Evidence of meeting #110 for Environment and Sustainable Development in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was project.
A recording is available from Parliament.
Conservative
Ed Fast Conservative Abbotsford, BC
Thank you very much.
My question is going to be directed to both Mr. Hubbard and Mr. Labonté. If you are unable to answer and someone else on the panel has the answer, please feel free.
You heard some discussion earlier, as we were asking questions of the minister, about free, prior, and informed consent, which is a standard that first nations are asking to be incorporated. Right now in Canada, the standard is “duty to consult”, which the courts have shaped over the years. It's something we understand reasonably well.
In your view, does the process established by the new impact assessment act sufficiently discharge the crown's duty to consult and accommodate aboriginal peoples?
Terence Hubbard Director General, Petroleum Resources Branch, Department of Natural Resources
One of the core drivers of the changes proposed to the Canadian energy regulator is to implement some of these principles the government has committed to on reconciliation with indigenous peoples. That includes strengthening our approach to consultations with first nation communities.
Built right into the provisions of the legislation is clarity on how the regulator will consider impacts on indigenous rights, and how it will consider and protect traditional indigenous knowledge. It will include requirements for representation on the new corporate board of governors overseeing the regulator, as well as within the commissioners who would hear individual projects' indigenous representation.
Yes, as we develop the legislative framework, we have built these principles and considerations into it.
Conservative
Ed Fast Conservative Abbotsford, BC
Earlier, Ms. Duncan asked the minister whether she was prepared to incorporate UNDRIP fully into the legislation. The response was that she's prepared to consider it. Then, I believe Mr. Amos asked the question again. She responded that she is prepared to consider it.
I'm assuming, since she's already indicated that she is prepared to consider incorporating elements of UNDRIP into the legislation, that you would have turned your minds to what that might mean. We've had first nations before us, and some of them have said they don't believe UNDRIP represents a veto. There are others who say it is a veto. Have you done any legal analysis on what it would mean for projects that have to undergo this new impact assessment process?
Director General, Petroleum Resources Branch, Department of Natural Resources
The government has been clear on its intent to utilize these consultation processes and this legislative process to support the implementation of these commitments. That includes aiming to achieve consensus and consent in the development of these projects. Building in a more inclusive approach and deeper consultations will help facilitate those objectives.
Conservative
Ed Fast Conservative Abbotsford, BC
That doesn't answer my question, of course. If you can't answer it, perhaps someone else on the panel can answer it.
Has any analysis been done on FPIC to determine whether it actually could be interpreted by the courts to mean an absolute veto on the part of first nations?
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
As Terry has noted, what we've tried to do with the proposed legislation is to put the principles of free, prior, and informed consent, and having mutual respect and dialogue, threaded throughout the legislation. There are a number of aspects of the draft legislation that speak to the UNDRIP principles. There's a recognition of rights right up front within the legislation.
There is also, within the early planning, the development of an indigenous consultation plan, done jointly with indigenous peoples, to ensure that the manner in which they are consulted throughout the process is consistent with how they would like to be consulted. It clearly identifies up front who needs to be consulted and how they would like to be consulted.
As my colleague has noted, throughout the decision-making phase, impacts on rights are also a key component of the entire assessment and decision-making process.
Conservative
Ed Fast Conservative Abbotsford, BC
That addresses for the most part the consultation element of it, but I'm going to get back to the actual portion that could be construed as a decision-making right, which could be incorporated into the act if in fact Ms. Duncan has her way and UNDRIP and FPIC are incorporated into the legislation.
I'm hearing none of you say that free, prior, and informed consent is fully baked into the current version of the bill. I'm not suggesting it should be, but obviously the minister is considering it because she said right here at the table that she was prepared to consider it.
Given that fact, and given that this should come as no surprise to any of you, has any legal analysis been done on whether fully incorporating FPIC into this legislation would represent a veto right for first nations?
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
As I've indicated, the current legislation as drafted tries to embody the principles of free, prior, and informed consent based on mutual dialogue and respect. That has been the theme that has gone through the legislation.
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
The minister has indicated openness to amendments. We look forward to continuing that dialogue in supporting the minister and the government—
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you to the officials for being here. I note we have nobody from the Department of the Environment.
My first question is to you, Mr. Parker, because you hold a very important position, actually drafting the legislation and regulations. I admire that. I've had similar jobs myself.
Who did you take your marching orders from, or was it the CEAA office that actually drafted the first part of this bill? Who was actually leading the drafting, and who was making the final decisions on what provisions went in or didn't go in?
Brent Parker Director, Legislative and Regulatory Affairs Division, Canadian Environmental Assessment Agency
I'll start with where we began, with the consultation—
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I actually want to know the tail end. I want to know who had the authority in the end to say this is the final bill, part one of this act.
Director, Legislative and Regulatory Affairs Division, Canadian Environmental Assessment Agency
The way in which the drafting takes place typically, which is the way it took place on this bill, is that drafting instructions are provided. They are, of course, approved by cabinet, and they guide the legislative drafters, who are housed within the Department of Justice. They take instruction from the policy leads, which would be us. My team, the drafters, and I were the ones spending time in the drafting room over the course of this past year, working on the drafting based on the instructions that were laid out.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
We don't have Justice here.
Can I ask, was the starting point the Harper 2012 CEAA or was it the before the Harper evisceration of that act?
Director, Legislative and Regulatory Affairs Division, Canadian Environmental Assessment Agency
The starting point was effectively the conversation that began about a year and a half ago.
Director, Legislative and Regulatory Affairs Division, Canadian Environmental Assessment Agency
Yes.
Director, Legislative and Regulatory Affairs Division, Canadian Environmental Assessment Agency
We started with the launch of the expert panel, which essentially was the beginning of this process.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
It's okay. I don't think I'm going to get a clear answer.
There's a lot of concern expressed in testimony to us about how vague the extension of the public right is. That was the main reason for the lack of public trust in the federal assessment process, that erosion of the public's and indigenous peoples' right to participate. All that it says in the bill is the agency must ensure that the public has an opportunity to participate. There have been suggestions that we could add in adjectives like “reasonable” or “effective”.
Why was there no provision, and do you think that the department will be open to a provision to require regulations where there's consultation on what the specified rights are, the right to cross-examine, the right to table evidence, and so forth, because right now there essentially is no guaranteed right?
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
In terms of public participation within the proposed legislation, an important component actually is in the early planning phase where there are outputs of the early planning phase.
