Natural Resources Committee on Feb. 19th, 2019

[Ian Jacobsen]

I'm reluctant to speak on behalf of the remote communities that are looking at this.

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

But just as you expand, I guess—

[Ian Jacobsen]

I think that project was a model project in Ontario.

Certainly, in talking with other communities, people are aware of the good work that was done in collaboration with the community. So it's certainly looking at similar opportunities, or similar programs and initiatives.

I referenced the indigenous opportunities in nuclear program that we launched in 2018. That's in partnership with Kagita Mikam. Similarly, we're tapping into the capacity that exists currently in some of the communities in being able to broaden our outreach and our relationships. We provide the need, and the communities supply the interested candidates to work in the project.

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

Excellent. Thank you.

Professor, I have a quick question on your testimony concerning the Sami people.

In terms of what we heard in our last meeting a week or so ago, one thing that wasn't clear in my mind at the end of it—I think that was on my part—is that when the consultations are taking place with the Sami people, are they speaking with one voice, or is it kind of a fractured voice when you're talking about energy consultations?

[Prof. Dwight Newman]

Well, as in any community, there can be some differing viewpoints obviously, and any human community has differing views. The voices get unified together in some ways through the Sami parliament. Insofar as it's drawn into commenting on particular issues, there's a unified voice.

I'll add that there is more linguistic, more cultural cohesion amongst the Sami people than amongst the very diverse indigenous peoples of Canada. You do potentially get more of a unified voice there, but even then, you have divisions within any human community.

[The Chair, Liberal, James Maloney]

Thanks.

Mr. Cannings.

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

Thank you all for being here before us today. It's been very interesting.

I'm going to start with Dr. Newman and try to take advantage of some of his obvious legal expertise on this big subject.

Some of the testimony we've heard—and not just here in this committee, but across the country—about indigenous engagement and consultation is that it's not rocket science. We know how it should be done. It involves, as Mr. Hehr said, early engagement and developing respectful relationships. If we are consulting with indigenous communities and governments, we should not just write down what their concerns are, but try to make meaningful attempts to address those concerns.

Obviously, there are some situations that are more complex than others, especially when we've heard today some examples—and perhaps you might have mentioned it—of where some indigenous communities have one viewpoint on a project and others that are equally as affected have another.

One example that comes to mind is an international situation. You have the Arctic National Wildlife Refuge in Alaska. The Inupiat people who live in Alaska are in favour of drilling there, but the Gwich'in of northern Yukon, who subsist on the caribou that calve in Alaska, are against it.

Could you make some comments on those complex issues and how they can be addressed legally?

[Prof. Dwight Newman]

I'll just say that, in general, yes, there's a lot of clarity on a lot of issues on consultation in Canada in terms of what's legally required.

You've highlighted two of the issues that actually give rise to complexities.

One of those is early engagement. In one way, that's actually very straightforward for a lot of contexts. A lot of industry proponents take that on board as a given—that they would pursue early engagement—but those that do that tend to be larger companies, those engaged in the development of a resource.

Early engagement can actually be quite challenging at the exploration stage, for example, which often involves smaller enterprises. That's been one of the contexts where we've actually seen conflicts emerge around what can or can't be expected of small exploration stage-type companies. However, there can be ongoing attempts to develop ways of moving together respectfully there.

Meaningful consultation has, of course, been in the news in recent months. A very important principle is that there be meaningful consultation, yet somehow there have been failures to achieve this in the context of the court challenge on Trans Mountain, identifying problems in what the Government of Canada did, even with the guidance that was available from the northern gateway decision. The government has had to go back and do more there.

It highlights the situation that has generated a lot of complexity, which is something like a linear infrastructure project that involves a lot of communities along the route, where some take one view and some take another. You've highlighted this in the context of an international difference between communities, but it, of course, exists even within Canada. It's going to be one of the very challenging things to sort out. How do we sort out situations where there is not unanimity among different indigenous communities that are all potentially affected by a project, some of which, indeed, may be proponents and equity partners in that very project, while other indigenous communities express ongoing concerns about it? That's not something that actually has an easy answer, but it's going to be one of the things that need to be sorted out.

Ironically, the situation that you have raised, I think, might have made for easier answers—where there is the possibility of international law coming into play from the effects in one country of developments that have effects on another country. To put claims based on transboundary harm and principles of international law around transboundary harm, I think, becomes probably the way to deal with some of those types of situations. However, the particular harms would need to be identified very specifically in a way that would engage the international law doctrines that pertain to them. If specific harms weren't clearly identified, they couldn't be taken before an international body.

Obviously, the hope is to fend off the harm before it occurs, so there needs to be a deep international conversation that takes place in the context of that issue to try to find a way forward. The fact that there's one state on each side of it, potentially, actually opens up more possibility for a clearer route forward than in some of the more complex situations that occur even within the country.

So, there are no easy answers, but maybe some answers on some of these.

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

Here's another easy difficult question. You mentioned the series of cases that have been brought forward in Canada that have framed and somehow defined the way that we go at indigenous engagement. In Canada, we've had more of that perhaps than other countries. You know them all, from Delgamuukw all the way up to the Federal Court of Appeal decision on Trans Mountain.

Do you see it as almost a chain of decisions, with each one citing previous ones? First of all, is there some lesson that we as legislators or the government can take from those decisions to avoid falling into those situations again? Or do you see this more as just a gradual refinement of the legal framework of our engagement with indigenous peoples?

[Prof. Dwight Newman]

In terms of lessons to take from the chain, I would highlight particularly the chain from Haida onwards, on the proactive duty to consult. I would distinguish it a bit from Delgamuukw and other cases prior to Haida, which were focused on consultation as part of the test for whether a particular infringement of an aboriginal or treaty right was justified.

Haida and the cases following it say that in every instance where there might be an impact on an indigenous right, there ends up being this proactive duty to consult that arises. That arises in Canada hundreds of thousands of times per year. Most of those situations move forward fairly successfully, but a few end up in challenges and litigation in some instances.

One of the key lessons that I would identify is the need to try to get beyond the uncertainty that Haida and its subsequent cases are dealing with. Haida was put forward as an interim case to try to deal with situations where there is not yet certainty on the final shape of indigenous rights in a particular situation, and if greater certainty could be achieved, whether it's through the courts if need be, but ideally through negotiation between governments and indigenous communities.

Some of that doctrine on consultation can become a lot clearer than it is right now. Otherwise, I guess, there's guidance in the cases on just trying to take all of the steps involved in meaningful consultation, and there can be ongoing work to try to follow that. However, there may be things still to be clarified in law. There may be ways for governments to move that along and to seek answers from the courts faster than those that have been received thus far in the context of that ongoing interim doctrine.

[The Chair, Liberal, James Maloney]

Thank you.

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

I had another good one.

[The Chair, Liberal, James Maloney]

You're only allowed so many good ones in one day, Mr. Cannings.

Mr. Whalen, I think you're going to share your time with Mr. Graham.

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

Yes, of course. Thank you very much.

I just have one question. It was really interesting to hear about the environmental impacts and early engagement with indigenous people in the previous panel. You guys are looking at some of the economic impacts. We heard some incisive testimony on February 5 from Chief Byron Louis of the Okanagan Indian Band, who was representing the Assembly of First Nations. He pointed out quite rightly that indigenous groups need to benefit economically from projects in meaningful ways.

What best practices should there be in IBAs, and what other incentives should there be? What would you suggest be included in an indigenous consultation processes to allow us to achieve Chief Louis' laudable goal that we “rebuild, not only socially but economically.”

I guess I'll start with the panel here. Mr. Perera.

[Channa Perera]

Sure. IBAs are one of the things that CEA member companies are doing. I mentioned Nalcor earlier. Among some of the activities or things they included are environmental impact mitigation. That's a major, important thing for indigenous communities, that you will equip them to protect the environment and the local community.

On the economic side, I would say that employment is the top priority for those communities. Many of the CEA member companies put a lot of emphasis on ensuring that the local indigenous people have first priority when it comes to employment. Then, procurement on the supply chain side is very important as well.

Again, Ian can speak to this for OPG. We put a lot of emphasis on procurement efforts. As I said before, education and training are very important to our member companies, because we want to make sure that it's not just about what is there now but also about the future.

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

Should those education and employment strategies be baked right into the benefits agreements?

[Channa Perera]

Yes. Some of those are included. In the case of Nalcor the training and education components are included.

That's important, because we also need to think about the future. It's not just during the construction phase of a project, but what's going to happen five, 10 or 15 years from now. We need to be sustainable as we look at delivering value to these communities. It's not a one-time thing, but over time—

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

It's over the life cycle of the project.

Mr. Newman, before we hand it back over to Mr. Graham, do you have anything to add?

[Prof. Dwight Newman]

No, nothing specific on this particular point.

[David de Burgh Graham]

How much time do I have, four minutes? Thanks.

You said the Canadian Electricity Association has existed since 1891, which I believe would make it among the oldest industry associations in the country.

At what point did the CEA start worrying about indigenous rights and consultations?

[Channa Perera]

Even before the association, I must mention that our members have been working with local indigenous communities for decades. OPG is a very good example of that, and Manitoba Hydro, Nalcor, Nova Scotia Power and B.C. Hydro. Many companies across the country are working with indigenous communities.

In 2016, the CEA board of directors, the CEOs of all of these companies, agreed to go beyond their local activities. They wanted to indicate their commitment at the national level.

One of the things we do at the association is to bring these members together and share best practices, somewhat like what you are doing right now, trying to understand what's happening across the country in terms of best practices. We do that with these members around the table and we share what each other is doing.

I would say the commitment goes back many decades, but at the association level, during the last five years, we have been putting a lot of emphasis on indigenous activities. We have been meeting with indigenous leaders. I personally had the opportunity to go to Yukon and meet with people such as Peter Kirby, who has a great hydro-power project in northern B.C.

We try to learn and we try to educate our members about what's happening across the country as well.

[David de Burgh Graham]

Speaking of your members, are all the CEA members on the same page on consultation, or do you have a wide diversity of opinion among your members? For that matter, how many members do you have?

[Channa Perera]

We have a very diverse membership, 37 member companies. They are mostly large-scale companies such as OPG, Hydro-Québec, and so forth.

I'm not in a position to say that we agree on every single point. One of the issues that came up was one approach to dealing with diesel.

The point I want to make when we look at these communities is that every community is different. If you go to northern Canada and you see one northern community, the next community is totally different. There isn't one cookie-cutter approach. We need to understand what's important to those local communities and the indigenous leaders there.

Again, going back to your question, I'm not able to say we're on the same page on every single thing, but it's about developing mutually respectful relations with individual indigenous communities.

[David de Burgh Graham]

Have you found any consultations that have directly resulted in the project being cancelled or significantly changed?

[Channa Perera]

For the most part, because of that relationship and because we have invested in talking to community leaders and working with them and building trust, we have been quite successful in our relations with indigenous people. OPG again is a very good example of that success.

Ian can speak to the fact that they have settled some 22 grievances—