Role of the Yukon Water Board
A Brief History | The Changing Regulatory Environment |
Part One - A Brief History
Northern Inland Waters Act (NIWA)
In the early 1970's, the Northern Inland Waters Act set out the rules regarding water use and waste deposit in the Northwest Territories and the Yukon. NIWA established two boards, the NWT Water Board and the Yukon Territory Water Board. The objects of the boards were:
to provide for the conservation, development and utilization of the water resources of the Yukon Territory and the Northwest Territories in a manner that will provide the optimum benefit there from fro all Canadians and for the residents of the Yukon Territory and the Northwest Territories in particular” (NIWAs. 10).
Under NIWA, the Yukon Territory Water Board issued water use licences for five classifications of water use. Public hearings were required for all applications. Every hearing, and therefore every application, had to be posted in the Canada Gazette. After posting the notice, and waiting 28 days, the board could cancel a hearing if there was no interest. All water use licences required the approval of the Minister of Indian Affairs and Northern Development Canada.
Under NIWA, water board membership ranged from three to nine people, with nine being common. Members were appointed by the Minister of DIAND. Three members were nominated by the Yukon. The remaining members were nominated by various federal departments, usually DIAND, Environment Canada and Health, and the Minister of DIAND solicited nominations for three appointments from the Council of Yukon Indians (later the Council for Yukon First Nations). Initially, some federal government nominees were also federal government employees. That changed after a 1982 Federal Court Decision, in recognition of the board’s quasi-judicial status and the need for the board to have an arm’s length relationship from the departments that appeared before it.
NIWA gave the water board the authority to include security provisions in a water use licence, but the Regulations restricted the amount. The board had the authority to refund all or part of the security.
1988 -The Yukon Fisheries Protection Authorization (YFPA)
The YFPA was a policy agreed to by the federal ministers of DFO, Environment, and DIAND, setting out discharge standards for water use licences for placer mining projects, in order to address the jurisdictional problems between NIWA and the Fisheries Act. The water board adopted the policy, reserving the right to depart when circumstances warranted. In practice, the Page 2 of 7 standards set out in the YFPA were almost always reflected in the placer licences. It would have been unusual for the board to impose a stricter effluent standard than what had been negotiated by industry and government, and a licence with a less strict standard might not be approved by the Minister.
The YFPA was replaced by the Yukon Placer Authorization in 1993.
Yukon Waters Act - 1993
In 1993, NIWA was replaced by the Northwest Territories Waters Act and the Yukon Waters Act.
The objects of the board in the Yukon Waters Act remained the same. The new legislation gave the board some new authorities, while at the same time opening the door for those authorities to be restricted.
Minimum board membership increased from three to four. Activities requiring a water use licence were categorized as "A" and "B", more activities required a water use licence (culvert installations, for example) and the number of classifications (now called 'undertakings') increased, with placer and quartz mining being identified as separate undertakings.
There were several changes to the board's authority and responsibility in the new legislation. The chairperson could now approve a type B licence. Public hearings were only mandatory for Type A applications. Notice of applications could be provided through newspapers, and only hearings had to be posted in the Canada Gazette. The board could choose to hold a hearing on an application for a type B licence, but they would then lose the ability to make independent decisions, since any licence issued would require the approval of the Minister.
The circumstances where compensation could be awarded were expanded, and restrictions on the quantum of security were removed, but the board lost the ability to determine if all or part of security could be returned. This created a situation where the board could include security in a licence, and the Minster could return all or part of it immediately.
Under the new legislation, applications for placer water use licences could be dealt with much more quickly, because they did not require notice in the Canada Gazette, and, so long as the board did not hold a public hearing, the licence could be approved by the chairperson. Since placer water use applications comprise the largest number of applications, this would be a major change to the board's processes. Later, implementation of a one window approach to the issuing of class 4 mining land use operating plan approvals under the Placer Act would somewhat negate this efficiency.
The Yukon Waters Act provided that the Minister could give written policy direction to the board and the board would be required to comply with that direction, so that its new found authorities could be limited by the Minister.
1994 - Umbrella Final Agreement (UFA)
The Yukon Water Board is identified in the Umbrella Final Agreement, and therefore it became a “land claims board’ in 1994.
Section 2.12.2 of the UFA deals generally with nominations and appointments, budget submissions, and terms of appointments, and it recognizes that board members are not delegates of the parties who nominate or appoint them.
Chapter 14 of the UFA is specific to the water board. It provides for the nomination of one third of the appointments by CYFN, and identifies a Yukon Indian Person’s right to use water for a traditional use in the Yukon, as well as a Yukon First Nation’s right to have water on or flowing through or adjacent to its settlement land remain substantially unaltered as to quantity, quality and rate of flow. Both rights are subject to the laws of general application.
Chapter 14 identifies obligations and authorities for the board that go beyond those set out in the Yukon Waters Act. At the same time, 14.8.7 clearly restricts the board’s ability to set terms and conditions of water use licences.
2003 - Waters Act
In 2003, with the devolution of federal responsibilities to the Yukon, the Yukon Waters Act was replaced by the Waters Act, which was intended to be mirror legislation. The board became a territorial board, and its name was changed to the Yukon Water Board. Responsibility for various components of the Act was divided among the territorial departments of Energy Mines and Resources, Environment and Executive Council Office. Apparent drafting errors resulted in some other changes, the most notable being a reinstatement of the requirement to gazette all applications, now in the Yukon Gazette.
Part 2 - The Changing Regulatory Environment
In the 1970's, and through to the late 1980's, the water board was the primary environmental regulator in the Yukon. During that time, water use licences went from being relatively short documents that established a licensee’s rights, to more complex regulatory instruments that went beyond the limited scope of water quantity and quality.
In the 1990's, other environmental legislation developed (EARPGO, CEAA, EAA), and the environmental regulatory gap closed. Other tools became available for environmental protection, and overlapping authorities resulted in a climate of uncertainty for proponents and interested parties. New legislation, guidelines and agreements affected the board’s ability to set licence conditions.
More recently, new legislation, policies, and initiatives have been adopted or are being developed that will more appropriately address the management of renewable resources in a current context, and that are likely to provide more certainty in the early stages of project planning.
New Regulatory Regime for Placer Mining
This multi party agreement, including industry and government, establishes a regime for the regulation of the placer mining industry that will provide industry and regulating agencies with a transparent and predictable decision making process. It will replace the YPA, but it goes well beyond the limited scope of the YPA and will include terms and conditions for mining practices and facilities. It will be implemented in 2007 and it is reasonable to expect that, in order to be effective and to provide all parties with the certainty that it promises, the new regime must either be adopted by, or imposed on, the water board.
Guidelines for Community Wastewater Discharge
These territorial guidelines are intended to be interim, pending completion of a federal strategy on wastewater effluent. The guidelines, which are still in draft, set out discharge objectives for municipal wastewater. Once finalized, the guidelines could be imposed on the water board through ministerial policy direction. However, since almost all municipal water licences are type A licences, and all Type A licences require the approval of the Minister, it would be reasonable to expect that the water board decisions are not likely to vary from the guidelines.
Mine Reclamation and Closure Policy
This territorial policy, intended to provide “regulatory clarity”, will apply to all new quartz mines in the Yukon, and it sets out requirements for closure plans and financial security. The draft policy states that “regulatory authorities will utilize guidelines and regulatory standards where practical when reviewing and approving reclamation and closure plans”. The draft requires regulators to provide for regular reviews of reclamation plans, in a coordinated fashion, but it does not specifically address the water board’s mandate for reclamation or security, or the challenges of the water board coordinating with one party about a licence condition, presumably outside of the board’s public process.
Yukon Environmental and Socio Economic Assessment Act (YESAA)
YESAA was fully implemented in November 2005, and it applies to every project that requires a water use licence. The YESAA designated office carries out a public consultation process, identifies potentially significant effects, and recommends mitigative terms and conditions to a decision body. The decision body (territorial, federal or first nation governments) can accept, reject or vary the recommendations, and will issue a decision document. The water board licence cannot contradict the decision document.
Although YESAA and Government of Yukon have indicated an effort to develop YESAA recommendations and decision documents in language that will not appear to tie the board’s hands, this has not been, and perhaps cannot be, entrenched in policy.
The reality of YESAA is that, where a project is determined to have a significant adverse effect, the designated office must identify terms and conditions to mitigate that effect, the decision body will endorse appropriate mitigation, and the water board licence cannot contradict the terms and conditions that are stipulated by the decision body.