Natural Resources Committee on Feb. 7th, 2019

[Prof. Hans-Kristian Hernes]

Thank you. What big questions those are.

I think the ILO has been successful, or has been a tool, then, for the Sami Parliament in establishing consultations, both on this Finnmark Act process in the Norwegian Parliament [Technical difficulty—Editor] 2003 [Technical difficulty—Editor] and before the law was passed in the parliament.

Consultation has been very important for the Sami Parliament in terms of getting in touch, co-operating and being involved in decision-making processes. It's related not only to land and water but also to education, language issues, the environment and so on. The Sami Parliament has really become a player or an actor in several processes in Norwegian politics and working with the Norwegian government. In that sense, it's been a success, I think we could say.

I'm sorry, I forgot your second question.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

The second part of that question was about whether or not you feel, regardless of whether or not the agreement has met all of the objectives it set out to meet, it has been beneficial as a whole to the relationship between the Sami people and Norway as a whole.

[Prof. Hans-Kristian Hernes]

I think it has been beneficial for the Sami Parliament, and the Sami Parliament wants to continue this co-operation. There is now a proposal in the Norwegian Parliament for a law on consultation or on including consultations in the Sami law. The Sami Parliament wants to continue this. They see this as a possible way to be involved at an early stage in the processes and to then have direct contact with government. The agreement also includes the President of the Norwegian Sami Parliament meeting the responsible minister for regional affairs in Norway twice a year. It's been institutionalized as a way that the Sami Parliament can work with the Norwegian government.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Ms. Turi, based on your experience, do you feel that the relationship between the Sami people and the Government of Norway has benefited from this agreement? And if it hasn't been 100% successful in everything it had set out to do, do the Sami people as a whole feel that they're progressively making up ground as they go along?

[Dr. Ellen Inga Turi]

I believe this agreement has been of benefit to the relationship between the Sami Parliament and the Norwegian government. Of course, the Sami people are diverse. They're involved in different livelihoods, all of which are not able to be...or are not as strongly represented by the Sami Parliament. The Sami Parliament is a relatively new and young organization that is developing, and the place it has among the Sami people is developing. I feel it has made quite major leaps, particularly over the past few years, but there have been times when, for example, Sami reindeer herders questioned whether or not Sami Parliament was the right institution to represent them on issues concerning land use negotiations.

That is why I say that I do feel that this agreement has very much been of benefit to the relationship between the Sami Parliament and the Norwegian government. To some extent, yes, the Sami Parliament does represent Sami people, but there are areas where that is also questioned.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Okay.

What are the top three things that the Government of Norway, in combination with the Sami Parliament, could do to address the concerns of those marginalized groups within the Sami population and to address some of the issues that they feel are not being considered?

[Dr. Ellen Inga Turi]

You're putting me a little bit on the spot with “top three”.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Top two, then.

[Dr. Ellen Inga Turi]

I think I can come up with maybe one or two.

The current way we decide on infrastructure projects in Norway is through environmental impact assessments. If the Sami Parliament and the Government of Norway decided to put some serious effort into developing the environmental impact assessment regime further, that could really help.

Among other things, indigenous knowledge is always rooted in indigenous languages. Putting more focus on also making impact assessments in indigenous languages, by indigenous researchers, could be a step on the way.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Thank you.

[The Chair, Liberal, James Maloney]

That's all the time we have, unfortunately. Thanks to both of you for joining us today by teleconference. It was very helpful to our study and very much appreciated.

We will suspend and get set up for the next two witnesses.

[The Chair, Liberal, James Maloney]

Welcome back, everybody. We have two more witnesses joining us for the second hour. With us we have Professor Greg Poelzer from the University of Saskatchewan.

Thank you for joining us. Based on the weather reports, I'm guessing you're glad you're here and not at home.

[Professor Greg Poelzer, Professor, University of Saskatchewan, As an Individual]

Yes, exactly, though I could canoe here.

[The Chair, Liberal, James Maloney]

By video conference, we have Dr. Dalee Sambo Dorough, who is joining us from Hawaii although she is a professor at the University of Alaska. I understand that “Congratulations and happy anniversary” might be in order. I was told not to say that, but I'm saying it anyway. We really appreciate you taking the time out, especially when you're in Hawaii.

Were you able to hear us?

[Dr. Dalee Sambo Dorough, Senior Scholar, University of Alaska Anchorage, As an Individual]

Yes, I'm able to hear you fine, and I was just going to thank the technicians who did the test run yesterday. I think we're all in good order.

[The Chair, Liberal, James Maloney]

We're going to jump right into things here. Each of you will have up to 10 minutes to deliver remarks, and then we'll go around the table with some questions.

Professor you're here, why don't you start us off?

[Prof. Greg Poelzer]

Thank you very kindly for having us in on this obviously very important topic to our country, but also to our neighbouring countries in the circumpolar north.

And a hello to my colleague from Alaska, where I did my Fulbright. Folks in Alaska really treated me well, so I have a very fond affection for Alaska.

One of the things I know a lot of folks are thinking about when we're thinking about large energy projects is oil. It's a hot topic, as you might expect, in my home province, Saskatchewan. But I want to focus a little bit on what will be, in the long term, the bigger infrastructure energy projects that are coming down the line, which will be in electrical energy. I'm happy to talk about anything, but I want to focus on this one, especially as it relates to indigenous peoples in Canada.

When we think about this global energy transition, in my view it offers us the most important opportunity in the 21st century to renew indigenous relations through renewable energy. This will happen only if it's done right. If done badly, the transition to greener energy would be just another area of unnecessary, preventable conflict and lost opportunity for sustainable wealth generation in indigenous communities. It would truncate progress, in my view, with regard to the largest single environmental challenge of our times, which of course is climate change.

If we think about the national railway of the 19th century as the key infrastructure project that helped to build Canada from sea to sea, I would suggest that the global energy transition offers Canada the same opportunity in the 21st century, which can bind Canada together from sea to sea to sea.

I think nation building through energy could address two important dimensions, and I say this is with my prairie-Saskatchewan hat on. I think it provides us a once-in-a-generation opportunity to do better on our promise to one another that we are all treaty peoples. The energy transition can be a nation-building project that includes all founding peoples and contributes to our journey of reconciliation, through steel in the ground.

Being independent power producers, for first nations and Métis communities, offers real opportunities for indigenous equity ownership positions, in whole or in part. They provide sustainable revenue streams, employment and new business ventures.

Second, I think energy transition provides critical foundations for completing nation building, especially as it relates to the territorial and the provincial north. Energy access and energy security are everyday issues in almost all remote and rural communities in the territorial and provincial north. The high cost of energy often contributes to grinding poverty and the “heat or eat” dilemma in many communities. The lack of stable power is a deterrent to business development and business investment.

These are issues the vast majority of Canadians don't ever think about. They aren't on our horizon. But if we're truly going to complete nation building in this country, I think the energy sector is one thing, in terms of infrastructure, through which we can build Canada east, west and north. And it will enhance equality of opportunity, especially for first nations, Métis and Inuit Canadians, because their lack of equality of opportunity is largely grounded with energy. The energy transition we have in front of us provides that large-scale nation-building project.

There are four lessons.

As for my own background, I've done a lot of work in Siberia over the last 30 years. I've done 30 field trips. I read, write and speak Russian. I've done a lot of work more recently in Scandinavia, particularly in Norway and Sweden, and more recently now in Alaska. I could give you about 20 or 40 lessons, but I'll stick with four.

One is to pay attention to social impact, not just physical and environmental impacts, in doing assessments. I think that's deadly important. A place that you wouldn't expect Canada could learn some lessons from is the Sakha Republic—Yakutia—in eastern Siberia. They had a delegation—some of them are our colleagues, in fact—looking at environmental assessment processes in Canada, which have tended historically to focus on the physical and environmental impacts. To their neglect, we don't have a robust process around social, cultural and economic impacts for indigenous communities.

They thought our process had something wanting. When they went back, they actually built in—yes, they have the standard physical and environmental ones in their EIA processes—and created a process to look at social and cultural impacts, and they have deployed it. They have deployed it on two railway projects in southwestern Yakutia and on a hydroelectric development project. The reports back are that it was largely successful. Yes, remuneration or compensation is not anything like we would expect in Canada, but the point is, there's a lesson that these things can be done.

The other lesson I want to draw on—I'm glad our Norwegian colleagues set the stage—is about the decentralization of electrical power. It's coming and it's going more global, but it also provides opportunities for democratization in decision-making at the local level. I think what's going on in Norway is instructive, especially in Finnmark county, the largest county in northern Norway. It has the largest indigenous population. At one point, 90% of the land was actually owned by the state, the national state, which was not typical for every other county in Norway. There was the Finnmark Estate, which allowed co-governance, or co-management, as it were—we might use that lingo in Canada—in which there were equal appointments by the county and the Sami Parliament.

That context is I think really important when you look at that kind of decentralization of electrical power. By Canadian standards, it's a small region. By Norwegian standards, it's large. By Canadian standards, there's a fairly good population, and by Norwegian standards it's quite sparse. There are seven or eight local utilities, including everything from private to municipal to co-operative, and they've all worked together under a single one, Finnmark Kraft. One of the interesting things is that there was supposed to be some national large-scale wind development. These things are still under debate, but the fact that the Finnmark Estate is there and the fact that Finnmark Kraft is operating has actually slowed this down to where there now is an opportunity to offer local decision-making about wind power development in a way that wouldn't have been possible otherwise. That's another lesson that I think Canada can take away to think about in our context.

The third lesson is that indigenous peoples can own and operate energy utilities. I'll tell you this. In terms of the other hat I wear, I'm a negotiator for SaskPower, so I'm on the industry side of the table and have been setting out in the last eight years the negotiating of a global settlement on a hydro facility in northern Saskatchewan. When you work across the electrical utilities, I think one of the mythologies in Canada is that indigenous peoples don't have the capability or capacity to own and operate electrical utilities, but you can look at the State of Alaska and at things like the Alaska Village Electric Cooperative, AVEC, which was founded in 1967. We're only 50 years behind Alaska, but we will catch up one day. It started with a handful of communities and now has 57 native Alaskan communities owning and operating it and making investments. It is the largest electricity co-operative in the world by territory. There are lessons for Canada. We can do that.

One thing I'm working on and negotiating with SaskPower is to found the first generation and distribution utility that would be owned by first nations in Canada. There are nearly 200 projects of electrical ownership, but not in terms of utilities. That's not uncommon in the United States.

The last point I want to mention is the power of international co-operation in indigenous-led energy development. Again, I hearken back to the state of Alaska, our neighbour. The Alaska Centre for Energy and Power at UAF, with our friends in Iceland and funded as well by the Canadian government and the United States government, put together the Arctic Remote Energy Network Academy. It brought together energy champions from indigenous communities, from everywhere from Greenland to Canada to Alaska, to work on energy projects and build capacity together.

We worked in Saskatchewan with AVEC and Peter Ballantyne Cree Nation on the design of a locally owned utility and an assessment of what kind of renewable energy system could work and how it could be operated in a fiscally sustainable manner. We've taken those things, including from the Fulbright arctic initiative, and built a UArtic thematic network to sustain this kind of initiative into the future.

Here's one last thought I want to leave with you about the opportunity. I think it is profound. Sometimes Canada, and I have to say this about our country, I love this country, and no offence to my Alaskan colleague, but I think we live in the best country in the world—

[The Chair, Liberal, James Maloney]

I'm going to have to ask you to wrap up very soon.

[Prof. Greg Poelzer]

Okay. Last point.

What can we do? There are about two billion people on this planet who....around 1.3 billion who don't have electricity, and another billion or so we've tied to grids or are islanded. Imagine economies of scope: Alaska, Canada, Norway, Sweden and Greenland working together building an export market, building off economies of scope, that's indigenous-led. That's a future that's ahead of us.

Thank you.

[The Chair, Liberal, James Maloney]

Thank you.

Doctor, the floor is yours.

[Dr. Dalee Sambo Dorough]

Thank you so much.

I just want to acknowledge some of the comments that Professor Poelzer has made. In fact, my father used to work for Alaska Village Electric Cooperative. I also want to add that I'm an entrepreneur myself, in addition to having a political career as well as the academic career.

I've provided a number of different documents as well as my presentation to you in writing. I am going to go full steam ahead. I hope everybody can stay with me on this.

I am happy to be invited to appear and would like to commend the committee for their interest in the views of indigenous peoples in relation to natural resource development and major energy projects. Though I'm the international chair of the Inuit Circumpolar Council, ICC, I expect that I've been asked to participate due to my background in international human rights and in particular in the drafting of the UN Declaration on the Rights of Indigenous Peoples. I've chosen to testify as an individual and to share my views about incorporating the UN declaration into your study and your overall work.

The UN declaration and the rights affirmed therein are based on good-faith negotiations and dialogue between indigenous peoples and UN member states. Canada played a significant role in influencing these comprehensive normative standards while led by both Liberals and Conservatives over the 25 years of the declaration's negotiation.

As preambular paragraph 7 underscores, the rights affirmed are inherent or pre-existing. The UN declaration has achieved a universal consensus and has been unanimously reaffirmed in a wide range of UN General Assembly resolutions since its adoption in 2007. Furthermore, the rights affirmed in the UN declaration are minimum standards.

Legal scholars and courts have acknowledged that though the whole of the UN declaration is not legally binding, many of its key provisions constitute both general and customary international law and thereby create legally binding obligations in favour of indigenous peoples. The International Law Association has concluded that the UN declaration articles affirming the right to self-determination; the right to culture; land rights; and the right to redress, reparations and recourse are of a customary international law nature. Also, the rights elaborated on in the UN declaration are interrelated, indivisible and interdependent, and the change of one of its elements affects the whole.

I draw your attention also to ILO convention 169 and the OAS American Declaration on the Rights of Indigenous Peoples respectively because of the compatible and mutually reinforcing nature and the explicit reference to the UN declaration as well as their status as international human rights instruments specific to indigenous peoples.

Indeed, the Inter-American Court of Human Rights has held, through opinions that are binding upon the vast majority of states in the Americas that have acceded to its jurisdiction, that the rights of indigenous peoples to lands, territories and resources mean that both states and companies—third parties operating in those states—must respect the rights of indigenous peoples.

The international covenants affirm the right to self-determination, which is regarded as a prerequisite or a pre-condition to the exercise and enjoyment of all other human rights. This same right is affirmed in article 3 of the UN declaration. Legal scholars have characterized the right to self-determination as the free choice of peoples. That being the case, the right to free, prior and informed consent is an integral element of the right to self-determination.

Natural resource development and energy-related projects are often linked to indigenous peoples' lands, territories and resources. The UN declaration not only affirms rights to lands, territories and resources but also identifies the profound relationship that indigenous peoples have with their environment. These customary and historical connections also relate to indigenous systems of decision-making, as articulated in article 18 of the UN declaration with regard to the right to “maintain and develop their own indigenous decision-making institutions”, hence the importance of the rights of indigenous peoples to free, prior and informed consent, FPIC.

In addition to the explicit reference to FPIC in the UN declaration, there is a clear consensus in international human rights law about the state duty to consult with a goal of reaching consent, especially in the area of development projects and extractive industry activities, which more often than not require the consent of the indigenous peoples concerned.

Therefore, states must dialogue and negotiate in good faith in order to achieve consent.

There are a number of other UN declaration provisions that require states to undertake actions in conjunction with, or in consultation and co-operation with, indigenous peoples. In addition, the language of article 26, paragraph 2, affirms that “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use”.

Here, the term “control”, in its plain meaning, suggests having power over: to influence, manage, restrain, limit or prevent something from taking place. This is no way translates to a purported right of indigenous peoples to a veto, which the former Government of Canada erroneously characterized FPIC as. There's a major distinction between the procedural and substantive aspects of FPIC and the notion of the power to veto an action. The latter is often outlined and reserved to a legislative or constitutional authority and vested in a political leader such as a president or a governor of a state.

In contrast, FPIC entails negotiation, dialogue, partnership, consultation and co-operation between the parties concerned, in good faith, and again with the objective of achieving consent. Even then, the peoples concerned may choose to assert the right to give or withhold consent regarding what may or may not take place within their territory.

The procedural implementation of the right to FPIC must be sorted out by those who are the “self” in “self-determination” and addressed on a case-by-case basis according to conditions and the “situation” of the indigenous peoples concerned. States must recognize that human rights are not absolute, and that there's a constant tension between the rights and interests of indigenous peoples and all others. In some cases, this constant tension is manifested amongst and between the indigenous peoples concerned.

The Government of Canada, under this Prime Minister, has concerned itself with upholding the rights of indigenous peoples. This can and does include the right to determine our own priorities for development. In addition to the right of self-determination, article 32 of the UN declaration affirms that:

Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

The former special rapporteur on the rights of indigenous peoples, James Anaya, in the context of extractive industries and FPIC, referred to indigenous-driven development of their lands and resources as the “preferred model”. The outcomes of indigenous-initiated and indigenous-controlled development are bound to be far more responsive to the priorities, interests, concerns, cultural values and rights of indigenous peoples. He further suggested that states may initiate programs for assistance to those indigenous peoples who choose to pursue development enterprises.

However, much of his report is devoted to the standard scenario of imposed development that many indigenous peoples have experienced and the obligations of states and third parties to mitigate impacts; monitoring third party extraterritorial activities; due diligence; and, equitable agreements.

Sustainable and equitable development are important dimensions of indigenous human rights, and natural resources as well. The preamble of the UN declaration explicitly refers to the fact that “indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment”.

Indeed, “The future we want”, the 2012 General Assembly resolution, specifically states in paragraph 49:

We stress the importance of the participation of indigenous peoples in the achievement of sustainable development. We also recognize the importance of the United Nations Declaration...in the context of global, regional, national and subnational implementation of sustainable development strategies.

A recent development of significance for the Government of Canada, this committee and indigenous people is the 2030 Agenda for Sustainable Development. One of its central objectives is, between now and 2030, to end poverty and hunger everywhere, to protect human rights and to ensure the lasting protection of the planet and its natural resources.

It is important to reference the body of work being conducted by the UN working group on business and human rights, and the important guidelines it has developed. I also urge you to review A Circumpolar Inuit Declaration on Resource Development Principles in Inuit Nunaat, from 2011.

Finally, due to recent dialogue in Canada and the fact that 2019 has been declared the International Year of Indigenous Languages by the UN, I want to underscore the importance of indigenous languages in any engagement process and also the reality of poor telecommunications infrastructure. I listened to Duane Smith and his testimony on Monday. I believe his words were to the effect that we are energy resource rich but infrastructure poor.

More important, all must acknowledge the solemn obligations undertaken by Canada in relation to developing, in collaboration with the indigenous peoples concerned, a national action plan to implement the UN declaration. This voluntarily made commitment could dramatically enhance and ensure the sustainable and equitable development of the natural resources of indigenous peoples, if they so choose, to the benefit of Canada and all Canadians.

I think the issues related to indigenous languages, which I know have been discussed in Canada, as well as infrastructure, which was highlighted by Professor Poelzer, are both matters that are worth following up on in the forthcoming dialogue.

Thank you.

[The Chair, Liberal, James Maloney]

Thank you very much.

Mr. Tan.

[Geng Tan, Liberal, Don Valley North, ON]

Thank you, Chair.

Thank you to the witnesses for being with us today, either physically or by video conference.

Since you are both scholars, and there might be some overlap of some of your research topics, my question can be answered by either or both of you.

The first question is on indigenous settlements and indigenous advice. You both talked about those in your presentations and shared your fears and insights with us. What might we learn, specifically, if we were to compare settlements, say the Alaska native settlement, the James Bay Indian and Inuit settlement, and the western Canadian Inuit settlement? What is our experience, and what can we improve in the future?

[Prof. Greg Poelzer]

That's a very good question. I'll defer to Alaska first.

[Dr. Dalee Sambo Dorough]

I believe it's important to recognize that it would be very useful, to some extent maybe through this standing committee, to do a bit of a comparative analysis of the land claims agreements and the Alaska Native Claims Settlement Act of 1971. For the purposes of energy projects and the focus of the Standing Committee on Natural Resources, I think it would be very useful to explore even further the real potential for indigenous-driven activities in relation to energy resources, as was discussed by Professor Poelzer, and to do so in a comparative analysis.

The opportunities for the Alaska native corporations created by the Alaska Native Claims Settlement Act as well as for the economic development corporations created by the comprehensive land claims agreements across the Canadian Arctic offer some real potential, because, as I noted in my presentation, in the circumpolar declaration on resource development, from the indigenous perspective, and specifically from the Inuit perspective, there is a very real attempt to balance the kind of development that can proceed under indigenous development and in terms of energy resources, both renewable and, significantly, non-renewable.

This is an area that would afford some constructive and comparative analysis, to the benefit of Inuit and other indigenous peoples.