Natural Resources Committee on Jan. 31st, 2019

[Nick Whalen, Liberal, St. John's East, NL]

Mr. Duschenes.

[Christopher Duschenes]

I won't speak to this from the perspective of specific projects, but certainly our approach on developing new policy, changing existing policy, developing new legislation or changing existing legislation always has a critical component of working in partnership. Whether it is changing to move forward to do something we didn't do or stopping doing something that we currently do, whether by policy or program design, yes, there is always an involvement process.

I can give you some micro examples where we have specific economic development policy or programs in place. If the terms and conditions or the scope of those programs are going to change—and currently we are revamping the procurement strategy for aboriginal businesses—yes, there is very much an involvement process, whether it moves us forward or is removing things from the existing policy.

[Nick Whalen, Liberal, St. John's East, NL]

Therefore, with respect to moratoria, where the government is stating the policy that it will not engage in a particular activity, it's your opinion that this also requires the consent of indigenous people.

[Christopher Duschenes]

Again, I can speak to what we do and the guidance we provide through the consultation and accommodation unit and our policy development process. If we are not the leads of a particular file, whether it's offshore—

[Nick Whalen, Liberal, St. John's East, NL]

I'll ask—

[Christopher Duschenes]

We provide guidance.

[Nick Whalen, Liberal, St. John's East, NL]

Does everyone else agree? It seems I'm seeing a lot of nods, so I don't need to waste time going down the table.

Mr. Labonté.

[Jeff Labonté]

As my colleague Terry Hubbard said, the duty is triggered when there's a contemplating conduct that potentially impacts a right. The degree to which a choice did not do something or a policy objective directly impacts the right is the conversation point.

You'd probably want the Department of Justice to come and really speak to you about that issue in terms of how that situates itself, but from the perspective of projects, if there's a project that links to something, clearly we play that out.

When it comes to other aspects, I can't really comment except to say that we work in the world of projects, and when there's the potential, that's what moves us forward and the framework is pretty clear on what we have to do.

[Nick Whalen, Liberal, St. John's East, NL]

That's great. I'm at the end of my questions on that topic.

With respect to Mr. Canning's questions about whether the court has provided enough guidance and whether each of your departments has a clear indication of what it needs to do to move forward on TMX, did the court decision provide each of your departments with enough information so that you feel you can move forward, do consultations in the appropriate way and reach a conclusion on whether the project can or can't proceed, whether accommodation can or can't be made and whether your decision will be upheld or continue to be appealed?

Mr. Hubbard, is your department implicated?

[Terence Hubbard]

We're not implicated in that specific project.

[Nick Whalen, Liberal, St. John's East, NL]

Okay.

[Jeff Labonté]

This one is ours—

[Nick Whalen, Liberal, St. John's East, NL]

Perfect.

[Jeff Labonté]

—and my colleagues in the NEB might be able to add to it.

The first thing about the court decision that I think is really important to the member's question, Mr. Chair, is that within it there were multiple issues being adjudicated at the same time. I think there were 20-some different issues being adjudicated. In some cases, the court found on behalf of the applicants. In other cases, it upheld actions and particular issues. It's important to see that distinction in it.

Where it kind of commented on the duty to consult and consultation, it was pretty clear that the Crown had not in the third phase of the process. There are four phases to consultation in the lingo that we have in terms of the way we manage it from a policy framework. The third phase of exercising and discussing the conditions that the regulator put in place and looking to see whether there are appropriate accommodations was where we needed to follow through with a two-way dialogue. We needed to demonstrate better that what was said to the Crown and how the Crown worked with indigenous groups was heard, that it was considered, that it actually had a reflective change in the conduct that we were about to do, or that it was not deemed to have met the standard of reasonability that needed to be followed through on.

There's a particular point there that was super clear, that we now have a better set of parameters around—that's super obvious around—what we'll say is two-way dialogue. It's often called that.

[Nick Whalen, Liberal, St. John's East, NL]

Ms. Sletto, do you feel that the NEB also has the same...?

[Jeff Labonté]

In this particular case, I think it's important to point out that phase three belongs to the department and not the regulator in this case.

[Nick Whalen, Liberal, St. John's East, NL]

Okay.

Well, then, maybe I fell into the same trap there.

[Jeff Labonté]

The board's process kind of ends at phase two. The Crown, as departments, picks up establishing whether the Crown's duty has been met because we, as departmental officials, work with ministers and then would make the recommendations to the government as to whether the duty has been met. We build on the record, and we build on the work that the regulator has and has experienced through its process in which indigenous peoples participate. Then we follow through. That's how that process works.

[Nick Whalen, Liberal, St. John's East, NL]

Okay.

[Jeff Labonté]

There were several other significant parts of the decision. I'm sure that at some point in this discussion they may come out. We can elaborate further if time permits, Mr. Chair, when it's appropriate.

[The Chair, Liberal, James Maloney]

Thanks, Mr. Whalen.

Ms. Wagantall, you have five minutes.

[Cathay Wagantall, Yorkton—Melville, CPC]

Thank you, Chair.

First of all, I'll reiterate some facts in regard to Canada's regulatory standards. Studies were done by WorleyParsons in 2014 and 2016, so under the previous government and going into the new government that's sitting right now. It confirms that Canada maintains the highest level of environmental stringency in compliance and the highest level of regulatory transparency and life-cycle analysis in the world, and, notably, thorough consultation and collaboration with indigenous people. The exhaustive benchmarking of major oil and gas jurisdictions explicitly noted the incorporation of traditional knowledge as one of Canada's world-leading strengths in indigenous consultation on energy.

I'd like to quote from the report. It said that Canada was among the countries “consistently leading in a comparison of existing environmental policies, laws and regulatory systems.” That was in 2014.

In 2016, the report states:

The results of the current review re-emphasized that Canada's EA Processes are among the best in the world. Canada have [sic] state of the art guidelines for consultation, TK, and accumulative effects assessment. Canadian practitioners are among the leaders in the areas of indigenous involvement, and social and health impact assessment.

Now, I can read that, but I can also affirm it, being from Saskatchewan and having good relationships with first nations businesses and individuals who have been working within the mining field in Saskatchewan for a long time through Cameco up north, and BHP Billiton, with the new mine in Jansen, where first nations have considerable responsibilities. As well there is Mosaic, which is located in my hometown area. There have been amazing relationships built over time. As well, there have been no issues at all.

My first experience as a member of Parliament dealing with someone coming to my office to talk to me about their area was with a gentleman who was part of the Engineers Canada. It was right at the beginning of 2016. I was there to learn. I had to listen. I had a lot to learn. One of the first things he said was, “We do an amazing job of what we do.” I know that all of these very conscientious organizations like Cameco, BHP and Mosaic have hired individuals whose entire focus is to ensure, before they even begin a project, that they are in line as much as possible with what they know will be the expectations as they go forward to announce that project they are hoping to build.

I have to say that when I hear this and then when I hear quite honestly the rhetoric around how inefficiently and inappropriately our NEB has functioned, I find that quite disconcerting.

I would like a comment from you in regard to how effectively the NEB has worked on behalf of Canadians and the acknowledgement and recognition around the world for how we do things in this country.

[Tracy Sletto]

That's mine. Thank you very much for the observation and the comment.

I would agree there are a number of best practices that we see in the sector in Canada that have been recognized internationally in terms of the approaches specifically around indigenous engagement and engagement with communities on major projects.

Certainly we would find in the sector where we work and within our regulatory scope that there are a number of best practices that industry is definitely adopting in the context of their advance work. Certainly we hold companies accountable for advance work before a project would even be brought to our attention, again, with an aim around early issue identification and resolution. Also during the process and specifically from our regulatory perspective, we're continuing that dialogue not just with a project at an adjudication phase in a formal process, but also now we're focusing very much on continuing that relationship over the life cycle of a project. We see that as a best practice we need to do more of and we continue to invest in that.

I will also speak briefly about something that is critical in the context of what best practices look like and will continue to look like for Canada. We absolutely as a regulator take direction from the courts very seriously. When we have very specific instruction around how to improve, we take that very seriously.

Another really important source for us, and I think this is critical in Canada, is our indigenous communities themselves, the people with whom we work, whom we seek the advice of and the support of, to inform ourselves about how to do better and how to continually improve those processes. We hear very clearly that early engagement, life-cycle engagement and ongoing relationships are critical.

To your point around staff, it's to ensure that the organization itself as a regulator and other departments and certainly industry have the capacity to be able to engage in those relationships meaningfully, to have indigenous staff to ensure that the cultural competency is invested in, and that our capacity to operate is enhanced.

This is a long way of saying I appreciate the point that you're making around best practices. It's something that we're very interested in continuing to grow and demonstrate.

[The Chair, Liberal, James Maloney]

Thank you. I have to stop you there.

Mr. Whalen.

[Nick Whalen, Liberal, St. John's East, NL]

Thank you very much, Mr. Chair.

Just as an observation, I think it might be nice to get some officials from Justice and Transport to come and talk to us about how we can learn from the west coast tanker ban and the Arctic moratorium to see how we can do better. If better is required, then at least we'll learn it now as a part of this study. I just put out that idea.