Natural Resources Committee on April 2nd, 2019

[The Chair, Liberal, James Maloney]

All right. Welcome back, everybody.

Professor Hemming, thank you for joining us. I understand you're in Australia, and it's tomorrow, so you can tell us what the future holds.

Ms. Leach, thank you for joining us. I understand you can tell us who holds the record for the most goals scored in one playoff season in the NHL.

For those of you who don't know, his name is Reggie Leach, and it was 1976.

[Dawn Madahbee Leach, Vice-Chair, National Indigenous Economic Development Board]

That's my husband.

[The Chair, Liberal, James Maloney]

I remember it.

Thanks very much to both of you for joining us, and to you, Professor, thank you for getting up so early in the morning.

The process is that each of you will have up to 10 minutes to deliver your opening remarks, and then we'll open the floor to questions. I may interrupt you if we get close to the time threshold. I will be doing the same to people asking you questions as well.

With no further ado, Ms. Leach, since you are here, why don't we start with you.

[Dawn Madahbee Leach]

Good afternoon, and thank you for the invitation to speak with you today.

I'd like to take a moment to acknowledge that we are gathered on the traditional territory of the Algonquin Anishinabe peoples.

I speak to you today as the vice-chair of the National Indigenous Economic Development Board. Our board is made up of first nations, Inuit and Métis business and community leaders from across Canada, whose mandate is to advise the whole of the federal government on indigenous economic development.

The board believes that reconciliation should begin with economic empowerment. In fact, we published a report entitled “Reconciliation: Growing Canada's Economy by $27.7 Billion”. This report found that closing the gaps in economic outcomes between indigenous people and the non-indigenous population would result in an estimated increase of about $27.7 billion annually in Canada's GDP. You can find that report on our website. We would be able to achieve that if our people were employed at the same level as mainstream Canadians. An important element of this economic empowerment includes being meaningfully involved with the active engagement of indigenous communities concerning natural resource developments on our traditional territories.

On behalf of the board, I would like to offer information that may assist you in your study on international best practices for engaging with indigenous communities. The work of your committee is timely as the international Organisation for Economic Co-operation and Development, OECD, is currently undertaking its own global study of how indigenous communities can be linked to economic development opportunities in their traditional territories and regions.

The OECD launched its first-ever indigenous-specific study in late 2017. The study looks at leading practices worldwide on engaging with indigenous peoples and linking them to regional economic development. The report will be published later this year. This initiative is being undertaken in partnership with several countries that are members of, or seeking membership with, this international organization. On behalf of our national board, I have been the champion of this initiative with OECD as a means to gather critical data that can help shape and inform Canadian policy in establishing the meaningful engagement of indigenous people in Canada.

I was asked to be one of the Canadian peer reviewers of the Australian case study mission, so I'm really pleased to be on this panel with my counterpart there. My involvement in the study mission started in Canberra, the Australian capital, and then took me to Western Australia and the Northern Territory regions of the country.

One of the leading practices I found there was the success of the aboriginal procurement policy, which has produced significant results in terms of contracting indigenous businesses through more than $1 billion in contracts to more than 1,200 indigenous businesses there.

Another example of the success due to the procurement strategy is in Australian mining companies. For example, Fortescue Metals Group Ltd procures services through Supply Nation, Australia's leading database of verified indigenous businesses. They recently reached the $2-billion level in procurement services from indigenous businesses. Canada needs a better indigenous procurement policy and an indigenous-led entity to provide a verified database of indigenous suppliers.

Another good example in Australia that I was able to see first-hand is the work of the Gunyangara people of the East Arnhem Region in the Northern Territory. This is the only indigenous community in Australia, and possibly in the whole world, that has 100% ownership of their own mine. Their arrangement with Rio Tinto, which is the purchaser of the bauxite produced by the community-owned Gumatj Corporation Ltd, is a model for many mineral resource initiatives going forward.

The community is a great example of sustainable development. As they reclaim the land where they remove the bauxite, they have planted a nursery and built forestry operations. They produce a hardwood tree that they use in the sawmill they've started, and they also manufacture furniture with that wood.

However, indigenous people are not sufficiently and meaningfully engaged in regional development. Engaging indigenous people would mean they could potentially benefit from regional development or they would designate large regions of lands and resources as protected from exploitation. I suspect there is a fear that this would result in fewer revenues for the financial coffers of government and industry.

Indigenous people recognize the need for important minerals that support important global needs. We recognize that it's in all elements of cellphones and cars and the technology that we use. As such, many are interested in business partnerships to not only reap a fair share of economic benefits but to help ensure that resource development is done sustainably through investing in the latest technology and innovative processes with proper oversight in place.

One of the main initial findings of the OECD across the case studies is that governments should ensure participation of indigenous people in decisions about projects that affect their traditional territories through three main actions.

First is supporting and encouraging project proponents to engage in dialogue and meetings with indigenous people prior to submitting projects for approval and agreeing up front on the terms and procedures for engagement.

Second is increasing the scope of environmental impact assessments to include traditional knowledge and socio-cultural issues and to assess the cumulative and wider impacts of projects on indigenous people's cultural values and traditional activities.

Third is developing a national framework for consultation with indigenous groups about project development that seeks alignment with UN international standards of free, prior and informed consent. This must include reduced or no costs to indigenous parties, broad and early consultation with indigenous lands rights holders and clear and informed processes and opportunities to present and partner on fair alternatives.

I had the opportunity to share my own experience at an OECD meeting in Darwin, Australia, last November. I believe that a lot of what I shared with that audience in regard to the involvement of indigenous people in mining projects is applicable to the discussions here today regarding the involvement of indigenous people in energy projects.

As I am from northeast Ontario, a hub of mining activity, I believe it is important to help all parties make informed decisions, including indigenous communities, mining companies and government.

I served on my first nation council, and when we were approached by mining and resource development companies, we would receive reams and binders of technical data and we had nowhere to turn for help. That's why, in 2015, the Waubetek Business Development Corporation developed a new mining strategy to help stakeholders navigate the intricacies involved with resource development.

This aboriginal mining strategy for northeast Ontario outlines priorities in four strategic areas: first, building indigenous knowledge and capacity with respect to the mining industry; second, building mining industry relationships; third, engaging a skilled indigenous workforce; and, four, promoting indigenous business and partnerships.

A key component of this strategy includes the setting up of a centre of excellence on indigenous minerals development, which is a clearing house of technical information for first nations, indigenous businesses, mining companies and government. The centre would provide tools, templates, leading practices, case studies and referrals for legal, financial and environmental expertise.

Companies might go there to find contact information on which communities to engage with for a particular area that they're looking at, while a first nation might go to find out what is involved in mining exploration or the whole value chain or to get referrals for proper legal expertise. The centre will be a first of its kind, not only in Ontario or Canada but in the world.

Overall, I'd like to underline the importance of having indigenous communities included in these natural resource development projects so that our people's knowledge and voice is recognized as vital to this country's development, that all parties involved understand that natural resource projects need to be done in a sustainable way, and for industry to accept that sometimes there will be areas where no development can occur because the area is significant to the indigenous people.

Those are the main messages I want to share with you today. I thank you for your time.

I just want to add one other thing. I'm anxious for Bill C-69 to pass in the Senate.

Thank you very much.

Meegwetch.

[The Chair, Liberal, James Maloney]

Thank you very much.

Professor Hemming, just before I give the floor to you, I understand you may have some speaking notes. Do you intend to distribute them or refer to them in a presentation? If you do, I need to get consent of the table to proceed because they are in English only. If they are just for your own reference, then that's a different story.

[Dr. Steve Hemming, Associate Professor, College of Humanities, Arts and Social Sciences, Flinders University, As an Individual]

I sent them through, and they are to share with people. There is some background material, just to give people an understanding, and some speaking notes.

[The Chair, Liberal, James Maloney]

The professor will be referring to some academic articles, I understand, that have been sent to translation. We just received them. Does anyone object to...?

[Some hon. members]

No.

[The Chair, Liberal, James Maloney]

No? All right, thanks.

Go ahead, Professor.

[Dr. Steve Hemming]

I'd like to thank the House of Commons Standing Committee on Natural Resources for the invitation to present on the topic of indigenous engagement, and recognize the presentation that was just given for its focus on Australia. I'd also like to acknowledge the courage and resilience of sovereign first nations in the settler nations of Canada and Australia. In particular, I'd like to acknowledge the Algonquin Anishinabe people, the Kaurna nation on whose lands and waters I'm speaking today in Adelaide, and the Ngarrindjeri nation, the indigenous nation I will be talking about today.

I am a non-indigenous academic, but I've worked with the Ngarrindjeri nation for about 40 years on various programs and projects.

The Ngarrindjeri nation is in south Australia. It's at the bottom end of the longest river in Australia, in the Murray-Darling Basin region. Ngarrindjeri are water people on the coast, on the river and in the estuarine space. Ngarrindjeri draw on the United Nations Declaration on the Rights of Indigenous Peoples and a set of promises that were made in 1836 by King William IV in the Letters Patent that proclaim the establishment of the colony of South Australia when negotiating with the Australian state.

In South Australia, there's no treaty. There has been some discussion about the possibilities of treaties in recent times, but that's been taken off the table. In general in Australia, no treaties are being negotiated at this time. Indigenous peoples rely on a weaker form of aboriginal title recognition called native title, which establishes a legal process and protection under aboriginal heritage. In some parts of Australia, there are land rights acts that also provide people with some protection, and veto rights in relation to mining.

Today I'm going to be talking about an example of an indigenous-led initiative in the Murray-Darling Basin region, which is the river basin that provides a huge number of resources to Australia in water and irrigation and food resources. It's in the midst of a drought at the moment, which has been ongoing, and a problem of overuse and over-allocation, so there's a crisis in that space, and a focus on trying to resolve issues about how to manage that water resource. The focus is going to be on water resource management, and natural resource management in general, and some of the innovations that led to the Ngarrindjeri nation winning the 2015 river prize for best practice in river management in Australia, the first time an indigenous-led program won that particular award.

“Ngarrindjeri” means belonging to the lands and waters. Ngarrindjeri understand the connection to country; Ngarrindjeri speak as the lands and waters, and not separate from lands and waters. One of the major things that Ngarrindjeri have been involved in over the last 20 or 30 years is trying to educate the border community on their relationship to country, have that wide impact on engagement with government and with industry around the development of resources in Ngarrindjeri country. When there's interest in developing water or mining exploration interests, one of the first steps is to try to educate those people who are interested in the way the Ngarrindjeri identify as country and how that impacts on people.

The Ngarrindjeri in 1995 tried to protect the mouth of the River Murray area, the estuarine area called the meeting of the waters site, in the face of development in that space. That led to a major controversy in Australia called the Hindmarsh Island case, which also resulted in a royal commission into the beliefs and interests of Ngarrindjeri people. Ninety-five Ngarrindjeri people were accused of being liars and fabricators of their own traditions in relation to the lands and waters, and were seen as almost a pariah nation in Australia, so it was very much a low point for Ngarrindjeri people. That particular case affected land rights and native title rights of aboriginal people across Australia.

In 2015, working with government, Ngarrindjeri won the Australian river prize for best practice in management, so there was quite a steep learning curve in indigenous engagement during that period.

Ngarrindjeri leaders decided to work on a campaign of education and negotiation, rather than using legislation and law to establish their speaking position.

In 2000 and 2001, Ngarrindjeri negotiated a new form of agreement with the local council in their region called the Kungun Ngarrindjeri Yunnan agreement. That means, “Listen to what Ngarrindjeri people are talking about.” It's a contract law agreement that recognizes the Ngarrindjeri people as the traditional owners of the lands and waters, and it was groundbreaking in that it was the first time that Ngarrindjeri were recognized as traditional owners of their lands and waters.

In 2009, Ngarrindjeri moved to a whole-of-government agreement with the state of South Australia, a contract law agreement that recognized Ngarrindjeri as the traditional owners. It's like a treaty, in a sense, but it's an agreement that establishes a new relationship and a new set of terms of how to work together. It doesn't dictate what emerges from that agreement, but it sets out a new way of working together.

That agreement allowed Ngarrindjeri to come together with industry groups, government departments and others and start to work on a new regional way of doing business in relation to Ngarrindjeri lands and waters.

In 2009, it was in the middle of the real part of what was called the “millennium drought”. There were lots of proposals to conduct engineering projects and do major works in Ngarrindjeri country, so there was a need to establish a complex way of engagement.

The Kungun Ngarrindjeri Yunnan agreement enabled Ngarrindjeri to meet regularly with the government ministers and the premier in a context of leaders to leaders. In Australia, it was revolutionary for indigenous leaders to meet directly with government and be recognized as leaders of their particular nation.

That led to the establishment of a task force that met every month and brought together government departments and industry groups to present projects and programs to be considered at an early stage by the Ngarrindjeri nation. Resources were provided for the establishment of a program to assess proposals, and then there was a strategic plan developed with the state of South Australia to move forward on managing issues in Ngarrindjeri country.

In a way, that was both a negotiation mechanism and an educational mechanism. Over 17 meetings every month were conducted for several years with government agencies from right across the spectrum. That allowed people to talk together and to start to understand each other and where they were coming from. It was co-chaired by Ngarrindjeri leaders and government, and it provided a great opportunity to start to understand the differences and the similarities between the government, industry and Ngarrindjeri. Ngarrindjeri leaders have seen that as a major success.

Out of that particular agreement there was also a cultural knowledge agreement negotiated with the state of South Australia. Ngarrindjeri negotiated an agreement whereby the state recognized that Ngarrindjeri own their cultural knowledge in any planning and negotiation contexts so that there is security for elders and others to share knowledge in projects where that knowledge is needed to make decisions about whether developments would occur, or whether particular issues would be considered. That provided some certainty for people in their sharing of knowledge. Remember, there is no treaty process in this context. Ngarrindjeri started from a position of wanting a new relationship with the state, a new appraisal of the major issues surrounding that relationship, a fresh consideration of the ways of addressing those issues, and a recognition of the need for Ngarrindjeri and the state of South Australia to sit down and talk differently to each other.

The government supported Ngarrindjeri in that over time. It was a major shift in relations that led to a policy of establishing regional authorities across South Australia and starting some discussions around treaties.

In recent times, we have been working on a process across the Murray-Darling Basin where indigenous interests are being taken into account in planning how water is allocated across the region. What Ngarrindjeri have developed, in that context, is a particular kind of risk assessment and risk management strategy where indigenous interests are factored into the state's risk management processes at the very earliest opportunity.

What we discovered, I guess, was that a lot of the planning that occurs around natural resources, in natural resource management and in other sectors, is governed by international standards around risk management. If those standards don't take into account indigenous nations' aspirations, values and knowledge and the consequences of acts on their country and people, then there's a part of the chain of planning that's missed out right from the beginning.

At the moment, we're trying to work on a way of adapting Ngarrindjeri risk management strategies to develop a new set of strategies in the state, where the state actually conducts risk management from the beginning that takes into account the effects that any particular decision might have on Ngarrindjeri lands and waters and on Ngarrindjeri people. That's considered as a holistic process.

In a way it's an assessment of the impacts of colonization.

[The Chair, Liberal, James Maloney]

I think I'm going to have to stop you there, Professor. We're a little bit over time.

Mr. Graham.

[David Graham, Liberal, Laurentides—Labelle, QC]

Professor, if you wanted to wrap up for a couple of seconds, I would be happy to let you do that.

[Dr. Steve Hemming]

I was just finishing on that note about risk assessment. I think one of the things that is really important to take into account is that in the forward planning for incorporating indigenous nations' aspirations and values into a co-operative plan for a state like Canada or for Australia, there has to be an engagement with indigenous values in risk management at all levels. Otherwise, people are left out of the early stages of planning, and there's always a process of catch-up.

That becomes an assessment of colonization. So, in any given example—education or natural resource management—if an indigenous nation has a process of risk management or risk assessment of that action, then there's a way forward for identifying what needs to take place in a strategic way.

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you.

You talked about what the Hindmarsh Island case. What was actually involved and what happened in that case?

[Dr. Steve Hemming]

The Ngarrindjeri people, particularly senior women and men, tried to stop the development of a bridge and other developments at the bottom end of the River Murray in South Australia in 1994 using heritage legislation. They made the case that it was a sacred area particularly in relation to women's knowledge.

In southern Australia, there is basically an understanding that aboriginal people have lost their traditions and their law, and in particular, too, that indigenous women didn't really hold strong law and play a major role. It was quite a challenge for the Ngarrindjeri, then, to actually make their case that, no, in fact, knowledge and traditions had been passed down, that they were very significant and that women held knowledge separate from men.

That became a major series of court cases. It ended up in a royal commission called by the state of South Australia, which found that the women and men who were advocating these traditions were making them up, effectively. That was something that the Ngarrindjeri leadership didn't accept and continued to challenge up until 2001 in a federal court case on the same issue. It was found that the women and men who were passing on and talking about those traditions were truthful and that there was evidence that could sustain those positions.

The area was eventually registered under aboriginal heritage, and the “meeting of the waters” is now seen as a significant area on the River Murray. I don't know the stories and I'm not privy to that female knowledge, but effectively it's a reproductive area that needs to be looked after. If that area is healthy, then the whole of the River Murray-Darling Basin is healthy, as are all of the people. It's a litmus test for health of the river, and as people know across the world, those areas are important.

I guess that was a case where indigenous traditions were tested with the worst possible outcomes, but people didn't give up on that issue. The state of South Australia and the local council have come to agreement and work together with the Ngarrindjeri now, and there's a respectful relationship.

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you.

We know a lot about the impacts of climate change now. We've seen what you refer to as the millennium drought in Australia. We've been hearing about massive heat waves across Australia in the last few months. Does that have impacts on the relationships with the indigenous peoples, for better or for worse?

[Dr. Steve Hemming]

I guess what indigenous peoples are trying to do is actually be heavily involved in the planning and the research to try to provide solutions. Indigenous peoples know their countries really well, know when climate change is having an impact and have been arguing for those issues.

The Ngarrindjeri formally recognized the Kyoto protocol back in 2006 and understand the importance of their country to other parts of the world, so that issue about connection, relationship and climate change is very important to indigenous peoples.

There is a lot of work going on between indigenous nations in Australia and scientists and governments to try to address those issues. However, at the moment there's an impasse in the Murray-Darling Basin region and the river is a very sick space, with a lot of fish kills and flows that are really impeded. There's a need to negotiate a better outcome at a federal level.

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you.

I'm going to go to Ms. Leach for a few minutes. You talked about the Australian aboriginal procurement policy, which I thought was really interesting. Does it survive international obligations, and is it a “buy indigenous first” policy? Does it cause any problems with international relations, or does that country have very little problem pursuing this option?

[Dawn Madahbee Leach]

With the Australian procurement policy, they have higher levels of set-asides. I think the fact that they have a source for accessing business information through that entity called Supply Nation really helps with the procurement policy there.

I have had a look. I brought copies of it to my counterparts here in Canada looking at procurement. I think the process for registration is a bit easier, but there are some limitations in Canada's procurement policy in many ways in that the set-asides are only for areas that have a significant indigenous population; but there are indigenous people right across Canada located in urban centres as well who could benefit from accessing the set-asides that may be available for them. As for that $27.7-billion report that I mentioned earlier, if we could build more business opportunities, that would help to make that report a reality.

[David Graham, Liberal, Laurentides—Labelle, QC]

I'm thinking of business opportunities. You had mentioned the verified indigenous business database in Australia. How long has this been going? Are there a lot of businesses that are not registered? Is that very comprehensive? Is there a way of knowing?

[Dawn Madahbee Leach]

I'm not too sure exactly when Supply Nation started. I don't think their procurement policy is as old as Canada's indigenous procurement policy. I think it's much newer. I believe that organization has been around for I would guess around eight or 10 years, something like that.

[David Graham, Liberal, Laurentides—Labelle, QC]

Professor Hemming.

[Dr. Steve Hemming]

That's about right. We work with Supply Nation. One of the things that indigenous nations also negotiate is to have clauses in procurement policies in their region that actually specify that the first businesses that should have an opportunity should be the businesses associated with that particular nation in relation to those lands and waters. Supply Nation doesn't necessarily specify that aboriginal companies need to come from those particular spaces as far as I'm aware, particularly in South Australia.

There has been negotiation around those issues, but the shifts in procurement policy have been a major innovation at a federal level and at the states levels so that [Technical difficulty—Editor]. They have been very active in negotiating procurement and also trying to change the system to suit local and regional opportunities.

Having the capacity to actually take up those opportunities is always the difficulty. In South Australia there's a policy that says that projects up to, I think, $200,000 are first provided to indigenous businesses in that particular region—that would be privilege. So there are particular caps on amounts as well.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Schmale.

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

Thank you, Chair, and thank you to our witnesses for appearing today. I appreciate that.

I will start with Ms. Leach. In 2016, the National Indigenous Economic Development Board said—this was your statement—that economic reconciliation is not only fair but the right thing to do, and there's a strong business case for it as well, which I tend to agree with.

It also states that Canada's economy would grow by $27.7 billion “if barriers preventing Indigenous Canadians from participating in the Canadian economy were removed.”

Can you give us a picture of what this would look like? In particular, when you mentioned your support for Bill C-69, was that in the mining perspective only, or oil and gas as well?