Parliamentary Research Branch
BILL C-39, THE YUKON ACT
LEGISLATIVE HISTORY OF BILL C-39
BILL C-39, THE YUKON ACT*
Bill C-39, legislation to replace the current Yukon Act, was introduced in the House of Commons on 31 October 2001 and adopted unamended on 3 December 2001 following an uneventful passage through the House. Introduced in the Senate on 4 December, the bill was considered by the Standing Senate Committee on Energy, the Environment and Natural Resources and reported back unamended on 7 March 2002. Bill C-39 was adopted by the Senate and received Royal Assent on 27 March.
In 1870, the Ruperts Land and North-Western Territory Order effected the admission of Ruperts Land and the North-Western Territory to Canada, pursuant to section 146 of the Constitution Act, 1867 and the Ruperts Land Act, 1868. The Manitoba Act, 1870, which created Manitoba out of part of Ruperts Land, also designated the remaining territories the Northwest Territories (NWT), over which Parliament was to exercise full legislative authority under the Constitution Act, 1871.
Yukon became a judicial district of the NWT in 1895. In 1898, during the gold rush boom, the Yukon Territory (Yukon) was carved out of the NWT and established as a separate territory by the Yukon Territory Act, 1898. Under that Act, the Yukon Government consisted of a Commissioner, appointed by the Governor in Council and charged with the administration of the territory under the instructions of the Governor in Council or the then Minister of the Interior and a Council of no more than six members, also appointed by the Governor in Council, to assist his administration. The 1898 statute granted the Commissioner in Council the same powers to make ordinances [as are] possessed by the Lieutenant Governor of the North-west Territories, acting by and with the advice and consent of the Legislative Assembly thereof. In 1908, amendments to the Yukon Act transformed the Council into an elected body.
Although the Yukon administration has maintained the Commissioner structure, that office has evolved over time, as the territorial government became more responsible and exercised expanded functions. Relevant developments include the following:
The current Yukon Act, as amended over the years, sets out ordinance-making powers of the Yukon Commissioner in Council that are similar in some respects but not equivalent to the law-making authority of provincial legislative assemblies under the Constitution Act, 1867 (ss. 17-22, Appendix I). In virtually all cases, Yukon ordinance making is also subject to the Yukon Act and other federal legislation.
In particular, the Yukon Government lacks province-like legislative and administrative authority over land, resources and water in the Territory. And, although the Yukon Act has been modified on a number of occasions, it has not undergone major review since the early 1950s and in some respects does not accurately reflect government practice in the Territory. Bill C-39 is designed to address both issues.
In recent decades, various Aboriginal groups have pursued comprehensive land claims whose influence on the evolution of Yukon government structures is ongoing. To date, Yukon has been affected by the following settlements:
The enumerated agreements benefit from constitutional protection as modern treaties under section 35 of the Constitution Act, 1982.
YFN with completed land claim agreements also have in place separate self-government agreements, as provided for in the Umbrella Final Agreement.(1) The Government of Yukon is signatory to both sets of accords, and both have been ratified by federal(2) and territorial(3) legislation. To date, section 35 protection has not been extended to YFNs self-government powers.
Under their respective similar self-government agreements, YFN may exercise law-making jurisdiction in a number of areas (Appendix II). The agreements also provide for, among other things, the continued application of all laws of general application, for exceptions to that application, and for the resolution of conflict of laws.(4)
The Department of Indian and Northern Developments (DIAND) negotiating mandate for the finalization of outstanding agreements expired on 31 March 2002. On 1 April, the Minister announced that negotiations with four of six remaining YFN had been officially concluded with the signing of individual memoranda of understanding. The process for the two last groups is expected to be finalized by mid-April 2002.
The DIAND Ministers responsibilities in the North under the Department of Indian Affairs and Northern Development Act are delivered principally through the Northern Affairs Program (NAP) under two headings: supporting northern development, both political and economic, through the management of federal interests; and promoting sustainable development of natural resources in the North.
NAP responsibilities include developing policies and legislation relevant to northern political development, as well as the negotiation of devolution arrangements with territorial governments. NAPs development role extends, in particular, to policies and legislation concerned with management of water, mineral, and other resources and to legislation to implement resource management provisions of northern land claims. NAP is also responsible for policy and operational aspects of offshore northern oil and gas management, and for policy and program development in matters relating to northern environment and conservation (hazardous waste site remediation, climate change and so forth).
NAPs regional and district offices carry out day-to-day management and operations in the above areas. Of particular interest is NAPs lead role in carrying out resource management operations, including issuance of rights and interests, conduct of resource assessments, inspections and enforcement activities, environmental assessments and monitoring, issuing regulatory approvals and ensuring that federal legislation and policies related to sustainable development are respected. In the Yukon, NAP also has authority over fire management. However, NAP is no longer solely responsible for matters of resource development and use. At present it is involved with resource and environmental management boards resulting from comprehensive land claims settlements and self-government agreement implementation in the North.
NAP staff includes over 550 employees, including 240 indeterminate or permanent employees in Yukon.
Canada and Yukon have long been discussing the transfer of responsibilities over natural resources in the Territory. Developments related to the present devolution initiative include the following:
On 29 October 2001, discussions based on principles set out in the Accord culminated in the signing of the Yukon Northern Affairs Program Devolution Transfer Agreement (DTA) by Canada and Yukon. In it, Canada undertook to introduce legislation, i.e., Bill C-39, to repeal and replace the Yukon Act to ensure that the [new] Legislature has the power to make laws with respect to Public Land, Waters, and the disposition of any right or interest in Public Land or of any right in Waters. Canada is also to rescind the Yukon Placer Mining Act, the Yukon Quartz Mining Act and the Yukon Waters Act and related regulations; the Yukon Surface Rights Board Act will be repealed effective on a day to be fixed by the Governor in Council (Chapter 2: Transfer of Responsibilities).
In return, Yukon has undertaken to introduce legislation prior to the effective transfer date that mirrors federal legislation to be repealed, and to make regulations mirroring related regulations. Should the anticipated Development Assessment legislation not yet be fully in effect, Yukon will also introduce legislation to mirror the Canadian Environmental Assessment Act, and to have regulations prepared that mirror related regulations (Chapter 2).
Pursuant to the Canada-Yukon Formula Financing Agreement, Canada will provide annual ongoing funding of about $34 million to the Yukon Government; this amount represents current funding for NAP in Yukon and related activities. Transitional funding will also be paid out over a number of years to cover various areas, including implementation of interim environmental legislation, fire suppression, remediation of contaminated sites, human resources, forest sector activities, computer integration, and so forth. In addition, the Yukon Government may retain $3 million annually in resource revenues without any impact on its formula-financing grant; revenues exceedingthat amount will reduce the annual grant dollar for dollar (Chapter 7: Financial Transfer).
Under its terms, the DTA took effect the day of its signing. The projected date for the effective transfer of NAP responsibilities to the Yukon Government is 1 April 2003. Reactions of YFN to the devolution process and its timing have been mixed.(6)
A selective summary of additional elements of the DTA can be found in Appendix III.
Bill C-39 consists of a preamble, 285 clauses most of which are consequential amendments to other acts and 2 schedules. The following non-exhaustive outline highlights significant aspects of the bill, using its headings; it does not include transitional, co-ordinating and consequential amendments. The focus is on important new measures.
Some of the clauses under this heading modernize the statutory language relating to Yukons governmental structures so as to better reflect the practice of responsible government in Yukon. Others provide for important substantive changes to the Territorys legislative powers, which will approximate those of the provinces under sections 92, 92A and 95 of the Constitution Act, 1867. Still others make adjustments to existing structures in the current Act.
Under Bill C-39, as under the current Act, a Commissioner of Yukon (Commissioner) is appointed by the Governor in Council and must follow written instructions of the Governor in Council or the Minister (clause 4). This requirement is to be repealed after ten years (clause 68). Unlike the current Act, Bill C-39 does not designate the Commissioner the CEO of the Territory. Members of the Executive Council (the territorial Cabinet) are to be appointed by the Commissioner (clause 8).
Bill C-39 continues Yukons current Council as the Legislative Assembly of Yukon (clause 10) without establishing the minimum or maximum number of Assembly members that is set out in the current Act; the current Acts Commissioner in Council is continued as the Legislature of Yukon (LY), consisting of the Commissioner and the Legislative Assembly (clause 17).
Bill C-39s principal enabling provision (clause 18) authorizes the LY to make laws rather than the current ordinances on enumerated classes of subjects (clause 18). Most reiterate those in the current Act, albeit in more modern language, and relate to most subjects over which the provinces have constitutional jurisdiction. In noteworthy additions to these classes of subjects, the LYs legislative authority will extend to inland waters and waste deposits in waters (clause 18(1)(n)) and to public real property under the Commissioners administration (clause 18(1)(q)), including the disposition of rights in waters and property. Other additions include wildlife conservation (clause 18(1)(m)), immigration (clause 18(1)(p)) and entering into intergovernmental agreements (clause 18(1)(u)).
Bill C-39 also greatly expands the LYs legislative authority over Yukon non-renewable natural resources. Under a 1998 amendment to the current Act, Yukon acquired broad legislative authority over oil and gas in the Territory and the adjoining area,(7) Bill C-39 extends this authority to all non-renewable natural resources, forestry resources and electrical energy, including their taxation (clause 19).
Like the current Act, Bill C-39 contains an explicit stipulation that provisions setting out the LYs legislative authority are not to be construed as conferring greater powers than those given to provincial legislatures under the Constitution Act, 1867 (clause 20). By way of exception to this general rule, the LY will be empowered, when exercising its authority in order to implement agreements with YFN, to make laws relating to Indians and Lands reserved for the Indians, an area of federal jurisdiction under subsection 91(24) that is beyond the provinces reach (clause 21).
In a new reservation measure that parallels constitutional provisions applicable to the provinces, the proposed legislation authorizes the Governor in Council to direct the Commissioner not to assent to any bill adopted by the LY, in which case the bill may only become law with the formers assent, given within one year (clause 24). Like the current Act, Bill C-39 provides that the Governor in Council may disallow any LY law within a year of its adoption (clause 25). The bill also reformulates the current Acts paramountcy section, stating that in case of conflict, federal legislation prevails over territorial law (clause 26).
Most provisions under this heading are largely based on and update sections of the current Act. Those relating to the functions of the Auditor General of Canada (AG), who remains Yukons Auditor under Bill C-39, do include new elements. For instance, a new provision intended to ensure the Yukon Governments accountability for the management of public funds authorizes the AG to audit any aspect of governmental activities for that purpose (clause 35). Another empowers the AG, at the Commissioners request, to make inquiries into and report to the Legislative Assembly on matters related to the Governments financial affairs, public property, or any person or body receiving or seeking funding from the Government (clause 36).
Bill C-39 also makes provision for future amendments to the legislation under which the AG would be replaced by an Auditor General of Yukon, appointed by the Commissioner with the consent of the Executive Council. The relevant sections, including provisions designed to ensure the independence of the office-holder, would come into effect at a date fixed by the Governor in Council [clauses 70-75, clause 285].
These clauses, in particular clauses 45 and 48, are key to the devolution initiative.
Under the current Act, the Commissioner has the administration and control of certain prescribed lands and may both use or dispose of them and retain the proceeds. Bill C-39 expands that administration and control considerably to include (1) public real property defined to mean land in Yukon that belongs to Her Majesty in right of Canada, and any estate, right, title or interest held by [the federal Crown] in or to land in Yukon(8) and (2) oil and gas in the adjoining area.(9) Under the bill, the Commissioner may use or dispose of the property and retain the proceeds only with the consent of the Executive Council. The small amount of public real property to be excluded from the Commissioners control will be listed by the Governor in Council (clause 45).
The current Act does not make provision for the Commissioner or the Commissioner in Council to exercise authority over Yukon waters. The Yukon Waters Act, however, does authorize the federal Minister to delegate a number of her or his functions under that Act to the territorial minister responsible for water resources. Bill C-39, stipulating that rights in respect of all Yukon waters defined to mean inland water on or below the surface of land(10) remain vested in the federal Crown, gives the Commissioner administration and control of those rights. As in the case of public real property, the Commissioner may, with the consent of the Executive Council, either exercise them, or dispose of them and retain the proceeds (clause 48).(11)
Generally speaking, clauses under this heading some referred to as take-back provisions empower the federal government, in prescribed circumstances, to restrict the Commissioners administration and control of public real property, oil and gas in the adjoining area, and waters and waste deposit in waters. Some reflect aspects of the current Act (clauses 49(2) and 50(2)). Others continue the sorts of federal authority with respect to matters of special concern to the federal government such as land claim settlements or the national interest, including national security that are currently in the Territorial Lands Act, the Yukon Placer Mining Act, the Yukon Quartz Mining Act and the Yukon Waters Act (clauses 49(1), 50(1) and 51). The bill proposes to make the Territorial Lands Act inapplicable in the Yukon, and to repeal the last three laws. Under Bill C-39, the Minister is required to respect certain procedures when prohibition orders relating to interests in or activities on public real property or lands in the adjoining area, or to use of waters or waste deposit in waters, are being considered (clause 52). The bill provides that any such order must not exceed a 5-year maximum (clause 53).
Bill C-39 requires the Minister to consult the Executive Council prior to introducing legislation that would amend or repeal the Yukon Act, and authorizes the Legislative Assembly to propose changes to the Act to the Minister.
In accordance with the DTA, Bill C-39 will repeal the present Yukon Act. It will also rescind the Yukon Placer Mining Act, the Yukon Quartz Mining Act, the Yukon Surface Rights Board Act and the Yukon Waters Act.
Bill C-39 makes provision for the coming into force of three portions of the legislation on three dates, with the main portion replacing the present Yukon Act taking effect first. Provisions relating to the establishment of an Auditor General of Yukon and repeal of the Yukon Surface Rights Board Act may come into force subsequently, or not at all.
Bill C-39 marks a significant development in the legislative evolution of Yukon and the devolution of federal responsibilities to Yukon.
Little reaction to the bill was noted south of the 60th parallel. During its progress through Parliament, five of six YFN without land claim and self-government agreements in place did raise a number of legal and constitutional issues related to the legislation, concluding, in essence, that devolution ought not to occur until their agreements have been finalized.(12)
As previously mentioned, on 1 April 2002, four of the six YFN signed memoranda of understanding with the federal and territorial governments, thus officially concluding their land claim and self-government negotiations. The resulting agreements are to be drafted and ratified by all parties by March 2003, that is, prior to devolution. The process with the two remaining groups is expected to be completed by mid-April 2002.
In addition to the matters raised by YFN, Yukons francophone community sought assurances that their language rights would be adequately protected following devolution.
* Notice: For clarity of exposition, the legislative proposals set out in the Bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both Houses of Parliament, receive Royal Assent, and come into force.
This paper revises a document originally prepared in November 2001 under the title Bill C-39: Summary Overview.
(1) A self-government Agreement in Principle initialled by representatives of the Gwichin, the Inuvialuit and the governments of Canada and the NWT in October 2001 is intended to form the basis of negotiations toward a Final Agreement relating to regional public government for the NWTs Beaufort-Delta region.
(2) Yukon First Nations Land Claims Settlement Act, S.C. 1994, c.34; Yukon First Nations Self-Government Act, S.C. 1994, c. 35. The Yukon Surface Rights Board Act (S.C. 1994, c. 43) reflects the federal undertaking, in the Umbrella Final Agreement, to enact implementing legislation establishing a Surface Rights Board.
(3) First Nations (Yukon) Self-Government Act, S.Y. 1993, c. 5; An Act Approving Yukon Land Claims Final Agreements, S.Y. 1993, c. 19.
(4) In this matter, federal and territorial self-government legislation respectively prevail in the event of inconsistency or conflict with other federal or territorial laws, while the final [land claim] agreement and related settlement laws prevail over inconsistent federal or territorial self-government legislation.
(6) A 4 October 2001 CYFN resolution stated each members conditional support for devolution, subject to the ratification of its outstanding Final and Self-Government Agreements.
(7) The adjoining area is defined at clause 2 as the area outside Yukon and landward of the northern limit described in Schedule 2. Schedule 1 sets out a description of Yukon.
(8) See clause 2.
(9) The Commissioners administration is made subject to Bill C-39, and to section 37 of the Northern Pipeline Act. This statute creates a scheme for construction of a gas pipeline from Alaska and northern Canada under a Canada-U.S. agreement. Section 37 authorizes the Governor in Council to transfer any land that is under the Commissioners control, but that is needed for the pipeline, to the federal pipeline minister.
(10) See clause 2.
(11) Waters in federal conservation areas are excluded. In addition, the Commissioners control is subject to Bill C-39 as well as to any rights granted in respect of waters under federal legislation, and is absent in respect to waters for producing or generating water power to which the Dominion Water Power Act applies.
(12) Those affiliated with the CYFN were the Carcross/Tagish First Nation and the White River First Nation; those unaffiliated with the CYFN were the Kaska Nation, representing the Ross River Dena Council and the Liard First Nation, and the Kwanlin Dun First Nation.
YUKON ACT, ss.17-22
YUKON FIRST NATIONS SELF-GOVERNMENT AGREEMENTS
Using the 1992 Vuntut Gwichin First Nation Self-Government Agreement as an example, self-government agreements of Yukon First Nations provide for law-making authority that:
YUKON NORTHERN AFFAIRS PROGRAM DEVOLUTION TRANSFER AGREEMENT
A. Chapter 1: General Provisions
The parties intend to conclude outstanding land claim and self-government agreements as a matter of the highest priority in the Yukon (section 1.3). Non-derogation provisions related to Aboriginal and treaty rights are set out (sections 1.6 to 1.8). YFN land claim agreements and self-government agreements prevail over inconsistencies or conflicts with the DTA (section 1.36);
B. Chapter 2: Transfer of Responsibilities
C. Chapter 3: Human Resources
D. Chapter 4: NAP Properties, Assets, Contracts and Records
The Commissioner assumes control of listed NAP properties and assets, and listed moveable assets are to be transferred to the Yukon Government as of the effective date (sections 4.1 and 4.7). All records under DIANDs control and necessary for the Yukon Governments exercise of responsibilities under the DTA are loaned, copied or transferred as of the effective date (section 4.12), and remain subject to federal and territorial access to information and privacy statutes and related legislation (section 4.17).
E. Chapter 5: Forest Resources
F. Chapter 6: Environmental Matters
G. Chapter 8: Execution of Agreement
(1) Meaning any land and interest in land in Yukon that belongs to Canada, including forest resources, specified mines and minerals, beds of bodies of water.
(2) Meaning inland waters on or below land surface, excepting waters in national parks and other prescribed locations.
(3) According to the Inventory of sites at Appendix H of the DTA, 402 sites have been remediated, 244 sites require no remediation, 143 sites require assessment and 91 sites require remediation.