Natural Resources Committee on Feb. 19th, 2019

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

Were they the ones directly impacted by potential projects?

[Ian Thomson]

Yes.

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

What was the issue, not enough time?

[Ian Thomson]

Often it was a resourcing question. It was about there not being enough time or not enough resources to fully understand, appreciate and analyze the project. In other cases, they mentioned there was a difference in world views. They felt that their knowledge and understanding was not able to fit into the meetings and the consultations to which they were being invited.

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

What do you mean by “world views”?

[Ian Thomson]

Different peoples have different world views, understandings and values, and some of those world views and understandings weren't necessarily being accommodated. There were certain assumptions built into certain processes where, hearing from other cultures, they did not feel that they were being welcomed into the room as equals.

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

Okay.

Throughout the consultation process, if you look at northern Alberta, in a lot of cases where there is resource going through them, the companies are employing indigenous communities, are probably one of the largest employees in some of these areas. I would also argue that we're a world leader in environmental and labour standards.

Are there any examples you have throughout northern Alberta where communities were not consulted? Do you have any examples you can give us that show there were first nations communities that felt they weren't listened to?

We have examples of first nations communities taking the government to court because of a shipping ban. They did not want this legislation to go forward, and they were not consulted.

Do you have examples?

[Ian Thomson]

The example I'd be interested in sharing is actually from northern B.C., not northern Alberta. It's more about the conditions for workers in the industry and how to create industry camps that are more welcoming and safe for both men and women. If we are serious in talking about increased women's employment in these sectors, more has to be done both by government and by the private sector to deal with some of the safety issues that women face when they work in industrial camps and are still in the minority, looking at what is the culture, what are the safety protocols, how can we make them the most accepting workplaces possible and what occupations are open to women. These are more the priority issues that I've heard of in that part of the world.

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

Mr. Thomson, you mentioned an ombudsperson to look at best practices worldwide. You mentioned that they would have the ability to investigate those that are the bad actors outside the boundaries of the Canadian border. What authority do you see this office or this person having?

[Ian Thomson]

The ombudsperson, as announced by the government, was to have the power to investigate, to ask for testimony and documents, when allegations are brought before them, from Canadian companies operating internationally, to determine whether they are living up to the human rights and environmental standards that Canadians would expect our companies to adhere to when they operate abroad.

[The Chair, Liberal, James Maloney]

Mr. Schmale, you're right on time. It's like you timed it.

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

Okay.

[The Chair, Liberal, James Maloney]

Mr. Cannings.

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

Thank you.

Thank you all for being here today.

I'm going to turn to Mr. Thomson and pick up where Mr. Schmale left off.

You talked a lot about what's happening abroad, in various examples. We were just talking about the proposed ombudsperson. We still haven't seen that person yet, for some reason, after a year, but coincidentally there was an article in The Globe and Mail today about Canadian resource companies abroad and their actions.

We've heard around this committee room that within Canada we have some of the best indigenous engagement and consultation processes around the globe. We still have a long way to go, I think, but here we have Canadian companies acting one way within Canada and yet, many of them, acting quite differently abroad.

Some may say they're just trying to do what's in their best interest, but it's clear from this article that it would be in their best interest to act as responsible corporate citizens abroad.

We have an example of Tahoe Resources in Guatemala, which now has had a very large mine shut down—they are in dire straits because of that—because the Guatemalan government said that they didn't consult with indigenous peoples properly. There are other examples of the same sort of thing happening.

I wonder whether you could comment on the interests of Canadian companies acting abroad and what indigenous engagement policies they're using, what they should be doing and how it can be brought back to this office of an ombudsperson that we're still waiting to see.

[Ian Thomson]

It's clear that indigenous engagement is becoming a major risk for Canadian investors operating abroad. Among the examples you just cited, that of mines being suspended over their failure to adequately consult indigenous populations offers a perfect example of this risk. This is an example in which there is a shared responsibility between the Guatemalan state and the company in question to have done adequate consultations.

I don't think this is entirely on the company, but they're obviously partly responsible for this mine's being shut down and for not having done adequate consultation.

The hope with an ombudsperson, which is different from bringing a particular company to court, would be that some of the learnings from ombudsperson investigations could actually lead to more industry-wide changes. The ombudsperson may be called to investigate a particular case, but if he or she finds that there are patterns developing in the problems that Canadian companies are either creating or are subject to internationally, then some of the prescriptions from the ombudsperson wouldn't only apply to the case they were specifically investigating but could be more wide-ranging.

The hope would be that the ombudsperson would understand what a problem is from a particular context, but that their advice and recommendations would have a ripple effect. Their rulings wouldn't be binding—you're not in a court of law—but I think they would have a certain authority to make pronouncements and recommendations that would be heard across the industry.

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

Some of these cases are in the courts right now. I think there are at least three in Canada that are in the courts. I'm wondering whether you might speculate or comment on the effect that rulings there would have not only upon the Canadian industry but also upon the resource industries around the world concerning the way companies should be acting and the way they should be carrying out indigenous engagement and consultation.

[Ian Thomson]

It's not only NGOs like Oxfam that are watching these court cases closely to see what their outcomes are. I know that many industry players are watching and that governments are watching to understand, if companies can be held legally liable for not respecting human rights internationally, what the consequences will be for their operations, for their investors and for the jurisdictions in which they're operating. It's yet to be seen what the outcomes will be.

The ombudsperson offers a non-judicial path to have allegations investigated and to have cases heard. I don't think we want to close off the option of seeking justice in the Canadian justice system, but not everybody necessarily has the resources to bring a case forward to the Canadian justice system. The ombudsperson would provide a parallel path that would lead to different outcomes.

I am curious to see what the court cases reveal—the ones around Eritrea and around Guatemala. They're ground-breaking, and it's hard to tell exactly what the consequences will be.

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

You also mentioned the United Nations Declaration on the Rights of Indigenous Peoples, how that would be applied to Canadian law and, within that, the concept of free, prior and informed consent. I guess it's a two-part question.

How do you see that effort being applied globally and also even here within Canada—this idea of consent? Does that imply a veto—that indigenous communities would have vetos over resource projects—or is it just the informed consent, the engagement, that is most important?

[Ian Thomson]

Nowhere in the UN Declaration on the Rights of Indigenous Peoples is the word “veto” used. I don't think free, prior and informed consent is a veto. I do think it is a standard to protect the human rights of indigenous peoples. As such, meeting that standard ensures that their rights will be adequately protected. I wouldn't equate it to a veto. I think, in Canada, to the extent that Canada is taking a rights-based approach to its engagement with indigenous peoples....

As Oxfam, we think that is the path that has been called for by indigenous peoples' organizations themselves and by the Truth and Reconciliation Commission's call on both governments and the private sector to use the UN declaration as the framework for reconciliation.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Whalen.

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

It's an interesting panel. I wasn't really sure what to expect, but it seems like there's some pretty good synergy here between the two groups who are coming at this issue from interesting ways.

When you talk about trying to engage in—and this is really for both groups—the gender-based analysis and gendered intersectionalities within indigenous groups themselves to make sure that the groups are properly heard, what approaches do your two organizations take to the problem of bypassing the elected representatives within those groups and looking past the band councils to get to the subgroups within that population? Do you have best practices to suggest in that regard?

[Rumina Velshi]

Let me start off with our processes, and I'm sure Ms. Sauer will want to add to that.

Our commission processes are open to everyone, so we don't necessarily go just through the leaders. Anyone can appear. We get participation from all aspects of the indigenous communities. Certainly, women are just as well represented, if not better represented, in our proceedings.

In order to address some of the concerns that Mr. Thomson has identified, one of the things we do with our proceedings is have them in the evenings, if that's what's more amenable. We've heard, not just from indigenous women, but from women generally, that to make our processes more accessible, that would be helpful. There are other things that we do. As I said, it's open to everyone, and we do hear from all aspects and get different perspectives.

Similarly, when we meet within the community, we make sure that we meet not just with the leaders, but with different representatives within the groups.

Did you have anything to add? No.

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

Mr. Thomson.

[Ian Thomson]

Yes, as Oxfam, we've developed a tool for the private sector to guide how to conduct a gender impact assessment for a project. It's something that was developed by colleagues at Oxfam Australia, and it's been rolled out in various energy-related projects, including some hydro dams and some more extractive sector projects.

It's a four-step process, but the first step, really, is establishing that baseline of what the gender power dynamics are within a local community at the starting point and what impact a project would have to ameliorate or reduce inequalities, or to exacerbate inequalities. So, understanding that starting point is important. I think that each context is going to have a different starting point and different concerns and considerations, depending on what sort of project or development is being proposed.

It's about understanding that starting point and what some of the possible gender impacts of the project are. The gender impact assessment tool that we've developed has sometimes been used before a project is in place. At other times, it's been used after the project has been running for a number of years and local populations are better able to express and document what the gender impacts have been.

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

Ms. Velshi, does the CNSC have a gender-based analysis framework it is engaged in? I know the federal government has some online webinars and most of us have been encouraged, both ourselves and our staff, to take a course in gender-based analysis for policy review. Is there anything specific that CNSC does and should it be part of your compendium?