Natural Resources Committee on Feb. 19th, 2019

[The Chair, Liberal, James Maloney]

Good afternoon, everybody. Welcome back. I hope everybody had an enjoyable and interesting break week or non-sitting week.

We have two groups of witnesses with us for the first hour. From Oxfam Canada, we have Mr. Ian Thomson.

Thank you, sir, for joining us.

From the Canadian Nuclear Safety Commission, we have Rumina Velshi and Liane Sauer.

You probably all know the process. Each group will be given up to 10 minutes for a presentation, and after both of you have completed your presentations, we will open the floor to questions from around the table.

Since you've been waiting patiently, why don't the two of you start?

[Rumina Velshi, President and Chief Executive Officer, Canadian Nuclear Safety Commission]

Thank you.

Good afternoon, Mr. Chair and members of the committee.

My name is Rumina Velshi. I am the President and Chief Executive Officer of the Canadian Nuclear Safety Commission.

I am joined this morning by Liane Sauer, director general of the strategic planning directorate at the CNSC.

Before beginning my remarks, I would like to acknowledge that the land on which we gather is the traditional unceded territory of the Algonquin people.

Thank you for inviting me to provide comments on best practices for engaging with indigenous communities regarding major energy projects.

Before giving you my thoughts on that subject, I will provide a bit of background about our organization.

The CNSC is Canada's nuclear life-cycle regulator and is responsible for regulating everything nuclear in Canada. Our mandate is, one, for the protection of health, safety, security and the environment; two, to respect Canada's international obligations on the peaceful use of nuclear energy; and three, to disseminate information to the public. It is a clear mandate and one that we have fulfilled faithfully for over 70 years.

The commission is an independent quasi-judicial tribunal, comprised of up to seven members, that makes licensing and environmental assessment decisions for major nuclear facilities and activities.

Canada's nuclear sector is broad and ranges from uranium mining, nuclear reactors, nuclear medicine and industrial applications of nuclear technology to the safe management of nuclear waste. Our focus is safety at all times; however, we have many priorities. One of our top priorities is ensuring the meaningful participation of indigenous peoples in our processes.

During my six years as a commission member, I have had the opportunity to hear the perspectives of many different indigenous peoples and leaders during commission proceedings. Now, as president, I'm committed to meet with indigenous community leaders with a view to further enhance the CNSC's relationship-building efforts.

As an agent of the Crown, the CNSC fully embraces its responsibilities respecting engagement and consultation. Those responsibilities include acting honourably in all interactions with indigenous peoples. This means that we appropriately consult on, and accommodate when necessary, indigenous rights and interests when our regulatory decisions may adversely impact them. That is a responsibility we take very seriously.

We have mechanisms in place to ensure that indigenous peoples are consulted on projects that might have an impact on their rights. One important consultation mechanism is the commission's public hearing process. Leading up to a hearing, and beginning very early in a project, CNSC staff meet with potentially impacted indigenous communities to better understand potential impacts and identify ways to avoid, reduce or mitigate them.

Applicants are intimately involved in that process as well, whether in concert with CNSC staff, or separate from them. In fact, we have had a regulatory document in place since 2016, REGDOC-3.2.2, Aboriginal Engagement, which sets out various requirements and guidance for applicants. For example, applicants are required, before an application for a major project is even submitted, to identify potentially impacted indigenous communities and meaningfully engage with them throughout the process.

The outcome of those consultation and engagement activities, and any measures taken or committed to, are then presented to the commission in an open and transparent public hearing. During these hearings, CNSC staff, applicants and indigenous peoples each present to the commission. The commission considers all information presented, and before making a licensing decision, satisfies itself that what is required to uphold the honour of the Crown and to discharge any applicable duty to consult has been done.

We have recently published on our website a compendium of indigenous consultation and engagement best practices, which I have provided to this committee. It builds on our experiences with indigenous communities, as well as those of federal, provincial and international counterparts.

I have mentioned our regulatory document and meaningful participation in commission public hearings, but there are a few other practices that I would like to highlight as well.

Having a mechanism to assist indigenous groups with financial capacity to participate is key. We have a flexible and responsive participant funding program or PFP that we administer and that is funded by licensees. The PFP supports the participation of indigenous peoples as well as other eligible recipients in our regulatory processes. Recently it has been expanded to support indigenous knowledge and traditional land use studies, which will provide important information for the commission to consider in its deliberations.

The PFP also directly supports several other best practices, one of which is multi-party meetings. These meetings bring together indigenous groups, CNSC staff, licensees or applicants, and other governmental representatives, when appropriate, so many issues can be heard and addressed at once. These meetings are often held in indigenous communities, and they allow CNSC staff to get a better perspective of the issues of interest or concern to community members and their leadership. The PFP also supports participation in commission meetings, which are non-licensing proceedings.

The commission has recently decided to provide indigenous intervenors the opportunity to make oral submissions, whereas other intervenors are invited to make written submissions only. That decision was made in recognition of the indigenous oral tradition for sharing knowledge and in the spirit of reconciliation.

The PFP can also be used to support participation in our independent environmental monitoring program or IEMP, which is another best practice. Our IEMP takes environmental samples from public areas around nuclear facilities to independently verify whether the public and the environment are safe. In recent years we have supported the participation of indigenous peoples in sampling activities under the program, including the design of sampling campaigns so it reflects their values and interests.

A final best practice I would like to mention is the CNSC's ongoing engagement throughout the life of nuclear facilities and activities, not just during the licensing phase.

We are committed to building long-term, positive relationships with indigenous communities with a direct interest in nuclear facilities or on whose territory nuclear facilities or activities are found.

As a life-cycle regulator we want to understand all issues of interest or concern and work to address anything that is within our authority throughout the life of a project. We are committed to that and are currently implementing a long-term indigenous engagement strategy with 33 indigenous groups who represent 90 indigenous communities in eight regions in Canada. We welcome the opportunity to partner and work with these groups for many years to come.

I believe we are on a journey in Canada as we continue to explore how best to engage indigenous peoples in relation to major energy projects. Expectations and best practices are evolving, and it is critical that we continue to stay abreast of these developments. We have learned many lessons over time and continue to learn. We value and are committed to long-lasting and positive relationships with indigenous peoples in Canada and look forward to continuing to work together in the spirit of respect and reconciliation. This is how we will move forward together.

Thank you.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Thomson.

[Ian Thomson, Policy Specialist, Extractive Industries, Oxfam Canada]

Good afternoon, committee members. Thank you for inviting Oxfam Canada to be part of this study today.

I'd like to join my fellow witness in acknowledging the Algonquin territory on which we're meeting.

My name is Ian Thomson. I'm a policy specialist with Oxfam Canada focused on the extractive industries.

Oxfam in an international NGO. We're active in more than 90 countries, working through humanitarian relief, long-term development programs and advocacy to end global poverty.

At Oxfam, we firmly believe that ending poverty and reducing inequality begins with gender justice and women's rights. Oxfam works with indigenous people's organizations in many parts of the world to support their struggles, to defend their rights and to protect their lands, territories and resources.

In 2015, Oxfam surveyed 40 leading oil, gas and mining companies to assess their commitments around indigenous engagement and community consent. Our community consent index revealed that extractive sector companies are increasingly adopting policies with commitments to seek and obtain community consent prior to developing major projects. It has become a recognized and accepted industry norm. It's good development and good business all at the same time.

Further research, however, has identified major gaps in the ways these commitments are being implemented. In several countries our indigenous partners have found that women face systemic barriers in participating fully and equally in decision-making by governments or companies around major resource development projects.

We have two recommendations for the committee to consider today.

First, indigenous engagement processes, whether by the Crown or by private sector actors in the energy sector, should become more gender-responsive and conducted in accordance with international human rights standards, including the UN Declaration on the Rights of Indigenous Peoples.

Second, the Canadian government should be proactive in promoting gender-responsive and rights-based engagement internationally through our trade, aid and diplomatic relations.

I would like to share some research and findings from two indigenous partners in Peru and Kenya that illustrate both the real challenges and opportunities in this area.

A decade ago, social conflicts over energy projects in Peru boiled over into violent confrontations. The conflicts revealed deep failures on the part of both governments and companies to engage indigenous peoples in a meaningful way in decisions around major projects.

In 2011, Peru adopted a new law on indigenous consultation or consulta previa. To date, 43 consultation processes have been recorded by the Peruvian government, 30 of them related to energy or natural resource projects. The Ministry of Energy and Mines reports that only 29% of the participants were women.

In December, with the support of Oxfam, ONAMIAP, the indigenous women's federation of Peru, published a study examining women's participation in these consultation processes over the past seven years. The study was aptly named “Without Indigenous Women, No Way!”. ONAMIAP had conducted surveys with indigenous women in different parts of the country to identify barriers to their participation. Women's participation was hindered by their limited experience of participating in public spaces, the domestic care work that was not taken into account by those organizing when and where consultations were held, the very technical content presented without adequate time or support for people to make sense of projects, lower literacy rates and language barriers, failure to recognize women's rights with respect to communal lands and forests, consultation methods that did not address gender needs, and a lack of genuine dialogue with processes directed at convincing communities to accept projects and conditions.

ONAMIAP recommends that governments and project proponents should be explicit about the differentiated impacts of projects on women and men. Women must be included fully and equally at all stages of decision making processes. Finally, public policy reforms are needed to recognize women's rights and access to communal lands and forests, which would facilitate their participation in these processes.

Last April, Oxfam invited the president of ONAMIAP to an indigenous women's gathering in Montreal, spearheaded by Quebec Native Women. Indigenous women leaders from a dozen countries gathered together to share their experiences, and they quickly learned that their experiences shared striking similarities. Everywhere they recognized that they were tackling an entrenched gender bias in how decisions are made around energy and natural resources.

Turning now to Kenya, where Oxfam is also researching indigenous rights, and in particular the free, prior and informed consent standard, our 2017 study called “Testing community consent” focused on Turkana County, one of the poorest and most remote regions of the country, where significant oil and gas deposits have been discovered.

While most people noted that company engagement practices though initially poor were steadily improving, many key ingredients of free, prior and informed consent were not present. In particular, we noted that pastoralist women who engaged in traditional livelihoods of nomadic herding had been unable to participate in community meetings over oil and gas development projects. Their livelihoods would be affected by the well pads and pipelines and roads being built in the area, but they were least likely to participate due to how the engagement process had been conducted. This year, Oxfam is planning to do follow-up research to look more closely into how those gender justice gaps can be addressed.

Our first recommendation to this committee would be to ensure that indigenous engagement is conducted in a manner that is gender responsive, advances gender equality, and that is consistent with international human rights standards, including the UN declaration. We believe that energy projects must go beyond “do no harm” and actually be transformative and positive changes to advance gender equality where they're being developed. This also means listening to and respecting indigenous people when they say no to certain projects. Project reviews that listen to women and men and take into account the differentiated impacts will result in better-designed projects and share benefits more equitably.

Oxfam is pleased that gender responsiveness could soon be added to federal impact assessment processes through Bill C-69, currently under review in the Senate. Oxfam supports this bill and hopes that gender-based analysis in project reviews will establish this norm across all industries and unlock even more systemic change. Likewise, we welcome Bill C-262, which would ensure that Canadian law is consistent with the UN Declaration on the Rights of Indigenous Peoples.

Interestingly, our stories from Peru and Kenya also have a direct connection with the Canadian energy sector. Peru's largest oil concession, known as Block 192, is operated by a Toronto-based company, Frontera Energy. In Kenya, the oil project in Turkana County that we studied is a joint venture that involves a Vancouver-based company, Africa Oil Corporation. Both of these companies, within the past two years, have had to temporarily suspend their operations due to indigenous protests over unresolved community grievances. Canadian companies operating internationally risk losing their social licence to operate if they can't foster positive and respectful relationships with indigenous peoples.

Our second recommendation is for the Canadian government to take action and raise the bar for Canadian companies operating internationally. The long-awaited Canadian ombudsperson for responsible enterprise, announced by the international trade minister over a year ago, should be appointed without delay and granted the necessary powers to investigate corporate practices internationally.

Canadian embassies should provide more support to women human rights defenders who are working to defend their rights and participate in major decisions around energy projects.

Export Development Canada should have a statutory requirement to respect human rights and gender equality in all of its business transactions.

Finally, Canada's international assistance should support indigenous peoples organizations to engage in and transform natural resource governance, particularly indigenous women's organizations like ONAMIAP in Peru, which have identified many of the solutions but are sorely under-resourced.

I would like to conclude by saying that we believe major energy projects in the future will look very different when they genuinely engage indigenous peoples and respect their inherent rights and title. An energy transition is under way, and Canada can position itself as a leader in the new energy economy.

I'd like to thank the committee for engaging in this study and would welcome any questions you may have.

[The Chair, Liberal, James Maloney]

Thank you very much, Mr. Thomson.

Mr. Tan, are you going to start us off?

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

Thank you, Chair.

I have a couple of questions for CNSC. As you mentioned in your presentation, the CNSC has been actively engaging in indigenous consultations by organizing public hearings and meetings. The CNSC also applies some other means like notification letters and emails, and organizes open houses, not hearings, and also face-to-face meetings.

Are these also effective means in your opinion?

[Rumina Velshi]

Yes, the CNSC uses many different mechanisms to engage with indigenous communities. I'll list some of them, the ones that you have listed. When we have any hearings or meetings coming up, we do send out emails, and we recognize that for some of these communities that's not the best way to communicate with them. So we use phone calls or personal contacts with them. We have meetings within the community itself where it's convenient to meet with them.

We also have what we call “CNSC 101” sessions within the community where we can talk about their concerns, their needs, and explain to them nuclear risks and try to address their concerns. Then there are some of the other ones that I have told you about within our proceedings and our hearings as well.

We apply multiple ways and are always open to any more that they suggest.

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

How often does the CNSC organize this kind of direct contact with the indigenous groups?

[Rumina Velshi]

Certainly, prior to any hearings or meetings that affect certain communities, we would definitely be in touch with them months and months before that. What we now try to do is establish ongoing relationships with them. It varies.

Maybe I'll ask Ms. Sauer to give some more details on how often those happen.

[Liane Sauer, Director General, Strategic Planning Directorate, Canadian Nuclear Safety Commission]

As President Velshi mentioned, we do engage quite frequently in meetings in communities. Often they're either one-on-one meetings, or if we're invited to participate in a community event, we will do so. The number of meetings per year does vary because it's reactive. It's based on invitation from the groups. We've had some years where there have been 30 or 40, and there was one year where it was up to 70. So it does vary.

We're very responsive when we get an invitation; we make best efforts to go out.

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

I assumed that CNSC was incorporating the national best practices for regulating the nuclear industry and even generating some of its own.

Internationally, in your opinion, what counterparts of CNSC in other countries do a particularly good job of incorporating the views of indigenous people in the early assessment process?

[Rumina Velshi]

We have done some benchmarking with other nuclear regulators internationally. None of them have an approach similar to ours. They really look towards us for best practices, particularly when it comes to our processes, which are very open and transparent. Also, our participant funding is very flexible.

I think that's fairly limited or in a very nascent stage, certainly, for other nuclear regulators.

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

Another question is about the SMR, because we're talking about the nuclear industry.

In recent years, there has been a renewed interest in the nuclear industry, nuclear energy solutions for North America to meet the energy needs of North America. You're involving a new generation of SMRs.

How might these SMRs be a solution for Canada's north? Have you received any expressions of interest among the indigenous communities in the north for this kind of solution?

[Rumina Velshi]

I'll give you my perspective as a nuclear regulator. One of the things we have tried to do as a regulator is to make sure that we are prepared for any SMR applications that come our way. One of the things we have done is to offer a service that we call a “vendor design review”, whereby vendors can come in front of the regulator and get their different designs assessed to see if there are any regulatory concerns. Right now we've got 10 different vendors who've submitted their designs to us for our review.

As far as expressions of interest go, it's not what we look at, but we are ready. If we were to actually receive an application today, from a regulator's perspective we are ready for it. SMRs, as most of you know, have many different applications. Whether it's on-grid, or—certainly for indigenous communities—off-grid, remote community applications are extremely positive. That would be very helpful.

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

Let me address a quick question to Oxfam. A couple of weeks ago, our committee heard from a witness from Norway who spoke of a third model, which is actually being developed a little bit in Canada. Under this model, indigenous people or the local communities take ownership of their energy production and the use of it for local development, and possibly some income. Do you know of any examples in Canada's north of this so-called third model being used?

[Ian Thomson]

I'm not aware of any specific examples on which Oxfam has done research. I know that's a live debate within Canada around indigenous ownership of natural resource development projects. Certainly, in some of the exchanges I mentioned between indigenous women's organizations that we help to support and convene, that is part of the debate. When indigenous peoples' role is no longer as people impacted by settler projects, but as actual proponents of projects and developers of the resources on their territories, I think that's the exciting new direction indigenous peoples are going in and that we as a country will be embarking on in the future.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Schmale.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you very much, everyone, for attending. We do appreciate your time.

Mr. Thomson, could you just clarify something for me? When you say that any plan in Canada needs to be “gender-responsive”, can you tell me your exact meaning? I just want to be clear on what you meant by that.

[Ian Thomson]

Yes, as I was alluding to earlier, there are moves under way to bring more systematic approaches to doing federal impact assessments. At the moment, it's done on occasion, depending on the project, but Bill C-69 would have it as a factor in impact assessments. Looking at the gender-differentiated economic, social and health impacts would be part of any federal study of a project. The approval process and the mitigation strategies that would be attached to a project, if approved, would take into account those gender-differentiated impacts.

Now, that would necessarily involve the participation of men and women in expressing how they understand what those impacts would be. The fact that it's participatory, I think, would also open up avenues for people to express their views on the project and to have that sort of analysis brought to bear. It's our hope also that the analysis will actually develop within regulators and federal institutions, so that the more gender-based analysis is applied to understanding and evaluating projects and developing mitigation strategies, the more expertise there would be, both within our regulators and in our approval processes. It is also our hope that project proponents would come forward having done more of this analysis from the outset. Increasingly, it would just be expected that industry would take into account and mitigate gender impacts.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I'm curious. Are there any situations you're aware of in which indigenous women were not heard from in our current consultation process?

[Ian Thomson]

The examples I was giving in other countries were more—

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I mean in Canada.

[Ian Thomson]

In Canada, we haven't statistically studied who is participating and who isn't. That's not our research.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Would you not say we have a fairly open consultation process?

[Ian Thomson]

I'd say the women who were at this gathering that we sponsored felt that the systems were not open to hearing from all of their views.