Environment Committee on April 13th, 2010

[The Chair, Conservative, James Bezan]

Quickly, Mr. McNeely.

[Joshua McNeely]

It's just because of what I stated before. We are a federation. We are part of this federation and we want to be a part of that solution, not try to make a million different types of laws, because that's the situation right now. We've got jurisdictional issues, but it needs to be a part of that accord we have.

[The Chair, Conservative, James Bezan]

Thank you, Mr. McNeely.

I think, Chief Atleo, you have a different opinion of this. I'm reading through your brief here--I have an advantage over the rest of the committee members, as I do have copies of the briefs--and you're asking that SARA be exempt from first nations.

[National Chief Shawn A-in-chut Atleo]

That's right.

[The Chair, Conservative, James Bezan]

So it's quite different.

[National Chief Shawn A-in-chut Atleo]

That's right. Again, it comes down to jurisdictional recognition. It does link to earlier points about the jurisdiction of provinces and territories. The safety net provision, if provincial or territorial legislation does not cover, that within SARA there is a section that can be applied, a safety net provision, from what I understand has yet to be applied.

So in terms of earlier comments made about the inter-jurisdictional aspect, they could have been, but have not yet been, addressed in a manner that the act actually provides for. That's why we would reiterate the idea, as we move forward, of a first nations advisory group that could tackle and facilitate or handle or help address the inter-jurisdictional issues. But make no mistake about it, the treaty and the title and rights, we go back to that foundation that first nations lands should be exempt from SARA's application.

[The Chair, Conservative, James Bezan]

How do we get things to flow here? As Mr. McNeely has already said, species do not know boundaries. They think about overall habitat. We're talking about multi-jurisdictional levels. We're going to add this layer that first nation communities have their own laws in place, bylaw or legislation or however they decide to proceed.

How do we make that mend and melt together with the other jurisdictions, being the federal and provincial governments?

[National Chief Shawn A-in-chut Atleo]

The stewardship plans that I was alluding to are one such example, where treaty, title, and rights are respected, with first nations jurisdiction respected. And there are others in the territories in those areas.

That is something that is really just developing. There's a phenomenal work, Living Proof, which Terry Tobias authored in partnership with the Union of BC Indian Chiefs. It's a tremendous effort to map out what the relationship is of first nations to their territories. When we say first nations lands, there are two elements. The recognition of INAC is there for the recognition of the relationship through the Indian Act to the Minister of Indian Affairs. But our lands are not restricted to those reserve lands. There are still unfinished and outstanding land issues that exist throughout the entire country.

I just flag that as an issue. When we think about our indigenous brothers and sisters in the Atlantic, those are the oldest treaties that exist here amongst all of our peoples; they're in those areas. We have yet to see a place where...the elders are constantly calling for the implementation and enforcement of agreements that all of our respective ancestors forged. What we're not doing is that when we forge legislation, particularly when it's done without recognizing the jurisdictions.... It results in conflict.

So it's a matter of here we are: we're looking to make constructive suggestions about the recognition of the jurisdiction of first nations.

[The Chair, Conservative, James Bezan]

Thank you, National Chief.

Mr. Woodworth, you do have the floor. I just wanted to get those clarifications first. Your time starts now.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

Thank you to the witnesses for being here. As you can see, the time limits we are faced with prevent a really satisfying discussion about some of these very complex issues.

I want to congratulate National Chief Atleo on his election. It doesn't seem to me like it's been more than a few months. I know it was an exciting one and I'm sure, from the degree of articulation that I've heard, it's a well-deserved election.

I want to comment that I was interested to hear that in fact there's recognition that sometimes listing recommendations can be disagreed with. That seemed obvious to me, and I was rather struck by some of the rather outrageous and simplistic remarks of one of the Liberal members opposite about the fact that the minister wouldn't necessarily put a single scientific opinion on a pedestal, because I think there can be disagreement.

I want to say, especially to Mr. McNeely, that I took note of your comments that in the current context, without the necessary tools and without the necessary ethic, it can take a long time to reach conclusions sometimes about the species at risk listings, and I took note of your comment that there are many views across the land, and therefore to gather in only six people to COSEWIC isn't necessarily the end of the matter.

I agree with you, and I would go maybe further and say that once COSEWIC reaches a recommendation or comes up with an assessment and it goes to the minister for consultation, there are any number of questions that need to be asked, in fact. Does the assessment correctly identify the species as being at risk? How do you reconcile any disagreement over that that might exist? Where is the habitat of the species? What are the activities within that habitat? What first nations might be involved in that habitat and those activities? What non-first nations persons? What methods of protection should there be, and where can there be remediation?

I'm concerned because I think one of the issues on the table for our committee is how much time should be allowed for those consultations. I regard them to be quite complex, and I think that they do need to involve socio-economic considerations.

So I would be grateful, particularly from Mr. McNeely, since you've already alluded to this question, to get your point of view. Assuming we're in the present situation, without that ethic of reconciliation and without those additional tools, if I were asked how much of a timeframe I should place on the minister to conduct those consultations, what would be the best answer I could give from a first nations point of view, keeping in mind that we would need to go to the first nations, in my opinion, in those consultations? How much time do you think would be required, with the present tools, to come up with answers to those questions?

[Joshua McNeely]

One of the tools we have for that in the Atlantic, under the Department of Fisheries and Oceans, is the aboriginal aquatic resource and oceans management program, and also the aboriginal fisheries strategy. Both of these programs were implemented from court decisions, forcing DFO to work with aboriginal communities to work out aboriginal treaty rights to fishing.

That building of that relationship is fundamental to our implementation of the Species at Risk Act in the Maritimes region, or in the Atlantic region in general. When SARA came in, it was very easy for us to call up the Department of Fisheries and Oceans and say, “What's coming down the tubes? What should we be consulting about right now?” We knew who those people were. We had a relationship with them, not only just a working relationship but also fiscal arrangements, substantial contribution agreements, so we already had built on that relationship, and the Species at Risk Act just dovetails right into that quite nicely. We know what's coming down the tubes long before it even gets to the COSEWIC assessment process, and we've been able to feed into that process.

Right now, actually—I was talking about socio-economic analysis and including the social—we were talking with the Department of Fisheries and Oceans about some people up there in Ottawa coming down to our region to work out a process of how to include traditional knowledge on the social side. So that's a good key.

Now, on the land side, Environment Canada, we haven't had that relationship, so we haven't been able to feed into any of that, on the birds or the animals or the plants that are being listed. On the marine fish, yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Have you come to a conclusion about what would be a reasonable length of time for me to recommend, if I'm asked to give a recommendation?

[Joshua McNeely]

From our working arrangement, the current lengths of time are adequate as long as we have that prior engagement and that prior relationship, as we do with the Department of Fisheries and Oceans.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

But if not? In the case of lands and birds, and considering some species are national and spread across the country....

[Joshua McNeely]

If you're using SARA as the initial point of contact and the initial consultation, then yes, it could take quite a length of time to grab some of those views, and it's species-by-species specific.

[The Chair, Conservative, James Bezan]

Mr. Woodworth, your time has expired. I know it goes by fast when you're having fun.

Ms. Dhalla, the floor is yours.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

Thank you very much.

I'm a member visiting this committee for the first time, so I'm going to defer my questions to my colleagues. They have been working very hard on behalf of our caucus and will ask further questions of our guests.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you.

Thank you very much, Chair.

Mr. Chair, before going forward I want to clarify for the record something I made reference to earlier in the interest of Mr. Woodworth's recollection. It's very important for us to acknowledge that there are scientific differences and that evidence-based decision-making is important going forward on SARA, and writ large when it comes to environment. But for the record, I've never heard a Minister of the Environment anywhere refer to scientific evidence as “allegations”. That's exactly what our Minister of the Environment said on the floor of the House.

Let me go to Chief Atleo for a second. I want to get a sense, Chief, if you can help us understand this. I know it's putting you in a difficult spot because I think your assertion is that Treaty No. 8 and other treaty rights, writ large, preclude the application of SARA to first nations territories, but I want to get a sense of how you envisage compensation.

So far the language, in the basically silent passages of the act that deal with compensation, only speaks about extraordinary cases, the extraordinary cases in formal fettering of lack of land.... I don't subscribe, for example, to the view that's manifested by many people on the very far right of the political spectrum, who talk about enshrining property rights in the Constitution and so on. I just don't think that's in line or in tune with the 21st century knowledge we have about things such as species at risk that move and migrate.

What is your understanding about compensation? For example--let me put you in a tough spot--would you think that going forward at another time we should be providing pecuniary compensation, financial compensation? Should we be compensating folks who are taking different measures to protect species? Should aboriginal land or first nations territories be compensated for good stewardship of what is, after all, a global form of natural capital?

[National Chief Shawn A-in-chut Atleo]

I'd actually be interested in the elder's thoughts about this, personally.

Just quickly, I think about emerging carbon market trading systems, for example, and the idea that one might, in an emerging market, be compensated for leaving a tree standing. It's an interesting concept that is just emerging. It's a new conversation, but make no mistake about it, from a personal Ahousaht Nuu-chah-nulth perspective, it's a conversation about what's been lost. We don't have any bison in our territories, but we have lots of other things that we can't access any longer, and that has tremendous health, economic, and social implications. How do you quantify those?

I like to share this story: only about 15 years ago, when I was in a Stanford executive management program, the professor waggled his finger at me and said, “Issues of environmental and social justice do not belong in the market economy.” That wasn't that long ago, in one of the top Ivy League schools in the world, so it feels as though we're still at the baby-step stage around points that we're talking about here.

As this country embraces the recognition of indigenous peoples, there is unquestionable harm; the residential schools were a tool used under the guise of education as a tool of destruction. We're talking about people's food and medicine, and the fundamental balance being thrown out of sync. Is it anything that can really, truly, ever be compensated?

The points being made here are about the restoration of balance between people and the environment, first of all. Second, there is no question that first nations seek justice when it comes to land and the access that's now being lost, and they seek to reconcile that with the market system that was developed around us and brought into our territories. Previous to it, we had a market system that was otherwise operable, but in a different manner.

[David McGuinty, Liberal, Ottawa South, ON]

I share your frustration, Chief, because I remember having a very public debate with the C.D. Howe Institute's chief economist one year in a public setting. He asked me to prove in dollar terms how much a wetland system was worth. I said to him publicly that it was intellectually dishonest, and that as the social scientist/economist he was, he had to prove to me that those wetlands were worth zero. Once he proved they were worth zero, we could talk. Of course he had no answer.

In the discipline of economics and business, you're right, the free market has not found a way to factor in natural capital services, eco-services, the intrinsic worth of the DNA we sit on, the 70,000-odd species in this country. We don't even know if it's 70,000. We now have about 7,700 under consideration.

I'm trying to get a better sense, through your wisdom and perhaps with Elder Marcel's insight, of how might go about stopping the fiction that all this is to be drawn down, that it's a limitless form of capital. Species can be put at risk, species can be made extinct, but we have no calculation for it. We don't track it. There's no dollar value assigned to it. GDP keeps going up, natural capital keeps coming down.

How can we crack this nut? I still believe it's the challenge of this next 100 years.

[The Chair, Conservative, James Bezan]

Mr. McGuinty, your time has expired.

Elder Marcel, you can respond briefly.

[Pat Marcel]

You've raised something with me that I and the elders haven't even gotten to yet. We're more at the stage right now of preserving the habitats and the species. That's right in the forefront for us.

A while ago, when I made a presentation, I asked, “Is there another place where these animals can actually survive?” You're talking about compensation. If you're destroying this land, you have to be able to provide land someplace else for these species at risk.

[The Chair, Conservative, James Bezan]

Mr. Armstrong, you have the floor.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

I want to thank the witnesses for being here today. I listened with great interest to your presentations.

Grand Chief, a great deal of attention to consultation with first nations has concluded already. I think Mr. Calkins explained a lot of the different functions they have in consultation.

You spoke of a first nations advisory body to advise the minister. How do you work together in your organization to ensure all first nations issues are being taken into account? Whatever consultation model you use across the country, can a similar one be used in SARA?

[National Chief Shawn A-in-chut Atleo]

Firstly, I think it's important to take the question in its rightful context. I know that when I was B.C. regional chief, we'd always get asked the question, “How do we consult with all 203 first nations?” The leadership there would say, “Well, we didn't create the 203-system structure.” It was externally imposed by governments. Now governments are telling us we're really hard to consult with. As we heard earlier, it's complex.

We're talking about ecosystems that are complex, and issues of species protection listing and habitat protection that are complex. We're talking about the ability to potentially tap into the knowledge of people who are closest to the land and territories who have by and large been left out.

The Assembly of First Nations was created over 25 years ago, in part as a response to an approach that has been in place since the royal proclamation. As opposed to dealing with indigenous nations as nations--the over 50 that were referred to before--deal with them as individual communities. It helps to separate them out. We're dealing with the implications of that historic approach, which you and I have both inherited.

When we talk about how we're going to address issues of listing or the application of SARA and what consultation means, it's really a matter.... As I've been suggesting all along, we have the elder who is here representing his first nations government. It's incumbent under the treaty and title and rights for federal governments and their respective jurisdictions to work with first nations governments.

The Assembly of First Nations is an advocacy body. I am not the head of the first nations government, as I think you have picked up on in my interventions here. I am more akin perhaps to the Secretary-General of the UN, or an advocate, somebody who has been appointed by a number of heads of state, government leaders.

On the question that committees that are national in scope, where the sole jurisdiction is under the minister's authority to appoint, do not or cannot take into account the complexity, I think the point has already been well articulated. That is the reality. To be effective in our work, to give effect to the United Nations Declaration on the Rights of Indigenous Peoples.... It doesn't refer to the term “aboriginal”; it talks about indigenous peoples, and I think the recognition of peoples is the era we're now entering into.

We are looking to committees like this, to statutes like this one, to support the rebuilding, if you will, of nations, and to support the relationship between indigenous peoples, the nations and the federal government. We can combine that with the very brilliant notion of greater local integrated management of systems. Developing a top-down approach is far from satisfactory, not just for indigenous peoples, but I think people in fisheries management are saying they need to be a part of it. Decisions taken in Ottawa or a small group, such as NACOSAR, they can't possibly know the intricacies of every situation.

I think it's time for us to move past this notion that we can create a singular small body that's easily managed and will give us the kinds of results we're looking for. I don't think we are anywhere near tapping into the potential of the country. We are short-sighted when it comes to this.

I'm suggesting that the Assembly of First Nations, even though it's connected with the Indian Act band structures—I come from a hereditary chief lineage myself--is a very diverse community. We need support and recognition for us to help organize appropriate consultation approaches that involve first nation government authorities.