Natural Resources Committee on April 2nd, 2019

[The Chair, Liberal, James Maloney]

Thank you all for joining us today. It's been a while since we've been together. I can tell just by everybody's demeanour just how much they miss being here. We're glad to be back together. I'd like to thank our two witnesses in the first hour.

From Woodland Cree First Nation, we have Chief Isaac Laboucan-Avirom.

From Amnesty International, we have Craig Benjamin.

Thank you both for joining us today. The format is that each of you will be given up to 10 minutes to deliver your opening remarks, and then we'll open the table to questions from around the table.

I will open the floor to either one of you, whoever wants to go first.

[Chief Isaac Laboucan-Avirom, Chief, Woodland Cree First Nation]

Tansi. Kinana'skomitina'wa'w.

It's a pleasure and an honour to be here. My name is Chief Isaac Ausinis Laboucan-Avirom. I'm from the Woodland Cree First Nation. I was grand chief of the Treaty No. 8 territory not too long ago, grand chief of my tribal council, but today I'm here just as chief of my first nation. I'd like to say that I know that this is a good effort to do, but this is not in consultation with other first nations. I don't want to be accountable....

As for Woodland Cree, we are surrounded by natural resource activity, from oil and gas development to forestry to green energy projects like Site C. There are always negative and positive impacts when doing resource development, but we're in a day and age in which there has to be more accountability to first nations communities and to the environment. We have to make sure we're making good decisions so that we can have sustainability and so that generations of our children can grow in a country that is not fully polluted and that still has healthy jobs for people to get to.

You have to forgive me; I'm supposed to be on spring break, and my executive assistant is on spring break, so I'll be jumping back and forth in some of my notes here.

Companies should be encouraged to develop some understanding of the legal and constitutional rights of first nations. In Canada, first nations were not defeated in war. We have treaties. These treaty rights are constitutionally protected. Many international companies do not understand this, and they come from different perspectives. From my understanding of this, sometimes it gets very difficult when we are dealing with this mindset. We have to re-educate them and tell them who we are and why we have our rights. A best practice would include an educational component for international companies to understand the landscape in Canada so that first nations don't have to consistently recreate this work.

You know, one of the biggest struggles for first nations is that we are always looking for better and better human capacity. As I look around this room, I know that some of the best mindsets in Canada are here. As a first nations chief, sometimes I'm obligated to work with some of the best on the other side of the table, where I'm going against people such.... They used to be Shell, CNRL...where they have some of the best minds money can buy.

In order to have meaningful consultation, first nations need to have the capacity to understand the technical aspects of the projects, communicate information to community members, and gather information from community members and knowledge-keepers. This takes much more funding than is currently offered by Canada. The nation spends a lot of time and energy building the case for capacity funding and negotiating capacity funding, etc. The time and energy would be better spent actually engaging in the consultation and the search for accommodation measures. Best practices should include a requirement to provide adequate funding, which could be expressed as a percentage of the amount the company expects to spend on environmental, geotechnical and other types of studies.

I have the example of Site C. I'll be jumping back and forth between oil and gas and other resource departments. I had lawyers come to my nation one time, saying that they wanted to build Site C. My nation does not have monies to spend on lawyers. We'd rather build houses and put money into education and the elders. One of the questions I asked the Site C legal team was around what environmental impacts would be caused. They said, oh, there won't be much. Well, they'd be extinguishing two species of fish in the reservoir, the Arctic grayling and the goldeye. It doesn't take a university individual to understand that this has a direct impact on other ecological systems. Those are feeder fish for bigger fish, etc. Woodland Cree at that time did not have a million dollars to spend in the courts, so it's something.... And then also through the consultation process, that the borders between Alberta and B.C....said that the consultation process was basically a no-go zone.

Indigenous knowledge and input from the community should be incorporated into all aspects of the environment and social investigations into the projects. A best practice would include encouraging companies to look at the inclusion of indigenous communities through project development, design and implementation. Ultimately, the goal of any best practice would be to actually arrive at a meaningful mitigation or accommodation of impacts. When I think of meaningful consultation, that means I know exactly what the other side of the table, the proponent producer, is talking about.

When I look at these bills such as Bill C-69, I see this is just an example of where, at one of my chiefs meetings in Alberta, we condoned it, and then just last week we rescinded it. That's a good example of how it was so complex and misunderstood, and then now we're sitting here today where it's already gone so far in the process. I don't believe there was proper and meaningful consultation on Bill C-48 and Bill C-69, and we're at a place where we shouldn't be at.

In most cases today, the parties have become much better at exchanging information, but there is still a resistance to making meaningful changes to the projects to lessen impacts on traditional land uses and resistance to involving indigenous communities in long-term economic development benefits.

Woodland is one nation that has been working hard to make strong and meaningful partnerships with business to develop business capacities, local employment, etc., but these have to be long-term opportunities not just brush-clearing and construction.

Woodland Cree needs to get into the business of developing and eventually owning resources such as the Eagle Spirit pipeline. I am on the chiefs' committee of that group. I can only talk so much to companies. Yes, they will nod their head and they will say yes, we tried, but if we were actually owners and operators of those companies, then our corporate values would follow that company.

For example, if I'm an owner of a company, I want to say I want to be the best in the world. I want to make that pipeline as indestructible as we can. I know there's technology and the abilities to do that. We're at this meeting today to be the best in the world, and I know we can do that.

It also goes into trading aspects of it. If we had ownership of these pipelines, then we could tell our customers that they need a better environmental standard on the products they develop from our resources.

Best practices would include encouraging companies to dig into business development with indigenous communities to share with them what types of businesses should also be pursued in order to support the project. Companies should also be willing to learn about capacities that different first nations have to offer. If both parties come to the table with a willingness to share information and work together to build first nations' capacity, then we will achieve meaningful accommodation.

Sometimes the feds are typically avoiding absolutely any language in the question that alludes to free, prior and informed consent. There are also quite a few articles written specifically about this within UNDRIP. We know this, especially if we're looking internationally.

There is no perfect international example of projects. However, projects in Bolivia entrenched the rights of nature—they actually used “mother earth” in Spanish—using indigenous law. New Zealand protected the rivers using Maori law. The Sami have a parliament and can pass laws in their territory. If a corporation has personhood, so then should the same things that make first nations....

Project approval currently only represents one culture's law and relations with the land. In order for a project to be truly collaborative and successful from a first nations' viewpoint, it should also respect our culture and our laws too.

That can seem almost impossible when our laws in Canada aren't respected or admitted into courts of regulatory.... If we want projects to go through, then consent is the only way.

[The Chair, Liberal, James Maloney]

I'm going to have to ask you to wrap up in about 30 seconds.

[Chief Isaac Laboucan-Avirom]

Basically I'm here to find a solution and to be part of the solution. There are a lot of misconceptions in the media all the time. As a first nations individual, I think our land, our water, the air and the animals are important to all of us. They are sustainability for future generations to come.

It frustrates me, as a first nations individual, when I have to almost beg for monies when we're living in one of the most resource-rich countries in the world. Why should our people be living in third-class or second-class communities when we are surrounded by natural resources that go into paving our roads, putting in rec centres, and so on?

I have children and I want my children to have the same abilities your children have. I know that a treaty is a nation-to-nation relationship. We need to encourage that to keep going on, and to understand and be more respectful to each other.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Benjamin.

[Craig Benjamin, Campaigner, Indigenous Rights, Amnesty International Canada]

Thank you.

I'd like to begin by acknowledging the Algonquin people on whose territory we have the privilege of meeting today.

I would like to thank the members of the committee for this opportunity to come to speak to you. I would also like to express my appreciation for the opportunity to share the table with Chief Laboucan-Avirom.

The subject of this study is one of great interest to Amnesty International, and to me personally. There are a lot of things I could talk about, but what I'd like to do is focus on one specific example of international guidelines for engagement with indigenous peoples, which is the International Finance Corporation's performance standards on indigenous peoples.

Members of the committee will know that the International Finance Corporation, IFC, is the institution within the World Bank group that focuses exclusively on support to the private sector in development activities.

After the UN General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples in 2007, the IFC undertook a review of its social and environmental performance standards. In 2012 it adopted a dramatically revised requirement for projects potentially affecting indigenous peoples.

These performance standards take a precautionary approach, setting out measures needed to reduce the risk of significant harm to indigenous peoples, regardless of the recognition or lack of recognition of indigenous people's rights in national law. The performance standards do not directly address indigenous people's right to self-determination, nor do the standards address indigenous people's continued right to exercise jurisdiction over their traditional lands. These are matters at the very heart of the UN declaration, but the performance standards leave them to national governments to resolve.

Strikingly, however, even in the absence of explicit requirements to respect and uphold traditional land title and to engage with indigenous peoples as an order of government exercising jurisdiction within their territories, the standards that were adopted by the IFC are still, in many ways, considerably more stringent than Canada's current domestic laws and regulations around resource extraction.

In particular, I would like to draw the committee's attention to the IFC's provisions on free, prior and informed consent, FPIC. The IFC states that FPIC is both a process and an outcome. In other words, it doesn't just call on the private sector to seek consent; it makes consent a formal requirement for its support.

The performance standard specifically requires FPIC in four broad areas: where there is potential for significant impacts on indigenous peoples's identities or the cultural, ceremonial or spiritual aspects of their lives; where there are impacts on lands and natural resources subject to traditional ownership or under customary use; where a project might lead to displacement from lands and resources; or where a project proposes to exploit indigenous people's cultural heritage.

The IFC explicitly states that the process by which indigenous peoples grant or withhold their consent must be a process that is acceptable to them. The performance standard further states that the process must be culturally appropriate and it must engage with the existing customary institutions and decision-making processes of the affected peoples.

This process must begin at the earliest stages of project design and continue through the development and implementation of the project. The performance standard requires that the process and any agreements that are reached be documented. Furthermore, the performance standard requires that a mutually acceptable grievance process be established to address any disputes that could arise over the agreements.

I've mentioned that one of the IFC's tests for whether FPIC is required is the potential for significant impacts. In determining whether impacts are significant, the performance standard calls for consideration of the strength of available legal protections for indigenous rights, indigenous people's past and current relationship to the state and to other groups in society, their current economic situation, and the importance of land and resources to their lives, economy and society.

Significantly, this determination of whether or not the potential harm is significant, and therefore requiring consent, is to be undertaken in direct collaboration with the affected peoples themselves, as opposed to arbitrarily or unilaterally determined by the state or by the IFC.

I also wanted to note, in the context of the current debates around the federal government's proposed new impact assessment regime, that the IFC's performance standard on indigenous peoples and other performance standards adopted by this institution explicitly require the involvement of women in the determination of impacts as well as specific consideration of how the impacts can be different for men than for women.

Canada is one of the founding members of the IFC. Like other member countries, Canada appoints a representative to the board of governors. Additionally, Canada holds one of 24 seats on the board of executive directors, and Canada's Minister of Finance reports regularly to Parliament on the operations of the IFC and other World Bank institutions.

In responding to this committee's 2017 report on the future of Canada's mining sector and your recommendation that Canada promote and improve responsible mining practices in Canada and abroad, Natural Resources Canada responded that it does in fact encourage companies to “adopt best practices domestically and internationally by implementing principles and guidelines into their day-to-day operations” from sources such as the IFC's performance standards.

All of this underlines the main point I want to make, namely, that an institution that Canada helps to govern, and which Canada refers to as a source of best practices, actually sets out a significantly higher standard for engagement with indigenous peoples than the federal government generally requires of itself or of corporations operating in Canada.

Numerous critiques have been made about the insufficiency of the IFC's own enforcement of its standards. This doesn't change the fact that the standards that it adopted and instituted more than five years ago are in many ways more stringent than those in effect in Canada, and that there is a gap in the requirements of corporate engagement with indigenous peoples between what is required of corporations acting in Canada versus those acting abroad. In this case, it is Canada, Canada's laws and Canada's regulations and practices that are falling short of this international standard.

I would be happy to talk about this with you further. Thank you.

[The Chair, Liberal, James Maloney]

Thank you very much.

Mr. Hehr, you're up first.

[Kent Hehr, Liberal, Calgary Centre, AB]

Thank you very much, Mr. Chair, and thank you, Chief and Mr. Benjamin, for coming here to share your stories and information with our committee.

I would first like to say to the chief that I'm from Treaty No. 7, where we share the land with our indigenous brothers and sisters. I know that Métis region number 3 is also very present here. Are you from Treaty No. 6?

[Chief Isaac Laboucan-Avirom]

Treaty No. 8. My wife is from Treaty No. 6.

[Kent Hehr, Liberal, Calgary Centre, AB]

Well, I was never much good at numbers, Mr. Chair, but I'm trying.

You bring up the fact—and I thought very eloquently—about how we have to move to a nation-to-nation relationship and how you just want to see your kids have the same opportunities on your land that we do in other parts of the country. I think that's a fair assessment.

You were bringing up the fact that you're negotiating with Shell, with Cenovus and with other levels of government. Do you feel that you have the capacity or the ability to do that? Or do we need to invest more in that capacity so that you have the tools to shape your own destiny?

[Chief Isaac Laboucan-Avirom]

I'd like to say absolutely. We could definitely do a better job in that area, meaning that if I had the tools and the funding to do that, I think we absolutely could provide a better outcome.

[Kent Hehr, Liberal, Calgary Centre, AB]

Should that be negotiated in a mutual benefit agreement? How do you see that framework evolving?

[Chief Isaac Laboucan-Avirom]

I think mutual benefit agreements are good, but again, if I had the proper capacity behind me, I'd be able to say that more eloquently.

[Voices]

Oh, oh!

[Kent Hehr, Liberal, Calgary Centre, AB]

I get that it's a chicken-and-egg sort of proposition, and I appreciate that.

Recently in your area, the Alberta government announced a new park out there, the Kitaskino Nuwenëné Wildland Provincial Park. It's created out of the oil sands leases from proponents that have been up there. Has that process worked for you? Has that ability to go back onto the land been something that you felt committed to, connected to and consulted on?

[Chief Isaac Laboucan-Avirom]

I'd have to say no, because that isn't a direct area that I've worked in. That might have been in the more eastern area, into the Fort McMurray area, I'm assuming. I just don't have much information in that specific area.

[Kent Hehr, Liberal, Calgary Centre, AB]

I have a question for you, Mr. Benjamin. In your brief time, you went through some very detailed points on free, prior and informed consent and how it relates to indigenous peoples in the development of oil and gas projects, I guess, but resource projects more generally.

One of the things we've been discussing is early engagement: getting in early and discussing what the issues are, what the cultural reference points are that we need to be sensitive to, and what the ecological things are that we need to work with. Is that something that works in international best practices? Is that something that has to be driven home time and time again?

[Craig Benjamin]

As Chief Laboucan-Avirom said, we lack perfect international practices. The practice is more often a negative one than a positive one. But I think you're absolutely right. The earlier the engagement, the better, on all kinds of levels. For one thing, the earlier the engagement can occur, the more likely it's possible to negotiate the kinds of arrangements that were talked about, negotiations where there is genuine mutual benefit, where there is the possibility to walk that line that ensures access to the benefits of development without sacrificing the cultural values, the practices and the traditions. The further down the line the process comes, obviously, the harder it is to adjust to fundamental needs and concerns.

The problem we see all too often is that, in fact, the decisions are set in stone before engagement with indigenous peoples begins. There's the intention already to go ahead with a particular project on a particular piece of land, and what we hear quite often from first nations we work with in Canada—and we hear this from indigenous peoples around the world—is that it's often not necessarily the case that they would be opposed to oil and gas development or a mine somewhere else in their territory, but that choice isn't being given to them. That choice of saying what they can live with, where, and what they would like, where—that very fundamental question of what the priorities are for different areas of land—gets taken away by the fact that they are only approached after those initial decisions are already made.

[Kent Hehr, Liberal, Calgary Centre, AB]

You're a proponent, though, of early engagement.

[Craig Benjamin]

Very much so.

[Kent Hehr, Liberal, Calgary Centre, AB]

Let me ask you this. How do you balance FPIC with an abundance of first nations throughout this great country of ours and being able to get consensus on moving projects forward? How do you find that balance? I'll just throw that open to both of you.

[Chief Isaac Laboucan-Avirom]

Okay. The question is with free.... Can you say that again?

[Kent Hehr, Liberal, Calgary Centre, AB]

It's about free, prior and informed consent. When we've identified a big project that's going through, when the discussions happen, when you've wrestled and grappled with the area, how do you come to a consensus that this project is going to go through or this one isn't? How do you share the balance on those things?

[Chief Isaac Laboucan-Avirom]

In Canada, in Alberta, even in the western provinces, it's a big demographic situation. When you talk specifically, let's say you use that on the oil and gas sector. In my area, it's a lot of in situ steam under the ground and it's not as big a footprint as in the Fort McMurray area. In my area with the free, informed consent, it will be a very different outlook or implications from those in the Fort McMurray area.

I think the broadness of it is the resource that is used in both of those aspects and in many aspects, water. Whether it's topical water or underground water, it should have way more value than oil.

[The Chair, Liberal, James Maloney]

I have to stop you there, unfortunately.

Ms. Stubbs.