Indigenous and Northern Affairs Committee on March 30th, 2021

[Kara Flynn]

Perhaps I could start. I believe Mr. Podlasly was speaking specifically to land issues. I'll respond in a broader context of risk.

Investment is very much alive to risk and all of the different factors around risk. The higher the level of risk there is, the higher the level of return an investor will seek to attain. We see the legislation within this lens. We need clarity around the fact that it is enabling legislation that does not have direct effect in law and that is well implemented by public officials who are trained and have the resources to do this, and we need clarity around working together to achieve an outcome as opposed to FPIC, for example, being a veto.

Those are also risks that are alive in this conversation, as much as Mr. Podlasly is correct on the land aspects, for sure.

[Christine Normandin, Bloc, Saint-Jean, QC]

Mr. Chair, I don't think I have enough time left to ask another question and get an answer.

[The Chair, Liberal, Bob Bratina]

No. I'm sorry about that. Thank you.

Ms. Gazan, you have the same time of two and a half minutes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, Chair.

My last question is for Madam Shea or Madam Flynn. The study of the UN expert mechanism on the rights of indigenous peoples states the following in paragraph 49:

In the private sector, free, prior and informed consent is developing into an international standard for companies operating on indigenous lands. In November 2014, First Peoples Worldwide published the “Indigenous Rights Risk Report”, finding that 89 per cent of the projects assessed had a high or medium risk exposure “to indigenous community opposition or violations of indigenous peoples’ rights”....

What does your organization currently do to mitigate this risk?

[Tara Shea]

Maybe I'll start, and then Kara can jump in.

I'll use this opportunity to talk about “Towards Sustainable Mining”. For anyone who's not familiar with it, it's our sustainability initiative. It's a mandatory program for our members. It involves annual public reporting and third party external verification. We have an indigenous engagement component built into the program. Since 2004 our members have been reporting on their engagement systems.

In 2019 we updated this component of TSM. We looked to the UN declaration and the TRC for guidance. We consider a good practice level one where you would commit to striving to achieve FPIC for new projects or expansions where impacts to rights occur. Nowhere in the protocol does it say that the facility has achieved FPIC, because we really see that as an ongoing process. Instead, what we have in there is level A for good practice. It requires senior management commitments to work with indigenous communities. Facilities would demonstrate that their engagement systems reflect the local context and are developed through engagement with affected communities.

At the higher levels in TSM, what we consider excellence in leadership, that's where the criteria shift to companies and communities working together to co-develop engagement processes and establish the terms of the relationship. The—

[Leah Gazan, NDP, Winnipeg Centre, MB]

Just because I have limits of time, I want to follow up on what you said, that in projects you've had difficulty getting FPIC and you haven't achieved FPIC.

When you haven't achieved the complete, free, prior and informed consent of people or nations you're partnering with, do you then proceed with projects without the free, prior and informed consent?

I want to understand this.

[Tara Shea]

Yes.

[The Chair, Liberal, Bob Bratina]

Answer very briefly, please.

[Tara Shea]

I think you misunderstood.

It's a management system standard where we don't give a verified rating that a company has achieved FPIC. It's more of a process of ongoing engagement in TSM.

[The Chair, Liberal, Bob Bratina]

Thank you for that.

I'm very sorry about the time issue, but those are the rules we have to live with.

Thank you to the panellists. We've heard very wonderful presentations from everyone, and it's very helpful to our committee.

We're going to suspend and set up our next panel.

This meeting is now briefly suspended.

[The Chair, Liberal, Bob Bratina]

We're ready to call this meeting back to order.

I offer my apologies to everyone for the very late start. We have time constraints in our committee meetings, so we'll have to move along quickly.

Each of the witnesses will have six minutes. I'll be kind of a tyrant on the timing of this, so we can at least get one round of questioning in from our committee.

Mr. Joffe, would you please start for six minutes?

[Paul Joffe, Lawyer, As an Individual]

Good afternoon, honourable committee members.

I'm speaking from Saint-Lambert, Quebec, which is on the traditional territory of the Mohawk people.

I wish to acknowledge the crucial work of former MP Romeo Saganash. As confirmed by the federal government, Romeo's private member's bill, Bill C-262, serves as the floor, but not the ceiling, in moving forward with Bill C-15. We must now build upon the standards of Bill C-262.

Indigenous peoples in Canada continue to face human rights violations. These include, inter alia, racism and other forms of discrimination; dispossession of lands, territories and resources; impoverishment; lack of essential services; food insecurity; missing and murdered women and girls; and forced assimilation and destruction of cultures and languages. In too many instances, intergenerational trauma from residential schools continues to be experienced. It's time for real change.

In this context, it is worth noting that, to date, the UN declaration has been reaffirmed at least 10 times by the UN General Assembly by consensus. No state in the world formally opposes this human rights instrument. This reinforces its significance and legal effect.

I would like now to address the meaning of free, prior and informed consent—or FPIC—as affirmed in the UN declaration, particularly in the context of proposed developments in indigenous peoples' territories. With respect to FPIC, the term “free” means there must be no coercion or manipulation. “Prior” means that consent must be obtained in advance of the activity being approved. “Informed” means that information must not be withheld, misleading or inadequate. Without these three FPIC elements, there would not be valid consent in international law or Canadian law.

FPIC and other provisions in the UN declaration are relative and not absolute. Article 46(3) of the declaration includes one of the most comprehensive balancing provisions in any international human rights instrument. It states:

The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

These are the same core principles as in the Canadian and international legal systems. These are also the same principles that have been denied to indigenous peoples throughout history.

FPIC is not the same as veto. The term “veto” is not used in the declaration. Veto implies complete and absolute power, regardless of the facts and law in any given case.

FPIC is also gaining support in the corporate sector in Canada and internationally. For example, in its 2019 guidebook, the Canadian Council for Aboriginal Business advises to “Commit to meaningful consultation, building respectful relationships, and obtaining the free, prior, and informed consent of Indigenous Peoples before proceeding with economic development projects.”

As well, the UN Global Compact—the world's largest corporate responsibility initiative with over 12,000 companies in over 160 countries—has expressed strong support for indigenous peoples in its comprehensive business reference guide on the UN declaration. It states:

FPIC should be obtained whenever there is an impact on indigenous peoples’ substantive rights (including rights to land, territories and resources, and rights to cultural, economic and political self-determination).

Respecting human rights cannot reasonably be held up as an impediment to economic development. This legislation will lead to improved relationships, greater certainty and less litigation.

Currently Canada is demonstrating global leadership by implementing a federal bill on the UN declaration; however, some key revisions to Bill C-15 are still required. For example, I would urge adding racism to the eighth preamble paragraph and to the action plan in subparagraph 6(2)(a)(i).

Overall, Bill C-15 is a positive catalyst for co-operation, justice, healing and mutual respect.

Thank you.

[The Chair, Liberal, Bob Bratina]

Thank you very much. You are exactly on time. That is much appreciated.

Madam Langlois, please go ahead for six minutes.

[France-Isabelle Langlois, Executive Director, Amnistie internationale Canada francophone]

Mr. Chair, vice-chairs, members of the Standing Committee on Indigenous and Northern Affairs, good morning.

I would like to begin by acknowledging that the offices of Amnistie internationale Canada francophone are located on unceded indigenous territory.

Thank you for this invitation to Amnistie internationale Canada francophone to participate in the hearings on Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, hereinafter referred to simply as “the declaration”.

The adoption of the declaration into various Canadian laws is a priority human rights issue for Amnistie internationale Canada francophone, and anglophone Amnesty International Canada. Amnistie internationale actively lobbied for the adoption of the declaration by the UN General Assembly in 2007, and both Canadian chapters lobbied for Canada's adherence to the declaration until it was achieved in 2010. We have intervened in several forums that have taken place in Canada, and each time we have reiterated the importance of the effective implementation of the declaration in Canadian law.

The various inquiries, whether it be the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, or the Viens Commission, to name a few, have all recommended the implementation of the declaration. This is principle number 1 of the Truth and Reconciliation Commission of Canada: “The United Nations Declaration on the Rights of Indigenous Peoples provides the framework for reconciliation at all levels and across all sectors of Canadian society. ”

We previously supported Bill C-262, sponsored by NDP MP Romeo Saganash, which had the same purpose as Bill C-15. Unfortunately, this bill could not be passed before the 2019 election was called. By the same token, we welcomed the BC government's announcement in 2019 that it would implement the declaration in its legislation.

On March 10, the Hill Times published an open letter signed by more than 200 predominantly indigenous organizations and individuals and supported by Amnistie internationale calling for the passage of Bill C-15 before the end of the current session of Parliament.

As you can see, Amnistie internationale is in favour of Bill C-15. It is long overdue and it is long past time for Canada to implement the declaration. It is no longer time for surveys and studies, but for action. Civil society has been working for 13 years to make the declaration a reality. Indigenous peoples in Canada have suffered and continue to suffer the oppression of colonization. The Parliament of Canada has an historic opportunity to advance reconciliation with indigenous peoples.

The United Nations Declaration on the Rights of Indigenous Peoples is a global consensus instrument on human rights. It defines the minimum standards necessary for the survival, dignity and well-being of indigenous peoples. The implementation of these standards is essential to improving the lives of indigenous peoples in Canada and around the world, and to meeting Canada's formal and pressing human rights commitments. This bill is far from perfect. But it is nonetheless of the utmost importance. We cannot afford to see such a critically important piece of legislation slip through the cracks again.

Amnistie internationale would have liked to see issues specific to indigenous women more apparent in Bill C-15. It is true that the national survey is mentioned, but that is not enough. Indigenous women in Canada face double discrimination because they are both women and indigenous. Therefore, it is important that indigenous women be included in all stages of the implementation of the bill and that the action plan pay particular attention to their inclusion. They must be given justice and redress for all forms of discrimination, abuse, injury and attempts on their lives that they continue to suffer. Moreover, they must be part of building a just and equitable Canada for all its peoples.

Amnistie internationale would also like to see the mechanisms for consulting and working with indigenous peoples made more explicit in Bill C-15. In our view, several questions remain: who will be consulted, how and when?

Finally, Amnistie internationale would like to see the bill passed, an action plan developed, and Canadian laws harmonized with the declaration according to the minimum principles of international human rights law.

The declaration contains over 20 provisions affirming the right of indigenous peoples to participate in decision-making, including article 3, which addresses self-determination; article 4, which addresses the right to self-government or autonomy; article 18, which addresses the right to participate in decision-making; article 23, which addresses the right to be actively involved in decision-making; article 19, which addresses the obligation of states to obtain their free, prior and informed consent; articles 32.2, 36.2, and 38, which address the obligation to consult and co-operate with indigenous peoples; articles 22.2, 27, and 31.2, which address the obligation to take measures in concert with indigenous peoples; and article 26.3, which addresses the obligation to respect the customs of indigenous peoples.

Notwithstanding the few reservations we have just expressed, Amnistie internationale calls on members of the House of Commons and members of the Senate to act diligently, in a non-partisan manner, and in accordance with Canada's commitment to indigenous peoples. We call on members of the House of Commons and members of the Senate to be guided only by the highest standards of human rights and human dignity, so that Bill C-15 is passed by the end of the parliamentary session.

Thank you.

[The Chair, Liberal, Bob Bratina]

Thanks very much.

Moving now to the Canadian Association of Petroleum Producers, we have Shannon Joseph, vice-president, government relations and indigenous affairs; and Brian Schmidt, president and CEO of Tamarack Valley Energy.

Ms. Joseph, are you taking the lead?

[Shannon Joseph, Vice-President, Government Relations and Indigenous Affairs, Canadian Association of Petroleum Producers]

Brian will be taking the lead.

[The Chair, Liberal, Bob Bratina]

Brian, go ahead for six minutes.

[Brian Schmidt, President and Chief Executive Officer, Tamarack Valley Energy, and Board Member, Canadian Association of Petroleum Producers]

Thank you to the standing committee for the opportunity to present today.

I'd like to acknowledge that I'm speaking from the traditional territories of treaty 7 and the Métis Nation of Alberta, region 3. My colleague, Ms. Shannon Joseph, is speaking from the traditional Algonquin territory.

My name is Brian Schmidt, Aakaikkitstaki. I am the CEO of Tamarack Valley Energy, and I am here today on behalf of the Canadian Association of Petroleum Producers in my capacity as chair of our indigenous affairs policy group.

I have also been in business with the Kainai people for decades as an operator of oil and gas drilling rigs on the reserve land of the Blood Tribe. I was proud to be honoured a few years ago with the title of honorary chief of the Kainai.

CAPP first publicly voiced its support for UNDRIP back in 2016 at the same time the federal government did. We continue to support UNDRIP implementation in a manner consistent with the Canadian Constitution and law. For the people of our association, creating mutually beneficial partnerships with indigenous people, communities, businesses and employees is central to how we operate and to our role in reconciliation.

Today the oil and gas industry procures more from indigenous businesses, than any other industry in Canada and—if I may say so—far more than the federal government as a whole. In 2017-19, an aggregate spend with indigenous communities was $5.9 billion. In 2019, indigenous procurement was 11% of our procurement. We are also one of the largest employers of indigenous people, indigenous men and women. They earn, in our industry, the highest wages compared to any other sector in the country.

These relationships and opportunities have been one of the strongest paths for building indigenous prosperity in Canada. There are indigenous groups that are looking to purchase the Trans Mountain expansion pipeline, and there are pretty much new equity deals being announced every month with indigenous ownership in oil and gas projects.

Finally, indigenous communities across Canada earn hundreds of millions of dollars each year from royalties and other benefits through the development of resources on reserve lands. What this means concretely for my indigenous colleagues is that resource development provides important opportunities to address poverty and advance economic self-determination, and I've seen that first-hand.

We aren't here to ask you to choose between our industry's interests and indigenous people's interests. I'm here to say firmly that I believe that we have the same interests in this matter. We want indigenous rights to be protected, and we also want to have a healthy and prosperous oil and gas resource sector so that we can all benefit from a strong, Canadian economy.

Bill C-15 as written will create more uncertainty for our industry and resource development as a whole in Canada. This will mean that we cannot attract investment from capital markets and that good projects, including one supported by the majority of indigenous communities, will not proceed. This will harm the oil and gas sector, and we want to avoid that. More importantly, it will also harm the indigenous communities who value resource development as an important means of creating jobs and revenues. Human rights equals human economic development.

The Financial Post calculated that in the last five years we've lost 150 billion dollars' worth of energy projects in Canada, abandoned or suspended because investors would not take the risk of financing them. Just last week, we heard about Chevron pulling out of Kitimat LNG, which had tremendous indigenous involvement. If you do the math, 11% of indigenous procurement on $150 billion on projects means $16.5 billion of lost income to indigenous people. The lack of clarity and uncertainty has real consequences in terms of people's livelihoods and opportunities for prosperity and self-determination.

What industry is asking is to not leave things undefined. Make it easier for us to do business with indigenous communities, not harder. CAPP has some specific amendments that would help alleviate the major concerns to our industry and investors on Bill C-15. These include, first, clarifying that Bill C-15 does not have an immediate application as domestic federal law but, rather, establishes a process for the review of existing Canadian laws; and second, defining free, prior and informed consent for the Canadian context.

In our understanding, FPIC is a process, not an outcome, and as many—including Minister Lametti—have said, it is not a veto. We have a suggested definition that reflects this and that is consistent with principle six of the federal government's 10 principles for the implementation of UNDRIP. It is also consistent with the federal and provincial governments' retaining their authority to make final decisions.

The final one is ensuring that the action plan is the main vehicle by which to make UNDRIP practicable in Canada, co-developed with indigenous people and with the intention that stakeholders, such as ourselves, would be able to engage in dialogue where appropriate to our industry. The action plan process should be adequately resourced and create clear accountabilities.

Thank you.

[The Chair, Liberal, Bob Bratina]

Thanks, Mr. Schmidt.

Members of the committee, we will be doing at least one six-minute round. That will take us past the appointed hour of concluding at one o'clock. Is anyone opposed to extending the meeting past one o'clock for a brief time so that we can get in our six-minute round?

I see no one opposed. I will take it that we are in favour of carrying on. We will begin our six-minute round of questions with Mr. Vidal.

Please go ahead.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

I want to thank all of our witnesses for joining us here today. We've received a lot of great testimony over the last few weeks on our study of Bill C-15.

First, Mr. Schmidt or Ms. Joseph—I'll let you both have the opportunity to respond, if you want—I read a brief that you submitted a while back in which you referred to many of the same concepts as in your testimony today. It was about the great work that people in your organization have done with regard to their work with indigenous people and first nations and the relationships and whatnot that your industry has in those communities. You talked about investment. You talked about the contributions that are made.

Last week I made a statement to one of our witnesses that those who champion poverty reduction through economic development often get labelled as lacking compassion. I would see that as the exact opposite. You might want to speak to that in the context of the work your member organizations do in these communities.

Mr. Schmidt, you talked about your own relationship specifically with your company. I'd like you to expand on that a little bit and talk about how the work your organizations do, the relationships you have and the incredible amount of procurement and job creation you initiate in these communities has...on the opportunity to end poverty, create success for many first nations and grant them the opportunity to be successful in the future, investing in things like housing and recreation and the social issues they have. In my community, in my riding, we deal with a lot of suicide crisis kinds of things. The investments made by industry are huge in those kinds of issues in the first nations communities.

I'd like you to speak to that. I would also like you to speak to how the potential uncertainty of Bill C-15 might either contribute to or hinder that in the context of the great work that you've already done.

[Brian Schmidt]

Certainly. Let me speak to my personal involvement and how I see this as so important.

I also said that as an adviser to the board of the Indian Resource Council of Canada—Stephen Buffalo spoke earlier and that's his association—I've seen their revenues be destroyed. It's really interesting because capital markets can move capital from one area or jurisdiction to another. First nations cannot move their reserves, so I see first-hand how this affects their communities. At the same time COVID was coming down, their revenue shortfalls were crashing down, so we ended up assisting the Kainai tribe with some COVID relief. I feel for what Stephen Buffalo and his membership have been going through.

In my particular circumstance, we help with cultural events. We do movies to connect elders with young people. A lot of the things that I've heard mentioned today we just do hand in hand. I think Canada really has the gold standard in terms of how we work with first nations. On equity partnerships, we involve them on the business side. We're doing some work with the Kainai now on abandoned wells and putting people to work. This is critical to their being. I will tell you that they are proud. They really do not want handouts. They want to drive their own economic activity, and this gives them an opportunity.

With respect to the risk, MP Gazan brought up risk disclosure. That's very important. I'm really glad you brought that up, because risk disclosure has to occur on any major projects. I visit investors in New York, Houston, Europe, all over the world, and they talk about the Canadian jurisdiction as being very difficult to invest in. In the Financial Post, as I mentioned, it says there are $150 billion in cancelled projects, because the investors wouldn't take the risk. I've seen investors choose Siberia over British Columbia, because they thought the LNG development was too difficult, and we've seen Warren Buffett pull $9 billion out of Saguenay, Quebec.

It's interesting to me that a number of speakers talked about the investment community as if they are part of it. I will tell you that in the investment community, you just need to look at the register of the number of cancelled projects and the number of new ones introduced to know that Canada is a very risky jurisdiction. The $20-billion Frontier oil sands project was cancelled. That's one that had one of the most stringent environmental, social and governance to date. We've seen pipelines.... Even with equity ownership by indigenous peoples, that is not a safety valve for getting projects through.

The only main linear projects that we see going through are ones that are financed by the federal government or ones that are financed by indigenous people themselves, not so much the private industry. Gateway was about 20% or 30% owned by first nations, and that was cancelled. Keystone XL was just cancelled, with indigenous ownership, so that is no guarantee. I think the jurisdiction is just another element.

With the clarity that we're seeking, we think we can change this, and we're willing to work in the action committee to take care of that.

Thank you.

[The Chair, Liberal, Bob Bratina]

Thanks very much.

That brings us to time, Gary. Thank you.

Mr. Battiste, you have six minutes.

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

Thank you, Mr. Chair. My question is for Paul Joffe.

Paul, you did a good presentation on why human rights were a key part of UNDRIP, and you really spoke to those core principles, but can you tell me a little bit about the background of why UNDRIP was necessary to establish those minimum human rights?

Were nation-states and the industries not already respecting those core human rights in the lead-up to UNDRIP?

[Paul Joffe]

I've worked on human rights for indigenous people since 1974. I've been involved in international processes both at the UN and also at the Organization of American States in Washington, and I can tell you that, in both forums, the UN included indigenous peoples from all countries in the world, and there are about 470 million indigenous people in up to 90 countries.

What we heard, for example, is that the duty to consult alone has not worked for indigenous peoples in any region. They came to the UN, and they came to the Organization of American States—different indigenous peoples, sometimes they were the same—and they described all the violations, the human rights violations and the poverty because of the dispossession of lands, territories and resources.

I didn't hear many people.... There are always a few, but considering the thousands who I did meet, they did not mention that they were against development. In fact, the UN declaration in articles.... Well, it's in the right of self-determination. It's in the right of self-government. It's in article 20, article 23 and 32(1) that indigenous peoples also have a right to development. Development was not something that people opposed. What people opposed were the tremendous abuses that lead to impoverishment.

This is a human rights instrument. It's recognized as a human rights instrument by the UN and everywhere else. It's about working together. That's why it says, “consultation and cooperation“. That's why the DRIPA bill in B.C. talks about consultation and co-operation. It's not to create the visions. It's to come together in a fair way based on principles and rights that are universal. I don't know if that helps, but that's a quick answer.

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

It does help. In the final three minutes, I would like to say that, as an indigenous person, I've been kind of concerned with industry and corporations coming to the table and saying, “Indigenous people really want just to be part of the economic development in Canada”, whereas I'm listening to indigenous youth across Canada who are fighting systemic racism, fighting for rights and doing what they can to protect the environment in what we now know is a climate change that is real, and it's a pressing concern, especially for indigenous people.

How do we balance in this country the rights that should be given to all human beings and the certainty of investments from corporations for profits and further investments?