Natural Resources Committee on April 4th, 2019

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

I want to emphasize that I do support the minister's coming here and answering some questions away from the estimates, because when we talk about the budget and the estimates, we rarely get to the kinds of discussions we want to have.

To Ms. Gunn in Manitoba, you speak about indigenous participation and free, prior and informed consent.

I come from Saskatchewan my experience there—and I'm sure it's similar across Canada—is that the federal and provincial governments think “indigenous” means reserves, the Métis locals, or the Métis communities only, but not municipalities where the majority of indigenous people may live.

How can we rectify that? How can we have the discussion to clarify that very point? It's really important that the local residents who live in municipalities look to participate, look to have consent and look for the same information. How can we do that?

[Prof. Brenda Gunn]

Thanks.

I think you're absolutely right with the concern you've raised. The areas for which these consultations are viewed to be necessary tend to be the reserved lands. In Manitoba we have some recognized trapline territories that can sometimes be engaged, at least by provincial governments.

The “how” is perhaps a difficult question, but I think it must start with the recognition that the right under international law to participate in the decision-making and the right to give one's free, prior and informed consent is not limited to aboriginal title or reserve lands; it's traditional lands, territories and resources. Regardless of Canadian governments' recognition of indigenous people's lands, the right exists there.

One starting point would be simply a recognition that all of Canada is indigenous lands, so that when projects are being contemplated, one must think about whose traditional territories are potentially impacted and start engaging the people in that way.

I think you're right. I don't believe I highlighted it in the presentation, but when indigenous peoples reside in an urban environment they also have a right to engage in the processes. The processes may not just be limited to consultations in community; there may need to be ways set up to address and ensure the participation of indigenous peoples in more urban centres. Those are all quite clearly required under international standards right now.

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

Do we have those discussions occurring across Canada? I'm curious.

[Prof. Brenda Gunn]

I'm not sure of the extent to which we have them. I think the conversations are perhaps there. Is the legal recognition there that Canada is required to engage in consultation with indigenous people, even when Canadian law has yet to recognize indigenous people's traditional territories? I'm not sure whether it's actually happening. I think you're right to point that out it's not happening effectively.

An example that may speak to this is found in our prairie provinces, where we have the historic treaties and we speak with colleagues who are lawyers in practice. They've told me that different approaches are taken in areas of Canada where there are historic treaties, the numbered treaties, from treaty number 1 through to 11, which Canada still views as indigenous people ceding, surrendering and releasing all rights to the land—indigenous people take a very different perspective on this—compared with the way Canada engages with indigenous people when there is no historic treaty. I think there is a significant difference.

For me, that's some of the problem I was trying to highlight in my presentation—albeit not speaking to it directly—that even if Canada continues to maintain the position that in treaties number 1 through 11 indigenous people ceded, surrendered and released the rights to the land, that is not the perspective of indigenous people. In international law they have a right to engage in processes over their traditional territories, regardless of Canada's interpretation of those treaties.

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

Thank you.

Do I still have time?

[The Chair, Liberal, James Maloney]

You have used Ms. Stubbs's time, now you have your own time.

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

I want to go back to a specific question. The UN Committee on the Elimination of Racial Discrimination said in a letter of December 14, 2018, that proceeding with the site C dam “would infringe indigenous peoples' rights protected under the International Convention on the Elimination of All Forms of Racial Discrimination.”

How should the governments of Canada and B.C. proceed? That's a really good question and a good discussion to have.

[Prof. Brenda Gunn]

My apologies. I don't have that report in front of me. I did appear before the Committee on the Elimination of Racial Discrimination when Site C was brought up, so I'm aware of this report.

From my recollection, the report, including the initial report that came out.... Sorry, I don't have dates in front of me. I think it was 2016, Canada's last review before CERD and the concluding observations of the committee. The report you refer to is the follow-up.

I think there are some pretty specific directions from the committee on what needs to happen, so I would suggest that's the starting point. I don't have the document in front of me, nor do I have access to the Internet in the little room that I'm currently in, so I can't pull it up.

I think, perhaps, a starting place for our concerns over Site C is to recognize that we just need to take a pause until some of these issues are considered and resolved. My understanding, as I've done some work with Amnesty International, is that Site C is continuing to move forward despite all these concerns that are being raised. I think, perhaps, a starting point for the conversation is for there to at least be a pause on some of the developments so that the broader issues that have been raised by the human rights committee can be addressed.

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

Am I done?

[The Chair, Liberal, James Maloney]

No, you have five minutes.

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

The Trans Mountain pipeline expansion is a very sensitive issue for all Canadians across Canada. It is also shown to have split indigenous nations who want to develop the petroleum resources on their lands and get the product to market, and coastal indigenous nations who oppose the project, saying it threatens their economies that are based on utilizing ocean resources.

How can Canada resolve this? Do you have any ideas to recommend, some suggestions and some solutions for moving forward?

[Prof. Brenda Gunn]

Thank you for that question, as well. At least I'm assuming these questions are directed at me.

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

Yes.

[Prof. Brenda Gunn]

If any of my co-panellists would like to jump in, I'm happy to hear international perspectives on these matters.

I'm not sure I have an answer, but I appreciate your highlighting the example, because it hits on one of the most challenging issues, namely, the right of indigenous peoples to participate in decision-making and free, prior and informed consent, which is to ensure that these processes do not create further divides amongst indigenous peoples and do not engage in divide-and-conquer types of tactics. I think projects such as Trans Mountain really exemplify the complicated nature of these conversations when projects are so large, crossing so many territories and engaging so many different people.

One of the questions I often get governments and industry asking is who has the right to say yes? Or whose approval do we have to get when there are so many different people? What happens if not everyone agrees? My answer, which may or may not be the one you're hoping for, honourable member, is that I'm curious to know if the communities who have raised concerns regarding Trans Mountain feel as though they've been heard. And I mean truly heard with regard to the concerns they've raised. Has consideration been given to what the impacts are? Can they be mitigated, and has there been space for real conversation? Or have all of the conversations or consultations occurred in a climate of “this project is going forward. Get on board or get out of the way”?

I fear that on large complicated projects such as Trans Mountain, on which there are people with different perspectives, it becomes easier for Canada and industry to work with indigenous peoples or first nations who are willing to work with them, and to then perhaps ignore or sidestep the concerns raised by other people. I think that's fundamentally a problem.

I don't know enough of the specific concerns that are being raised to say this is the way forward. But I think the right, as contemplated in international law, is about trying to uphold rights and to create space for a real conversation, in which all parties have the opportunity to speak and be heard. I would say that as a starting point for these large projects, we need to make sure all those who are potentially impacted have an opportunity to be heard.

I also think that with projects like Trans Mountain, if I'm correct, there may be a distinction between indigenous communities that are directly impacted by the project, whose traditional territories the pipeline will cross through, and those for whom there may be more indirect impacts. I think that needs to be part of the conversation. I'm not trying to in any way suggest that those who have indirect impacts have lesser rights, but that's just a recognition that there may be different rights at play and so we want to try to get that broader picture.

[Georgina Jolibois, NDP, Desnethé—Missinippi—Churchill River, SK]

It's important to have the minister here so that we can have further discussions.

[The Chair, Liberal, James Maloney]

Mr. Whalen.

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

Thank you very much, Mr. Chair. I'm happy for this opportunity to bring some of our international guests back into the conversation.

Each of the testimonies we've heard raises issues around the UN Declaration on the Rights of Indigenous Peoples, and you've all emphasized the importance of free, prior and informed consent. Can you advise the committee as to how first Norway and then Australia has acted to ensure that capacity is built among indigenous communities to ensure that consultation is in fact informed? How do you build that technical expertise in Norway and Australia to ensure that people are able to participate in a meaningful way and an informed way in what is often a very technical discussion?

[Gunn-Britt Retter]

I have a quick response to the previous question, if I may. I think it's also a question of who has the right to determine future generations' rights to live off the land, just to add to the complication.

Norway has developed, but not Finland and Sweden, a consultation agreement with the Sami Parliament. The Sami Parliament is an elected body of the Sami people. There is one in Norway, another one in Finland and a third in Sweden.

In Norway there is a consultation agreement. An amendment to the act is under discussion now that it should also involve municipalities and provinces, or counties as we call them.

On the question of the technical expertise and capacity, I think the capacity today is what is built in the Sami parliaments, and the employees there have mostly legal backgrounds to do these consultations. But on the technical expertise, which was also raised in one of the previous presentations, we still rely very much on the proponents' reports and findings rather than trusting the indigenous knowledge there.

Of course, in this process with the environmental impact assessments, which Norway, Finland and Sweden conduct, the money is put in by the proponents to carry it out. For example, I don't even know if the Sami have reflected that they could demand to conduct the assessment rather than letting the technical people do it to ensure the holistic and the Sami world view is taken care of. When that has been tried, I don't know of any successful efforts in that regard.

I think we are quite up to date on the legal aspect. We have a lot of legal experts who can take part in this. But when it comes to the more technical part, there is a shortage.

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

Mr. O'Faircheallaigh.

[Prof. Ciaran O'Faircheallaigh]

Quickly, there is a precedent with Sami people in Sweden. They have recently conducted their own impact assessment of a proposed copper mine being developed by Falun. I can provide that reference to the committee.

Quickly again, in response to the honourable member's very important questions of only focusing on people on reserve, I think another critical issue about aboriginal control of impact assessment is that aboriginal people decide who is impacted and who should be consulted.

There are cases where I've been involved where—

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

I'm sorry, Mr. O'Faircheallaigh. As you may have heard previously, I only get seven minutes to ask my questions, and I would like you to answer mine.

[Prof. Ciaran O'Faircheallaigh]

Okay. Sure.

In terms of capacity and free, prior and informed consent, this is a chicken and egg issue. Where aboriginal people have powerful regional representative organizations, they use their existing capacity to go to proponents and government and negotiate with them about getting the resources to further build that capacity.

For example, in the Kimberley region of northwestern Australia, you have a representative organization called the Kimberley Land Council. It has a powerful political base. It represents all native title groups in the Kimberley, and it is in a position to go to government and proponents and negotiate substantial funding to carry out comprehensive indigenous impact assessments and negotiate agreements.

In parts of Australia, particularly in what we call “settled Australia” in Victoria and New South Wales, you don't have that regional political organization, and, bluntly, you end up with a two-tier system. Aboriginal people in Victoria and New South Wales and South Australia struggle hugely in getting the resources to realize that capacity.

My experience in Canada suggests that you sometimes get the same sort of a two-tier system, possibly for the same sorts of reasons.

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

Well, let's stay there in Canada, because you said that you've done some work in the oil and gas sector off the east coast. We actually have a process now that's just coming to an end with respect to Equinor and ExxonMobil and consultations for offshore development of the exploratory drilling projects proposed this summer.

Proponent funding was granted to allow the indigenous groups, 41 of them, I believe, that may or may not.... It's quite unknown whether or not their fishing rights in Atlantic salmon would be impacted, but they were all invited to participate. It seems that the ones that were given more funding were the ones that were actually already better able to participate because they were already well funded, and the less well-funded groups were given less money. Do you see this disconnect in Australia—I think you've mentioned it—and how should we try to work around that?

[Prof. Ciaran O'Faircheallaigh]

Yes. First of all, I should clarify that my work was at Voisey's Bay in Labrador, rather than on the offshore—

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

Okay. Thank you.