Natural Resources Committee on Oct. 5th, 2011

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

So you're only involved if the federal government is involved in the process itself.

[Michael Hudson]

That's right.

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

What's the average timeline for one?

[Michael Hudson]

For a process? I'm not in a position to answer that.

[Joanne Kellerman, General Counsel, Legal Services, Department of Natural Resources]

It would normally be integrated into the other review processes for a project, so the comments you had concerning the overall environmental assessment period would include duty to consult activities and parallel—

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

Would you find yourselves, then, participating more at the study level and the review level, or do environmental screenings bring in duty to consult in any big fashion?

[The Vice-Chair, NDP, Claude Gravelle]

Sorry, Mr. Anderson, I'm going to have to interrupt you.

Mr. Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Mr. Chair.

I participated for 23 years at the United Nations during the discussions on the UN Declaration on the Rights of Indigenous Peoples, which are now international norms. The issue of duty to consult was also involved in that process, but I'll come back to that.

I would like know how the principle of the crown's duty to consult is applied to different federal departments. Are there general principles that each department has to apply whenever issues of duty to consult are involved?

[Michael Hudson]

It's the same Constitution, it's the same section 35, it's the same legal duty to consult that applies across the entire crown, as manifested through individual departments. So to answer your question, it's the same everywhere.

I refer to the interim guidelines on the duty to consult. It is designed to be a horizontal mechanism to inform decision-making in all government departments. At the same time, some departments have taken these and developed their own departmental codes on how best to guide decision-making to fulfill the duties of consultation. But it all springs from exactly the same legal duty.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I know the government has taken a position with respect to the UN Declaration on the Rights of Indigenous Peoples. One of the principles that we find under this UN declaration is the concept of free, prior, and informed consent of aboriginal peoples whenever development takes place on their lands or territories. Is that a concept that your department will also include in this constitutional obligation to consult and accommodate?

[Michael Hudson]

The government's position is fairly well-known. The support that was acknowledged for the UN Declaration for the Rights of Indigenous Peoples was carefully worded to recall the concerns that Canada put on the record in 2007 at the United Nations about several of the terms in the declaration, including the one you're mentioning on free, prior, and informed consent.

The wording of the UN declaration comes pretty close to articulating a veto power for indigenous peoples in development projects. That is not at all where the law of Canada is. From 2007 forward, the government has repeatedly articulated that the conduct of public affairs in this country is under the law of this country, our Constitution, section 35, including the duty to consult. The UN declaration is not a legally binding document, so the “free, prior, and informed consent” provision that you refer to is of interest, but in practical terms, how section 35 is implemented in this country is much more significant.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Do I have any time left?

[The Vice-Chair, NDP, Claude Gravelle]

Yes.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Given that courts and judges are supposed to be impartial in this country, do you think that they should take counsel from the United Nations Declaration on the Rights of Indigenous Peoples as they interpret rights here in our country?

[Michael Hudson]

It would be no more than speculation on my part to say what judges in Canada should do. It would come as no surprise if they did consult international documents. We have a long tradition of documenting human rights too. They are actually all handled in the same way. That helps when interpreting situations here in our country. Referring to the declaration does not mean that judges are going to change their approach to section 35 in any fundamental way. But, as I have already said, this is nothing but speculation.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

In several provinces, human rights commissions are already referring to that declaration in order to interpret certain aboriginal rights. I think that the Supreme Court has also done so, on two occasions.

Could you tell me how the Crown's duty to consult with aboriginals can be made an integral part of environmental assessments?

[Michael Hudson]

I feel that we are already doing that. As my colleagues have mentioned, environmental questions and questions that affect aboriginal interests overlap considerably. It makes a lot of sense to use the processes that we already have, in this case the environmental assessment process, just as a matter of efficiency. Given the number of cases that have been brought before the courts and with my seven years of experience, I have a relatively good reason to hope that the decision will be to use existing processes to address aboriginal matters.

[The Vice-Chair, NDP, Claude Gravelle]

Thank you.

Ms. Murray.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you for helping us to understand these things.

The Supreme Court decisions in the Delgamuukw, Haida and Taku cases are not just about the duty to consult aboriginal groups. The actual point is to consult them and accommodate their demands, is it not?

I was a bit surprised to hear you continually talking about it as a duty to consult. That might be the federal way of framing it. In British Columbia, we always use those two words together; it's consult and accommodate. So I am trying to understand more what that means, and I know you've been wrestling with explaining to us, so I'm going to go back to my specific example, and that's the review panel of the Northern Gateway Pipelines project.

I would guess it has a strength of claim in terms of the numbers of aboriginal peoples' territories that this line will cross and that the transport of oil in the waters will impact. The interest is strong, and I think there could be an argument that the risk of adverse impact is strong. Can you just paint for us the picture of what might be adequate consultation and accommodation in a case like that?

[Michael Hudson]

I hesitate to speculate about a project that is currently in process. If you permit me, I'll maybe use a slightly different example, the Mackenzie gas pipeline. There you have a very major project running through an area with many aboriginal people with not even claimed rights; they were real rights in the sense that they had been recognized and defined through land claim settlement agreements, with some groups not yet in that stage but with very strong claims.

The consultation process there was very deep. It was extensive information sharing at virtually every stage of decision-making. There was extensive information, considerable efforts by a number of departments to go out physically to visit communities to ensure that they had the information and understood it, and had money to hire experts so they were well informed when they provided their input back. And when the information started to come back, there was tremendous effort to collate it, understand it, and a sincere effort made to integrate it into the decision-making.

Then at the other end, the accommodation.... You're correct, I may be short-handing it to tell you about the right, the duty of consultation. I'm also from British Columbia, so I do appreciate that that's the way they articulate it there. But the accommodation is a second stage in the process. Once you have the consultation, once you truly understand what's at stake and have reflected upon what it means in your decision-making process, then you're better informed to consider what will be the accommodation that matches the issue, the interests at stake, and the adverse impact that I as a decision-maker may have on it.

Accommodation could be as simple as providing more information. It could be delaying a decision in order to provide more opportunity for input. It could be when you're getting up to the end of the spectrum where there's a significant physical impact on an interest, like a hunting and fishing right. It could be something like changing the route of a pipeline, giving directions on how it's to be constructed.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

I have a couple more questions. I'm very interested in your response, and I'm not cutting that off because I'm not....

Is it possible that a decision could be appealed on the basis that the timeline given for a panel review—I think it's 18 months for this particular project—is simply not adequate to consult in a way that's appropriate to the strength of those elements of impact, interest, and claim?

[Michael Hudson]

It could, but I stress the “could”, because the courts are actually quite deferential to decision-makers.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Okay. I have another question about it.

Is it possible that the decision could be appealed on the basis of the fact that the Government of Canada has preceded the panel's work and the consultation by coming out in open support of this project prior to this constitutionally required consultation and accommodation and is the same government that has determined the scope of the review and the members of the review panel? Could that prior support for this project actually be a cause for appealing the panel's decision, if it's a decision that goes against what the first nations are asking for?

[Michael Hudson]

I wouldn't want to be accused of providing legal advice to the committee because of course that's not my position.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

This is hypothetical.