Natural Resources Committee on Jan. 31st, 2019

[The Chair, Liberal, James Maloney]

We have a flexible witness list. That can be accommodated.

[Garnett Genuis]

Better is always possible.

[The Chair, Liberal, James Maloney]

You're catching on.

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

I know that when the approval or endorsement of UNDRIP came before the House, some parties voted in favour of it and one didn't.

I'm wondering whether or not it's appropriate to directly reference the names of treaties in government legislation, when really the role of the legislation is to implement the government policy and it's up to someone else in the future to decide. Canada's a dualist country when it comes to treaty implementation. It's not like the Americans.

I'm wondering what your view is on the legislative framework. Do you feel that the legislation complies with UNDRIP? Were the government to withdraw from UNDRIP for whatever reason, would that have any negative impact on the way the application of the law would work? Would we still be compliant with UNDRIP, notwithstanding the fact that we may have withdrawn?

[Terence Hubbard]

From my perspective, the proposed legislative framework embeds many of the principles of UNDRIP within the framework. Many of those principles are already in place.

We talked about best practices earlier, and they have been adopted in the evolution and fulfilment of our constitutional obligations around the duty to consult. I think those principles are well embedded into our consultation activities in our proposed framework.

[The Chair, Liberal, James Maloney]

Mr. Duschenes, do you want to add to that?

[Christopher Duschenes]

I can perhaps just comment on that very quickly.

You may be aware that through Budget Implementation Act, 2018, No. 2, the First Nations Land Management Act, which was amended through that piece of legislation, actually does make reference directly to UNDRIP, the first piece of legislation.

What is critical from that is that we very much take our cues from our partners—as we've been saying all along—listening to communities and organizations that we work with. In this case, the Lands Advisory Board and others involved in the First Nations Land Management Act have been very clear for many years that if there was an opportunity to include reference in amendments to the First Nations Land Management Act, that's what they would be supporting. That's what we follow.

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

That's interesting.

Following up on that, would or could it be appropriate to make some references to UNDRIP within Bill C-69, or are your departments making those suggestions?

[Jeff Labonté]

I think the most important point is the bill has already passed the House.

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

It's before the Senate now.

[Jeff Labonté]

It's before the Senate, so I think senators will potentially look at that particular issue in it.

Is it in the preamble, Terry? Is there reference to UNDRIP in the preamble of the bill that situates it as an overarching context?

I can't remember, but I think it might have been a House amendment, in fact.

[Terence Hubbard]

You're right. I believe it's there as well.

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

Mr. Hehr, did you want to ask something?

[Kent Hehr]

My question is for Mr. Hubbard.

The process brought in by the Conservatives in 2012 led to how the courts threw out northern gateway, as well as said that we need to do better on the Trans Mountain duty to consult. Both of the phases followed the process laid out by the former government.

Has Bill C-69, in your view, taken into account what was set up in that process? Do we reflect on how the new process is better and will lead to a better duty to consult going forward?

[Terence Hubbard]

In developing the proposed legislative framework, we took into consideration jurisprudence, court decisions, lessons learned, best practices, as well as everything that we heard from indigenous communities as part of the extensive engagement and consultations. The proposed framework really does integrate and build in those best practices that have been developed and adopted over time.

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

Earlier, Mr. Duschenes, I think you said the courts keep raising the bar. I'm wondering if you want to provide some examples of how or whether the courts are refining the scope of consultation and whether or not what's really happening here is the bureaucracy is finally wrapping its head around what needs to be done and the courts are sort of iteratively leading us to a place where we might arrive at a proper consultation framework.

[The Chair, Liberal, James Maloney]

I'm going to have to interrupt you. Can you give really quick examples?

[Christopher Duschenes]

No, in fact, I can't give quick examples.

I think this gets back to Jeff's point that it would be a good idea to have the Department of Justice, who would be very well placed to run you through a historic way that various court cases have indeed changed the parameters and the expectations related to consultation and accommodation.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Genuis.

[Garnett Genuis]

Thank you.

I want to support Mr. Whalen's suggestion. I'm not a regular member of this committee. I might try to come back and hear that testimony from Justice and Transport, because it sounds, from what we've heard, that there is a duty to consult that is invoked when the government imposes policies that block development, yet there were steps taken to block that development without any consultation. That's something I think would certainly concern a lot of Canadians and deserves further consideration.

I have a couple of other points where I want to pick up a bit of a different direction.

Mr. Duschenes, you spoke about some of the work your department is doing around procurement and working with aboriginal businesses. I've been told that our numbers are quite low in terms of procurement from aboriginal business; in fact, they are significantly lower than many private sector proponents that work with indigenous communities.

Could you speak to the present reality of procurement involving aboriginal business, of the goals the government has and what the strategy is to achieve those goals?

[Christopher Duschenes]

I can touch on that fairly superficially.

There has been a commitment from the government to completely rethink the procurement strategy for aboriginal businesses which was developed in 1996, essentially where the framework for PSAB and targets how it's monitored, etc., have not evolved significantly. I would say, yes, you're right that perhaps we could achieve higher levels in terms of the number of contracts that go to indigenous businesses, both the volume and the dollar value.

I had the privilege of working very closely last week with the Australians, who are the world leaders in indigenous procurement, and listening to them about how they have gone about enshrining indigenous procurement in the way their federal procurement process works.

There are certainly a lot of lessons to be learned from there in the next.... I don't know what the time frame exactly is, but a new approach to PSAB will be put forward based on the work we have been doing with organizations like the CCAB, the Canadian Council for Aboriginal Business, with the National Aboriginal Capital Corporations Association and with the National Indigenous Economic Development Board. There is an ongoing process now of engagement online and in person to see how those improvements can be made.

It is being done because we certainly recognize and take your point that reaching higher is possible. The indigenous business scene has exploded in the last decade, so a policy framework from 1996 has to be updated as well.

[Garnett Genuis]

I appreciate the points about the policy framework. Do you have those numbers in front of you in terms of where we are now and what proportion of government procurement is indigenous business? If you don't, that's fine, but maybe that would be an interesting piece.

[Christopher Duschenes]

Those certainly can be provided, because those are monitored.

[Garnett Genuis]

Yes.

[Christopher Duschenes]

We work with PSPC closely.