of government involved with it. We see confusion, while we wait for the internal activities of government, particularly in the initial stages of implementation of the act, to determine what is going to happen, and what action will be taken. We are concerned that nothing will happen and we will be left in limbo.
Mrs. Firth: I think that it is interesting to seek comfort from the Council on the Economy and Environment, I would have preferred that the council did not cancel and would have been able to make a presentation here this afternoon; however, Mr. Tait cannot address that issue.
To be more specific with respect to economic issues, I would like to ask Mr. Tait what White Pass sees as the impact on the cost of doing business, whether it would be negative or positive, and some reasons why?
Mr. Tait: At the present time, we have absolutely no idea what the impacted cost on business will be and that of course is one of our concerns. We have no idea at this time what the cost of permits will be, what the cost of licensing or filling out required forms for obtaining a licence or permit will be, and we have no idea of how much time, therefore money, it will take. We have no definition of reasonable time in the act so we cannot really understand what that is going to cost us, so we foresee a potential heavy expense.
Mrs. Firth: I would also like to follow up on the issue that Mr. Tait raised with respect to the excessive penalties and the fact that that may have some economic implications with respect to business. Perhaps Mr. Tait could elaborate on that for us.
Mr. Tait: The penalties are so severe in this act that they seem to outweigh the penalties in practically any other piece of law.
The effect that it has on a company like ours where we are dealing with environmentally sensitive issues much of the time, is that we already have employees expressing concern that they can continue to take the risk of having an accident that could be construed as a non-accident, and thereby being placed into personal bankruptcy under this legislation.
The same thing applies to companies; we do not know how massive the penalties could get and we cannot get a clear understanding from reading this act, other than it is sufficiently vague that all sorts of methods could be used to incriminate us. That has the potential of increasing our costs of doing business, because we may have to pay excessive salaries to people to take the risk of encountering a fine of the sort envisioned by the act at some point in their career.
Deputy Chair: Order, please. The witness has two minutes left in which to conclude.
Hon. Mr. Penikett: I have a short question for Mr. Tait. You said that you did not know how the Yukon Council on the Economy and the Environment might work. I assume you are aware that such round tables exist now in almost every jurisdiction in Canada. I assume that you have read section 40, which explains exactly how they will be appointed, including - and this is unique in Canada - the only one that guarantees representation by business interests and other interests and requires that there be a balance of interests.
Are you aware that such a council exists now in the Yukon and includes representatives from the Chamber of Commerce, the Chamber of Mines, the Tourism Industry Association and has a number of business interests on it?
Mr. Tait: I am aware that such a council exists. I am aware that the council has recently released a report that mirrors some of the concerns that we have with the present drafting of the act and I am concerned, I guess, in reading section 40, that the Minister will select the members for that council. I would be more comfortable if they were selected on a less stringent basis.
Hon. Mr. Penikett: It is a matter of constitutional principle everywhere in this country that Cabinets always appoint such boards. There is not a case of anywhere to the contrary, but this government is proposing in this legislation to limit absolutely its power to do that to nominees from the responsible organizations. That does not exist anywhere else in the country.
Deputy Chair: The time is now up. Thank you, Mr. Tait.
Mr. Lang: May we have copies of the witnesss presentation?
Deputy Chair: Our next witness is Mr. Bob Jickling. Can you tell us whom you represent, please?
Mr. Jickling: My name is Bob Jickling and I am representing myself as a concerned citizen.
Deputy Chair: Do you have a prepared statement?
Mr. Jickling: Mr. Chair and Members of the Legislature. I would like to thank you for the opportunity to speak to you today about the proposed Environment Act.
At the outset, I would like to be very clear about my position. I have come here to speak in favour of the proposed act today.
In the few minutes that I have been allotted, I would like to outline a couple of important features of the legislation.
I consider our current debates about the environment in general, and this act in particular, to be of vital interest to our common future. Two key points arise from this slogan, borrowed from the work of Gro Brundtland and her work for the World Commission on the Environment.
The first is derived from the word common. Environmental legislation must strive to mediate competing claims for our common property. We all share rights to clean air, clean water, productive land, and aesthetically pleasing surroundings. Unfortunately, we are often in competition for these rights.
However, fundamental rights must not be compromised in the interests of short-term gains, immediate gratifications or business elites. We must remain focused on our deliberations on the future. We must be reminded that we in fact borrow environmental resources from our grandchildren. We must ensure through legislation that we can look forward to making better decisions about the environment than have been made in the past.
This will require provisions to ensure that debates about the environment, including regulations, can move beyond the immediate self-interests defined by four-year electoral mandates. I think the proposed Environment Act has addressed both these points.
In 1968, a well-known resource manager, called Garrett Harden, published a landmark paper called the Tragedy of the Commons. That was 23 years ago. In it, he described how free access to the commons would have tragic consequences. We are talking here about the land, the air, the water, the sea, and so on. He also described how individuals, who are unmitigated in pursuit of their own best interests, will ultimately bring destruction upon themselves. In the end, a society that believes in freedom of access to the commons will bring ruin to all. We just need to look to the Great Lakes pollution, ozone depletion or global warming to get a sense of what he is talking about.
I am now relieved to see, 23 years later, a piece of legislation that speaks to the wisdom of Hardens paper. The proposed legislation acknowledges governments responsibility to protect the commons. Under this legislation, the environment will become a public trust to be managed in the collective interest of the people for present and future generations.
Fulfilling this obligation is long overdue, and I applaud the government for its initiative in this matter.
I would also like to consider future implications of this proposed legislation. I have been aware of public opposition to this act but, to put these complaints into perspective, it is important to point out that many who support this legislation worry that it may not go far enough in protecting the environment. For example, rights, responsibilities and obligations tend to be defined in human terms, and there are those who say that the proposed legislation does not go far enough in recognizing the rights of non-humans and human obligations to other life forms.
However, when I began reading the act, I realized that it was proposing to establish a process more important than trying to wrestle with these very difficult and contentious issues. Rather than trying to reach closure on such questions, this legislation creates opportunity for ongoing discussion and future considerations. Such discussions will be ensured through a variety of mechanisms. Citizens will be able to take the government of the day to task if it fails in its responsibility to protect the public trust. Other mechanisms will ensure public access to decision making. For instance, there will be rules to ensure that the public is consulted when making regulations.
Such public involvement can only lead, in my mind, to better decision making. In some ways, this legislation reminds me of the educational term curricula, a word derived from the Latin currere meaning to lead out. This legislation would ensure that discussion about the environment is led out into the open. We have many citizens who are knowledgeable, deeply concerned, and they have thought at length about these matters. Involving them in debate will invariably create a forum from which thinking can be, in turn, led forward.
Many of our best people are outside the Legislature. In the interests of good decisions, they must be brought into the debate, and this legislation should provide for this very important process.
We have two choices now: we can go forward into the 21st century with provisions to protect the commons, our public trust, and we can go forward with the mechanisms to ensure public scrutiny of government actions. Alternatively, we can go backwards 23 years in our thinking by ignoring Hardens concerns for the commons.
I say, Get on with the job; please go forward.
Mr. Lang: I have an opening question for the witness. In view of the fact that we have 93 pages of legislation before us, is there anything in the act or any particular sections with which he disagrees or feels could be modified?
Mr. Jickling: I think my concern is about the two fundamental principles I see in this document. One is the provision for ongoing public participation. I think our community is larger than our Legislature and, given the current political climate in this country, the public is increasingly demanding to be heard and they are not prepared, as has been the case in the past, to leave these matters to a rather smaller collection of individuals to debate in Legislatures.
My concern is for establishing that principle and the second principle, being the notion that, in fact, the environment is a commons or a public trust and somebody must take the responsibility for looking after it. It is those two logical prior principles that will allow good decision making to follow.
Mr. Lang: To pursue my question further, I understand the principles the witness spoke of in his opening address; we are here to deal with the legislation clause by clause here at a later date, but I want to ask him the direct question again: do I take it the witness is satisfied with all sections in the act as they are written? Is that correct?
Mr. Jickling: Well, I have not gone over this with a lawyers fine tooth comb, but in my lay reading of it, I am satisfied.
Hon. Mr. Webster: I understand, Mr. Jickling, that you teach environmental studies at Yukon College. In your course materials, do you review the environmental legislation of other jurisdictions?
Mr. Jickling: That particular topic is a fascinating one, but it is not one that we have pursued. Sorry.
Hon. Mr. Webster: I know that in your teaching, and when preparing notes for your classes in environmental studies, you have reviewed other pieces of legislation. There has been quite a bit of concern expressed particularly in the business community, about this act not striking a proper balance between the economy and the environment. How would you say that Bill No. 20 compares with other pieces of legislation in this regard throughout the country?
Mr. Jickling: I think the thing that impresses me about this particular piece of legislation is that it is prepared to take the responsibility for the commons in ways that other legislations in this country have not done. I believe that there are a few states in the United States that have acts that consider the commons as a public trust. I think Minnesota, if I am not mistaken, is one place where that has worked very well. I believe there are a couple of other jurisdictions in the country that are considering this. I think that on this particular point, our efforts are showing some leadership and I think they are on the right track.
Hon. Mr. Webster: Another concern that has been raised is that, in many regards, in comparison with legislation in other Canadian jurisdictions, this act involves the public too much and that this fact takes away some of the powers of the Legislative Assembly itself. What is your response to that?
Mr. Jickling: I think what is really brought into question is the nature and purpose of democracy by your question. How one responds to that really depends on how one conceives of that concept: democracy. If we think of it as being of the people and by the people and for the people, one can hardly criticize it for being undemocratic, if it brings more participants into the forum to take part in the discussion.
Secondly, I think that we also have to stop to consider whether or not democracy is in fact a static concept or an evolving concept. I think that the current national debates in this country would indicate that in fact the population at large is not satisfied with the static conception of democracy. People are no longer satisfied to leave important decision making to party politics, to party discipline, or to a relatively small number of elected representatives who may or may not always speak on behalf of their particular interests and concerns.
On balance, what I see happening with this particular piece of legislation is a move to continue to help define the democratic process and to, in fact, make it more democratic.
Mrs. Firth: I would like to ask Mr. Jickling a question about government actions. I have heard a lot of comment from him about public trust, and since the employees of government are given defenses that other people do not have, how does Mr. Jickling see this act serving to punish the government or even to have them assume responsibility in the case like the recent incident we had regarding the tanker truck, of hazardous waste that was sold to a private individual? Would this act in fact place liability on the government or the employee? Who would assume responsibility for it, according to this piece of legislation?
Mr Jickling: I am not entirely sure what the answer to that question would be. I am not a lawyer. What I do understand is that the act does allow citizens, such as the person who purchased that vehicle, a number of opportunities for recourse. Citizens can take the government itself to task and I believe it could take others to task as well.
Mrs. Firth: In Mr. Jicklings experience with environmental legislation and incidents that have occurred across the country, is it fair to say that governments are some of the worst offenders when it comes to environmental issues and the abuse of the environment?
Mr. Jickling: I would not disagree with that. I hasten to point out that I am not pointing to any particular government, but in principle I think that we have seen examples of that.
Mr. Lang: I would like to follow up on that line of questioning with Mr. Jickling. The legislation is very unclear whether this act binds the Government of the Yukon Territory similar to any private corporation or any citizen; I would say that is very vague.
Would the witness not feel, as an individual, that the legislation should clearly spell out that the sections of this does bind the Government of the Yukon Territory, and does apply to civil service or private individuals within corporations?
Mr. Jickling: Could Mr. Lang clarify what he means by bind?
Mr. Lang: In other words, if you are suing - the liability of individuals. I realize that the witness should be well aware of the fact that the latter end of the bill clearly and concisely points out the amount of the fines and who would be liable for those fines.
What is unclear in this bill is whether or not the same law applies to the Government of the Yukon Territory and my question is: does the witness feel that it should clearly state in the bill that it does apply to the Government of the Yukon Territory?
Mr. Jickling: I cannot see the point in a government, which is essentially itself, suing itself and paying itself its own fine.
Mr. Lang: What about personal liabilities?
Mr. Jickling: I expect that this act could perhaps allow for the pursuing of personal claims, if a particular person was at fault. I am not convinced that is not the case.
We have in this sort of process other means by which we can make the governments accountable as well. We have built into this act a number of review processes, and we also have the opportunity to opt for alternative governments, when we feel that they have not fulfilled their responsibilities.
I think that we are not without some safeguards in this particular piece of legislation.
Mr. Lang: Earlier the witness stated that government, at times, was the worst offender in terms of regard for the environment.
We have had situations here in the Yukon within the last couple of years that one could recite. If laws are applied to the private corporations as well as to municipalities and other organizations, that perhaps are junior to this Legislature, would it not follow that the same rule should apply to people within the Government of the Yukon Territory who are responsible for enforcing laws and implementing them - if they choose to disregard them - because they are the ones who will make the decisions?
Mr. Jickling: By disregarding it, do you mean failing to prosecute someone who is in violation of the law?
So, you are suggesting that if this passes a government may choose not to prosecute somebody. It seems to me that this act does make allowances to take the government to task for failing to do that. There are a number of opportunities to do that. Citizens can petition the government to conduct a public review of regulations. There are provisions for that. If the government does not respond well to those, we have the opportunity to vote them out.
Deputy Chair: The witness has two minutes. Do any other Members wish to speak?
Mr. Nordling: Briefly, Mr. Jickling, in speaking in support of this act, you seem to put a lot of faith in the principle of consultation and the fact that the act generally protects the environment. In reading the words of this act that is tabled here, what gives you comfort that the courts will interpret the legislation in the same spirit and with the same intent that you do?
Specifically, do you see this act as being very clear, with only one interpretation possible in reading through it?
Mr. Jickling: I see this act as a beginning, rather than the end. The important principles established in this act will enable us to move forward in these matters. As I have said, I think it establishes the principles. It creates a window by which we can discuss these matters in a way that will be fruitful in the end.
Earlier in your comment, you alluded to my faith in the public process. I suppose we have two options: we can put our faith in a relatively small number of people, or we can encourage a rather larger number of people to take part in the debate. I would put my faith in the latter prospect. It seems to me that the more the opportunities for accountability and honest presentation of debate in a public forum, the greater the probability that we will have better decisions made in the long run.
Deputy Chair: Thank you, Mr. Jickling.
I would like to welcome the next witness, Mr. Hector MacKenzie.
Could you tell us who you represent, please?
Mr. MacKenzie: Thank you. I am representing myself.
Deputy Chair: Do you have a prepared statement?
Mr. MacKenzie: Yes. I have a brief statement to make.
I appreciate the opportunity to appear here and to speak about this Environment Act. As an individual, I am very pleased to see this act. I am pleased to see it sooner rather than later - I should qualify that statement by saying or too late. I feel that it is a great pity that, worldwide, other jurisdictions are not as far ahead as we are here in terms of identifying our concerns.
I participated in the Yukon 2000 process several years ago. At that stage, I was extremely impressed to see how much public consultation there was and what a large concern there was for the environment. A very strong message was given to the government then: it is of primary importance for the people living and working in the Yukon that the question of the environment be addressed quickly.
I feel that with this proposed act there are many initiatives that show a real commitment by the government. The act also requires a real commitment from all those who live and work in the north.
One of the items I would like to explore is the development of the idea of the public trust and a very clear statement of the share of responsibilities among all parties, the government included.
I feel that the individual rights of the citizens are very clearly stated. The act provides a very good opportunity for positive action and counteracts the feelings of hopelessness that some individuals have when facing a huge and daunting bureaucracy with their concerns.
This was particularly evident to me when I tried to explain this act to my teen-age children. It was quite evident to them that the kind of hypocrisy that they accuse their parents of frequently is well under control in the act. The Minister and the government are under control.
Some of the examples of that are time limits on action by the Minister, auditing mechanisms on the state of environment reporting that is required within the three-year period from the passing of this bill.
I find the bill is very clearly written and understandable. I do not find it ambiguous. Together with specific regulations, I feel it will provide a very definite indication of the requirements for each and every one of us living and working in the Yukon.
I have been running a wilderness guiding business for the last 15 years in the Yukon. It is entirely dependent upon a healthy environment and a healthy wildlife population. This idea of sustainable development - and I would include a sustainable harvest in that broad definition - is very important, not only to my small segment of the tourism business, but to the entire tourism industry in the Yukon. It has been argued by many people that, if wilderness is managed well and properly, it will long outlast the non-renewable resources and provide an eternal economy.
This Environment Act is a vital start in that direction. I welcome it.
In conclusion, I am very much in favour of the proposed bill and would like to applaud the government for proceeding with this very necessary legislation. I look forward to a healthy debate and constructive suggestions when we are having a look at the regulations. I am not sure that we have seen much constructive criticism yet with the more vociferous complaints about this legislation.
Mr. Lang: In view of the fact that the bill was just tabled here a week ago, and we received the French translation less than a week ago, I would ask the witness to tell us whether he has any specific concerns about any sections of the bill before us, because 93 pages are involved.
Mr. MacKenzie: Yes, I do. In reviewing the initial version of this act, I felt that section 74, which applies to wilderness management areas, was perhaps not strong enough and I would have favoured seeing it reflect rather more strongly what I would like to see. I made that recommendation at the public opportunity I had.
Mr. Lang: I take it, then, that the witness is satisfied with the bill other than that section; is that correct?
Mr. MacKenzie: Yes.
Mr. Lang: I have a further question for the witness, concerning the development-assessment process. This is mentioned in the bill but it does not outline how a proponent would apply for a permit and how they would go through the process. This is all left for regulations and nobody knows exactly what the government is thinking about it. Would the witness not agree that it would be in everybodys best interest if the process and policy of how one applies for a permit and how one goes to a public hearing to voice their concern about a permit being issued be included in the legislation itself, as opposed to regulations where it could be changed by Cabinet within a very a short period of time?
Mr. MacKenzie: From my own business experience and interest, it is not entirely applicable but I am afraid I have not given it a great deal of consideration as far other business plans and developments are concerned.
Hon. Mr. Webster: Mr. MacKenzie mentioned that he operates a wilderness adventure business and for that reason he is pleased to see some recognition of the value of wilderness written into this act. However, am I to believe that he does not feel the value of the wilderness is written into this act strongly enough? Is that Mr. MacKenzies position?
Mr. MacKenzie: No. I suggest that there are two answers to that question. Under the circumstances, I feel that the statement in section 73 of the value of the wilderness is adequate. I felt that, in section 74, where it talks about world mismanagement areas, it does not leave me with a clear enough, or strong enough, impression of what a world mismanagement area might be, as I would like to see at this stage. I feel that, when we get into the regulation stage, I will have another opportunity to express my interests and, I hope, to see some regulations that would reflect the concerns of the wilderness guiding industries.
Hon. Mr. Webster: I have one more question. Are you content with the way the wilderness is protected in this piece of legislation and that the wilderness and its value will be considered in any development assessment process that is designed to take a look at the potential effects of a large development on the wilderness?
Mr. MacKenzie: Absolutely.
Mrs. Firth: The report of the Yukon Council on the Economy and the Environment stressed fairness. I believe Mr. MacKenzie is a member of that council. The concept of fairness was to ensure that innocent people were not directly or indirectly hurt. There was discussion about some of the small operators, and that the environmental enforcers had to be carefully trained because of the discretionary powers they have.
Does Mr. MacKenzie feel satisfied that the act addresses that particular issue, as it stands today?
Mr. MacKenzie: I would like to seek clarification that it is a question about the abilities of the enforcement officers.
Mrs. Firth: It is with respect to the comment made that the officers must be instructed to strive for congenial and voluntary compliance in giving some direction to the kind of environmental officers we are going to have and how they are going to act, while taking into account the discretionary powers they have.
This is a concern to small operators. My feeling is that under the act this issue is not addressed adequately. I would like to ask Mr. MacKenzie, as a small wilderness operator, if he feels that it is adequately addressed under the act, and that there is presently enough in the law to take care of the concern that was expressed by the council.
Mr. MacKenzie: That is a question that had not occurred to me when reading the act. I am aware of some public discussions surrounding the subject, but it had not impressed itself on me as being a priority. It had not impressed itself on me as being a deficiency in the act.
Mrs. Firth: The council also talked about liability and responsibility with respect to governments. They made reference to the liability and responsibility being shared. They mentioned that governments carry on activities which, if not carefully managed, can have effects that are deleterious to the environment.
I would like to ask Mr. MacKenzie if he feels that the government officers should assume liability or responsibility, which would be the government assuming responsibility?
Mr. MacKenzie: I find that to be a very difficult question to answer unless we have a specific example in front of us.
Mrs. Firth: Perhaps I could just ask Mr. MacKenzie if he feels that the act is clear enough to deal with examples that may come forward. I guess that is the concern that presents itself here.
Mr. MacKenzie: I find the intent of the act and the direction it suggests very clear. When the regulations are presented, I think that is when the details will become quite evident.
Not being a lawyer and having very little experience of the legal situation, it seems to me that the direction the government is seeking in this act is really quite clear.
Mr. Lang: I would like to address the witness, if I could, because I understand that he is a member of the Yukon Council on the Economy and the Environment. I was just wondering if the council has had the opportunity to go through this bill to make a formal position on this final bill after it was tabled in the House? Have they had a meeting to come to a consensus on it?
Mr. MacKenzie: Yes. The Yukon Council on the Economy and the Environment sponsored many sector workshops that preceded, by a little bit, the public consultation on the Environment Act. It presented its results sometime in April to the government. I was not here when it was done.
Mr. Lang: I was aware of that. I would like to direct a question to the witness regarding Bill No. 20. The final bill appeared in this House a week ago. I would like to know whether the Council on the Economy and the Environment convened to go through this bill we have here to see whether or not it meets the objectives and concerns of all participants in the council.
Mr. MacKenzie: I am not aware about whether the council has done that. I have not been involved in that discussion. I have been out of the country for several weeks.
Mr. Lang: If I could just pursue this further because it is of concern and the Council on the Economy and the Environment has a fair amount of input to the bill. I do not mean to put you on the spot; if I am, please tell me. Is the council going to be reviewing this bill with the idea of making a written presentation to Members about the bill now before the House?
Mr. MacKenzie: I am afraid I am unable to answer that. I have not had contact with the full council since I returned from my travels. We are meeting in the first week in June and will be discussing this act. I am not aware of any discussions of this particular subject.
Deputy Chairman: Thank you Mr. MacKenzie.
I would like to welcome Mr. Bergen. Would you please tell us who you represent.
Mr. Bergen: Thank you Mr. Chairman, my name is Terry Bergen and I represent the Whitehorse Chamber of Commerce.
Deputy Chair: Do you have a statement for the House?
Mr. Bergen: Yes I do.
Mr. Chairman and legislators, I would like to thank you for offering us the opportunity to speak to you.
The Whitehorse Chamber of commerce has been an active voice within Whitehorse and the Yukon Community as a whole for over 32 years. As the voice of the business community, we have lobbied on a number of different issues, sometimes more successfully than others. Some of the success stories associated with lobbying done by the Whitehorse Chamber are the development of the new air terminal in Whitehorse, implementation of the northern benefits taxation policy, refurbishing of the T.C. Richards Building, establishing it as a visitor information facility today.
The Whitehorse Chamber of Commerce continues its community efforts today on behalf of a diverse membership. As the current president, it is my role, with the advice of the elected board of Directors, to represent the views of all of our membership. That membership includes major corporate players in the Yukon business community, as well as individuals, legislators and the very small family-owned or single-person businesses. Our current membership totals 335 businesses. Our monthly newsletter is mailed out to 425 interested parties, including all Members of the Yukon Legislative Assembly and all Yukon Indian bands.
The newsletter and contact with individual members in our office enable the Chamber to keep in touch with the views of our membership and are an integral part of developing the Whitehorse Chamber of Commerce policy positions on issues that are of concern to the business community.
The nature of society today is such that the business community is continually responding to issues. Presentations and projects undertaken during my term as president of the Whitehorse Chamber of Commerce have included: representation on the development of a parallel runway in Vancouver; appearing before the Yukon Legislative Assembly Select Committee on Constitutional Reform; meeting with representatives of the Spicer Commission presenting the views of the business community before CRTC regarding the Unitel application; review with our transportation sector members on the Highways Act, just to name a few.
In short, the Whitehorse Chamber of Commerce is a diverse collection of Whitehorse businesses. As president, I represent the views of all of these members. It is my pleasure to be with you today to present our views on the legislation currently before you - the Yukon Environment Act.
The consultative process and the resultant debate in our communities about this legislation, has polarized individuals and groups. The process has often resulted in the spreading of misinformation and division among groups rather than moving all parties toward a consensus.
Today is perhaps our last opportunity to participate. I would like to offer the following as our constructive proposals for change.
Firstly, we feel that the proposed Environment Act is one-sided. It does not appear to recognize that the Yukon economy itself is a fragile thing and must be considered. The act, as we view it, does not recognize the need for sustainable development nor does it interpret it in a philosophical way, sustainable development the way business would like to see it interpreted.
No one for a moment is suggesting that as Yukoners, we do not want to leave clean beaches and wilderness areas for our children or clean water to drink everywhere in the Yukon.
Rules regarding the environment should not be lax, however, in making our rules we must give recognition to the economy in the Yukon.
In this regard, areas for improvement in the act are those sections that refer to the involvement of business in the economy.
Section 40, which outlines the appointments to the Yukon Council on the Economy and the Environment, should allow for more representation by business. Large corporations, including mining corporations, have very different interests from those of the small business operator - including different environmental concerns. The act allows that an appointment will be made from business and industrial associations. That is one appointment, but it also says that appointments shall represent a balance of interests. In this regard, we would suggest a greater representation by a variety of businesses. Easily identified business sectors would be: mining, agriculture, tourism and the service sector. Having these groups included on the Yukon Council on the Economy and the Environment in the formation of policy would allow for protecting the environment while ensuring business interests are heard and hopefully met.
Section 44 of the act outlines the purposes of the Yukon Conservation Strategy. The Whitehorse Chamber of Commerce recommends that by simply inserting the word economy into section 44(a), the signalled change better reflects the importance of the economy to the Yukon. The changed section would now read: to provide a comprehensive long-term guide for the policies and practices of the Government of the Yukon in relation to the economy and the environment.
The act as written now will be interpreted as an extremely negative document and it will destabilize the private sector in the Yukon. Such minor changes as those noted above, and additional ones that other people are bringing forward, will ameliorate some of the negativity associated with this document.
The fine levels outlined in the legislation are also extremely high. In setting these high levels, all other crimes in the Yukon to which a fine is attached become diminished. One cannot argue that Yukons pristine environment is difficult, if not impossible, to put a price tag on; however, one would caution the government against sending a signal that would, taken at its literal interpretation, fine an individual up to 133 times more for failing to assist an environmental protection officer than the most stringent fine for impaired driving in the Yukon.
The suggestion of the Whitehorse Chamber, in this respect, is that these fine levels be thoroughly examined, prior to the passage of the act.
The message that the environment cannot be regarded lightly certainly must be clear; however, one would caution legislators to examine all other inherent messages which may be contained inadvertently by these onerous fines. Certainly fines can also be changed at a later date, but it would be highly unlikely that these fines would be reduced by subsequent legislatures.
With respect to the offenses under the act, the liability of the individual involved in a corporation is onerous. Section 179 allows for prosecution of individuals involved with the corporation who intended to knowingly direct the carrying out of an offence under the act. Under these circumstances, one would hesitate, if not absolutely refuse, to become involved with a corporation operating in the Yukon strictly because of the liability. Certainly one could demand to review the environmental policies of that corporation to avoid even the potential for prosecution.
The liability of the Government of Yukon is also questioned in some minds as the act is written now. The act, according to some legal draftspeople, requires clarification to ensure it applies to the Government of Yukon. This application includes prosecution. The act allows for the prosecution of individuals, corporations and municipalities. It must also contain some method whereby the Government of Yukon and its political masters, must be required to comply.
Deputy Chair: Can you conclude your comments? Your time is up.
Mr. Bergen: Another final area I would like to address is the development of the regulations respecting the act.
At present, the development of regulations are an area of uncertainty. Regulations are, however, as important as the legislation itself. This is particularly notable in the development assessment process. Regulations should be debated by our paid elected representatives in the House. It should not be left to the bureaucrats and volunteer organizations to formulate them strictly through consultation and, particularly not through a public consultation process such as we have just witnessed. The result of the current public hearing resulted in misinformation and polarization within the community and should be avoided.
In closing, I would like to remind the Members of the Yukon Legislative Assembly that the Whitehorse Chamber of Commerce, as a business group, has never indicated that we do not want an Environment Act. Quite the contrary. Business groups, as a whole, have long lobbied for as much certainty as possible in their dealings with government. In this respect, please ensure that the Environment Act you pass recognizes the importance of the economy to Yukon, that the act is ultimately clear and concise and that the Yukons Environment Act will not be cause for litigators to become wealthy.
Finally, I would respectfully request that the regulations that are ultimately developed to support this act are subject to the fullest public scrutiny by those who are elected to do so.
Hon. Mr. Webster: I thank Mr. Bergen for his comments. I would like to pick up on the point where he left off, being very critical of the public consultation process. He started off by saying that this has polarized many factions of our community. It is unfortunate that the Whitehorse Chamber of Commerce chose not to take part in this public consultation process. This is the first indication we have had of its concerns.
One of those concerns mentioned is the development of regulations. They are saying that they will create some uncertainty. I would argue on the other side of the coin, that the development of regulations by the public, through an open public forum, will give certainty and some guarantees for business to bring forward their concerns about how much protection they want for the environment and what standard would be set. Along with that setting of standards would be some account of what the economic effects would be from introducing such standards.
That clearly takes into consideration the strong role that business plays in our economy, and recognizes the importance of having a strong economy. Without a strong economy, we would not have a healthy environment.
I think that would alleviate the witnesss concern that has been consistently raised about business not having enough input and the bill not putting enough importance on the economy. I would like Mr. Bergen to comment on that, if he thinks the rule-making section, which guarantees public business a say in regulation-making, gives him some comfort about protecting the economy.
Mr. Bergen: The greatest concern is that all the issues are never realized during these public debates. The legislation is so complicated, in terms of its interpretation and how it is going to be finally written, that I assume the regulations will be just as complicated. It is very difficult to express ones concerns, or argue ones points.
In the public consultative process, which I was dealing with, we found that the response to any questions we addressed to the individuals bringing the proposed legislation to us was a 95 percent do not be concerned; you are misinterpreting the act. It is very difficult. Where do you go from there? These are definite concerns that business people have, not just me as an individual. Their concerns are not being met by the consultative process.
We are exchanging information and then reaching a dead-end. We need to formulate a way to analyze the concerns a little deeper than just one or two hours at an evening function.
Hon. Mr. Webster: In response to that last comment about addressing his concerns in one or two hours, the invitation was extended to the Chamber of Commerce, and the Chamber had many opportunities to sit down as long as possible to ensure that the Chambers concerns were addressed in this process. It is unfortunate that the Whitehorse Chamber of Commerce chose not to take part in it.
Mr. Bergen said he represents 335 members in the Whitehorse Chamber of Commerce. We received from 21 of your members the draft one-page letter outlining a few criticisms of the act. I am wondering how wide-spread the support is of the Whitehorse Chamber of Commerces position against the principles of this act.
Mr. Bergen: I am not sure what 21 members replied.
Hon. Mr. Webster: There were 21 members who took the time to take the one page letter that was drafted on their behalf by the executive, I guess, or yourself, that outlined very briefly a few concerns that business had about the draft act.
Mr. Bergen: Which point? I do not understand. Perhaps I was not part of that.
Hon. Mr. Webster: I feel that I am in a very awkward position right now, trying to explain to the President of the Whitehorse Chamber of Commerce what steps the Chamber of Commerce was involved in to register complaints by some of the members. I think that it is a very good indication of how well in tune and how well the Chamber of Commerce participated in this exercise.
Point of order.
Mr. Lang: I really think that the Ministers conduct is inappropriate. If the idea is to attack the witnesses then we can all have fun in here today. The idea is to ask exactly what position they are taking on the legislation, whether it is from the Whitehorse Chamber of Commerce, private individuals or whomever has the opportunity of appearing here.
Hon. Mr. Webster: When the witness states that this public consultation process was inadequate - to rephrase the words - that it polarized the community and the people whom he represents, 335 members, have real serious objections to this act, I would like to ask some questions as to why the witness has those feelings?
Mr. Bergen: Mr. Chairman may I have an opportunity to attempt to answer the question?
Deputy Chair: I find there is no point of order.
Mr. Bergen: May I answer the question? First, in terms of the public process - I am sorry I have to deal with this question, but I will - the Chamber dealt with and attended any public processes and private processes that we were invited to attend. I attended most of them and we made our views known. At no time was any documentation submitted to the government from the Whitehorse Chamber of Commerce unless it represented all of the Chamber. The Whitehorse Chamber did become involved in a coalition to slow down the Environment Act. Perhaps that is what the individual is asking me. There may even have been something go out on the Chamber letterhead while the chamber was involved in that coalition, but the coalition itself did not represent the Whitehorse Chambers points of view.
Mr. Lang: I would like to get on to the act. The witness mentioned the development assessment process. I do not know if the witness is aware of it or not, but it is a concern of all Members whether it does lie in the body of the bill or in regulations. The witness referred to it in his statement on regulations.
Is it the position of the Whitehorse Chamber of Commerce that the development assessment process - how you apply for a permit, how it is formed, how you go through the various regulatory requirements - be included in the body of the regulations?
Mr. Bergen: We prefer that it be in the act itself. At this point, to be constructive, we have not asked for it. We have only asked that these kinds of things actually be interpreted as legislation and be passed at subsequent sittings of the House.
Mr. Lang: Just before going on to another area, the Chamber leaves the definition of major development for regulation to be defined at a later date, as opposed to in the bill itself. Is it the position of the chamber that that type of definition, which is so crucial to the body of the act, should be in legislation as well, when it has been determined, as opposed to in regulation?
Mr. Bergen: That would be preferable. The Chamber is looking for stability in the economy, and wanted to take out as much risk as possible for people wanting to invest money. If it goes in the bill itself, it would be more cast in stone, shall we say, and create a better environment for business in general.
Mr. Lang: An area of substantial concern seems to be the question of the way in which the environment rights are written. There are about four pages in the bill covering that aspect, which allows an individual or individuals to go to court regarding environmental matters. It is very loosely written and I wonder whether the Whitehorse Chamber of Commerce has had enough time to go through this portion of the bill very closely to see what effects it may have?
Deputy Chair: Three minutes.
Mr. Bergen: I have three minutes? We have not had time to go through every point. As you can see, I went over my time limit as it was. We picked through trying to get some changes that we felt were the most important ones.
Mr. Lang: I want a clarification for the record. The witness referred to section 40, about more representation from perhaps small business versus large corporations so that there was a mix. Is he recommending that there be an additional four positions on the council, namely mining, tourism and I believe he referred to agriculture and the service industry? Is that the recommendation?
Mr. Bergen: We would like to see those areas represented if they can be. I believe the requirement is for an aboriginal, a female and somebody from the Yukon Conservation Society and somebody from business. It can be any of those people as long as they are in business, so at least half the people on the council are in business.
Hon. Mr. Penikett: Is it the position of the Chamber of Commerce that half the positions on the Council of the Economy and the Environment, which is proposed in law here to represent a balance of interests, should be representative of business interests?
Mr. Bergen: Our position is that those four sectors are very diverse. One business representative on that council cannot fairly represent tourist operators, the mining community and the agricultural community. Our position is that those four sectors should be represented on the council.
Hon. Mr. Penikett: Would Mr. Bergen not agree that section 3(b) of the act does not talk about a person? It talks about the following interests: business and industrial associations, plural.
Mr. Bergen: As it stands now, there is only one business representative on the council.
Deputy Chair: Thank you, Mr. Bergen.
The Committee will take a 10 minute break.
Deputy Chair: I will call Committee of the Whole back to order.
Mr. John Bailey has joined us. Welcome to the Yukon Legislature, Mr. Bailey.
Mr. Bailey: Thank you, Mr. Chairman. My name is John Bailey and I am here as an individual not representing any collective interest or group. I would like to begin by thanking the Committee for the opportunity to appear today to make comments regarding the proposed Environment Act. I requested a chance to speak before you because, as a Canadian and a Yukoner, I am concerned about the current and future treatment of our environment and how development will proceed in the future.
I also feel that I am able to bring an informed opinion to the Committee. I began working with environmental legislation in the mid-1970s in the Province of Ontario. Since that time I have been involved with the development, drafting, enforcement and administration of a wide range of provincial, territorial and federal environmental legislation. I was the principle technical draftsperson for the Forest Management Act in the Northwest Territories, served on the working group for the drafting of the new Wildlife Conservation Act in the Northwest Territories, and was part of the Northwest Territories Department of Renewable Resources legislation committee responsible for the development of the recent Environment Protection Act amendments in the Northwest Territories along with other legislation. I would also like to make it very clear that I am not partisan to either political party represented in the Yukon Legislative Assembly.
Like others in Canada and around the world, Yukoners have recognized over the past several years that our environment has been seriously degraded in many areas and is threatened in others. Where we in the north once thought we were immune to these problems, we are quickly learning that we are not. Radioactive cesium has been found in caribou. Blue mussels, seals, polar bears and human breast milk have high levels of PCBs in the remote Baffin Island community of Broughton Island. Health advisories have been issued for fish consumption in parts of the Mackenzie River and more recently, in our own Lake Laberge. We can no longer consider environmental degradation a southern problem.
The growing awareness of the environment has prompted governments throughout Canada and the world to review existing legislation, since it has become painfully clear that the environment was not being properly protected by the status quo. The Bruntland Commission Report in 1987 stressed that we had to coordinate development with environmental considerations. We needed to take new and innovative approaches to environmental protection or face the sorry prospect of leaving our children with an even bigger problem than the one we face today.
I believe the proposed Environment Act is such an innovative approach. It gives the Yukon a foundation on which to build a system of environmental protection which can safeguard the land, water and air, without precluding all development, which has traditionally been regarded as unfriendly.
When assessing environmental legislation, I ask myself the following questions: 1. Does it achieve the goal of protecting the resources it deals with? 2. Are the basic prohibitions reasonable? 3. Is it readily enforceable? 4. How accountable is the enacting government to the people? 5. Are there any particularly innovative provisions?
With its basic prohibitions, permit requirements and substantial maximum penalties, I believe the act has strong potential to effectively protect the environment. What is lacking, of course, are the management mandates to completely back up the legislation. The devolution of these mandates will, I hope, occur fairly soon. Until this happens, the act will be limited in its effectiveness.
The prohibitions in the act are reasonable, given the nature of the business of environmental protection. I believe that the process for standards and regulations development outlined in the act will ensure that the prohibitions are reasonable in the minds of the majority of Yukoners.
I was pleasantly surprised to see that the drafters of the bill took the unusual step of binding the government to a public process for the development and amendment of regulations. While this is becoming a fairly common practice these days, I have only seen it implemented by policy and never before by law.
Environmental legislation is, by the nature of the offenses, quite difficult to enforce. It requires highly trained and committed staff with the resources to do their job well. The government must be prepared to meet these needs if they are to have the act enforced effectively.
Commonly, enforcement depends on the assistance of the public, especially in sparsely populated regions like the Yukon. This proposed legislation recognizes and formalizes this assistance from the public, but affords us all protection from illegitimate complaints by making those who formally report incidents responsible for their actions.
Probably the most impressive part of the legislation to me is the high degree of accountability and responsibility placed on the government. Traditionally, most environmental legislation has established a collection of rules for people and industry to follow, allowed for the appointment of some people to enforce the rules and laid out a list of penalties for breaking the rules. While this sort of approach can be effective in some cases, it has also been characterized by a lack of accountability on behalf of government agencies and by an absence of involvement by the public.
Back room deals with environmental groups, developers and other specific interests have become commonplace and all unbeknownst to the vast majority of the public.
In recent years, the public has been demanding more accountability from their governments and have wanted more meaningful involvement with decisions with respect to the environment. People have grown suspicious of governments civil servants and politicians and will no longer be easily satisfied that government agencies are always acting in their best interest.
The proposed Environment Act makes the Minister, and thereby the government, more legally accountable to the people than any other environmental legislation I have ever seen or heard about. Virtually every decision the Minister may make pursuant to the act is either subject to a prior consultation or open to clearly defined appeal provisions. In every case, he or she will be functioning under time constraints that will help achieve timely processes to the benefit of us all.
The act also requires the government to adhere to the act provisions while conducting its own business, not resorting to the common waiver or double standard.
Members of the general public, representatives of industry, environmental groups and the Yukons First Nations all have the opportunity to be actively involved in the administration and enforcement of the act. With this degree of involvement, Yukoners can be more confident that the business of protecting the environment will be conducted in an open fashion with due consideration of all points of view.
Finally, I would like to highlight two other features of the legislation. The first is the recognition of the environment as common property or the public trust. I believe this accurately reflects the sentiments of most Yukoners and will leave us all with some optimism for the future.
Secondly, the strong and progressive commitment to recycling and waste management may well become the standard for other jurisdictions in the country to follow.
The one concern I would like to raise is regarding the devolution of federal responsibilities with various sectors of environmental and land management. As I mentioned earlier, this legislation provides for tremendous opportunity for a comprehensive system of environmental management which could include the one-permit system that I believe everyone wishes to see. At present, the act will not achieve this goal because the process of devolution is slow and the provisions of the legislation that can be applied are only limited in number in the Yukon.
I can tell you from first-hand experience that the process of devolution is a time-consuming one. I feel that the process should be accelerated in order that Yukoners can receive the full benefits of the Environment Act we are now considering.
In closing, I think it is likely clear that I am a strong supporter of the Environment Act, and I recommend that it be passed without delay.
To those with concerns about the various environmental standards and the regulations that establish them, I suggest you redirect your efforts to preparing for the public discussions which will take place to formulate them.
Finally, I would encourage the government, which has shown innovation, progressiveness and commitment in the preparation of this act, to demonstrate those same characteristics to the devolution of federal management responsibilities for land, water and forests. I thank you for the opportunity of appearing here today.
Deputy Chair: Thank you, are there any questions?
Mr. Lang: First of all, I wonder if the witness could identify himself a little bit further, as far as doing business in the Yukon. I would like to know who we are listening to.
Mr. Bailey: I am an environmental consultant, I spent five years with the Northwest Territorial Government. Prior to that I was with the federal government in the province of Ontario.
Mr. Lang: The witness now lives in Whitehorse?
Mr. Bailey: Yes, that is correct, for a little over two years now.
Mr. Lang: Has the witness been involved in the creation of this legislation in any way?
Mr. Bailey: No, I have had no involvement up until this point.
Mr. Lang: I would like to ask the Minister when the witness received the final version of the Environment Act. I presume he has had the time to go through it; is that correct?
Mr. Bailey: I am honoured to be called a Minister. I received it on the day it was tabled. I come in when the session was sitting. I was not able to get a copy right away but I got one later that afternoon and I have been through it several times since then. I have compared it with some other legislation.
Mr. Lang: The witness dealt with it in general principle, compared to other legislation. I wonder if there are any sections in the bill that the witness feels should be modified or changed, as that is what we are dealing with at this stage. Are there are any constructive recommendations about actual sections of the bill or principles in the legislation?.
Mr. Bailey: No. I have been through all the sections. I think it is easy enough to say that I would maybe write things a little differently - a matter of style - but I think that the act as it stands right now, with a few typographical errors and things changed, serves the people of the Yukon quite well.
Hon. Mr. Webster: I would like to thank Mr. Bailey for his presentation. I am confident he has read the act, because there are at least 50 typographical errors in it and I am sure he has found them.
I note with interest that he has been involved in preparing legislation and is familiar with legislation from other parts of the country, and I wonder how this particular piece of legislation, Bill No. 20, compares with other pieces of environmental legislation in the country in achieving a balance between the economy and the environment.
Mr. Bailey: Because the Brundtland Report is fairly recent, the term sustainable development - for which I personally do not care too much but with which we will have to live - has become fairly popular. We are only now starting to see legislation reflect those sorts of principles where we want to bring environmental and economic concerns together. This is unquestionably one of the first pieces of legislation in the country, and likely extending beyond the countrys borders, that reflects that sentiment fairly strongly.
Hon. Mr. Webster: Along the same line of questioning, comparing other pieces of legislation in the country, this Bill No. 20 has a provision for rule making, which will have regulations established in a very public and open process. How does that compare with other pieces of legislation?
Mr. Bailey: If I could hark back to an experience I had with the Forest Management Act, we were under fairly tight time constraints to pass that act because we were involved with the transfer of the forestry mandate from the federal government, and we were unable to prepare regulations with the act. We took forward a very skeletal, enabling piece of legislation, and that is similar to the debate that has occurred around this Environment Act. Some criticism was raised that the government was coming in with a piece of legislation that did not have the detail in it, and some people were concerned. What we did at that time was to establish by policy a public process involving all the interested parties in developing those regulations, those details, those rules, and so on that would be fitted in with the Forest Management Act. That certainly suited the interest that existed in the NWT at the time. They seemed to appreciate that process and they felt they had a commitment from the government to follow through on it, which they did a year later. Regulations were brought in pursuant to that act, reflecting the work of the public consultation process.
By way of comparison, in that case, it was done by policy, and that seemed to serve the varied interests in the territory. In this case, it is actually done by legislation. In that respect, it is quite a bit stronger. It is actually a very unusual provision to have in any legislation that I am familiar with.
Mrs. Firth: I would like to ask Mr. Bailey some questions about the costs. He made a comment with respect to needing highly trained staff and the resources to administer this act. Could Mr. Bailey give us any idea of what he thinks the cost is going to be to the government to administer this act?
Mr. Bailey: That is a very difficult question to answer, as I am not entirely aware of what level of training in this sort of business the current conservation officers have who work for the Department of Renewable Resources. I do know they are well trained in basic enforcement techniques, which are common to all environmental legislation enforcement.
I suspect that there would be a need for some specialized training for all those officers to learn a little bit more about investigation techniques particular to enforcing environmental protection legislation and the collection of evidence. It is done in a very particular manner, when you are looking at pollution issues. I do not imagine all their staff have that sort of training.
As for the costs associated with that would be, I am not sure. I would just be guessing.
Mrs. Firth: When we bring a new piece of legislation forward, a concern of ours is always what impact it is going to have on the government, in dollar figures. Since the witness seems fairly familiar with drafting legislation, and potential costs as a result, could he give us a general answer?
My interpretation would be that the costs could be quite substantial. With the comments the witness has made in respect to particular technical expertise the environmental officers are going to require, could he give us a ranking of how he feels this may impact our government budget?
Mr. Bailey: I will go back a few years to when I used to send people out on these sort of training programs, and try to remember the costs associated with those programs.
The one I am most familiar with was held in Aylmer, Ontario. There is a specific course that is one month in duration to specifically train environmental protection officers, that sort of person. About seven years ago, that one-month course cost $1,250, and that included room and board, and so on. We were budgeting to fly someone from Baffin Island down there and back, and for the course, about $2,500 per staff person.
I do not know how many environmental protection officers there are in the Yukon. I think there would be about 16 or 17. As far as training them - and that is assuming none of them already have that training - you would probably be looking at $3,000 to $4,000 per person. That would be my dated guess.
Mrs. Firth: That takes into account just the training costs. There would be additional costs associated with the implementation of this legislation.
I have another question about devolution. Mr. Bailey made a comment with respect to devolution being very slow, and that it would limit the act. Could Mr. Bailey elaborate on that a bit. How long would he anticipate that we would be looking at devolution? Does he feel that the act could be implemented the way it is, right now, without some of those devolution activities taking place?
Deputy Chair: The witness has two minutes.
Mr. Bailey: The first point I would make is that I think the act could certainly be implemented as it stands right now, in the absence of full devolution of those programs. There is actually quite a bit of sense in having it passed well before you devolve those programs, as we found out. We had to race around and try and draft a forest management act in about four and one-half months. It was not a pleasant experience for me or for the legislative counsel who was involved in it.
As the timing goes, I think the act will certainly benefit us the day it is proclaimed, but it will not fully benefit us, and certainly, one of the things I would like to see and I think everyone in the territory and in the north would like to see, is the notion of the one-permit system, or - strike me down - the one-window approach to dealing with environmental protection agencies and so on. We need to see those programs, lands, waters and forests, to name three, to make sure that we can have that kind of comprehensive system.
Mrs. Firth: Just to finish up, I think is fair to say that we are looking a long way down the road.
Deputy Chair: Thank you, Mr. Bailey. Your time is up.
Mr. Bailey: Thank you.
Deputy Chair: I would like to welcome Mr. Rob McIntyre.
Would you please tell the House who you represent?
Mr. McIntyre: I am here representing the Yukon Chamber of Mines. I have also been mandated by the Klondike Placer Miners Association to speak on their behalf.
I would like to thank you for the opportunity to provide some additional comments on Bill No. 20. First, I would like to thank the environment Minister, the Hon. Mr. Webster, for providing the opportunity and for participating in a series of consultations with the Yukon Chamber of Mines on the draft act.
There were a number of significant improvements made to the draft act based on these meetings. Even though our meetings were frank and productive, you must understand the difficulties in fully comprehending such a complex piece of legislation and providing useful comment under severe time constraints.
I would like to stress that we fully appreciate the need for a healthy environment. Balanced, well thought out legislation is a necessary step in this direction. Our specific concerns address the potential for abuse and unintended consequences of this legislation. Your careful consideration of these points now, could save the government and industry many millions of dollars in court challenges in the future.
I would like to highlight several areas of specific concern that need to be addressed. I should preface this by mentioning that we need not be reminded that Bill No. 20, when enacted, will not apply immediately to mining. It will be some years down the road, in the event of devolution, Before that is a fact, however, take it that I am speaking as it will, in the future, apply to mining.
With respect to clause 8, part 1 on environmental rights, while we understand that the intent of this clause is to encourage environmentally responsible behaviour, its effect is not fully understood. This clause creates a very awkward situation where a lawsuit can be based on some very vague, subjective ideas. There is no defence of due diligence for the defendant. It must be made clear that no responsible individual or corporation is going to expose themselves to absolute liability. The defenses provided for in the legislation clearly put the onus on the defendant and will be an expensive proposition. On the other hand, it will be very easy and inexpensive to initiate a court action. Safeguards against abuse are not effectively addressed in the legislation.
On the protection of employees, clauses 20 and 21, the potential for abuse in this Bill No. 20 must be addressed. The complexity of the act and the profusion of regulations to follow, coupled with definitions that are not always clear, will result in some inevitable confusion about what will and what will not be a contravention of the act.
In many typical workplace situations, this legislation does not provide for conflict resolutions where employers and employees disagree on how to interpret the provisions of the act. The employer is totally subject to the opinion of the employee as to what would constitute a contravention of the act, the regulations, the permit or an order. Broad-based definitions used in this act will make it difficult and expensive for a company to protect itself against abuse of that provision.
In part 9, dealing with the release of contaminants, prohibition, clause 112 states that no person shall release a contaminant in a manner contrary to this act or a permit, order or direction. Under this bill, person includes children, corporations, municipalities, but not the Government of Yukon. The legislation should be made specifically clear as to the governments liability. We understand that this is a point that is not clear and is open to interpretation in various different ways.
In environmental protection order related to spills, clause 136, the clause protects persons from personal liability even if they cause damage or injury while undertaking environmental protection actions. These actions can be instigated as a result of the opinion of the environmental protection officer. This clause should be amended to assure a measure of legal protection.
In part 13, enforcement, clause 154(3), we would submit that it is inappropriate to allow an environmental protection officer access into private dwellings without the necessity of a search warrant on a determination that evidence might be lost or destroyed. This clause, we are told, may not survive a court challenge under section 7 under the Charter of Rights and Freedoms.
In clause 155, the powers of the environmental protection officer are broader than are necessary. It also may not survive a court challenge under section 7 of the Charter of Rights and Freedoms.
Under penalties and offences, part 14, is financial assurance, clause 167. A great deal of uncertainty in project development is contained in this section. It is unlikely that anyone would be able to obtain financing or interest investment in a project if new financial assurance can be required at any time during the life of the project.
All such requirements must be spelled out prior to permitting. This ability to impose additional financial burdens on an operation at any time is unacceptable.
In clause 172, and in view of the complexity and broad scope of this bill, we can anticipate a complex set of regulations, orders and permits to follow. It may not be easy to comply with at times. The very high ceilings of fines provided for in the legislation provide a measuring stick for the courts. Clearly, the signal to the judges is to be harsh.
In closing, I would like to point out that dealing with many of these critical issues under regulations may prove awkward and does not provide for the long-term certainty that is necessary for a comfortable investment climate.
Mr. Lang: I would like to thank the witness for his presentation and reference to sections that should be scrutinized by us. I have a general question about the mining industry as it pertains to the Yukon.
I had a call over the weekend from a person involved in the drilling business, and he is quite concerned about the bill and the fact that they only have two drilling rigs working in the Yukon on exploration at the present time. This is a major concern to him with respect to being able to hire the people he normally does.
Could Mr. McIntyre tell us if he has had any information or feedback he has had from the national mining or financial institutions about this particular piece of legislation?
Mr. McIntyre: We are in regular contact with national mining associations, such as the Mining Association of Canada and the Prospectors and Developers Association of Canada. We in the Yukon have generated a lot of interest nationally. There are more eyes upon us than simply our own here in the Yukon. The environment committee of the Prospectors and Developers Association has a copy of Bill No. 20. I have not yet heard their response, as they have only had it for a week or so.
As well, the financial institutions that have been phoning me are requesting specifics about what is going to happen under this act. They are concerned. The signals are already such that, on top of what we are experiencing in the Yukon, it can only be termed as regulatory shock from the abundance of regulations. This is another potentially negative piece of legislation. I understand that it is not set out to be that, but the potential for negative impact is recognized nationally, and we are being made aware of that, and there are people who are making sure that we are on top of it in the Yukon, as well.
Mr. Lang: Does the witness think we are rushing the legislation a little too fast?
Mr. McIntyre: Yes. The more we look at it, the more we find we would like to spend more time looking at it. Again, we have not been told exactly where the rush is for this spring. We have seen some tremendous changes, and we have been able to effect other changes to date. We think more time would be productive in that regard.
Mr. Lang: The mining industry is presently involved, in conjunction with YTG and other organizations, with respect to the Yukon Mining Advisory Committee, as far as the proposed changes to the Northern Inland Waters Act are concerned. Could the witness tell us if the principles they have agreed to in that forum are incorporated in this piece of legislation?
Mr. McIntyre: Obviously, the Member is well aware of the sensitivities in regard to the YMAC process right now, and that the Minister has not given us his official response. Therefore, I cannot speak to the details, but I appreciate the question in general.
At the outset, I was quite concerned that the original January draft did not appear to embody the kind of spirit of recommendations that were part of the consensus of YMAC in regards to the Northern Inland Waters Act, specifically to define levels and securities. We brought that up in meetings, and we have seen some places where it has been changed since then, for example, where judges are instructed to take into account the degree of environmental risk when they prescribe sentencing.
That is one of the YMAC-type principles. There are others that I see no evidence of in here.
Mr. Lang: I would like to clarify the Yukon Mining Advisory Committee position, although I understand the position it has taken has not been made public. Is there just one principle the witness can think of that is incorporated into this legislation, with respect to the recommendations that have been put forward to the Minister?
Mr. McIntyre: It is both what I can think of and as detailed as I would be prepared to go right now. I would just urge the Assembly, or the government, to consider its membership on that committee and those situations as privy to that report. I was part author of that report. I would urge them to consider that, when looking at areas that are germane to the discussion of Bill No. 20.
Hon. Mr. Penikett: I have a general question for Mr. McIntyre. He has indicated he does not understand the rush for environment legislation. Of course, we are the only jurisdiction in the country that does not have a territorial or provincial legislation.
The witness indicated earlier that he understands that it would not affect the mining industry, potentially for years to come, but he is concerned about that impact down the road. I would like to talk about that scenario down the road, because I have had conversations with senior representatives of mine operators here who have told me, in no uncertain terms, that one of the provisions that they like very much about this legislation is the possibility of there being a one-permit, or single-window, development assessment process down the road, consistent with what is contemplated in the umbrella final agreement on land claims.
Is it the position of the Chamber of Mines that they, too, would prefer to see a single territorial assessment process, down the road, to replace the myriad of federal processes that are now in place?
Mr. McIntyre: Yes, we would. I think we are suffering under the difference of opinion on what the one-window approach is. It is a much-touted, highly-lauded goal, and it is something that we are also striving for. I fear that some people are thinking of it as opposed to windows scattered all over: there are 30 windows, but they are all lined up. It is a very laudable goal, and a very difficult thing, and we very much want to be part of whatever process takes place to ensure that.
Right now, I do not think anyone could provide me with a 100 percent assurance that that will happen under this act, or under the great abundance of legislation that it is about. I cannot see it, but I recognize that we are all going to work toward it.
Hon. Mr. Penikett: Let me ask a supplementary question. I understand the witnesss concern about having triple glazing instead of three windows - which is environmentally recommended I gather. Let me ask a question that is small p political.
As a professional representative and spokesperson for an industry group and very significant group in the Yukon, the most significant in terms of the contribution to the gross territorial product, would you be more or less optimistic about your ability to influence a federal or territorial government down the road, when it came to the writing of regulations about a one-window, or whatever, process here as opposed to successfully imposing your views on a federal government that has a number of pieces of legislation, the Quartz Mining Act, Placer Mining Act, Fisheries Act and others such as the Northern Inland Waters Act that affect the mining industry.
Mr. McIntyre: As the Hon. Member, is aware we have long held the position where we favour the devolution of mineral resource management regime to the territorial government. For that reason we do believe that we have greater success in being part of any decision-making process at the territorial level. That has been vigorously pursued by the Chamber of Mines for the last number of years in every forum where we have had that chance. However, when a piece of legislation comes out that looks like this, I will only say that our fervour for devolution is a little bit more cautious. We have long sought that. If we will be continuing that, I think a lot will remain to be seen as to how the cards fall on Bill No. 20.
Hon. Mr. Webster: I am pleased to have an opportunity here to say to the witness how much I appreciated him and his organization being full participants in the process of the discussion paper, the draft act and the 35-page written brief that was submitted by the deadline. I want to assure him that as a result of discussing some of those concerns with him and his association, there were a number of significant improvements to the bill. Just before we finish today, I want to thank him for that. It gives me a great deal of confidence that he will still be involved with the association in the drafting of regulations that will affect his industry and many other businesses in the territory.
You mentioned a couple of times in your remarks a couple of sections of this act that may violate the Charter of Rights and Freedoms, specifically clause 7. What does clause 7 say?
Mr. McIntyre: It is clause 154, section 7 of the Charter of Rights and Freedoms. I bring this to you today in conjunction with a brief prepared by our legal counsel that I will leave with the House.
In my opening five minutes, I sought to bring out a number of areas brought to light that I would like to see considered in the future. Most of them are mining questions, in general, however I have a brief of legal opinions and I am not prepared to debate the Charter of Rights and Freedoms. I just want to bring it to your attention that there is potential there. Someone in your staff should look into this.
Mr. Lang: I think the Minister should look at clause 153, because it does provide the opportunity of going in without a search warrant, contrary to what he said earlier.
I would like to ask the witness to go further on the question of abandonment and security that is being required by the act. I believe this is being discussed but has not been incorporated anywhere else in the country. I may be corrected on that. I just want to hear what he feels will be the effects on the mining industry. Is this going to be another cost of doing business to the mining community if this is put into effect?
Mr. McIntyre: We are very concerned that the security called for is potentially doubled, tripled or quadrupled by a variety of different federal and territorial statutes. Abandonment is contemplated under the new Yukon Waters Act. It is contemplated in this act. It is going to be a fact of life in other areas. It is another potentially tremendous cost to industry that is not required if we are doubling and tripling security.
Abandonment is a concept that we recognize as needing a lot of work. It is an area that has not been thought of in enough detail. The Mining Association of Canada has a one-year time frame on coming up with a mine abandonment policy that all members will subscribe to. We have agreed in principle to that policy of the Mining Association of Canada. I would submit that the Environment Act is not the place to deal with mine abandonment.
It is a much bigger issue. It deserves treatment all on its own.
Deputy Chair: Order please. The witness has two minutes remaining.
Mr. Lang: I would like to follow up on one other aspect and that is the development assessment process. There has been some debate in the House as to whether or not it should be in the body of the legislation because it could provide the vehicle and describe the steps needed for a permit. Does the witness feel that this should be incorporated into the legislation to provide certainty to those who are going to apply for such permits, or does he believe that it should be in the regulations?
Mr. McIntyre: I would think that the development assessment process provisions are large enough that one would require their insertion into the act itself, rather than later in regulations. I would submit that that would be just about an impossible task. I do not know how we are going to achieve that with what little we know of the development assessment process.
From the mining industrys perspective, they are very, very concerned about that. This will be an all-important process to the mining industry here in the Yukon. The more that can be put in legislation now, the better it will be.
The message that I would like to end on here is that no one is quibbling, particularly, with this kind of legislation. The problem is that the mining industry must be told what the playing rules are, must know what the playing field is, and must be able to put this in the calculations when we consider whether a particular development goes into production or not. You can prove something on the balance of probabilities scientifically that this is a deposit that might be economic, but the environmental regulation part must be clear. It just stands to reason that the more we can put into the act the better it will be.
Deputy Chair: Thank you, Mr. McIntyre.
I would like next to welcome Mr. Carlyle. Will you kindly tell the House who you represent?
Mr. Carlyle: That will become evident in my presentation.
I am pleased to be given the opportunity to speak about this draft act. My comments are intended to be non-partisan and do not represent the views of any group in which I hold membership. They have had no input into my remarks, nor do they necessarily agree with them.
I would also like to say that I have never been a member of the coalition, as was implied in the press. My comments are mine alone, a long-time Yukoner, with children born and raised here.
I want it clearly understood that I do want environmental safeguards for the Yukon, and that I want my children to be able to enjoy a Yukon environment much like that which we enjoy.
First, it is my belief that the draft act, which has now been tabled in this House, should have been distributed for public input. Not permitting sufficient time for Yukoners to comment on the significantly-changed act is contrary to the principles of participatory democracy.
The large number of new definitions in the tabled draft alone are probably worthy of more public consultation. For example, the definition of conservation easement, in section 76 on page 38, is totally new. Some people will view this as being adequately covered by the National Parks Act and the Yukon Parks Act. Some will even see it as a further erosion of Yukoners property rights.
Second, I reject the concept of the super ministry of the environment established by this act - or the framework act, as it is sometimes called. I reject it for the simple reason that, in my view, it will be administratively unworkable and exceedingly expensive. The unknown numbers of bureaucrats and consultants needed to produce the Council on the Economy and the Environments and the Ministers reports, described in sections 25 and 26, and the state of the environment report, described in sections 47 through to 51, and the development of the partnerships discussed in Part 3, are just some of the areas that give every indication of being expensive and difficult to administer.
It seems to me that separate acts for forestry, agriculture, mining, wilderness experiences and other activities should be enacted. These acts should contain strong land use, water management and environmental components. Such acts would most likely meet with quicker approval from the various interest groups and be more easily and more cheaply administered and regulated.
An added advantage to legislation in this form is that qualified and experienced personnel for each use could be hired for their administration and regulation; for example, foresters to regulate forestry activity and agronomists to regulate agriculture. My experience has shown that administration and regulation by unqualified and inexperienced personnel has been a major source of anger and frustration within groups. Remembering this fact is extremely important because of the extensive discretionary powers given over to the Minister and environmental protection officers in such sections as 114(7) on page 55, which states: The Minister may require an applicant under subsection (6) to provide any further information, research or study the Minister deems necessary to assess the application and also in section 121 on page 58, which states in part: ...an environmental protection officer may, where he or she considers it reasonable and necessary, to lessen the risk of a spill of the substance, order that person, at his, her or its expense... and the list goes on.
If it is accepted that suitable qualifications are a prerequisite for appointment as an environmental protection officer, section 63(2) making the Minister an environmental protection officer seems incongruous since he or she is not likely to possess suitable qualifications. The establishment of procedures and guidelines governing the exercise of discretionary powers discussed in section 150 must be accomplished as soon as possible.
Thirdly, I welcome the concept of public consultation on the development of regulations expressed in section 30(1) because, again, my experience has been that the development of regulations by officials without consultation with interest groups has been another source of anger and frustration.
I do, however, see a couple of problems.
Most parts of the act contain sections such as section 140 on page 65 allowing the Commissioner in Executive Council to make regulations they consider necessary, and apparently without public consultation.
The commitment to a minimum 60-day period for consultation on regulations given in section 30(2) on page 18 may prove to be inadequate if too many regulations are to be considered at the same time or if regulations are to be considered during the summer when many Yukoners are vacationing or too busy at their jobs to comment.
Last Thursday, I made an appearance before a public hearing called by the Yukon Territorial Water Board in an attempt to make the federal Department of Fisheries complete its review of 14 water use applications, so they could be processed. It seems that the delay this time was caused by a vacancy in the position of the person charged with their review.
I mention this for two reasons. I do not anticipate any better performance from territorial employees than their federal counterparts, especially with all the administrative, regulatory and appeal processes outlined in this legislation.
Secondly, the hearing also demonstrates the importance of quasi-judicial boards. It would seem to make sense that some of the powers presently conferred on the Minister and the Cabinet be granted to a quasi-judicial board. The use of a quasi-judicial board would remove a potential perception of bias, since the Minister and Cabinet are charged with all of administering, permitting and regulating those permits under this act.
I continue to believe that this piece of legislation has just as much to do with the devolution of responsibilities from the federal government as it does with the environment. Yukoners should not turn off their brains and assume it has to be good, just because it has the word environment in its title. I recommend that Yukoners get a copy of the act and study it for themselves.
Some of the questions that Yukoners may want answers to are:
How will this act, and developing federal legislation, such as the Yukon Waters Act, apply and interact?
Do I know enough about the land claims settlement, with its water resources management process, development assessment process and surface rights act sections, to agree that it, and a self-government agreement, prevail over this act, as stated in clause 3(2)?
How is this act going to affect government spending?
Finally, how will this act affect the competitive position of Yukon businesses?
Mr. Lang: I have a number of questions for Mr. Carlyle. I keep thinking that Mr. Webster and I are jousting, but we are not this time around. I would like to ask a question of the witness with respect to an issue that has been raised - I would like to hear peoples view points on this. It has to do with the development assessment process that they refer to in the act, but it does not clearly outline the steps of how one goes about getting a permit and the process of how the whole regulatory process is supposed to work. That is left for regulation.
The first question to the witness is: does he feel in his knowledge of environmental law and his exposure to it, that the development assessment processes should be incorporated in the body of the legislation, as opposed to regulation?
Mr. Carlyle: Basically, the tenant that I use is anything that can be in the legislation should be. Regulations are a boon that most of us have to carry, and particularly for me as a small business person, anything that is regulated is difficult for me to complete and deal with, so I would agree that it should be in legislation.
Mr. Lang: I would like to refer to another area that was not touched on by Mr. Carlyle, but it was touched on by the Chamber of Mines. I know that Mr. Carlyle is a prospector and geologist. I would like to know what his observations are about the sections regarding financial assurance to the Minister, with respect to things such as abandonment, security and this type of thing for those primarily in the mining industry who would be affected by such a section. From his knowledge of the business that he is involved in, does he see that as an adverse effect upon further investment in the territory if it comes into effect?
Mr. Carlyle: I would think that it would be an added thing that businesses of all sorts would have to consider in their deliberations as to whether or not a mining ore body for example is an economic entity or not. Speaking for myself, it does not apply to me, because anything that I would be involved in is much too small. Having said that, I would like to touch on one other thing that is not really well defined in this act and that is the certain levels of activity that is recognized by a lot of legislation, particularly things like the territorial Lands Act.
In the Lands Act they have a group of activities, such as prospecting, claim staking, geochemical and geophysical work, that is exempt. Then it goes up to a more stringent environmental requirement for things like trenching, road building and that kind of thing, and then the higher level of actual production. Exemption is mentioned vaguely in a few places in this act but it is not defined in the detail that I, for example, would like to see.
Hon. Mr. Webster: The reason it is not defined is because it will be left to the development regulations. Considering the development assessment process, there are two levels of activities, one of which will be exempt from review under that process. Another level of activity, which includes major developments, would require a full review.
I would like to ask Mr. Carlyle if he is aware that the development assessment process is a separate piece of legislation created through the land claims agreement?
Mr. Carlyle: Yes, I am very much aware of that. I am very much aware that that is a piece of legislation under the UFA and that is why I mentioned it in my brief. I have also reviewed that and I find that it is smacks very much of Bill C-78.
Hon. Mr. Webster: Is the Member aware that the development assessment process will be equivelant to Bill C-78, although the only distinction will be that it will be created in Yukon by Yukoners to suit Yukon conditions?
Mr. Carlyle: Anytime that that happens, I am all for it. I am very displeased with much of the federal legislation. Much of that legislation was drafted in the mid-1970s and was very bad work. I trust we have not created another piece of bad work with this.
Hon. Mr. Webster: I am very pleased that the witness recognizes that, and I want to assure him that the processes, time frames and permits et cetera that have been established under this legislation will involve Yukoners in a very public process to draft the regulations. I am pleased that the witness has pointed out that section 30, the rule-making section, is a real feature in this act for that reason.
On another matter, I would like to ask the witness to clarify some of the remarks he made at the beginning of his presentation concerning conservation easements.
How does he see the creation of conservation easements amounting to an erosion of private property rights?
Mr. Carlyle: I would like to refer to my comments in the part of the act where the French translation should have been.
On page 38, it says, conservation easement means an interest in real property which imposes restrictions or positive obligations for (a) retaining or protecting natural, scenic, or open-space value;.
Once again, it is vaguely written. It seems to me that this would indicate that a person who holds real property can have that taken away from him or her for these various purposes. It would also suggest to me that, particularly in subsection (c), large tracts of Yukon land can be removed from use for economic purposes. I would think that these issues have already been dealt with in some detail in the Yukon Parks Act. One advantage of the Yukon Parks Act is that there are provisions in it that allow for changes, provided that enough information is given to allow for the change to occur. This act does not contain that, at least as far as I am aware.
Hon. Mr. Webster: I just want to point out that we are dealing with private land here, and there is no way that a conservation easement would be established without the owner agreeing to the conditions set out in that easement, which would be registered in the Land Titles Office.
Mr. Carlyle: That is not stated here, though. Are we supposed to trust you, once again?
Hon. Mr. Webster: It is in there.
Mr. Carlyle: I am sorry, I do not.
Mr. Lang: Further to that - and perhaps the witness would like to comment - concerning the conservation easement or whatever the Minister intends to do with this: if it was proposed and even if a private landholder were to turn it down, the end objective of the government would be to have it implemented. Consequently, I would put it to the witness that it could well have a detrimental effect on private property, knowing that the governments long-term intentions may well be to implement it even if initially it was turned down.
Would the witness agree with me on that?
Mr. Carlyle: I do indeed, yes.
Hon. Mr. Webster: I would suggest that we review that clause again, as regards conservation easements. It must be with the agreement of the private property holders.
Mr. Carlyle: This is just one of the clauses where there is confusion.
Mr. Lang: Is the witness prepared to comment at all on the environment rights section of the bill, in respect of the litigation that could occur and the way that particular section of the bill is written? Has the witness any observations to make?
Mr. Carlyle: Quite honestly, I do not think I can add anything more to what has already been said. I think the position on that was quite clearly stated by Mr. Tait and Mr. McIntyre, and I would not have anything more to add.
Deputy Chair: Thank you, Mr. Carlyle, and welcome to our last witness, Mr. Branigan.
Mayor. Branigan: Thank you, Mr. Chairman and Members. I thank you for the opportunity to appear before this group on something that I think is going to have an incredible impact on everyone and, certainly, on the City of Whitehorse; hence, we are taking the time to come and have this communication.
First of all, I would like to say that the process in the beginning, I think, was good. We appreciate the city being asked for input, which we gave you. We appreciate the changes that came as a result of that input.
Where we have problems right now is that we are moving along too quickly. We were given one week to get further input in. It is very difficult to digest something as thick as an act and intelligently comment on it in one weeks time. We have felt all along where is the fire? This is something that is going to impact on Yukoners for a long period of time. We do not feel it is right to press ahead this quickly, not giving Yukoners a chance to digest this and have a fair input.
There are areas of the act we take offense to and we feel should be changed. The first area is that we are in a recession right now. Everyone who comes here says we are in a recession. I do not think there is any doubt; I think we could call it a depression. I do not think we are at the bottom of the barrel yet.
Right at this time, when we have had our funding cut back by $750,000, we are going to put an act in place, that, by our authority, says it is going to increase our costs by 25 percent and your costs by 25 percent. It is going to take a lot longer to get materials through. The city, in the last 10 years, has had projects on time and out to tender early. We get some good bids on our projects and we have been able to complete our projects within the cost area. If there are development agreements and another layer of legislation that has to be gone through, we may lose the window of opportunity that has allowed us some degree of efficiency.
First of all, we are getting hammered with extra costs that we do not have funds to back. We are putting more regulations in place when we are already layered with regulation that we have to plow through and hire people to plow through. That is an extra burden. However, the area that I find most distressing is that this act affects one percent of the land in the Yukon. That one percent is all within the municipal boundaries.
This, our senior government, on the one hand has created a Municipal Act, under which we have been told to do things. The regulations have been laid down and we must follow them and we try to learn those things and work by that. Suddenly, a new act is coming into place with new regulations that are going to supersede what we are already doing. It is duplication, but what is worse is that the power is being taken from the elected people, and it is being put into the hands of the regulators.
I suppose the question one might have to ask is: why have municipalities? What is the sense? Why do we want to sit around the table, burning the midnight oil trying to do the best that we can for taxpayers dollars when the Yukon government is taking the authority away - that is what this act does, it takes the authority from the elected people and it puts it in the hands of the regulators, and I think that is wrong. I think that is undemocratic and we all have to ask ourselves the question, why bother? This is offensive to many of the outlying areas as well as to Whitehorse.
It is difficult to get people to run. This act puts in place the potential where you can turn the person who is running into a criminal. If something happens in their municipality, whether they are aware of it or not, they are liable to be convicted under this act. I know a lot of people who sit on councils. It takes a long time to get up to speed with all the laws and regulations. How are we going to get people to run at the municipal level? Right off the bat, they usually get paid zip to start with, and they know they have legal exposure. The act says that. If something happens in a municipality that is contrary to the act, every member of that council is wide open to charges. There is nothing there to protect them.
It is the same with the public. Two people can crank up on anyone with this act, if there is something in the air, land or water, or social behavior. There is a whole gambit of things. Two people, with reasonable doubt, can crank up, and that person who is under siege will pay their own bills and, if they happen to be successful and win, the answer will be, I am sorry. Where is the $40,000 or $50,000? Tell me about that, because if anyone can write a book about that chapter, it is me. The cost of defending yourself, even if you prove to be in the right, is your cost.
As you know, we argued this long and hard with the council. We said that for people or companies who get charged, and are proven innocent, there should be a comeback. It is not good enough to say, I am sorry, and leave that person dangling.
I know you have had a lot of specifics. I am sure you have had a lot of input and gone through the act. I am dealing with the broader issues. I would like to repeat those.
Firstly, there is time. There is no hurry, no fire. We are in a recession. Why ram something down our throats we have not had time to digest, are not ready for and cannot afford. That is the first point: timing. There is no hurry.
The second point is that there is an erosion of the elected representatives responsibility in this act. I think that has to be taken out. Otherwise, why have municipalities. If you are going to give people that responsibility, you cannot line them up in front of the firing squad and say, if they make a mistake, they are liable.
Who wants to get involved in that? How are you going to get people to run? All the way down the line, if one take ones time there are all sorts of areas in this act that can be fine-tuned so that we can come up with a bill that everybody will find acceptable and one that fits the time and the place.
My final point is that everybody is environmentally tuned-in right now. The grades 7 and 8 science fair kids are tuned-in. We have put a committee in place for the environment - our 10-year focus. Everybody is working for the environment. Why do we have to put expensive legislation in place, at a time when we cannot afford it, to make people do what they are already doing?
Those are my points, thank you.
Hon. Mr. Webster: I want to thank Mayor Branigan for his presentation. He listed a number of reasons why we should be delaying, in his words, the implementation of this act. His first reason is that we are in a recession so there should be no hurry to put this act into place. He mentioned that this act would increase costs to the City of Whitehorse by 25 percent and I would like to know where he got that figure.
Mayor. Branigan: We got that figure from our consultant, Mr. Yarowsky, who is more knowledgeable than most of us are and who went over the legislation to prepare a critique when we hired him to do so. That was the figure he gave us.
Hon. Mr. Webster: That is the first time I have heard that it has cost cities across this country an extra 25 percent to do business as a result of an environment act, which of course every jurisdiction in the country has.
I am interested in his last comment that everyone is tuned-in to the environment, which also relates to a couple of other points he made about there being more regulations in place and some duplications. Just recently, the City of Whitehorse, I understand, put in place a bylaw dealing with air quality, to protect it, particularly in the summertime, from the woodsmoke problem here. In order to put that bylaw into place and to enforce it, did it increase costs to the city by 25 percent? Does the Mayor think the introduction of that bylaw with those regulations was necessary?
Mayor. Branigan: In answer to that, yes, it has been very costly. We have to send our bylaw people out; they have to be tested on a regular basis. We have had to hire extra staff, and it has been inflationary. It is something the public put the pressure on for us to do, but it has been costly, believe me it has.
Hon. Mr. Webster: Is it worth it?
Mayor. Branigan: I suppose if the money is available and if the budget is balancing, the balance on those things is very much equated on where the state of the economy is. My point is that everybody is doing their darnedest, including the city, to do the best we can for the environment. To go a little further, I would suggest that to do something positive for the environment with the monies that are being spent on this, rather than putting more regulation in place, might be a very positive thing to do.
Hon. Mr. Webster: The Mayor mentioned that this act only affects one percent of the Yukon. I want to remind the mayor that this act affects almost all the people in the Yukon. There are 20,000 people living in this particular municipality and they want some protection. They want to see clean air and that is why they called upon Mr. Branigan to introduce that bylaw. Yes, it does cost money.
The City of Whitehorse also wants us to attack the sewage treatment problem. There are obviously negative effects coming from that.
There are many areas where people of the Yukon, who live in that one percent of the territory where this act will have some effect, are calling for various measures to protect the environment. I would like the opinion of the Mayor on this.
Mayor. Branigan: Right now we are under federal regulations. As you know, this impacts on our rivers and on our solid waste areas. We have territorial regulations. Most of what we are doing right now is being regulated. In many areas, we are just putting duplicate regulations in place. In many areas there is federal regulation that supersedes this act.
Mr. Lang: I have to agree that there is federal legislation in place that covers this for now, until we put our own in.
I have a question for the Mayor. In view of the fact that this was just tabled - I believe the Mayor has had a copy of this act for less than one week - could the mayor tell us whether or not Mr. Yarowsky has had a chance to do his further review of it on behalf of the Association of Yukon Communities?
Mayor. Branigan: He has done a review of it for the city. I do not know about AYC.
Mr. Lang: My understanding is that the Association of Yukon Communities was not getting a report done on their behalf.
With respect to the development assessment process and the fact that it is not included in the bill itself and has been left to regulations, does the Mayor of Whitehorse feel that if we pass the Environment Act that the process should be clearly delineated in the legislation as opposed to regulation?
Mayor. Branigan: Any hidden surprises that we have to deal with when we have to balance our budget are always difficult to deal with. We like to have all the cards on the table so that we know what we are dealing with right from the beginning.
The more facts that we have the better. If the teeth of the act are in regulation, then we would like to see the regulations.
We would like to have input into the regulations and that is one of the dangers. Regulations are under Cabinet control and I understand that you are going to the public for feedback, but it is not mandatory that you do. I guess that we are interested in the process of regulation and what type of input will be allowed.
Point of order.
Hon. Mr. McDonald: I would request the unanimous consent of all Members present to extend sitting hours for another eight minutes to allow the City of Whitehorse to finish its presentation.
All Hon. Member: Agreed
Deputy Clerk: Unanimous consent has been granted
Hon. Mr. Webster: Mr. Branigan mentioned that this act will take authority away from elected officials and put it in the hands of a bureaucrat. I would like to know what clause and area specifically that he feels sets this out.
Mayor Branigan: The area of solid waste is obviously in the baliwick of municipalities and the demand for a three-year plan on waste and the projected timing is one of the areas where we are concerned.
Hon. Mr. Webster: I just do not understand how it would take authority away from elected officials and put in the hands of the bureaucrats, especially when the drafting of regulations to govern activities - for example, in waste management - will be done through the process of public consultation, involving various agencies that are already involved, such as yourself or the government of Yukon.
Mayor Branigan: I suppose it is the layering that goes on. Right now, we are elected by the people and we have professional staff to back us up. That is what we use. If we want outside consultants or expertise, we hire them. This is just another layer on that process, and a layer that has authority over us. That is where you take it out of the hands of the elected people. If we do things that the public does not like, they can kick us out of office or they can be pounding on the podium in City Hall every Monday night.
If it is done by bureaucracy, where is the input; where is the feedback?
That is why I say you are usurping or by-passing the elective process. I do not think that is right.
Hon. Mr. Webster: I have just one more question to clarify matters. It is a clear requirement here on the part of the Government of the Yukon in drafting the regulations to consult with the public. I do not see that by making it mandatory to go to the public that is over stepping the authority of the elected officials.
Mayor Branigan: You make it necessary for us to go to the senior body for planning and management of what has normally been the citys jurisdiction. That is an erosion of our authority.
Mr. Lang: I would like to ask the Mayor if, in view of the fact that the government has obviously interceded in the area of municipal responsibility - i.e., his example of the plan that now will not be required, which is going to cost thousands of dollars to develop; many of these things do - is it the position of the City of Whitehorse that the Government of the Yukon Territory should pay for the costs that would be incurred because of the implementation of such an act?
Mayor Branigan: As you know, we are saddled with the job of balancing our budget. We do not have any choice. You are all the taxpayers who are part of it, so we do not make money. Anything that is going to add to our costs is either going to raise your taxes or the territorial government is going to have to help us pick up the tab.
Hon. Mr. Webster: I would like to ask the Mayor if he thinks the waste management plan that the City of Whitehorse has in place at this time is adequate?
Mayor Branigan: I think the process that we have been going through is adequate; it is an ongoing process. We have a rapidly expanding city and standards are changing and we have to be pretty speedy to meet the new standards that keep coming down, because the ground rules keep changing. I would say we are probably in better shape than most municipalities. There are some messes that are there that were put in place long before Whitehorse became a city that will probably take a little input from everybody to clear up.
Hon. Mr. Webster: If, in the opinion of the Mayor, the present waste management plan for the City of Whitehorse is adequate, what would make him think that there would be a requirement to change it under this, if it is working now and is adequate?
Mayor Branigan: An act does not second guess what people are doing. It gives people the authority to do it. The thing we are objecting to is why does the territorial government want the authority to do what the municipal governments have already been given the responsibility for, which we have been doing reasonably well. Why would you want to change it?
Hon. Mr. Webster: To answer the witness question, I may not want to change it, if it is working to the satisfaction of all concerned parties. In the development of a waste management plan for an area, more groups than the City of Whitehorse could possibly be involved. Perhaps the two First Nations and some private contractors operating the waste management facility should be involved. There will also be the Government of the Yukon.
Therefore, there is an entire section devoted to the Government of the Yukon forming partnerships with private business and municipalities to accomplish those very things, to avoid duplication, to get the best possible system for the best possible price.
Mr. Lang: That was a statement by the Minister.
The question of liability has been raised by quite a number of witnesses, by both corporate representatives who have attended here, as well as the witness, on behalf of municipal politicians. Does Mr. Branigan believe the section where that liability is incurred should be removed from the legislation?
Mayor Branigan: I do.
Hon. Mr. Webster: Is it the viewpoint of the Mayor that, if an employer willfully makes an infraction under this act, they should not be liable for the consequences?
Mayor Branigan: It is an interesting scenario. We are looking at fear and how it is used to regulate, and where common sense and fair play come in. The whole act presupposes that society is basically bad, evil and crooked and has to be punished.
I am saying that most elected representatives do not come to work for the public with that focus. If they make a mistake, it is probably an innocent mistake. My point is, why should they be liable? Why should they be put up there, when they probably already have more than they can handle?
Deputy Chair: The witness has two minutes.
Hon. Mr. Webster: It clearly states that if the action is being done with due diligence, without knowledge of actually breaking the law, then the employee has some protection from being prosecuted. That is clearly stated in the act.
Mayor Branigan: I guess I am here to say what the citys comfort level is. I would like to share with you that we are not comfortable with that. I do not think that people out there considering running for office are going to be comfortable with the thought that they are legally liable for what happens while they are in office. They make the best decisions they can. Many of them do not have the finances. That might be a consideration in deciding whether or not to run. Can they afford to have a big court case, if something goes awry?
Mr. Lang: In his opening remarks, the Mayor referred to what is called the environmental rights protection, and his concern about that section of the bill. Does the Mayor believe that this section should be tightened up, so that it is very clear when someone can take litigation, or legal action, when a permit is in violation, or that type of thing?
Mayor Branigan: The point was, and that is why we are asking for more time, there is whole bunch under the area of definition and clarity that I think needs tightening up and needs dialogue between the government and municipalities and the players involved. We need to discuss it where there is no pressure and where we can take three, four or six months and try to clarify these. This act is going to impact upon us tremendously and it seems so appropriate to take more time, because right now we are in a recession and we all know that it is going to be inflationary so we should take a little more time so that it fits in with the economic flow of things.
Deputy Chair: Thank you, Mr. Branigan. Your time is now up.
Hon. Mr. Webster: I move that you report progress on Bill No. 20.
Motion agreed to
Hon. Mr. McDonald: I move that the Speaker do now resume the Chair.
Motion agreed to
Speaker resumes the Chair
Speaker: I will now call the House to order.
May the House have a report from the Chair of the Committee of the Whole?
Mr. Joe: The Committee of the Whole passed a motion regarding witnesses to appear before the House.
As well, the Committee considered Bill No. 20, entitled The Environment Act and directed me to report progress on same.
Speaker: You have heard the report of the Chair of Committee of the Whole. Are you agreed?
Some Hon. Member: Agreed.
Speaker: I declare the report carried.
Hon. Mr. McDonald: I move that the House do now adjourn.
Speaker: It has been moved by the Hon. Government House Leader that the House do now adjourn.
Motion agreed to
Speaker: This House now stands adjourned until 1:30 p.m. tomorrow.
The House adjourned at 5:40 p.m.
The following Sessional Papers were tabled May 21, 1991:
Standing Committee on Public Accounts 1991 Report (Twelfth Report) (Hayden)
Select Committee on Constitutional Development Report (Hayden)