Environment Committee on April 17th, 2018

[Chief Kluane Adamek]

—including the ability to make final decisions at all stages of impact assessment in accordance with their own laws and customs.

The impact assessment act and the Canadian energy regulator act must strengthen provisions to enable shared procedural decision-making points through the early engagement phase, assessment phase, decision phase, and monitoring phase. This will lay the foundation for when the Government of Canada begins respecting and fulfilling commitments made in treaties, both historic and modern. This is important work in the journey of reconciliation and is essential to enable us to move forward together in a good way.

That is what I will say. Thank you for the extra time. I very much appreciate that, and I look forward to answering any questions you might have.

[The Chair, Liberal, Deb Schulte]

Thank you very much for your patience.

We'll turn to Chief Terry Teegee for the same challenge with video conference.

[Regional Chief Terry Teegee, Regional Chief, British Columbia Assembly of First Nations, BC First Nations Energy & Mining Council]

Thank you to the standing committee, chiefs, hereditary chiefs—

[Technical difficulty—Editor]

[The Chair, Liberal, Deb Schulte]

Hold on a minute.

Go ahead, please.

[Regional Chief Terry Teegee]

[Witness speaks in Dakelh ]

My name is Terry Teegee. I'm the Regional Chief of the British Columbia Assembly of First Nations. I'm the political executive lead from the First Nations Leadership Council in regard to environmental assessment.

Considering the time constraints, I want to jump in with regard to this environmental impact assessment act, Bill C-69. First and foremost, I want to preface this discussion in regard to the comments Justin Trudeau made when he was first elected. He stated that the most important relationship that he has is with the indigenous peoples of this country.

As we go down the road in this era of reconciliation, last week, we came from a meeting where not only the Province of British Columbia but also the federal government were looking to fully implement indigenous peoples' rights and have them be recognized by the federal and provincial governments. We're in a time of reconciliation where our rights are being recognized, rather than continually going to the Supreme Court of Canada and having those rights reaffirmed and recognized.

As it relates to Bill C-69, this bill falls short in terms of recognition of the core principles of the United Nations Declaration on the Rights of indigenous Peoples. We have great concerns in regard to the legislation, as it fails to recognize indigenous jurisdiction and decision-making.

I want to state how important first nations jurisdiction as well as the ability to make decisions are in the development of many major projects. We're seeing that played out right now as it relates to Kinder Morgan, how first nations who have made their decisions aren't being recognized in regard to the final decisions of those major projects.

While the impact assessment act and its predecessor, the Canadian Environmental Assessment Act, 2012, recognize indigenous and aboriginal peoples' rights and entitlement, decision-making at all points is retained by the federal crown. This is a major point that I'm bringing up in regard to recognition of our indigenous peoples' right to make decisions.

This was brought up as part of the expert panel in regard to environmental assessment. There was a clear indication the panel stated that indigenous people need to be recognized in how final decisions are made on major projects. This bill falls far short in that regard.

It should be noted that the decision-making process needs to be recognized for indigenous peoples throughout the impact assessment act, from the preamble right to the definitions and provisions throughout the purpose of the act itself. This is quite important, especially in the age of reconciliation and the provisions for free, prior, and informed consent.

The second issue is that the provisions for indigenous-led reviews may be impossible to implement. Although the act states that there could be provisions in regard to indigenous peoples leading their own environmental assessment process, their governance may not be recognized in regard to the project of concern. Moreover, these opportunities may be lost if these first nations who want their own review process to be engaged are not properly resourced.

In my own experience, in my history as the tribal chief of the Carrier Sekani Tribal Council, I have had the ability to review not only one oil pipeline, but four LNG pipelines and two mining projects. In many of those cases, our indigenous people led environmental assessments of those projects. Moreover, it was quite difficult to get proper resources. More often than not, we had to use our own resources to review those projects.

The third issue is that there is a narrow approach to indigenous knowledge, traditional and ecological knowledge, as it is sometimes called. Moreover, the expert panel that reviewed it with regard to what should be brought into a new assessment act said that indigenous knowledge should be acknowledged and given the same weight as western knowledge. It's really important that our experts are indigenous peoples, such as elders and people who live off the land. It's important that those ways of knowing are given the full weight of all we acknowledge and utilize western science. It gives a different world view to these major projects and a better understanding of how our indigenous people use the land.

The fourth issue is that the core deficiencies we find in the impact assessment act are also found in the Canadian energy regulator act. There are many shortcomings in the Canadian energy regulator act in recognizing the jurisdiction and the ability for indigenous people to make decisions with regard to the United Nations Declaration on the Rights of Indigenous Peoples, and more importantly, their ability to make decisions with free, prior, and informed consent.

It's really important that throughout this whole process within the act, there should be provisions for resourcing funding for indigenous peoples, funding for elders to participate. It's really important to have a communication strategy for the indigenous peoples to fully understand some of the scientific explanations of environmental assessments.

It's very important that the free, prior, and the informed consent part of any environmental assessment be well understood. It goes both ways. The Government of Canada and the Province of British Columbia need to understand the indigenous world view prior to any major project being given the green light. We're seeing that play out with the Kinder Morgan project, which had been approved by the previous Environmental Assessment Act. It was reviewed by the Liberal government, but it doesn't meet the standards for some of the first nations. This is why there is this issue over the Trans Mountain oil project.

There is going to be a question and answer session, so I'll leave it at that right now. I'm hoping I'm ending a little early. I want to thank the standing committee, the indigenous people, and the many interested parties who presented to you, to make sure that we have a fulsome impact assessment act that represents all peoples.

Mahsi cho.

[The Chair, Liberal, Deb Schulte]

Thank you very much. I appreciate your meeting the time requirements. I know it's not the right way to be doing things, but it is a constraint of the committee, unfortunately. We have limited time.

Next up would be Chief Boucher.

[Chief Jim Boucher, Chief, Fort McKay First Nation]

Good afternoon, Madam Chair and members of the environment standing committee. It's a pleasure to speak to you today about Bill C-69.

I am Jim Boucher, chief of the Fort McKay First Nation. With me are Dr. Alvaro Pinto and Tarlan Razzaghi, our legal counsel. They will help me answer questions that you may pose to me later.

It is my duty as chief of the Fort McKay First Nation to protect and advocate for the Cree and Dene people of our first nation and our cultural identity, values, traditions, and way of life. It is my job to ensure our constitutionally protected rights are recognized, respected, and upheld by Canada, other governments, and Canadians in general.

Fort McKay is located at the very centre of the oil sands in the Athabasca region in northeast Alberta. Our ancestors have lived in our traditional territory since time immemorial. For us, this is not merely a landscape or a location of exploitable resources. It is our home. It is sacred to us because it has provided the necessities of life: water, animals for food and clothing, and the materials for shelter.

Figure 1 on page 12 of our brief shows Fort McKay's traditional territory. In the 1970s, oil sands production was 250,000 barrels per day. Today it is 2.5 million barrels per day, a tenfold increase, the majority of that in the last two decades. Figures 2 and 3 on pages 13 and 14 show that growth, which has taken up 75% of our traditional territory through mineral leases awarded by the provincial Government of Alberta without proper consultation, which is shown in figure 4 on page 15.

Our sustainability department addresses scores of oil sands-related applications every year. We hire the best scientific experts available and blend that with our expert traditional knowledge to pursue what we view as sustainable development.

The United Nations' Brundtland commission defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Sustainable development means, of course, economic opportunity, but more important, it also means passing on our traditional lands and the traditional use of those lands to future generations, just as they were passed to us.

Bill C-69 affirms the federal government's commitment to nation-to-nation and government-to-government relationships that recognize our unique identity, rights, and traditions: the foundation for reconciliation. It has been easy for governments to talk about reconciliation, but more difficult to translate those words into action. I have yet to see a true example of reconciliation from this government. With its power and authority, we are perplexed to see Canada relinquish its fiduciary duty to first nations to assess and mitigate development impacts that adversely affect reserve lands and traditional territories, our first nations people, and our treaty rights to the lower orders of government.

Do not mistake me: Fort McKay is not opposed to oil sands development. We are, in fact, among the most proactive of first nations with respect to oil sands development. Working in the oil sands sector has brought to the first nation and its members opportunity, economic self-sufficiency, stability, and prosperity that are inaccessible to many first nations people across the country, but as I said earlier, Fort McKay is also surrounded by oil sands development that has increased 1,000% since the 1970s.

Working with industry to advance shared objectives requires mutual respect and an acknowledgement that section 35 grants to all first nations the right to continue a way of life. It also demands that we identify the full range of impacts to first nations and take action to mitigate and accommodate our concerns.

Our concerns with Bill C-69 relate to the expert panel recommended consensus-based decision-making process. Bill C-69 unfortunately does not reflect that recommendation. The bill does not require proponents, governments, and first nations to work together to ensure that impact assessments are meaningful or adequate with respect to first nations people or their lands, even though it defines “effects within federal jurisdiction” as any change to the environment that would impact the physical and cultural heritage, traditional land use, significant historical, archaeological, paleontological, or architectural features, and the health and social or economic conditions of Cree and Dene people. Bill C-69 cites transboundary effects but does not acknowledge that direct or indirect impacts on reserve lands arising from activity on provincial lands are, in effect, transboundary.

The oil sands developments that surround our reserve pose tremendous insufficiently regulated risks to our people. For example, existing tailings ponds contain 1.3 trillion litres of contaminated water, enough to fill an eight-lane Olympic swimming pool 11,000 kilometres long stretching from Ottawa to Beijing with 11,000 pools left over.

A tailings pond breach from any mine would devastate our homes and reserves. When approvals are granted, there is no longer any federal presence. In fact, in the mid 1990s, Canada effectively approved by default all future tailings ponds in anticipation of new treatment technologies that still have not arrived. Canada takes too little action with respect to tailings ponds. Canada must consider the life-cycle impacts of tailings ponds.

As another example, Environment Canada installed the most advanced mobile air quality monitoring station in the world at Fort McKay. Scientists chose Fort McKay for its unique exposure to intense industrial activity. Environment Canada conducts research on air quality features of national and international importance and releases its data to the public. However, action to protect reserve lands from airshed impacts is left to Alberta, which relies on embarrassingly outdated ambient air quality objectives that do not protect human health. After years of disappointment, the provincial regulator finally acknowledged frequent exceedance of provincial standards in 2016, but provincial action remains elusive.

Another example is For McKay's Moose Lake Reserves to the northwest of our community, which were set aside in 1915 to preserve our traditional way of life. These were expanded in 2004 when Canada settled our treaty land entitlement claim. To fulfill the promise made in Treaty 8, Canada must protect all reserve lands designated for the exclusive use of Cree and Dene people. Five years ago, Alberta approved a 260,000 barrel per day project on the border of those reserves, and the first phase of a 40,000 barrel per day project is in the provincial regulatory process. Other projects are in the planning stages. Fort McKay requested federal intervention, but Canada has done nothing to help us protect our Moose Lake Reserves.

Alberta exempts pilot projects of 12,000 barrels per day or less from impact assessments. Accordingly, many companies announce projects that begin with a 10,000 barrel per day pilot, which increase by 10,000 barrel per day increments, and so get away with completing no impact assessments at all. The federal government must recognize and act upon its fiduciary duty to protect first nations and Fort McKay's occupation, active use, and enjoyment of its reserve lands, including our traditional territory.

The act must enable our first nation to sit at the table with the federal and provincial governments and all project proponents to protect reserve lands and our people from the beginning.

I think I'm running out of time; therefore, I'm going to say that we made some recommendations, and I'll pass this over to you and leave myself open to your questions.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

The committee members at this point don't have the recommendations in front of them, because the document was only in English and we haven't got it translated. That's going to be a bit of a challenge.

We're going to share it by email afterwards. I don't know what else to do.

Next up is Chief Ernie Crey.

[Chief Ernie Crey, Indigenous Co-Chair, Indigenous Advisory and Monitoring Committee for the Trans Mountain Pipelines and Marine Shipping]

Madam Chair and honourable members, I'm Chief Ernie Crey. I'm the Chief of the Cheam First Nation in the Fraser Valley of British Columbia, but I appear before you today as the indigenous co-chair of the Indigenous Advisory and Monitoring Committee for the Trans Mountain Pipelines and Marine Shipping. Appearing with me is Tim Dickson of the JFK Law Corporation, who is legal counsel for the indigenous members of the committee.

We have provided a written submission, which we hope you will read and consider carefully. Today, we will make some broader oral submissions, and then we would welcome any questions you may have.

Turning to our recommendations in brief, we are making two recommendations with respect to Bill C-69. Mr. Dickson will speak to them more fully in a moment, but I will briefly state our recommendations.

The first concerns the provisions of the impact assessment act and the Canadian energy regulator act that allow for the delegation of authority to indigenous governing bodies. Our view is that the definition of which bodies may receive delegated authority is too restrictive and will, in many cases, defeat the objective of advancing reconciliation and indigenous involvement in the regulation of major projects.

Our second recommendation concerns ensuring that enough time is provided to form indigenous committees effectively.

As I said, Mr. Dickson will address these points in more detail in a moment.

First, I want to provide an overview of the committee, how it was formed, and what it is doing presently.

The committee was formed in response to a letter that Chief Aaron Sam and I wrote in June 2016, which was supported by representatives of over 60 indigenous communities, where we called for the establishment of an indigenous oversight committee to monitor and regulate the pipelines and marine shipping.

The federal government took up that suggestion, and when it approved the TMX project, it committed to co-developing an oversight committee with affected indigenous communities, and it approved a significant level of funding for it. Many of you might recall the amount. It was nearly $65 million over five years.

The terms of reference were negotiated and ratified in the six months that followed the announcement. We were formally established in July 2017. In my experience with these kinds of bodies, and I have a lot of experience with these kinds of bodies, that is extremely fast, a point I'll address more fully in a moment.

The committee is comprised of up to 13 indigenous members and six members from the federal government and National Energy Board. The NRCan member is the government co-chair. The indigenous members, which form what we call the indigenous caucus, seek to represent the interests of the 117 affected indigenous nations and communities. They do not formally and directly represent those nations; however, there are just too many affected nations to allow that to happen. Rather, the indigenous members are selected by the nations in particular regions to sit on the committee, and they seek to represent indigenous interests and perspectives broadly.

Related to that point, the terms of reference make clear that the committee does not replace nor reduce the government's duty to consult indigenous nations, and participation with the committee is without prejudice to a nation's position on pipelines.

The committee's main roles are to monitor the pipelines and marine shipping to make sure the rules and conditions are being followed, to give advice to government in the development and application of those rules and conditions, and to provide funding to communities for projects related to the pipelines and marine shipping, for example, spill preparation and response.

The committee aspires to having a more direct role in the regulation of pipelines and marine shipping in the future.

The indigenous nations want to see the committee be a forum for shared decision-making in respect of the pipelines, where government and indigenous nations can together regulate the pipelines and marine shipping to better ensure the protection of the environment and aboriginal title and rights. In our terms of reference at proposed section 14, the government committed to looking for ways to deepen indigenous involvement in regulation. Indeed, that direction for future involvement is part of why we're here today.

Last, the committee operates by consensus, except that the caucus, that is, the indigenous caucus, can formally give advice to government on its own where the government members are unable to sign on to it.

We have seen a great deal of success at the committee. Among other things, we have seen that it is possible to operate from consensus even where there are very different perspectives on the pipeline. Our committee not only has both government and indigenous members; the indigenous members come from nations that support the TMX and nations that oppose it—indeed, nations that are leading the charge to have the Federal Court of Appeal overturn the approval. Those folks are on this committee.

I want to mention a few points on why I think this kind of constructive consensus building is possible at the committee and why the committee has received a great deal of support among affected indigenous nations.

First, the committee's role is not about whether the pipelines should be—

[The Chair, Liberal, Deb Schulte]

Chief Crey, I'm really sorry to do this, but the committee is very keen to get to questions. That's why we gave only 10 minutes for everybody to try to just set the stage.

We're over 10 minutes. How much more do you have?

[Chief Ernie Crey]

Just two minutes.

[The Chair, Liberal, Deb Schulte]

It means that we're going to cut questions. Are you all right with that?

[Chief Ernie Crey]

Yes, that's fine.

[The Chair, Liberal, Deb Schulte]

Fair enough. It's all yours.

[Chief Ernie Crey]

First, the committee's role is not about whether the pipelines should be there or not. Rather, it relates to making them and the marine shipping as safe as possible if they are going to be there. That is an objective everyone can agree upon. It is the kind of topic where there is real opportunity for government and indigenous nations to work together. On a highly contentious and divisive project like the TMX, there are issues on which we can find common ground.

Second, there is broad agreement that the committee is an important step in advancing reconciliation and UNDRIP in relation to the Trans Mountain pipelines. Indigenous nations have long called for more involvement in the regulation of activities on our lands. We know that we have to step up when those opportunities come along. The federal government, I think, also sees this committee in terms of reconciliation and UNDRIP, and it too has stepped up with very substantial funding and political support.

Third, it is important that the committee members do not purport to represent the aboriginal and treaty rights of the affected nations. As I have said, the federal government's consultation list has 117 nations, bands, and communities on it. I don't want to say it's impossible to form an entity that would represent all the affected nations for the purposes of their section 35 rights, but I think it is very, very unlikely, and even if possible, it would take a long time. If it were the goal to form a governing body representing section 35 rights, I very much doubt it would be formed.

That concludes my part of the oral presentation.

Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

I will let members know that even though we weren't able to have Fort McKay's notes in front of us as they weren't translated, the recommendations were part of what was given to us in advance, so we do have those, which is good. We also just got the one for the Assembly of First Nations. You should have that in front of you now.

We'll turn to questions, and we'll start with Mr. Aldag.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Thank you.

I'd like to begin by acknowledging that we're meeting on the traditional territory of the Algonquin Nation. I am visiting this territory from where my home is, which is on the Coast Salish people's land, specifically the Kwantlen Nation, Katzie Nation, and Semiahmoo Nation, which are just down the valley from Chief Crey's traditional territory.

Welcome, everyone. It has been a very insightful panel, and I think you've done a wonderful job at outlining the complexity and the need for us to try to get right in this legislation the relationship in how we work with the indigenous communities across Canada on assessment of projects.

There were three areas that I was really delighted to hear each of you touch on. These three areas I want to explore are reconciliation, consent, and jurisdiction. In the six minutes that we have, we're not going to get into it, so if anyone has any additional thoughts from the brief discussion we'll have, and if you have any additional thoughts beyond the comments you've given, please feel free to send in any submissions to the committee.

The first area I'd like to talk about is how the impact assessment act specifically, or any of Bill C-69, could incorporate free, prior, and informed consent, which has been discussed, in a manner that could work in practice, given the large number of impacted communities on any project.

Chief Boucher, I heard you speak at the GLOBE conference. You talked about the work your community is involved in with the oil sands and moving that product through pipelines, and what we're seeing with Trans Mountain, which, as Chief Crey has said, involves many nations. I am interested in some brief thoughts about this question of free, prior, and informed consent, and how we do that when we have a large number of communities involved.

Mr. Dickson, would you like to start, and then we'll move to Chief Boucher.

[Tim Dickson, Legal Counsel, Indigenous Caucus, Indigenous Advisory and Monitoring Committee for the Trans Mountain Pipelines and Marine Shipping]

Thank you, Mr. Aldag.

Our major recommendation here goes to the provisions in both the impact assessment act and CERA that allow for the delegation of decision-making authority. Our interest is in making sure that this is realistic and achievable. Right now the legislation defines the bodies that can receive delegated authority as indigenous governing bodies. That would be very appropriate in some circumstances, but when you have many nations impacted by a major project, and particularly a linear project like a pipeline, it is not going to be achievable. There are just too many nations for you to be able to form a body that is going to formally represent their section 35 rights.

Our submission is that the act should provide for more flexibility, because there may be times when there is sufficient support from the indigenous nations to form a body that is like our committee. It does not replace the duty to consult and does not formally represent section 35 rights, but indigenous nations would prefer that this body exercise some authority instead of it all being left with the regulator, and instead of only the government making those decisions.

Our position is that the legislation is drawing the box of where delegation can happen. Don't make it too small. Let the regulations, and most importantly the minister, make a determination on a case-by-case basis for when delegation is appropriate and to what kind of body. We recommend that you broaden the definition of “indigenous governing body”. We've suggested “indigenous organization”. It doesn't have to be that; we just suggested that because it's already in the bill. Make it broader than just “indigenous governing body”, and let the minister, in consultation with nations, decide when delegation is appropriate and to whom.

Again, we fully support the recognition of inherent authority by nations. That is the ideal, but sometimes it's going to be very difficult, if not impossible, to marry that with delegated authority. In the least we want to see the indigenous side involved in a serious way in making decisions.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

I'm just going to jump in as the chair just told me we have one minute left.

[Tim Dickson]

Sorry.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

I want to offer the opportunity to either of our video conference guests to make a comment.

You did speak about the idea of consent. Are there any additional thoughts you'd like to make before we run out of time on this round?

[The Chair, Liberal, Deb Schulte]

John, please choose who you'd like to start, and then we'll go from there.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

I'm trying to flip through to find names. Maybe our female panellist could start.

[The Chair, Liberal, Deb Schulte]

Kluane.

[Chief Kluane Adamek]

Thank you.

In terms of how the federal government should go about obtaining free, prior, and informed consent, there isn't a one-size-fits-all. There needs to be dialogue among governments and indigenous peoples to establish how free, prior, and informed consent will be obtained and respected. I certainly would encourage the committee to look at the nation-to-nation relationship so that nations can identify how free, prior, and informed consent will be navigated with projects, how it will be obtained and respected.

I'll turn it over to Regional Chief Teegee.