Indigenous and Northern Affairs Committee on March 11th, 2021

[The Chair, Liberal, Bob Bratina]

Having a quorum now with proper technical connection, I accordingly will call this meeting of the indigenous and northern affairs committee to order. I'll start by acknowledging that, in Ottawa, we meet on the traditional unceded territory of the Algonquin people.

Pursuant to Standing Order 108(2) and the motion adopted on February 25, 2021, the committee is continuing its study on the subject matter of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples.

The artwork that you see behind me is a photo of a remarkable group of sculptures located near my office at the site of the 1813 Battle of Stoney Creek, four “nine-foot-high granite eagle figures inscribed with symbols and text arranged on a circular plaza.” The artist, David General, is Oneida, a member of the Six Nations of the Grand River who works in “a distinctive style” using “interpretations of the cultural traditions of the Haudenosaunee and Anishinabek communities to address the theme of healing and reconciliation.” I am sure that it will be in that spirit that we conduct the business before us.

Members of the committee and witnesses, please speak in the language of your choice. You can select the language at the bottom centre of your screen, in the globe, where you will find “English” or “French”. When speaking, ensure that your video is turned on, and please speak slowly and clearly. When you are not speaking, your microphone should be on mute.

We have our witnesses ready. We have Professor Brenda Gunn, a professor from the Faculty of Law at the University of Manitoba. From the Indigenous Resource Network, we have Arnie Bellis, chair; and Heather Exner-Pirot, research adviser. I believe we've agreed that Thierry Rodon, as an individual, will be the third member of the opening panel.

Professor Gunn, please go ahead for six minutes.

[Professor Brenda Gunn, Associate Professor, Faculty of Law, University of Manitoba, As an Individual]

[Witness spoke in Northern Michif as follows:]

Tawnshi. Brenda Gunn niya. Winnipeg ni weekin. Ma famee Red River ouschi.

[Witness provided the following translation:]

Hello. My name is Brenda Gunn. I live in Winnipeg and my family is from the Red River.

[English]

I am Métis, and, as noted by the chair, I am an associate professor at the University of Manitoba Faculty of Law. I have worked in both international and constitutional law, including the application of international human rights law in Canada, for almost 20 years now. I've developed a handbook on implementing the UN declaration and I've done many presentations on the UN declaration and how to begin implementing it domestically.

Today, I am speaking from Treaty 1 territory and the homeland of the Métis nation, my home territory. I want to acknowledge also the Algonquin people, as the House of Commons is located on unceded Algonquin territory.

Thank you for the invitation to be here today. I am very grateful to be here and I want to acknowledge my co-panellist as well.

I will start by saying that on March 22, 2018, I sat before this committee, invited to present on Bill C-262. As I prepared for my presentation today, I was wondering what I should say, thinking about what has changed and evolved over the past three years. I kept returning to the same thought: it is devastating that we have lost these three years, three years that could have been spent developing a national action plan building on the work of the Truth and Reconciliation Commission and the national inquiry, three years where indigenous peoples have continued to have lower socio-economic and health outcomes than other Canadians. Three years is a long time. In fact, it's a lifetime to my daughter.

I support this legislation because I think it is an important step toward reconciliation, toward recognizing inherent human rights, toward a fairer and more just Canada for all.

When speaking about the UN declaration, and why I believe it to be the framework for reconciliation, I often highlight four key preambular paragraphs that I'm going to read out to all of you now.

The first is, “Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such”.

The second is the UN is “Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests”.

The third is the UN is “Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith”.

Finally, the fourth is that the UN “Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect”.

What these four preambular paragraphs tell me is that in Canada we need to stop believing in mythologies that recognizing the rights of indigenous peoples is going to somehow tear Canada apart. We have to accept that we are broken, that indigenous peoples have paid too high a price for the development of Canada for too long. We have to accept that the only way to reconcile is to recognize the rights of indigenous peoples and shift from a colonial relationship to a relationship based on justice, democracy, respect for human rights, non-discrimination and good faith.

With this understanding of why we have a UN declaration, and its significance in Canada, I want to just highlight one key aspect to the substantive rights included within the UN declaration. Specifically, I want to note that the UN declaration includes economic, social and cultural rights in areas such as language rights, education, health care, housing and economic development, all of which are critical to the exercise of civil and political rights.

Under the international human rights system, there is no hierarchy of rights.

Under Bill C-15, a national action plan that can be developed is critical to ensure that economic, social and cultural rights receive the same level of attention and consideration as political and civil rights.

During the prolonged debate over Bill C-262 there was unfortunate fearmongering that claimed that it introduced uncertainty, highlighted concerns around indigenous peoples' right to free, prior and informed consent, and implied that indigenous peoples might try to stop all resource development projects from proceeding.

From my perspective, these so-called concerns highlight the need for a better grasp of the UN declaration in Canada and the need for a coordinated effort to implement the UN declaration into Canadian law in a way that builds upon the over 20 years of international human rights jurisprudence on which the UN declaration is based. Canada was very slow in turning its support toward the UN declaration. There is a lot of work to do. We've lost a lot of time and now is the time for action.

While Bill C-15 is not going to resolve all problem and tensions between indigenous peoples in Canada, it can be part of the solution. Bill C-15 includes some critical steps toward developing a plan to implement and realize indigenous people's inherent rights. It includes important accountability measures to ensure Parliament puts words into action. It addresses some of the misunderstandings of the application of the UN declaration in Canada.

Marsi. Thank you. I look forward to your questions.

[The Chair, Liberal, Bob Bratina]

Thank you very much, Professor Gunn.

Next we have Chair Arnie Bellis and research adviser Heather Exner-Pirot of the Indigenous Resource Network.

You have six minutes. Please, go ahead.

[Arnie Bellis, Chair, Indigenous Resource Network]

Thanks for allowing us to present to the standing committee.

My name is Arnie Bellis. My Haida name is Gwaii Gwanglan. I'm a member of the Staa’stas Eagle Clan in the Haida Nation.

There's a lot to speak to. The young lady before me did a very good job of summarizing the history of Canada and its relationship with first nations.

I tend to look towards the Canadian Constitution that we fought for in the world wars. It talks about multiculturalism, rights and all those wonderful things that we live under.

I find it interesting that first nations people had to go to the Supreme Court numerous times to have those rights upheld and worked on.

I'll let the statistics of the land speak for themselves in terms of the employment and all the incarceration, and so on. They speak for themselves.

We used the resources for 10,000-plus years, and from there we developed a very sophisticated society. We found ourselves under the Indian Act, and people were working hard to move us to their line of thinking, in terms of their religion, and move us off our mythology.

In saying that, to a certain extent our intellect was stunted. Now we're back on track, and we're looking to use our resources to enhance those things, such as culture and mythology. Under the Constitution of Canada, we're allowed to do that.

As one thing, the Haida people went down to 580 people from 12,000 plus because of smallpox. Yet we're still trying to define our relationship with Canada, where all could benefit—and it works both ways.

We developed the IRN to speak for the working people of first nations. We're a non-partisan group. We're a young organization. We saw the need to participate in this discussion to try to evolve that relationship between first nations and Canada—and industry, too.

I have an extensive background working with industry and coming to some really positive situations that provide solutions for both parties.

I have been studying Bill C-15 and participated in a number of round tables and consultations and Zoom conferencing, and our members have done the same. Heather will add more detail to that.

Part of it is the economic development. That's one wedge of the pie. There are other wedges, too, that have to be addressed. I talked about the environment, the culture and things of that nature.

We also realize that other things exist in this world, and one of them is investors. In order to stand up more, and things of that nature, we have to have investors. First nations are not exempt from that. We like to attract investors but not give away the farm, so to speak. But also, we fully understand that we need that mechanism.

In saying that, I'll get right to it. We'd like to participate in the action plan and I think we could have a really good, clear conversation on how to make it enhance the relationship in a stronger way and to come to a place of greater understanding. There is understanding between first nations and Canada now, but that's evolving on a daily basis.

With that and talking to a friend in the Business Council of British Columbia, I know the UNDRIP situation is already starting to cost investors a bit. We need to concern ourselves with that if we want to make ourselves a reliable group to invest in.

With that, Mr. Chair, I'd like to thank you again, and I'd like to thank Romeo Saganash and the individuals who brought this to fruition so we could speak to it. I have some friends who went to the UN for a lot of years, you know, and took time out of their lives to develop this. I'd like to say hawaa to them and thank them very much for their sacrifice in being away from their families. I'd like to acknowledge that.

[The Chair, Liberal, Bob Bratina]

Thanks, Mr. Bellis. We're over the allotted time.

[Arnie Bellis]

Okay, sure.

[The Chair, Liberal, Bob Bratina]

Anything further will come up through questions, and if anything is not covered that needs to be covered, we will take written submissions for some time afterwards. If you feel that something has been missed, please take that opportunity.

We will go to Thierry Rodon for six minutes. Please go ahead.

[Thierry Rodon, Associate Professor, Department of Political Science, Université Laval, As an Individual]

Good morning to all.

Thank you very much for inviting me to appear before the Standing Committee on Aboriginal and Northern Affairs.

I am a professor of political science at Laval University, but I work more specifically on aboriginal issues, particularly on aboriginal politics in Canada and elsewhere. It is therefore from this perspective that I will deliver my speech. I am also working on a research project on relations between indigenous communities and mining companies in Canada, Australia, Fennoscandia and New Caledonia. It focuses on the issues of the implementation of free, prior and informed consent and the social acceptability of mining projects in indigenous communities.

So I'm not going to talk to you about the legal aspect, even though I'm familiar with its issues, but rather about the issues and the power relations that are being created in Canada. I'm going to dwell on the issue of uncertainty, because it is very poorly understood. In fact, I think that we are currently experiencing uncertainty with regard to major projects.

Unlike Canada's usual aboriginal policies, which tend to maintain the colonial relationship that has been established since 1867 through the notorious Indian Act, this is a policy that stands out because it focuses on the relationship between Canada and the first peoples. This is a change that we have seen with the new Department of Crown-Indigenous Relations. That's why I'm very supportive of this legislation, which will allow to change that relationship. In fact, it has started a little bit, but it's mostly symbolic. I think it is necessary to have legislation in this regard, even if it is imperfect—legislation is always imperfect—and it can be criticized, and rightly so.

In my view, the legislation must recognize that a relationship with indigenous people, the first peoples, must be established and that solutions must be found. In my opinion, the bill has the potential to contribute to the reconciliation process that is underway, but with many failures. We all saw the armed intervention of the RCMP against an aboriginal group, the Wet'suwet'en. These are the questions we need to ask ourselves. These are things that are happening now.

I am pleased to see that consultations are being carried out with indigenous peoples, although in my view, they should be expanded. I will come back to this, because we must ask ourselves who should be consulted on these issues. At present, the major national aboriginal organizations are being consulted, which is a good thing, but I think that we need to go a little further.

I will now return to the issue of uncertainty, because commentators who oppose this legislation often mention it. This surprises me a little bit, because, in my opinion, the uncertainty already exists. It won't be brought about by the legislation. Right now, in Canada, there is uncertainty about the development of major projects, especially linear ones, but also about mining projects. I know this subject a little better. In general, mining projects are less problematic, because fewer parties are involved. However, they can create extremely high tensions.

Here are some examples, which you all know. First, there's the Trans Mountain project, which resulted in a rare cabinet decision that was overturned by the Court of Queen's Bench of Alberta. Then there's the Coastal GasLink Project, which I mentioned briefly when I talked about the police action against a group, the Wet'suwet'en, who was opposing that pipeline. Finally, there is another case that we are less familiar with, and that is the Mary River Mine in Nunavut, operated by Baffinland, whose expansion plans are under threat, even though they had the support of Inuit organizations.

Those familiar with the Nunavut agreement will know that specific processes were put in place for consultation and approval of projects, even though approval ultimately rests with the federal government. All of these procedures were intended to lead to consent. But there was no consensus, because the Inuit communities on the ground opposed the expansion, blocked the airport, and ultimately put the expansion of this mine in jeopardy.

I would say that we don't yet know how to get free, prior and informed consent. Having a bill that helps define it better will help avoid all these conflicts.

Indeed, the uncertainty is in the conflicts, for now. There will always be some, because we cannot eliminate all conflicts, but there is a problem with not having a clear way to act on these issues. The failure to address the rights of indigenous peoples has created significant costs to Canadian society. If we don't want to think about it in terms of law, we can think about it in terms of economics.

In fact, in the course of my research, I observed that indigenous communities have appropriated free, prior and informed consent. They are implementing it at the moment in the only way they can, which is by establishing a power relationship. Mr. Saganash may be able to tell you about this, but the Cree have a very clear policy that no mine will open on their territory unless they give their consent. This is a way of establishing a power relationship, and they have established it. It can also be done through blockades and airport blockades, for instance.

It is therefore important that free, prior and informed consent is better integrated into the legal framework. This is what Bill C-15 will try to do and it could help to reduce this uncertainty.

I'd now like to talk about some recommendations or conclusions that have come out of my research, but which may be helpful to this committee.

First of all, defining free, prior and informed consent is not a problem. We know what consent is. However, there are two more complex questions: when is consent needed and on what project?

We have a lead with the Delgamuukw case and the issue of consent, which already exists in Canadian law. I won't go into that in detail.

Secondly, and perhaps most importantly, there is the question of who should consent. Who should consent is a problem that arises very much from the colonial relationship between Canada and aboriginal communities, with traditional governments and Canadian governments.

Thank you.

[The Chair, Liberal, Bob Bratina]

Thanks, Mr. Rodon.

Let's go right to questioners now.

The round is six minutes to begin with.

Mr. Schmale, go ahead.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you very much, Chair.

Good morning to our witnesses.

There is lots of great testimony today, and I want to start off by saying that we here on this side of the aisle do support the spirit of UNDRIP. There are a lot of good parts to it that I think will take us on the path to reconciliation and to having that important and meaningful conversation.

As many of you know, the issue we have with it, as some of you have said in your testimony, is with FPIC and the “C”, the consent, and what that means.

Maybe I'll start with the IRN. I've looked at your website, and your organization knows that there are already barriers that exist to attracting investment to your lands and to your people and that Bill C-15, without a proper definition, could add yet another barrier and potentially take away that idea of investment in jobs and opportunity in some of your communities.

Do you want to comment on that?

[Dr. Heather Exner-Pirot, Research Advisor, Indigenous Resource Network]

Maybe, Arnie, I'll jump in first and you can follow up on me.

It's a pleasure to be here. My name is Heather Exner-Pirot and I serve as a research advisor for the IRN.

The answer to your question is yes. As Arnie mentioned, we've been doing our research on C-15, and we have some close relationships with some members of industry. We reached out to mining, to oil and gas, to hydroelectricity, to railroads, to some investors, to pension funds and to private funds.

We've also spoken closely with our colleagues at the Indian Resource Council, the FN LNG Alliance and the First Nations Major Projects Coalition to get a sense of the practical implications of C-15.

There is a lot of concern. You don't have to take my word for it. I encourage you to talk to investors yourselves. If our particular principle is that first nations people—indigenous people—deserve economic development and resource development is almost certainly the best opportunity to get that, then certainly we want to have an environment in Canada where resource development can happen.

In speaking to all of these people, yes, there was a sense that Canada is not a good place to invest and that there is some risk. C-15 is one more thing that adds to risk because it isn't clear what consent requires. Is it a band council resolution? Is it a referendum? Who is the representative institution? Is it hereditary chiefs? Is it the band council? Is it any member of a nation? All these things just make it riskier for capital.

We did hear that it's very difficult to invest on indigenous territory because it's very risky. I think you're all aware that indigenous peoples have been getting more involved, especially since the duty to consult decision in 2004-05. They've moved from being employees to being contractors, and to now becoming equity owners themselves. When they have been going out to try to attract equity—and that is the future—there is a risk premium for indigenous nations to attract capital, to do their own resource projects, to be their own proponents and to attract that equity.

As Arnie mentioned, talking to the B.C. Business Council to see what had been the implications of their Bill 41,they said that yes, the premium has been 1%. That's the number they said. There's a 1% risk premium attached to B.C. resource projects since that bill itself passed.

Where I'm coming from, personally and professionally, I want to see indigenous people being able to benefit fully in resource development. I understand that there's a commodities boom coming and that we're kind of coming out COVID-19. However, if we add three years of uncertainty—as we develop an action plan—to the ability of investors who want to invest in indigenous territories when indigenous people want it themselves, I think tens of billions of dollars are at stake in their development. I honestly do.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I don't know if you want to add more, but we all heard the debate in the House of Commons. The government, in its own words, claims C-15 does not provide a veto yet they refuse to actually define what consent is.

To your comments about the concerns and uncertainty, you're right. If you add even a 1% risk factor to some investment, there are many places investors can take their money and resource projects. It doesn't necessarily have to be resource projects. I think it's almost anything. Adding that uncertainty does hurt the economic reconciliation that I think needs to happen as well.

[Dr. Heather Exner-Pirot]

I haven't spoken to a single indigenous person who doesn't support UNDRIP and the principles of UNDRIP. They're very cautious in coming out and saying that they don't want UNDRIP legislation, because that's not the sense.

We don't have to throw the baby out with the bathwater. I think this legislation could be amended to provide that clarity and that certainty to investors and to allow for investment in indigenous territory—without giving up all the rest of the rights and the ways they can be applied to improve many other aspects of indigenous people's well-being.

I think there are some amendments.... We're not lawyers. Our members are not lawyers. I guess your job is to figure out how to write this legislation so it doesn't deter billions of dollars in investment. If you talk to investors and industry, they will tell you that this is going to cause capital to flee and it will not make Canada an attractive place for investment.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

That's exactly our position. You said it more eloquently than I, so thank you for that.

Basically what we have been trying to say, and as you said, is not to throw the baby out with the bathwater. There are lots of good parts to this document and to the path, but there's a major part that we're having a problem with. As you said, it's our job as legislators to do our work without creating more uncertainty—so it doesn't get fought over in the courts for years and perhaps increase that 1% risk factor to 2% or 3%, which would almost dry up any opportunities.

[Dr. Heather Exner-Pirot]

Yes. There are lots of things—

[The Chair, Liberal, Bob Bratina]

We're right at time. Thank you very much.

Could I just ask Madame Berubé and Madam Gill if the was translation okay? I was going back and forth and it was a bit confusing on the French. Are we okay with the translation?

Thank you.

Now we will move on to Mr. Battiste, for six minutes.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Thank you, Mr. Chair.

On September 12, 2007, more than 143 countries endorsed the Human Rights Council's recommendation to extend human rights and fundamental freedoms with UNDRIP. I find it simply amazing that the most vulnerable bottom of global humanity was able to find so many allies within the United Nations.

Ms. Gunn, I know you have long experience with going to the United Nations yourself, establishing the UNDRIP handbook and creating awareness around it. Can you speak to what the significance of UNDRIP is? Have any of the issues been raised around the economic catastrophes that people continue to speak of in these 143 other countries that decided to give indigenous people the minimum human rights in the world?

[Prof. Brenda Gunn]

Thanks, Mr. Battiste, for your question. I will try my best to answer it.

I'm going to do it somewhat laterally and perhaps respond to the trends I see happening internationally.

I think it's really important for this committee and for our Parliament to be aware that there is growing acceptance internationally of the obligations of businesses and companies to uphold human rights. Right now, internationally, there are negotiations for a binding treaty on the obligations of businesses to respect human rights.

When we talk about implementing the UN declaration, which includes the right of indigenous peoples to free, prior and informed consent in certain circumstances, this is becoming very standard internationally. I would hope that Canada as a country that holds itself out as a leader in human rights is going to continue to positively participate in arenas where human rights are being pushed.

Even where we continue to sound these alarms at home, they are not being sounded internationally. In fact, even the World Bank, in their environmental and social framework for IPF operations, ESS7 on indigenous peoples includes free, prior and informed consent as one of the requirements for World Bank funding.

Maybe investors are saying they are concerned, but I can tell you that internationally the expectation is that industry is going to uphold fundamental human rights. The UN declaration is just one place we can turn to understand the rights of indigenous peoples.

As I alluded to in my introductory statement, the UN declaration is not the only instrument out there that's relevant. It is very clear, under other binding international human rights treaties to which Canada is a party, indigenous peoples have a right to free, prior and informed consent. This includes the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

While we all want to be aware of economic impacts, we also have to recognize that right now there are many indigenous peoples who are paying the price for development. Maybe we're talking about shifting some of the economic costs and benefits of certain developments, but I don't see Canada being offside by this consideration in the bill here. We are actually apace now with these international developments. If this doesn't happen, it's coming in elsewhere, so we might as well work now to start making sure that our domestic processes are upholding these international standards.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

My research of UNDRIP talks about how this was developed over 30 years by thousands of indigenous people across this globe. When you created the UNDRIP handbook, you began doing sessions all across Canada. We coordinated one together in Halifax.

Can you speak to what the consensus is that you have heard from indigenous academics and indigenous peoples on UNDRIP? What were their thoughts at these sessions you held?

[Prof. Brenda Gunn]

I can say, from my experience participating internationally, that many indigenous peoples turned to the international arena when there were challenges that they were facing domestically and could not find sufficient resolution.

What I have seen and heard, and even what I continue to hear today when I hear people speaking about Bill C-15, is that it's time to recognize these basic, fundamental, inherent rights of indigenous peoples. We can't keep treating indigenous peoples as lesser peoples. That's why I read out those preambular paragraphs. It's really time for Canada to recognize indigenous peoples as people. There's too much of Canadian law that is based on these racist ideas...in Johnson v. M'Intosh, back in 1823, that indigenous peoples were fierce savages whose occupation was war.

It really should be now in 2021 a time when we start rejecting those ideas and work with indigenous peoples to realize these fundamental human rights.

I think importantly that this bill has a lot of wisdom in that it's not just saying, okay, we're accepting UNDRIP, but it's actually forcing us to come to the table, sit down and come up with a plan to implement it. On these concerns that are being raised, the national action plan, this is the time and place to hash out some of these questions. It has built in the bill itself, in the legislation, a way to address these concerns and not to just say we're concerned that there might be impacts, but to study and come up with a plan that ensures that indigenous peoples and Canadians benefit from development.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Ms. Gill, you have the floor for six minutes.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I would like to thank all the witnesses who are with us today.

I know Mr. Saganash is not here yet, but I would like to acknowledge the work he did in the last Parliament. I saw him fight for his bill, which, of course, is similar to Bill C-15, the legislation we are dealing with today.

I also want to salute the first nations people who, over the centuries, have made it possible for us to consider this bill today. As Mr. Rodon mentioned, this is symbolic. I believe that everything we can find in symbolism that can be made concrete is necessary. So I am happy to be with you today.

I will ask Professor Rodon a question.

Mr. Rodon, in the last issue of the journal Recherches amérindiennes au Québec, you wrote several articles on the issue of free, prior and informed consent.

Can you tell us more about the political uses of this notion?

[Thierry Rodon]

Thank you, Ms. Gill. I can certainly do that.

We published a special issue of the journal Recherches amérindiennes au Québec on the subject. There is little literature in French on this issue; there is a little more in English, but not much.

The idea was really to look at how it is implemented in practice rather than in legislation and declarations. That is the question we were asking ourselves. I don't know if I had time to say it during my presentation. However, when we talk to members of indigenous communities, we find that they consider this to be one of their rights. It is, in fact, because it is in the declaration.

So it is not a question of whether or not they have this right to free, prior and informed consent. They consider that they have it and, de facto, they try to implement it. You see it everywhere. With the Cree, it's very clear, even if they don't use the term in that way. In fact, one of my students conducted interviews not with the Cree, but with people in the Abitibi and Nord-du-Québec region. They said very clearly that if the Cree were opposed to a project, it would not go ahead. It's not a veto; it's just a political reality in which the Cree are a big enough player in the Nord-du-Québec region to decide whether a project is acceptable and whether it will benefit their community.

As mentioned, in other cases, there are obviously more conflicts. In these cases, the players do not have the power relationship that the Cree managed to establish over the years. I am not saying this in a negative way, on the contrary. It is to their credit that they have been able to regain control over their territory.

In other cases, players such as the Wet'suwet'en in British Columbia and the communities of Pond Inlet and Clyde River in Nunavut are taking this consent into their own hands and blocking airports and roads and so on. I think Ms. Exner-Pirot has made a good point about the investment issue. However, the uncertainty is already there; it's not going to be created by the legislation, because it's already there.

In Quebec, there is a pipeline project that would go through the North. The issue of consent is going to come up very quickly. For the time being, we don't really have the tools to deal with the situation. We will have to trust the legislators and those who look at what they do to see how we can implement this consent to increase certainty about the project.

We will have more certainty through the recognition of aboriginal rights. It is not by not recognizing them that we will have more certainty; we will just have more problems. This is a little what we saw in our different case studies, which were more focused on Quebec, but also on Colombia. One of our students wrote about this. If you're interested in this topic, you should read some of these articles.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Rodon.

At the end of your presentation, you mentioned questions about free and informed consent. You were talking about the definition, which can be a problem. I know you can't give a definition, but perhaps you could outline the problem.

You also spoke about the questions of when consent can be used and who should give it. Ms. Gunn pointed this out earlier.

Could you talk more about these multiple issues?

[Thierry Rodon]

On the issue of free, prior and informed consent, there is a tension between two ideas. First, there is a procedural version according to which the idea is not to obtain consent, but only to take steps that could lead to consent. It would be enough to do that. That's basically what the Canadian government has done so far. You do consultations and you make the decision at the end.

There is also the idea of more substantive consent, whereby the community must clearly give its consent. This can be done in a number of ways, including through a partnership between the community and the mining or gas company.

The most difficult part is really to determine who gives consent. In my research, I have seen that this is always the issue. In fact, it pertains to the legitimacy of governance structures. In Canada, aboriginal communities are increasingly giving themselves governance structures, but there are still many places where the situation is similar to that of the Wet'suwet'en and where the governance is that of the Indian Act and band councils. In my opinion, it's colonial governance, because it derives its legitimacy from the Indian Act and not from the people and the traditional governments still in place. It's a word—