I want to take this opportunity to thank all the members who are here today and the staff who are here to support us. Also, I thank you, Madam Chair, and the clerk for making sure that the response to this request happened so rapidly.
Finally, I would like to thank MP McLeod for her motion.
The request was urgent and it's a very important one. I'm here to speak in support of this motion.
In our last session, my colleague Mr. Saganash had his Bill C-262 pass in the House of Commons. This bill really provides the understanding that moving forward we need to have a framework for all legislation and that the action coming from that legislation must be in accordance with the UN Declaration on the Rights of Indigenous Peoples. That bill was an important one and one that many Canadians are wondering if this government will actually ever put into practice.
The Federal Court of Appeal's decision has brought to the forefront what indigenous communities and the NDP have been saying: the consultation for the Trans Mountain expansion has not been done properly. Sadly, this was a major factor in the last election. People were voicing their serious concerns that the then Conservative government was not addressing the real environmental impacts; nor were they consulting meaningfully with indigenous communities. Their failed process was again revealed in the Northern Gateway decision.
I am speaking on this motion.
Both the NDP and the Liberals ran on a message of addressing the environmental issues and creating a new process that this project, the Trans Mountain pipeline expansion, would go through. This was a direct promise from Prime Minister Trudeau. The Federal Court of Appeal decision is now another fact on a long list of broken promises that this government has had.
I hope the people in this room have read the decision, or, at the very least, closely reviewed the clear indications of the poor consultation process with indigenous communities. This report outlines the reality that the consultation process with indigenous communities was simply bureaucrats going out to listen to concerns and relay those concerns back to cabinet. The decision confirms very clearly that good faith is required on both sides in the consultation process. It is not good faith to send note-takers. The decision was very clear that the phase III consultation process was unacceptably flawed.
To quote directly:
To summarize my reasons for this conclusion, Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue. Canada's ability to do so was constrained by the manner in which its representatives on the Crown consultation team implemented their mandate. For the most part, Canada's representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants.
Simply put, they were note-takers. There was no attempt to take and address the concerns. In fact, the crown consultation team and the government mistakenly thought that they could not add any more conditions to Kinder Morgan than the NEB had done. In this context, many, including me, ask why we would bother consulting anyway. Where is the commitment to the government's constitutional duty to address indigenous rights? Where is this government's commitment to dedicating itself to what it claims is the government's most important relationship? To be clear, there is a constitutional duty to consult with indigenous communities. This was not clearly recognized and the process was fundamentally flawed due to this. Canada may disagree and want to see it differently but the decision says this very frankly.
While Canada submits that the members of the crown consultation team were not mere note-takers, the preponderance of evidence is to the effect that the members of the crown consultation team acted on that basis alone. For the most part, their role was that of note-takers who were accurately reporting the concerns of the indigenous applicants to the decision-makers.
Too many times I've heard from indigenous leaders in my riding and across the country that they are tired of talking to people who are not decision-makers.
Simply put, this is not consultation, as the decision explains:
The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures, and explained how the concerns of the Indigenous applicants impacted Canada's decision to approve the Project.
We have heard repeatedly from indigenous communities that there is no serious consideration of their concerns. That is why we are here today. It's because this government's promise of meaningful consultation has been proven repeatedly to be a broken promise.
Whenever I contemplate consultation, I think of free, prior, and informed consent. Grand Chief Ed John said it best to this committee not too long ago. Speaking to the UN Declaration on the Rights of Indigenous Peoples, he said:
I think there's a misconstruction of the concept of free, prior, and informed consent....Consent at the end of the day is a decision that's made after a process, so governments go through a process to come to some decision. First nations' governments are in that same place. First nations' governments will look at information ahead of time. They should be free from any coercion. It should be prior to decisions being made. There should be extensive consideration. It may require an environmental assessment process or some other process that would help inform the decision-making process. Free, prior, and informed consent essentially, at its core, is about governments making decisions. When the Province of British Columbia, the provinces, the national government, the territorial governments, or municipal governments are making decisions, that's what they're doing.
The fact is that this committee has a duty to have a robust study on why the consultation process was so flawed. What are the barriers that seem to hinder both Conservative and Liberal governments to meaningfully consult with indigenous communities? Canadians want certainty. They want respectful relationships to be built. Indigenous communities want to be respectfully treated and for their rights and opportunities to be as important as all Canadians'.
The decision outlines some very specific examples of the lack of this consultation process happening. Coldwater, for one, wanted the pipeline to take an alternate route that would avoid their aquifer. That is a significant concern for their community, and really, it would be for any community in Canada.
I will read directly from the report:
After Coldwater expressed its strong preference for the West Alternative Canada’s representatives responded that: [t]his issue is one which is very detailed, and will need to be recorded carefully and accurately in the Crown consultation Report. The Crown consultation report can highlight that project routing is a central issue for Coldwater.
At a consultation meeting held on October 7, 2016, again in the context of discussions about Coldwater’s aquifer, one of Canada’s representatives: …acknowledged that the aquifer hasn’t been fully explored, but explained that the [Board] process has analysed the Project and that the Crown will not be taking an independent analysis beyond that....The Crown (federally and provincially) will not undertake an independent analysis of potential corridor routes. That said, the Crown will take Coldwater’s concerns back to decision makers. … Coldwater asked what the point of consultation was if all that was coming from the Crown was a summary report to the [Governor in Council].
In the later stages of the meeting during a discussion...Coldwater stated that based on the discussion with the Crown to date it did not seem likely that there would be a re-analysis of the West Alternative or any of the additional analysis Coldwater had asked for. Canada’s representatives responded that: [The Crown’s] position is that the detailed route hearing process and Condition 39 provide avenues to consider alternative routes, however the Crown is not currently considering alternative routes because the [Board] concluded that the applied for pipeline corridor is satisfactory. The Crown will ensure that Coldwater’s concerns about the route are provided to the Cabinet, it will then be up to Cabinet to decide if those concerns warrant reconsideration of the current route.
The Stó:lo Nation reached out to the Minister of Natural Resources about the crown consultation report to share their concern that the Canadian representative left them to believe that the report to the Governor in Council “will be a summary” of what is being heard during its consultations with aboriginal people “with some commentary”.
The Stó:lo went on to observe that “[a] high level of consultation means more than simply gathering information on aboriginal interests, cross checking those with the Terms and Conditions of the project and reporting those findings to the federal decision-maker.” And that “[a] simple ‘what we heard’ report is inadequate to this task and the Governor-in-Council must be aware of its obligation to either reject or make changes to the project to protect and preserve the aboriginal rights, title and interests of the Stó:lo Collective.”
This statement clearly indicates the reality that a meaningful consultation process was not happening. Not only that, but the minister was clearly made aware of the process and the reality that it was not working. May I remind this committee of how many other cases this decision mentions and refers to. This is the legal system of Canada, which has outlined repeatedly the court decisions of this land on the process of consultation with indigenous communities. Canadians deserve to know why this has not been reviewed by this government and why we are here again.
The Upper Nicola's legal counsel clearly rang the bell on May 3, 2016, in a meeting:
Upper Nicola’s legal counsel responded that “the old consultation paradigm, where the Crown’s officials meets with Aboriginal groups to hear from them their perspectives and then to report this information to decision makers, is no longer valid.”
The Government of Canada cannot say they are surprised to be here. It is very clear from these examples, from the continuous engagement of multiple indigenous communities providing clear feedback, that this consultation process was not a consultation at all.
Another example comes from Mr. George, director of the Tsleil-Waututh treaty, lands, and resources department:
He affirmed that at a meeting held with representatives of Canada on October 21, 2016, to discuss Tsleil-Waututh’s view that the Board’s process was flawed such that the Governor in Council could not rely on its report and recommendations: Canada expressed that it was extremely reluctant to discuss the fundamental flaws that [Tsleil-Waututh] alleged were present in relation to the [Board] process, and even prior to the meeting suggested that we might simply need to “agree to disagree” on all of those issues. In our view Canada had already determined that it was not willing to take any steps to address the issues that [Tsleil-Waututh] identified and submitted constituted deficiencies in the [Board] process....
These are very good examples of why this process needs to be studied in this place. In fact, it could not be clearer, as the decision says:
Meaningful dialogue required someone representing Canada empowered to do more than take notes—someone able to respond meaningfully to the applicants’ concerns at some point in time.
The exchanges with the applicants demonstrate that this was missing from the consultation process. The exchanges show little to facilitate consultation and show how the Phase III consultation fell short of the mark.
Madam Chair, let me confirm that these are just a few of the examples from the substantial decision. It makes it clear that the consultation process was not considered thoughtfully and was rushed.
After the report came out, I was disappointed to hear the Prime Minister and the Minister of Finance continue with their lines. The Prime Minister in a radio interview downplayed the idea of appealing the important decision that has been brought before us here today. He said, “The court was very clear: You need to do more on the environment. You need to do more on consultations, if anything is...to happen, so that's what we are going to do.” Soon after, when asked about the appeal again, he said, “We are looking at what an appeal would look like [and] what it would mean.”
Which one is it? Indigenous communities deserve to know. When any Canadian hears or reads these examples of consultation, I believe they will see how empty this government's promises are. Who would not be frustrated in that seat to hear repeatedly that we will take your concerns to decision-makers, but no one will really talk to you about any accommodations or have any meaningful discussion about why it might be important to protect your rights—for example, your water supply?
Now Canadians are going to own the Trans Mountain pipeline. In fact, right after the decision came out, over 99% of the shareholders of Kinder Morgan voted “yes” to sell to Canada. Of course they did. They saw this decision and they are receiving more money than the pipeline is worth. Many Canadians and many indigenous communities are wondering when their vote will happen.
What does the finance minister say? I quote:
As we move ahead with the project and the purchase, our government remains committed to ensuring the project proceeds in a manner that protects the public interest. That means ensuring the highest level over governance — including environmental protection. It means upholding our commitments with Indigenous peoples and it means responsibly protecting Canada’s and Canadians’ investment.
How do indigenous communities have any faith in a consultation process with this government owning and clearly stating that this project has only one outcome? How can Canadians have any faith that the environment and the relationship with indigenous people will be done well after looking at this report? How do they have faith in a government that buys a pipeline and leaves the taxpayer on the hook? The government knows what proper consultation is. There are many examples of successful consultation in this country. It does require that the government do the work. What it means is that the government must have a two-way exchange, a real discussion, not just a place for indigenous communities to let off steam but to be part of a process in a meaningful way.
I am hoping to not have this happen but I am expecting to have to listen to the Liberals speak now and blame the Conservatives. I agree with them. The Conservative process was very flawed. We saw what the results were during their time in government. However, once the Trudeau government was elected, it was this Prime Minister and this government who moved forward with the same flawed process, resulting in the decision I have before me.
Now there is $4.5 billion invested in a project that the Federal Court of Appeal has stopped. In no way does a climate change leader invest this type of money in an old pipeline. In no way does a Prime Minister believe the most important relationship is with the indigenous people of Canada when the consultation process is so completely flawed.
I live on the Salish Sea. It is my home and I am very proud of the beauty of it. It provides for many of the communities I serve: with jobs, recreation, sustenance, and obviously, complete wonder. I serve that region and I'm mystified by the lack of understanding that this government has for the need to protect it. I think it is important to also address the fact that the Conservatives like to throw out the word "veto" when talking about indigenous consultation. This is a non-starter that shuts down discussion about consultation and brings fear of indigenous communities participating fully within Canada. It is not about veto. Like Grand Chief John said in the quote I mentioned above, it is about being an active part of the process and being a part of the decision-making.
I will support the Conservative motion, although I do have my own motion that I'm hoping will help us along this journey because I feel that in this committee what we really need to be focusing on is the process of consultation that's happening in this country. It is time that this committee be strong and recognize that we can do a study that will provide some real direction for the future of this country.
I hope that all the people at this table would agree that it is certainly time for this issue to be moved into a reality that benefits everyone in this country. Indigenous communities have simply waited much too long.
Thank you, Madam Chair.