Indigenous and Northern Affairs Committee on April 26th, 2018

[François Dufresne]

To answer your question, I don't know the bill in detail, but I would add this in terms of approach, and it will go back to the comments that Pamela made on engagement. We hear from other jurisdictions in Canada that we do have good management laws for natural resources, and specifically forest management, which we work with. However, there are very clear shortcomings when it comes to the rights of indigenous peoples in this country as perceived internationally, and also the protection of biodiversity, namely woodland caribou for the forestry. That's clear internationally. I think this law can recognize how we can co-manage our natural resources. That's an improvement I think this law can look after.

Based on our new standard with the UN declaration and FPIC, we're going to evolve toward this landscape approach. We're going to call it indigenous cultural landscape to integrate these two concepts. I believe it is a way forward that will cement the responsible management of natural resources, not only forestry, but also mining and oil and gas.

[Pamela Perreault]

I focus on action plans with FSC. The strength of our system I think is in the fact that we emulate the implementation of the right to FPIC, right in our system. It's not just about having somebody else do it and the expectation that it happens out there, but we do it internally as well. We have the four-chamber process. It's very clear from the very beginning that indigenous peoples are part of the action planning.

The one part I didn't get to in my presentation was an interpretation of FPIC, and that is that consent or decision-making happens on a continuous basis, especially in the context of forest management planning where a lot of decisions are made, sometimes over short periods, but over 10 and 20 years. FPIC is a continuous process that has to happen between the parties. I think continuous engagement needs to be explicit, when it comes to action planning, that it's not a one-time thing, and that it would be great to see a bit more structure around what an action plan might look like.

[William Amos, Liberal, Pontiac, QC]

Yes. I appreciate all three of those comments.

Chair, how much time do I have?

[The Chair, Liberal, MaryAnn Mihychuk]

You have only 10 seconds.

[William Amos, Liberal, Pontiac, QC]

One aspect that I think is challenging about all this is it sets the stage for action planning, and what does it mean, what will it look like, how will it be operationalized? Those are questions we discussed over breakfast with one of Canada's foremost indigenous leaders, and it's very difficult.

Thank you for your comments.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

I'm going to start with the chamber, and thank you both for your presentations.

The chamber has formally endorsed both UNDRIP and Bill C-262. Did your membership look at it? What was your process to come to a formal endorsement? Is it both...under Bill C-262?

[Susanna Cluff-Clyburne]

We endorsed the principle of the bill and what it's trying to achieve, along with what the government is trying to achieve.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Then your members had a vote? Is that how it worked?

[Susanna Cluff-Clyburne]

No. I have an indigenous affairs policy committee, and I consulted with the members of that committee.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

You had a very different understanding of free, prior, and informed consent than we heard from Mr. Dufresne. When you talk to your members, perhaps you see something that I don't see, because you said business-like certainty. Let's say the federal government is doing a law of general application that's clearly going to impact your businesses, but it's also going to impact indigenous peoples in this country, and they need free, prior, and informed consent. Did you perceive, with the Inuit and the Métis and all the people who are treaty and rights holders in Canada, that the government would be able to move forward with making laws to the benefit of all Canadians when they have that obligation around free, prior, and informed consent? Did you talk about that issue at all? Did you see your way through that? Quite frankly, I haven't seen a way through, especially around the laws of general application, how you get FPIC from all the people you would be obligated to under this bill to have free, prior, and informed consent. I worry about increased uncertainty for the business community, especially around the laws of general application.

[Susanna Cluff-Clyburne]

The issue is that we and our membership regard the UN declaration, as I mentioned before, as being much more than FPIC.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

No, I understand that, but FPIC is really, to be quite frank, one of the significant stumbling blocks. We all look at the UN declaration as being a bigger document, but what we're talking about is that we have legislation here that is going to implement change in Canadian laws to be consistent with the UN declaration, not what was originally envisioned, which was to have the UN declaration be consistent with Canadian law. We're talking about a pretty significant shift. Understanding consent, or FPIC, around the laws of general application is significantly important, and I would think for your membership, very important.

[Susanna Cluff-Clyburne]

You're absolutely correct, which is why, again, if the bill could be improved, I'd suggest that the language be clarified.

I don't think I read “consistent” in the bill, but we've had “harmonized”. I mentioned all the different terms I found when I reviewed the bill. It needs to be clear exactly what we're talking about. Are we talking about harmonization, or are we talking about more explicit terms?

That would be my answer to the question, that it has to be clarified as to exactly what we're doing when we pass this, or if this bill does ultimately become law.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

We currently have Liberal government lawyers arguing in court that provisions such as those around the laws of general application would completely fetter the government's ability to do anything. To be frank, that's what the lawyers are arguing in a case before court right now. I find it ironic that we have lawyers arguing about how their ability to make laws in this country would be fettered, whereas we have the government saying it's quite happy to move forward with this piece of legislation and the chamber also saying it's very comfortable with that.

[Susanna Cluff-Clyburne]

I'm sorry. I don't understand your question.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

These are significant changes.

[Susanna Cluff-Clyburne]

That part I understand.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

The lawyers are arguing that this would fetter the government's ability to make decisions around laws of general application specifically, but your members are comfortable with that particular issue.

[Susanna Cluff-Clyburne]

I don't think we've had that discussion. We're not lawyers; we're business people.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

However, when you endorse something such as a document like Bill C-262, you're basically saying, “Go ahead; this is great,” that we all should be sitting here voting for it. That's important; what you say matters. If you haven't had that detailed discussion and in-depth look at it to come to those conclusions, I just wonder how....

[Susanna Cluff-Clyburne]

I stand by our position that we support the objectives of this bill, as well as the broader effort of the government and all the different pieces, the objectives that are being pulled together by the government to move forward with reconciliation, of which this is part.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning now moves to MP Bossio.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

I don't really have anything. I'm good.

If my colleague Romeo would like to take a few more minutes, I'd be happy to give him my time.

[William Amos, Liberal, Pontiac, QC]

It's the gift that keeps giving.