Bill C-15 (Historical)

United Nations Declaration on the Rights of Indigenous Peoples Act

An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples

This enactment provides that the Government of Canada must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples, and must prepare and implement an action plan to achieve the objectives of the Declaration.

[Brian Schmidt, President and Chief Executive Officer, Tamarack Valley Energy, and Board Member, Canadian Association of Petroleum Producers]

Thank you to the standing committee for the opportunity to present today.

I'd like to acknowledge that I'm speaking from the traditional territories of treaty 7 and the Métis Nation of Alberta, region 3. My colleague, Ms. Shannon Joseph, is speaking from the traditional Algonquin territory.

My name is Brian Schmidt, Aakaikkitstaki. I am the CEO of Tamarack Valley Energy, and I am here today on behalf of the Canadian Association of Petroleum Producers in my capacity as chair of our indigenous affairs policy group.

I have also been in business with the Kainai people for decades as an operator of oil and gas drilling rigs on the reserve land of the Blood Tribe. I was proud to be honoured a few years ago with the title of honorary chief of the Kainai.

CAPP first publicly voiced its support for UNDRIP back in 2016 at the same time the federal government did. We continue to support UNDRIP implementation in a manner consistent with the Canadian Constitution and law. For the people of our association, creating mutually beneficial partnerships with indigenous people, communities, businesses and employees is central to how we operate and to our role in reconciliation.

Today the oil and gas industry procures more from indigenous businesses, than any other industry in Canada and—if I may say so—far more than the federal government as a whole. In 2017-19, an aggregate spend with indigenous communities was $5.9 billion. In 2019, indigenous procurement was 11% of our procurement. We are also one of the largest employers of indigenous people, indigenous men and women. They earn, in our industry, the highest wages compared to any other sector in the country.

These relationships and opportunities have been one of the strongest paths for building indigenous prosperity in Canada. There are indigenous groups that are looking to purchase the Trans Mountain expansion pipeline, and there are pretty much new equity deals being announced every month with indigenous ownership in oil and gas projects.

Finally, indigenous communities across Canada earn hundreds of millions of dollars each year from royalties and other benefits through the development of resources on reserve lands. What this means concretely for my indigenous colleagues is that resource development provides important opportunities to address poverty and advance economic self-determination, and I've seen that first-hand.

We aren't here to ask you to choose between our industry's interests and indigenous people's interests. I'm here to say firmly that I believe that we have the same interests in this matter. We want indigenous rights to be protected, and we also want to have a healthy and prosperous oil and gas resource sector so that we can all benefit from a strong, Canadian economy.

Bill C-15 as written will create more uncertainty for our industry and resource development as a whole in Canada. This will mean that we cannot attract investment from capital markets and that good projects, including one supported by the majority of indigenous communities, will not proceed. This will harm the oil and gas sector, and we want to avoid that. More importantly, it will also harm the indigenous communities who value resource development as an important means of creating jobs and revenues. Human rights equals human economic development.

The Financial Post calculated that in the last five years we've lost 150 billion dollars' worth of energy projects in Canada, abandoned or suspended because investors would not take the risk of financing them. Just last week, we heard about Chevron pulling out of Kitimat LNG, which had tremendous indigenous involvement. If you do the math, 11% of indigenous procurement on $150 billion on projects means $16.5 billion of lost income to indigenous people. The lack of clarity and uncertainty has real consequences in terms of people's livelihoods and opportunities for prosperity and self-determination.

What industry is asking is to not leave things undefined. Make it easier for us to do business with indigenous communities, not harder. CAPP has some specific amendments that would help alleviate the major concerns to our industry and investors on Bill C-15. These include, first, clarifying that Bill C-15 does not have an immediate application as domestic federal law but, rather, establishes a process for the review of existing Canadian laws; and second, defining free, prior and informed consent for the Canadian context.

In our understanding, FPIC is a process, not an outcome, and as many—including Minister Lametti—have said, it is not a veto. We have a suggested definition that reflects this and that is consistent with principle six of the federal government's 10 principles for the implementation of UNDRIP. It is also consistent with the federal and provincial governments' retaining their authority to make final decisions.

The final one is ensuring that the action plan is the main vehicle by which to make UNDRIP practicable in Canada, co-developed with indigenous people and with the intention that stakeholders, such as ourselves, would be able to engage in dialogue where appropriate to our industry. The action plan process should be adequately resourced and create clear accountabilities.

Thank you.

[France-Isabelle Langlois, Executive Director, Amnistie internationale Canada francophone]

Mr. Chair, vice-chairs, members of the Standing Committee on Indigenous and Northern Affairs, good morning.

I would like to begin by acknowledging that the offices of Amnistie internationale Canada francophone are located on unceded indigenous territory.

Thank you for this invitation to Amnistie internationale Canada francophone to participate in the hearings on Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, hereinafter referred to simply as “the declaration”.

The adoption of the declaration into various Canadian laws is a priority human rights issue for Amnistie internationale Canada francophone, and anglophone Amnesty International Canada. Amnistie internationale actively lobbied for the adoption of the declaration by the UN General Assembly in 2007, and both Canadian chapters lobbied for Canada's adherence to the declaration until it was achieved in 2010. We have intervened in several forums that have taken place in Canada, and each time we have reiterated the importance of the effective implementation of the declaration in Canadian law.

The various inquiries, whether it be the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, or the Viens Commission, to name a few, have all recommended the implementation of the declaration. This is principle number 1 of the Truth and Reconciliation Commission of Canada: “The United Nations Declaration on the Rights of Indigenous Peoples provides the framework for reconciliation at all levels and across all sectors of Canadian society. ”

We previously supported Bill C-262, sponsored by NDP MP Romeo Saganash, which had the same purpose as Bill C-15. Unfortunately, this bill could not be passed before the 2019 election was called. By the same token, we welcomed the BC government's announcement in 2019 that it would implement the declaration in its legislation.

On March 10, the Hill Times published an open letter signed by more than 200 predominantly indigenous organizations and individuals and supported by Amnistie internationale calling for the passage of Bill C-15 before the end of the current session of Parliament.

As you can see, Amnistie internationale is in favour of Bill C-15. It is long overdue and it is long past time for Canada to implement the declaration. It is no longer time for surveys and studies, but for action. Civil society has been working for 13 years to make the declaration a reality. Indigenous peoples in Canada have suffered and continue to suffer the oppression of colonization. The Parliament of Canada has an historic opportunity to advance reconciliation with indigenous peoples.

The United Nations Declaration on the Rights of Indigenous Peoples is a global consensus instrument on human rights. It defines the minimum standards necessary for the survival, dignity and well-being of indigenous peoples. The implementation of these standards is essential to improving the lives of indigenous peoples in Canada and around the world, and to meeting Canada's formal and pressing human rights commitments. This bill is far from perfect. But it is nonetheless of the utmost importance. We cannot afford to see such a critically important piece of legislation slip through the cracks again.

Amnistie internationale would have liked to see issues specific to indigenous women more apparent in Bill C-15. It is true that the national survey is mentioned, but that is not enough. Indigenous women in Canada face double discrimination because they are both women and indigenous. Therefore, it is important that indigenous women be included in all stages of the implementation of the bill and that the action plan pay particular attention to their inclusion. They must be given justice and redress for all forms of discrimination, abuse, injury and attempts on their lives that they continue to suffer. Moreover, they must be part of building a just and equitable Canada for all its peoples.

Amnistie internationale would also like to see the mechanisms for consulting and working with indigenous peoples made more explicit in Bill C-15. In our view, several questions remain: who will be consulted, how and when?

Finally, Amnistie internationale would like to see the bill passed, an action plan developed, and Canadian laws harmonized with the declaration according to the minimum principles of international human rights law.

The declaration contains over 20 provisions affirming the right of indigenous peoples to participate in decision-making, including article 3, which addresses self-determination; article 4, which addresses the right to self-government or autonomy; article 18, which addresses the right to participate in decision-making; article 23, which addresses the right to be actively involved in decision-making; article 19, which addresses the obligation of states to obtain their free, prior and informed consent; articles 32.2, 36.2, and 38, which address the obligation to consult and co-operate with indigenous peoples; articles 22.2, 27, and 31.2, which address the obligation to take measures in concert with indigenous peoples; and article 26.3, which addresses the obligation to respect the customs of indigenous peoples.

Notwithstanding the few reservations we have just expressed, Amnistie internationale calls on members of the House of Commons and members of the Senate to act diligently, in a non-partisan manner, and in accordance with Canada's commitment to indigenous peoples. We call on members of the House of Commons and members of the Senate to be guided only by the highest standards of human rights and human dignity, so that Bill C-15 is passed by the end of the parliamentary session.

Thank you.

[Paul Joffe, Lawyer, As an Individual]

Good afternoon, honourable committee members.

I'm speaking from Saint-Lambert, Quebec, which is on the traditional territory of the Mohawk people.

I wish to acknowledge the crucial work of former MP Romeo Saganash. As confirmed by the federal government, Romeo's private member's bill, Bill C-262, serves as the floor, but not the ceiling, in moving forward with Bill C-15. We must now build upon the standards of Bill C-262.

Indigenous peoples in Canada continue to face human rights violations. These include, inter alia, racism and other forms of discrimination; dispossession of lands, territories and resources; impoverishment; lack of essential services; food insecurity; missing and murdered women and girls; and forced assimilation and destruction of cultures and languages. In too many instances, intergenerational trauma from residential schools continues to be experienced. It's time for real change.

In this context, it is worth noting that, to date, the UN declaration has been reaffirmed at least 10 times by the UN General Assembly by consensus. No state in the world formally opposes this human rights instrument. This reinforces its significance and legal effect.

I would like now to address the meaning of free, prior and informed consent—or FPIC—as affirmed in the UN declaration, particularly in the context of proposed developments in indigenous peoples' territories. With respect to FPIC, the term “free” means there must be no coercion or manipulation. “Prior” means that consent must be obtained in advance of the activity being approved. “Informed” means that information must not be withheld, misleading or inadequate. Without these three FPIC elements, there would not be valid consent in international law or Canadian law.

FPIC and other provisions in the UN declaration are relative and not absolute. Article 46(3) of the declaration includes one of the most comprehensive balancing provisions in any international human rights instrument. It states:

The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

These are the same core principles as in the Canadian and international legal systems. These are also the same principles that have been denied to indigenous peoples throughout history.

FPIC is not the same as veto. The term “veto” is not used in the declaration. Veto implies complete and absolute power, regardless of the facts and law in any given case.

FPIC is also gaining support in the corporate sector in Canada and internationally. For example, in its 2019 guidebook, the Canadian Council for Aboriginal Business advises to “Commit to meaningful consultation, building respectful relationships, and obtaining the free, prior, and informed consent of Indigenous Peoples before proceeding with economic development projects.”

As well, the UN Global Compact—the world's largest corporate responsibility initiative with over 12,000 companies in over 160 countries—has expressed strong support for indigenous peoples in its comprehensive business reference guide on the UN declaration. It states:

FPIC should be obtained whenever there is an impact on indigenous peoples’ substantive rights (including rights to land, territories and resources, and rights to cultural, economic and political self-determination).

Respecting human rights cannot reasonably be held up as an impediment to economic development. This legislation will lead to improved relationships, greater certainty and less litigation.

Currently Canada is demonstrating global leadership by implementing a federal bill on the UN declaration; however, some key revisions to Bill C-15 are still required. For example, I would urge adding racism to the eighth preamble paragraph and to the action plan in subparagraph 6(2)(a)(i).

Overall, Bill C-15 is a positive catalyst for co-operation, justice, healing and mutual respect.

Thank you.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

Yes.

Let me start my question. I'm not sure if it's going to reboot before I get there.

My question is a follow-up to the previous question. Is this increasing or decreasing uncertainty? It's all about aboriginal title, I guess....

I'm not sure how much Bill C-15 really changes the present legal definition of aboriginal title as established by the courts, from Sparrow to Tsilhqot'in. Those decisions in Tsilhqot'in established that it was sui generis. There was a beneficial interest in the land and the province has a right to regulate land use in the public interest.

Now, I don't know all the fineries of aboriginal land law, and I know that was a case in B.C. where there was no previous treaty, but I don't see UNDRIP as really changing too much of what has already been legally established as to what aboriginal title is. Furthermore, I know that the courts, in informing their decisions on legislation, look to international legal instruments like UNDRIP.

Maybe I can first direct my question to Mr. Podlasly.

How much is this really changing things? We certainly hear the allegations that this is creating uncertainty, but it seems to me that's a little hard to buy into.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Would you say that, moving forward, a better way forward—I know you indicated your support for Bill C-15—would be to ensure that any agreements adhere to, at the very least, the minimum standards articulated in the United Nations Declaration on the Rights of Indigenous Peoples as a way to support development that is rooted and framed within human rights?

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much, Mr. Podlasly.

My next question is for Mr. Buffalo.

The concept of consent could evolve over time and move closer to a veto right. Yet you have expressed some reservations in this regard. In light of this and Mr. Podlasly's responses, do you continue to support Bill C-15 as written or do you question it?

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much, Mr. Podlasly.

I will take the liberty of clarifying my question.

You mentioned that it will take some collaborative work to define the concept of free, prior, and informed consent and that it may take some time.

Wouldn't that concept be diluted if it is not defined prior to the passage of Bill C-15? Couldn't this even undermine the purpose of the bill?

Do you instead believe that this is not a problem and that we can stick with Bill C-15 as written, without adding the definition of free, prior, and informed consent?

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much, Mr. Chair.

I thank all the witnesses for their very informative presentations.

My first question is for Mr. Podlasly.

I'd like to make a little preamble. You will not be surprised to hear that as a member of the Bloc Québécois, I am particularly interested in the issue of self-determination of peoples. In the case of Quebec, there have been attempts in the past to define the self-determination of peoples after the fact. I am thinking in particular of referendum clarity.

Is this something you might be concerned about? If the criteria in Bill C-15 do not clearly establish what constitutes free, prior, and informed consent, could there be an attempt to water down the bill and make it meaningless? Are the access to funding measures that you were announcing sufficient to prevent this?

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much.

I appreciate both those comments.

I'll ask simply this, and I know it's not going to be a simple answer. With all the work that has been ongoing already and some of the uncertainties that you alluded to in your opening remarks around UNDRIP and around Bill C-15, do you feel that the adoption of Bill C-15 could potentially put some of these processes and agreements in jeopardy?

[Stephen Buffalo, President, Indian Resource Council]

Thank you, Chair and committee members, for the opportunity to speak today. I am in the Treaty No. 7 territory. My name is Stephen Buffalo. I'm the president and CEO of the Indian Resource Council of Canada.

Our organization represents over 130 first nations across Canada that produce or have a direct interest in the oil and gas industry. Our mandate is to advocate for federal policies that will improve and increase economic development opportunities for our first nations. Few will be more impacted in the short term than the 130 members of the Indian Resource Council if the proposed UNDRIP legislation is not clearly drafted. Otherwise this will compromise the ability of our members to engage in resource development.

The members of the Indian Resource Council, like all first nations, obviously find a lot to like in the UNDRIP, which we support without question. I'm personally from the same nation as Dr. Willie Littlechild, one of the architects of the declaration. I've spoken to him at length about understanding the spirit and the intent behind it, but I'm very concerned about the unintended consequences of this legislation. I think, in practice, it will slow down or even reverse the economic development that we've achieved in our nations.

Within our communities, the majority of our members support involvement in the oil and gas industry—not all but most. That's because the royalties and profits we generate from this sector have been essential to the well-being of our people. They pay for things like elder services, housing, cultural programs, bereavement costs, recreation centres and other programs and services that are chronically underfunded by the federal government, or not funded at all. They provide us some autonomy in spending that we do not have with federal funding. They allow us to exercise our self-determination.

In my own community of Maskwacis, we've created a trust company, Peace Hills Trust, a scholarship fund to encourage our youth to pursue post-secondary education. The energy sector has brought many benefits to us, and we don't need any additional barriers that will impact or eliminate these benefits. Creating a competitive and stable investment environment in Canada would help bring new development projects in our territories. Having sufficient pipeline capacity, for example, would allow our members to earn full value of their products instead of having to accept a discount due to transportation and market constraints, as we see now today.

We've already seen countless jobs, procurement opportunities and equity stakes lost in the cancellation of tens of billions of dollars from energy projects across western Canada as a result of legislation such as Bill C-48 and Bill C-69. We have a lot to lose if this legislation, in its current form, further impacts our ability to attract investment.

Let me share with you the biggest concern about Bill C-15. The legislation says that indigenous people need to provide consent for a project to go forward, but it doesn't say who can provide or deny consent and how it's to be demonstrated. If you're saying consent is provided by chief and councils through band council resolution or referendum, then that's one thing. But if you're saying that a small group of indigenous activists who declare that their consent is required, and that they have the right to blockade any project they do not like, or just to get a standing in court to contest it, then that's a recipe for disaster.

It would be much better if this committee could define “free, prior and informed consent” in the legislation and determine who can represent and make decisions on behalf of indigenous peoples for the purpose of project approvals. Better yet, this committee can engage indigenous people across Canada to come to a consensus on what “consent” means before passing this legislation, because you know as well as I do that some people think it's a veto, and if the committee doesn't think it's a veto, then they should make that clear.

Putting the declaration verbatim into federal legislation without these definitions is going to allow special interest groups to weaponize the United Nations Declaration on the Rights of Indigenous Peoples as a tool to stop any extractive project they do not like. This isn't my being paranoid. This is in our communities and in our projects all the time. I even heard it from some MPs using UNDRIP as a reason to cancel TMX, for example.

Many of our members are actually involved in negotiating and purchasing it, but whether or not you support the oil and gas industry, it's the right of the 130 first nations in our organization to develop their resources as they see fit.

At the end of the day, if the bill remains vague, as it is in its current form, I believe some judge down the line is going to decide what FPIC means in the context of resource development. No one is going to want to invest in any major projects in this country until that day comes.

IRC members want better protection for indigenous rights, and there's obviously a lot of good that can come from using the United Nations Declaration on the Rights of Indigenous Peoples as a shield and framework for reconciliation. However, investment requires certainty, and if we're going to self-determine, reduce our dependency on government and move beyond meagre royalties, we'll need to attract investment of our own.

Thank you for the time. I'm happy to take questions.

[Tara Shea, Senior Director, Regulatory and Indigenous Affairs , Mining Association of Canada]

Good morning, Mr. Chair, members of the committee and fellow panellists.

I'd like to start by acknowledging that I'm participating from Ottawa, which is traditional Algonquin territory. Kara is participating from Edmonton, which is Treaty 6 territory and the homeland of the Métis people.

Thank you very much for the invitation to be here today to share our members' views on Bill C-15.

MAC members have a strong record of establishing respectful and mutually beneficial relationships with Inuit, Métis and first nations peoples. Our members are among the largest industrial employers of indigenous peoples in Canada and a major customer of indigenous-owned businesses. Across the country, there are examples of partnerships between mining companies and communities that are advancing reconciliation and contributing to the implementation of the UN declaration.

As an association, we looked to the UN declaration and the Truth and Reconciliation Commission for guidance when we were drafting our recently updated indigenous and community relationships protocol as part of our sustainability initiative, “Towards Sustainable Mining”. We established a good practice level that includes a commitment to aim to achieve free, prior and informed consent for new projects or expansions where impacts to rights may occur. This is among many other criteria in the standard designed to facilitate strong relationships through effective engagement and decision-making processes.

We are supportive of the objective of incrementally and thoughtfully implementing the UN declaration through collaboration. We see potential for Bill C-15 to improve relations between the Crown and indigenous peoples and to help advance reconciliation, but this will require additional clarity on certain key issues, effective implementation and adequate resourcing.

Our understanding of Bill C-15 is that it is enabling legislation that will require the federal government to work with indigenous peoples to co-develop an action plan to ensure that the progress made to date continues. It acknowledges that the declaration is already used as an interpretive tool but that it is not meant to give the declaration direct, legal effect in Canada.

We raise our interpretation of the bill today because we recognize that there are differing views as to the purpose of this bill, and this growing spectrum of interpretations is creating confusion about what this bill means and what it is intended to do. We are concerned that, in the absence of a common understanding of the intent of the legislation, there will be unintended consequences, including unmet expectations, legal challenges and increased uncertainty, all of which impact the viability of natural resource projects and their associated benefits to indigenous individuals, communities and businesses.

To help avoid expectations diverging further, the federal government must be transparent with how it interprets the declaration and what obligations it sees arising from Bill C-15. This includes enhancing communications on the bill’s intent in Parliament with indigenous peoples, provincial governments, other Canadians and the investment community.

Clarity on the federal government’s approach to free, prior and informed consent and its relationship to existing duty to consult obligations is particularly important. There have been recent statements from the Minister of Justice and others explaining what FPIC means in principle and notably that FPIC does not grant a veto over government decision-making.

We believe there is an urgent need for further clarity on process, beyond whether FPIC equates to a veto. In particular, this includes the circumstances that give rise to the obligation to consult and, in some cases, to seek consent and the specific processes for each; the government’s approach when efforts to obtain consent have been unsuccessful or when consent is provided by some affected indigenous communities but not all; and whether existing indigenous engagement processes may change and the specific changes being contemplated.

While we recognize that, to some extent, government decisions will be made on a case-by-case basis by considering issues such as strength of claim, impacts on rights and overall project benefits, the current lack of clarity does create uncertainty for investment, and these issues need to be clarified before the legislation is passed.

In our submission we recommended that guidance, policies and training be enhanced to ensure that federal officials are able to effectively engage in relationship building and consultation with indigenous communities. The current “Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult” are extremely outdated.

In addition to updating these guidelines, there are other practical steps that can be taken now to help ensure there is consistency across the federal government, including issuing a directive to federal officials informing them of the government’s interpretation of FPIC and the intent of Bill C-15. This should be done now to ensure there is no confusion at the working level about what Bill C-15 means.

Additional steps include incorporating the government's interpretation of FPIC and the bill into guidance training and policies; implementing oversight mechanisms to ensure that guidance and policies are consistently followed; and committing resources for ongoing training initiatives to respond to high turnover in key federal roles. This cannot be deferred any further. This guidance is needed now.

In looking ahead to the action plan, it will be critical that the process to develop this plan be transparent and well defined, given the wide spectrum of expectations with respect to this bill and the range of outcomes that are possible. This includes establishing a meaningful consultation plan, determining how actions will be identified and prioritized, and ensuring that the required resources are in place.

We respect and support the intent for the action plan to be co-developed with indigenous peoples, and we have asked to be engaged in the development and implementation of the action plan on any elements that may impact our sector.

With that, Mr. Chair, thank you again for the invitation to present today.

We look forward to the committee's questions.

[Mark Podlasly, Director, Economic Policy, First Nations Major Projects Coalition]

Good morning, and thank you for this invitation.

My name is Mark Podlasly, and I am a member of the Nlaka’pamux Nation in southern British Columbia. I am speaking to you today from Coast Salish territory in southwestern British Columbia.

I am the director of economic policy at the First Nations Major Projects Coalition, a national collective of 70 indigenous nations working to ensure that first nations receive a fair share of benefits from projects in our territories through the ownership of equity in proposed pipelines, electric infrastructure, transportation routes and other revenue-producing initiatives.

I am here today to speak on behalf of our members in support of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples. For our members, UNDRIP already frames how we see development and our ability to direct decisions that are supportive of our interests.

The declaration focuses indigenous attention on how first nations-supported development can enable self-determination as described in UNDRIP article 3. However, it is article 4 that, in the opinion of the First Nations Major Projects Coalition, will be key to successfully implementing UNDRIP in Canada.

Article 4 states that:

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

This financing or fiscal component is key to ensuring that first nations have the means to pursue UNDRIP autonomy. No government, indigenous or not, is truly self-determining if it is reliant on an external government for financial viability. It is impossible for a government to function at any level without a source of revenue to pay for its operation.

This is why our members see revenues from indigenous-held equity as providing the financial means for self-determination, and why first nations must implement this according to UNDRIP. Without it, UNDRIP implementation will be impossible.

For first nations, a multi-generational source of equity-derived revenue will allow our nations the ability to set and fund our own UNDRIP self-determination priorities.

These UNDRIP priorities include culture and language. They are, as described in article 11, to practise and revitalize our culture, traditions and customs; in article 12, to manifest, practise, develop and teach our spiritual and religious traditions, customs and ceremonies.

They include education and media. They are, in articles 14 and 16, to establish and control our educational systems and institutions, to provide education and to establish our own media in our own languages.

They include economic, social and health improvements. They are, as noted in article 21, the improvement of our economic and social conditions.

They include revenue from traditional territories. They are, as described in article 26, to own, use, develop and control the lands, territories and resources that we possess by reason of traditional ownership, occupation or use.

They include development priorities. They are, as described in article 32, to develop and present priorities and strategies for the development and use of our lands and other resources, and as described in article 34, to promote, develop and maintain our institutional structures.

Article 39 notes that we are to have access to financial and technical assistance from states regarding the rights contained in the declaration.

These UNDRIP articles are all dependent on a revenue stream to pay for their implementation. A new indigenous-controlled fiscal component offers significant benefits for first nations and Canada, including greater investment certainty and reduced opposition to projects; self-sustaining indigenous governments; stable own-source revenue streams to fund first nations government priorities; the ability of first nations to access capital sources to leverage their revenue streams to further invest in the Canadian economy; a new nation-to-nation relationship with the Crown as a true UNDRIP partner; direct first nations involvement in the wealth-generation aspects of the Canadian economy; and fulfillment of UNDRIP.

These benefits will accrue only if there is a way for first nations to acquire a revenue stream to support self-determination. At present it is very difficult to nearly impossible for first nations to raise or access substantive capital to invest in major projects.

The advice that I wish to provide to the committee today is that the key to making UNDRIP work in Canada is to start with article 4, which is about the ways and means for financing indigenous autonomous functions. How this is implemented will determine if the promise of Bill C-15 and UNDRIP will be fulfilled.

Thank you.

[The Chair, Liberal, Bob Bratina]

In view of the fact that we have a quorum, accordingly I call this meeting to order.

I will start by acknowledging that, in Ottawa, we meet on the traditional, unceded territory of the Algonquin people.

Pursuant to Standing Order 108(2) and the motion adopted on February 25, 2021, the committee continues its study of the subject matter of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples, and to make related and consequential amendments to other acts.

This meeting is in place of last Thursday’s meeting that was cancelled due to votes in the House. We regret that Professor Dwight Newman and Professor Ken Coates could not be with us today. I have ensured via the clerk that they have the necessary information to send in written submissions.

For an orderly meeting, participants, please speak and listen in the official language of your choice. At the bottom of your screen on the globe icon, you can select “Floor”, “English” or “French”. You may switch from speaking one official language to another without changing the language in Zoom. When speaking, ensure that your video is turned on, and please speak slowly and clearly. When you are not speaking, your mike should be on mute.

Pursuant to the motion adopted on March 9, 2021, I inform the committee that Mark Podlasly and Stephen Buffalo have not completed technical pretests.

With us today by video conference is Mark Podlasly, director, economic policy, First Nations Major Projects Coalition. Representing the Mining Association of Canada, we have Kara Flynn, vice-president, government and public affairs at Syncrude Canada; and Tara Shea, senior director, regulatory and indigenous affairs. Also, as I mentioned, we'll be joined in the first hour by president Steven Buffalo from the Indian Resource Council.

Thank you, all, for taking the time to appear. Each organization has up to six minutes for an opening statement, followed by questioning.

Director Podlasly, please go ahead as our first witness.

National Strategy to Redress Environmental Racism Act

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Madam Speaker, over the course of our nation's history, polluting projects have disproportionately been situated in areas adjacent to indigenous and racialized populations, which has led to increased impacts to human health in those communities. This is a reality that we need to confront, as Canadians, to become a more equitable society. I thank my colleague from Cumberland—Colchester for tabling Bill C-230, an act respecting the development of a national strategy to redress environmental racism, which follows similar acts she advocated for as an MLA in Nova Scotia.

Environmental racism is characterized by the disproportionate exposure of communities of colour to pollution and its associated effects on health and the environment, as well as the unequal environmental protection and environmental quality provided through laws, regulations, governmental programs, enforcement and policies.

Recently, the issue of environmental racism in Canada was emphasized by the United Nations special rapporteur on toxics and human rights, who visited Canada in 2019 to report on the prevalence of environmental and health discrimination faced by indigenous and marginalized groups.

Ultimately, he concluded that a pattern exists in Canada in which marginalized groups, and indigenous people in particular, find themselves on the wrong side of a toxic divide and subject to conditions that would not be acceptable elsewhere in Canada. This is the crux of the problem that we face.

In Canada, this environmental injustice for indigenous and racialized peoples stems in part from our history of colonialism: the lack of diverse representation in decision-making roles, the marginalization of racialized voices, income inequality and the general blind eye that our system over our history turned to negative externalities such as pollution.

Communities of colour, particularly poor communities, have been seen as attractive sites for industrial facilities and other developments that impact the proximate populace because they were seen as cost-effective and efficient. For example, when a decision is made to situate a landfill in a particular location, the surrounding population that has the ability to move, does. However, those who are already at a disadvantage in society, and who do not have the capacity to oppose such projects, are forced to live alongside pollutants that may impact their health and their surrounding environment.

Environmental inequality is not relegated to decisions of where to site projects alone. Consequences for environmental violations are not uniform. In my home province of British Columbia, the maximum penalties for dumping garbage or waste on Crown land currently have upper limits of $2,000 or $1 million, while the maximum penalty for dumping garbage or waste on Indian reserves is only $100.

In my community, the North Shore Sewage Treatment Plant has sat on the Squamish Nation's Capilano Reserve for the last 55 years. Known for emitting fumes, especially on hot summer days, the plant is situated metres away from the Squamish Nation community despite waste management facilities generating emissions that may be hazardous to human health.

Now, with the help of federal and provincial funding, construction of the new Lions Gate Secondary Wastewater Treatment Plant is under way. It will be relocated from the Squamish Nation Reserve to a location in the District of North Vancouver owned by Metro Vancouver. The new treatment plant is being constructed with 100% odour containment, and the old facility's land will be returned to the Squamish Nation for it to redevelop as it sees fit.

The reconstruction of the wastewater treatment plant will not only relieve residents of foul odours, but will also provide the north shore with cleaner water and a healthier ecosystem because, while the current plant only removes 50% of organic matter and 70% of suspended solids, the upgraded plant will ensure the elimination of 90% of all waste prior to the sewage entering the sea.

The neighbouring Tsleil-Waututh Nation is hopeful that the upgraded plant will help reduce contamination in shellfish harvesting areas both in Burrard Inlet and in Indian Arm. The North Shore Wastewater Treatment Plant serves not only as an excellent example of what redressing environmental harm can look like, but also as an example of how varied and extensive the impacts of toxic exposure can be for indigenous and racialized communities, with a sewage plant directly impacting the air of one nation and the food supply of another.

Elsewhere in Canada, approximately 90% of Grassy Narrows residents currently suffer from mercury poisoning as a result of Dryden Chemicals dumping mercury into the English-Wabigoon River system between 1962 and 1970. As a result of the dumping, all commercial fishing in the river system has been banned: the fish were shown to contain mercury levels 10 to 50 times higher than in other areas. As such, the Grassy Narrows Nation was not only subjected to severe mercury poisoning, but also to the elimination of the community's main source of income. Despite this clear environmental injustice, it took 50 years for the government to provide the people of Grassy Narrows with an effective remedy.

Another compounding issue is that despite greater exposure levels to hazardous substances, indigenous and racialized peoples have been shown to face further discrimination in health care. As an example, 62% of Grassy Narrows First Nation members living on reserve report barriers to health care. While in many examples we have a painful legacy of environmental racism, our legal frameworks are evolving over time to mitigate the risk of future such examples occurring.

For instance, the Impact Assessment Act, which became law in 2019 and replaced the Canadian Environmental Assessment Act, 2012, greatly increased the standard of public participation and transparency in environmental assessment. It became easier for the public to formally participate in assessments. It introduced a pre-assessment planning phase in which the public could participate to address clear issues such as project siting before the assessment in full began. It greatly enhances the consultation and accommodation process with affected first nations by requiring that this begin in the planning phase. It also incorporates traditional knowledge and creates the conditions for indigenous-led assessments.

In addition, with the introduction of Bill C-15, which if passed would implement the United Nations Declaration on the Rights of Indigenous Peoples into federal law, we would take further holistic action on reconciliation. Notably, this would also address environmental racism, as UNDRIP affirms that indigenous peoples have the right to conservation and protection of the environment.

Most importantly, the Canadian Environmental Protection Act, or CEPA, is the main piece of legislation we have in Canada to ensure that we protect the environment and human health. However, this legislation has not been substantially updated in over two decades. The Standing Committee on Environment and Sustainable Development studied CEPA and delivered a comprehensive report. Among the recommendations were that the government should recognize the right to a healthy environment. It mentioned the importance of considering vulnerable populations and risk assessments, and of developing legally binding and enforceable national standards for drinking water in consultation with provinces, territories, indigenous peoples, stakeholders and the public.

I look forward to the introduction of a reformed CEPA in due course. If we follow through on these and other suggestions made by the committee, we would go a long way toward addressing future environmental racism in Canada, but there will surely be gaps that remain after all this is done, which is why the bill that we are discussing today is so important in further studying and uncovering where these gaps may lie. The bill would require the Minister of Environment and Climate Change to collect information about the locations of environmental hazards and information about the negative health outcomes in affected communities, ensuring that the public and the government are informed and aware of the dangers associated with hazardous sites.

The minister would also be required to examine the link between race, socio-economic status and environmental risk, thus examining how race and socio-economic status expose indigenous and other racialized communities to contamination and pollution.

Furthermore, Environment and Climate Change Canada would be required to develop a strategy to address environmental racism and to provide regular reports to Parliament on its progress. Bill C-230 would ensure that there is a routine assessment of the extent to which environmental laws are administered and enforced in each province and would promote efforts to amend federal laws, policies and programs in order to address environmental racism.

To conclude, I believe that this bill will make progress on issues of both environment and equity. I will be voting in favour of sending it to be studied further at committee. At this stage, we can involve the voices of provinces, territories, rights holders and stakeholders from right across the country in its deliberation and to further strengthen it. I invite my colleagues from across this House to do the same.

[Chief Ghislain Picard]

I would be of the opinion that we certainly have the right to review our position, reassess our position, in light of the current political context. Since BillC-262, what have we experienced? This is where I go back to the position of provinces. We all know that at least six jurisdictions have expressed concern, going back to last fall, and before that, as the federal government was getting ready to introduce Bill C-15 in December.

At the time, what we also had in that evolving political context, if you will, was the Province of Quebec challenging a bill that was co-developed with first nations, which is Bill C-92. It's the same for Bill C-91. This is where we expressed, in my view, very legitimate concerns in terms of making sure that Bill C-15.... And, again, I want to restate the fact the UN declaration poses no concerns when it comes to our first nations. It's how we—