Natural Resources Committee on Oct. 5th, 2011

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

The reviews typically don't take much longer than the studies.

[John McCauley]

No, we're in the same ballpark.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

The screenings could range from somebody signing off to say the land is clean in terms of a loan from FCC to something that might be much longer.

[John McCauley]

The act has a requirement for a pause of 30 days once there's a notice of commencement. We have an Internet site registry where all projects are identified and which the public can access. There's a 30-day period between a notice of commencement and a decision. The shortest timeframe would be 30 days.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

What's the average?

[The Vice-Chair, NDP, Claude Gravelle]

Mr. Anderson, it's 4:30.

If the committee wants to, we can let you finish and add five minutes at the end of the meeting. It's up to the committee to decide if they want to go for an extra five minutes at the end of the day.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

It doesn't matter. I think you had suggested that the witnesses may stay at the table. We can change over and move on.

[The Vice-Chair, NDP, Claude Gravelle]

All right.

We're going to take a one-minute break. It is the interest of the committee that if the two witnesses would like to remain for the other presentation, they may certainly do so. We'll take a one-minute break and give Mr. Hudson time to set up.

Thank you.

[The Vice-Chair, NDP, Claude Gravelle]

Mr. Hudson, would you like to start your presentation? I understand you don't have hard copies for us, but that's fine.

[Michael Hudson, Deputy Assistant Deputy Attorney General, Department of Justice]

I understand you wanted to have a brief presentation on the duty to consult as a legal duty. I will spend a few moments on that.

When everyone thinks of natural resources in this country, your mind will automatically go to aboriginal peoples and the connection they may have to those resources. That is not a surprising feature because the place of aboriginal people in Canada has been a defining feature of this country for over 500 years. Nearly from the beginning, consultation between the crown and aboriginal peoples has been a hallmark of that relationship. From the making of treaties in the 18th century, from the surrenders of traditional lands by treaty to the use of Indian lands under the Indian Act, and more recently on section 35 and the justifications for infringements on traditional harvesting rights, consultation has been a key tool for the crown to justify its actions.

It was not surprising about seven years ago that the Supreme Court of Canada, in a series of landmark decisions, articulated a legal duty to consult on the part of the crown in order to justify its decisions that could have adverse effects on aboriginal peoples. Those decisions were the Haida Nation decision, Mikisew Cree, and the Taku River. What they articulated was a duty on the part of crown decision-makers to be informed of the implications of their actions on aboriginal people and their interests before they make decisions. This, as I say, was not a totally unique or new development, but it raised the stakes considerably for decision-makers. At its heart was a desire by the courts to ensure those decisions were well-founded, well-justified, and respectful of that relationship.

In practical terms, there was a period of some time after the court articulated that legal duty when there was some uncertainty among regulators as to what exactly they had to do. On the one hand, you had some who were fearful that this meant a complete rewriting of the regulatory regime of Canada. On the other hand, there was an extreme of people who thought it meant nothing, that it would simply be one more factor that would really have no consequence. In reality, what the court was calling for was a meaningful consultation with aboriginal people where decision-makers would pause and take into account what the issues at stake were, what the adverse impacts could be of their decisions, and then to make accommodations before a final decision was made.

The government's response was articulated in 2007 with its action plan on how the duty would be integrated into decision-making across the government. Those interim consultation guidelines were updated earlier this year, in March 2011.

I would like to pause now to run through the major steps the courts apply in terms of how the duty to consult is defined and then fulfilled by government decision-makers. It is important to stress that this is a legal duty; this is not discretionary. That is not to say that it is an impediment to either decision-making or to efficient and timely decision-making. I have often said to clients that meaningful consultation doesn't need to be a process without a time limit or something that provides a veto to an aboriginal party. It is being able to justify to a third party—in this case, the courts—that you have made an honest, reasonable effort in light of the stakes for the aboriginal party and the risk of the adverse impact of your decision to factor that into your decision-making process.

There are three key elements that need to be considered: crown conduct, potential or established aboriginal treaty rights, and potential for adverse impacts.

As for crown conduct that could trigger the duty, there are literally tens of thousands of actions by government officials at the federal level that could theoretically have an impact on aboriginal people. But in reality what the court is looking for are those actions that will have a true impact. These include land disposals, for example, which could affect aboriginal interest in lands; regulatory activity, such as assessments, which could lead to approvals or permitting, which would permit activities that could have an adverse effect on the aboriginal people.

The second element is the potential or established aboriginal rights or treaty rights. Here again, it could be that an aboriginal group with an interest in a project or in the treatment of land or a resource will articulate its opposition to the project. So the regulator or the decision-maker inside the government has to ask themselves whether there is truly an interest at stake here that relates back to section 35 of the Constitution Act, protecting aboriginal and treaty rights, which in short are mostly the traditional harvesting rights that one would expect to see as centrepieces of aboriginal culture in the past and into the present. So that second element isn't simply that an aboriginal party has an interest but that the interest relates back to section 35 and traditional activities.

The third element is potential adverse impacts. Not every decision that is made is necessarily going to have an adverse impact on the interests of the aboriginal party, but many will. So, for example, a decision to permit the construction of a pipeline that would cross an area in which traditional activity such as harvesting of caribou takes place should cause the decision-maker to ask themselves whether this is a situation in which there is a duty to consult. Changes in regulations that could change land use would be another example, as would decisions about pollution that could affect flora or animal populations.

When you add up those three elements, though, a spectrum is created. Consultation is a very generic word. At one end of that spectrum there could be a relatively weak claim by an aboriginal group. Interest might not be particularly tied to a type of fish or a type of animal to be hunted or an activity on land. The average impact is going to be very weak as well and might simply be sharing information, posting information, or sending a mail-out.

At the other end of the spectrum there could be a very strong claim if, for example, a court had recognized an aboriginal title right to land and there was going to be a decision that would permit a very destructive activity on that land. One would expect there to be a strong, meaningful consultation process. It wouldn't be a veto, but there would be an expectation of accommodation measures that would be commensurate with the negative impact on the interest.

Thank you, Mr. Chair.

[The Vice-Chair, NDP, Claude Gravelle]

Thank you very much. Before we proceed to questions, I'd like to take the time to thank Mr. Hudson and Ms. Kellerman for being here today.

Thank you very much.

Mr. Anderson.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Thank you, folks, for coming out. This is of interest to us as the committee is doing its study on resource development in the north.

From what you're saying, I'm thinking there is no set structure to the consultations. It depends on the situation. Is that accurate?

[Michael Hudson]

It is highly dependent on the facts of the situation: who is the group, what are they claiming, what activity is being entertained by the government in terms of their approval, and what would be the likelihood of an adverse outcome?

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Is that lack of set structure then seen to be affected by both the proponents and the aboriginal communities, do you think?

One of the objectives of the committee is to try to get the information, but also then to make recommendations about how things could be done better in terms of resource development. I'm interested in your answer.

[Michael Hudson]

I'll have to give my impression based on communication with outside parties.

My own observation, from having spoken with both aboriginal groups and industry, is that it's far from perfect, in the sense that it would be great to have a code to simply pick up and follow all the rules. The nature of the consultation duty and the fact that it is often very case specific doesn't lend itself well to a code.

Having said that, I think the government has been very successful in recent years in using the interim guidelines to lay out in a great deal of detail for both project proponents and aboriginal peoples how information that each of them provide will be integrated into the decision-making within the government.

I also take some heart by looking at the fact that right after the decisions came out of the Supreme Court in 2005 there was great uncertainty on both sides as to what this would look like. We're six years into it, and most sophisticated resource companies that I see have invested a lot of effort and have incorporated this into the way they do business. I would say probably not.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

We just heard that EAs are tiered. You've got the screenings, the studies, and the reviews. Has there been any thought...or do you think it would be a model for a duty to consult to have, if you want to call them, tiers or levels of requirements in terms of consultation, or are you saying that would be beyond people's expectations?

[Michael Hudson]

I'm speculating. Theoretically, it could be constructed that way.

The interim guidelines that were issued in March of this year do a fairly good job of setting out that spectrum in terms of what would necessarily be recorded in any stage. I suspect when proponents and aboriginal groups look at that document they would have a good sense of where they fit and how to proceed.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

I had a chance to tour some northern communities a few years ago in my role as a parliamentary secretary, and one of the things we were told by one person we met with is that when it comes to projects in terms of the EAs, they have a stack of paper this high. They need to work their way through, and when it comes to duty to consult, they have this much. I don't really understand where we need to go with it.

They suggested there could be a better balance of the two. Is that an accurate reflection of the situation?

[Michael Hudson]

To be honest, I don't know. Much of the same information would be relevant in both.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

You talked about adverse impacts. We had the question in the last hour. Do you consider positive impacts when you're doing duty to consult or a requirement to duty to consult? Are positive impacts considered in the same light as adverse impacts?

[Michael Hudson]

The duty to consult as articulated by the courts isn't articulated that way, because of course the courts were concerned with activities that would have a negative impact on the aboriginal community.

The way I see client departments approaching the issue, I would say with some confidence that they're well aware that a minister or a decision-maker has to take into account many factors to make the best possible decision.

The opportunities and the positives, I would think, should be given at least as much weight in decision-making as a potential adverse effect.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

What role does the Department of Justice then play in the duty to consult? Is this left to the proponents who are going into a community to sit down with the communities and consult with them?

What other departments do you interact with, and how do you interact with them in terms of the duty to consult?

[Michael Hudson]

We provide legal services to all federal departments and agencies. In terms of the duty to consult, our approach is really no different. They will come to us with specific questions.

Since the decisions came out from the Supreme Court, we've invested quite a bit of effort to train other departments, to have them better equipped to understand their obligations, but also not to be afraid of them, not to paralyze regulatory processes. They are then better equipped to make the best possible decisions that will withstand challenges in the courts in the future.

They will come to us occasionally for assistance on things like strength of claim, like how strong is the case that could be presented by an aboriginal party, to help us decide how significant the consultation process should be.

I don't know if that answers your question.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

I think it does to some extent.

If it's a private project, do you get involved in that as well? Do you provide resources for folks? Do you direct the process, or are the private partners and the communities able to make their own agreements?

[Michael Hudson]

My department would not get involved in that.