Indigenous and Northern Affairs Committee on March 30th, 2021

[Mark Podlasly]

It's the Crown, but there are two Crowns in this country—the provinces and the feds. Depending on the arrangement and how the implementation goes for UNDRIP across the country, those two players will have to be a part of the discussion.

I am from British Columbia, which has already implemented an UNDRIP type of legislation and is moving toward that, but the Crown in B.C., at least in my province, will also require input from the Crown federally, and that comes back to your committee.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

I am sorry, Mr. van Koeverden. We are past time now.

Ms. Normandin now has the floor for six minutes.

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

Thank you very much, Mr. Chair.

I thank all the witnesses for their very informative presentations.

My first question is for Mr. Podlasly.

I'd like to make a little preamble. You will not be surprised to hear that as a member of the Bloc Québécois, I am particularly interested in the issue of self-determination of peoples. In the case of Quebec, there have been attempts in the past to define the self-determination of peoples after the fact. I am thinking in particular of referendum clarity.

Is this something you might be concerned about? If the criteria in Bill C-15 do not clearly establish what constitutes free, prior, and informed consent, could there be an attempt to water down the bill and make it meaningless? Are the access to funding measures that you were announcing sufficient to prevent this?

[Mark Podlasly]

Thank you for your question.

I have just a point of clarification. Access to capital is not the same as funding. We would provide that capital into our own services and the self-determination priorities of our nations, so that is separate. I hope I have not given that impression.

Do we need to define now what “consent” means so that it does not become an issue later? I think that is what the second part of your question is. That would be helpful. However, that has to be done in concert with the first nations. To have the federal government simply define it—“this is what consent means”—will cause problems. UNDRIP, by its nature, is supposed to be a collaborative agreement to allow indigenous people and their host states to build a better future together. The question of consent will take time, and it will have to be worked out between the parties.

I should point out as well that disagreement is a very Canadian concept. When we at the coalition are approached and asked why we aboriginal people or indigenous people can't have some sort of unified approach, our response is, “Just like Canada and all the provinces are unified in their approaches?”

We are building a better society, and it will take time. First nations are not in a vacuum. We understand that the consent question is important. We at the coalition, though, are focused on the economic aspects and do believe that for many situations that question will not become a key issue if it's around an equity ownership and direct participation in the projects in question.

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

Thank you very much, Mr. Podlasly.

I will take the liberty of clarifying my question.

You mentioned that it will take some collaborative work to define the concept of free, prior, and informed consent and that it may take some time.

Wouldn't that concept be diluted if it is not defined prior to the passage of Bill C-15? Couldn't this even undermine the purpose of the bill?

Do you instead believe that this is not a problem and that we can stick with Bill C-15 as written, without adding the definition of free, prior, and informed consent?

[Mark Podlasly]

Thank you.

I think the concept of consent will be worked out in time. I do not think it has to be worked out at this point. I would like to point out as well that UNDRIP itself is an international document, so the concept of consent will be evolving in many jurisdictions at the same time.

If there is something that comes out of that would be—as you put it—“watered down”, would that stand the test of the spirit of UNDRIP, which is about building better societies together? If it is something that is not compatible, let's say, with the concepts on both sides, the federal government and indigenous peoples, it will be refined over time, and the precedent of international agreements is that everyone—other indigenous people worldwide—is watching.

One other point I'd like to raise is that at the major projects coalition, we recently put on a conference on ESG standards—environmental, social and governance investment standards. Capital will flow to those jurisdictions that provide certainty around questions like that. Canada will also have to follow that.

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

Thank you very much, Mr. Podlasly.

My next question is for Mr. Buffalo.

The concept of consent could evolve over time and move closer to a veto right. Yet you have expressed some reservations in this regard. In light of this and Mr. Podlasly's responses, do you continue to support Bill C-15 as written or do you question it?

[Stephen Buffalo]

Thank you for the question.

The way we look at it is that obviously we want to see the United Nations declaration move ahead. From a human rights standpoint, you can see that in this country the indigenous people have confronted rights to certain issues and, nine times out of 10, it hasn't fallen in our favour. When it comes down to finding the consent, it definitely is going to take some time, and you know what? I think a lot of the members are prepared to work with it as long as there's some certainty moving forward that the issues would be addressed.

Like my colleague Mark mentioned—Mr. Podlasly—it's going to take some time to make those definitions, but obviously you see the opportunities coming forward now in today's day and age. You see the ESG. You see the opportunity.

Our organizations as well, with the First Nations Major Projects Coalition, are preparing our communities to be ready for that opportunity and those investments. We want to ensure that there is certainty to attract the capital, to attract the investment and to find a partner. When we define “consent”, it's really building a relationship that hasn't been there for—

[The Chair, Liberal, Bob Bratina]

We're out of time now, Mr. Buffalo. Thanks for your answer.

Ms. Gazan, you have six minutes. Go ahead, please.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, Mr. Chair.

My first questions are for Mr. Buffalo.

Do you consider the rights enshrined in the United Nations Declaration on the Rights of Indigenous Peoples to be human rights?

[Stephen Buffalo]

Absolutely. They're definitely human rights. That was the intent of the document from the get-go.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Do you believe that it's critical to uphold the human rights of all peoples, including indigenous peoples, at all times and without question?

[Stephen Buffalo]

Yes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I ask that because we know that international trade law has requirements or rules about risk disclosure. This serves as some sort of warning to potential investors. There are many areas in this country where there are fundamental indigenous rights attached to lands and resources, yet we often negotiate trade agreements without informing our counterparts of those same lands and resources that are still in dispute. I'm sure we can cite many examples right now in British Columbia.

With that in mind, aren't we then negotiating these trade agreements on a lie?

[Stephen Buffalo]

Yes. You can take this as far back as our treaty. When we look at our treaty and how we defined the land when we signed Treaty 6, we were told we got this much land, but then the Natural Resources Transfer Agreement came. It think it was in 1932. Hence, we lost our position, not knowing....

Now we're in the system that has been developed as Canada, which does not work. We're stuck under the system of the Indian Act. This declaration helps us have that voice and consent, and moving—

[Leah Gazan, NDP, Winnipeg Centre, MB]

I ask that because international trade law has requirements that include disclosure. That would include indicating to any investor in places where there is a potential risk as a result of a land dispute that hasn't been resolved. There are many examples in B.C.

I'd like to ask Mr. Podlasly the same question.

[Mark Podlasly]

I don't understand the question. The way it sounds now is that, yes, Canada should be disclosing to international treaty participants that there is a question about the land issue in Canada. In British Columbia, we are primarily unceded territories.

Is that your question? Are you asking me if Canada is negotiating on the basis of a lie?

[Leah Gazan, NDP, Winnipeg Centre, MB]

Yes. Part of international trade law requires full disclosure of risks. I would argue that having development occur on lands that are still in dispute would be considered a risk. We often see many of these developments end up in court as a result. Is the failure to fully acknowledge the impact of land disputes in negotiations not negotiating trade agreements on a lie?

[Mark Podlasly]

This is a complicated question.

In British Columbia, much of the territory is unceded. That means it has not been signed into a treaty. There has not been an agreement fulfilling the Royal Proclamation of 1763. Yes, it is a risk. The title to the land is in question. First nations are aware of that and are trying to pursue that—at least in British Columbia—by having benefit agreements that reflect that reality.

Investment communities are starting to become aware of this. Environmental, social and governance—or ESG—investment standards do try to take that into account. Institutional investors are taking that into account.

From a first nations perspective, we would wholeheartedly agree that Canada and the crowns—also British Columbia—need to acknowledge that fact. If they do not acknowledge it up front in trade agreements, the courts will come along and do that eventually, as you pointed out. Court rulings have sided with indigenous rights on the question of land repeatedly over the past 10 years in this country.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Would you say that, moving forward, a better way forward—I know you indicated your support for Bill C-15—would be to ensure that any agreements adhere to, at the very least, the minimum standards articulated in the United Nations Declaration on the Rights of Indigenous Peoples as a way to support development that is rooted and framed within human rights?

[Mark Podlasly]

Yes, and I would emphasize that has to be done. There are still agreements between Canada and first nations directly.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you very much to both of you.

[The Chair, Liberal, Bob Bratina]

Thanks, Ms. Gazan.

Members of the committee, we're running close to time so I'm going to take each of the parties in the five-minute and the two and a half minute rounds once. That will be Mr. McLean, Mr. Podlasly, Ms. Normandin and Ms. Gazan.

Next, it's five minutes for Mr. McLean.

[Greg McLean, Conservative, Calgary Centre, AB]

Thank you, Mr. Chair.

I'm joining you today from downtown Calgary, which of course is the traditional territory of the Blackfoot Confederacy, including the Siksika, Piikani and Kainai nations; Stoney Nakoda, including the Chiniki, Bearspaw and Wesley nations; and the Tsuut'ina Nation, as well as home to the southern Alberta Métis nation, region 3.

Mr. Buffalo—and I have to be quick here—can you please talk to us more about the differential we receive on our resources on your land and the effect that has as far as the economics you receive from the resources?

[Stephen Buffalo]

Traditionally when we produce oil and gas it's controlled by the federal government, and right now it seems we have one customer and that's the United States. The pipeline capacity we see that was supposed to go to foreign markets is not there with the legislation that's been put forward in Bill C-48. Now the challenge is to build further infrastructure with Bill C-69.

With the oil and gas prices where they're at today, it's been increasingly difficult. In the past the ripple effect is that the federal government looked at some of the producing nations as rich, which isn't true. Obviously we have a lot of needs. Our populations are growing, and our demographics are growing. A lot of the social issues plaguing a lot of our communities are rampant, and we need to deal with that. The price of our resources is very important, but right now it's not getting to where it used to be.