Transport Committee on Nov. 2nd, 2017

[The Chair, Liberal, Judy Sgro]

Thank you very much, Ms. Clayton. My apologies, we have to limit it to five minutes because the committee members always have a lot of questions, which I'm sure you'll want to answer.

Mr. Helin, did you want to address the committee?

[Calvin Helin]

Yes. Thank you very much.

[Witness speaks in Tsimshian]

It's a real pleasure to be here today. I'm both a failed commercial fisherman and a recovering lawyer, so the time you've allotted to me doesn't seem like very much.

I'm here to tell you what took us five years to accomplish. In five years, we realized that, in dealing with first nations, the most important thing was the environment, stupid. In that context, first nations people, particularly the 30-plus communities that have supported our project, have told us that they do not like outsiders, particularly those they view as trust-fund babies coming into the traditional territories they've governed and looked after for over 10,000 years and dictating government policy in their territory.

They told us this over and over again, in the thousands of meetings we had with them over five years, in relation to establishing an oil pipeline, which originally was intended to go from Fort McMurray to Prince Rupert. Once we engaged the producers, the route was changed from Bruderheim, not to Prince Rupert but to Grassy Point near Lax Kw'alaams, John's community. They told us very clearly that the most important thing was the environment, and that they need the environment to be addressed.

We took two or three years, and we hired international experts from Norway and various places, and came to the decision that Alaska pretty much had the state-of-the-art environmental model in the world. We came back to the first nations and we had a bunch of community meetings with them over and over again, and when they were satisfied that we had met the standard that they felt would protect the environment, they agreed to sign agreements in principle to proceed with such a project.

At our first meeting to engage in this project, we set up a chiefs council that represented all of the chiefs from Alberta all the way out to the B.C. coast. They have had a position with a lot of power and control over the environmental aspects and over the project in general, so it was a fairly high hurdle that we sought to meet. They were so satisfied with the environmental model we put forward that they voluntarily voted at their first meeting to support an energy corridor.

This is a very, very difficult thing to do, given that most projects.... I understand that the Kinder Morgan project has something like 30 first nations supporting it, out of 120. We have just about 100%.

What I would like to do at this point is to let the hereditary chief who represents the chiefs from B.C. speak on behalf of them, and then let Chief Isaac speak on behalf of the chiefs from Alberta who are involved in the project, please.

[The Chair, Liberal, Judy Sgro]

Yes, sir. Please go ahead.

[Gary Alexcee]

Thank you, Madam Chair, and thank you, Calvin.

I come here today to support Lax Kw'alaams in the Tsimshian first nation against having this tanker ban.

I'll give you a few dates of why we're so against this tanker ban. In 1763 a royal proclamation was signed by King George III that gave recognition of the first nations lands and their right to plan what should be there. In 1960 the right to vote for first nations was very joyous among all the first nations. In 1968 we had the Davis plan, which completely changed the fishing industry of that day as we knew of it.

Today, without the meaningful consultation that has not been carried out with the first nations and with the B.C. Council of First Nations and Alberta, this is totally against what we want. There is no scientific reason for stopping the north coast projects. If there is, we haven't seen it. Therefore, we say that the Vancouver project of Kinder Morgan must be stopped also if you're going to force this Bill C-48 upon us.

With no consultation, the B.C. first nations groups have been cut off economically with no opportunity to even sit down with the government to further negotiate Bill C-48. If that's going to be passed, then I would say we might as well throw up our hands and let the government come and put blankets on us that are infected with smallpox so we can go away. That's what this bill means to us.

I further support the Tsimshian Lax Kw'alaams community to have this bill taken away so they, too, among the other 120 first nations in British Columbia, can sit down and have a way of life where they can at least govern themselves and be responsible for what they have in their lives.

Today, the way it sits, we have nothing but handouts that are not even enough to have the future growth of first nations in our communities of British Columbia.

Thank you.

[The Chair, Liberal, Judy Sgro]

Chief Isaac.

[Isaac Laboucan-Avirom]

Thank you.

I'm here also to show support for my colleagues, my first nations brothers and sisters.

It's a very interesting era that we're in right now. Just to give you a little history about me, I'm also a journeyman millwright by trade. As one of my last jobs as a tradesman, I was the lead rotating specialist for Royal Dutch Shell. I come from Alberta, and I've seen about five major national companies leave the oil game. I've seen towns in much of our region with shortages in their food banks.

What I don't understand about this tanker moratorium is that there's no other tanker moratorium on other coastlines in Canada. You have oil coming in from Saudi Arabia, up and down the St. Lawrence River right now.

I'm 100% an environmentalist as well, but I'm also 100% into the economy so that I can provide purpose and get people to work. This tanker ban is not just going to hurt us at the moment, which it is doing, but it's going to hurt future generations. I have four daughters at home, and I want to provide a better education for them. I can't do that on social assistance.

The government of today announced that it's going to try to build a new fiscal relationship between first nations in a nation-to-nation conversation. It shouldn't be played out in the media. It should be played out with actions. Actions speak louder than words.

There were questions on what happens when the oil spills. I've dealt with some of the largest oil spills in Alberta within our traditional lands. What I do is I make them clean it up. In Alberta, I tell the Alberta energy regulator that they have to change their standards, they have to improve their standards so that when something is cleaned up, it's cleaned up 100%. Right now, standards are low. They've lowered standards so they could increase production. We could change that. We're in an era where we need to think outside the box, where we need innovation and technology, and we have that.

Everything in this room is touched by oil. Somehow that oil gets to China and then we buy it back in products. This will affect everybody in Canada. We need to create jobs. We need to help everybody.

Yes, as first nations, we are stewards of the land. I'm a hunter, a fisher, and a trapper, and I teach my culture and my language to my kids. In Treaty 8 territory, we come from the wealthiest land among us. There have been trillions of dollars taken out of our natural resources and we haven't seen a fair percentage of that.

My colleagues and friends here have a project where we could start getting our own sustainability. I'm not one to look for a handout, not one bit. I want to have the ability to shape our own destiny. With this tanker moratorium, you guys are killing those opportunities for the future. I'm not placing blame, but there's a possibility of that happening.

Thank you.

[The Chair, Liberal, Judy Sgro]

We'd like to be able to get an opportunity for the members to ask some critical questions. Is there anyone else who thinks it's critical to speak to the committee before we start the questions?

[Margaret Rosling]

Madam Chair, if I may, I'm not yet a recovering lawyer, and I was just wondering if we could seek the committee's indulgence to allow President Clayton to take an additional minute just to make clear the Nisga'a Nation's position on the moratorium. If we could do that before you started with questions, that would be very much appreciated.

Thank you.

[The Chair, Liberal, Judy Sgro]

Yes. That's fine.

Ms. Clayton.

[Eva Clayton]

Thank you, Madam Chair.

We are still at the early stages and have not made a decision about whether the nation would support an energy project, but we believe the provisions of our treaty can be employed to consider an environmentally sound approach to such a project.

Needless to say, the Nisga'a Nation will never support a project that could result in devastation to our land, our food, and our way of life. However, we cannot support legislation as sweeping as the proposed moratorium that will have the effect of cutting our nation off at the knees from being able to implement our treaty to achieve that balance, to achieve sustainability, for which we have a treaty.

We cannot stand back and allow legislation to be passed without meaningful input from the only indigenous nation with a treaty in the moratorium area and which has much to lose. We cannot agree to our treaty partners slamming the economic development door shut on us and other first nations on the north coast, while preserving opportunities for our neighbours to the south, north, and east. Why should we be singled out for such unfair treatment?

We should not have to continue to see our way of life eroded and our children and grandchildren denied a chance for economic prosperity without being given an opportunity to determine whether, under the rigorous requirements of our treaty, the correct balance can be struck between building a strong economy and protecting sensitive ecosystems.

We urge you to defer your next steps on this legislation until appropriate consultation is undertaken with us and our first nation neighbours to see if we can strike that balance.

Thank you, Madam Chair.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Ms. Clayton.

Mr. Chong, you have six minutes.

[Calvin Helin]

Madam Chair, I would like to clarify our position as well. It will take me half a minute.

[The Chair, Liberal, Judy Sgro]

Okay.

[Calvin Helin]

We're supporting the position and the request of the Lax Kw'alaams community that a northern boundary to the oil tanker moratorium be fixed at 54°, 30' N latitude pending the development of a lane separation scheme for oil tankers in Dixon Entrance equivalent to that in the Strait of Juan de Fuca.

[The Chair, Liberal, Judy Sgro]

Mr. Helin, have you given that to us?

[Calvin Helin]

You have our brief, but apparently it's being translated into French.

[The Chair, Liberal, Judy Sgro]

That's fine. Thank you very much.

Mr. Chong.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Madam Chair.

This testimony today is pretty explosive. I was not aware that there was such a lack of consultation and accommodation on the part of the Government of Canada and the crown in advance of the introduction of Bill C-48. The testimony today that we've heard from this panel and the previous one is very important and valuable to members of this committee, and hopefully to the House of Commons as a whole.

My understanding on the duty to consult and accommodate is that there's a three-part test that the crown goes through to determine whether there's a duty. The first is whether the government knows that there's a right that exists. It's clear that there are treaty rights that exist here. The Nisga'a Nation has a right over its territory, clearly defined in a negotiated settlement and in legislation that was passed some 15 years ago by the Parliament of Canada. The second test is whether the government's decision has an impact on the traditional territory of the band, which includes traditional hunting, fishing, and trapping territories, but also includes directly held reserve lands. The third is whether the government's decision has a potential to impact on the treaty rights and constitutional rights of the aboriginal peoples in the area.

It seems to me that, clearly, Bill C-48 does have that impact because it prevents the Nisga'a Nation and other first nations in the area from developing those economic projects on their own directly held reserve territories in the way that they had planned to. It also seems to me that the scope of the government's duty to consult and accommodate with respect to Bill C-48 is huge. We're not talking here about building a minor road. We're talking about billions of dollars in economic development that could accrue to aboriginal bands along the route and aboriginal bands on the coast.

I don't think this is a small matter. This is a huge issue. One of the questions that's rattling around in my head as I hear this explosive testimony is whether there's going to be court action here because of the government's failure to consult and accommodate in advance of the introduction of this Bill C-48.

[The Chair, Liberal, Judy Sgro]

Ms. Clayton, would you like to answer?

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

I wonder if any of the bands or first nations in front of us today, or others that they know of, are considering court action to protect their constitutional right to be consulted and accommodated before major decisions such as this are taken.

[Eva Clayton]

It's a question we will take back to review our options.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Are there any other...?

It's clear from the testimony that you do not feel you were consulted or accommodated as per the Haida and the Taku decisions of the Supreme Court, so what other avenues are you exploring to defend and protect your rights?

[Calvin Helin]

Thank you.

Most of B.C. is not covered by treaties. The Nisga'a is an exception. The case that applies in B.C. is the Tsilhqot'in decision, and I'm quoting directly from the decision, where on the limitations of governmental power over lands encumbered by aboriginal title, the court says:

The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. ...if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project....

In that same decision it said that the duty to consult on behalf of the crown “must also be justified on the basis of a compelling and substantial public interest”. The first nations have “the right to enjoy the economic fruits of the land” and “to proactively use and manage the land."

The idea that it's just the people on the coast who are impacted by this—that have their section 35 rights impinged—is not correct because all of our partners all the way along our project will be directly impacted by a decision like this, but I think the recommendation that's been made by the Lax Kw'alaams council is essentially to establish a corridor, and the moratorium can exist below the corridor.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

I'm sorry, your time is up.

Mr. Hardie.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you.

It's good to see you, and to hear your voices. Many years ago I was on the radio in Terrace, and I would give messages to the north, to places like Nass Camp, Kincolith, and Greenville, and I know what eulachon grease is. I know this is a special place. I've been up there on a fishing boat in the Portland Canal, and I know what that coastline looks like.

Ms. Clayton, I do understand your need for balance to ensure that if something gets shipped, it's going to be the right thing, that we're not going to contaminate the water in the event that the worst happens.

I wanted to ensure that you were aware of what the regulations around this moratorium contain because it's only—short explanation—the really bad stuff that we would not allow to be transferred onto a tanker. We're not banning tankers. We're just trying to influence what gets loaded onto the tankers. The sorts of things that would be allowed would include liquefied natural gas, gasoline, naphtha, jet fuel, and propane, which suggests that if there are petroleum products to be shipped, if those are the petroleum products coming through, there is no moratorium.

With that in mind, I would like the Eagle Spirit Energy people to tell me what they had in mind to ship through a port on the west coast. Could their plans simply include the things that would not be covered by the moratorium?