Natural Resources Committee on Jan. 31st, 2019

[Garnett Genuis]

Okay. It seems pretty obvious, then, that policies like the offshore drilling moratorium in the Arctic, like Bill C-69, like Bill C-48, like the tanker exclusion zone, would have a significant impact on indigenous communities and on their ability to provide for their own communities through economic development, which they may well have planned, and in many cases did plan, in advance of the introduction of those policies.

Let me drill down on a few of those examples.

What consultation happened by the government before the imposition of the tanker exclusion zone? I'm talking about before Bill C-48 was actually proposed, when the Prime Minister first came into office and introduced the tanker exclusion zone.

[Jeff Labonté, Assistant Deputy Minister, Major Projects Management Office, Department of Natural Resources]

Maybe I can help with that one.

I think that's the responsibility of the Department of Transport. I don't know if anybody here is an expert in transport, but we certainly don't have anything to offer on that particular question.

[Garnett Genuis]

If I understand correctly, none of your departments, including the department of indigenous affairs, were involved in any consultations with respect to the imposition of the tanker exclusion zone. Is that correct?

[Christopher Duschenes]

Not that I'm aware of.

Again, since we weren't the lead department on that particular legislation, Indigenous Services or Crown–Indigenous Relations, would not then be responsible for consultations.

[Garnett Genuis]

I would presume that you are involved or consulted though, in some sense, on any consultations the government is doing with indigenous people, because the relationship between government and indigenous people is your primary responsibility. In a broad sense, I assume you would be aware of consultations that took place in that context.

[Christopher Duschenes]

Absolutely. Our consultation accommodation unit, as part of the treaties and aboriginal government sector in Crown–Indigenous Relations, plays a critical role in providing guidance and advice on an ongoing basis on a wide range of consultations undertaken.

[Garnett Genuis]

You are involved when there are consultations that have gone on. However, you weren't involved if consultations happened on the tanker exclusion zone, and my suspicion is that nothing happened, despite the duty to consult, as we've discussed. It sounds like that's the case, given that your department is not aware of any having taken place.

Can I ask if any of your departments are aware of or were involved in any consultations around the imposition of a moratorium on offshore drilling in the Arctic?

For those listening to the audio, no one is responding, so I'm assuming that's a no.

Is anybody aware of any consultations that took place before the Prime Minister imposed the offshore drilling moratorium in the Arctic?

I just identified two major government policies in which there would appear to very much be a duty to consult. What we're hearing is that no consultation with indigenous people happened in either of those cases.

We're here to talk about best practices for indigenous consultation. How should we explain the fact that Canada failed, or appears to have failed, to do any consultation before imposing these significant policies with critical impacts on indigenous communities? Does anybody have any thoughts on how that error could have happened?

[Terence Hubbard]

As Mr. Labonté noted earlier, none of the officials on this panel had responsibility for either of those two policy developments. You would need to specifically speak to those responsible to get a picture and understanding of the consultations that may have taken place as part of those—

[Garnett Genuis]

Thank you, but we do have—

[The Chair, Liberal, James Maloney]

I'm going to have to stop you there, Mr. Genuis.

[Garnett Genuis]

Okay. I think it's pretty clear. Thank you.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Thank you all for being here.

I want to cover off two topics here.

We've heard comments about the evolution of our engagement and consultation processes, as we learn more about what consultation is. We've had a series of court cases over the years that have been very instructive: Delgamuukw, Gitga'at First Nation, Haida Nation, and Tsleil-Waututh Nation recently.

One of the principles of consultation is accommodation. It's consultation and accommodation. I think it was the Haida Nation that said the common thread on the Crown's part must be the intention of substantially addressing aboriginal concerns. This is what caused the Federal Court of Appeal to quash the Trans Mountain pipeline approvals. I'm not as familiar with the northern gateway approvals, but that happened.

I'm wondering how this learning process goes on in your departments if we don't learn and how this committee and the House of Commons can be more reassured that you'll get it right next time. We continually have these court cases that say the government did it incorrectly. Sometimes it's kind of obvious. A lot of it is due to the fact that both this government and the previous government have tried to hurry things along.

Perhaps it is mostly NRCan and NEB that could comment on that.

[Jeff Labonté]

Could you possibly ask a question?

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

It seems to me that government doesn't learn, that government hasn't been learning about what proper consultation and engagement is. We continually get these situations where we have projects of great national concern and everybody seems to know that consultation must include accommodation, yet it doesn't happen. It's kind of a theoretical question, but I'm just.... I know it's human nature, maybe, but I was....

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

You've made a bunch of statements, but haven't asked a question.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

The question is, when a new court case comes before you, a new decision, how does that affect your policy about how you'll do things the next time, and why hasn't it worked until now?

[Jeff Labonté]

I think the tone of what you're suggesting is there's an evolution. Jurisprudence in anything grows over time and each experience builds on the next. If we look at the jurisprudence and the experience we've had, our policy framework and the advancement of how the government works with, engages with and consults with indigenous communities comes from our Constitution. The jurisprudence in that is roughly 40 years' worth of experience.

The recent decision that you reference builds on the one before it, which builds on the one before that, and each of them tries to reach the point at which it advances the government's ability and the ability of indigenous communities to share interest and move ahead. In the recent decision, the court was pretty clear that the government had more work to do, that it failed to execute in one part of the consultation process, but it then also provided some guidance on what components of that process were sufficient and what happened to move forward. There are other court cases where the government's decision and its consultation were upheld, so it's an evolving landscape.

One of the challenges to answer the question in the way that would have meaning is that each case has a lot of circumstances specific to that community, that particular indigenous group that are very context-, geographic- and time-based, and it's very difficult to say one size fits all.

One of the findings in the court decision was that we owed a duty to each community that was unique and distinct. In some of the projects that have dozens or hundreds of communities, that increases the necessary level of engagement and consultation because we owe dozens and dozens of communities a unique conversation focused on the issues of that community in the context of a bigger consultation. I'm trying to make the point that some projects involve half a dozen communities and others involve 40 to 50.

[The Chair, Liberal, James Maloney]

You're at four and a half minutes.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

I'll ask it quickly; this is a very tiny question. It's about Bill C-69.

This is more for the NEB and how that would change how you work with indigenous consultation. Specifically, the expert panel was mentioned and how that informed things, and yet, the expert panel mentions 50 times that UNDRIP should be mentioned specifically in Bill C-69 and it was not. Perhaps comment on that and whether....

[Jeff Labonté]

If it's okay, I'll invite my colleague from CEAA, the agency that has the main element. We can add to that.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Sure.

[Terence Hubbard]

Thank you.

The proposed framework, Bill C-69, integrates the government's commitments to reconciliation. As part of the specifics of what will change, the proposed legislation would require earlier and more regular engagement and partnership with indigenous communities and a deeper level of collaboration and respect for indigenous rights and jurisdiction throughout the process.

For example, the new framework specifically requires consideration of impacts on rights and indigenous culture. It requires indigenous engagement and partnership early and throughout the process, mandatory consideration of indigenous knowledge and provides new provisions that would allow more collaborative arrangements with indigenous groups to exercise powers and duties under the framework.

It also specifically advances the government's commitment to aim to secure the free, prior and informed consent throughout the impact assessment process, based on principles of mutual respect and dialogue.

[The Chair, Liberal, James Maloney]

Thank you. I'm going to have to stop you there.

Mr. Whalen.

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

Thank you very much, Mr. Chair.

There are some really interesting topics and I'm glad I'm getting the floor halfway through rather than at the beginning.

Mr. Genuis brought forward an interesting argument regarding a couple of areas of government policy where the Government of Canada provided a prohibition on doing something. He laid out an argument that indigenous consultation may in fact require that the government consult before it lays out a prohibition or states a position not to do something.

I'll ask each of you in order and maybe run this across the table. In your departmental policy, do you take the position that the duty to consult indigenous groups also applies where the government is going to take a position to not act?

It would seem to me that if an indigenous group wanted to act, a respectful dialogue would require that they also obtain the consent of the Government of Canada in order to act in a way that would be against Government of Canada policy. It has to be a two-way street, but perhaps not.

I'd love the perspective of each of you on whether the duty to consult requires that the Government of Canada relinquish its own veto against project development.

Mr. Hubbard.

[Terence Hubbard]

My understanding of the framework and how we apply it always links back to looking at the specific rights of individual communities and the potential impacts of a decision we're making in regard to those communities. It's always a rights-based approach we take in looking at potential adverse impacts on those communities.