Bill C-69 (Historical)

An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

Part 1 enacts the Impact Assessment Act and repeals the Canadian Environmental Assessment Act, 2012. Among other things, the Impact Assessment Act
(a) names the Impact Assessment Agency of Canada as the authority responsible for impact assessments;
(b) provides for a process for assessing the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability;
(c) prohibits proponents, subject to certain conditions, from carrying out a designated project if the designated project is likely to cause certain environmental, health, social or economic effects, unless the Minister of the Environment or Governor in Council determines that those effects are in the public interest, taking into account the impacts on the rights of the Indigenous peoples of Canada, all effects that may be caused by the carrying out of the project, the extent to which the project contributes to sustainability and other factors;
(d) establishes a planning phase for a possible impact assessment of a designated project, which includes requirements to cooperate with and consult certain persons and entities and requirements with respect to public participation;
(e) authorizes the Minister to refer an impact assessment of a designated project to a review panel if he or she considers it in the public interest to do so, and requires that an impact assessment be referred to a review panel if the designated project includes physical activities that are regulated under the Nuclear Safety and Control Act, the Canadian Energy Regulator Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act;
(f) establishes time limits with respect to the planning phase, to impact assessments and to certain decisions, in order to ensure that impact assessments are conducted in a timely manner;
(g) provides for public participation and for funding to allow the public to participate in a meaningful manner;
(h) sets out the factors to be taken into account in conducting an impact assessment, including the impacts on the rights of the Indigenous peoples of Canada;
(i) provides for cooperation with certain jurisdictions, including Indigenous governing bodies, through the delegation of any part of an impact assessment, the joint establishment of a review panel or the substitution of another process for the impact assessment;
(j) provides for transparency in decision-making by requiring that the scientific and other information taken into account in an impact assessment, as well as the reasons for decisions, be made available to the public through a registry that is accessible via the Internet;
(k) provides that the Minister may set conditions, including with respect to mitigation measures, that must be implemented by the proponent of a designated project;
(l) provides for the assessment of cumulative effects of existing or future activities in a specific region through regional assessments and of federal policies, plans and programs, and of issues, that are relevant to the impact assessment of designated projects through strategic assessments; and
(m) sets out requirements for an assessment of environmental effects of non-designated projects that are on federal lands or that are to be carried out outside Canada.
Part 2 enacts the Canadian Energy Regulator Act, which establishes the Canadian Energy Regulator and sets out its composition, mandate and powers. The role of the Regulator is to regulate the exploitation, development and transportation of energy within Parliament’s jurisdiction.
The Canadian Energy Regulator Act, among other things,
(a) provides for the establishment of a Commission that is responsible for the adjudicative functions of the Regulator;
(b) ensures the safety and security of persons, energy facilities and abandoned facilities and the protection of property and the environment;
(c) provides for the regulation of pipelines, abandoned pipelines, and traffic, tolls and tariffs relating to the transmission of oil or gas through pipelines;
(d) provides for the regulation of international power lines and certain interprovincial power lines;
(e) provides for the regulation of renewable energy projects and power lines in Canada’s offshore;
(f) provides for the regulation of access to lands;
(g) provides for the regulation of the exportation of oil, gas and electricity and the interprovincial oil and gas trade; and
(h) sets out the process the Commission must follow before making, amending or revoking a declaration of a significant discovery or a commercial discovery under the Canada Oil and Gas Operations Act and the process for appealing a decision made by the Chief Conservation Officer or the Chief Safety Officer under that Act.
Part 2 also repeals the National Energy Board Act.
Part 3 amends the Navigation Protection Act to, among other things,
(a) rename it the Canadian Navigable Waters Act;
(b) provide a comprehensive definition of navigable water;
(c) require that, when making a decision under that Act, the Minister must consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada;
(d) require that an owner apply for an approval for a major work in any navigable water if the work may interfere with navigation;
(e)  set out the factors that the Minister must consider when deciding whether to issue an approval;
(f) provide a process for addressing navigation-related concerns when an owner proposes to carry out a work in navigable waters that are not listed in the schedule;
(g) provide the Minister with powers to address obstructions in any navigable water;
(h) amend the criteria and process for adding a reference to a navigable water to the schedule;
(i) require that the Minister establish a registry; and
(j) provide for new measures for the administration and enforcement of the Act.
Part 4 makes consequential amendments to Acts of Parliament and regulations.

[Karine Péloffy]

Some of these limits were addressed in the modernization of the Quebec Environment Quality Act. I would draw a parallel with the preamble of Bill C-69 which indicates that the public will now be consulted on the content of the impact study guideline, at the very beginning of the process, which should be useful once the project is before the BAPE.

The appointment process has also been changed. The BAPE has more mechanisms at its disposal. There are now targeted consultations, although mediation is still possible. There are several public participation mechanisms that are possible.

Indeed, in Quebec, the decision remains political. Apparently, what justified the use of that model in the beginning was the idea that the Quebec nation is so small that a rigorous, credible report that had the public's trust could have enough influence and create sufficient political pressure that the proper decision would be made.

Canada's case is different and it is important that decisions be surrounded by a much stronger framework. We must not only consider certain factors or reports; the decisions really have to be based on that. We must also have the opportunity of appealing those decisions. I think that that is the great weakness of the Quebec system, which we would not like to see repeated here.

[Matt DeMille, Manager, Fish and Wildlife Services, Ontario Federation of Anglers and Hunters]

Thank you.

Good morning, Madam Chair and members of the committee.

On behalf of the Ontario Federation of Anglers and Hunters, our 100,000 members, supporters, and subscribers, and our 740 clubs across Ontario, thank you for inviting us here today to talk about elements of Bill C-69 that are critically important to our organization.

Our primary interest in the bill is the Canadian navigable waters act. Although our organization has a very keen interest in the environmental considerations for projects that occur in and around water, our knowledge and experience in Ontario are related mostly to the Fisheries Act and provincial statutes and regulatory processes, such as Ontario's Environmental Assessment Act. Therefore, we will focus our comments today on the angler, hunter, and trapper perspectives on navigation protection.

From the time of the fur trade, and well before for indigenous peoples, navigable waters have been critical for accessing resources in Canada. Water-based navigation remains woven into the cultural fabric and social identity of many indigenous and non-indigenous Canadians. Approximately one-quarter of Canadians fish, hunt, and trap, and they contribute $15.2 billion to the Canadian economy every year. Fishing, hunting, and trapping are very relevant in Canada today, and the right to navigation is important to the Canadians who enjoy those activities.

The idea of a public right to navigation is almost as old as the country itself, with navigation legislation having origins dating back to the late 1800s. Although societal demand for water-based transportation has changed dramatically over time, there remains a demand for safe and accessible navigable waters. To achieve this requires strong legislative oversight by the federal government.

First, we must know what navigability means to Canadians—what are we trying to protect? The most obvious connection to navigability for some Canadians will be lake freighters on the Great Lakes or cabin cruisers on the Rideau Canal or the Trent-Severn Waterway—big waters and big boats.

When our members think about navigability, however, a high volume of traffic is the last thing they want to see. They are more interested in the navigable backwaters of Canada. Small rivers, streams, creeks, marshes, and other smaller watercourses are important gateways to fishing, hunting, and trapping opportunities. The definition of “navigable waters” in the proposed Canadian navigable waters act has been enhanced and now provides more detail, with specific recognition for recreational use. This is a positive amendment that better reflects our idea of navigability.

It is our position that navigation legislation is not intended to be environmental legislation. Are there opportunities for navigation protection to provide a checkpoint to ensure that environmental legislation and regulatory processes are happening as they should? Definitely. The projects occurring in and around water should be considered from both a navigation and an environmental perspective. But if we are relying on this act—past, present, or future forms of it—to be a significant line of defence for environmental protection, then we have to question the effectiveness of our primary environmental statutes, such as the Fisheries Act and the impact assessment act.

From our perspective, protecting navigability is not about adding red tape for proponents or slowing down development. Large-scale proponent-driven projects are already scrutinized under other legislation and often across multiple jurisdictions. These projects should absolutely be subject to navigability legislation, but the regulatory process must be done in conjunction with other federal approval processes to make it as efficient as possible for the proponent's and the agency's benefit. The proposed amendments to have the prohibition apply to major works in any navigable water is a step in the right direction, but more about that later.

We are concerned that regulatory processes tend to focus on these proponent-driven medium- and large-scale projects, for which prohibitions as well as permitting and approval requirements are well established in the development cycle. It is the smaller-scale obstructions that do not have the same proponent-agency relationship, because the responsible party is more likely to be a private landowner who won't be disclosing their intent to erect a fence, a wire, a rope, or other obstruction across a navigable water. In most cases, the individual is unaware that they are breaking the law or even that navigation legislation exists. These obstructions won't be flagged, but they will impede public navigation and create significant safety concerns.

For obstructions—and it is important to differentiate obstructions from works or projects—the presence of a legal deterrent and subsequent government recourse to address contraventions can be as important for protecting navigability as the regulatory and permitting process is for traditional proponent-led projects. We want to prevent obstructions to navigability to the greatest degree possible, because the average Canadian can't and won't fight these issues in the courts. When navigability concerns do arise, Canadians expect and rely on the federal government to protect navigability. For this reason, we are pleased to see that the amended act proposes to prohibit obstructions in any navigable water. In our minds, this is a very important change.

In addition to the legislative measures, navigation protection requires strong education and outreach to increase awareness among Canadians. This should accompany the implementation of the Canadian navigable waters act, particularly as it relates to obstructions that cause serious navigability and public safety concerns.

To maintain safe and accessible waters in Canada, we need strong legislation with clear and comprehensive provisions that outline where, when, and how the government will protect navigation. The following are a few more specific comments on the amended navigation legislation proposed in Bill C-69.

There has been much discussion about the 2009 and 2012 amendments to the navigation legislation. Much of what I have read so far has been negative, but that isn't entirely fair. The limitation of the legislation to a scheduled list of water bodies was considered a major setback for navigation protection; however, the 2009 amendments established a foundation for classifying different works or projects. This has been maintained in the Canadian navigable waters act and expanded with the inclusion of major works.

We believe a classification system that enables prioritization of projects being reviewed for navigation protection is necessary. First, there are differences in the level of scrutiny required for different types of projects. Think of the differences between a dock and a dam. In a perfect world, we would want all works, regardless of type, to be assessed and authorized by a regulatory agency. This may have been possible under the broad nature of the Navigable Waters Protection Act prior to 2009. However, we must acknowledge the fiscal realities of the navigation protection program and the fact that the administrative burden in reviewing all minor works may not be worth the added value to navigation protection. A regulatory triage is now commonly used by agencies to implement regulatory programs.

As always, the devil is in the details, and the amended legislation only tells part of the story. We can likely make relatively safe assumptions about what will be defined as minor works because of the existing minor works order under the Navigation Protection Act, but we do not know what types of projects will be included as major works. To achieve a complete and effective major works order, the minister will need to establish a transparent public consultation process. Only when we know what types of projects are classified as minor and major will we know what is left in between, in other words, what projects won't be subject to navigation protection in unlisted, or 99%, of Canadian waters.

We are still not convinced that special classification of waters in a schedule is necessary or appropriate. If the government can get the classes of works right, then classes of waters shouldn't be necessary.

I hope we have been able to illustrate a different perspective on the proposals to amend navigation legislation and have offered the committee value-added feedback that will contribute to your study and ultimately bring meaningful change to the bill and its implementation.

Thank you again, Madam Chair and members of the committee, for the invitation and for your attention today. I look forward to the questions.

[Brock Carlton, Chief Executive Officer, Federation of Canadian Municipalities]

Thank you very much, Madam Chair.

Thank you for receiving us today.

I look around the room and I see friends and colleagues whom I've worked with over many years. It's nice to see you, nice to engage in this conversation. It's so important.

FCM certainly welcomes this opportunity to bring Canada's municipal voice to your review of Bill C-69. As environmental and economic leaders, municipalities understand and support federal efforts to improve environmental assessment processes. Municipalities are uniquely impacted by these processes, sometime as proponents, sometimes as interested participants, but always as a level of government protecting the interests of our communities.

Municipalities are regular participants in environmental assessment where outcomes have a local impact on areas of municipal responsibility, such as environmental sustainability, emergency response planning, land use planning, and the construction and maintenance of municipal infrastructure.

At the same time, many projects, including those within the resource development sector, are important to economic prosperity and the quality of life in local communities. In addition to these, as participants, municipal governments are also project proponents directly affected by federal environmental assessments when municipal infrastructure projects are subject to federal approval.

Each of the expert panel and House standing committee reports, which inform the changes proposed in Bill C-69, noted the unique and growing role of municipalities within environmental assessment processes.

FCM has filed nine submissions over the last year with recommendations to improve environmental and regulatory review processes. Our recommendations reflect the views of the diverse membership of more than 2,000 municipalities representing over 90% of the Canadian population. With responsibility for 60% of the country's public infrastructure, municipalities help drive Canada's economic prosperity, environmental sustainability, and quality of life.

To address Bill C-69 I would like to walk the committee through each of the acts that are being changed, starting with the Navigation Protection Act. FCM has consistently recommended aligning the legislation with current transportation demands, which depend more on the construction of bridges and roads than expanding water navigation. In 2009, the former Navigable Waters Protection Act's scope was refined with input from municipalities to include an exemption for minor works and waters with little impact on navigation. Several amendments in 2012 brought aspects of the legislation closer to Canada's modern realities. These changes addressed municipal concerns about project delays and expenses caused by federal reviews triggered by small-scale projects.

FCM recognizes and shares concerns about the large number of lakes and rivers that no longer have oversight under the Navigation Protection Act. However, the proposed Canadian navigable waters act includes changes that FCM did not call for and will have significant impacts on municipalities. These include a new requirement that project proponents notify and consult on proposed works on all navigable waters, including both scheduled and non-scheduled water bodies, and a new resolution process that would allow the Minister of Transport to review navigation concerns on non-scheduled water bodies.

FCM expects these changes will result in significantly more municipal infrastructure projects falling under federal review, and we are concerned about the expansion of the scope of the legislation to include, effectively, a new class of works that will fall outside of the existing minor works and existing major works categories. These in-between works are likely to include municipal infrastructure projects that are critical to public safety, transportation, and commerce—for example, bridges, water control structures, and flood mitigation structures. We're not advocating that all bridges, water control structures, etc., be exempt, but we believe there is a consideration for the scale of a project and scale of the waterway that needs to be taken into account.

To address these, we recommend, first, that Transport Canada conduct a review of the existing minor works order, to assess whether more types of works need to be added. Second, we recommend that Transport Canada create a standardized mechanism for project proponents who notify the public in order to meet new requirements under the act. Third, we highlight the importance of enforcing the timelines for public notification and consultation outlined in proposed subsections 10(3), 10.1(1), and 10.1(3) as a means of reducing untimely delays. We recommend that these timelines are reviewed and amended as provided for in regulation, if they are deemed ineffective.

The second part of Bill C-69 that FCM is focused on is changes to the Canadian Environmental Assessment Act. FCM supports the proposed approach of having designated projects jointly reviewed by the proposed impact assessment agency of Canada and the relevant federal life-cycle regulators. We also support broadening the scope of assessments to include economic, social, and health impacts, and the “one project, one review” objective that Bill C-69 strives to achieve.

Still, we believe that Bill C-69 does not go far enough in recognizing the important role municipalities play in relation to designated projects. For that reason, we are proposing the following amendments: that proposed section 11 of the impact assessment act be expanded to expressly include consultation with municipal governments; that this phrase, “comments from a municipal government impacted by the designated project”, be added to the factors that must be considered by the impact assessment agency of Canada under proposed subsection 22(1) of the impact assessment act; and that, as a result of the above amendments, “consultation with municipalities” be added to the preamble of the impact assessment act, making it clear that this is an objective of the legislation.

FCM strongly believes that early engagement with municipalities leads to better outcomes. Therefore, we are also calling for consultation with municipalities to be a required component of the initial project description, which proponents must file with the impact assessment agency of Canada.

Finally, I'd like to turn to the National Energy Board Act. Municipalities interact daily with the existing network of NEB-regulated pipelines and power transmission lines. Communities of all sizes benefit from economic activity associated with resource development and energy transportation infrastructure. Municipal governments are directly impacted by pipelines through emergency response planning, land use planning, and construction. There are several changes the government is proposing that are in line with FCM's recommendations, but I'd like to address a few of the recommendations made by FCM that are not clearly addressed. Notably, FCM called for the NEB Act to be amended to recognize municipal bylaws and require pipeline companies and the NEB to abide by them, within the limits of the Constitution. We also said that the NEB Act should be amended to provide municipalities with a direct role in deciding the local route that proposed pipeline projects take.

While the proposed changes go a long way to improving the public consultation process, they do not go far enough. Codifying the requirement to consult with municipalities in the legislation will go further to address municipal concerns that have arisen during recent NEB hearings.

In addition, FCM is recommending that the impact assessment agency of Canada and the Canadian energy regulator be granted greater flexibility in determining the maximum time limits for conducting an impact assessment of a proposed pipeline. While FCM supports timelines for environmental and regulatory reviews, we recommend that these be determined on a project-by-project basis.

In conclusion, we want to stress that it will be necessary for the federal government to actively engage and consult municipal governments as regulations for these acts are created. As environmental and economic leaders, municipalities understand the need to balance economic activity and environmental protection as complementary priorities. We believe our recommendations help to achieve this balance.

We thank you again, and we look forward to your questions when they arise.

[Sheila Risbud, Director, Government Affairs, Teck Resources Limited]

Good morning, Madam Chair, members of the committee, and fellow witnesses.

It is an honour for me today to be here to present Teck's recommendations on Bill C-69.

My name is Sheila Risbud and I'm the Director of Government Affairs for Teck Resources. Previous to Teck, I worked for the Canadian Environmental Assessment Agency and for Environment and Climate Change Canada where I was directly involved in federal impact assessments. I am accompanied here today by my colleague Mark Freberg, who also has extensive environmental assessment experience in both Canada and Chile. We'd be happy to answer your questions after our presentation.

Proudly Canadian, Teck is a diversified natural resource company.

We are proud to employ over 8,000 people in Canada.

In Canada, we have six steelmaking coal operations, the country's largest open-pit copper mine, a zinc and lead smelting complex, and have interests in several mining development and oil sands projects. We also own or have interest in mines in Chile, Peru, and the United States. In all jurisdictions where we operate, we focus on building strong relationships with communities, indigenous people, and other stakeholders.

We have significant business arrangements in place with Chinese customers and investors, and from our headquarters in Vancouver, we compete with many of the world's largest mining companies. Many of our activities require environmental assessments, and as a project proponent in Canada, we believe that the design and implementation of this legislation is critical. It matters to ensuring the ongoing protection of the environment and it matters as well to the long-term competitiveness of our business and the jobs that depend on our success.

We support the government's effort to strengthen public confidence in the environmental assessment processes and to enhance indigenous people's participation and decision-making. For Teck, the intentions in the government's legislation align with core business values. In many instances, they describe our existing approach to managing our relationship with the environment and the community at large.

New rules that result in greater public confidence in environmental protections will help support and attract investment in this country. However, this represents one part of the challenge as we see it. Project proponents need to know that approval processes will not only be rigorous but can be counted on and result in clear, timely decisions. We're encouraged by many elements within Bill C-69, but we would like to see more emphasis on a predictable process that delivers regulatory certainty for all parties.

This is specially important now, at a time when Canada has seen its share of global mining investments decrease significantly in recent years.

Getting this right can help turn the situation around.

Teck supports the amendments that the Mining Association of Canada highlighted in its presentation to this committee on March 29. Today, we'd like to briefly highlight areas of the legislation that we believe could benefit from additional clarity. I'll focus my remarks on the proposed early planning phase, enhanced indigenous peoples' participation and decision-making, and competitiveness in cost-recovery restructures.

First, let me say that we support the inclusion of an early planning phase. This reflect's Teck's existing approach to engaging early with stakeholders and indigenous peoples, and we believe it should be considered a best practice internationally. However, we're concerned that as currently written, the proposed early planning phase does not identify clear milestones within the 180-day period.

Defining milestones with clear timelines for the various steps would provide certainty and transparency for all parties involved in the assessment. Proponents need to understand what is expected of them in order to adequately meet early planning requirements. Without this clarity, the early planning phase could continue indefinitely.

For example, we recommend that the agency be given set times to deliver the summary of issues document. This is the document that describes the issues that the agency has heard to date and the decision on whether an impact assessment is required. We also recommend that the early planning phase contain a mechanism to incorporate information already collected by a proponent or another jurisdiction prior to the 180-day period.

Incorporating existing information could significantly streamline the process and incent proponents to conduct even earlier positive engagement with potentially impacted communities and indigenous peoples.

I also recommend that sufficient resources be allocated to the new impact assessment agency to manage this early planning phase well, ensuring it has the capacity to meet its expanded consultation obligations as well as to review scientific data and indigenous knowledge.

So, to summarize, while Teck supports early planning, clear and predictable milestones and sufficient resources are required in order to successfully meat this phase's intent of greater transparency and predictability.

Another aspect of this bill that we support is the early and inclusive engagement and participation of indigenous peoples at every stage of the impact assessment process. Teck has very positive experiences from early engagement with indigenous peoples, and we have formalized early, inclusive dialogue into our corporate-wide indigenous peoples policy. We believe this approach contributes to reconciliation while supporting the shared benefits of resource development.

However, this legislation needs to result in clear, consistent practices that governments, indigenous peoples, and proponents can rely on. We hope you will agree that for too long, there has been a positive discussion about the need to do better, but perhaps too little by way of clearly defining how we can make this work.

Teck supports the government's commitment to the adoption and implementation of the UN Declaration on Indigenous Peoples. Currently, however, it is not clear how Bill C-69 will be coordinated with the government's plans to implement the UN declaration, particularly with regard to free, prior, and informed consent. We recommend that the government engage with industry, provinces, territories, and indigenous governments to develop a process for the implementation of the UN declaration, with a focus on achieving complete clarity around what is expected when it comes to the terms “free, prior, and informed consent”.

Teck is also pleased to see crown consultation begin earlier in the impact assessment process. For this process to be successful, however, we recommend that there be clarity on the scope of consultation and the division or coordination of consultation efforts between the crown and the proponent.

Once again, we support the government's intent to meaningfully involve indigenous peoples in impact assessment but seek clarity on how this will be carried out.

We recommend that clear criteria be established that outline when and how the minister will delegate impact assessment responsibilities.

The last aspect of Bill C-69 we would like to comment on is the structure of cost recovery under proposed sections 76 through 80 of the legislation. We recognize that reasonable cost recovery is a standard practice in regulatory and permitting processes, and we have experience with cost recovery regimes. We believe that federal cost calculations must consider integration with provincial fees related to the same project. This would be consistent with the federal government's commitment to coordination with provinces to support the one project, one assessment principle.

We also believe that federal cost recovery should consider any other fees for mining projects under other federal legislation such as the Fisheries Act. Doing so would remove costly duplication and support greater cost competitiveness in Canada. One place to coordinate this would be in the proposed impact assessment coordination plan.

We therefore recommend that the agency should be mandated to coordinate cost recovery with other jurisdictions and other federal departments when costs are included under other legislation.

In conclusion, we want to reiterate Teck's overall support for this government's intent to improve environmental and regulatory processes.

We support the government's efforts in this regard. We are pleased to see that some of our recommendations are being considered in this bill.

We appreciate this opportunity to appear before you today and to highlight further recommendations that we believe provide clarity in Bill C-69. We want to see Canada succeed, becoming a greater destination for global mining investment and a leader in responsible project development, while protecting the environment, advancing reconciliation with indigenous peoples, and creating economic opportunities for all Canadians.

Thank you. I will be pleased to answer your questions.

[Karine Péloffy, Managing Director, Québec Environmental Law Centre]

Good morning, Madam Chair.

I want to thank the committee for the invitation. It is an honour for me to testify on behalf of the Quebec Environment Law Centre, the QELC.

This bill will apply to an enormous territory and three oceans. This is an extremely important moment in our history. As regards climate and biodiversity, it has never been as urgent to act as it is at this time.

The QELC is the only independent organization that provides expertise in environmental law in Quebec, and it has done so since 1989. Over the past years, we have been involved in several legal cases regarding the now-dismantled Stephen Harper era legal regime, particularly cases related to the Energy East pipeline project, the protection of the beluga in Cacouna, the protection of the rights of francophones in the National Energy Board assessment process, as well as the application of provincial law to projects, and more specifically, to its public participation processes. These cases reflect the tenor of our recommendations.

In addition, since 2016, I have been a member of the multilateral advisory committee of the Minister of Environment and Climate Change, entrusted, among other things, with studying the reform of environmental assessment. I am actively involved in that process. I listened to most of the testimony from the English Canada environmental groups, as well as from indigenous groups. The QELC supports their proposals overall, including those made by Mr. Doelle.

I will focus my remarks on aspects specific to Quebec, for several reasons.

First, Quebec has had a unique experience. It began to hold public consultations to assess three dimensions of environmental projects—ecological, social and economic—in 1978, that is to say a good 10 years or so before the federal government introduced an environmental assessment act.

Second, the general framework of Quebec's environmental protection was greatly modernized in the past year, and there were breakthroughs on several fundamental issues discussed in Bill C-69; it could be useful to examine that in the course of your study.

Third, the structure of Bill C-69 is very similar to the structure of the Quebec regime; however, we have some major concerns. The document I provided to you summarizes the basic features that have allowed the Quebec regime to have some success. If some of those basic elements are absent from its federal counterpart, it may not work. I am referring particularly to public participation and the independence of the committees that will examine the projects.

I often refer to the model of the Bureau d'audiences publiques sur l'environnement du Québec, the BAPE, which will be 40 years old this year. It provides basic guarantees on public participation, and the public trusts it and has participated actively over those 40 years in the study of close to 350 projects.

I seem to be the only Quebec representative to testify before this federal committee, with the exception of a few Cree, Algonquin and Inuit representatives, although Quebec represents 22% of the Canadian population, and Quebeckers were very involved in the assessment of controversial projects under the dismantled 2012 federal regime. Moreover, in our area, we have a multitude of experts who could have come to inform the committee on some fundamental issues, and more importantly, suggest concrete solutions on the basis of what works in Quebec. I deplore the absence of those experts at the committee, and I invite you once again to invite them to appear before you.

I am going to present the QELC position. We have provided a bilingual summary in case our more complete brief has not yet been translated. Some detailed amendments will follow by next Monday. I will also refer to the brief submitted to the committee by Louis-Gilles Francoeur, the former vice-president of BAPE, particularly with regard to the BAPE procedure.

I will then briefly present collective recommendations of lawyers and scholars on considerations of climate in the two acts. Also, it will be my pleasure to take questions in English.

First, it's very important to respect the rights and laws of provinces and indigenous jurisdictions, including the right to assess and approve projects on their territory. When those projects must also be assessed by the federal government, the favoured process should be collaborative. Subsection 39(2) of the Impact Assessment Act forbidding this collaboration for pipelines, nuclear energy and offshore oil and gas must be removed. The second process to be favoured after collaboration would be duplication. That is constitutionally valid, but it is ineffective and does not lead to the best decisions. Finally, you could resort to substitution, but if it comes to that, it should be done according to the highest standards, in keeping with the expert committee's recommendations in that respect, and especially according to objective criteria. I am going to anticipate a question here and specify that the existence of an emissions limit in a province is not an objective criteria that justifies exemption from federal assessment.

The second important point is full participation in assessments. That is really at the heart of the success of the Quebec regime. The organization that performs the assessments in Quebec is called the Bureau d'audiences publiques sur l'environnement; the public's participation is thus the foundation of the exercise, rather than a public opinion survey to attempt to obtain so-called social licence.

According to Louis-Gilles Francoeur, public hearings result from the evolution of civilization. The BAPE model is inspired from direct participation mechanisms that were created after the American Revolution. The idea was that by forcing economic and technocratic elites to come and explain themselves before these direct democracy institutions, the public hearings would, according to Alexis de Tocqueville, neutralize the social forces that have the same frames of reference, the same cultures and sometimes similar interests, but rarely have to be accountable.

The real strength of the BAPE process is its first part, which is collecting information. I will describe it briefly. It is based on an investigative model where the commission and citizens play the role of attorneys, rather than the quasi-judicial adversarial model which seems to be in effect in the rest of Canada.

In the first phase, the public addresses its questions directly to the promoter. The public literally acts as counsel of the review commission. The commission then repeats the public's questions and puts them to the promoter. Afterwards, those questions have all of the weight of the commission's questions, and the promoter is obliged to answer them. It's a type of symbiosis between the work of the commission and the public's participation.

In addition to its active participation, the public sees the dossier being substantiated before it. It is a collective method of getting to know and owning the file that guarantees the briefs, that in turn guarantee the quality, the political power and the credibility of the report that will be issued at the end. In Quebec, we humbly believe that this type of public participation should be the preferred mode, because it is a better way of informing the public without the rigid constraints of a quasi-judicial process.

This power to compel all of the key actors to provide answers and documents, including the promoter and other parties, is really central to the BAPE commission hearings in Quebec. I have some concerns about the current bill, more precisely regarding subsection 53(6), where the power to compel is not strong enough. We will see this in the detailed amendments, but generally speaking, if you must go before a court in order to have one of the commission's orders applied, you have just basically completely abolished its power.

Another important point is that assessment commissions and the energy board should really be independent from the industry and the government. The bill maintains minimal numbers of appointees on review panels from the pipelines, nuclear energy and offshore oil and gas regulators, which in our opinion is unacceptable. In order to restore public trust, there has to be a new independent assessment institution for all of projects from all of the industries.

Personally, I have absolutely nothing against regulatory organizations, but they are not institutionally impartial, because their work depends on their being able to continue to regulate an industry. This implies that they will always agree to have projects going forward. It's one of the reasons why we can't trust them. Those individuals have no place being on a commission, but they can play a role as experts.

Since I have very little time left, I will quickly speak to the method of appointing commissioners. That process absolutely has to be depoliticized, either by creating a list of commissioners who are capable of acting as such, or by designating specific commissioners for a review commission. The minister is not the one who should do that. There should be a more independent process. It could be a committee made up of two-thirds of parliamentarians, a multipartite committee with the Auditor General or the Commissioner of the Environment.

Do I still have some time?

[Dr. Meinhard Doelle, Professor, Schulich School of Law, Dalhousie University, As an Individual]

Thank you.

Madam Chair, members of the committee, thank you for the invitation to speak to you about the impact assessment portion of Bill C-69. To ensure efficient use of my time, I will read from a prepared statement.

Very briefly, my background in EA goes back to work on CEAA in 1992 as a policy adviser to the Canadian Environmental Assessment Agency. Since then, I've offered legal advice to proponents, panel members, and intervenors involved in EAs. I served as a panel member on the Lower Churchill joint review panel, and have designed and shared strategic assessments on tidal energy and aquaculture in Nova Scotia.

Of course, I cannot cover the range of issues that arise from the proposed impact assessment act in 10 minutes. Impact assessment legislation is by its nature complex, and Bill C-69 is no exception. In the interest of time, I therefore refer you to my written submission and to a number of blog posts that I have published with colleagues, some before and some after the release of Bill C-69. I have recently added some specific proposals for amendments to my blog. You will find a link in my written submission. In the time remaining, I'd like to highlight a few key issues and invite members of the committee to follow up during Q and A.

When CEAA was drafted in the 1990s, we had limited experience to draw on. As a result, it's not surprising that the original act was largely enabling, with broad discretion to make decisions on the key aspects of the process, from the scope of the project, the scope of assessment, public engagement, process options, and the final project decision up to follow-up. We now have 25 years of experience with a legislated federal EA process to draw on, and we need to implement lessons from that experience in the new act.

What have we learned? First, we have learned that broad discretion without direction in law over time leads to bad decisions. This is the case in spite of good intentions at the time that legislation is passed, and is at least partly a reflection of the fact that the purpose of the assessment process is to push decision-makers out of their comfort zone to look beyond the obvious short-term benefits of proposed projects to the full range of often less obvious longer-term impacts, benefits, risks, and uncertainties. This is hard, and the more discretion is built into the process, the greater the risk that the more obvious short-term benefits will win out over the long-term impacts.

The second thing that we've learned is that we can now offer strong statutory and regulatory direction to those tasked with making key decisions in the assessment process to better guide those decisions. If we draw properly on the experience, we can establish an appropriate mix of statutory and regulatory criteria to properly guide the exercise of discretion while leaving appropriate discretion where it is needed.

We also have to make good choices about when decisions should be made by ministers, when they should be made by cabinet, by the agency, and when by an independent tribunal or the courts. We need to build into the process opportunities for refining the statutory direction, and particularly regulatory direction over time. An appeal process to a specialized tribunal tasked with reviewing key decisions throughout the assessment process could ensure the quality of those decisions. Such a tribunal, by the way, could also serve to recommend improvements to regulatory direction over time.

Let me start with a general observation about Bill C-69. My overall reaction is that the bill generally provides the powers needed to implement a good assessment process, but too much of that power is left to the discretion of decision-makers—discretion without adequate direction. What Bill C-69 needs is a general rethink, away from merely empowering decision-makers, to instead properly directing decision-makers toward an effective, efficient, and fair process, and a good outcome. We need the process to demonstrably and adequately inform decisions, not justify decisions already made.

To achieve this, broad criteria for decision-making should be set out in the statute itself. Proposed sections 22 and 63 are a step in the right direction in this regard, but they need to be strengthened, in two ways, in particular by replacing considering with “based on”, and by requiring them to be refined through regulations. The criteria need to be refined through the regulations.

Similar statutory criteria are warranted in other areas, such as triggering, key process decisions, and follow-up. Beyond those broad criteria that should be in the statute, there needs to be more detailed principles, criteria, and guidance set out in regulations. That will require adjustment over time, which is why they should be in regulations.

Such criteria should be mandated in the statute but set out in regulations. This guarantees that we will have the benefit of the criteria while allowing the flexibility that regulations provide in making adjustments over time. Key steps in the assessment process that are largely discretionary and need this kind of direction include the following: when federal project assessments, strategic assessments, or regional assessments are to be carried out; determining the scope of the project or proposal to be assessed; determining the scope of the assessment; process decisions; project decisions; and follow-up decisions.

To be very clear, it is not enough to have the power to pass regulations in these areas. These regulations must be required in the statute. My plea to you during the clause-by-clause review is to do three things. Number one, identify these discretionary provisions throughout the bill and add general statutory criteria where possible. Number two, include clear language wherever there is discretion in the statute to require the discretion to be exercised in line with direction to be set out in regulations. Number three, include mandatory language—I would suggest in proposed section 112—to develop regulations to guide the exercise of discretion in each of these areas.

Finally, in the time remaining, let me briefly highlight three of the more specific topics I addressed in my written submission, starting with panel reviews. I think when we design the panel review process under this new act, we have to keep in mind that this is the highest level of assessment and is preserved for major projects. Projects assessed by panel review tend to involve billions of dollars in investments, and Canadians will be stuck with the consequences of the outcomes for decades. I'd be happy to talk about the Lower Churchill assessment as an example of that. Whatever compromises we make to other process options, we cannot compromise on the quality of the assessment for panel reviews. I would suggest five specific things in that regard.

First, we should replace the generic 600-day timeline with a requirement to set project-specific timelines at the conclusion of the planning phase. In some cases, that may be shorter. In other cases, it may be longer. Second, we need to ensure that panels get appointed earlier and are involved in the scope determinations and information-gathering decisions. Third, we need to ensure that panels have the budget and the power to hire experts and analysts. That is particularly important now with a broader scope. Fourth, we need to ensure that panel reports include conclusions and recommendations that properly inform determinations under proposed section 63 and the public interest finding. They can't just summarize the findings on the factors in proposed section 22. Finally, we need to ensure that transparency and accountability for decisions that do not follow the recommendations of review panels. The discretion should be there in my view, but there needs to be transparency and accountability when recommendations are not followed.

The second area is follow-up. In the interest of time, I will just say that this has been one of the most neglected parts of the assessment process over the last 25 years, and I think we're paying the price for this. We need a process that is transparent at the follow-up stage, and we need to make sure that we gather the information necessary to learn from follow-up in terms of ensuring compliance, adapting conditions for approval, and learning for future assessment. Again, I'm happy to talk more about that.

The final point I will make is with respect to strategic and regional assessments. There's been agreement among all major non-governmental stakeholders for at least 15 years now—since the 2003 review—that strategic and regional assessments are critical to improving the effectiveness, efficiency, and fairness of federal project assessments, but we can't seem to make meaningful steps forward in spite of this consensus. I think the act as currently proposed needs more clarity on when these higher level assessments will be required, on the process, and on how the results will be used.

I will end here. I thank you very much and look forward to your questions.

[The Chair (Mrs. Deborah Schulte (King—Vaughan, Lib.)), Liberal, Deb Schulte]

Thank you very much.

I will just remind everyone that we're on television. Welcome, everyone. Today we will be continuing our study on Bill C-69.

I want to welcome our guests today. We have Meinhard Doelle from the Schulich School of Law from Dalhousie University. We have, from the Federation of Canadian Municipalities, Brock Carlton, Chief Executive Officer, and Matt Gemmel, Acting Manager, Policy and Research. We have, from the Ontario Federation of Anglers and Hunters, Matt DeMille, Manager, Fish and Wildlife Services. We have, from the Quebec Environmental Law Centre, Karine Péloffy, Managing Director. We have from Teck Resources Limited, Sheila Risbud, Director, Government Affairs, and Mark Freberg, Director, Permitting and Closure.

Thank you all very much for being here today.

You each have 10 minutes and then we'll move into questioning. We'll hear from all of you and then we'll go to questions. Who would like to start?

Mr. Doelle, go ahead.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I'm very grateful for that. Thank you to the government side.

Margot, it's Elizabeth May here, your MP. I want to be very concise because this time has been given to me.

The mandate around what Dominic LeBlanc is doing is under the rubric of restoring lost protections. I don't want to take us out of Bill C-68 too far, but we know that we lost those protections in Bill C-38, which also took out one of the critical triggers that I think came to mind when you were speaking of how you look at small project, what you look at, the incremental, and whether we can look at the cumulative.

I don't know if you want to speculate about this, but if the committee studying Bill C-69, the impact assessment piece, were to restore the trigger that used to be there in section 35, would that address concerns that you're trying to amend through Bill C-68 or not?

Did that question make sense?

[Chief Harold St-Denis]

I would like to discuss strengthening the protection over our traditional waterways within Bill C-69. Wolf Lake First Nation is a non-reserve community and, like many first nations communities, assigns great importance to the protection of our waterways.

The 2012 amendments to the Navigable Waters Protection Act affected first nations from coast to coast to coast. As I mentioned earlier, the free and unencumbered use of the waterways on our territories is critical to our culture and ability to exercise a range of section 35 rights, and for other important economic purposes like running our tourism businesses.

Recently, in your parliamentary standing committee hearings, Kelly Block asked the honourable Transport Minister Garneau to provide an example post-2013 where navigation was negatively impacted due to the Navigation Protection Act being in place, and said that not one witness throughout the regulatory review hearings in 2016-17 was able to make a comment.

What Ms. Block outlined in our view was the failure in consultation and setting adequate timelines for the legislative process. Both Kebaowek First Nation and Wolf Lake First Nation were not aware of the hearing opportunity, but did describe, in our written comments on reforms to CEAA 2012 and the Navigation Protection Act, how navigation was impeded on not one, but two, locations on our territory since 2013.

These cases were not on unprotected waterways, but even worse, were on an actual scheduled waterway under the new Navigation Protection Act, namely the Ottawa River, the main highway of our nation.

The following examples demonstrate that this new idea of scheduling waterways really provides no protection for navigation under the act.

Our first example is a three-metre chain-link fence installation on the historic La Cave portage by Ontario Power Generation, while they conducted minor maintenance activities at the Otto Holden Generating Station. Here, the OPG took the liberty to install a permanently locked fence installation on our historic portage. This was without consultation or notice, and was followed by OPG's subsequent refusal to grant continued access for our community members or our canoe business clients navigation without the presentation of a third party insurance. The gate remains in place, and the issue is unresolved.

The second incident was at the Public Works Timiskaming Dam Complex replacement project on the upper Ottawa River at Long Sault Islands where Wolf Lake First Nation operates a branch of our Algonquin Canoe Company outfitting business. Here, in 2013, without the federal government acting as it should have on a major project's interprovincial project designation provisions within the legislation, and the Minister of Environment at the time refusing our request for project designation, the Public Works real property branch refused to engage in a framework for consultation and accommodation to guide decision-making regarding this development. Subsequently, all access to the lower river was impeded for portage for Algonquins and non-Algonquins alike, for over a year.

Furthermore, the Public Works-led environmental effects evaluation under CEAA 2012 completely scoped both our first nations communities and threatened lake sturgeon species completely out of the process, as Transport Canada, NEB, and DFO issued authorizations without consulting us. Once again, the watershed and our rights were impacted by this development.

The great watershed of the Kitchissippi River is an ancient trade and travel route throughout the Algonquin nation, as are the shores, islands, and portages along the route. We ask this government, why was our navigation impeded under the Navigation Protection Act on a scheduled waterway? What navigation protection assurances do we really have in the scheduling of waterways?

Furthermore, it is unclear to us whether the working group of ministers will ensure the crown is meeting its constitutional obligations with respect to aboriginal and treaty rights within this new legislation and ongoing regulation, to provide innovative, effective, enforceable, and specific indigenous and environmental protections to the Ottawa River.

For example, Akikodjiwan is a key sacred site to our peoples. Here in Ottawa, it is also known as Chaudière Falls. Akikodjiwan was, and continues to be, a site of prayer, offerings, ritual, and peace. These activities are important work for us as custodians of our waterways and communities, as we redefine and reconcile the interrelationship between our people and the river.

We have closely examined the threats to Akikodjiwan and the Ottawa River watershed and have made recommendations to both the National Capital Commission and the Canadian Heritage minister,Mélanie Joly, that a much higher priority must be given to recognize and preserve Akikodjiwan as a key healing point for Algonquin peoples and all cultures here in the national capital region.

Therefore, as Algonquin leaders, we are together exploring all possible options that can address the legislative shortcomings impacting the protection of our sacred waterways and jurisdiction, including but not limited to the pursuit of separate legal rights for the waterways.

Wolf Lake and Kebaowek introduced a resolution at the AFN national assembly to give legal recognition for the Kitchissippi River, the Ottawa River, that explores the concept of legal identity for the watershed as a means of protection. It's attached for your reference later.

In terms of our recommendations, Bill C-69 remains overly politicized, with the minister making final decisions on the scheduling of waterways or designation of projects, and the cabinet making final project decisions after a full impact assessment process. Based on our experience, this would leave little incentive for us to participate. Similar to what we are discovering within this process to date, why put all this work into it if the government already has its mind made up?

Prime Minister Trudeau specifically promised to return lost protections to waterways in this country. That is not necessarily going to happen and is entirely at the discretion of the minister in scheduling new waterways for protection. We are requesting that the act guarantee in writing that it will schedule any waterway that first nations request to be scheduled. Without this amendment, we have little choice but to pursue legal identity for the Ottawa River watershed, because as far as we are concerned, in our view all protections have effectively been lost.

We support the opportunity that the impact assessment act is to “take into account” indigenous knowledge, along with scientific information and community knowledge. However, only “traditional” knowledge is a required factor to be considered in the environmental assessment, and the act does not go far enough to require that assessments and decisions be based on the broader scope of indigenous social, ecological, and cultural knowledge.

[Chief Lance Haymond]

As part of true modernization of the act, we ask you to revisit the act's original sources and acknowledge how the act's evolution over the past several decades has materialized against us. Stronger language in amendments pertaining to ecological and first nations rights protection is imperative. Otherwise, we appeal to this committee that this bill is a failed attempt at meaningful consultation with first nations communities and at modernized legislation as set out by this government.

I conclude these introductory remarks with no disrespect to your committee. Your work is both urgent and critical to all first nations in Canada. In fact, the Assembly of First Nations has a special assembly next week in Gatineau on this topic. I would urge you in all of your work leading to your final amendments to Bill C-69 to be resolute and determined that this piece of future legislation does operationalize first nations' perspectives, consistent with the Truth and Reconciliation Commission's calls to action and with the United Nations Declaration on the Rights of Indigenous Peoples. Modernized legislation must not further disparage or trivialize our assertion of territory, our environmental knowledge, our constitutional rights, and the implementation of UNDRIP.

Clearly, there is a strong link between reconciliation and environmental assessment and the protection of our rights on our territories, a link that is becoming clearer to us every day. We see our youth interested in environmental science, and Algonquin socio-ecological knowledge is growing. We see the need to develop an Algonquin institute for environmental assessments on our territory. However, our terms for reconciliation must be supported in writing in this legislation and policy.

The problem is that government is defining what reconciliation relations are as a priori to extinguishment of rights and title under a planned federal legislative framework to transition bands currently under the Indian Act into self-government agreements, or into comprehensive claims agreements or modern treaties, which the government regards as self-determination. First nations' rights and title cannot be undermined by the colonial interpretation of reconciliation.

Reconciliation should be a stated purpose within the legislation, and it should further Canada's commitment to implement UNDRIP, including our right to our own interpretations of self-determination on our territories.

Furthermore, the legislation must be consistent with the protection of aboriginal rights and title recognized and affirmed by section 35 of the Constitution Act, 1982.

In terms of our second item, implementing the Algonquin institutions and the nation-to-nation relationships, we view that our nations' values, interests, and needs can be marginalized on a regional environmental assessment table or board where our constitutional rights and interests are diluted and/or ignored by the more dominant actors. Our constitutional provisions are unique and should be treated as such.

In our presentation to the expert panel, we introduced the concept of an Algonquin institution to encourage Algonquin involvement in Canadian environmental assessments in order to pay more careful attention to the matters that are of Algonquin concern. This is desirable not only to combat the development biases of proponents and government agencies that we have experienced under CEAA 2012, but also to explore the greater role that indigenous institutions can play in the economics of environmental impact assessment and ecosystem service planning, including evolving markets for project monitoring and other environmental services.

We request that Bill C-69 be amended to authorize nation-based indigenous institutions as a governing body to exercise powers or perform duties or functions in relation to impact assessments under this act, not excluding Indian Act bands with indigenous jurisdiction over unsurrendered title territories.

In terms of troubleshooting provincial environmental legislation, rather than relying on it for assessments and information gathering, I would like to bring your committee's attention to the Government of Quebec's recent reform of its Environment Quality Act by way of the adoption of Bill 102 on March 23, 2017. You should be concerned that, for a bill having potentially such an important impact on our aboriginal title and aboriginal rights, first nations in Quebec were not consulted. Furthermore, the new consolidated version of the EQA makes no reference whatsoever to the rights of first nations in Quebec.

This is shocking to us, that 35 years after the recognition of our rights in the Constitution of Canada and after years of jurisprudence, no reference is made to our rights, nor to the need to consult and accommodate, and in some cases, obtain our free, prior, and informed consent, despite the fact that we are often the main communities impacted by damages done to the environment.

We have aboriginal rights applicable in Quebec and that needs to be reflected in legislation and any directives, in order for our meaningful participation in environmental impact assessment and review processes in Quebec.

In closing, I advocate for legislating clear and mandatory protection and enhancement of section 35 rights in both federal and delegated review processes.

Chief St-Denis will now conclude with a couple of items.

Thank you.

[Chief Lance Haymond, Chief, Kebaowek First Nation, Wolf Lake First Nation]

Thank you very much, Chief St-Denis, for the introduction.

Good evening, Madam Chair and distinguished committee members. I appreciate the opportunity to be here to discuss this important matter.

As chief of my community, Kebaowek, I represent approximately 1,000 Algonquin members. Although our reserve lands are in Quebec, our traditional territory lies on both sides of the Ottawa River basin, where our members live, work, and exercise aboriginal rights including title in both Ontario and Quebec. Our jurisdiction is transborder.

Before starting, for the record I would like to address some procedural concerns in regard to this hearing. The short time frames, short notices, insufficient funding, and very tight timelines for aboriginal communities like my own have made it very difficult to present comments.

For your reference, Kebaowek and Wolf Lake first nations did prepare comments on all environmental and regulatory environmental act reform requests by your government and participated in two expert panel sessions. We also fully participated in the AFN's technical review of Bill C-69, and we give our full support to its 25-page submission and clause-by-clause recommendations for amendments.

Regardless of our combined effort, Bill C-69 appears to have not included our key messages and resorted to a matter of tweaking CEAA 2012 over modernization. In our view, true modernization of the act does require reconciling the wrongs of previous legislation and policies that have worked against indigenous people in Canada.

[Chief Harold St-Denis]

No one has a copy of the document I'm going to read, so we'll take our time to try to make sure that we get all our points across.

First, I would thank to thank you, Madam Chair and committee members, for the invitation to speak to the standing committee on making amendments to Bill C-69.

My name is Chief Harry St-Denis, and I'm from the Wolf Lake First Nation. I'm here today with Chief Lance Haymond from the Kebaowek first nation. Today we represent two Algonquin first nations in Quebec.

We have provided a written brief as per the deadline, as I mentioned, with a number of recommendations and amendments for your review. I understand you haven't had time to read our brief due to the rushed timeline surrounding this push towards legislation, and as such, I will provide you with some background.

The Algonquin nation is made up of 11 distinct communities recognized as Indian Act bands. Nine are located in Quebec, and two are in Ontario. The Algonquin nation has never given up the aboriginal title to our traditional territory. This includes all the lands and waters within the Ottawa River watershed on both the Ontario and Quebec borders. Aboriginal title is held at the community level within the Algonquin nation. Our two first nations, along with the Timiskaming first nation, assert un-extinguished aboriginal rights, including title under section 65 of the Canadian Constitution.

Inherently, our lands and waters are part of the Anishinaabe Aki, a vast territory surrounded by the Great Lakes in North America. For centuries we have relied on our lands and waterways for our ability to exercise our inherent rights under our own system of customary law and governments known as Ona'ken'age'win. This law is based on our mobility on the landscape, the freedom to hunt, gather, and control the sustainable use of our lands and waterways for future generations.

That is how Europeans discovered us, as a well-established society in control of the Ottawa River watershed. We had a vast trade network supported by our own economy that included levying tolls on canoe flotillas that descended the Ottawa River from Morrison Island. We were not only the gateway to the continent but the technology provider of the only craft that could navigate the rivers ahead. In no other part of the world have water and the canoe had such a huge influence on both Algonquin culture and the development of its history post-European contact.

What we once knew and shared on our territories under treaties of peace and friendship with Europeans has been abused. Our ancestors never contemplated our territories to be industrial, nor has government legislation ever adequately protected us from industrial development. We continue to regard ourselves as keepers of our lands and waterways, with seven generations' worth of responsibilities for livelihood, security, cultural identity, territoriality, and biodiversity. This sentiment has been expressed by many other first nations to your committee.

These responsibilities stem from a history of traditional knowledge and governance on the land that provided our Anishinaabe identity as opposed to how we have been recreated by crown governments through such legislation as the Canadian Indian Act.

In response to your task of gathering information for Bill C-69 that ensures that environmental assessment legislation is amended to enhance our consultation, engagement, and participatory capacity in protecting our lands and waterways, one of our guiding recommendations is for your committee to look beyond the act itself and take into account other pieces of legislation and policy that further weaken aboriginal peoples' capacity to participate in the resource development review process, including and not limited to the federal comprehensive claims policy.

I am concerned here that various pieces of legislation, including this current proposal to combine previous legislation under an impact assessment act, will come together as an assault on indigenous sovereignty and protection of our land, air, and water. This cumulative policy effect could intentionally strip environmental protections across the country as resource development proceeds and colonialism completes itself.

Therefore, our nations are here today to seek a different but joint legislative approach with your government that provides a strong foundation for recognition, protection, and reconciliation of our inherent and constitutional rights and interests that is consistent with the articles of the United Nations Declaration on the Rights of Indigenous Peoples, now adopted by your government.

Today, in our presentation, Chief Haymond and I intend to give you a quick profile of our communities and our experiences related to environmental legislation on our territory, and briefly outline the problems we still have regarding Bill C-69. Specifically, we are asking the committee to make amendments to Bill C-69 concerning the following items: reconciliation; implementing indigenous institutions and a nation-to-nation relationship; troubleshooting provincial environmental legislation rather than simply relying on it; strengthening protection over our traditional waterways; and implementing indigenous knowledge and impact assessment.

Chief Haymond will now speak on three items, and then I will conclude.

[Chief Roland Willson, West Moberly First Nations]

Thank you for requesting us to come and present.

I am Chief Roland Willson from West Moberly First Nation. I am located in northeastern B.C. My nation is Dunne-za. We are the Dunne people of northeastern B.C., the heart of oil and gas, forestry, coal mining, wind farms, large hydroelectric projects, Site C dam—I hope everybody here knows what that is. Our presentation was put together really quickly to talk about the changes to Bill C-69.

Thank you for inviting us here and for considering what we have to say. Part of my presentation is the considerations that got us to this point in our territory. I know I've got 10 minutes, so I'm going to be going through this really fast.

The title of our presentation is, “Neither “Subject To, Or Inferior To, The Crown's Right” To Sustainability”. This comes out of our court case that we had with B.C. and a mining company in northeastern British Columbia. The province had proposed a mine in the area of critical wintering caribou habitat, the Burnt Pine caribou herd, which, because of that activity, is now extinct. The caribou in the North Peace are considered to be endangered now—they're on the Species At Risk Act—and there's not supposed to be any kind of activity like that happening. The court in British Columbia stated that the crown's responsibility to develop does not supersede the first nations right on that; they're equal. They're supposed to take that into consideration when they're doing their permits and things like that.

The third page is the treaty territory. Treaty 8 is the largest, most comprehensive of the historic treaties. It encompasses B.C., Alberta, Saskatchewan, and part of the Northwest Territories. The Dunne-za people have been on the ground in northeastern B.C. for over 13,000 years We hunted the mammoth that lived there, so we've been there and are continuing to be there and we plan on staying much longer. The Dunne-za people are dreamers—that's our culture—and profits are very much land-based; small family groups move through the territory. In 1914 the West Moberly First Nations adhered to Treaty 8 under the Hudson's Hope band. We became the West Moberly First Nation in 1974 when we separated from the Hudson's Hope band and became the Halfway River First Nation and the West Moberly First Nation, reasoning we were in two separate spots, and it was easier for us to maintain our own identity that way.

Treaty 8 promises us a number of things. Of those promises are the oral promises that have been taken into consideration. One of those oral promises is free from white competition. It gets talked about quite a bit. The other big one is no forced interference, which was used from the commissioner's report in 1899 in the Mikisew Cree court case as the oral promises are part of the context of the actual treaty.

Page five is the outcomes of the environmental assessment. We've been poring over the changes recommended from the EA document to what is now considered to be Bill C-69. It's pretty much the same document, just different words. When I said we thank you for your considerations, now I'm going to take you through the considerations that have got us to this point.

Page 6 is entitled “Air We Cannot Breathe”. Throughout our territory, we have signs up all over the place about sour gas, and oil and gas activities here and there.

Page 7 is entitled “Fish We Cannot Eat”. The image on the left is my son. That's the first fish he caught, but we caught it out of the Williston Reservoir, and the Williston Reservoir is contaminated with methylmercury. All of the fish in the reservoir system have high concentrations of methylmercury, and a fish this size is very unhealthy to eat. Typically we would have released that fish, but he snagged it so bad that it was damaged and we had to take it and put it in.

You can't see the pictures on the right unless you have the digital copy. There's a map that has red lines through it. Those red lines are the extent of the mercury filtration system in the Williston Reservoir. On the right-hand side, that light blue area is where the W.A.C. Bennett Dam is. In 1968 they commissioned the dam, and in 1969 they went to full pool on the Williston Reservoir and created what they call the largest man-made lake in western Canada. I think it's the third-largest in North America. The whole thing is full of methylmercury. All of the fish in it are contaminated and we can't eat them.

Page 8 is entitled “Land we Cannot Use to Hunt or Trap”. There are signs throughout the whole area that restrict our activity in those areas. There's no hunting and shooting by residents. There are camps everywhere in the bush out there.

Page 9 is entitled “Animals We Cannot Eat”. The image on the left was a female caribou. It's identified as a species-at-risk animal, and it was eating contaminated soil in a lease site that hadn't been cleaned up. She died. The image on the right is a species-at-risk protected bison that got into a well site that was not fenced, and got her head stuck under the pipes. They had to put her down in order to get her out of there. That was a species-at-risk animal, and we're not allowed to hunt these animals.

Page 10 is entitled “Water We Cannot Drink”. Areas where rivers and waterways are not affected by the Williston Reservoir and the methylmercury have coal mines on them, with high levels of selenium being dumped into them. There are signs throughout the territory about being careful not to drink the water or eat the fish because of the high levels of mercury there.

Page 11 is entitled “Forests we Cannot Use To Camp”. Throughout the territory, signs are up that restrict us from camping through our areas. On the right, in the image of the cabin on the edge of the bank, that's the Williston Reservoir, and sloughing has been happening since they flooded and went to full pool on the Williston Reservoir. When they first considered the Williston Reservoir, they said this would eventually stop. It hasn't stopped. It has been 40 years and it's still sloughing there. New debris goes into the water every year. That cabin has since fallen into the reservoir.

On page 12, I apologize for this, but this is our reality. This is a dead caribou. This is the last male caribou of the Burnt Pine caribou herd. When the province issued the mining permit for the mining company to go up there...an illegal permit.... They didn't actually give them the permit. They told them to go ahead and get started and that they'd get them the permit, and they never did. They went up there and built this big pit, and then when we got involved and the court case ensued, they didn't claim the pit. They left the pit there. There were two caribou left up there, and the male of the two got too close to the edge of the pit and fell into the pit and died. We discovered him that spring at the bottom of the pit. He fell far enough that he actually broke one of the antlers off his head.

That Burnt Pine caribou herd has now become extinct. When we went to court to try to protect the Burnt Pine caribou herd, from the provincial analysis of the caribou in the region, there were 425 caribou left in the southern Peace area. Now there are 219 caribou. This is after our court case and everything that we've been doing to try to protect the caribou. The West Moberly First Nations and the Sto:lo Nation, our next-door neighbours, have come together and we've been running a penning program, a maternity pen, where we have one of the herds, the closest to the communities, going from 19 caribou back up to 70 caribou. We're doing a recovery program ourselves on that because we couldn't wait for the federal and provincial governments to come together and do this.

Now the government has piled in. I don't know if anybody has heard that there's a herd in the south end of the province, called the South Selkirk herd. They're believed to be functionally extinct now. There are only three left and they're all females. This is all since the planning started. This is the state we're in here.

In the beginning I talked about the oral promises and the no forced interference with everything. We can't hunt the caribou because there are not enough of them there. The federal and provincial governments, in their recovery program, are not recovering the caribou to levels of harvesting; they're recovering to levels of sustainability. They want to stop the wipeout of the caribou, but they're not curtailing development and they're not doing any recovery program of the land, to rebuild the habitat zones. They're flying around in helicopters and shooting all the wolves and protecting the high-elevation habitat, not understanding that in the spring the caribou come out of the mountains and back down into the valley to live. They're being annihilated down there.

We went from having a sea of caribou. Caribou are considered to be an animal that we could always go to the mountains and get. They were considered to be a convenient food. We'd want to get a moose or an elk, but if we couldn't find them, we could always go to the mountains and find a caribou. It's like the fish. If you were hungry and you couldn't find anything else, you could always go to the river or the lake and catch a fish. Right now—

[Ed Fast, Conservative, Abbotsford, BC]

Can you tell me what in this bill, Bill C-69, would actually speed up that process?

[Peter C. Watson]

Maybe I'll mention some of the things that we have already begun doing. I believe they're consistent with and supported by Bill C-69.

We recognized some time ago that we needed to be more proactive with our engagement with stakeholders across the country and participants in our hearing processes. Engagement with Canadians is necessary and appropriate, and we note that this feature is enabled and expected under Bill C-69.

I think regulators can also take steps to increase transparency associated with what they do. I would point to one of the initiatives that has been taken on both the Trans Mountain expansion and the Line 3 replacement project with our indigenous monitoring and advisory committees, where we're working collaboratively with them to be completely transparent regarding our activities on life-cycle oversight and how things are done that actually ensure safety and reduce harm associated with the potential effects of an operating pipeline.

Through that process, we're learning how to work better together and engage within first nations and the Métis Nation to ensure that we're really transparent and effective in our engagement with them, particularly around life-cycle oversight matters.

There are a number of things that I think we've been attempting to do, and I see that they will be able to be continued as we move forward.