Transport Committee on Nov. 15th, 2016

[The Chair (Hon. Judy A. Sgro (Humber River—Black Creek, Lib.)), Liberal, Judy Sgro]

I'm calling meeting number 32 to order. Pursuant to Standing Order 108(2), we are studying the Navigation Protection Act.

We have several witnesses, and we very much appreciate them taking the time to join us today.

I'll allow you to introduce yourselves, starting with Mr. Vermette.

[Kyle Vermette, Métis National Council]

Good morning.

My name is Kyle Vermette. I'm an adviser to the Métis National Council.

[Andrea Hoyt, Environmental Assessment Manager, Department of Lands and Natural Resources, Nunatsiavut Government]

My name is Andrea Hoyt. I'm the Environmental Assessment Manager with the Nunatsiavut Government.

[Kim Beaudin, National Vice-Chief, Congress of Aboriginal Peoples]

I am Kim Beaudin, National Vice-Chief of the Congress of Aboriginal Peoples.

[The Chair, Liberal, Judy Sgro]

Welcome to all of you.

We very much appreciate your taking the time to join us today.

We'll open the floor with Ms. Hoyt.

[Andrea Hoyt]

Thank you, Madam Chair.

The Nunatsiavut Government is an Inuit regional self-government established under the Labrador Inuit land claims agreement signed by Canada, Newfoundland and Labrador, and the Labrador Inuit Association in 2005.

Although Nunatsiavut remains part of Newfoundland and Labrador, the government has authority over many central governance areas, including health, education, culture and language, justice, and community matters. The Nunatsiavut Government is driven by a set of fundamental principles that arise from the Labrador Inuit constitution. These fundamental principles express our core beliefs in democracy and equality, the preservation of our culture and language, the pursuit of a healthy society, the pursuit of a sustainable economy, and the preservation of the land, waters, animals, and plants of our ancestral territory.

The Nunatsiavut Government operates at two distinct, but connected, levels: regional and community. Under the previous act, all waters navigable by canoe were protected by default. The changes brought in under the Budget Act, 2012 changed the approach to protecting waterways by only listing them on a schedule to the Navigation Protection Act. In Nunatsiavut, the Inuit homeland in northern Labrador, the act currently protects two water bodies: the Atlantic Ocean and Lake Melville. This was done without consultation with the Nunatsiavut Government, and it removed from protection approximately 15,000 lakes and 2,600 rivers. These waters are used by Nunatsiavummiut for transportation in both summer and winter, and they have been since time immemorial.

The protection under the previous act was a default protection, which is also an approach that closely aligns with traditional Inuit practices that say to protect all land and resources, take only what you need, and use all that you take. To determine that the only waterways worthy of protection by the Government of Canada are the Atlantic Ocean and Lake Melville is to fail to protect our land and waters.

The Labrador Inuit land claims agreement states that the precautionary principle will be used to make resource management decisions. Removing protection from 99.99% of our waters does not reflect the precautionary principle or responsible environmental management.

The Nunatsiavut Government asks that the Government of Canada restore all lost protections to waters in Canada, including navigable waters in Nunatsiavut, and that if any changes are proposed to that regime—the regime of 2005 under which our land claims agreement was signed—that the Government of Canada then consult with Inuit on those changes and accommodate the rights of Inuit.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Mr. Vermette.

[Kyle Vermette]

I'd like to begin by thanking the chair and honourable members for inviting the Métis National Council to appear before you today.

The Métis National Council represents between 350,000 and 400,000 Métis people from Ontario westward. The Métis are one of Canada's aboriginal peoples. Métis are not just a mixed-blood product of the union between Europeans and first nations; we constitute a unique people, distinct from both Europeans and first nations: the Métis nation. The territory of the old northwest is a region we call the Métis nation homeland today.

The Métis National Council was formed to represent the Métis nation at nationally and internationally. It is composed of five provincial Métis governing members: Métis Nation British Columbia, Métis Nation of Alberta, Métis Nation-Saskatchewan, Manitoba Métis Federation, and the Métis Nation of Ontario.

We seek to address water issues on a regional basis, as well as nationally on all policy matters. Again, we're very appreciative of this committee and of the opportunity to address the important work being done here today. The Métis National Council has a number of recommendations for this committee.

First, there is a need for Canada to embrace and implement the post-colonial thinking that the United Nations Declaration on the Rights of Indigenous Peoples codifies: that the Métis nation has an interest in the lands, resources, and waterways that flow through its traditional territory.

The Métis have many unsettled land claims and issues arising from historic dispossession of their traditional territories. One of our goals is to attempt to negotiate a resolution to these issues. In the meantime, there are effects on our traditional lands, which are not always recognized by Canada as traditional lands, where consultation and impacts are not studied, nor are they known. The legal and cultural interests in waterways and the impacts of development on those interests are matters of substantial concern.

Addressing these outstanding claims is part of the reconciliation process demanded by section 35 and class 24 of section 91 of the Constitution Acts, 1867 to 1982, a process that we hope will be undertaken with the nation-to-nation, government-to-government approach that this government has so strongly advocated and which we fully support.

We must ensure that the traditional and cultural ways of life of aboriginal peoples are accounted for, and that includes the way of life of the Métis people. We also must build processes for engaging aboriginal peoples in identifying the sensitive areas where navigation is central, and for engaging the traditional, scientific, and cultural knowledge of the Métis people in assessing what constitutes substantial interference. The duty to consult, in our view, requires this.

I share my colleague Ms. Hoyt's view that a restoration to the protection of all waterways in Canada is necessary. Where potential changes or modification to that approach are being considered, the Métis nation should be consulted on how that would be implemented and how that would be set out in the schedule.

We view this legislation as an important element in the protection of the environment. There are, in our view, parallel processes in reviewing environmental protection legislation happening at the federal level. This is an important aspect of that review.

We have been contributing to the modification of the Canadian Environmental Assessment Act. Our recommendations with respect to that legislation, while important, would in many ways be of no effect if it is not working in concert with this piece of legislation.

The duty to consult would be triggered only if works were happening with respect to a protected waterway. If that waterway in our traditional territory is not considered protected or subject to this legislation, we are not able to be consulted or to provide our input to protect our aboriginal rights with respect to water.

Both the federal government and the provinces have responsibility for the environment, as do the municipalities. The Métis nation should also have the authority in this regard. In our view, this legislation should provide for this authority and jurisdiction in a way that's consistent with the principles of the United Nations Declaration on the Rights of Indigenous Peoples. The federal government must remain committed to full engagement of the aboriginal peoples, and in particular the Métis nation, on matters that affect them. Federal leadership remains key.

Many of the challenges could be addressed through the CEAA process. Certainly, we want to be efficient and avoid duplication. Aboriginal peoples make their living from waterways, fishing for food and for commercial purposes. That remains a central feature for the Métis nation and Métis communities. As a result, there is a need to be considered in the assessment of legislative change to ensure the Métis way of life is protected and valued under this legislation.

Again, I thank this committee for the opportunity to speak. I'd be happy to answer any questions you may have.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Vermette.

Mr. Beaudin, the floor is yours.

[Kim Beaudin]

Dear chair and vice-chairs, committee members, and guests, good morning. I'm Kim Beaudin, the Congress of Aboriginal Peoples' national vice-chair, and I'm pleased to be speaking to you from the city of Saskatoon.

I would first like to acknowledge the traditional Algonquin territory on which this committee hearing is taking place in Ottawa, and the traditional territory of Treaty 6, where I am speaking from today.

I would also like to thank the Standing Committee on Transport, Infrastructure and Communities and the Government of Canada for providing CAP with the opportunity to have a voice heard on this important piece of legislation. Our national chief, Robert Bertrand, has asked me to attend the committee hearing addressing the proposed changes to the Navigation Protection Act.

Since 1971, CAP, formerly known as the Native Council of Canada, has committed itself to advocate for the needs of off-reserve status and non-status Indians, Métis, and southern Inuit peoples. We also serve as a national voice for provincial and territorial affiliate organizations. The congress represents a significantly large constituency of indigenous people in Canada. It's presently estimated that over 70% of indigenous people live off reserve.

For over 45 years CAP has committed itself to address issues on the environment and find solutions. Our people are spread out all over countless urban, rural, and remote areas. We all collectively share the connection to the land and our waterways. This connection has been deeply rooted in the history of our people and that of the country for hundreds of years. It is vitally important for our indigenous people, and for that matter all Canadians, not to lose the connection.

The Navigation Protection Act changes are important to indigenous people because they leave millions of water bodies essentially unregulated. With the majority of navigational waters removed from the purview of the act, there is no government involvement in most development projects, and therefore nothing to trigger a duty to consult.

Mikisew Cree First Nation from northern Alberta had brought a challenge with respect to changes to environmental legislation such as the Navigation Protection Act. The decision arising from Mikisew Cree First Nation v. Canada was notable because it recognized a much broader scope of duty to consult than had ever been explicitly recognized by Canadian courts, not only when physical works were proposed, but also when Parliament or provincial legislation proposed to change legislation in a way that affects aboriginal rights.

Regarding the proposed changes to the Navigation Protection Act, CAP would like to emphasize that the federal government must take into account its responsibility to engage and consult with all indigenous people. It is forums like today's committee hearings that afford indigenous organizations, including the congress, a much-needed opportunity to give a national voice to its constituents.

The congress sees three current avenues where the federal government can use a mechanism to implement reconciliation through open engagement and consultation: the 94 calls to action as proposed by the Truth and Reconciliation Commission; the United Nations Declaration on the Rights of Indigenous Peoples; and CAP's historic win in the Supreme Court of Canada Daniels v. Canada case in April of this year, declaring that Métis and non-status Indians are Indians under section 91.24 of the Constitution Act, and the federal government has a fiduciary responsibility.

Regarding the Daniels case, Supreme Court Justice Rosalie Abella stated, "As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought."

An opportunity to remedy lies in the distinct possibilities for the federal government and the congress to come together under progressive reconciliation, in the form of engagement and consultation. A positive example of a successful consultation may be found in the 2002 Species at Risk Act, SARA. It is a piece of federal legislation that relied heavily upon, and had partnership with, indigenous peoples in its design and presentation to Parliament. CAP was actively involved in the process, and as a result indigenous traditional knowledge, ITK, can be incorporated with specific assessments to come to decisions. The SARA process identifies ITK holders and creates processes for indigenous peoples and communities to be active as decision-makers. With these processes, Canada, in partnership with indigenous peoples, is making its commitment under the United Nations Convention on Biological Diversity a reality.

In this respect, CAP asks that, in order to ensure that the proper measures are taken to protect our waterways, a process of reconciliation between the government and indigenous peoples must continue to take root and grow until it's inclusive of all our people, including those who live off reserve.

Our people, the generations before them, and those who will follow tomorrow, have lived on and off the land for hundreds of years. They know what is and what is not working in terms of policy and action, and what can work to serve the best interests of all Canadians. The land and waterways are sacred to them. For thousands and thousands of them, it is their way of life, whether it's through farming, harvesting, hunting, or fishing.

The off-reserve indigenous peoples of Canada are a living wealth of knowledge and wisdom when it comes to the environment. They are ready and able to assist the government to achieve these kinds of effective solutions on climate action that will benefit all of us.

I would like to say to the Government of Canada that CAP is ready to engage and work with the Canadian federal government, in addition to provincial and territorial governments, to develop concrete, sensible, and mutually beneficial solutions to ensure that the Navigation Protection Act remains inclusive of all, and beneficial to all indigenous people of Canada, whether they live in urban, rural, or remote areas.

The management and protection of our country's waterways is and will remain vital to everyone—us, our families, and our children of tomorrow.

I would like to thank you for giving me the chance to speak with you today. Meegwetch.

[The Chair, Liberal, Judy Sgro]

Thank you all very much.

We will now commence the questioning. We'll go to Ms. Block, for six minutes.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

I want to welcome all of our witnesses here today. I've appreciated hearing from each one of you.

Before I ask questions of the witnesses, I do have a question for the chair.

I note that we received an amended notice of meeting this morning, and one of the witnesses has dropped off the list. I think it was the Assembly of First Nations. Given that we have fewer witnesses, and that there could be bells shortly after 10 o'clock, will we be ending our time with the witnesses earlier than expected and dealing with committee business, or will we continue on with our witnesses and deal with whatever comes?

[The Chair, Liberal, Judy Sgro]

I'm in the hands of the committee, but we have these very important witnesses here today, so I think it's important that we ensure they have sufficient time to answer all of the questions. We'll play it by ear. Let's make sure that our witnesses have full opportunity and we don't cut them off.

I suggest we continue on with the schedule the way we have it in front of us.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you for that clarification.

My first question would be for Mr. Beaudin with the Congress of Aboriginal Peoples.

In your opening remarks, you mentioned that your chief had asked you to attend today to speak to the proposed changes to the Navigation Protection Act. I'm wondering if you could tell us what those proposed changes are. As a committee, we haven't seen any, so I'm wondering what you're referring to.

[Kim Beaudin]

On the proposed changes, I'd have to get back to you on that one. Some of the information that was provided to me is quite extensive. Because I'm new on the job here, it's actually been quite a learning curve. I'd have to get back to you on that one.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Okay, thank you for that.

I think all of the witnesses have spoken to the duty to consult. The next question I have is whether you believe that by attending this committee meeting and sharing your thoughts with us on the Navigation Protection Act your organizations, your members, will have been consulted.

Anyone of you can answer that question.

[Kyle Vermette]

Madam Chair, I can say from the perspective of the Métis National Council that we certainly wouldn't view this meeting as consultation, in the same way that we haven't viewed our participation in review under CEAA as consultation. That process has been a very in-depth process. I'm a member of the multi-interest advisory committee under that process, as is my colleague, Ms. Hoyt. We've explicitly shared that same view.

I think that one of the challenges today is that very point. There are no proposed changes in front of us. It makes it particularly challenging to be able to respond and say from the Métis National Council's view, we're not sure what you're considering doing, but here's how we would respond to those potential changes.

I think that one of the important aspects of this process would be to ensure that any changes would include consultation with the Métis National Council and the Métis nation, and in particular through our governing members.

Thank you.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you.

On June 16, 2016, ministers Garneau, LeBlanc, Duncan, McKenna, and Bennett announced that they would begin consultations on the Navigation Protection Act. Have any of you met with any of these ministers since then?

[Andrea Hoyt]

From my knowledge, the Nunatsiavut Government has not been consulted on any proposed changes to the acts, although we are participating in the various environmental reviews. Our understanding is that, from these four reviews of environmental legislation, the ministers will be moving forward with legislative changes—or not moving forward with legislative changes—and that the ministers will consult on those changes once they have the advice from the various reviews.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Has anyone else met with any of the ministers?

[Kim Beaudin]

Our organization has not met with any of the ministers at this point.

You went back a little with respect to consultation. I want to touch on that as well. I believe that this is certainly a start, but our organization, when it comes to consultation, has a number of provincial and territorial organizations across Canada. They would have to be consulted with as well. What I am referring to is that, since we have a governance structure within the congress, we reach out to the PTOs to address this. This announcement coming from the minister would certainly benefit our organizations in ensuring that the grassroots voices are heard.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Mr. Beaudin, you observed that your organization was actively involved in the process of developing SARA back in 2002, and you also stated that you were willing to work with the current government in addressing any changes that might be made to the Navigation Protection Act. You touched a little on it, Mr. Vermette, in terms of what a process would look like. I would quickly ask you to reflect on what being actively involved in the process looks like for each of you.

[The Chair, Liberal, Judy Sgro]

That would have to be a short answer.

[Kim Beaudin]

The grassroots people.... We address a number of people who really work from the ground up. When we have meetings, for example, we invite the public out, particularly in our focus on indigenous people in urban areas, and we ensure that their voice is heard. That's important. Back in 2012 when the changes were made, it sent a really negative ripple through our communities. Indigenous people particularly were quite concerned because of the protection with respect to water that was being removed. The environment is very important for indigenous people. It's very important that we talk to our people, and this is certainly a good start.

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Beaudin.

Mr. Hardie, you have the floor for six minutes.