Natural Resources Committee on Oct. 5th, 2011

[Michael Hudson]

As I was saying in response to your first question, the courts are actually fairly deferential to what they see as rigorous decision-making that makes an honest effort to take into account all the factors that are meaningful to Canadians. These are decision-making processes designed to make the best possible decisions for all Canadians, not for any particular group within the Canadian population. Hence there is a need for a lot of factors to be taken into account.

I would simply note that it's not unusual at all for governments to acknowledge the value of a particular project for something like the economic development of Canada. That doesn't stand in the way of decision-makers putting aside extraneous considerations in order to make a well-founded decision on the information before them. The courts generally know that and respect it.

As I said in response to Mr. Saganash, I take some confidence that in the last seven years we have not seen a tsunami of cases before the courts, and, even more importantly, we have not seen a lot of instances where the courts have struck down--

[The Vice-Chair, NDP, Claude Gravelle]

Thank you, Mr. Hudson. We're going to have to move on.

Mr. Allen.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Thank you very much, Mr. Chair.

Thank you to our witnesses for coming here today.

I have a few questions, one of which, I guess, was left off when Mr. Anderson was questioning a while ago.

Are there triggers at each level--at the screening, the study, the review panel--where we trigger in a duty to consult process in all three? Or are there some where you don't have to do that?

I'd just like to understand what the trigger is, at each of those levels, where a duty to consult would kick in.

[Michael Hudson]

The short answer is no, there is no stage in any process where there would be no trigger. But a decision-maker needs to ask, at each stage in the process, what is the likelihood that my decision will have an actual impact on an aboriginal interest?

At many stages, particularly the planning stages, it's hard to imagine where the impact will be. As you're getting closer and closer to the final decision, such as emitting permits or making decisions that will authorize interference with physical things--land, water, resources--then yes, you're going to be more concerned about it.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Okay, because that leads me to my next question. We have a mine project potentially getting started in New Brunswick. It received the terms of reference to start their EIA process, and it will take a year for them to get together and put in their report.

I have a couple of questions, maybe to each of our folks who are here.

Number one, Ms. Cutts, in the terms of reference for a joint provincial-federal project like that, where potentially DFO would be involved, would your group be involved in the development of the terms of reference for that EIA?

I would ask the same question of you, Mr. Hudson. Would there have been any consultation on duty to consult in the development of that terms of reference?

It just makes me wonder, if terms of reference are going to start and a company's going to start to build the EIA, whether that's going to be a moving target for them over the next year.

[Helen Cutts]

First of all, if there is a joint process with New Brunswick and the Government of Canada, then yes, we would definitely be involved in setting the terms of reference and working with our provincial colleagues. The terms of reference would say that you should seek out information from aboriginal groups so as to respect the crown's duty to consult.

[Michael Hudson]

I would second that approach.

As I said at the very beginning, if you're seriously looking at any natural resource project in this country that you can reasonably anticipate will have a physical effect on the environment, then it would be striking not to have factored in from the very beginning who the aboriginal groups are, what their interests might be, and what impacts there might be with regard to the various stages along the decision-making process.

Again, my observation is that most of industry has already incorporated that into their processes for anticipating regulatory approvals.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

I was involved in a highway project in New Brunswick a few years ago. On the front end of it, they engaged some of the first nations communities where the highway was going through in a traditional ecological knowledge study. That was done for the whole route of the highway. I guess in some of our federal-provincial projects...and that one would have been, because it would have been federal money going into the project.

Do you find, as part of your process, that doing some of these studies where they cross traditional lands suffice in the duty to consult, or do you find that maybe sometimes they trigger a lot more issues? What I'm thinking about is whether you'd have conflicts in the timelines because of things you might find during these traditional ecological knowledge studies.

[Helen Cutts]

Maybe I could comment on the timelines.

The timelines are legally binding on us. That doesn't mean we would rush through something in order to get the check mark that we met our 365 days. What would happen is if in the course of doing our consultations with aboriginal groups we found that the issues were very complicated and taking a long time, we would just continue the work beyond the 365 days.

[The Vice-Chair, NDP, Claude Gravelle]

Mr. Trost, you're up next.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

There's one thing that I'm curious about and that I don't totally understand, and that is how duty to consult is or is not affected when you have situations where there have been settlements and negotiations already done. I could see that under some of the very early treaties, which were done a considerable length of time ago, this wouldn't have been thought through quite as thoroughly.

With some of the more recent settlements that will have happened around the country--and we're particularly thinking of northern Canada--would there have been elements of organized duty to consult in their settlement packages and so forth? Could you give me a bit of background in explaining how this has or has not had an impact, and what would be important, particularly north of 60?

[Michael Hudson]

Well, the good news is that, yes, most of the north is covered by modern land claim settlements, and most of them--in fact, all of them--do contain provisions that anticipate the need to consult with aboriginal groups in decision-making, particularly around environmental assessment processes.

The less ideal news is that those provisions were negotiated before the Supreme Court of Canada had articulated this new common law duty to consult. There was in fact litigation. There was a decision last year from the Supreme Court of Canada--it was called Little Salmon--that addressed the question of what is the interplay between the common law duty and these established settlements.

In fact, the Yukon government--because it was in the Yukon--took the position that the treaty, the modern agreement, completely trumped the common law duty, so that you just looked at the foursquare of the agreement and had no other concerns. The Supreme Court of Canada disagreed. They did say that governments should be able to rely on the terms of the agreement to the extent that it overlaps with what the common law duty to consult involved. In many cases, that will be in fact sufficient, but it isn't completely a guarantee that you would never have to turn your mind to the duty to consult.

I'm fairly confident that the sophistication of the environmental assessment regimes under most of the modern treaties will be sufficient to address duty to consult as a common law duty, but it's a step that decision-makers have to think through.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

So to summarize for the non-lawyer here, basically it should be sufficient, but you still have to check to make sure that all the steps have been gone through.

Now, would that in any way be impacted for settlements that were made after the court decision? Or does the principle still go forward? Because after the court decision, that would be an element of the negotiations and the settlement, and they would work in this duty to consult as a definitive element--at least, I would think so.

[Michael Hudson]

Well, as I say, Little Salmon was only decided last year, so it's still a bit fresh, but the dispute itself had arisen a number of years ago with the Yukon government, and as soon as the dispute arose, people who were negotiating modern land claim settlements were much more attuned to the importance of articulating in the document itself, as much as possible, what exactly all the players had to do for consultation.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

Thank you. I'm done with my questions.

[The Vice-Chair, NDP, Claude Gravelle]

Thank you.

Your turn, Mr. Lapointe.

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

On several occasions, our colleagues opposite have mentioned timelines. In your view, should we be concerned about the timelines or should we rather be making sure that the entire process is socially acceptable to the aboriginal groups?

Is it better to rush in and come up with development that could possibly lead to social unrest, or to take the time to bring everything to a satisfactory conclusion? Where do we draw that line?

Do you think that we should rush to stick to the timelines or should we do things properly?

[Michael Hudson]

I think it is important to make sure we get quality decisions. That is the goal. That is a decision-making process that gives results acceptable to all parties, to everyone with an interest in the outcome.

The time that an agency or a minister needs is one factor, but it is not the only one. A good decision can be made in a minute when those making it have all the facts before them.

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

If we had to take six months, one year, or 14 months, would that be satisfactory as well?

[Michael Hudson]

If that were to result in the right decision, yes, it would.

As I told you, it can take a day or a year. The important thing is the quality of the process for gathering the necessary information that allows the decision to be made. That is more important than the time it may take.

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

Ms. Cutts, correct me if you like, but I think it was said that aboriginal people are partners mostly in the joint approach to minimizing the negative impacts, but not at the time of the feasibility study.

[Helen Cutts]

Can you just rephrase it again, please?

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

If I correctly understood the way in which we operate with aboriginal peoples, we treat them as partners and we try to get them to work with us to find solutions that will minimize the potential negative effects. Do they participate in the feasibility studies at times, or do they have no say at that point?

[Helen Cutts]

The study would include the suggestions of aboriginal people on how to reduce the environmental effects. The final decision wouldn't rest with the aboriginal people, but their advice and their considerations would be part of the report.

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

So we consult them when the decision has already been made. Then we have to find a way to minimize the negative effects. That is when we get them involved in the process, not beforehand, during the feasibility study.