Environment Committee on April 24th, 2018

[Linda Duncan, NDP, Edmonton Strathcona, AB]

You're saying that this is the only one that's carved out right now.

[Kate Darling]

That's right. We made a note of that and wondered why or how it came to be.

With respect to your question, a specific carve-out is what Inuvialuit has been advocating for. Just recall that the system in the Inuvialuit settlement region is based on co-management, so the federal government is at that table and is active in the process. With respect to capacity, capacity issues do abound, but they aren't going to be assisted in any regard by applying a parallel process that undermines the land claim process.

When I was thinking through our comments this morning, one thing I wanted to put to the committee was the consideration of a recommendation that gives the agency authority to provide capacity support for a land-claims-based impact assessment body upon request by a jurisdiction as defined in Bill C-69 under proposed section 2.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

Ms. Hoyt.

[Andrea Hoyt]

As I said, we have a slightly different situation in that we do not have a co-managed EA process. Substitution is an option for us, but it's not as clear because we don't have a process where the different governments are represented collectively.

Resources are always a challenge. We're a small government, and when we have a big project proposed and there are three or possibly more processes.... In the worst case scenario, there was a project proposed two years ago. We spent 18 months trying to negotiate a harmonization agreement with the provincial and federal governments. We were unsuccessful. Without a harmonization agreement, it would have been subject to five simultaneous environmental impact processes. The proponent then rejigged their project to avoid us, to reduce the number of EA processes they would have to go through, and then ultimately went bankrupt. That's not an efficient way to do it. The resourcing for us to contribute to five processes is very challenging.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. O'Connor.

[Mark O'Connor]

Very much along the same lines as Kate mentioned, there would need to be, obviously, some type of capacity. Our regional assessment processes currently don't have staff capacity. The NILCA board has one employee working both the impact review board and the planning commission, so yes, certainly there would need to be provisions that allow agency staff to provide the support that they would otherwise be providing to it.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I wonder, Ms. Hoyt, if you'd like to speak to your call for a non-derogation clause and free, prior, and informed consent.

[Andrea Hoyt]

I can speak very quickly to the non-derogation clause. I didn't realize you guys hadn't seen our submission, so you haven't seen the amendments we propose in there yet.

The non-derogation clause that's in the current bill is very minimal, and we've proposed language that is a bit more generous and is in line with what the Senate committee proposed when it reviewed non-derogation language. We suggest, “This act shall be construed so as to uphold existing aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.” It's just a bit more generous language.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair.

Thank you to our witnesses from afar. I appreciate that it is such a challenge, sometimes, to provide such testimony, but it is clearly heard and appreciated.

I want to direct my initial line of questioning to the representatives of the IRC. By way of context, I want to get into a specific example because I think it might be helpful to examine that circumstance, that example in the IRC's territory, to inform this process. Prior to becoming a politician, I represented a conservation organization that was involved in an environmental assessment process that was being undertaken by the National Energy Board. The project has since been withdrawn. It was in relation to deepwater drilling 100 kilometres or so off the coast of Tuktoyaktuk. Obviously the IRC was going to be a key participant in that process, and there was going to be an integration of some nature.

I want to know what you liked and what you didn't like, more importantly, about that process, and how you see the bill that is being proposed as materially changing the way that process might have been undertaken, in a positive way.

[Ed Fast, Conservative, Abbotsford, BC]

That was a leading question.

[William Amos, Liberal, Pontiac, QC]

It could be rejected.

That's directed to Ms. Darling, please.

[Kate Darling]

Thank you. This is Kate speaking.

Unfortunately, I don't have first-hand knowledge of that experience. Jen was around at that time, so I'll let her share her thoughts, as they may be relevant.

I will note one thing about this bill that is positive and would be of assistance: the early engagement provisions within it. This is certainly something that Inuvialuit and our Inuit colleagues from across Inuit Nunangat argued for in the Clyde River case and supported in our submissions to the expert panel and then again to this committee.

The importance of the pre-planning phase and early engagement is fundamental to ensuring that any kind of delay and duplication isn't experienced with new processes. Again, we have to underscore that the preference is to not have a duplication of processes but rather one robust system that's adequately supported and is consistent with the promises made in the Inuvialuit Final Agreement.

I'll pass this to Jen.

[Jennifer Lam]

Thank you.

Understand that the deep offshore drilling proposal was a very massive review to take on. Much as Kate mentioned, there was a lot of work done prior to the proposal even coming forward, not only from governments but also from industry. Industry was up in the ISR. They had liaisons in the community. There was an ongoing conversation with both the Inuvialuit Regional Corporation and the Inuvialuit Game Council to get a better idea of what they should be bringing forth in terms of the proposal, what concerns they should be addressing from a community level. There was an ongoing slew of workshops that industry worked with the game council and IRC on before it even developed its proposal.

That kind of speaks to the depths of relationships that the Inuvialuit have been able to build, not only with governments but also with industry. They've created a very strong relationship with both government and industry. At the end of the day, the Inuvialuit offer sustainable development and they understand the need for all this work on the front end in order to create a proposal for development where there are fewer hiccups and challenges down the line. I think that's part of the strength of the IFA.

[William Amos, Liberal, Pontiac, QC]

Okay. I appreciate that the IFA essentially imposes constitutionally protected obligations to consult, so this kind of behaviour is to be expected and anticipated. But was the IRC comfortable with undertaking that environmental assessment, which would have been a process, as I understand it, driven effectively by the National Energy Board at the time, and was the IGC comfortable with that situation?

[Kate Darling]

What I remember is that at the time, because the review board was also starting its process, there was confusion and a lack of communication about how those timelines and processes were going to be implemented and whose spot was going to table which issues. Unfortunately, when the review process was paused, I think many stood back and were wondering how, if this were to have gone ahead, it would go through. There was still a lot of confusion about the roles of the various boards, including the NEB, and about how they were going to talk to each other.

[The Chair, Liberal, Deb Schulte]

Thank you very much. I'm sorry that we've run out of time on that line of questioning.

Monsieur Godin.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you, Madam Chair.

I want to thank the witnesses for taking part in this exercise. It is informative for us. We are in a rush to assess a bill that is 400 pages long and we need your help. I am no expert, so your comments are very relevant and very helpful to us in our work as parliamentarians.

I will now turn to Ms. Lam, who is on the other end of the line.

In your presentation, you said that you support the bill's objectives. I have a very simple question for you: are we taking the right steps to achieve those objectives?

[Jennifer Lam]

The spirit of the bill I think moves in the right direction. At least for the game council, the manner in which the government went about consulting and working with the land claim groups, striking the expert panel, and building an understanding of what they were trying to do sounded very promising. The intent of the bill I think is on the right track. The purpose is to foster sustainability and protect the environment, then the health, social, and economic conditions. That is all hand in hand with the land claim.

For Inuvialuit, I think the main point we wanted to put forth was what we've provided this morning to you all: to provide clarity and certainty for the land claim groups as well as for industry and government.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you, Ms. Lam.

From your answer, it seems we are on the right path, but you did not reassure me that these are the best steps to achieve the objectives. That is what I understand and I see things the same way as you do.

My second question is for you, Ms. Darling. You have concerns about section 31, which pertains to substitutions. You also have doubts about schedule 2 because it is not clearly defined. What could we do to allay your concerns?

[Kate Darling]

Thank you very much.

I do not understand. Which concerns are you referring to?

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

You talked about section 4 and the fact that schedule 2 is not clearly defined. You have concerns about the definition of projects to be included in schedule 2.

[Kate Darling]

Thank you.

Proposed section 4 of the bill is a very broad non-application clause. It's unclear, because schedule 2 has yet to be defined, whether this would remedy any of the concerns that Inuvialuit have brought forward on the issue of the application of the act to this region. Instead of applying to jurisdictions, which is what Inuvialuit have over their land and region by virtue of the IFA, this clause applies simply to land.

The text we're recommending is to improve the clarity of that clause in order to provide for a carve-out, as Mr. O'Connor called it, or a non-application to those jurisdictions that have land claim agreements that have impact assessment systems within them.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you, Ms. Darling.

My third question is for Ms. Hoyt.

I will summarize your comments briefly, but I do not want to put words into your mouth. I understood that you are concerned that the projects to be assessed will not take into account the viability and public interest of your indigenous group.

Based on what you said, is it true that this bill could gradually eliminate rights and the viability of various indigenous groups?

[Andrea Hoyt]

It's not that this bill specifically will eliminate the rights of indigenous groups, but overall the federal laws have tended in that direction. We are concerned that this law does not move in the opposite direction, as it could.