Key Issues in DAP
A highlight of concerns of the
Canadian Parks and Wilderness Society (Yukon)
and Yukon Conservation Society
January 1999

The following information highlights some of the key concerns the Canadian Parks and Wilderness Society (Yukon) and Yukon Conservation Society have with the draft Yukon Development Assessment Act. While we support the introduction of "made-in-the-Yukon" assessment legislation, we believe there must be a number of changes to the proposed legislation to ensure we end up with an effective and efficient law.

This proposed act is based on Chapter 12 of the Umbrella Final Agreement (UFA) and is designed to provide the Yukon with new environmental assessment laws. The concerns outlined here by CPAWS and YCS are based on:

• Our own perspectives on and experience with current environmental assessment laws and practices.
• A detailed legal analysis of the draft Yukon Development Assessment Act, the version that was put out for public consultation (October 1998). This 79 page legal review was prepared for our organizations by Rod Northey, of Birchall Northey. Mr. Northey has extensive experience in environmental assessment law. Copies of the review are available from the YCS office (see contact information at the end).

The proposed legislation is very complex and detailed. As we discuss our concerns and talk to others about their understanding of DAP, we continue to learn more. Some of the recommendations highlighted below may be amended as we spend more time reviewing the legislation and considering further options for improving it.

DAP is short for the Development Assessment Process. It is a process that will be used to review proposals for enterprises and activities - and possibly some plans, programs and policies - to determine what effects they will have on the environment and Yukon people. In part, this will be achieved by gathering information from technical experts, local and First Nation experts and the general public on the proposal.

The process is then designed to come up with recommendations for preventing negative, or "adverse", environmental, socio-economic and cultural effects. Ideally, it should also promote positive effects by recommending adoption of the best way of meeting the need of a project. For example, if there is a proposal to build a new landfill because the old one was filling up from too much garbage, the review could result in a recommendation to start an aggressive recycling and waste management program to reduce garbage instead of building a whole new landfill. This has been the result of such an assessment in Ontario.

The final recommendations from the DAP review bodies (the "Designated Offices" or the "Yukon Development Assessment Board") will be sent to the governments responsible for giving approvals which will allow the project to proceed (e.g. through a water or land use permit). This could be the federal, Yukon and/or First Nation governments. These governments should then be responsible for ensuring the terms and conditions that fall under their area of jurisdiction are put into place. For example, some conditions may be written into permits to help ensure that the assessment recommendations are implemented by the person, company or government responsible for the project.

Development assessment, or environmental assessment, is a way of including environmental, socio-economic, cultural considerations in decision-making along with the more conventional technical, financial and political considerations. Ideally, it is applied early on in the planning stages of a project to identify possible negative effects a project could have on the environment and communities and, at minimum, to come up with ways ("mitigation measures") of reducing those impacts to make sure there are no significant adverse effects.

However, effective assessment should also look at the bigger picture and try to find the best, most sustainable approach to a project's development. It shouldn't just try to minimize impacts, it should result in decisions that are best for the environment and the community. For example, if there is a proposal to build a new road to a community subdivision, the assessment should consider other ways of moving people on existing roads, such as improving public transit, promoting car pooling and/or building bike lanes. The final recommendations should help reduce harmful air emissions and demands on our limited natural resources.

The assessment process is different than a regulatory process such as those governing water licensing, timber cutting permits, fisheries habitat authorizations. An assessment should be done first and include a lot more consideration and weighing of what is important to the community, of how we can best meet our environmental responsibilities and ensure a healthy environment for future generations. This is why it is important that the public is involved in the assessment process, so they can voice their concerns and ideas. Regulatory processes tend to be more technical in nature, focusing on achieving the minimum standards for environmental protection through engineering and science based decisions. The regulatory decisions should be consistent with the earlier, more general, assessment decisions.

To ensure effective environmental assessment (EA), it is important to try and meet the following principles:

• It should be an open, accountable and independent process
• It should be done as soon as possible and before any decisions are made
• It should apply to every undertaking (e.g. a new mill proposal should look at the construction of the mill, as well as the related logging operations and building of new roads as one package, not as separate activities. It should also apply to anything that has the potential to have significant effects).
• Environment should be defined broadly in an EA (in addition to biological components it should include socio-economic and cultural considerations).
• The public should be involved in EA in a significant and effective way
• It should result in a binding decision
• It should be efficient and integrated with other relevant processes

There is a federal environmental assessment law, the Canadian Environmental Assessment Act (CEAA), currently in place in the Yukon. It applies to many activities that require a federal permit, money or land. Mining projects, road construction, logging operations, land transfers for agricultural purposes and many other activities are now subject to CEAA.

So environmental assessment is not new for the Yukon. If people are unaware of current laws it may be because they haven't had much of a need to get involved. However, if someone has tried to voice their concerns about a development activity in their area, they may have been involved in an environmental assessment process.

CEAA is a federal law that applies across the country. The Yukon land claims agreement, the Umbrella Final Agreement (UFA), requires us to create new legislation that will apply throughout the Yukon to all lands and which will affect the decisions of the federal, Yukon and First Nation governments. DAP offers an opportunity to create a new assessment law that reflects the specific interests and concerns of Yukoners.

A critical part of environmental assessment is the principle that it be applied broadly. Anything that might have significant environmental effects should be subject to review and, at the same time, things that will not have negative effects should be exempt.

The UFA follows this principle. It outlines that a "Project" (which is something that will go through DAP) means an enterprise or activity or class of enterprises or activities to be undertaken in the Yukon which is not exempt from screening or review. We believe that the YDAA has failed to properly reflect this definition of "project". Instead of a simple provision of "everything in" unless exempted (as suggested by the UFA), the draft YDAA requires that both projects and exemptions be defined by regulation, through an inclusion and an exclusion list. This is the same approach used in the existing federal law, CEAA. It is an unnecessarily complex approach to a simple issue and leaves open the possibility that the DAP process will fall short of what the UFA intended.

Other YDAA provisions allow governments to "declare" an activity to be a project if it is something that is not on their lists. However, there is no guarantee that this will occur and it is also an ineffective approach to pull something into the process once it is underway.

The continued use of the federal CEAA inclusion list approach does not make sense under YDAA. The lists were developed under CEAA to address concerns about the federal government interfering in areas of provincial responsibility south of 60. The federal government proposed the lists to be sure only things it made decisions on were subject to CEAA - so it listed all of those types of decisions (ones that might have adverse environmental effects).

However, in the Yukon there is no need to separate out projects that affect federal jurisdiction. In fact, under the UFA, DAP is supposed to create one process to address the jurisdiction of all the parties (federal, territorial and First Nations). So why use a federal model that was intended to address a set of problems that don't exist in the Yukon?

As the current draft YDAA requires there to be a granting of an authorization, land or money (in order to create a decision-maker at the end), the list of what will be subject to assessment is based largely on what types of permits and licenses are currently issued. As the federal government issues most of these permits, the "made-in-the-Yukon" project list looks a lot like existing CEAA lists.

We believe the best approach, and one that is consistent with the UFA, is to say "everything is in" unless explicitly exempted. The exemption list would include activities that are unlikely to have significant environmental effects. This means that the definition of what would be assessed would be enterprises or activities that are likely to have significant environmental effects, instead of the current proposal of only assessing things that require some sort of decision.

A related area of concern is who then gets to make decisions? The draft YDAA defines this in a narrow way. A "decision body" for a project is limited to a government or agency that provides to the project an authorization (e.g. a license or permit), an interest in land, or financial assistance. YDAA says only decision bodies for a project get to decide what will happen with the recommendations from the assessment process.

In many cases, this could mean the federal government will still be the only decision-maker for Yukon based projects (unless it occurs on Yukon government or First Nation lands). Until devolution, the Yukon government will continue to have few direct decisions over many important development activities in the territory. Yet many areas of Yukon government jurisdiction may be impacted by development: community and transportation services, health services, education, or wildlife management. The current draft of the YDAA says that conditions related to these areas of responsibility could be included in a federal decision document. This is not much different from what we have now with CEAA. It continues the federal dominance over Yukon responsibilities.

As all projects that go through the assessment process will impact at least one of the three government levels of jurisdiction - federal, territorial or First Nation - we argue that any government whose jurisdiction is affected should be a decision body under the new legislation. For example, if a proposed mine requires permits and land from the federal government, the federal government should ensure implementation of the assessment recommendations related to its jurisdiction (e.g. land, water, fisheries). If that same mine is going to impact a community school, local wildlife and territorial highways, the Yukon government should be the one to deal with assessment recommendations linked to these areas (even it doesn't provide any land, permits or money to the mining project). Why would we want to create yet another system where the Yukon government has to rely on the good will of the federal government to first even include wildlife or socio-economic recommendations in its decisions and then to ensure they are enforced if required?

• We strongly recommend the draft act be amended to drop the inclusion list and only have an exemption list. This will ensure consistency with the UFA.
• We also recommend that all the governments whose jurisdiction will be affected by a project be a decision body for that project.

"Plans" in both the UFA and the draft YDAA means "plans, programs, policies or proposal". As environmental assessment is a tool to use to prevent significant environmental effects and promote sustainable approaches to development, it is often the Plans that are most worth assessing as they may substantially influence how many projects will be designed.

For example, if there is a proposed program to provide low interest loans for "roads to resources", it could encourage the development of new roads. Assessing the program could speed up the later reviews of the individual road proposals. A new agricultural policy or forest management plan could similarly impact many new developments that will go through the DAP process. An early assessment of the policy or plan could highlight broader issues that are better addressed at that level instead of in each individual project review.

The current draft of the act allows for governments and First Nations to request the Yukon Development Assessment Board to review any of their plans, programs, policies or proposals which is consistent with the UFA. However, there are a number of criteria that allow the Board to refuse to review the Plan. The likelihood of a government asking for its Plan to be reviewed is slim as it is; the broad discretion given to the Board to refuse to do the review means that few Plans will likely get reviewed unless the criteria are changed.

To strengthen these provisions, we recommend a few steps. First, the public should be able to request a Plan be sent to the Board for review. Secondly, the reasons the Board can refuse to review it should be limited and outlined in the act. If, after a preliminary review, the Board determined that the initial development of the Plan involved consideration of all the matters the Board would consider, and that it involved a level of public consultation provided for under DAP, then the Board should be able to decline a further review. These should be the only two criteria for refusal. The board should also have to provide written reasons for its decision if it does not proceed accept a request to review a Plan.

Thirdly, the Act provides for the development of regulations that list the types of Plans that automatically go to the Board for review. These regulations should be drafted and passed with the Act and should include a detailed list of Plans that will affect future Projects. For example, a funding program to build roads to resources like forestry or oil and gas will clearly promote Projects of this nature. The program should then be subject to DAP.

• The public should be able to request a Plan be sent to the Yukon Development Assessment Board for review.
• The Board should only be able to refuse to review a Plan that may have significant adverse environmental effects if:

Consideration of alternatives to a project, and alternative ways of carrying out a project, is an important part of effective environmental assessment. This means looking at what is the need the project is trying to meet and reviewing options for meeting that need, options that might be better for the environment and the Yukon? For example, if there is a road proposal to a remote lodge or development activity, might there better ways to meet the need of moving people or equipment? If not, are there other routes that might have few negative impacts?

The importance of assessing alternatives is mentioned in the objectives of the UFA but it is not reflected in the purposes section of the draft act. This should be changed as the purposes help direct the approach in the rest of the legislation.

Each stage of assessment should require equal information on alternatives, except for smaller projects. The final decision on what is allowed to proceed should be based not just on what prevents negative effects, but on which approach is most environmentally preferable and is economically viable. As one purpose of doing assessments is to achieve sustainable development, we need to do more than minimize significant effects, we need to make positive choices. The UFA requires that we do this as its objectives are to not only "protect" the well-being of Yukoners but to promote our well-being, to foster beneficial socio-economic change, and to enhance the traditional economy of Yukon Indian people.

The UFA objectives also provide for "timely review" of a project. This is also missing from the purposes in the draft act and should be included as it is very important that assessment happens early on in project planning. This allows for an effective assessment and realistic consideration of the various alternatives to a project before to many decisions have been made about project design.

We recommend that a provision be included that assessment start as early as practicable. This is currently in CEAA.

• The importance of assessing alternatives and providing for a "timely" review should be added to the purposes section in YDAA. This would be consistent with the UFA.
• The final decision on what is allowed to proceed should be based on the approach that is most environmentally preferable and is economically viable.
• A provision should be included in YDAA that assessment start as early as practicable. This is currently in CEAA.

In order for the public and other agencies to participate effectively in assessment it is important that all information related to the assessment be readily accessible. The draft act notes that access should be convenient - it should also note that the access be timely. The public registry under CEAA does not have this requirement and project information is often supplied too late, well after the project is underway. We also recommend that any timelines that are put into regulations should only start ticking once the recommendation, decision or related information is put on the registry. This will ensure prompt entry of all information and actions.

The draft YDAA allows some information to be classified as confidential and, therefore, not available to the public. While this is necessary in some cases, there may be information unfairly labeled as confidential when it should be available for review. If there are difficulties with public access to information or if there is a dispute over whether or not something is confidential, there should be a third party process for resolution of access issues.

• Access to the public registry should be convenient and timely.
• Countdown on all timelines in the draft regulations should only start once the relevant information has been entered in the registry
• There needs to be a third party process in the event of a dispute over access to information.

The purposes section of the draft act includes the intention of providing opportunities for public participation in the assessment process. However, the rest of the act does not outline any specific provisions or guarantees this will happen. There is a requirement that public input is one of the things considered when assessing projects and plans but how such input will be sought is unclear.

Public participation is an essential part of good EA. Key principles require that the review processes be open, transparent and accountable, and that the public be involved in a significant and meaningful way. Public concerns need to be heard early on and throughout the process. First, this will ensure the people doing the assessment will be able to determine what the issues are and what level of assessment might be required. Second, this will allow the public to continue to have input into the process in the form of contributing local knowledge and ensuring that the full range of interests are being addressed.

If the public is going to participate in an assessment, they first must be aware that it is even happening. One mechanism to facilitate public input is to ensure notice of new submissions to the process are clearly posted in key locations in the affected community, the public registry, and accessible media. With regard to ongoing participation, the public needs to be informed of key decision points in the process and there must be clear mechanisms to allow for public input prior to these points.

Active and effective participation in the assessment process can be time consuming and require resources to help get expert opinions of the potential impacts. The UFA provides for setting up participant funding for reviews but the draft YDAA only provides for regulations to be developed for funding for participation in panel reviews. We recommend that this be changed to be consistent with the UFA provision as many reviews can require a substantial amount of time and energy.

Board panel reviews will be required for larger, more complex environmental assessments. They should, therefore, ensure the greatest opportunities for public participation. However, the criteria for panels in the draft act do not provide a very high standard and do not meet those set out in CEAA.

For example, in the draft YDAA there is no requirement for hearings that allow public to participate, no requirement that a panel hearing should be public in most instances, no requirement for summary of public comments in panel report and no clear commitment to independence. YDAA should be amended to ensure that these requirements are integrated into the act.

The public should be give a stronger role in the whole process by being allowed to request that plans be reviewed, that activities or enterprises be declared as a Project, or that project be subject to an audit. This also increases the public accountability of the process. In addition, the terms of reference for panel should be put out for public comment as these will influence the rest of the panel process on that particular project.

• Public notice should be required for all new submissions to the DAP process.
• The YDAA needs to be amended to ensure regulations for participant funding can apply to all reviews.
• YDAA should require that the terms of reference for Board panels should be put out for public comment before being finalized.
• The draft YDAA should be amended to require that :
• panel hearings allow public to participate;
• a panel hearing should be public in most instances,
• a summary of public comments be included in a panel report
• there is a commitment to independence.
• Wherever there is an opportunity to request an action under YDAA, that same opportunity should be available to the public and written reasons should be provided if the request is refused.

Under the draft act, the Designated Office or the Yukon Development Assessment Board must eventually recommend what should happen with the Project or Plan they have reviewed. Although there is a list of matters they must consider during their assessment, there are no criteria guiding what their final recommendations are based on. They can, apparently, recommend approval for a project that has significant effects that can not be mitigated. At least, the legislation does not say they can't do this.

The act needs to provide criteria for recommendations and decisions. It needs to provide direction on how to determine significance of environmental effects, with specific attention to determining how the numerous Yukon-specific purposes of YDAA are being met (e.g. to enhance traditional economies of Yukon Indian people). It should also be a requirement to assess the sustainability of a project or plan, and their alternatives, as a measure of significance.

Effective assessment does more than just minimize adverse impacts. Accordingly, the recommendations and subsequent decisions should not only avoid harm to the environment, but should require that the most environmentally preferable alternative that is viable should be the one recommended.

Although Decision Bodies must provide reasons in writing if they vary or reject the recommendations of the Designated Office or the Board, the legislation does not provide any guidance or limits on what their decision might be. For example, under CEAA, the Minister responsible can not allow a project to proceed if there are significant adverse environmental impacts, "unless justified". Though this is still extremely open-ended but the draft DAP legislation does not even say that much.

• The act needs to provide direction on how to determine significance of environmental effects, with specific attention to determining how the numerous Yukon-specific purposes of YDAA are being met (e.g. to enhance traditional economies of Yukon Indian people).
• YDAA should require assessment of the sustainability of a project or plan, and their alternatives, as a measure of significance.
• YDAA should require approval of that the most environmentally preferable alternative that is viable.
• Projects with significant adverse environmental effects should not be allowed to proceed.

There does not appear to be any requirement in the draft YDAA that all of the recommendations from the Board or Designated Office get addressed by the Decision Bodies. The final Decision Documents should be required to be comprehensive and catch all of the terms and conditions outlined in the recommendations. Otherwise there is the potential for some of the mitigation measures, measures which will prevent significant effects, to fall between the cracks and not be implemented.

CEAA also states that the responsible Minister must ensure that all mitigative measures will be implemented. There is no such requirement in the draft DAP legislation.

• YDAA must ensure that all recommendations are addressed by Decision Bodies and require that all specified measures will be implemented.

One of the very positive aspects of YDAA is that it allows for monitoring and enforcement of final decisions. Currently, CEAA relies on other federal legislation, such as the Yukon Waters Act or the Fisheries Act to ensure that final decisions are put into place. This can create gaps in the follow-up on necessary terms and conditions. The UFA allows us to build monitoring and enforcement tools right into YDAA.

YDAA currently allows for monitoring and auditing of projects. This provides an important mechanism for examining the predicted effects of a project and evaluating the effectiveness of the mitigation measures that were recommended. In turn, this provides an opportunity to learn from mistakes and successes in order to address immediate concerns of a project and to improve the overall effectiveness of the assessment process. Sadly, this type of feedback is missing from most assessment processes.

Unfortunately, the provisions regarding monitoring and auditing lack any definition of what these terms mean. Additionally, the consent of a government or First Nation is required before monitoring or auditing can occur in most cases, there are no clear opportunities outlined for public participation in monitoring or audits, and the public is not given the right to request either to occur. The YDAA also seems to treat the monitoring and auditing of "projects" differently from that of "existing projects" although it would appear a project must be in place in order to be audited or monitored.

In the current draft of YDAA, the Board can only hold a hearing to see if a Project is in compliance with the Decision Document if it has the consent of the relevant governments. The Board should be given more autonomy and, if it has reason to believe the terms and conditions are not being implemented, it should be able to initiate a compliance hearing. The Mackenzie Valley Resource Act gives this right to a similar Board proposed in the NWT. The public should also be given the opportunity to request that the board hold such a hearing if there is reason to believe the terms and conditions are not being followed up on.

If the Board finds in its hearing that the terms and conditions of the Decision Document are not being implemented, it should also be given enforcement powers to help ensure that they will be acted upon. The penalties in the act should also strengthened to be consistent with other federal environmental legislation and the Yukon Environment Act.

The UFA allows for the legislation to make the Decision Documents enforceable. In order to ensure that all terms and conditions are put in place, it is important that there is some mechanism available for encouraging follow through. YDAA sets out some penalties - up to $100,000 fine and/or six months in jail - if specified terms and conditions are not implemented. However, the draft YDAA notes that only the terms and conditions the Decision Body says will be enforceable under this act, will be. To provide certainty that all terms and conditions must be put in place, and to prevent some from falling between the cracks, it is important to make sure that the entire Decision Document is enforceable. The penalties should also be increased to be in line with modern day environmental legislation like the Yukon Environment Act or the Canadian Environmental Protection Act.

YDAA also makes the criminal enforcement sections temporary in nature. After six years, it is possible that Decision Bodies will no longer be able to use these sections. It is anticipated by the parties to the YDAA that First Nations and the Yukon government will have enough laws in place by then to give them adequate enforcement tools elsewhere. However, based on our experience under CEAA, we do not feel that even the federal government has effective approaches to enforcing terms and conditions that are do not clearly fall under one of their laws. For example, it is awkward to incorporate social or cultural measures in a water license. Where there are multiple authorizations by the federal government, it is hard to determine if all assessment recommendations have been incorporated and by whom. It would provide more certainty for all parties if all Decision Documents, in their entirety, were enforceable under YDAA.

In these days of government cutbacks in monitoring and enforcement staff, it is important to provide the public the right to bring civil actions against project proponents or the decision-makers where there are breaches of a requirement of the Decision Document. Civil action is provided for in the Yukon Environment Act and has been an effective and carefully applied tool in other jurisdictions. It would increase the accountability of the process to the public and help ensure compliance if such provisions were added into YDAA.

• The provisions for monitoring and auditing of projects need to:
• define monitoring and auditing;
• provide for opportunities for public participation;
• provide the ability for the public to request monitoring;
• clarify the distinction, if any, between "project" and "existing project";
• not require consent of government or First Nations in order to undertake.
• The Board should be able to initiate a compliance hearing. The public should be able to request the Board to hold a compliance hearing and written reasons should be provided if the request is refused.
• The entire Decision Document should be enforceable and the six year "out" should be removed.
• The penalties for contravening a Decision Document should be strengthened to be on par with modern environmental legislation.
• The right to bring a civil action should be included in YDAA.

CPAWS (Yukon) and YCS support the development of new assessment legislation for the Yukon. We believe the DAP process offers an important opportunity to design a process that will help protect the environment and ensure future developments reflect the interests of present and future Yukoners. New legislation should learn from the experience we all have with current processes and work to create constructive, locally-based approaches to the process.

This first public draft of YDAA is a step in the right direction. However, we believe there much work remains to be done and hope that the three parties will maintain their commitment to public input by allowing for further discussion and review of future drafts. This legislation will have impacts throughout the Yukon and it is important that the people affected by this proposed act have time to provide their views and concerns. An effective consultation can only serve to strengthen the act and its future implementation.

Jennifer Ellis
Yukon Conservation Society
Phone: (867) 668-5678            Fax: (867) 668-6637
Email: ycs@polarcom.com

(Contact YCS for a copy of the legal review)

Juri Peepre
Canadian Parks and Wilderness Society (Yukon)
Phone: (867) 393-8080            Fax: (867) 393-8082
Email: cpaws@yknet.yk.ca

 We encourage you to submit comments on DAP. To express your concerns, contact:

Development Assessment Process Directorate
345-300 Main Street
Whitehorse, Yukon Y1A 2B5

Fax: (867) 667-3861
Email: dapinfo@inac.gc.ca