Natural Resources Committee on Feb. 26th, 2019

[The Chair, Liberal, James Maloney]

Good afternoon, everybody. Thank you for being with us this afternoon.

We have two witnesses. By video conference we have Liza Mack, from the Aleut International Association. With us in the room we have Chief Bill Erasmus, from the Arctic Athabaskan Council.

Thank you both for joining us today.

Chief, I know you travelled a long way. We're very grateful for that.

Each of you will be given 10 minutes to make a presentation, and then we are going to open the table to questions for about an hour. We have time for two full rounds today, so everybody will get lots of opportunity.

I know from our discussions earlier that Mr. Cannings is quite excited about that.

Ms. Mack, I was speaking with Chief Erasmus before you came on the line, and he kindly offered to let you go first, so the floor is yours.

[Dr. Liza Mack, Executive Director, Aleut International Association]

Wonderful. Thank you so much.

Good afternoon, everybody. Qam agalaa. My name is Dr. Liza Mack. Qagaasakung for inviting me to speak with you today.

First I want to thank you for my being able to address this body about this very important topic of engaging indigenous communities when it comes to large energy projects.

As I begin, I would like to introduce myself and tell you a little bit about my background and the organization that I represent.

I am the executive director of the Aleut International Association. Aleut International is one of the six permanent participants on the Arctic Council. We represent the Aleut people, who live both in Russia and in Alaska, at the Arctic Council and all of its working groups and expert groups, and with many of their projects.

I was born and raised in the Aleutians. We grew up subsisting and living off the land. Our people are Unangan, or Aleut in English. We often say that when the tide is out, the table is set. We harvest. We preserve. We eat many things out of the tide pools and off the reefs. There's an abundance of seafood that actually sustains our communities. We are a coastal people. We've done this for thousands of generations. Some of the things that we harvest and eat include salmon—all five species—crab, halibut, cod and octopus; marine mammals such seals, whales and sea lions; and terrestrial animals such as caribou. We also eat different migratory birds as well as birds that live in and around our communities.

I left my hometown of King Cove when I was 15 to go to boarding school. This was the start of my education outside of our community. My educational background is in anthropology, cultural anthropology. I have both my bachelor's and my master's degrees in anthropology. Also, I just finished my doctorate in indigenous studies at the University of Alaska Fairbanks.

Most of the research that I did was with Aleut leaders and fishermen from around the state of Alaska. For my master's research, I analyzed the State of Alaska Board of Fisheries testimonies, and I also interviewed testifiers to see whether or not they felt their testimonies contributed to the regulations that were passed. In Alaska, the management of our resources, and especially fisheries, is sometimes very contentious, and the system is often daunting for people who are unfamiliar with the process.

Part of the reason this is important to the conversation today is that these types of decision-making processes are things that people in local communities around the Arctic need to be involved in as we move forward with some of these projects and some of these regulatory issues.

In my dissertation research, I was working with communities and also with Aleut leaders, and I helped to develop, implement and analyze a survey that had to do with natural resource management laws in Alaska. A lot of these laws actually affect local people in very unique ways. There are a lot of different boundaries, a lot of different guidelines, that people need to be aware of and cognizant of. There are also our cultural practices, the things we've done within our communities for generations. Understanding how these two worlds work together is very important.

Throughout the process of all of my background and research, and all of the things that I've been doing not only in this capacity but also as a researcher and as somebody who is involved with cultural revitalization and language within my community, there have been several issues that I think we could benefit from by mentioning them here.

We're starting to talk about energy projects and how to engage with indigenous communities. As I said, even though I am from the community, and that's where I did my research, there were certainly things that came up that I really hadn't put a lot of thought into until I was in the midst of that.

I think you have some of my talking points in front of you. Really, I tend to just talk and not write things down. I hope the little points here are things you guys can see.

A big one was early engagement. Speaking to a community when a project is still an idea is very important. There are different issues about whether or not the community is even interested in projects.

Before I went back to school to pursue my bachelor's, my master's and my doctoral degrees, I worked as the economic development coordinator for the tribal council in my community. Part of that work led me to surveying people to see what kinds of things we were interested in pursuing as a community.

Some of the obvious things that came up were tourism and various things of that nature, but many people in my community weren't actually interested in those. They didn't want a lot of people coming into the community. Just having those kinds of conversations at the onset of some projects is really important and can't be stressed enough.

Also, there's the question whether or not various projects are appropriate. There are people who have different belief systems, and so understanding what is important at the community level is something that I think should also be looked at.

Also, with early engagement we could look at whether some people might be able to help with instruction about whether a plan is actually a good one. Looking at things from maps and other ways in which information is presented when you're starting the planning isn't necessarily the same as accessing the knowledge that is held within a community. A thing isn't going to be accessible just because the project is on, for instance, a flatter part of the topography; you may not know that this is where there are bears or where there's a swamp. Those kinds of things are really important for planning some bigger projects and planning for projects within a community.

The next point concerns communication. To us it would mean speaking with the community members and also being available to answer questions in more than a “check the box” kind of way. It's not just one-way communication, but also communicating and being accessible to not only describe what you see is going to happen but being available for those conversations is concerned. People put a lot of stock in being heard.

This speaks to the next point I noted regarding cultural expectations and whether we're looking at community participation and the resources that are around these projects and the way those resources are going to be affected. I alluded to the way people look at some energy projects. An elder once had told me that he didn't believe that all of the wind farms were actually important. He thought they were disrupting not only the flow of the way the birds were migrating, but other sorts of things like that.

It's just a matter of taking a minute to understand the potential effects. As indigenous people, in our communities we look at things from a very holistic perspective. Everything we do affects all other parts of our communities and cultures. The cultural expectation of what is important to the community is, I think, really important to think about. So is understanding of the goals of the project. Are the goals of the project to increase capacity? Are they to generate income? Are they to reduce the way we are dependent on fossil fuels? Having those goals set out with the community is certainly very important.

When we talk about the goals of a project and how they're going to affect people at the community level and how important it is to engage indigenous communities, one really big thing that we have to think about is that there's a very limited capacity to engage in our communities both financially and in terms of time.

Even in my own research, being a very small project, some of the things that came up were that there are very small populations. Within these small populations, there's an even smaller subset of people who are kind of champions in the communities and who are trusted to fulfill leadership roles. People trust them to speak for them at different levels.

It's making sure that is looked at and also supported. By supported, I mean that it's important to give people funding so that they have both the time and the capacity to provide very thoughtful and meaningful engagement with the project.

Finally, the last note I had was that the timelines with these sorts of projects are culturally sensitive. It's understanding, for instance, that our region in the summertime is very busy. That's usually when people go out and do research, and they start building projects and different things. That's also when people are fishing, when the salmon are running. That's when these other things are happening.

As kind of an anecdote, when I was doing my dissertation research in my communities, I had planned to do the surveying in the summer. However, people were just not home. I would call, and people would say they were out berry picking and didn't expect to be home until the next day, or whenever. Unless I was willing to go and pick berries with them.... I mean, it may seem like you're not working or you're not doing what you have set out to do, but those kinds of things are [Technical difficulty—Editor]

I guess I would just say that a lot of these small—

[The Chair, Liberal, James Maloney]

I'm going to have to ask you to wrap up, if you could please, Ms. Mack.

[Dr. Liza Mack]

Okay.

Thank you for letting me mention some of these things to you. These are some of the things that I thought about on the importance of engaging with indigenous communities.

I'd be happy to answer questions. Thanks.

[The Chair, Liberal, James Maloney]

Thank you very much.

Chief Erasmus, the floor is yours.

[Chief Bill Erasmus, International Chair, Arctic Athabaskan Council]

Thank you, Mr. Chairman, for the opportunity to present to you and have this discussion with this important committee.

I am the Arctic Athabaskan Council's international chair. We also are members of the Arctic Council as permanent participants. We represent approximately 50,000 people in Alaska, the Yukon and Northwest Territories. Generally in Canada we're called Dene, but in the books you'll find that the people in Alaska are called Athabaskans, so we have the name Arctic Athabaskan Council.

I want to focus on the existing agreements we already have that need to be put into practice and confirmed. Especially in Canada, we have, as you know, section 35 in the Canadian Constitution Act, 1982, which solidifies and makes clear that the rights we have are constitutional rights and are separate from the other rights that Canadian people have. Based on section 35, then, they are separate from the Constitution's section 91 powers that the federal government has or the section 92 powers that the provinces have.

The country is based on those three main areas. As such, when we're looking at developing a particular resource, whether it's in Canada or the United States, we have to look at the international instruments we have.

I'm originally from Yellowknife. I'm a member of Treaty No. 8. In the early 1970s, we took the treaties to the Canadian courts. Canada's position was that we may have had rights at one time, but because of the treaties and legislation, our rights were extinguished. The court case proved, in what is commonly called the Paulette case, that indeed we have rights, that they continue to exist. Our treaties were peace and friendship instruments between the Dene and the Crown—Great Britain—and not between Canada and the Dene, because Canada didn't have the authority to enter into treaties at that time.

The judgment also went so far as to say that the rights we have need to be protected by Canada and that we still retain title to our lands, so aboriginal title or Dene title exists. That was in 1973. Those agreements need to be put into practice by you as a government, and we include the opposition parties as part of the government when we talk about government.

With that, the relationship we have is based on trust. It's based on those early agreements. There are other agreements that you need to understand and look at.

There is the Jay treaty of 1794, which was more in the southern part of Canada but included all the tribes of North America and Great Britain and the United States. What it did was it encouraged continued trade, barter and sales across the Canada-U.S. border. Unfortunately, Canada no longer supports the agreement, although the United States does. That's primarily because of the War of 1812, when the U.S. tried to annex Canada, as you know. The whole thinking behind that treaty was to stabilize the economy, and that's what you're thinking about, so I think you have to understand that treaty and look at what the doctrine talks about.

There are other treaties that you need to be aware of. There's a recent court decision from December 2018 dealing with the Robinson-Huron treaty between the Anishinabe and Great Britain. They took the treaty to court, and the judgment came down a couple of months ago, a very important one. It talks about the annuities that the people receive through that agreement, which is an annual payment.

The agreement said that the fee would increase over time. It has only increased once since 1874, and it increased from two dollars to four dollars. They took that to court. The judgment came down, saying that the intent was never for that amount to be a stale amount, that it was to be increased. The court agreed to raise the four dollar annuity. To quote an article, “The judge ruled the annuities are to now be unlimited in their scope as they are intended as a mechanism to share the wealth generated by the resources within the treaty territory.” In other words, there is no ceiling on the amount that people ought to get. What's happening now is that these first nations are negotiating with the Crown as to what the increases should look like.

The important aspect here is that these treaties were meant to afford some of the wealth from the land within their territory. It includes the Province of Ontario and the federal government. That whole arrangement now has to get sorted out.

I think you need to look at some of these court cases because it opens up some of the things you're thinking of. I can't provide you all of those answers, but I'll give you some other examples.

The Tla-o-qui-aht land claims and self-government agreement, which came into effect in 2004 after many decades of negotiating, and also the Déline self-government agreement in the Northwest Territories, which was put together in 2016, provides them with opportunities, whole chapters on economics. On international matters the Tla-o-qui-aht agreement provides a whole chapter on how Canada has to engage with them, so it's already spelled out within these constitutionally entrenched agreements. The Nisga'a self-government agreement in the province of B.C. is very similar. The Inuit also have that in the territories. The provincial settings, which are different, set up those arrangements.

There is great concern with the foreign investment promotion and protection agreement, commonly called FIPA, between Canada and China. This agreement gives sweeping authority to companies outside Canada and because of the mechanisms in place to settle disputes, that doesn't give us in Canada the authority we normally would have because of the structure of decision-making. This concerns a lot of our people.

The saving grace—and this is what I think you need to study—is that these original treaties were designed to not only protect indigenous peoples, but to protect everyone in the country. For example, Treaty 11, the last numbered treaty, which was in 1921, goes all the way up to the Arctic coast and beyond into international waters, which essentially settles the question of who owns the Northwest Passage.

Use those agreements to your advantage. That's what they are there for, and I am obviously encouraging you to do that with our people.

It's a given that you're looking at this whole economic question with the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP. It says that coming into our territories, you need the free, prior and informed consent of our people. I don't think we need to comment much on that.

As for some other thoughts, first, we know that some of our first nations, as Ms. Mack said earlier, really don't have the capacity to do the kind of work they want to do. They're slowly getting to the point where impact benefit agreements now are becoming common, but they're not really dealing with the question of wealth or the ownership of the resource. It's a short means to help the communities. It gives priorities to jobs and so on.

I think what we need to do is assist communities so that they can develop industrial development protocols. If an industry wants to come into a particular territory, the protocol defines who they ought to deal with. Is it the chief and council? Is it the elders council? Is it the tribal council and so on? Then there's a framework that everyone can work within.

I know I'm getting short on time, Mr. Chair, so I'll leave that for now. I can add comments as questions come forward.

Thank you.

[The Chair, Liberal, James Maloney]

Thank you both very much.

Mr. Hehr, you're going to start us off.

[Kent Hehr, Calgary Centre, Lib.]

Thank you, Mr. Chair.

Thank you, Chief Erasmus and Ms. Mack, for being with us today to discuss international best practices, how we can move forward on the duty to consult, and how we engage on energy projects that benefit all concerned.

I'll start with you, Ms. Mack. Given your work with the Arctic Council, can you comment on the differences you may have seen or observed in terms of the different ways in which council members integrate the different voices you're hearing from indigenous people and how they then bring them forward to make decisions on projects on a go-forward basis?

[Dr. Liza Mack]

The Arctic Council is consensus-based. Unless there is consensus, it doesn't go forward.

I'm the head of delegation for the Aleut International Association on the Sustainable Development Working Group. A lot of the best practices, including some of the things I kind of touched on, are also reflected in a lot of the Sustainable Development Working Group projects. I think using that as a resource for some of the things you're looking for might be a good place to start. I would suggest them specifically as a working group that represents Arctic people and the human dimension within the Arctic. There are some really good examples there that you could look toward.

[Kent Hehr]

You were mentioning in your discussion with us today that often there are different groups of people within a jurisdiction and that how you engage with them can be a little bit different on many occasions. In your relationship with the Alaskan government and your arrangements there, do they have any formal arrangements that guide their process that are working and that you feel have evolved over time in terms of how that jurisdiction has dealt with major energy projects to benefit both indigenous people and Alaska as a whole?

[Dr. Liza Mack]

We have tribal sovereignty here in Alaska. That means that we are recognized. There is a tribal affairs committee that has been just established at the State of Alaska level. Our last governor, Bill Walker, recognized that tribal governments are our governments and so they do have the opportunity to be consulted. That is very important.

There are also Arctic protocols for engaging with communities, which are written down, and they are out there, especially on the north slope. I know there is basically a format, informed consent, as ways they would like to be engaged. Moving forward, I think that's something that we could all look to being more proactive about expanding, and also due diligence as to ensuring we're talking with local people and the governments there.

You're right that there are multiple stakeholders within a community, and so we appreciate your reaching out to us, as Aleut International. We could certainly help you to get a list of other people who should be involved in these kinds of topics. It's a matter of understanding that it's not only one organization that needs to be consulted, but it's a good starting point and it's also a good way to get that ball rolling and make sure people are informed. People do want to be involved, and they do want to have their voices heard and to be reached out to. Sometimes that's all it is. They want to know what's going on and they would like you to ask them specifically.

It's a good place to say that, as an indigenous organization, we don't speak for everybody, but we do have a way of being able to point you in the right direction, so that people feel their voices are heard.

[Kent Hehr]

Thank you.

Chief, you mentioned the tricky interlay between section 35 and sections 91 and 92 of our Constitution Acts. In your time working with these different interlays, and our government's nation-to-nation relationship efforts with indigenous people, have you seen on the international stage any other nations that wrestle with this interlay, which are doing it in a proactive, reasonable fashion that you can comment on?

[Chief Bill Erasmus]

I think Canada most likely leads in terms of how to deal with indigenous peoples, depending on specific approaches, but then again in some respects we're behind in Canada. If you look at instances in Australia, for example, you'll see they're far ahead in how they deal with national parks. But generally Canada is regarded as a lead when dealing with indigenous peoples, and partly because of the agreements that I referred to. If we followed those agreements, then certainly we'd be the lead internationally.

As indigenous permanent participants in the Arctic Council, we've been able to work closely with the nation states. Generally, the way we look at each other is that we are nation governments, as first nations, indigenous peoples. We are there as nation governments sitting with the nation states. It's, as Ms. Mack said, based on consensus. So we participate to the extent that we can in all the committees and at all levels, and then at the main tables.

A number of the things they have instituted are to recognize us for who we are. Because we've been at the same table now since the mid-1990s, there's a certain trust and a working relationship that we have, which is unique. If you look at some of the ministerial declarations that have been passed—if you go to the website, you'll find all of the information—you'll see there's been a big focus on introducing traditional knowledge, for example, into all of the work of the Arctic Council. That's a huge gain.

[Kent Hehr]

Thank you very much, Chief.

[The Chair, Liberal, James Maloney]

Thanks, Mr. Hehr.

Ms. Stubbs.

[Shannon Stubbs, Conservative, Lakeland, AB]

Thank you, Mr. Chair.

Thanks to both of our witnesses for being here.

I'm going to take a few moments to address something. I hope the witnesses will indulge me. Then I look forward to getting to a couple of questions. Also, in our second round, I can continue to explore these issues with you.

Chair, I need to move a motion, which I'm going to do, calling the minister to appear before our committee to discuss the supplementary estimates. As we all know, we have only one committee meeting left before the government tables its new budget. Given what happened last time, with a lack of commitment for the minister to come here and a last-minute cancellation, making it too late to discuss the supplementary estimates, which resulted in a general conversation about mandates and priorities, I'm certain that every member of this committee will support the motion to have the minister appear.

I know you've been back and forth with the minister. I understand that. I have a sense of when you're hoping he'll be able to be here. However, perhaps by moving this formal motion and with our unanimous support, it will compel the minister to respond to our chair and commit to a time to come here.

It's important because in estimates the minister has committed $1.5 billion from the Department of Natural Resources to the Department of Indian Affairs and Northern Development for engagement activities related to the Taltson hydroelectricity project to support indigenous engagement. Certainly in the context of our study on this very issue, having the minister appear to discuss it would be top of mind to all government members here.

Of course, the Minister of Natural Resources has also committed over $17 million for the National Energy Board reconsideration and the additional indigenous consultation they're required to do on the Trans Mountain expansion.

It's our view that Canadians obviously deserve to hear how that money is being used and if it's being used, and to ask questions. It's our responsibility to ask the minister questions on behalf of all Canadians, who we represent. If there is full confidence in the Minister of Natural Resources, there should be no hesitation in supporting this motion and calling him to appear, to be accountable for these funds. Of course, that's his duty, certainly in light, too, of the ongoing uncertainty around the Trans Mountain expansion and in the context of the recent report from the NEB, which was the longest, costliest and most redundant option that the minister chose after the Federal Court of Appeal ruling.

Also, in the context of the Liberal cabinet, it already seems to be indicating that they might take longer than the 90 days after the NEB report to make another decision and recommendation on the Trans Mountain expansion that now all Canadians own because of the Prime Minister's decisions.

I would expect that every member of this committee would vote yes to having the minister here as soon as possible. Of course, I would think, if any member does vote no, it would reflect a lack of confidence in the Minister of Natural Resources in an attempt to block him from coming here to be accountable to Canadians.

Therefore, I move

:That, pursuant to Standing Order 108(2), the Standing Committee on Natural Resources request the Minister of Natural Resources, and representatives from the National Energy Board appear, at their earliest possible convenience, on the Supplementary Estimates (B); and that this meeting be televised.

[The Chair, Liberal, James Maloney]

Thank you.

As you know from previous meetings and a discussion I had with your colleague before we started today, I've already extended the invitation to the minister to come. I did that when you first raised it two weeks ago.

As you also know, we're only sitting for one week in the month of March. He is more than willing to attend the committee, which he has indicated in the past by appearing, as has the previous minister, every single time they've been invited. It's simply a matter of scheduling.

As soon as I get a date, you will be high on my list of people who find out after I do. He's prepared to come as soon as he's available, but because of our sitting schedule, it's a bit of a challenge.

I don't know if you want to vote on it or not. I don't know that we need to. I think everybody is agreed—

[Shannon Stubbs, Conservative, Lakeland, AB]

Yes, I would like to vote on it.

[The Chair, Liberal, James Maloney]

Okay, then.

[Shannon Stubbs, Conservative, Lakeland, AB]

Exactly to your point, the points you just made are actually what I spoke to in the beginning, before I moved my motion.

[The Chair, Liberal, James Maloney]

Okay, so the answer is yes.

Let me finish.

[Shannon Stubbs, Conservative, Lakeland, AB]

I'm aware of all that, but we don't seem to be making progress in getting an answer, so I'm hoping this will help compel the minister.

[The Chair, Liberal, James Maloney]

He's going to come; it's just a matter of when, whether we vote on it or not.

With respect to the second part of your motion, that the National Energy Board appear, they were just here as a witness on this study a few weeks ago. I don't know that there's any need to have them back.

If there are further questions you have for them, we can probably send them to them in writing.

[Shannon Stubbs, Conservative, Lakeland, AB]

No, there is a need to have them here specifically on the line item in the supplementary estimates that is the allotment of the funding that goes to the National Energy Board for the reconsideration of the Trans Mountain expansion.

[The Chair, Liberal, James Maloney]

Okay.

Mr. Whalen and Mr. Hehr, you both indicated interest in speaking.