Natural Resources Committee on Oct. 5th, 2011

[Helen Cutts]

Feasibility study is not really an environmental assessment term, so that's where I'm getting stuck. It's not a French-English thing; it's the language we use in environmental assessment.

There are obviously different stages a project has to go through. At the early stages, the proponent has a particular project and he's written a description that explains what he plans to do. Through the consultation with aboriginal people and others, comments will be provided and that plan will be adjusted. The proponent might willingly suggest in which areas he's going to adjust his plan, and then, even beyond that, further consultation might determine that because the effects are so significant, additional mitigation measures need to be taken. So when the final decision is made by the government, it won't just say that he has a green light and can go ahead with this project. It will say that he may go ahead with the project subject to conditions such as that the proponent refrain from construction activities between these periods or that the proponent provide additional habitat for this species at risk, to replace the part that he's used.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Thank you, Ms. Cutts.

[The Vice-Chair, NDP, Claude Gravelle]

Unfortunately, your time is up, Mr. Lapointe.

Over to you, Mr. Lizon.

[Wladyslaw Lizon, Conservative, Mississauga East—Cooksville, ON]

Thank you very much.

I would like hear a little bit about the number of new jobs and the increased demand for labour that the resource sector, and specifically the mining sector, will generate as exploration and development of Canada's resources continue. In your experience, what is the reaction of first nations, the communities, to projects that will create jobs in the local community? And is this at all taken into consideration during the duty to consult?

[Michael Hudson]

There's an indirect connection. Again, my observation is that industry proponents for projects, anticipating the value of having support from aboriginal communities, put a great deal of effort into negotiating what we call interim benefit agreements, which are essentially documents to improve relationships with the aboriginal peoples in a particular area. There are many elements to the investments that companies are prepared to make in order to improve that relationship.

Now, it's not a way to avoid the crown decision-maker having to fulfill its duty to consult, but having aboriginal groups fully supportive of a project, for whatever reason--including, perhaps, that they see the value of economic development in that area--is an important consideration for a decision-maker. The nature of duty to consult is that if an aboriginal group does not agree with the project, they will have many stages at which they can voice that opposition, including, ultimately, bringing challenges in the courts against the decision that's being made by the government agency or minister. So an industry proponent would be well placed to identify the value of jobs associated with a project, and aboriginal communities themselves have to make the decision about whether they support or don't support a particular project.

I don't know if that answers your question.

[Wladyslaw Lizon, Conservative, Mississauga East—Cooksville, ON]

It does. If I understand it correctly, even if such an agreement is in place with a proponent and a first nations group, the final decision may not necessarily be in favour of the project. Do I understand it correctly?

[Michael Hudson]

It's a factor that is of interest, of course, because it signals that the aboriginal community sees some value in the project. If I were a decision-maker, I wouldn't need to rely on the fact or absence of an interim benefit agreement because I would have the benefit of the views expressed by the aboriginal community itself, because they would be expressing it to me as a decision-maker.

[Wladyslaw Lizon, Conservative, Mississauga East—Cooksville, ON]

Thank you very much.

[The Vice-Chair, NDP, Claude Gravelle]

You still have a minute and a half.

You'll take it? Okay.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

I just wanted to ask both of you at the table, for our report, is there a difference in the way both the EA process and the duty to consult are done in the various territories and provinces? Do you find different ways of dealing with those two things, depending on where they're taking place?

[Michael Hudson]

Maybe I'll start.

In the early period after the decisions came out from the Supreme Court, there was actually a fair bit of variation amongst provinces, and between the provinces and the federal government. As time has gone on and more experience has been gained, there's a striking similarity and convergence of both the process and the criteria that we apply and the stages at which consultation will be worked out. There's been a natural migration to a common ground without any necessarily overt action by federal or provincial governments to say, “This is a common policy that we have.”

[John McCauley]

I agree.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Thank you.

[The Vice-Chair, NDP, Claude Gravelle]

Ms. Day.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

The land is so big and the people are often several hundred kilometres from the places where a project is going to be established or a study is going to be done. How does the duty to consult work when the people are so far away?

[Michael Hudson]

I am sorry; I did not hear.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

You have a duty to consult aboriginal people. Sometimes, they are nomadic, or they live a long way from the site or the development. How does the duty work then? Do you consult the closest ones?

[Michael Hudson]

No, not necessarily. But I have to say that the distance between the community and a project would be a factor to consider. In a real sense, the fact that a community is a very long way from the site can imply that it is not intended to be involved in the consultations.

I am also thinking about a project in the north, in the Mackenzie Valley. In many cases, communities were not in their villages, especially during hunting season. They were out conducting their traditional activities. I feel that federal agencies have learned a lot from that experience. It has allowed them to find ways to communicate with the communities, first by going to them, then by choosing a time of year when most of the people are back in the villages. I believe that federal agencies have made serious efforts to engage in real dialogue with communities that are particularly affected by a decision.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

My second question is for Ms. Cutts.

Mr. Lapointe has asked you several times about the possible cuts. Of course, it will be difficult for you to answer, since everything is still hypothetical at the moment. But could we say that, in terms of project assessments, if cuts eventually come, they could result in additional delay or a reduction in the number of projects you can study?

[Helen Cutts]

I don't think I'm in any better position than anyone else to speculate on what cuts would mean. When we see what happens with our financial situation, we'll manage with whatever resources we have.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

My last question is for Mr. Hudson.

What would be the priority for improving the consultation process?

[Michael Hudson]

That is a huge question, but I would say that, for the departments, the best way to improve the consultation process would be experience, by which I mean getting to know aboriginal peoples, listening to their concerns and understanding the impact of the decisions that affect them.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Hudson, you used very strong words, like meaningful, for example. So you are referring to significant, viable consultations. From what I gather from your remarks, that is an absolute priority.

What procedure do we use to work with aboriginal people and to ensure that the work has been significant and viable, as they perceive it? How, and when in the process, is that checked?

[Michael Hudson]

That is an important point. We have to be able to convince a third party, a judge actually, that the process was viable and that the effort made to consult the aboriginal people was significant. That is not a veto. Working with aboriginal people is not in itself necessary to make the decision a good one. Another test is in play. It must be shown that the process was bona fide and that it allowed the proper decision to be made.

[The Vice-Chair, NDP, Claude Gravelle]

Thank you, Mr. Hudson.

If the Conservatives have no further questions, we will have time for one quick question and a quick answer.