Natural Resources Committee on April 4th, 2019

[Prof. Ciaran O'Faircheallaigh]

—but I think that reinforces the point, because the Innu and the Inuit were able to negotiate one of the strongest impact benefit agreements in Canada mainly because they already had a strong political organization they were able to mobilize. You certainly see that in Australia.

I think the only solution is to have a federally funded facility that provides all groups affected by major projects with funding capacity. It's possible to do that in a way that is consistent with the parliament's accountability requirements and so on. But in the absence of a national fund, these inequities inevitably emerge. To those who already have will come more.

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

Thank you so much. I have eight more questions, but I only got one in.

[The Chair, Liberal, James Maloney]

Mr. Falk, I believe you're next, for five minutes.

[Ted Falk, Conservative, Provencher, MB]

Thank you to all of our presenters here today for their testimony here at committee.

Ms. Retter, I would like to start with you. In your testimony to committee at the beginning of this meeting, you made a comment. I tried to get it all here; I don't know if I captured it all. You said that sometimes rights have to give way to national interests. Can you further expand on that?

[Gunn-Britt Retter]

Yes, thank you. I'll try to be brief.

What I was trying to convey is that while Norway, Finland and Sweden recognize that there are indigenous peoples with rights, they don't have the land title as in other parts of the world.

We are often faced with the challenge, for example, in the face of climate change, which is uppermost today. We say, oh yes, but we need to mitigate climate change and we have to find alternatives to fossil fuel, so that is a global and a national interest, and the Sami issues have to wait now that we have these more important issues to solve. Also, we relay expectations to the Sami people that they have to be part of this joint effort to mitigate climate change, and then use that as an argument to put that dilemma on the indigenous peoples or the Sami people that they have the land that is needed to mitigate this or to change to green energy sources and so on. That is a very unfair burden.

First of all, there are already a lot of windmill parks and mines on Sami land, so it's not that we don't contribute, but there's also a lot of other land that you could use that is closer to where the electricity need is. As a Sami, you feel it's yet another argument to continue to change the land use and put pressure on the Sami culture to carry this burden. I'll put it that way.

[Ted Falk, Conservative, Provencher, MB]

Thank you.

Ms. Gunn, what is your perspective on national energy projects as far as the rights are concerned of people of first nations or indigenous communities who are directly affected, versus those who are indirectly affected? Should they have the same rights?

[Prof. Brenda Gunn]

Maybe my best response is not just my perspective, but my legal opinion. I believe international law recognizes that there is an obligation on the state to get the free, prior and informed consent of indigenous peoples, whether it's their traditional territory that will be directly impacted, or whether they may have their rights impacted in other ways.

I'm not sure that international law makes the distinction that you're seeking to make here today. Going back to my earlier comment and my opening presentation, what we should be guided by in these processes is seeking to uphold rights. If we're engaging in processes to restore indigenous peoples' control over their lands and resources and restore their integrity and pride and redress power imbalances between indigenous peoples and states, I think this process where we try to divide indigenous peoples and say, “You're directly impacted, and you're indirectly impacted, so your rights aren't as important”, is not done in good faith. It is not upholding the standards, where the consultation process is actually about upholding rights and promoting new partnership.

[Ted Falk, Conservative, Provencher, MB]

Would it also be in good faith for someone who doesn't have a direct impact or interest in a project to tender their opposition to a project?

[Prof. Brenda Gunn]

Well, I don't think it's fair to speak to that in the abstract. From my experience, when people have raised opposition, they've often done so because of concerns for water quality. They may be downstream from a development. Maybe they're indirectly impacted, but they will experience the impacts.

Again, I think the obligation on Canada is to find out what concerns are being raised, how indigenous peoples can be impacted, and what steps are necessary to ensure that all of their human rights are upheld in the process.

[The Chair, Liberal, James Maloney]

I'm going to have to stop you there, Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

I wasn't done.

[The Chair, Liberal, James Maloney]

Well, I have a difference of opinion with you on that one. You will get another shot if you want.

Mr. Hehr, it's your turn.

[Kent Hehr, Liberal, Calgary Centre, AB]

I'd like to thank the guests for coming today. This has been a fascinating discussion. Your knowledge is very deep and you bring a lot to the table for us both to understand our duty to consult and to accommodate our indigenous people here on major energy projects. I come from a city called Calgary, the energy capital of Canada. In Canada, we are also treaty 7 people. We share the land with the indigenous people of that region, and build community with them here today.

Nevertheless, I was listening to the discussion about the Sami people and the mitigation of climate change, wherein you found a successful practice implementing a large-scale windmill and a process that worked all right. Was that because there was early engagement on the file? Were people connected very quickly. What led to a successful outcome in that case?

[Gunn-Britt Retter]

I'm not sure how early they were engaged, but what was fundamental here was the dialogue, the consultations that went on and that they agreed on that. Yes, they understood the need for the windmill, and they had this dialogue on what part of the land was less important for reindeer herding and still useful for a windmill.

What I understand from that process is that both parties were happy. They adjusted the location of the planned windmill park and they agreed.... I'm not sure if there were any direct benefits involved in that, but at the same time, I raised a concern connected to the free, prior and informed consent part of that project. It's the cumulative effect here, which was also mentioned earlier. After they finished the windmill part, they started to talk about the need for electricity lines. I don't know if that was a part of the kind of understanding that was put on the table when they were negotiating or consulting with the reindeer herders. I'm not sure if there was an understanding that this would lead to other construction on the same land that might have a greater impact than the windmill.

[Kent Hehr, Liberal, Calgary Centre, AB]

My next question is for Dr. O'Faircheallaigh. Earlier in your testimony, you mentioned that you saw a difference between indigenous environmental impact assessments and “regular” studies in this regard. When these were completed, were the companies and the indigenous people at loggerheads? Was there a mechanism to work out the differences, or was this generally accepted as the best way forward, through dialogue and discourse?

[Prof. Ciaran O'Faircheallaigh]

In the regulatory process, there doesn't have to be a reconciliation because the indigenous impact assessment goes to the decision-maker—in the case I mentioned, to the federal minister and the Western Australian minister—alongside the conventional impact assessment.

What the decision-makers get is an undiluted perspective on the project and its impacts, and mitigation from an indigenous point of view. I think that is the critical thing. That means, for example, that it is up to the indigenous people to decide who will be affected and whether that's “direct” or “indirect”. It's their perspective that goes to the decision-maker and that's key.

However, following on from the impact assessment, there was a negotiation process involving the proponent, the state government and the indigenous parties that resulted in the signing of a series of agreements. Through that negotiation process, you do get a resolution and an agreement on the approach for dealing with the impacts.

I would also note that as a result of the input from the indigenous side, aspects of that are extremely innovative and very important, from the point of view of the national interest, not just the indigenous interest. As I mentioned, one specific example to highlight is that there is a big issue with long-term follow-up. For the life of the project, if it's 40 or 50 years, that agreement provides that there will be an environmental compliance officer present at the site to make sure that all of the agreed environmental protection provisions are put into practice. That's something that goes back to that question about the national interest again.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Hehr.

Mr. Falk, I think you mentioned that you weren't finished. I'll give you the floor back.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chair, that's very kind of you. Thank you for your last comments, Mr. O'Faircheallaigh. I think those were fairly insightful.

I'd like to go back to Ms. Gunn again and continue questioning her on some of her perspectives. When I look at some of our previous national projects that we've done as a country, for example our railway system, our rail lines would never get built in today's environment. I'm not saying they were done perfectly and that there couldn't have been more consultation at the time. However, when we look at national energy projects today and the amount of consultations we do and are committed to doing and want to do, what do you see as the best path forward to actually completing these projects?

[Prof. Brenda Gunn]

I'm not sure I quite understand why we think the railway system wouldn't have been built. I think in some ways it's a really good example. We can see that the negotiation of Treaty No. 3 took a little bit longer, but Treaty No. 3 was negotiated and allowed for the railway system to go through. I actually think we have a great historical example there. The time frame was perhaps not initially what the prime minister at the time had hoped. Treaty No. 3 took four years to reach agreement. It required the Queen's negotiators to come back several times and to sit with the Anishinabe, but it did lead to an agreement.

You're right that we do engage in many consultations at this point. I get the sense there's not always a feeling that the discussions with indigenous peoples are effective, with the aim of upholding rights or an attempt to accommodate indigenous peoples' rights. I appreciate honourable member Hehr's point that it's the duty to consult and accommodate. Often in Canada we do an abbreviated duty to consult, and I think that's part of the problem we have. There's a view, and I think my co-panellist spoke to it as well, that there's a “show up, provide information, maybe get some information back” attitude, but then Canada goes off on its own and makes the decision.

I think what is increasingly being required in international law, including under the new World Bank rules—I know Canada is not a borrower from the World Bank, but I think it shows the international trend—is that it has to be a far more robust process whose intention has to be to provide information and hear the concerns that indigenous peoples may raise. We need to sit down and work together to think of ways to address those concerns in the project.

I think a process that better engages indigenous peoples and that seeks to uphold their rights will actually have greater certainty. We will have projects that are good for the environment and good for indigenous peoples and not just be viewed in a narrow economic view. We will be able to reach those decisions faster and with greater certainty and have the process be done in a much more timely fashion.

I think honourable member Stubbs said that we're in crisis, and I agree. We are in crisis, and it's the failure to full-heartedly engage and uphold indigenous peoples' rights that has led to some of the uncertainty.

[Ted Falk, Conservative, Provencher, MB]

The Prime Minister has stated that indigenous peoples do not have veto rights. Would you agree with that?

[Prof. Brenda Gunn]

I think international law has reiterated the same point, but it's important to be clear on what we mean by veto. If we're thinking that Canada goes in, presents a plan to indigenous peoples and tells them, you can say yes but can't say no, so say yes and we're going to walk away, that's not what anyone contemplates. Under international law as I indicated, it shouldn't be a pre-determined decision being put forward to indigenous peoples; it should be about engaging them in the decision-making process.

There are circumstances in which indigenous peoples are allowed to say no. I am very clear that while it's not a veto, we still have a right to say no to projects. I can try to find it in my notes to reiterate, but I believe I said in my opening presentation that indigenous peoples have a right to say no under certain circumstances. Yes, my notes say they “may withhold their consent following an assessment and conclusion that the proposal is not in their best interest”—i.e., that it's not going to uphold their rights or that there are deficiencies in the process or to communicate a legitimate distrust of the consultation process.

Yes, it's not a right to veto, but we do have a right to say no.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Whalen, you have five minutes.

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

Maybe we could use the example that I referred to before about the indigenous consultation that's happening at the same time as the environmental assessment for offshore Newfoundland and Labrador. There are no direct land rights associated with the exploration area, but there are perhaps indirect or ancillary economic rights associated with their local fisheries.

I wonder if each of you can explain or maybe provide your view of your own national law on when consultation in respect to proposed environmental drilling should begin. Should it begin once a proponent decides to go? Should it begin when the state decides to open an area up for licensing? Should it begin the first time someone is interested in doing some seismic testing in the area?

You've talked about early engagement, but then with respect to indirect rights it's unclear to me when you would suggest the best practice would be for indigenous consultation in that type of scenario, in the scenario we see of offshore oil and gas exploration.

Maybe we'll start this time with Canada, then go to Australia, and then to Norway.

[Prof. Brenda Gunn]

I was hoping I would go last. I was going to try to pull up—

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

Okay. We can go the other way.