Indigenous and Northern Affairs Committee on March 30th, 2021

[The Chair, Liberal, Bob Bratina]

In view of the fact that we have a quorum, accordingly I call this meeting to order.

I will 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 continues its study of the subject matter of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples, and to make related and consequential amendments to other acts.

This meeting is in place of last Thursday’s meeting that was cancelled due to votes in the House. We regret that Professor Dwight Newman and Professor Ken Coates could not be with us today. I have ensured via the clerk that they have the necessary information to send in written submissions.

For an orderly meeting, participants, please speak and listen in the official language of your choice. At the bottom of your screen on the globe icon, you can select “Floor”, “English” or “French”. You may switch from speaking one official language to another without changing the language in Zoom. When speaking, ensure that your video is turned on, and please speak slowly and clearly. When you are not speaking, your mike should be on mute.

Pursuant to the motion adopted on March 9, 2021, I inform the committee that Mark Podlasly and Stephen Buffalo have not completed technical pretests.

With us today by video conference is Mark Podlasly, director, economic policy, First Nations Major Projects Coalition. Representing the Mining Association of Canada, we have Kara Flynn, vice-president, government and public affairs at Syncrude Canada; and Tara Shea, senior director, regulatory and indigenous affairs. Also, as I mentioned, we'll be joined in the first hour by president Steven Buffalo from the Indian Resource Council.

Thank you, all, for taking the time to appear. Each organization has up to six minutes for an opening statement, followed by questioning.

Director Podlasly, please go ahead as our first witness.

[Mark Podlasly, Director, Economic Policy, First Nations Major Projects Coalition]

Good morning, and thank you for this invitation.

My name is Mark Podlasly, and I am a member of the Nlaka’pamux Nation in southern British Columbia. I am speaking to you today from Coast Salish territory in southwestern British Columbia.

I am the director of economic policy at the First Nations Major Projects Coalition, a national collective of 70 indigenous nations working to ensure that first nations receive a fair share of benefits from projects in our territories through the ownership of equity in proposed pipelines, electric infrastructure, transportation routes and other revenue-producing initiatives.

I am here today to speak on behalf of our members in support of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples. For our members, UNDRIP already frames how we see development and our ability to direct decisions that are supportive of our interests.

The declaration focuses indigenous attention on how first nations-supported development can enable self-determination as described in UNDRIP article 3. However, it is article 4 that, in the opinion of the First Nations Major Projects Coalition, will be key to successfully implementing UNDRIP in Canada.

Article 4 states that:

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

This financing or fiscal component is key to ensuring that first nations have the means to pursue UNDRIP autonomy. No government, indigenous or not, is truly self-determining if it is reliant on an external government for financial viability. It is impossible for a government to function at any level without a source of revenue to pay for its operation.

This is why our members see revenues from indigenous-held equity as providing the financial means for self-determination, and why first nations must implement this according to UNDRIP. Without it, UNDRIP implementation will be impossible.

For first nations, a multi-generational source of equity-derived revenue will allow our nations the ability to set and fund our own UNDRIP self-determination priorities.

These UNDRIP priorities include culture and language. They are, as described in article 11, to practise and revitalize our culture, traditions and customs; in article 12, to manifest, practise, develop and teach our spiritual and religious traditions, customs and ceremonies.

They include education and media. They are, in articles 14 and 16, to establish and control our educational systems and institutions, to provide education and to establish our own media in our own languages.

They include economic, social and health improvements. They are, as noted in article 21, the improvement of our economic and social conditions.

They include revenue from traditional territories. They are, as described in article 26, to own, use, develop and control the lands, territories and resources that we possess by reason of traditional ownership, occupation or use.

They include development priorities. They are, as described in article 32, to develop and present priorities and strategies for the development and use of our lands and other resources, and as described in article 34, to promote, develop and maintain our institutional structures.

Article 39 notes that we are to have access to financial and technical assistance from states regarding the rights contained in the declaration.

These UNDRIP articles are all dependent on a revenue stream to pay for their implementation. A new indigenous-controlled fiscal component offers significant benefits for first nations and Canada, including greater investment certainty and reduced opposition to projects; self-sustaining indigenous governments; stable own-source revenue streams to fund first nations government priorities; the ability of first nations to access capital sources to leverage their revenue streams to further invest in the Canadian economy; a new nation-to-nation relationship with the Crown as a true UNDRIP partner; direct first nations involvement in the wealth-generation aspects of the Canadian economy; and fulfillment of UNDRIP.

These benefits will accrue only if there is a way for first nations to acquire a revenue stream to support self-determination. At present it is very difficult to nearly impossible for first nations to raise or access substantive capital to invest in major projects.

The advice that I wish to provide to the committee today is that the key to making UNDRIP work in Canada is to start with article 4, which is about the ways and means for financing indigenous autonomous functions. How this is implemented will determine if the promise of Bill C-15 and UNDRIP will be fulfilled.

Thank you.

[The Chair, Liberal, Bob Bratina]

Thank you very much to our first witness, Mr. Podlasly.

We will go next to Kara Flynn and Tara Shea of the Mining Association of Canada, for six minutes.

Please go ahead.

[Tara Shea, Senior Director, Regulatory and Indigenous Affairs , Mining Association of Canada]

Good morning, Mr. Chair, members of the committee and fellow panellists.

I'd like to start by acknowledging that I'm participating from Ottawa, which is traditional Algonquin territory. Kara is participating from Edmonton, which is Treaty 6 territory and the homeland of the Métis people.

Thank you very much for the invitation to be here today to share our members' views on Bill C-15.

MAC members have a strong record of establishing respectful and mutually beneficial relationships with Inuit, Métis and first nations peoples. Our members are among the largest industrial employers of indigenous peoples in Canada and a major customer of indigenous-owned businesses. Across the country, there are examples of partnerships between mining companies and communities that are advancing reconciliation and contributing to the implementation of the UN declaration.

As an association, we looked to the UN declaration and the Truth and Reconciliation Commission for guidance when we were drafting our recently updated indigenous and community relationships protocol as part of our sustainability initiative, “Towards Sustainable Mining”. We established a good practice level that includes a commitment to aim to achieve free, prior and informed consent for new projects or expansions where impacts to rights may occur. This is among many other criteria in the standard designed to facilitate strong relationships through effective engagement and decision-making processes.

We are supportive of the objective of incrementally and thoughtfully implementing the UN declaration through collaboration. We see potential for Bill C-15 to improve relations between the Crown and indigenous peoples and to help advance reconciliation, but this will require additional clarity on certain key issues, effective implementation and adequate resourcing.

Our understanding of Bill C-15 is that it is enabling legislation that will require the federal government to work with indigenous peoples to co-develop an action plan to ensure that the progress made to date continues. It acknowledges that the declaration is already used as an interpretive tool but that it is not meant to give the declaration direct, legal effect in Canada.

We raise our interpretation of the bill today because we recognize that there are differing views as to the purpose of this bill, and this growing spectrum of interpretations is creating confusion about what this bill means and what it is intended to do. We are concerned that, in the absence of a common understanding of the intent of the legislation, there will be unintended consequences, including unmet expectations, legal challenges and increased uncertainty, all of which impact the viability of natural resource projects and their associated benefits to indigenous individuals, communities and businesses.

To help avoid expectations diverging further, the federal government must be transparent with how it interprets the declaration and what obligations it sees arising from Bill C-15. This includes enhancing communications on the bill’s intent in Parliament with indigenous peoples, provincial governments, other Canadians and the investment community.

Clarity on the federal government’s approach to free, prior and informed consent and its relationship to existing duty to consult obligations is particularly important. There have been recent statements from the Minister of Justice and others explaining what FPIC means in principle and notably that FPIC does not grant a veto over government decision-making.

We believe there is an urgent need for further clarity on process, beyond whether FPIC equates to a veto. In particular, this includes the circumstances that give rise to the obligation to consult and, in some cases, to seek consent and the specific processes for each; the government’s approach when efforts to obtain consent have been unsuccessful or when consent is provided by some affected indigenous communities but not all; and whether existing indigenous engagement processes may change and the specific changes being contemplated.

While we recognize that, to some extent, government decisions will be made on a case-by-case basis by considering issues such as strength of claim, impacts on rights and overall project benefits, the current lack of clarity does create uncertainty for investment, and these issues need to be clarified before the legislation is passed.

In our submission we recommended that guidance, policies and training be enhanced to ensure that federal officials are able to effectively engage in relationship building and consultation with indigenous communities. The current “Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult” are extremely outdated.

In addition to updating these guidelines, there are other practical steps that can be taken now to help ensure there is consistency across the federal government, including issuing a directive to federal officials informing them of the government’s interpretation of FPIC and the intent of Bill C-15. This should be done now to ensure there is no confusion at the working level about what Bill C-15 means.

Additional steps include incorporating the government's interpretation of FPIC and the bill into guidance training and policies; implementing oversight mechanisms to ensure that guidance and policies are consistently followed; and committing resources for ongoing training initiatives to respond to high turnover in key federal roles. This cannot be deferred any further. This guidance is needed now.

In looking ahead to the action plan, it will be critical that the process to develop this plan be transparent and well defined, given the wide spectrum of expectations with respect to this bill and the range of outcomes that are possible. This includes establishing a meaningful consultation plan, determining how actions will be identified and prioritized, and ensuring that the required resources are in place.

We respect and support the intent for the action plan to be co-developed with indigenous peoples, and we have asked to be engaged in the development and implementation of the action plan on any elements that may impact our sector.

With that, Mr. Chair, thank you again for the invitation to present today.

We look forward to the committee's questions.

[The Chair, Liberal, Bob Bratina]

Thank you very much, Ms. Shea.

Our third presenter in this segment is the president of the Indian Resource Council, Mr. Stephen Buffalo.

Please go ahead for six minutes.

[Stephen Buffalo, President, Indian Resource Council]

Thank you, Chair and committee members, for the opportunity to speak today. I am in the Treaty No. 7 territory. My name is Stephen Buffalo. I'm the president and CEO of the Indian Resource Council of Canada.

Our organization represents over 130 first nations across Canada that produce or have a direct interest in the oil and gas industry. Our mandate is to advocate for federal policies that will improve and increase economic development opportunities for our first nations. Few will be more impacted in the short term than the 130 members of the Indian Resource Council if the proposed UNDRIP legislation is not clearly drafted. Otherwise this will compromise the ability of our members to engage in resource development.

The members of the Indian Resource Council, like all first nations, obviously find a lot to like in the UNDRIP, which we support without question. I'm personally from the same nation as Dr. Willie Littlechild, one of the architects of the declaration. I've spoken to him at length about understanding the spirit and the intent behind it, but I'm very concerned about the unintended consequences of this legislation. I think, in practice, it will slow down or even reverse the economic development that we've achieved in our nations.

Within our communities, the majority of our members support involvement in the oil and gas industry—not all but most. That's because the royalties and profits we generate from this sector have been essential to the well-being of our people. They pay for things like elder services, housing, cultural programs, bereavement costs, recreation centres and other programs and services that are chronically underfunded by the federal government, or not funded at all. They provide us some autonomy in spending that we do not have with federal funding. They allow us to exercise our self-determination.

In my own community of Maskwacis, we've created a trust company, Peace Hills Trust, a scholarship fund to encourage our youth to pursue post-secondary education. The energy sector has brought many benefits to us, and we don't need any additional barriers that will impact or eliminate these benefits. Creating a competitive and stable investment environment in Canada would help bring new development projects in our territories. Having sufficient pipeline capacity, for example, would allow our members to earn full value of their products instead of having to accept a discount due to transportation and market constraints, as we see now today.

We've already seen countless jobs, procurement opportunities and equity stakes lost in the cancellation of tens of billions of dollars from energy projects across western Canada as a result of legislation such as Bill C-48 and Bill C-69. We have a lot to lose if this legislation, in its current form, further impacts our ability to attract investment.

Let me share with you the biggest concern about Bill C-15. The legislation says that indigenous people need to provide consent for a project to go forward, but it doesn't say who can provide or deny consent and how it's to be demonstrated. If you're saying consent is provided by chief and councils through band council resolution or referendum, then that's one thing. But if you're saying that a small group of indigenous activists who declare that their consent is required, and that they have the right to blockade any project they do not like, or just to get a standing in court to contest it, then that's a recipe for disaster.

It would be much better if this committee could define “free, prior and informed consent” in the legislation and determine who can represent and make decisions on behalf of indigenous peoples for the purpose of project approvals. Better yet, this committee can engage indigenous people across Canada to come to a consensus on what “consent” means before passing this legislation, because you know as well as I do that some people think it's a veto, and if the committee doesn't think it's a veto, then they should make that clear.

Putting the declaration verbatim into federal legislation without these definitions is going to allow special interest groups to weaponize the United Nations Declaration on the Rights of Indigenous Peoples as a tool to stop any extractive project they do not like. This isn't my being paranoid. This is in our communities and in our projects all the time. I even heard it from some MPs using UNDRIP as a reason to cancel TMX, for example.

Many of our members are actually involved in negotiating and purchasing it, but whether or not you support the oil and gas industry, it's the right of the 130 first nations in our organization to develop their resources as they see fit.

At the end of the day, if the bill remains vague, as it is in its current form, I believe some judge down the line is going to decide what FPIC means in the context of resource development. No one is going to want to invest in any major projects in this country until that day comes.

IRC members want better protection for indigenous rights, and there's obviously a lot of good that can come from using the United Nations Declaration on the Rights of Indigenous Peoples as a shield and framework for reconciliation. However, investment requires certainty, and if we're going to self-determine, reduce our dependency on government and move beyond meagre royalties, we'll need to attract investment of our own.

Thank you for the time. I'm happy to take questions.

[The Chair, Liberal, Bob Bratina]

President Buffalo, thank you very much.

We'll now go to a six-minute round of questioning. I have, on the first panel, Mr. Melillo, Mr. van Koeverden, Ms. Normandin and Ms. Gazan.

Eric, you're up first, for six minutes.

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much, Mr. Chair.

I thank all of our witnesses for joining us today. You have already given us a lot to think about. I'm looking forward to the questions and hearing more about what you have to say.

I would like to direct my questions to the Mining Association of Canada. Whoever wants to answer can feel free to jump in.

I represent the riding of Kenora, in northwestern Ontario. There are lots of mining developments there. The Red Lake mine, the Musselwhite mine and many others fall in my riding. They're obviously a major economic driver for our region and a major employer of first nations as well.

I'm wondering, just to start off, if you can touch on some of the mechanisms and processes that mining companies have in place currently to ensure that they work in partnership with indigenous communities and that any developing projects are working to the benefit of these communities. The question is for whoever wants to take it.

[Tara Shea]

I'll use this opportunity to speak about relationship agreements between mining companies and communities. We're getting close to 500 active agreements between companies and communities in Canada right now. NRCan does track this on its website.

Relationship agreements, impact benefit agreements or collaboration agreements—whatever you want to call them—set out the terms of the relationship between a company and a community. They address the unique circumstances of the mining activity, the impacts on rights and the relationship. They include provisions addressing education, training, environmental stewardship, reclamation, employment, business development and community investments. They outline the responsibilities for both parties.

Early agreements were transactional in nature. What we're seeing today is a move beyond financial payments to compensate for potential adverse impacts and toward a means to facilitate indigenous participation in our sector.

We're actually seeing some really great results. Formal agreements have increased indigenous participation in our sector. We're the largest employer of indigenous peoples on a proportional basis and a major customer of indigenous-owned businesses, with many companies spending millions annually on contracts with indigenous service providers.

There are other examples of company-community partnerships on things like environmental monitoring and reclamation activity, and they make sure that indigenous knowledge is incorporated into the way we do business.

[Kara Flynn, Vice-President, Government and Public Affairs, Syncrude Canada, Mining Association of Canada]

Perhaps, Mr. Melillo, I can expand on Ms. Shea's comments.

Mining companies and all natural resource companies really do look to our relationships, not just at the front end of a regulatory process, but through the full life cycle of the exploration, development, operation, and remediation and reclamation of our facilities.

As Tara said, that involves business contracts. It involves employment. It involves capacity building in community. However, it has also started to evolve into equity investments and initiatives that truly lead to great partnerships between a resource company and one community or several, depending on the facility. It is about the project specifically, but it is also about being good partners as we work together in development.

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much.

I appreciate both those comments.

I'll ask simply this, and I know it's not going to be a simple answer. With all the work that has been ongoing already and some of the uncertainties that you alluded to in your opening remarks around UNDRIP and around Bill C-15, do you feel that the adoption of Bill C-15 could potentially put some of these processes and agreements in jeopardy?

[Mark Podlasly]

Could I step in here?

Excuse me, Tara. I'll let you go first.

[Tara Shea]

No, go ahead, Mark.

[Mark Podlasly]

I'm speaking on behalf of the members of the First Nations Major Projects Coalition, and we're speaking about major projects.

In our opinion—this is the 70 first nations—UNDRIP actually increases certainty for the development of projects in the country. We take the position that the clarity that UNDRIP provides—of first nations' knowing that they will be active participants in whatever development—provides investors and proponents with certainty about their investments going forward.

Our members are not against development. We're pro-smart development, and UNDRIP, in its clauses, will provide that assurance.

[Eric Melillo, Conservative, Kenora, ON]

Thank you.

If I could go back to Ms. Shea with the question....

I just want to get your comments on that. Then I think I might have to yield the floor.

[Tara Shea]

Sure.

In our submission, we pointed out that we do see some potential with additional clarity, good implementation and the right resourcing.

I'll just add that if we have to wait three years for key issues to be clarified, there's going to be this period of uncertainty. That's why we're focusing on some things that we can do now to reduce that uncertainty, to clarify these key issues, specifically around the federal process for FPIC.

Practical guidance, training and policies can help avoid that confusion at the working level. We fear that, in the absence of adequate guidance for federal officials, the federal approach to identifying indigenous groups that need to be consulted, the degree of consultation required, and when and what accommodation may be required will continue to be inconsistent.

In a way, we're using this as an opportunity to ask for something that's already needed in terms of consistency across federal departments.

[Eric Melillo, Conservative, Kenora, ON]

Mr. Chair, how am I for time?

[The Chair, Liberal, Bob Bratina]

We're done. I'm sorry about that.

[Eric Melillo, Conservative, Kenora, ON]

Okay.

[The Chair, Liberal, Bob Bratina]

Now we have Mr. van Koeverden.

Please go ahead for six minutes.

[Adam van Koeverden, Liberal, Milton, ON]

Thank you very much, Mr. Chair.

I thank the witnesses for all of the insight today. These are important subjects, and your insights and perspectives are really important.

I am joining you today from the traditional territory of the Haudenosaunee, the Huron-Wendat, the Anishinabe, the Attawandaron and, more recently, the Mississaugas of the Credit First Nation.

My question is for Mark Podlasly. It comes with a glimmer of envy, as you're joining us from the Coast Salish territory, which is one of the most beautiful places in Canada. I hope that there aren't too many people from Milton listening as I express envy for how beautiful your territory is. I'm a water person myself, so I love your territory. That part of the country is beautiful.

I took note of your reference to article 4 repeatedly throughout your testimony today. I looked it up, and I want to read it out for my benefit and for the benefit of anybody else who is interested in listening.

It goes like this:

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

I don't know who it's attributable to, but I have heard that more human rights are never a bad thing. I do know that it was Martin Luther King who said, “A right delayed is a right denied.”

l am a strong believer that these rights have been delayed a tremendously long time. This bill, in swift form, will take action on that and give people and persons the rights they so deserve.

We have spent a lot of time discussing the nuances and differences between a veto and free, prior and informed consent. We also recently heard from a former MP, Romeo Saganash, on his definition or distinction between the two.

I'll read that, and then following that, Mr. Podlasly, I'd ask for your reflections on the subject.

Mr. Saganash said:

Veto and FPIC are two different legal concepts. One is absolute, and that is veto, whereas the other one is relative. Like all human rights, the right to free, prior and informed consent is relative. We have to take into consideration a lot of other factors and facts and the law and the circumstances of a given situation.

Mr. Podlasly, I'd just ask for your reflections on this, and thank you for your testimony today.

[Mark Podlasly]

Thank you.

The question of ways and means to finance our own autonomy, as you mentioned, in article 4, is the key to any other clauses within UNDRIP. Anything that provides for education, social, linguistic, it all depends on some revenue stream. First nations need a revenue stream like any government to provide those services.

That is why the First Nations Major Projects Coalition sees that as key to UNDRIP, and the implementation of UNDRIP and all its promises will not be possible without that financing.

On the question you raised around whether a veto is in place, either practically or by default, at the coalition we take the perspective that if first nations are included in smart development, up front, as equity partners, then we essentially become co-proponents. Therefore, the question of FPIC as a veto or not is moot because no interested party, or no party that has been consulted and provides consent via an equity ownership, is ever going to run into that problem.

That is why we are very keen on seeing some sort of capital access program or capital access policies that allow first nations to make investments in projects, so that will never be an issue.

[Adam van Koeverden, Liberal, Milton, ON]

I really appreciate that answer.

As I have been reflecting and listening, albeit I am new to this conversation as a member of this committee, I get the sense that the conversation keeps coming back to who stands to benefit from a lot of these large operations and projects.

Consistently we've talked about jobs, working-class jobs for people who are there, but it seems in this context we are talking about a form of ownership. This is actually a project that would be owned, in more cases, by first nations. This is not about earning a living. This would be about generating wealth and the long-term viability of various communities.

I ask for your reflections again on ownership and the ability to dictate and self-govern and decide for oneself, with autonomy and self-government and self-determination being the underlying theme and context of this.

[Mark Podlasly]

I would point out that impact benefit agreements, participation agreements, the ones now in effect across the country with proponents and first nations, are not only about revenue. They are about jobs, environmental protection and contracting opportunities. Many economic engines come into that.

As was pointed out by Ms. Shea, they include provisions for input on mine closure and reclamation of sites. They are very comprehensive. It is not just about revenue, to make that clear. However, first nations moving into an UNDRIP situation, where self-determination as part of UNDRIP is in the equation, will require some sort of funding.

I should point out as well that all the promises of UNDRIP will not be possible under the payment of one government. The federal government will not have the ability to fund everything in UNDRIP. There has to be a partnership in there in some way, because we, as first nations, want to provide many of these services, language retention, things that are important to our communities, like every other community in this country.

[Adam van Koeverden, Liberal, Milton, ON]

Which other levels of government or various stakeholders would you see as good or viable partners in that implementation?