Environment Committee on April 24th, 2018

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you, Madam Chair.

Thank you very much for being here today. Thank you to the folks on the phone for being here and being so patient.

I'm going to go first to Ms. Darling and Ms. Lam, and thank you again for being here.

I wasn't certain exactly who was speaking when you were speaking, so feel free to answer, whoever feels like answering this.

By incorporating indigenous knowledge into the process with Bill C-69, do you feel that this is going to create a better relationship between government, the proponents, and indigenous groups?

[Jennifer Lam]

This is Jen Lam speaking.

It's already been shown in the past reviews that have been done in this area that the inclusion of Inuvialuit knowledge in the process has created a great amount of buy-in in the process itself. Our past review processes have included a lot of input from the communities. The screening committee and the Environmental Impact Review Board, along with the government members, of course also have Inuvialuit members. Those offices also have a fairly close communication link to our communities' hunters and trappers committees. There's already a very strong relationship with Inuvialuit people, and Inuvialuit people trust this process.

[Kate Darling]

I would add to that, just from a perspective of mutuality, which reconciliation requires, it's essential for a decision-maker to not only ensure that stakeholders understand what's at stake, but also that the decision-maker understands the perspective and the views of those who may be adversely impacted, and specifically rights holders. If there isn't an appropriate venue for sharing that understanding, in other words, unless there's a mechanism for knowledge flowing in both directions, the process is invariably incomplete.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

I had the opportunity to sit around a table with some Nova Scotia chiefs on the weekend, a round table, and it wasn't about this bill, but they did lament the historical issue with interdepartmental coordination. Do you think the things that are in Bill C-69 will improve interdepartmental coordination, that whole-of-government consultation with indigenous groups?

[Kate Darling]

I think that remains to be seen, to a certain extent.

I'm sorry, was that question directed to me?

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

It was for either you or Jennifer.

[Kate Darling]

Thank you. I'll take it first.

Some of it remains to be seen in the implementation of the resulting act. Certainly funnelling consultation efforts through an agency that has an obligation to perform those functions would be of assistance. The provisions obliging departments to provide their expertise to the review process will be of assistance. What we don't see in the consultation provisions is a very clear standard that the consultation has to meet. While the agency must offer to consult, there isn't an express obligation to complete consultation of any kind of quality.

To your question, while I think there are provisions that do support better interdepartmental coordination, it will remain, I think, for the managers within departments to give their staff the authority and the resources in order to do it. At the end of the day, the quality of the consultation has to be something that can be evaluated and mindful of the recent jurisprudence out of the Supreme Court of Canada.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Jennifer, you said that the 2012 legislation provided some unnecessary complications, and that you voiced your concerns at the time. Does Bill C-69 solve any of those unnecessary complications that were in the 2012 legislation?

[Jennifer Lam]

I think under the new proposed act there is some language that provides some clarity. However, I don't think it is strong enough to be able to provide the certainty that the Inuvialuit are requesting.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Ms. Hoyt, you said something that I thought was really interesting. You said that Bill C-69 seems like it's reacting to projects rather than being proactive. I hadn't really thought about that. Perhaps you can finish off the time on that topic. Is it possible to be proactive when we're dealing with a project that comes forward by a proponent?

[Andrea Hoyt]

I think there are a couple of problems around the projects with Bill C-69. One of the problems is that we don't know what projects we're talking about. There is a project list, but we don't know what it covers. There are not clear stopgaps to let us know what we're even going to be assessing and what designated projects are, and for things that are not designated projects, what level of screening or consideration by the federal government there will be. So that's a problem.

I think I'm out of time.

[The Chair, Liberal, Deb Schulte]

Sorry. I'm sure we'll explore that a little further.

Next up is Mr. Fast.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you very much to all of our witnesses for appearing here today.

My question is for all of you, because all of you referenced the right to substitute that is articulated in proposed section 31 of the bill. You have already noted that it's actually the minister's discretion on whether a substitution will be permitted. A number of your organizations already have agreements in place that have been there for quite a number of years. You've been operating under those. Now there's another process that you're being expected to accommodate somehow.

I believe either Ms. Darling or Ms. Lam referred to “parallel” systems. You have the Inuvialuit Final Agreement in place. Now you have Bill C-69 also, running parallel to that process. I believe one of you articulated that you're concerned that this was a discretionary power on the part of the minister whether to allow the local process to substitute for the impact assessment process set out in Bill C-69.

My first question is for all of you. In your consultations with the government leading up to Bill C-69, did you apprise them of this concern, and did they acknowledge that this was an issue that needed to be dealt with? Second, can you more broadly comment on how this parallel system is still going to challenge your ability to have, effectively, a full say in what kind of development happens in your region?

[The Chair, Liberal, Deb Schulte]

Who is going to start?

[Ed Fast, Conservative, Abbotsford, BC]

We'll start with Mr. O'Connor and Ms. Hoyt, then Ms. Darling and Ms. Lam.

[Mark O'Connor]

The provisions in this bill that render substitution or harmonization possible aren't completely new. Historically and to this day, there have been parallel processes going on. Of course, we've asked for that to be simplified and to have one process throughout this and previous reviews to the legislation. Similar requests have been made by the Kativik Environmental Advisory Committee that I spoke about.

I understand that the provisions that are in the act now leave the door open for that to happen. The case of northern land claims is different because they are established, because they have processes that are working and are going to be happening. Whether or not the James Bay and Northern Quebec Agreement regime will be applied to a project isn't a question. It will be, and the same is true for any development in the offshore area through the NILCA processes.

The question is, do we need another layer on top of that? Personally, I think no. Nunavik hasn't been a region where there have been a lot of major development projects that have been assessed. The last one was in 2012. It was a mining project that was assessed, and at that time the federal agency, the CEAA, applied to the region, so we had three ongoing review processes for the same project. One of them was led by folks who were completely unfamiliar with the region and depended on the communities for logistics. In fact, they depended on the communities for everything, essentially, and it was a bit of a frustrating experience for everyone involved.

[Ed Fast, Conservative, Abbotsford, BC]

Unfortunately, we're a little short on time, so I'm going to quickly ask the other three to also comment on my question and whether their fix for this is to remove the minister's discretion, so that it would become automatic that substitution takes place.

[Andrea Hoyt]

The Nunatsiavut Government is in a slightly different position from the other two—or three—Inuit regions, in that we do not have a harmonized environmental assessment process in our land claim agreement. Our environmental assessment chapter lays out different regimes, depending on where in the settlement area the project ends up.

If it's a project that goes on Inuit private land and provincial crown land and is also on a federal designated project list, we currently have the potential under CEAA 2012 and we will continue under Bill C-69 to have the potential for at least three environmental assessments to happen concurrently. The problem is not solved here because we don't have a harmonized process to substitute.

[Ed Fast, Conservative, Abbotsford, BC]

Was that brought to the government's attention in your consultations?

[Andrea Hoyt]

Yes. We've been very clear and consistent in our messaging, all of the Inuit regions, on that throughout.

[Ed Fast, Conservative, Abbotsford, BC]

I have to be quick. I have to go to Ms. Darling and Ms. Lam yet.

[Kate Darling]

Thank you.

To answer the question you just posed with respect to removing the minister's discretion and whether that would resolve the issue, it would, to a certain extent. That's why we were looking at proposed section 4 as a bit of a carve-out along the lines that Mr. O'Connor mentioned during his presentation.

One of the things we proposed in our written submissions to this committee was to include a substitution process that is automatic. In reverse, a jurisdiction could request that the minister exercise his or her authority to substitute the federal process if it was found that there were capacity issues or something like that, to allow the development of the capacity within the region.

This is like the substitution provision that's recommended in the bill in proposed section 31, but in reverse.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you very much.

The testimony of all of you is really important and I very much look forward to seeing your briefs, as I want to have time to consider the specific amendments you're proposing.

As you know, we heard from Mr. Namagoose and he made the same type of proposal about a carve-out. One thing that puzzles me is, having heard your testimony, is why in Bill C-69 we only somewhat carve out the Mackenzie Valley Resource Management Act, completely ignoring all the other first nation self-government and land claim agreements and impact assessment processes of the north.

Perhaps it was Ms. Darling and Ms. Lam who spoke about this. I wonder if you could clarify something. There is added confusion because not only do we not know the project list, we don't know what's going to be on schedule 2. If your entities are included on schedule 2 so that you have a carve-out, or some such thing, we would probably have to remove section 40, which allows the minister to exercise her discretion and impose her system instead.

I hope that your briefs will resolve that. Are you looking for more specific measures in Bill C-69 that clearly state a carve-out? If you want a carve-out whereby your processes apply instead because there's greater confidence of the peoples of your region, do you have sufficient resources in all cases to deliver that, or do you need some type of provision in here where the federal government could assist with funding?

That question is for each of the three of you, maybe first to Ms. Darling and Ms. Lam.

[Kate Darling]

Thank you very much for that question. It is insightful.

First, just for clarity, the Mackenzie Valley Resource Management Act does not apply to the Inuvialuit settlement region.