Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 8 - Evidence
OTTAWA, Thursday, November 24, 2011
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:12 a.m. to study the current state and future of Canada's energy sector (including alternative energy).
Senator W. David Angus (Chair) in the chair.
[English]
The Chair: Good morning, colleagues. Good morning to our guests, whom I will introduce in a moment. Good morning to our listeners on the CPAC network and on the World Wide Web and to all others who are sharing with us as we continue our study on the energy sector. We are trying to have a dialogue with Canadians and to develop a framework for Canada's energy future in a more efficient, sustainable and national way in the West, the centre, the East and, of course, in our great northern territories and communities.
We are very blessed this morning to have with us Shawn Atleo, National Chief of the Assembly of First Nations. You are here with Roger Jones, your chief counsel. We have been recently hearing from the Minister of Aboriginal Affairs and Northern Development, the Honourable John Duncan. I think you will find that members of the committee are not only deeply interested in issues concerning yourselves, but particularly in the development of our First Nations communities and development in the energy field.
Canada has been lucky over the years to have such great natural resources, but we have not necessarily been that efficient in the use thereof because we have had such tremendous availability, very diverse in different areas of the country. Now, as we look at the population boom — passing 7 billion people in the world and, maybe, in 30 years, 9 billion — energy demands are getting ever greater, and we are looking at alternatives, cleaner sources and more efficient use. That is what our study is about.
We have been travelling all over Canada. Next week, we will start our western tour; we will be in British Columbia and Alberta. The week after that, we will be in Saskatchewan and Manitoba. We have already pretty much covered the other areas. We have not, unfortunately, visited the territories, but we have had witnesses from the territories and are obviously extremely interested in what goes on up there.
I would just like to say that National Chief Shawn Atleo is a hereditary chief from the Ahousaht First Nation. In July 2009, he was elected to a three-year mandate as National Chief to the Assembly of First Nations. Colleagues, you may remember, when you gave me the dubious pleasure to travel to Copenhagen for the COP15 environment conference, the chief and I were in the same special delegation, put together by then Minister Jim Prentice. We had occasion to meet not only in Calgary but also in Copenhagen. I think we were interested in what happened during that week, but not necessarily excited about the outcome. It was certainly a wonderful look into how these international organizations come together. There were supposed to be 15,000 people there, and I think you will recall that there were 39,000 people trying to squeeze into the conference centre.
The chief served two terms as regional chief of the BCAFN. I guess that is the British Columbia assembly. In this time, he committed to the principles of working together through inclusion and respect. In March 2005, a historic leadership accord was signed, overcoming decades of discord among First Nations leadership in British Columbia.
We are very delighted that you are here, and I wanted to introduce myself. I am David Angus, and I am a senator from Quebec. I am the chair of this committee, and the deputy chair is Senator Grant Mitchell, whom I believe you know. He is from Alberta. Also here are our folks from the parliamentary library, Marc LeBlanc and Sam Banks; from Saskatchewan, Senator Rob Peterson; from Alberta, my predecessor, Senator Tommy Banks; from Quebec, filling in for one of our absent colleagues, my good friend, Senator Pierre Claude Nolin; from the Northwest Territories, Senator Nick Sibbeston, who keeps us honest in Aboriginal matters, I can assure you; our wonderful clerk, Lynn Gordon; from British Columbia, Senator Richard Neufeld; from Quebec, Senator Judith Seidman; also from Quebec, Senator Paul Massicotte; from New Brunswick, Senator Wallace; and last but not least, our elected senator, Senator Bert Brown.
That is who we are, sir. We have nearly two hours, and we are looking forward to a great dialogue with you. I understand you have a prepared statement, and then we will have questions.
Shawn A-in-chut Atleo, National Chief, Assembly of First Nations: Thank you very much, and good morning, honourable senators. It is a great honour to be invited. It is very much appreciated. As you have mentioned, I have with me Roger Jones and Audrey Mayes, who is sitting behind Roger and me, forming the delegation from the Assembly of First Nations.
Greetings from 633 First Nations and 52 language groups. As you senators would know, First Nations are in every corner of this country, from coast to coast to coast, and this conversation about energy is a really important one. I come from the village of Ahousaht, on the west coast of Vancouver Island. I am not that old, but it is not that long ago that we were on generators in my little village. They would go out at about 10 o'clock at night, and I would be at my coal oil lantern, reading my comic books at my grandmother's house. Because we are so isolated, even today there are times when we are disconnected from the power. My little house is on a solar system, and I am off the grid. I am so thankful that you are doing this study and that you are speaking to people throughout the whole country because this conversation about energy is really critical at this moment. First Nations intend to play an important role — increasingly, I would suggest, a leading role — in helping to consider, think about and plan for our collective energy future.
I want to thank you for your invitation. Discussions about energy are most often really about development as well, although I think we need to collectively increase our energy literacy in relation to where it comes from and what we are using it for. When it comes to development, I do not want to paint a picture that all First Nations support development or that all First Nations are opposed to development. We begin with this notion that First Nations today, as well as in the past, support responsible development and, as with many others, oppose development that is not seen as responsible development.
The Chair: If I could interrupt you, because this is such a perfect point you have just made. One of our objectives is to dispel the many myths are out there related to our environment, related to our energy, related to climate change and so on. You just referred to the myth that all First Nations are opposed to development and so on. That is a perfect one. I just asked Mr. LeBlanc to note it down. I am sure you will talk about other ones too, which the people of Canada need to know, and they need to know from authoritative voices like your own.
Mr. Atleo: That is exactly why your study can help us to engage in a conversation about getting a greater shared sense of what is responsible development and getting a shared sense of what kind of energy strategy we need. Historically we perhaps know reasons why we do not currently have a national energy plan, or an energy strategy that is comprehensive and cuts across jurisdictions, but, as you mentioned at the outset, with a booming population and countries in Asia looking to our rich natural resources within the boundaries of Canada, it will be incumbent upon us collectively to take a good, long, hard look. In my view, First Nations have responsibilities to step forward and begin to articulate thoughts in this area.
First Nations have the responsibility to honour and bring forward the history and the culture that we have, and to preserve our languages that help us describe our relationship with the environment around us. Very often, through our elders, we will talk about our responsibility to future generations and what we are leaving for those who are coming after us to ensure their prosperity as well, while maintaining a relationship.
[The witness spoke in his native language.]
In the Nuu-chah-nulth language, one of the 52 languages of the country, we say that everything is one and interconnected. There is a notion of protocols between all living things: the fish, the river, the trees and the birds, et cetera. There is in fact sacredness in this relationship — a sacredness that seeks to pursue a sense of balance and harmony.
In this country First Nation rights are often expressed as Aboriginal rights or treaty rights. In some cases First Nations may assert Aboriginal or treaty rights directly over natural resources. In others, First Nations may assert that energy development may cause harmful impacts environmentally, which will prevent them from pursuing activities that have been previously guaranteed through treaty or asserted to be an Aboriginal right. This, in short, and in summary, also suggests that we have had somewhat of a pattern of conflict in these areas.
I might say that we have been clogging up the courts. In some years we have 100 court cases across this country, and it is my personal feeling that we are spending an inordinate amount of time addressing these things in the form of conflict. We look to the original treaty relationships that helped to forge this country, with the War of 1812 memorial coming up, to remember that First Nations stood shoulder to shoulder with our collective ancestors in war and stood up for the land that is now called Canada.
I want to make it clear that there is one right that matters more than all others for First Nations. That is the right to self-determination. First Nations have the inherent right to determine the appropriate path for our development and the development of our lands, territories and resources, and we have had this right since time immemorial.
In a more modern context, this right has now been articulated very well in the United Nations Declaration on the Rights of Indigenous Peoples. In fact, we have just marked the one-year anniversary of Canada's endorsing the declaration. It was endorsed four years ago at the UN General Assembly. Article 32 of the declaration states:
Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
It is hardly a surprise that discussions about land claims, treaty rights and international human rights are often seen — as you said and as I think in some cases is seen as that broad myth — as the impediment to development, and it need not be so. In fact, this is becoming increasingly the way of the past. Greater First Nations control over our lands and resources to uphold our obligations to our ancestors and our youth is leading to more First Nations being involved in development, not fewer. Even better, the types of development being pursued are more sustainable and more environmentally friendly than in the past.
This begins to give effect to the original Rio talks back in the early 1990s wherein indigenous people, as Canada joined in ascribing, should be involved in helping to shape and define sustainable development.
One reason for this is the recognition of the duty to consult and accommodate. This duty forces the Crown and First Nations to engage in good faith discussions on the impact of the Crown conduct on Aboriginal and treaty rights. It is a rights-driven process that is working. There is no doubt that consultation and accommodation policy and practice need improvement. Any improvement in this regard should be seen as an investment in Canada's energy and natural resources regulatory regime rather than as a cost to it.
I am here today to tell you that First Nations rights are good for development, and involving First Nations in our role as caretakers for the lands and the waters is good environmental policy. Recognizing a strong and equitable role for First Nations in the development of an energy strategy will make for a more robust and more sustainable energy infrastructure for Canada.
Honourable senators, I have some recommendations to offer for your consideration. I do feel strongly that there is an opportunity for us to move forward together to reach mutually beneficial outcomes in developing a sustainable energy strategy that will bring prosperity to our communities and to Canada as a whole.
Industry and government need to shift to a new approach to deal with First Nations that respects our rights and title to the land, as well as our clear right to determine the course and shape of development in our territories and to benefit from development activities on our lands.
Some specific points are as follows: First Nations must be included in future meetings of federal, provincial and territorial energy and natural resource ministers. First Nations need a joint federal-provincial-territorial First Nations dialogue process to implement a national energy strategy. First Nations must be involved in the upcoming Rio+20 United Nations Conference on Sustainable Development — and I mentioned the original Rio talks — as well as domestic initiatives like Canada's sustainable development strategy, which must be implemented with the full and effective participation of First Nations.
I would add that our inclusion in the aforementioned example of Copenhagen was very welcomed and appreciated and can help demonstrate that Canada can take a lead role in the world for working on implementing the UN declaration and forging strong, direct working ties with First Nations.
In its conclusions on federal and provincial and territorial roles in the energy sector, the Senate should address the inherent jurisdiction of First Nations over resources, as well as consultation and accommodation. First Nations' values and traditional knowledge should be reflected in the final report of the committee and future work on this subject.
Again, I think building on the important apology offered by Prime Minister Harper in the House of Commons in the summer of 2008, recognizing that 150 years of policy through the residential schools, to seek to in fact remove language and culture and ties to the land and time with elders, was a policy that was wrong, that should never have happened and that must never happen again. So, too, should we begin to see the connection of indigenous peoples to their land, their language and their cultures as being a really important part of the rich cultural heritage of this country and of our history — something we should treasure, maintain and in fact support to prosper into the future.
The federal government could provide increased training, including education in trades for First Nations youth. We have a fast-growing population of young people, with the vast majority under the age of 25. They will increasingly play an important role in our future.
There is a need to provide capacity support in the form of technical assistance and in the form of access to capital flows for First Nations to work as equal partners in the development of energy projects; develop an environmental assessment process through the seven-year review of the Canadian Environmental Assessment Act that respects First Nations' traditional knowledge and rights; and assist First Nations' facilitation of a national discussion to develop a best practices guide for a process of consultation between energy firms, First Nations and government. This could be addressed, honourable senators, through what we have proposed. Support has been offered by the chiefs, the AFN and the Council of the Federation. I have spoken with the Prime Minister about the idea of the development of a national First Nations resource institute.
To come back to your introduction, Mr. Chair, of aspirations that I bring to this role, the original treaty relationship was founded on the notion of relationships. It is about coming together in mutual recognition and mutual respect. By way of those opening thoughts as well as some specific recommendations, I look forward to having a fruitful conversation. On the legal side of consultation, accommodation and Aboriginal title and rights, which is not my area of specialty, I would look to Mr. Jones for support in that part of the conversation. Thank you, Mr. Chair.
The Chair: Thank you, Chief Atleo. I have a couple of opening issues that you might wish to address. In our travels we have visited Newfoundland and Labrador. We heard much talk not only from the developers but also from First Nations representatives about the Muskrat Falls project, which either is or is not going ahead. We hear mixed stories about that and the role of First Nations in Labrador. In Quebec, and I have introduced at least three Quebec senators here this morning, we have a premier who has one issue these days, called the Plan Nord. All the papers yesterday in Quebec were filled with what I would consider, at least, inflammatory confrontational stories. We are insulated up here in the Senate. I am not sure what that is about. For openers, whether those are relevant issues, they are big energy projects.
Mr. Atleo: Those are two of a number of projects that can be described as offering up reflections of the reality — differences and divisions. I can think of projects out west as well. When we talk about energy, we need to consider its link to the mining sector and the Ring of Fire; oil and gas across the Prairies; offshore exploration moratoriums; the transportation of nuclear materials through the Great Lakes; pipelines; major hydro developments in the east and the west; and transportation by tanker. It is difficult to talk about one aspect without talking about its interrelatedness with other aspects of energy.
The overall reflection on the involvement of First Nations is that energy and energy development are associated with long spectrums of planning on the developer and business side, in particularly in the mining sector. The heads of those businesses will change hands many times over the course of a decade or two. As I said, if the original intention here is to put our relationship when it comes to resource development and planning around issues like energy back on the original treaty foundation, it means re-establishing those relationships. What is our plan and what is our vision? How will we recognize each others' jurisdictions? The United Nations Declaration on the Rights of Indigenous Peoples has set out for us in fairly clear language the notion of free, prior and informed consent. Part of what Mr. Jones and I would like to do here is to support the notion of consultation and accommodation. The UN declaration is there to guide us going forward.
We should understand the context and the reality within which some of these energy development questions or challenges are facing us across this country. Founded in a couple of aspects are a greater need to have treaty rights, Aboriginal title and rights, and concepts such as consultation and accommodation to arrive at a better shared understanding of what that means and how we can make it work. Layered on top of that is the need to have a greater shared notion of the development of an energy strategy.
If there is a major development required on one side of the border of a province or government, what is the difference on the Quebec side or on the Ontario side? When I talk about jurisdictions, it is not hard for me over two and a half years as national chief to point to instances where First Nations have come to me and said that they have had the bodies of their ancestors float to the surface of lands flooded for hydro development for the electrification of a southern city, while they are on diesel. We talk about a comprehensive strategy. I suggest that, based on what our collective ancestors articulated in treaty, First Nations need to have a full seat and be full participants in a meaningful way not only in describing the future but also in working through current challenges.
You mentioned only a couple of those, but we have many more. There is only one of two paths to take. If we work separately, it will be more difficult. It will be challenging anyway to work together, but by doing it we can raise a shared understanding of where we come from and our current challenges. Then, we can empower First Nations specifically to respond and to be participants in developing a vision for things like the Plan Nord in Quebec and Muskrat Falls in Newfoundland and Labrador.
In my experience, First Nations have not had their rights seen in the early planning and development of major projects; and there are a good many reasons for that. This conversation needs to be about how we sort this out so that it is much better and so we leave the planning efforts in much better shape going forward.
The Chair: Exactly. Thank you very much for that.
Senator Mitchell: We know how busy you are and the pressure you are under. It is good that you would take the time to be with us. We appreciate the fact that you have a list of recommendations and specific initiatives that we can consider concretely. I would like to address one or two of those.
Senator Angus mentioned that one of our focuses is myths. There is some confusion in people's minds about what exactly the power of a First Nations people is over a project, for example a pipeline that would cross their land. An issue in my province is the proposed Kitimat pipeline. I share the legitimate concerns of having huge tankers in that sensitive area of the ocean. One wonders why we cannot take it out via Vancouver.
Depending on the nature of the land disposition or the treaty lands, in your view do Aboriginal people have or should they have absolute veto over a pipeline that would go across their land? Could the government expropriate that land rightly or wrongly?
Mr. Atleo: Maybe I will offer some initial thoughts, and if the chair would permit, I would ask Mr. Jones to comment as well.
When the chair raised the Plan Nord, I thought about the work that was done by the Cree in the North led by leaders like former National Chief and current Grand Chief, Matthew Coon Come. The agreement forged stands as an example of First Nations title and rights being recognized, where First Nations are able to work out what a shared vision might be. This allows the jurisdiction of First Nations to be recognized. Conversely, treaties were always between two parties: First Nations and those looking to forge a future in what is now Canada. This laid out a way for us collectively to reconcile and to recognize one another.
You are describing the notion that one somehow trumps the other. That is where I will ask Mr. Jones if he has additional thoughts. The agreement forged by the Cree in Quebec is agreement-based, to start with. It addresses the economic benefit for everyone. It is also in a government context, so it is power sharing as opposed to the idea that Crown title trumps Aboriginal title or treaty rights.
Some of these treaties were forged before Canada was even formed. The UN declaration makes it clear that when Canada endorsed the declaration it also recognized that it is a successor state, that it inherits obligations to give effect to treaty. The approach we are pursuing this winter is to seek a meeting with the Prime Minister, which appears imminent. It is based on the notion of putting our relationship back on its original foundation, resetting it so that we can approach these and agreement-based notions in the way that Grand Chief Matthew Coon Come and his people have done. It is an important example. Where there are no agreements, we are left with a cloud of doubt and the questions you are describing. We need to arrive at a better shared understanding of that.
It does have some specific legal implications, Mr. Chair. If you would permit, perhaps Mr. Jones can offer a few thoughts on this important question.
The Chair: Yes, please.
Roger Jones, Senior Strategist, Assembly of First Nations: Thank you for the opportunity to provide some information. I read through some of the transcripts of previous meetings of the committee and understand how difficult it is to grapple with this issue. Unfortunately, the rule is not black and white. In your hearings you will hear people talk about the Haida case, which is central to the discussion about the requirement and the balance between the rights of indigenous peoples and the rights of government to develop land and resources. As we know, courts are loath to hand down rulings in black and white.
On the issue of consultation and accommodation, the courts have basically said that there is a spectrum of what is required by government in dealing with this legal requirement, and there is no doubt that it is a legal requirement. They say that the spectrum goes from providing notice, for example in the context of installing a culvert in an existing road, to acquiring consent of the rights holders in the context of a major development.
Given that there is that spectrum, each proposal for development will have to be assessed within that range. As National Chief Atleo has pointed out, the idea of veto has a negative connotation while consent is the opposite. With the idea of consent, you are working toward agreement and involving people in the decision and the process of development if it is to proceed.
The James Bay example of the 1970s is good one. It provided acknowledgment by both federal and provincial governments that the Crees had a legal interest and a legal stake in what happened in that territory. Through agreement they decided on how things would proceed development-wise. That agreement still forms the basis of their relationship. Grand Chief Coon Come pointed out that during the life of that agreement, going back to 1976 I believe, there have been 22 amendments to it. That establishes the principle that at the outset what is important is establishing the relationship and having a structure around it on how it will be managed among the people, the lands and the territories involved, and then you can keep building on it. There will always be change, so we have to revisit relationships. However, if it is founded on something that was forged by way of agreement, it is easier to re-engage to update the foundation.
Others who appeared before this committee spoke of to what extent the government has been able to address this consultation and accommodation issue. I downloaded the government's document called Aboriginal Consultation and Accommodation. My assessment of it is that it is a risk-management document issued by the Department of Justice to its managers for when they are confronted with these situations.
In Haida, although the court did not tell the government to make laws and regulations about it, it said that this is a complex issue that would arise any number of times and that it would be better to deal with it in a regulatory context rather than through an unstructured administrative regime. That is what the court called it, and I think that is what this amounts to.
Industry and First Nations ask what the rules are and this is what comes back. We need to have government, First Nations people and industry work together to figure out the best thing to do in terms of a regulatory framework that addresses the process of development from the beginning to the end.
Senator Mitchell: That is very good.
Senator Massicotte: I agree with everything you say. We have to respect agreements and treaties. Any relationship or deal must be based on mutual respect and trust in order to work. However, you made reference to the fact that when you negotiate a deal you have an understanding of your bargaining power and your rights, and everyone bends to that.
Quebec and the Cree did a deal, but in the back of their minds they knew how far they could go before the deal would break and not get done. My understanding of what you said this morning is that the minister said that he has an obligation to consult and that once that is done fully, with respect and mutual understanding, the federal government has a right to legislate and pursue the project, possibly with compensation.
I think you are saying that you do not agree, that, although you would love to make a mutual deal, in right of law you do not agree with that statement. Is that what you are saying?
Mr. Jones: I did read the testimony of the minister.
Senator Massicotte: That was clear.
Mr. Jones: Yes. Obviously, we disagree. You are absolutely right. The ability to arrive at an agreement is dependent on people's bargaining power, especially if people are to view it as fair and just.
Often our people feel that agreements are forced on them. It is take it or leave it. Is that a fair and equitable agreement in the end? No. Not for those people who feel that their rights really have been marginalized. At times people figure, "Look, it is not good enough. Therefore, I will go to the court." As I said, sometimes people figure that the court will assess and analyze the irreparable harm that could be done and the fact that any amount of compensation will not, I think, amount to fairness in the end. Therefore, they have to decide that the irreparable harm means they will have to agree with the indigenous peoples, in this case, and decide that this project cannot go ahead. If push comes to shove, people will resort to the courts. There will be a winner and a loser, which is obviously not going to produce a satisfactory conclusion.
I think what people obviously want is a win-win situation, and the best way to achieve that, obviously, is through agreement.
Senator Massicotte: We agree on win-win. When people feel that their rights have not been respected or that they have been bulldozed into an agreement — unfortunately, I lived that too many times — maybe the starting point is that one does not fully appreciate their bargaining rights.
Certain things I do not want to pay for. Something happens at home. I appreciate somebody has a right to decide. I could say, "You bulldozed my rights, and I will go to court."
Accepting the other person's right to show their side and the fact that there is a senior government and that yours is not governing government is maybe the real issue. Then you could say, "The federal government has a superior right; therefore, my argument is compensation or injunction rights because they cannot fully compensate me. It would be nice if the courts would decide that, once and for all, so everyone understands their positions and can get on with their lives. There are some challenges that people are now facing regarding energy, and it would be nice for people to agree. Yet, they may never agree because they do not agree on what their relative bargaining rights are. It is unfortunate in that sense.
Mr. Atleo: We need to also consider what is helping to contribute to this dynamic. In 2005, Natural Resources Canada came out with a report that said there was $130 billion in natural resources projects across the country where First Nations' rights would be directly implicated. However, that number has been revised and more than doubled as we sit here. It has continued to increase. We need to gravitate quickly to understanding these things.
While we are smashing myths, I think there is still a myth that First Nations are just one stakeholder. This cuts to the underlying challenges that you are referring to around the nation-nation relationship, which is what the original treaties were, and are still, all about.
In terms of where we are in resolving the land issue, First Nations would point out that mandates that governments come to First Nations' tables with, in negotiations, have not kept pace with even basic common law in this country.
Mr. Jones' analysis of the consultation and accommodation guide indicates that there is a gap and that it is not agreement-based because First Nations have increasingly developed their own consultation and accommodation guides.
In the absence of agreement, you have disparate approaches happening concurrently. We should not be surprised that this erupts into conflict on the ground, with First Nations opposing development, in some cases. In mining alone, we have well over 155 agreements between First Nations and industry. We have green energy leadership being demonstrated by First Nations from coast to coast to coast, in geothermal, wind, and even wave-energy technology, which is bobbing around offshore in my village. There is a lot of effort being made by First Nations, not only domestically, but in seeking partnerships internationally as well. I think the green economy area is one that First Nations have a strong interest in because communities like mine are so far off the central part of the grid that energy independence becomes crucial. It is not minor when an impoverished community like mine has the power go off for two weeks and loses the winter supply of fish that it worked so hard to harvest. You may have seen a report, just yesterday in The Globe and Mail, that First Nations were disproportionately harder hit with loss of jobs in this economic downturn, mainly because of late entrance to the economy and policies of first-in-first-out when things get tough. We really have to examine not only the legal and relationship aspects we are talking about but also the question of what the economic and job potential is. If we close the gap in education and labour market outcomes for First Nations, this could result in an additional $400 billion in output to the Canadian economy and savings of $115 billion in government expenditures.
It is important, when we are talking about this, to realize that the very premise we started with, that somehow First Nations are opposed to development and jobs, it is simply not true. We need to get to more of an agreement-based notion and turn this problem into an opportunity. We need to look at issues of poverty and deep unemployment, which are a current reality, and turn that into the potential for closing the education and labour-market gap. This is why we have such a big emphasis on education. I would submit that your study consider the link between this sector and areas of education and training as well.
The Chair: Mr. Jones referred to the legal document. Do you have extra copies?
Mr. Jones: Yes. I can leave it with you when I leave. It is also on the website of Aboriginal Affairs and Northern Development.
The Chair: Thank you, sir. If you could leave it, it would facilitate our work and save another million or so.
Senator Mitchell: Thank you very much for that; that was a very good discussion. Thanks to Senator Massicotte for pursuing it further. It is very helpful. If you can imagine a Canadian energy strategy, one chunk of it needs to be exactly what you have been talking about.
You talk of leverage. I heard industry leaders in Alberta say that we are not going to be able to develop what needs to be developed with the labour pool that we have, unless we can bring in more and more of the young Aboriginal people who are available and who will, can and must provide a workforce for these projects. I know you have built so much of your public life around this idea of education. A very good friend of many of us, Paul Martin, is working on that with Aboriginal people as well.
What, in a nutshell, do we need to do to advance education and training? Are there special circumstances that need to be addressed in the context of energy project development to make it possible for Aboriginal peoples to participate fully and contribute in the way they can and we need them to? They already are. I am not diminishing what they are doing, but there is still more to be done. What can we do to emphasize that and take advantage of that?
Mr. Atleo: We need to act now because of the youthfulness of our population.
Right now, a First Nations young person has, statistically, a greater chance of going to jail than of graduating from high school. Our leadership has made education a top priority. We are reaching out to civil society, to philanthropic groups. You mentioned Mr. Martin's efforts. He and others are stepping up in their private lives and contributing directly, reaching out to colleges and universities. We have a panel effort underway with Minister Duncan, which I had spoken to the Prime Minister about. We have a joint action plan with education as a top priority.
Last July, we and our sister organization in the United States, the National Congress of American Indians, co- hosted a summit. President Jefferson Keel and I convened an international summit on indigenous energy and mining. I had come across the electrification of a hydro project in the West where power was being purchased by a tribally owned authority in the United States. A little light bulb went off, but a little information can be dangerous; I am not an expert in this area. We began to talk with the Native Americans and it became clear that we need a North American approach to our energy needs. Tribal leaders in the United States and we hosted delegations from around the world to get a better understanding of oil and gas supplies throughout South America and where their reliance is. We looked at Asia and at the green economy in places like Europe, Scandinavia and Germany. First Nations want to be active participants and leaders in this area. We had over 800 delegates, and the leaders of industry were there as well. We are looking for their support to be full partners with us. We also invited people from Bay Street and Howe Street because we need to find ways to capitalize projects in our communities, where we are still hindered by the ancient barriers of the Indian Act, which still plagues us; and this is at the forefront.
The reason agreements like the James Bay and Northern Quebec Agreement are so important is that they go beyond the Indian Act and reach a new plateau. Even if you begin and it is not perfect, as Grand Chief Coon Come said, you can conduct the work of amending to strengthen and improve it. You have to have a basis on which to start, and so often we do not have that.
My last recommendation around a virtual national institute seeks to bring together the training partners, finance, business and industry to reach out to federal, provincial and territorial governments. We need to assemble a bit of a consortium that supports First Nations capacity and allow us to facilitate excellence in education and training specifically for the industry. We also need the foundation and your support, senators, for us to smash the status quo for First Nations education in this country; it is well overdue.
Mr. Jones: I have a couple of points on the question presented and a further comment to Senator Massicotte. The committee would benefit from having a better understanding of the dynamics and the interplay between rights and jurisdiction of governments. In a pre-1982 context, courts said that the federal government could override the rights of indigenous peoples in this country. That changed in 1982 with the inclusion of section 35 in the Constitution Act, which says that treaty and Aboriginal rights exist in constitutional law in this country. Section 52 says that the Constitution is the supreme law of the land.
As far as we are concerned, a transformation occurred in 1982. The old notion of parliamentary supremacy over the rights of indigenous peoples was transformed into a situation where the Constitution was made supreme. The fact that treaty and Aboriginal rights are recognized therein, we believe, requires an adjustment and rethinking around what happened in 1867 and with the division of powers in sections 91 and 92, which left First Nations people out of the power-sharing arrangement. That is what indigenous people are really after in this country. A discussion about energy and mines takes place annually between the ministers at the federal and provincial levels.
This was the case in Kananaskis last summer. The national chief wrote to the co-chairs, the Honourable Joe Oliver, Canada's Minister of Natural Resources, and the Honourable Ronald Liepert, Alberta's Minister of Energy, and sought an invitation to participate in this discussion because First Nations rights and interests are at stake. There needs to be inclusion when federal and provincial ministers in this country are coming up with an action plan for moving forward on Canada's ambitions of becoming a super energy power. The involvement and inclusion of indigenous people in that exercise are required because of the reality of the existence of their constitutional rights that directly impact on the extent to which federal and provincial governments can use their sections 91 and 92 authorities for the advancement of economic or regulatory interests and so on.
Senator Massicotte: I want to ensure that I understand. I am a Liberal, and I am sure that if the Liberals were the governing party, you would have been invited to that party; but I am just joking.
You said that pre-1982 it was clear from all the court cases that the federal government had a right to impose its will on your people. You said that the Constitution basically changed that dynamic and that quality of power. Is there any significant court case that confirms your interpretation of what happened in 1982?
Mr. Jones: I would say that Haida Nation v. British Columbia confirms that reality. The Supreme Court said that a government cannot continue to exercise its powers, whether federal or provincial, without due regard for how it deals with Aboriginal or indigenous interests that may be affected. The issue at the time was to what extent governments had a responsibility to deal with these interests. At the time, the court said that the issue dealt with the interests of indigenous peoples and those of the state in terms of regulatory authority and responsibilities to act as the government for the people.
Haida Nation set down the reality that sections 91 and 92 are not absolute. The government would have to deal with Aboriginal and treaty rights when proposing to exercise its authority by licensing, by permitting and by the review process. Unfortunately, the reality confronted by indigenous peoples in this country is that people are still operating in a pre-1982 context; really, that is what has to change.
I will quote the Supreme Court of Canada in Haida Nation, 2004:
It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts.
That is how the Supreme Court characterized the issue between treaty and Aboriginal rights and the rights of governments to regulate. It said that you have to reconcile those interests. It also said that you should want to do it in a regulatory context versus, as they go on to say:
As noted in R. v. Adams, [1996] 3 S.C.R. 101, at para. 54, the government "may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance".
That is what this is — an unstructured administrative regime. As a manager, you say you will apply it, but then it is up to you to determine whether you have applied the advice of the Department of Justice in terms of your decision making. As far as we are concerned, it is fairly discretionary when, in fact, the courts said that it is a legal requirement. It is best to ask people what that legal requirement should be so that people are satisfied by reconciliation.
Senator Brown: Thank you for coming, Chief Atleo and Mr. Jones. One of the biggest problems with negotiating now seems to be setting a time for the end of negotiations. Negotiations on the Mackenzie Valley pipeline have been ongoing for 30 years, I believe, and still not everything is decided as to when it will go forward. I understand that in about a year the agreements that have been reached will collapse and we will be starting all over again.
Do you have anything to do with the Keystone pipeline? It was sidelined a couple of weeks ago, but now it is proceeding again because the head of the Nebraska government decided not only that they would allow a different route over the Ogallala Aquifer but also that they would pay for the cost of rerouting it. Have you participated in any negotiations on behalf of Aboriginals about the pipeline moving through Alberta?
The Gateway project will also impact your people. Have you had any negotiations on that? I think that is the next project.
As national chief, do you use your influence both ways, that is, to influence either the Aboriginal side or the government side in order to reach a deal?
Mr. Atleo: First, my role in the Assembly of First Nations is national chief. We also have 10 regional chiefs, one of whom represents Alberta. The regional chiefs and I sit as an executive and are responsible for supporting, in an advocacy manner, those who hold treaty rights and those who give expression to Aboriginal title and rights, and those are First Nations citizens and governments. It is First Nations citizens and governments who have the right and responsibility to take specific positions on issues, specifically projects like the ones you are talking about. At times they will bring these issues to national assembly and seek the support of fellow chiefs from throughout the country. Resolutions are developed and drafted and I am instructed to provide advocacy support. This is true not only for the issues you have listed but also for many others. Examples include the Prosperity Mine in the Chilcotin region of British Columbia and Ring of Fire.
You spoke about the timing of negotiations. We need only look at my home province. We have had several decades of negotiations on three treaties at a cost of $400 billion of debt. We have a real issue on timing in reaching agreements in general in this country, not only on one project or one issue. As Mr. Jones said, this is really a risk-management document and not a relationship-building approach. As he said in quoting Haida, it is an unstructured administrative regime that is not conducive. It should not surprise us, therefore, that we end up with differing views of major projects and conflict on the ground.
This brings us to how to resolve this. We should be learning from the Mackenzie Valley pipeline, Keystone, Gateway and other major developments. We should be keeping an eye on the Ring of Fire and other major resource development opportunities such as potash in the Prairies. First Nations have the authority and responsibility, based on treaty, to have a say about major projects.
Keystone is important to all those not only on the land but also in the watershed connected to where that project may ensue. The Dene of the Northwest Territories have been very active. We have stood with them in recognizing that they take exception to the fact that they have not been involved, that their issues need to be addressed and that they have concerns with this.
We have a deep misunderstanding about title rights and treaty rights. We do not have an agreement-based process in this country, and First Nations and Canadians have yet to arrive at a comprehensive energy strategy so that we understand why major projects are required. What is our level of energy literacy? What is the balance of renewable and non-renewal? What are our future aspirations and what role will First Nations play?
The questions you are asking put us in a positional-based environment that ends up in conflict on the ground or in the courts, and that is the pattern we must break. We have put negotiations forward as an issue in our joint action plan, and the Prime Minister has agreed. If we are to pursue this meeting with him this winter, we will deal with the issue of negotiations, including timing and cost. I have nothing against lawyers, but it seems that for decades in British Columbia only reams of lawyers and negotiators have benefited, and it is lost potential. I do not want to say that has all been for nought, but we should be learning from that. It requires political will at the highest levels. I believe that we are arriving at that. We need to understand that there is a great economic cost to not resolving these issues.
You have described only a few projects. They might seem massive in both dollars and implications, but they are just the beginning. Natural Resources Canada has vastly underestimated the real implications of First Nations having a say. Words such as "leverage" have been used, but we must have a say about resource development going forward.
Senator Brown: I would like everyone to put a little extra energy into timing, because I think that is the biggest hurdle between the people of the government or the people of the project and Aboriginals. Timing is becoming extraordinarily crucial for the Mackenzie Valley pipeline. So much shale gas is being found all over North America and in many places that, in spite of the fact that there is a lot of natural gas in the North, we may lose it altogether, and your people would lose the benefit of the monies from that pipeline. It has been almost impossible to get it done. I do not know if anyone will come back to it again if we lose it now.
As another example, for nine years I was on the Rocky View committee that did all the planning around Calgary. I chaired the committee for five years. During that time, construction started on a beltway around Calgary. It is now completed as a horse shoe, although we wanted it to be a complete circle.
I believe that $50 million was given to the Aboriginal peoples in the corner that is not yet finished, and they built a large casino with the money. In order to get a resolution to this, the presiding government has decided not to give the Aboriginal people an exit from the beltway to the casino.
It has been delayed now for three or four years. They are now coming back to the table. It is not much use having a casino unless you have a way to get to it from the major population of the city of Calgary; which is 1 million people.
Everything that occurs between these two areas of government — whether provincial, municipal or federal — our side seems to want it to go faster. As the national chief, I am asking if you have an ability to say to all of the Aboriginal peoples that because of the projects and cost — like you said $400 billion went down on battles over Aboriginal issues — that we need to figure a way to get those done faster.
Corporations that get involved in things that cost billions of dollars do not want to wait for years and years to get things done. That is just a comment. I would I like to know if you agree that maybe we could work towards that.
Mr. Atleo: I could not agree more, senator. There are no timelines, which is why we have the state that we have in British Columbia. They are not the only ones. In the Atlantic similarly, there is a comprehensive claims negotiation process there. There are different types of agreements being negotiated, but we have no timeliness. In fact, First Nations are bringing their issues to the international arena, to the Organization of American States Inter-American Commission on Human Rights. The Hul'qumi'num on Vancouver Island are bringing their issue forward with respect to the negotiation mandate of the federal government.
With your encouragement — with us having the issue of negotiations, treaties within a joint action plan with the federal government and working with Minister Duncan and the Prime Minister — it is time we reinvigorate the negotiation process so we can get some real resolution and agreement-based approaches.
When we arrive where you are speaking about, we will start talking about these issues and challenges differently. We will say in Treaty 7 territories in Calgary, the Treaty 7 nations in Calgary have come to an agreement about transportation corridors. I think the experience that First Nations have is that we talk past one another's realities. There needs to be a place where we see each other's jurisdiction and end up with mutually agreeable types of resolutions.
There are issues with the negotiation timeline, and we certainly agree we need to move more quickly to resolution. I think each side may be pointing the finger and saying it is the other's responsibility. First Nations feel strongly that negotiation mandates have not kept pace both with common law, but I think also the United Nations Declaration on the Rights of Indigenous Peoples. If we examine it — and I have brought the reference of a few articles — it can serve as an agenda for change in areas like economics and sustainable development and working relationships for an issue you described; a transportation corridor issue in a major city. I know the grand chief in Treaty 7 is most willing and ready to sit down with his chiefs and other levels of authority. It really must be based on the treaty relationship, so you might come to an agreement about why something might be required and have a properly negotiated settlement for that. I stand firmly with Grand Chief Charles Weaselhead, with Treaty 7, with the chiefs in an area like Calgary. I also stand with the chiefs of the North, the Atlantic, in the Ring of Fire, the chiefs in British Columbia or those engaged in the 155-plus mining developments. We do have broad diversity. Notwithstanding the lack of guidance, there are still huge successes and we need to also remember those. First Nations have close ties with mayors and municipalities, very often with working protocols between and amongst one another. It is the same thing at the provincial level. We see goodwill. To this committee, we need to look to where those areas of goodwill are and bring those forward again. That is where we will find the assistance to address issues such as timeliness or problems with negotiation mandates.
Senator Neufeld: Thank you for being here. I have had a history of working with you in British Columbia. I think with your type of leadership we can start resolving some of these difficult issues. We should never think that will be easy or quick. It will probably take a long time.
I am going to ask a question, not so much about all of British Columbia. I would like to put on the table that there are 633 bands. Over 200 of those reside in British Columbia, with only a handful of treaties. I live in an area that is Treaty 8, which was signed a long time ago. You talk about a consultation strategy and somehow we need to have that. I know how we do it in Treaty 8 with oil and gas. Is everybody, Aboriginal and non-Aboriginal, happy? No, but we have been relatively successful in a lot of things we have done there.
When it comes to consultation — at least what I found when I was the minister responsible — is the consultation changed constantly, depending on which band you went to within Treaty 8. That is understandable to a degree. When you talk about a strategy for consultation across Canada for 633 bands — which is three times as much as British Columbia — my experience has been it changes. You can drive 100 kilometres and the whole consultation process will change.
How do we overcome that? How do we get to a position that we can actually consult on some standard? I am not talking about the federal court developing one. I think if the federal court develops one, we should all be a bit afraid, on both sides, whether Aboriginal or non-Aboriginal. I think when they start defining what consultation means that will pose another 100 years of, "How the heck do we do this?" Give me a sense of where you are coming from on those kinds of things.
Mr. Atleo: I can speak about B.C., given that it is home.
Senator Neufeld: For both of us.
Mr. Atleo: Exactly.
We do have a regional chief on our executive. Jody Wilson-Raybould is the B.C. regional chief at the moment. There are 203 First Nations in B.C. and over 30 languages; the most diverse linguistically in the entire country. The vast majority are without treaties, as you have said. There is complexity. I have spent a lot of time up there in Treaty 8 as well, with people like Chief Roland Willson, the grand chief and other chiefs. I think one thing that is important to note is that I am often asked this question. I do not want to put words in anyone's mouth, but it suggests there is exactly that; a lot of diversity and differences between each First Nation.
First Nations in B.C. will also look across the river, railroad tracks or highway and note there are 187 municipalities in British Columbia. There is rich diversity there and is not everybody takes the same position about issues, nor do provinces and territories. I think the original earlier question around the complexity has been raised. It is just because we have not tackled this discussion or the way in which we tackle regional and national diversity. It is time that we did that. We can build an approach that respects the autonomy and sovereignty of First Nations themselves to stand in their own jurisdiction. However, that increasingly leads to our interdependency and that we do need to find a way to come together.
There is another element here. The Indian Act created these 633 First Nations. When I am asked by government about the 633 — that is just so many and they are so diverse — if we look in our history books, it is the government that created these 633 entities. That is what we collectively still inherited. That is what we need to deal with to get beyond the Indian Act.
It is a challenge for First Nations to suggest that we are suddenly going to return to the 52 linguistic groups that we originally had when we still have an Indian Act that no one likes. It serves nobody and we have yet to move beyond it. It impacts all of our work; Treaty 8 is no exception.
This is not only a consultation question. You can think across the policy spectrum — education, how do we better organize for education success? We know successful education systems have second- and third-level supports; that means school districts, organizations developing curriculum, and communities working together. It does also mean things like economies of scale.
If we begin to recognize First Nations' jurisdiction, what I am observing is that in Ontario, the Anishinabek are starting to develop an approach; that is 42 communities working together. We are seeing this where there is recognition of jurisdiction and empowerment, whether it is those 42 communities in a portion of Ontario, or if it is Nishnawbe Aski in Northern Ontario in the Ring of Fire.
You have spoken about Treaty 8. In Alberta, treaties 6, 7 and 8 have forged a Memorandum of Understanding with the Alberta government. In British Columbia, when you and I were both serving in B.C, as Mr. Chair articulated, the three provincial First Nations' organizations not only forged a leadership council, we forged a provincial energy and mining council.
That was an effort because we do not have the institutions on our side. We do not have ministries of energy and mines on the First Nations side. You have First Nations chiefs who deal with everything from dogs on the reserve to major industrial projects without the capacity or the policy support. Right now it is more of a risk management regime, so you have First Nations that are on their heels.
I think we need to shift a reactive environment that we have, which very often results in a lot of conflict and speaking past one another, to a much more proactive environment because those implications for Site C or other major developments are massive. The people of the North, not just First Nations, need to be recognized; they are the breadbasket of this country. The resources and the power, by and large, are coming from jurisdictions such as Treaty 8, where your home is up North there as well. That has not been, by and large, recognized by the southern cities — that it is where a lot of the resources come from in this country.
Senator Neufeld: Chair, you touched just quickly on one project, Site C, which is a large one. I know when we decided, as government — I was part of the government then as minister responsible to move forward with that — we did start consultation processes in 2004-05 with First Nations not just in British Columbia, but along the whole Peace River where it flows through Alberta, right into the Northwest Territories.
I think British Columbia has done some great things in trying to work with First Nations in training and consultation, but I know there is some frustration. I do not disagree with you. In fact, I believe I said that non- Aboriginals do not always agree with what government does also.
However, there is a structure in place that says when there is a government elected — usually in the non-Aboriginal community, although there is still opposition to things — they will say okay, I guess we have to go ahead with this whether we totally agree with the whole thing or not. When you are talking about a huge projects — a $7 billion or $8 billion project on its own — there are going to be a lot of effects.
I think we are trying to continue to work with First Nations, but there is a law that says the government has the right now; you elected the government and it is going to move ahead with something. We will go ahead with it as long as you do all the things you have to do — consultation, accommodation, environmental assessments and all those kinds of things — and move forward with it.
Is it your sense that through your processes, at some point in time, we could come to that same kind of an agreement; or will it always be that each individual First Nation, wherever it is — most of them are the same First Nation, just separated — has to agree, or they have the obligation on their own part to represent their own people to continue to oppose something and hold it up?
I am not saying that is happening, but is that hypothetically where you are going, or would like to go?
Mr. Atleo: I used the example of the municipalities only to describe what we both agree — that there is that diversity. Where I think there are differences to be overcome, as Mr. Jones was saying, is that in some ways the way the policies unfurled is seeing First Nations as simply another stakeholder subject to federal-provincial laws and regulations.
What we have yet to do is give effect to the constitutional changes, where Aboriginal title and rights and treaty rights have been affirmed and recognized in the Constitution. We have yet to give effect to that.
The recommendations we are making here are very much to get to the challenges you are describing. That includes being involved in those discussions at the highest level. I recall when we began having our conversations with then Premier Campbell, who I think really was helping to lead the way in changing the dynamic and having real discussions to forge the new relationship.
It created a lot of work, but your very first point is the most important one. No one was expecting that this would be easy. I think that this will be more difficult if we do not engage vigorously in the manner in which we are not only suggesting, but are prepared to do. It will require hard work on all of our parts.
I think First Nations often are feeling very defensive because of the deep mistrust over the course of history, because of examples like I have described where not only were First Nations' rights dismissed, but there was that very first example of the ancestors in the burial ground — bones raising to the surface of a flooded territory. That is just one small example of a multitude of them across the country.
When Mr. Jones quotes Haida and brings forward the court concept of reconciliation, I believe that building on the Prime Minister's apology, the endorsement of the declaration and a proposed meeting with the Prime Minister this winter, this air of reconciliation requires the political leadership to signal to us that they are prepared to set these tables up to establish a shared strategy going forward that will allow us to get to agreements so that First Nations are pointing fingers less at governments and saying you are blocking my rights and title; you are infringing with my treaty rights and my Aboriginal title and rights.
Conversely, on the other side, developments are saying all you are doing is opposing. Right now, we have a perfect impasse and we have been there for a long time. The results do not surprise any of us — that we are not only in the courts but there is lots of conflict on the ground.
We are here to say we can break this, in my view. It will not be easy and it will not happen overnight. We can point to examples where there have been shifts in political work and leadership in places like British Columbia, but we need that to be the norm.
The principal relationship — and this is an important point — is between First Nations and the federal Crown. The Treaty 8 relationship is principally with the federal Crown. There has been a transfer of powers and authorities to the provinces and territories We have outstanding issues like the Natural Resources Transfer Agreements in the Prairies causing great challenges around natural resources — and they will increasingly in energy and in mining more broadly.
We do need to vigorously get into this discussion, and that is what we are saying we are prepared to do.
Senator Peterson: We talk a lot about the treaties, but my understanding is we have not even agreed on what the treaties say. For example, I think the First Nations' interpretation is they agreed to share the land with the settlers, but their view was it was the top four inches, not what is underneath. As a result, you spend 90 per cent of your time in litigation and confrontation.
Even when you are successful with comprehensive land claims, it takes 10 years to negotiate what it said. Instead of spending productive time trying to improve, you seem to be fighting all these battles.
I appreciate your comment on the inherent right to self-determination, which I think leads then to self-governance, and hopefully getting out of the archaic Indian Act. That has brought up transparency issues and good governance practices. Where does that stand now in terms of moving forward on that issue? I know it came up a number of years ago and was put aside. Is it back in play now?
Mr. Atleo: With regard to your comment about self-government agreements, I was just in the Yukon and having meetings with the Yukon chiefs. Notwithstanding they have issues with the implementation of their agreements, that is another example where issues such as accountability and transparency are agreement-based as opposed to a finger- pointing, he said-she said type of an exchange, which is not just in energy and mining or development, but it includes issues such as transparency and good governance and accountability.
When we are forging agreement-based self-government agreements, it means First Nations are in turn recognizing and engaging with other levels of government, based on an agreement. This is not even required to be a conversation, because everyone is aware and you are working through issues together.
Where we have it is by and large because of the Indian Act, where the accountability mechanisms flow between a minister and from a chief in council to a minister. That is not self-determination or self-government. It is still the paternalistic regime of the Indian Act. We are all suggesting we need to move beyond it. We require the collective political will to do exactly that. It means speeding up negotiations to get to self-government because that will create greater clarity of process, which I believe will have the concluding effect of providing greater certainty that First Nations treaty rights and title and rights are being dealt with, and concurrently greater economic clarity and certainty can be arrived at.
I was up in Treaty 9 in the far north of Ontario speaking of the senator's important point that we do not really have an agreement about what it means. In Treaty 9 I heard incredible testimony from the elders who have been saying that since the advent of Treaty 9, what the intention of First Nations of Treaty 9 was, for use of enjoyment of their territories, that they did not give up the lands. It was about sharing the resources. That has not been the government's interpretation.
Two commissioners were witness to Treaty 9 signatory. Their testimony by virtue of their writing has been found by happenstance by I believe a Queen's University student. It has been written in a book by Professor Long. It is called Treaty No. 9. These writings from 100 years ago affirm what First Nations have been saying unequivocally. We do need to get to the bottom of this because we have growing evidence across this country, and Delgamuukw in 1997 affirmed that oral history should now be welcomed in a court of law.
I remember that day because my father said, "Son, this is the first time that we are being seen as a people in this country, because if you do not have a history you are not a people." I think that rather than only seeing the common law as trumping treaties and dismissing them as relics of the past, they are as legal and should be as recognized today as the day they were forged. The intention of seeking a meeting with the Prime Minister is to put the relationship back on its treaty foundation. Nations like Treaty 9 and Grand Chief Stan Louttit and his chiefs have major economic implications in development in that part of the Ring of Fire.
We should not be dismissive of these, but by and large our conversations have been, or it has been shrouded in mystery. What is this discussion and why are we not on the same page? There are very good reasons for that. Rather than going to the courts, let us move this to an expression of political will and bring forward that kind of information and say we do need to rethink how we see each other through the treaty relationship. There is much more testimony that is starting to arise in examples like this.
Mr. Jones: I think it is important to note, as you do, the connection between resolving land claims or resolving the treaty issues, as are dealing with the issues of good governance, as are dealing with the issues of how we all work together in terms of an economic strategy for this country that will benefit all.
Obviously, you cannot resolve it all under one heading, whether it is your work examining energy and environmental issues, and others will have to do their work, but all of this work must happen concurrently.
The one thing that you can certainly provide a very useful and constructive role is in the issue that dominates the discussion, and that is around the consultation and accommodation issue. There is no doubt that the legal imperative in Canadian constitutional and common law is reconciliation. The best way in which to deal with consultation and accommodation is to envision a policy and a framework or a law that achieves reconciliation, which is a win-win situation, versus a win-lose situation. For sure you want to do it expeditiously, but you want to do it effectively. A committee like this can make recommendations around what are some of the essential principles and elements of good consultation and accommodation, which will help everyone — government, industry, the economy — and we have to remember this is a two-way street, the consultation and accommodation. There are certain principles such as early engagement. As soon as someone has the idea that they want to do something, develop something, the discussion needs to start at that point, not halfway through the planning process. Full disclosure is required because people need to know what the possible implications are. In order for people to be able to assess what those implications are, there are capacity and expertise requirements that are important so that people can have an informed discussion.
You will also perhaps need some form of dispute resolution within that process to help parties get to ultimately what they need to do, which is agreement, which is reconciliation, and it should be informed by timelines. As everyone points out, these discussions can go on for 20 years and still not produce an outcome.
The James Bay and Northern Quebec Agreement, which is a substantive agreement, took two years, as among the federal government, the Crees and the provincial government. Mind you, they had pressures around court injunctions and what not. Modern agreements are taking 20 years, and that is a lot of time, money and energy. Timelines are essential, and they would expedite resolution and reconciliation.
Senator Banks: Thank you, gentlemen, for being with us this morning. It is our honour.
It is an overly simplistic question, but if you and I set out to negotiate something, it is one thing if — as you are well aware — I am obliged to consult with you, and another thing entirely if I am required to obtain your informed and willing consent. Those two things, whoever is negotiating on whatever side of whatever issue, will result in different places. It is what Senator Massicotte talked about, where the stick is and how big it is.
Maybe we should work toward a recommendation that there should be some kind of template. You have said there are examples of successful negotiations. Maybe we should look at them to find out how they work and recommend a template. I do not know if we could find one that applies universally, but that would help, for some of the reasons given by Senator Neufeld.
Is it your view that the provincial government or the federal government requires the informed and willing consent of a First Nation, or does the duty end with consultation and accommodation? They are two very different things.
Mr. Atleo: The UN declaration stands as the latest minimal acceptable standard by indigenous peoples globally, including First Nations in Canada. Article 32(2) of the declaration reads:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
Senator Banks: Would you agree that that is a different standard than we have normally applied in this country?
Mr. Atleo: Yes, and this article states "particularly in connection with the development, utilization or exploitation of mineral, water or other resources."
In addition to the specific dispute resolution, if we are able to arrive at a better framework, a better mechanism that is more broadly agreed to, not only would we be aided by the notion of timelines but also dispute resolutions processes could not be contemplated only at the project level. First Nations have been suggesting for a long time the establishment of an independent treaty tribunal that would, in an independent fashion, reflect back to the parties that are in conflict.
This would remove the federal government from being both judge and jury over a treaty to which it was only one party. The issue now is that the federal government is both judge and jury, in a unilateral fashion, over the interpretation of Aboriginal title and rights and treaty as is articulated through policy. What is required now is a shared notion and joint development.
We have some examples of successful joint policy development. We worked on the Specific Claims Tribunal quite successfully. That was suggested for a long time and we finally executed that. We jointly designed legislation going forward.
It is our aspiration that going forward in areas of resource development, the issue of free prior and informed consent, and consultation and accommodation, we would come to a greater shared understanding of how we will move forward and formulate joint policy and, where required, legislative-type efforts. As long as it does not infringe on or adversely impact treaty and title rights, First Nations have expressed, through their practice, an openness to doing that.
Senator Banks: Mr. Jones mentioned that sections 91 and 92 are not absolute, and the courts have ruled on that. The courts have also ruled, subsequent to 1982, that section 35 is not absolute either. If we want evidence of that, we need only look at the different versions of non-derogation clauses that have appeared in successive pieces of federal legislation having to do with the environment and natural resources that have impact upon First Nations. Subsequent to the decision of the Supreme Court that section 35 is not absolute and that what you might call eminent domain sometimes obtains, the drafters have tied themselves in knots trying to find a way to express that clearly in a non- derogation clause.
If sections 91, 92 and 35 are not absolute and non-derogation clauses referring to section 35 are not absolute, do we not need to find a way of making something, anything, absolute?
Mr. Jones: That is a good question, and you are absolutely right about how the courts have dealt with this issue. You are right that they have said that section 35 is not absolute, that there is a justification requirement. I think the courts are trying to be helpful. This is largely a political discussion. It is a discussion about power sharing and wealth sharing, and the best way in which to deal with that is through a negotiation process, which I think is why they keep repeating "reconciliation."
They want the parties to be able to achieve agreements rather than courts imposing decisions, orders and outcomes on them. I do not think it will help if the courts decide that one party's power is more absolute than the others, because obviously someone will be disappointed in that outcome and there will always be conflict.
The political and power-sharing arrangement was to be worked out in the constitutional conferences on section 35 of the 1982 Constitution. It was not worked out, so we are left with continually grappling with that issue. I am not saying we have to go back to the constitutional table, but it was envisioned that it was going to be a challenge. That challenge is still with us. As was pointed out, there are many issues and many dynamics at play here. We have to be brave and try to tackle all of them and see what emerges.
Senator Banks: We talked about the number of places in which we have to do that negotiation. Any one of the 155 negotiations that are in train now would be an example. Before we can deal with those properly, do we not have to have a sort of super negotiation to determine the rules of the game by which each of those 155 negotiations will be resolved? We cannot have 155 different styles, routes or claims of accommodation. Do we not have to have the rules of the game negotiated before we start trying to find fairness at every turn?
Mr. Atleo: I will build on what Mr. Jones said about where the legal leaves off and the political begins. There are probably not many areas of relationship law that are absolute between various levels of powers. We will see that in the lead up to the 2014 health accord negotiations. They will be political. There are laws and legislative directives certainly, but in the end it will be a political resolution of sorts. By the way, First Nations will be seeking direct involvement in that.
We can now hear the F-18s overhead saluting our soldiers who served in Libya. I am glad that this honouring is happening. As I said at the outset, we are coming up to the anniversary of the War of 1812. I cannot let a moment like this go by without recognizing all our veterans, including First Nations veterans who continue to serve to this day.
We have signaled to the Prime Minister on how we might deal with the issue of negotiations. One of the great motivators for me to be in this work is the knowledge that I need to extend my reach beyond my little village and understand how negotiations are happening in the whole country, be they on mining, fishing or other things.
One of the first things that compelled me was recognizing that negotiations were not even keeping pace with current legal instructions from the courts. The legal overviews that Mr. Jones has been providing are not necessarily the foundation upon which negotiations work. There is a great disparity. It is really difficult to be at a negotiating table if you feel that, fundamentally, the negotiation mandate of the other party is not respecting the instructions of common law. If the Crown wins a court case, the law changes overnight in the favour of the Crown, but if the law favours First Nations, we do not see a similar type of behaviour.
We do need to put that negotiating piece back on the right track. I think that is a very political question. This committee could help to encourage the government that we, as the AFN and First Nations across the country, can have a facilitative exercise to engage with First Nations, to say that we need to reform how the negotiations are taking place. We are equally concerned about timeliness, cost and getting a greater level of certainty for everyone, but I will always maintain there seems to be greater pressure for First Nations to somehow deliver certainty to others, when we have not had it ourselves. It becomes less about trying to push somebody to do something and instead about whether we can do something together. That is what we have not been doing for the longest time.
The Chair: I cannot help but add to your words about this special occasion today for our veterans and the people who served so well, not only in Libya in that recent NATO exercise but also in general, including, of course, the First Nations people who have served so gallantly over the years. It is a great thing.
I also wanted to mention that Senator Banks will soon be leaving these hallowed halls because of that breach of the human rights that forces us to leave early. He might be available as a negotiator. As a footnote, I, too, am reaching that milestone very soon. Maybe the senator and I can join up with that other great senator, Senator St. Germain, who holds out great hope for the progress of this coming together and breaking the impasse. We only know what he tells us, but it sounds — because he was so nicely honoured by First Nations earlier this week — like you all must have some faith in what he is accomplishing.
We have had an interesting discussion on some of the legal elements this morning. It is good to have it on the record to help us demystify some of the myths in that area.
However, on your website you have a wonderful report about the clean, green, sustainable and alternative energy sources in the North. I think it would be a shame if we got through this meeting without some reference to that.
Chief, could you say words about the initiative that led to that great report and what we should take from it?
Mr. Atleo: I might need help understanding what specific northern project you are talking about.
As to green energy, if I can speak to that, I just sat with Chief Allison Metallic, from Listuguj, in the Gaspé, pursuing a wind farm in the Atlantic.
Moose Cree First Nation, in Ontario, has a 25 per cent ownership in a new power generation project. It is a $2.5- billion hydro project. We can balance those horror stories with stories that First Nations are directly engaging and in fact, as it is said, bringing skin to the game. In the business world, this means everything. First Nations are prepared to do that, which is why we reached out to Bay and Howe Streets and said, "Work with us because we want to be full partners."
Our Semiahmoo First Nation in British Columbia is an investor and partner in a new $200-million natural gas plant that will create jobs and deliver clean energy. The Gitga'at First Nation is pursuing energy management software to analyze shift, reduce electricity consumption and bring new technologies to improve the efficiency of their diesel generators. Swan Lake First Nation in Manitoba is developing a multi-million-dollar, 10-megawatt wind farm.
We have the famous Mike Holmes, of Holmes on Homes, working with us to bring new planning to a First Nations community on reserve. Those are just some examples of the kind of innovation that we are seeing from First Nations.
The Chair: You will recall that Mike was with us on that famous trip to Copenhagen.
Mr. Atleo: That is where the partnership originated, which is an example of why these partnerships are so important.
To conclude, my good friend Gordon Planes and the T'Sou-ke First Nation, on southern Vancouver Island, have the distinction of being the highest per capita solar user of any nation in the world. He says that a bit tongue-in-cheek; I do not know how many hundreds he has. The point is that they have a huge, huge solar project on T'Sou-ke First Nation.
We will provide you with a written document. We are finding, Mr. Chair, that there is a doubling, annually, of the number of First Nations pursuing green energy projects from coast to coast to coast. It is an exciting new field, and we certainly see First Nations wanting to be leaders in sustainability and sustainable energy development.
The Chair: Thank you for that, chief. I may have misspoken by confining it to the North. Senator Seidman had mentioned a report. It is probably all across the nation.
Mr. Atleo: You twigged my memory about a biofuel project in the Yukon. There was a beetle kill that Senator Neufeld and I would know very well about, all up and down the interior and spreading into the Far North. They are turning that into an opportunity in bio-energy.
There are many, many examples that we need to draw from, shine a spotlight on and grow out.
The Chair: That is wonderful. If I can add, I did mention that we would be in Vancouver on Monday, November 28, and Tuesday, November 29. We are having public hearings, and we do have some time. We will run short of time in a few minutes here, but we are really interested in so many things that have arisen from the excellent points that you have made.
Senator Sibbeston: I do not know whether my statement will elicit a response.
The Chair: Is it designed as a question?
Senator Sibbeston: I wanted to make a point and perhaps reinforce what National Chief Atleo has said about Aboriginal people's need to have settlement and certainty with respect to their land and resources rights. I point to the Mackenzie Valley gas pipeline as an example of a massive project in Canada in which Aboriginal people will, if it ever goes ahead, own one third of the project. This would not have happened had there not been land claim settlements in the Northwest Territories. The Inuvialuit, the Gwich'in, the Saulteaux and all of these other Aboriginal groups are now participating and partnering in a big project like this because of the confidence and the certainty with respect to the land and resources and financial resources. This has come about as a result of certainty of land ownership and resources.
I point to that as a project that shows the importance of settling claims with Aboriginal people. To give an example, there is one group of Aboriginal people in our area, in the place that I come from, the Dehcho Dene, that have not completed their land claims. They are the one group in the North that are somewhat in opposition to the pipeline project because the pipeline will traverse their lands, without a claim being settled. There is uncertainty. They are also not in as good a bargaining position with respect to any rights that may come from the project.
Right from the very beginning, Imperial Oil and Esso, which are large corporations, recognized that if the project ever had a chance of getting off the ground, they had to involve Aboriginal people. This would not have happened before. Esso and Imperial Oil's histoy in Norman Wells, with the discovery of oil in 1921, is very bad. They did not give employment opportunities, training or any benefits at all.
Their past corporate behaviour, before the Aboriginal people had claims, was really bad. It is only now, in the modern era, when they had to deal with Aboriginal people who had rights, that they recognized that they had to. This may serve as an example of the benefits of Canada's settling claims and recognizing First Nations' jurisdiction, as it were, over lands and resources. When it is recognized, then Aboriginal people participate and contribute in great and meaningful ways to the economic development of our country. I wanted to just say that, if it can help in our report.
The Chair: That is great, Senator Sibbeston. Did you want to comment on that, national chief?
Mr. Atleo: Only to agree that the settling of these issues is paramount.
I also want to emphasize that, like in the Canadian Environmental Assessment Act, like in our suggestions that we be involved in helping to shape a way forward not only with the act but with the energy ministers, look at our shared values around the term "sustainability." Canada has expressed this firmly going back to the original Rio talks. We do have shared values around not exploiting the last resource. What are we leaving for future generations? We have shared concerns around the state of affairs of the environment, and these become very highly polarized and positional type conversations.
We are here to suggest that we draw much more closely together, to agree to do the hard work and not allow ourselves to think that there is any easy road and that somehow, if we do not engage vigorously, that these issues will not only go away but somehow, mysteriously, our problems will be solved for us. That is not the way forward. As I said at the outset, it is the hard or the harder way. I would implore us to not choose the harder way where we go our separate paths and end up cycling through conflict after conflict, but rather get on with the very difficult work of reconciling, and to stand up for all First Nations, including the Dehcho. I am glad that Senator Sibbeston brought that item up. It helps to serve as a reminder that our work is not yet done. If we look to the federal government and the Prime Minister to signal to the country that this is an important aspect for the future of this country, I believe we can make significant progress in a much more rapid manner than we have up until now.
The Chair: That is very important. As we have proceeded with this study, it has become very clear to all members of this committee that the stakeholders and those who have the biggest interest in ensuring that we do develop a framework, a strategic way forward for a new and more efficient energy system in Canada, the Aboriginal peoples, are basically involved in the way you have described. Certainly you will find that our report will reflect that. We are hoping you and your colleagues, chief, will work with us as we drive to a conclusion. We are hoping to report in June 2012. As I reiterate, we will be in Vancouver early next week and, if there are issues that you feel did not get aired today that you think would assist in this process, that would be great.
Senator Massicotte: Look at the history of our country. When I became a senator, I asked, "What is the most serious issue confronting our country?" There have been international reports that it is our relationship with your community. When you look at our report card, it is a very black mark. Many of us have been discouraged by the fact that it is such a big issue, talked about for so many years and so many times. Many have said let us not make much effort since we are not going to get anywhere, as has been witnessed the last few decades.
I must say that hearing you speak this morning, and I am sure I speak for my colleagues, is refreshing. You give me a sense of confidence. You have an openness. I think you have a frankness that we appreciate. I can appreciate why you always refer to the nations. I am not sure if that is as relevant as you think it is, but I can appreciate it is an opening position. I encourage and support you, and let us hope we make significant progress to your community and to the benefit of every Canadian. Good luck.
The Chair: Whereas Senator Massicotte had a minor slip of the tongue earlier in this hearing, we actually are a non- partisan committee, and we are collectively interested and focused on the same goals.
Thank you. It has been enlightening for us, and we look forward to receiving that information. I think you are going to leave a document with us, Mr. Jones, and the other report on the sustainable projects. That is super.
If there is nothing else, colleagues, the steering committee has a little duty for 15 minutes. I will terminate the meeting.
(The committee adjourned.)