Natural Resources Committee on April 2nd, 2019

[Shannon Stubbs, Conservative, Lakeland, AB]

Thank you, Chair.

Thanks to both of our witnesses for being here.

I'm from the Treaty 6 area. I'm very proud to represent a total of nine indigenous and Métis communities. Almost all of them are actively involved in resource development, responsible oil and gas development, and supporting pipelines.

Chief Isaac, I know you've worked with a number of the chiefs from my area, such as leaders of the Frog Lake Energy Resources Corporation and others, who talk about the importance of resource development to indigenous communities and to future generations of indigenous communities, and also about the importance of ownership and direct involvement in resource development.

I do find it curious that we, at this committee, are doing a study on the best practices of indigenous communities when a bill that very much impacts that issue is in the Senate right now. Chief Isaac, I wonder if you have any comments about the scenario in which we find ourselves, which is that Bill C-69 is in its final stages of becoming law—unless it is stopped by the Senate—and this committee did not have an opportunity to review that piece of legislation.

You remarked originally on the association of chiefs that initially supported the legislation, but now yesterday or last week, I think, have come out opposing it. We can get into a little bit more of the details if you like, but I wonder if you do consider it to be a best practice that legislation like this could be on its way to completion right now without any of the committees having done a study on indigenous engagement. Do you have any comments on the degree to which you or other indigenous communities were consulted in the development of the legislation?

[Chief Isaac Laboucan-Avirom]

Like I said, my interpretation or definition of consultation—the ruling of consultation—is meaningful consultation, where I know exactly what the other side of the table is talking about. You could spin it around, shake it upside down and turn it all around, but I know exactly what they're about.

I'd say absolutely not, just on that example of how the chiefs at one meeting supported it, not fully understanding the consequences of it and now rescinding after having looked at it in more depth, understanding and saying that this has detrimental effects not only to them, to their provinces, to their territories, but also to the country.

Then, it's in the Senate right now. How did it get that far? How many people have been saying “stop”, “no”, and “don't”? I guess that's a good example of free, informed consent. If we had that mechanism and if it was actually working a hundred percent, it would not have gotten this far. That's my opinion.

Does that help? Is that a good example?

[Shannon Stubbs, Conservative, Lakeland, AB]

Yes, it does. In fact, there has been a broad base of legal consensus that Bill C-69 won't expand either the duty of the Crown to indigenous people or change the rights of indigenous communities and people in the consultation related to major resource projects in federal jurisdiction.

We, of course, agree and have heard the concerns about capacity and resourcing for capacity loud and clear, and we share those concerns. Overall Bill C-69 doesn't meet that need. In fact, the national chiefs council, the Indian Resource Council, the Eagle Spirit Chiefs Council and the majority of Treaty 7 first nations all oppose Bill C-69.

Chief Roy Fox said, “I don't have any confidence in Bill C-69. I am fearful, and I am confident, that it will keep my people in poverty.”

I just wonder if you agree with that statement.

[Chief Isaac Laboucan-Avirom]

I'll support all my chiefs' statements.

Yes, it's worrisome. To me, it feels like the consultation process has just been a checkmark chore, where the actual consultation has not been either adequate or designed for the intent of it.

[Shannon Stubbs, Conservative, Lakeland, AB]

In the international context, not only would Bill C-69 obviously put Canada at a disadvantage, but another bill—Bill C-48, which is the shipping ban on oil off B.C.'s north coast—is another example, in the context of discussing best practices for this study, where I understand there was a limited or complete lack of consultation on the bill with indigenous communities.

I know that you yourself have said, “This tanker ban is not just going to hurt us at the moment, which it's doing, but it's going to hurt future generations.”

I wonder if there is anything that you wanted to share about the process in that consultation on Bill C-48. Also, do you consider it to be a best practice of a government imposing anti-energy legislation on indigenous communities and all Canadians without consulting?

[Chief Isaac Laboucan-Avirom]

Absolutely, it's not a best practice.

How I got involved in that situation is that the first nations from the coast, even from Haida Gwaii, got together. They were saying that they could see tankers going by their territories on a daily basis. This is from them; I'm just kind of restating what they stated. They said there was no actual consultation even with the Great Bear Rainforest. I know there might have been good intentions but those are ideological mindsets. The fishing is going away and they could literally see from their own houses all the benefits going into the States and into the Alaskan ports. Basically, they said, this is where we are in this day and age. The fishing industry is hurting. They just want to make a living. They want to create jobs. They want some income and prosperity to come from these opportunities, and Bill C-48 kind of limits that. That is not to say that we do not care. We absolutely care 110% about any waters—ocean waters, lake waters and river waters. We want to see those things survive and to protect them through our mechanisms.

I'm going to segue back into Alberta—

[The Chair, Liberal, James Maloney]

I'm going to have to stop you there.

Unfortunately, we're out of time.

Mr. Cannings.

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

Thank you both for being here today.

I'm going to start with you, Mr. Benjamin. You mentioned the IFC and its guidelines. As far as I understand it, you said they are more stringent than our legislation here in Canada. How is that reflected in reality? Are those guidelines acted upon internationally, and what would need to change if you were advising the Government of Canada and wanted to reflect those guidelines in our legislation?

[Craig Benjamin]

There is definitely a significant gap in the enforcement of these guidelines. This is one of the problems we see around the world. We often have good laws but weak institutions for upholding those laws. The problem is multiplied when you have indigenous peoples who are the subject of so much racism and discrimination who are at such a great disadvantage in accessing legal mechanisms as this problem plays out over and over again.

There are interesting examples within the IFC system. IFC has published reports on how they've examined and made decisions about funding to particular projects. Chief Laboucan-Avirom talked about the issue of the provincial border being the cut-off point for consultation. Prior to the current guidelines, under their earlier, weaker guidelines, there's actually a case where the IFC looked at the fact that who was being consulted about the downstream impacts of the mining project was arbitrarily limited. They actually stepped in and withheld funding for that very fundamental reason. We do see some examples of enforcement around some basic principles.

My basic advice to the Government of Canada specifically about these performance standards is that there's a fundamental contradiction in being part of advocating for and holding Canadian corporations abroad to this standard through an institution that we helped govern and not having comparable standards in Canada. I think the goal of harmonization and consistency across borders is a good one, but we should seek to harmonize upward rather than downward. This standard is not an ideal standard, but we certainly shouldn't be falling below it domestically. A key piece is simply that recognition of consent, not only as a process but as an actual legislative requirement, to say that as a piece of approval there should be documented evidence that consent has in fact been obtained when there is a risk of serious harm. I think this is something perfectly possible to proceed with in Canada. We have a history in Canada of exactly such negotiations with first nations. You can look on Natural Resources Canada's website and it has a list of the vast numbers of impact benefit agreements that have been reached. We have the evidence that agreements can be reached. The difference that's being proposed is to make such an agreement a requirement so it strengthens the hand of indigenous peoples when they are at the table knowing that the other party can't simply walk away.

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

Chief, would you like to comment on that?

[Chief Isaac Laboucan-Avirom]

I just want to interpret what Mr. Benjamin said, that Canada operates on a “do as I say, not as I do” process. That's just what I interpreted there. That does have to change.

I like how he brought up the provincial barriers. When the treaty was signed, we were signed before the provincial boundaries were made. Now there's either—don't take this the wrong way, but—a colonialism tactic or our way of safeguarding our own traditional lands.

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

I will just follow up, Chief, with another question. We're talking about downstream effects on dams, whatever, on the Peace River. We have linear issues, especially in the oil and gas industry where we have oil and gas being produced in northern B.C. and Alberta and shipped to the coast. We have different first nations along those routes that might be impacted differently. We have nations like yours that may benefit from those resource developments whereas you might have a first nation on the coast that is concerned about the impacts of marine transport, for instance. I've talked to first nations people in northeastern B.C. who have concerns about fracking and the use of water in gas, whereas the first nations on the coast are very much in favour of those projects that ship it out. It seems it can go both ways.

I'm wondering how you would see resolving those issues, when you have different first nations with differing concerns and opinions about whether resource projects should go through. How can we resolve that?

[Chief Isaac Laboucan-Avirom]

That's a very big question. I can't answer that one in 10 minutes, but I know exactly what you mean: I live in the Peace River area. In the Grande Prairie area, which is three hours from where I live, they do a lot of fracking for the gas.

I'd like to say we've got to somehow invest and learn more in innovation. I've worked in the oil and gas sector and I know there have been different innovative things designed every year.

At the end, where the ports are and where the nations are on the coast, I understand why they see it as a good benefit.

One of the ways I look at it is that in some situations—excuse me for my language—we're damned if we do and we're damned if we don't. What is the greater good between the two evils, so to speak? That takes us back to thinking about international best practices. Internationally we are dealing with climate change. Politicians and industry might not like to use those words, “climate change”, but if we were to stop all of the automobiles, all of the carbon footprints right now, we would not necessarily slow down climate change. We have to be innovative.

I know if that gas gets to China and India, it will actually lower global emissions. I think that education needs to be out there. I would like to say that you don't need to use as much water in the fracking. As I said earlier, water is way more valuable than oil. I think if we have that mindset, our scientists and our technical people might be able to find a way.

[The Chair, Liberal, James Maloney]

I'm going to have to stop you there, Chief.

Mr. Tan.

[Geng Tan, Liberal, Don Valley North, ON]

Thank you, Chair.

Chief Isaac, you mentioned in your presentation that there are some interactions or collaborations between the government and your first nation. In your opinion, in what areas do we collaborate well and in what areas do we still have to work hard to overcome some challenges?

[Chief Isaac Laboucan-Avirom]

I do know that there's been a willingness to work together more. If there's a measuring stick for the last 20 years, we are doing better today than we have in the last 20 years.

When I think about forestry, there has been more scientific evidence and areas where we are trying to do a lot better, not just clear-cut, for example, but create some sort of sanctuary for animals, safeguard the creeks, etc.

When we do forest harvesting in our territory, because we do the cutting, we are able to more easily tell the companies not to cut the birch tree if they are going after the spruce tree, even if they need firewood, etc.

For the oil and gas sector, my territory had one of the largest oil spills in Alberta in 2011. What I have been saying ever since then is that we have to improve standards. As a treaty standard, I need to be able to drink that water, eat that moose and harvest those herbs. The way the standards are right now, if you spill four million litres of oil and you only clean up two million litres, then the energy board says that, yes, it's cleaned up. That has to be improved. If you spill four million litres of oil, then you clean up four million litres.

[Geng Tan, Liberal, Don Valley North, ON]

As a chief in your first nations community, do you interact directly with the government, entities or other companies that are seeking to develop the natural resource projects in your region, and are your community members also getting involved or engaged, or do you think you could speak on their behalf?

[Chief Isaac Laboucan-Avirom]

Absolutely, a little bit of both.

As an elected chief I'm an elected official, so they give me the ability to speak on their behalf. It is in the best interests of my community and I am obligated to be the best that I can be for them. I do invite my elders when I can, and we're even starting to invite youth. In big projects, for example, I will have an elders' meeting and then I will also hold a community meeting.

[Geng Tan, Liberal, Don Valley North, ON]

I have a technical question. You mentioned in your presentation that your community is surrounded by very rich natural resources. I assume that means natural resource projects around your community. When a company starts a project, it always sends in a whole bunch of technical experts to be there on the site. They could be engineers or environmental professionals. They are technical experts, but not necessarily...they are called community engagement experts. Quite often, they are the first people that a local community sees, so they represent the face of the company, or you could say this is how the local community gets its first impression of those companies.

Do you think this is a best practice, and if not, how can we correct this?

[Chief Isaac Laboucan-Avirom]

I think there definitely has to be more time for engagement and more time to build that relationship through the consultation process. All companies are different. Some companies meet minimum requirements, and I think we have to upgrade those minimum requirements to an international best standards requirement.

Yes. Basically, we have the paper coming in and sometimes we have those individuals come in. I let them deal with our lands management staff, and as the project works its way up, then I will start meeting with their corporate leadership.

[Geng Tan, Liberal, Don Valley North, ON]

I guess you have a team to deal with the company—

[Chief Isaac Laboucan-Avirom]

No. My team is not that big and my team is not growing, meaning that I try to get my community members.... I have to educate my community members because they're going to be the ones who are sustainable. Before, I'd have to use money and hire a high-priced consultant and put a lot of money basically out the door. What I want to do is retain that information and those practices within the community.

[Geng Tan, Liberal, Don Valley North, ON]

Mr. Benjamin, the government wants a system that respects indigenous rights, recognizes the national interest and also reflects the commercial realities faced by companies. In your opinion, how can Canada create a fair, reasonable and collectively beneficial approach?

[Craig Benjamin]

I think there is a lot of guidance to be drawn from international standards, such as the UN Declaration on the Rights of Indigenous Peoples, and the interpretations that exist out there through bodies like the UN Permanent Forum on Indigenous Issues and the expert mechanism on the rights of indigenous peoples.

To go back to first principles, I think there are a few key things to be mindful of. One is the fact that we have all inherited a situation where indigenous peoples' inherent rights to self-government over their lands and territories were historically denied. Our laws and practices are built on that foundation. We have to come to terms with that. To ignore that in the process of engagement inevitably perpetuates not only an injustice, but also conflict.

Unfortunately, our current practice is to put the onus on indigenous peoples to launch long and expensive court cases, and to put all these issues in the most adversarial, expensive and time-consuming process possible, where people have to prove their rights exist.

[The Chair, Liberal, James Maloney]

Thank you very much, both of you, for being here. That's all the time we have for this part of the panel.

We will suspend for two minutes while we get the next people in.