Environment Committee on April 17th, 2018

[Martin Olszynski]

It's very clear that the “one project, one assessment” mantra is there. We can take lessons from the U.S. on this point. This notion of co-operative federalism has been bandied around a lot lately.

The point is that if the federal government has a jurisdiction, and the Supreme Court has clearly said it does, then the federal government can set a baseline in terms of what is a strong, rigorous environmental assessment. It can then absolutely invite the provinces to co-operate, harmonize, and collaborate on those impact assessments. It is absolutely true, it is both governments.

In fact, as long ago as 1992, at the time of the Supreme Court's decision in Friends of the Oldman River Society, constitutional law scholars maybe didn't have a ton of sense of what was going on on the environmental side, but they said it seemed plain that there should essentially be these joint agencies—federal and provincial—doing this work in every province. Of course they didn't recognize the long pattern of federal deference to provincial interests, but the case is there.

That's what I see reflected in the impact assessment act, essentially. It is saying we're going to set out a baseline standard in terms of what is good EA. If provinces are prepared to meet us there, then we can work together, ensure efficiency, reduce duplication, and all those kinds of things.

[William Amos, Liberal, Pontiac, QC]

I'd like to conclude by asking Ms. Flood for her thoughts on this notion that a specialized review tribunal, or some kind of recourse to be used in limited circumstances, could be established so as to avoid what seems to be a historic pattern of having panel reports get litigated and spend years languishing in the federal court system, often percolating up to the Supreme Court.

[Virginia Flood]

It's actually a very good idea in the sense of involving people who are knowledgeable and looking at all the facts. Litigation takes time and creates more uncertainty. Having a tribunal in those areas would really help the system. You would feel like all the relevant information is being presented to knowledgeable people who understand what the project is. They would bring in their expertise, whether it's scientific or aboriginal traditional knowledge.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Mr. Sopuck.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Thank you.

I'm a rural member of Parliament. I represent a natural resources constituency, so I can't help but think about people in communities. I am actually quite shocked at how little discussion there was now on the effect on people and communities.

Just for the record here, I'm going to read something about the natural resources sector:

It accounts for 13 percent of gross domestic product (GDP) and 50 percent of exports. When spinoff industries are added, the contribution of natural resources to GDP jumps to nearly 20 percent. About 950,000 Canadians currently work in natural resource sectors, and another 850,000 workers, spread across every province and territory, provide supporting goods and services to the sector. Combined, this amounts to 1 in 10 jobs in Canada. In addition, the energy, mining, and forestry industries provide over $30 billion a year in revenue to provincial and federal governments.

From Mr. Elgie, Ms. Ronson, and Mr. Olszynski, I heard a very academic discussion, but the effect of these processes on people and communities when they fail is absolutely devastating.

Ms. Flood, Chris Bloomer, from the Canadian Energy Pipeline Association, spoke at one of our previous meetings, and he was extremely blunt. He talked about Canada's “toxic regulatory environment”. Those are his words, not mine, a toxic environment. We have a poisonous regulatory environment.

He also pointed out, and I'm quoting him again, that if the goal is to “curtail oil and gas production, and to have no more pipelines built, this legislation”—Bill C-69—“may have hit the mark.”

Do you think Mr. Bloomer overstated the case? He was extremely forthright in his comments.

Ms. Flood.

[Virginia Flood]

What I would say is that I think we need to have a very comprehensive process. I think there is a lot of work that happens with companies, so I won't speak for the pipelines. I'll actually speak for Suncor.

We work within those communities. We are part of those communities. We take a lot of pride in working with the communities, so we understand, and we're a member of those communities. For us, it is critical that we actually have a process where we engage with community members.

I don't want to make comments on what Mr. Bloomer said. I think those are his comments. I would say that we need to have a robust environmental assessment that does actually provide confidence. I think there is a very big difference between a pipeline project and a mine project or an oil sands projects that is much more in a region where we all live.

Linear projects, whether they are transmission lines, roads, or pipelines, are very different because they're long projects. They involve very many communities and not all communities have the same views. I think they come with a different set of risks, I guess is what I would say, in the sense of how you work with those communities, because it's very hard to have every community agree to a project.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

My colleague, Mr. Fast, quoted your CEO, Steve Williams. David McKay, the president of the Royal Bank, recently urged Ottawa to act to stem the outflow of capital, which he described as leaving the country in “real time”, so I think you're understating the seriousness of these processes in terms of their effect on our economy.

I will quote from the same article, “Investment by foreigners has collapsed. Foreign direct investment (FDI) in Canada clocked in at $31.5 billion in 2017, down 56 per cent since 2013”—when we were in government, by the way—“when it totalled $71.5 billion.” Foreign direct investment is down 56%.

Again, I don't think Mr. Bloomer spoke as an individual. He spoke for his association.

With these processes and the effect that they have on our economy, I can't help but think about people, jobs, families, and so on. Can you comment on the people aspect, and the investment aspect, of what we're seeing here in Canada right now?

[Virginia Flood]

What I would say is that it's very important. Whatever we do in Canada, if we don't have a robust economy, we won't have a robust environment. They actually do work hand in hand.

What I would say is that we need to have processes that actually look at all aspects of it, the economic, social, and environmental aspects. We need to figure out how we make that work in a way that works for Canadians, so that we get the best projects going forward.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Well, nobody's arguing for reduced environmental standards. As for my background, I managed an environmental licence for a paper company. I spent a winter in the oil sands doing environmental assessment. I also did pipeline assessments in the Mackenzie Valley. What you have seen in Canada is that environmental quality has continued to rise over time as we've grown as an economy. In my view, in advanced industrial societies, we have to have a robust economy in order to have a clean environment.

Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

I want to thank our panel and guests for their thoughtful and informative briefs and testimony today. I'm going to try to give both of today's panels a chance to have as much time as possible in front of the committee, so I'm ending this panel now. I will give a few minutes for the other panel to get into their spots.

I'll suspend the meeting.

[The Chair, Liberal, Deb Schulte]

I need to get everybody into their seats. I want to make sure we get in as many questions as we can, so I'm watching the clock.

I want to welcome our second panel for today.

We have, from the Assembly of First Nations, Kluane Adamek, Interim Regional Chief, Yukon Region; Sara Mainville, Legal Counsel; and Graeme Reed, Senior Policy Analyst.

With BC First Nations Energy & Mining Council, we have Terry Teegee, Regional Chief, British Columbia Assembly of First Nations. He's with us by video conference.

From Fort McKay First Nation, we have Chief Jim Boucher; Alvaro Pinto, Executive Director, Sustainability Department; and Michael Evans, Senior Manager, Sustainability Department.

We really appreciate that you have all made the time to come in front of us today.

With the Indigenous Advisory and Monitoring Committee for the Trans Mountain Pipelines and Marine Shipping, we have Chief Ernie Crey, Indigenous Co-Chair. Welcome back to the committee. We appreciate having you here. We also have Tim Dickson, legal counsel, indigenous caucus. Thank you for being with us.

We will start with you, Chief Adamek, and then we will go from there.

You have 10 minutes. I will let you know when you have one minute left. Thank you.

[Chief Kluane Adamek, Interim Regional Chief, Yukon Region, Assembly of First Nations]

Good morning.

[Witness speaks in Tlingit and Southern Tutchone]

My name is Kluane Adamek, and I am from Kluane First Nation in Yukon Territory. I am the Interim Yukon Regional Chief. I introduced myself in Tlingit and Southern Tutchone. I come from the Dakhl’aweidí killer whale clan and my traditional name is Aagé.

Our territory in Kluane First Nation also encompasses Kluane National Park, which many of you may have been to.

This morning, I am pleased to be here on behalf of the Assembly of First Nations. To members of the committee, thank you for inviting me here today to share the perspectives of the Assembly of First Nations on Bill C-69, 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.

In the next 10 minutes, I am going to speak about three things.

First, I will speak to first nations participation in the environmental and regulatory reviews, the mandate of the chiefs and assembly, and the role of the AFN in this regard. Second, I will talk about perspectives on framing where we are and why we feel we must continue to press for reconciliation, given your commitments to the United Nations Declaration on the Rights of Indigenous Peoples. Third, I will speak about the 10 principles and the rights recognition framework, and propose critical amendments to improve on the reforms that have been tabled by the government in this part of Bill C-69.

With cautious optimism, in 2016, first nations overwhelmingly participated in the legislative reviews that laid the foundation for the bill you have in front of you. This work illustrates how first nations envision the complete overhaul of key environmental legislation and regulations.

Concepts such as jurisdiction, inherent and constitutionally protected rights, nation-to-nation relationships, and reconciliation come up over and over again. Unfortunately, many of these concerns are not yet addressed in the current legislation. Issues such as maintaining ministerial or cabinet decision-making and approving major projects using a public interest test remain red flags for first nations and the proposed nation-to-nation relationship. Moreover, from the perspective of many Yukon first nations and other self-governing nations, these provisions are inconsistent with our expressed jurisdictions and agreements, which languish with the failure of Canada to fully invest and respect commitments to implementation.

As a result, Bill C-69 does not withstand an analysis using the 10 principles respecting the Government of Canada's relationship with indigenous peoples. We recommend that the government ensure that the legislation is a beacon for all of Canada to signal that we are in a new era, where first nations rights, interests, and jurisdictions are promises kept by this government, not ignored and not overlooked. This would serve to support that reconciliation called for by the TRC, including observing and implementing the UN Declaration on the Rights of Indigenous Peoples.

Chiefs and assembly have passed numerous resolutions about this process, calling on the AFN to work with Canada to ensure the legislation respects first nations treaties, rights, title, jurisdiction, agreements, and recognizes the responsibilities to their traditional territories. However, the chiefs also made it very clear that any phase in this engagement process cannot be construed as consultation, and additional time must be afforded to consult directly with rights holders in a manner that is respectful to their unique protocols, processes, and elements.

To be clear, AFN plays a role in communication, coordination, and facilitation for first nations across the country, but we are not a rights holder.

Before I get into the specific amendments, I want to start by framing where we are and why this is an opportunity for real reconciliation. First, as you are all aware, Canada has announced its full and unqualified support for the UN Declaration on the Rights of Indigenous Peoples. This doesn't create any new rights, as these rights are inherent and pre-existing. The UN declaration simply affirms indigenous peoples' human rights. However, this does not mean that Canadian law, even the common law, is meeting these minimum standards, and we are committed to work with you on that effort.

Legislators should not forget that they are here to legislate about section 35 as well, and that we have been frustrated by government officials telling us this law includes common law standards, without clear legal language that pushes our rights forward. Across government, including Bill C-262, we are talking about realizing those rights and finding a better way to work together, so that we don't have to spend millions of dollars and waste years fighting in courts.

Indigenous lawyers are discussing how the bill could be strengthened to assist the inevitable judicial reviews because of the continuing use of a public interest test and the regulatory choice of a project list. To be clear, we are not satisfied with these policy choices, but we realize that real legislative time limits require us to make this bill a workable law that will actually achieve free, prior, and informed consent.

This bill must enable first nations to realize our rights and fulfill our responsibilities. It's about working with us to establish the laws, policies, and practices needed to respect our rights and our status as self-determining peoples.

Inevitably, the conversation will slip to the challenge of achieving the standard of free, prior, and informed consent, FPIC. To be very clear, FPIC was not created in the UN declaration. It was not created in this bill nor in Bill C-262. It already exists [Technical difficulty—Editor] in treaties in Canada. It is an essential element of the right of all peoples, including indigenous peoples, to self-determination, which Canada has recognized for decades, for example, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Consent is the essence of mature relationships and was and is the premise of treaty-making between self-determining nations.

The UN declaration set the standard [Technical difficulty—Editor] of partnership, detailing the right to participate in decisions that can affect our rights, property, culture and environment, and our [Technical difficulty—Editor]

[The Chair, Liberal, Deb Schulte]

We're losing you. I don't know if you can hear me, but we can't hear you anymore.

We're going to suspend for a second to see if we can get you back in a strong signal.

[Chief Kluane Adamek]

Can you hear me now?

[The Chair, Liberal, Deb Schulte]

Okay, carry on, please.

[Chief Kluane Adamek]

Thank you.

What does this mean in the context of this act? It means that we need a better process, one that is designed with first nations and one that involves us from the very start.

We already have many examples of practical, co-operative jurisdictions being effectively and efficiently exercised, joint decision-making in our agreements in the modern treaty context, and an example such as the Arctic Council. This kind of process and robust dialogue is essential and possible within this bill.

The CEAA expert panel recommended a process for impact assessment that incorporated first nations as governments and decision-makers at all stages of the process in accordance with their own laws, customs, and required consent before a project could be approved.

It is important to understand that we are considering what the legislation actually said and requires, not what the current government describes as the spirit of the act, which it will implement through policy.

For first nations, laws must be written in anticipation of future governments that may be hostile to our rights, jurisdiction, and authority. In this context, legislation must constrain and/or require those governments to respect what has already been written in legislation. For example, in our submission to this committee, we begin to outline some of our suggested amendments to ensure that ministerial discretion, of which there is plenty, does not infringe on first nations' inherent and constitutionally protected rights, but rather moves us forward towards the new co-operative, respectful, jurisdictional arrangements consistent with our agreements, treaties, and rights.

Finally, I'd like to focus on three areas of amendments that are intended to strengthen the modest reforms that have been tabled by the government in this part of Bill C-69. More detail on our suggested amendments can be found in the submission. These include, first, protection of first nations' inherent and constitutionally protected rights; second, full inclusion and protection of indigenous knowledge systems; and third, full decision-making with first nations governing authorities.

Protection of section 35 rights, the inclusion [Technical difficulty—Editor]

[The Chair, Liberal, Deb Schulte]

We've lost you again. We have a really bad line, obviously. We're trying our best. Can you hear me?

[Chief Kluane Adamek]

Yes.

[The Chair, Liberal, Deb Schulte]

We can now hear you. Please, carry on. You have about a minute.

[Chief Kluane Adamek]

The inclusion and direct reference to impacts on section 35 rights is an important step. However, the overreliance on discretionary clauses such as “taking into account” or “consider any adverse effects” does not fully protect section 35 rights under the Constitution. None of these statements are aligned with current case law, nor do they meet the requirements of the constitutional duties outlined in Sparrow or Haida. There is no requirement or duty under the act to comply with the test in Sparrow for minimal impairment or justification for proven rights, or the test under Haida to accommodate impacts on asserted rights. The minister and Governor in Council must uphold and protect section 35 rights in decision-making under the act and when making regulations or orders under the act. Section 35 rights are constitutionally protected and regulatory regimes to truly reconcile our societies into Canadian society in a positive and lasting manner....

The Supreme Court of Canada advised against uninstructed regulatory regimes that can infringe on section 35 rights and advised governments to provide legal guidance to increase aboriginal rights and protections.

In terms of indigenous knowledge systems, first nations strongly support the inclusion of traditional knowledge of the indigenous people of Canada in the proposed acts. However, the current wording of the provisions across all three acts is problematic. To address this, we recommend the use of the term “indigenous knowledge systems” in order to capture the nature of indigenous knowledge and make clear the distinction between traditional use and indigenous knowledge, and improve the confidentiality and intellectual property protection provisions to align with article 31 of UNDRIP to ensure that indigenous knowledge that is disclosed will only be used on that regulatory process and shall not knowingly be, or permitted to be, disclosed without written consent, and improve existing confidentiality provisions to ensure that first nations knowledge will be treated respectfully and appropriately.

Last, in terms of joint decision-making—

[The Chair, Liberal, Deb Schulte]

I hate to do this, but how much do you have left? We're really out of—

[Chief Kluane Adamek]

Thank you, Chair. I only need about 30 more seconds, and given the fact that I've been disconnected a number of times, I'd really like to be able to finish.

[The Chair, Liberal, Deb Schulte]

We did give additional time in response to that situation, so please, if you could, be very brief. We really want to hear you, but we also want to get to questions.

You have 30 seconds.

[Chief Kluane Adamek]

Thank you.

Ultimately, the objectives of reconciliation cannot be achieved if the final decision to approve a project can be made unilaterally by one party without confirmation from an affected first nation that its views and concerns have been addressed. First nations' inherent jurisdiction must be recognized—

[Technical difficulty—Editor]

[The Chair, Liberal, Deb Schulte]

We've lost you again. Sorry.

Go ahead.