Thank you, Mr. Chair.
Thank you, all, for being here. I know some of you cut short your summer plans. I know I should be sitting in the dentist's chair right now; I'm concerned about that.
I think this is an important subject. I agree with the Conservatives that we need to talk about this, perhaps for completely different reasons, and I would support the motion.
We're obviously here today in this special meeting because of the recent Federal Court of Appeal decision to quash the federal government's approval of the Trans Mountain expansion project. The court quashed the approval based on two errors made. One was in the environmental assessment part, with regard to the lack of consideration of the marine transport issues. The other error was the inadequate consultation with first nations.
The Conservatives here are of course gleefully blaming the Liberals for this mess. It's true that the Liberals do deserve some of the blame here, but the irony in calling this meeting is that this is a problem that was created by the Conservatives in the previous government. It's doubly ironic, for instance, to hear Jason Kenney complaining about the incompetence of the Liberals in this file when he was at the cabinet table when this mess was created. It's the Liberals who ran on a promise to clean up this mess, to redo the approval process for Trans Mountain with a new system, and they failed to do that. That's why we're here today. It's the Conservatives creating this mess and the Liberals failing to clean it up. I hate to say I told you so, but that's why we're here.
In the rush to get pipeline projects done, the Conservatives got into the Fisheries Act, the Navigable Waters Protection Act, and the environmental assessment process. On their watch, the NEB hearings into the Trans Mountain expansion were widely criticized for being too narrow in scope, and they didn't properly consult with first nations. The courts also quashed the approval of the northern gateway pipeline for much the same reason they cited here. There's kind of a pattern.
Both the Liberals and the NDP, as I said, ran on the promise to redo the Trans Mountain expansion approval process under a new process with more rigorous science and more community input. The Prime Minister repeatedly said this on the campaign trail, but they broke that promise and instead simply had a ministerial panel tour through the region on very short notice to hear from first nations and other communities, businesses, and concerned citizens about the project. Nothing was even officially recorded at these meetings. The panellists simply took their own notes and produced a report at the end of the process. That report posed six questions that they felt the Liberal government had to answer before making its decision on the project. As far as I know, those questions have never been properly answered.
One of the two critical errors the government made, according to the Federal Court of Appeal, was the failure to properly consult with indigenous peoples. The consultation process was simply bureaucrats who were sent out to listen to first nations' concerns and relay those concerns to cabinet. As the court repeatedly stated in the decision, they were simply note-takers. There was no attempt made to actually address these concerns. In fact, the consultation team and the government mistakenly believed they couldn't add any more conditions on Kinder Morgan than the NEB had done, so why bother consulting if you can't make any change? That's what the court found was the critical error.
One example of that failure is the concern of the Coldwater first nation, which wanted the pipeline to take an optional route, the west route, so it avoided crossing their aquifer. That's a big concern, but there is no evidence that actually acting on that concern was ever considered.
I would like to quote a couple of paragraphs from the decision around the consultation process. It starts by saying that good faith is required on both sides in the consultative process:
The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised...through a meaningful process of consultation.
It goes on to state the following:
The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake.
Those are quotes that the court took from a previous ruling from the Haida Nation case. This is not news. The government knew this before they went into the process.
The decision goes on to make two final points on consultation. First, it says that when the crown knows, or ought to know, that its conduct may adversely affect the indigenous right or title of more than one first nation—we've heard concerns around that—each first nation is entitled to consultation based upon the unique facts and circumstances pertinent to it. So if half the first nations along the route were adequately consulted, or felt they were adequately consulted, and half felt they weren't, it's just not good enough. You have to consult with every first nation.
Second, to again quote from the decision, it's important to understand that the public interest and the duty to consult do not operate in conflict. As a constitutional imperative, the duty to consult “gives rise to a special public interest that supersedes other concerns” commonly considered by tribunals asked to assess the public interest. In the case of the board, a project authorization that breaches the constitutionally protected right of indigenous peoples cannot serve the public interest.
Earlier this year, I put a question on the Order Paper about the six questions that the ministerial panel posed. I want to quote one paragraph from the answer I received from the government that pertains to this consultation. It says:
While there are Indigenous communities opposed to the project, there are others in support of it. The goal of free, prior and informed consent is to ensure a holistic approach to interests, through transparent processes aimed at building consensus. It is the same goal at the heart of the Government's current legislation to modernize Canada's environmental assessments and regulatory reviews.
I could go on, but to me, this shows that the government doesn't get it. They are talking about building consensus within first nations. Each first nation has the right to proper consultation. When they talk about bringing indigenous rights—for instance, the UN Declaration on the Rights of Indigenous Peoples—into modern Canadian legislation, they failed to do that in Bill C-69, the bill that updates our environmental assessment process. The government knew the proper way forward and they decided to do something quite different.
I'll just finish my comments on consultation by saying that the government knows what proper consultation is; they should. It's not an impossible task. It's been done before. It just requires more effort and a sincere desire to address the concerns rather than just write them down.
We heard here at this committee some good examples of that. There's the Squamish process regarding Woodfibre LNG. We heard how the Squamish Nation approached that and how that worked. It took some more effort, but it was done properly and they got to the endgame. We heard numerous examples from the mining industry. I think the mining industry has some great examples we can follow on how to properly consult with indigenous peoples and bring them into the benefits of resource extraction.
The other error the court of appeal pointed out was the failure to include concerns about marine transportation in the Trans Mountain expansion approval study. One of the main concerns there is the status of the southern resident population of orcas. That's something we heard a lot about in the news this summer. There were various new items on the plight of that population. The Liberals are relying on their oceans protection plan to cover off those concerns. It's a plan that claims to offer a world-class oil spill response.
This summer I was in Spokane, Washington, and I attended the Pacific NorthWest Economic Region meetings. They bring together legislators from across Oregon, Washington, over to Saskatchewan, and up to Alaska, the Yukon, and the Northwest Territories. I talked to American legislators and other people about the oceans protection plan, and they said one thing repeatedly. The ones who were very apprised of the situation said that Canada calls this a world-class plan, and it's world class only in the sense that it kind of meets basic world standards. It's not world class in the sense of being one of the best.
They pointed out that they have a very modern way of tracking shipping down the Pacific coast that Canada does not have. They want Canada to be part of this system so that we can act proactively when trouble occurs, and Canada has been stonewalling these attempts. They feel they have a real world-class system, and they're concerned about increasing oil tanker traffic off our coast, because they feel we're not putting in that extra effort.
I'll close here by saying that the actions of this government and the previous Conservative government have not only delayed these projects that they feel are so important to Canada but have polarized public opinion on pipelines and resource extraction in general. When people who are concerned about the environment or first nations reconciliation are labelled “foreign-funded radicals”, it makes the wide public choose sides and makes it very difficult to have a reasonable discourse. I think there's a way forward to reduce this polarization. I think it's important that we as a nation travel that path, because right now it's very difficult to have polite discourse on pipelines or on a lot of things, such as climate action, in Canada.
I've been involved in a number of meetings here in Ottawa with a group called Positive Energy out of the University of Ottawa. I'm not sure if anyone else here has gone to those meetings. Their goal is to find ways to bridge that gap, to bring these sides together, so that we can have these important conversations.
I was at one of their meetings and happened to be sitting next to the pollster Nik Nanos. He had done some polling for Positive Energy. That polling found that only 2% of Canadians had high confidence in our energy regulatory system—in the National Energy Board, essentially. I won't go into all the details, but he said that in the polling there was a path forward. The path forward was through more involvement of first nations and local communities to bring those voices into the national discourse and into the regulatory process. That would give people more confidence there. We have to look down that path.
To finish, the NDP was criticized for our call to redo the Trans Mountain expansion process under a proper system. Critics said it would take too long, an extra year or two. Well, here we are, three years later, and we're back at square one. The court decision is a reminder that we have to put in the effort at the start. There are no shortcuts.
We feel it's time for a thorough and critical look at our energy strategy in Canada and time to invest boldly in the clean energy sector to provide good, long-lasting jobs in a sector that is the true future of the world energy market. We feel that purchasing old pipelines is not a proper use of public funds. Let's invest in the future.
Thank you.