Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 50 - Evidence - October 23, 2018
OTTAWA, Tuesday, October 23, 2018
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 5:54 p.m. to study the emerging issues related to its mandate (topic: social licence and consultation).
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good evening and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Rosa Galvez and I am the chair of this committee. I will ask senators around the table to introduce themselves.
Senator Richards: David Richards, New Brunswick.
Senator Cordy: Jane Cordy, Nova Scotia.
Senator Lankin: Frances Lankin, Ontario.
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Neufeld: Richard Neufeld, British Columbia.
Senator MacDonald: Michael MacDonald, Nova Scotia.
The Chair: I also want to introduce Sam Banks, analyst of the committee, and the clerk, Maxime Fortin.
Colleagues, we are meeting today for our second meeting on the duty to consult and the concept of social licence to operate in the context of environmental assessments and major project proposals. Today we welcome three witnesses: Dwight Newman, Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan; Michael Cleland, Senior Fellow, Positive Energy Project at the University of Ottawa; and Kenneth Brown, Representative, Eagle Spirit Chiefs Council at Eagle Spirit Energy Holding Ltd. Thank you for joining us.
I will invite Mr. Newman and then Mr. Brown, who are connected by video conference, to speak first and then Professor Cleland. Please, Mr. Newman.
Dwight Newman, Professor of Law and Canada Research Chair, University of Saskatchewan, as an individual: Good afternoon. My name is Dwight Newman, Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan.
Significant parts of my work focus on the intersection of constitutional law and resource development. Some of my books are focused in that area, including a book on natural resource jurisdiction in Canada and a recent book on mining law in Canada.
I have discussed the duty to consult doctrine in various publications, including in two books that have been cited in court judgments. I was pleased to receive the invitation to assist the committee on its understanding of the concepts of duty to consult and social licence. I have been directed to focus on helping with the understanding of these concepts more so than on any immediate attempt to apply them in the context of Bill C-69. We can, however, turn to that in questions if you wish. I will begin with a few preliminary comments on these concepts and then am happy to address any questions that may arise.
One key point to note is that the two concepts, that of the duty to consult and that of social licence, are different in kind.
The duty to consult is a legal doctrine with a specific place within Canadian constitutional law and specific recognition under section 35 of the Constitution Act 1982, the section on Aboriginal and treaty rights. The concept of social licence, in its original use, functioned simply as a business concept for resource companies. To the extent it has taken on a different meaning today, it is still not a legal concept but a sort of political concept that gets used in various ways, including to argue for new legal requirements.
I will begin with the duty to consult doctrine. In its main use that concept refers to a set of rules built up in case law since the Supreme Court of Canada’s 2004 Haida decision. That body of cases creates a set of rules on government decision-making when a government decision may affect a claimed Aboriginal right or treaty right claim to which some kind of uncertainty attaches. Where there is a legally established or an agreed right, a different set of rules apply to governments in the context of the justified infringement test from the 1990 Supreme Court of Canada decision in Sparrow and in related cases. There consultation is a factor but it’s a different line of cases, and it’s not the main reference of the concept of duty to consult.
Following Haida, the duty to consult arises as a proactive obligation on the Crown when the Crown, or the government, is making administrative decisions that have a potential adverse impact on claimed Aboriginal or treaty rights the government knew about or should have known about. It arises even where there is ongoing difference of opinion concerning those rights and where they have not been settled through final negotiation or through litigation in the courts.
This duty is proactive in the sense that it’s a requirement each time before the government makes such a decision. If the government fails to do that, then there is an immediate breach of the duty to consult and remedies may arise.
This duty to consult is triggered hundreds of thousands of times per year in Canada. That statement might sound dramatic — it derives from government statistics — but part of what makes this manageable is that what is required under the duty varies based on the circumstances. Two factors affect how deep the duty is in particular circumstances and these generate what is sometimes called a spectrum analysis. These two factors are what’s called the prima facie strength of the claim and that means how likely it is that the Aboriginal right in question would be upheld if legally tested. The other factor is the degree of impact on the claimed right arising from the government decision.
So, where both those factors are strong, one gets a duty to consult said to be at the deeper end of the spectrum. A deeper duty to consult requires interactive consultations and, quite possibly, accommodation of the affected interests at issue through appropriate adjustments to the government decision.
Some government decisions give rise to all of those requirements. Others on that spectrum analysis give rise to mid-range or even shallower duties to consult that may require, at the lower end, something as little as giving a written notice of the impending government decision with some chance to respond to that on behalf of the Indigenous community or communities in question.
I want to address one common misunderstanding of this legal duty to consult doctrine. To be clear, it’s different than consultation in various other contexts or in more informal uses of the word.
The legal duty to consult does not relate to views or opinions; it relates to whether there are identifiable potential impacts on Aboriginal rights or treaty rights. I might add that it does not give rise to any sort of veto power; the courts have stated that many times. So long as governments meet their requirements under this duty, they can proceed with their decisions even in the face of disagreement. However, it is still a meaningful protection for Indigenous communities because of the requirement of what’s called meaningful consultation, and consultation is always meant to be meaningful in trying to achieve the purposes of the duty to consult and why the courts have generated this duty.
Many things have been said about meaningful consultation, and in a more informal sense some courts have explained that consultation under the duty to consult is not just a chance to blow off steam. Rather, governments engaged in consultation under this doctrine are meant to enter with an open mind and to consider the input that they receive on potential impacts on rights.
Merely doing more consultation does not face the issues that might arise. A legal regime that wants to ensure that consultation requirements are met needs to meet the specific requirements of the duty and work towards achieving meaningful consultation, which is more of a qualitative requirement than a quantitative one.
The duty to consult is different than social licence in being an actual part of the law. I’ll address social licence very briefly. The term was coined by a mining executive to describe a practical business idea that mining companies that lost social support for their activities, particularly in unstable legal environments, could face a range of problems. In some developing countries, mining companies might face changes in the legal requirements, surprise changes in the law and government seizures of their assets or illegal private interference.
Those arguing that social licence deserves more attention in Canada are not usually referring to that original idea of it. I hope they are not or they are, effectively, saying that they approve of those kinds of threats in addition to legal requirements. The discussion around social licence is around an idea that our legal requirements should include some measure of social acceptance or social support for a project.
The Province of Quebec has been the furthest down the road of putting in such a legal requirement, although phrased more in the French text as “acceptabilité sociale,” or social acceptability, which I think is more accurate than social licence. How to measure that has some uncertainties but there is a frankness to it. The suggestion sometimes floated, that social licence is already a requirement for projects, does not have a legal basis. Right now, this is more of a political claim about a suggested further requirement on projects. In some contexts, it will align with Indigenous rights; in others it might actually run directly counter to them.
Those are the vagaries of turning to social views on matters. I hope that these preliminary comments offer some introduction to the two concepts of duty to consult and social licence. I’m happy in the course of the time we have to turn to any further discussion around those concepts, where I might be of assistance.
The Chair: Thank you very much, Professor Newman. Can we hear from Kenneth Brown, please?
Kenneth Brown, Representative, Eagle Spirit Chiefs Council, Eagle Spirit Energy Holding Ltd.: Good evening, everyone. I will try to be as expeditious and succinct as possible because I know it’s late there and you guys probably want to go eat.
This is certainly an interesting dichotomy of presentations between the legal perspective and what I have to offer. I don’t have a legal perspective, but perhaps I can provide context on the Aboriginal perspective.
I’ll start by reiterating or quoting Calvin Helin, who sent me an email earlier today with respect to social licence and consultation: “I would suggest that proper consultation gives social licence from First Nations. Otherwise, social licence is so nebulous a concept as to be useless. Before the last election, Trudeau said he would recognize the social licence of First Nations and give them veto over projects in their territory, which certainly hasn’t happened for the TMX or for Eagle Spirit and its energy corridor communities.”
In the context of Bill C-69, which I will not focus on, social licence should go to those who have real standing, such as those tribes who have Aboriginal title on traditional territory impacted by development. The First Nations have been environmental stewards in their traditional territories since time immemorial and certainly do not need environmental NGOs or people from outside of their traditional territories dictating government policy or what resource projects should go ahead. First Nations have paramount standing in all such discussions because they are the only party with constitutional authority to be consulted and accommodated.
So, I think the best thing for me to do is to just give you some feedback on the Aboriginal perspective. I obviously look like an Irishman, but I was a three-term chief of a First Nation band and, subsequent to that, managed their development corporation for some time and oversaw $1 billion worth of economic activity within our traditional territory.
When you talk about social licence or government-to-government reconciliation and a lot of these, respectfully, politically and bureaucratic buzzwords that are referenced in a myriad of documents in terms of how to engage First Nations, most of the Aboriginal communities look at that as disingenuous and somewhat mendacious in nature. A lot of the time from a First Nation perspective — their empirical experiences of being let down by policy that’s never put into action — the spirit and intent of these documents ultimately gets subverted when it’s applied in real terms and real life and you start to see projects move forward.
I do find there’s an irony, and I say that in the most respectful way possible. You guys are senators and you are generously offering your time, but the irony of social licence in consultation — we’ve got a significant bill that’s going to radically transform how energy development is engaged in this country with Bill C-69 — is that the Indian Resource Council, which doesn’t support this, wasn’t consulted. The Eagle Spirit energy corridor, in partnership with 35 First Nations, wasn’t consulted.
We can provide as much legal verbiage and as many buzzwords as possible, but if you want to meaningfully engage, you’ve got to seize opportunities in front of you. What I mean by that is not all Aboriginal communities are created equal, for obvious reasons and not just in terms of culture and governance, but in resources. You’re not always going to win and have bands come on board. A lot of First Nations communities are inundated with offshore money that comes in and shapes a lot of the collective direction of First Nations communities. You’re seeing that with Tides and Driftwood. They run a pretty elaborate intelligence operation, and they get into a lot of these communities. There’s no definitive template model for how to engage First Nations because all are different.
From a macro perspective, what governments should be focusing on is identifying examples of relationships with First Nations that work and showcasing them. If you want to alter attitudes and effect change in Aboriginal communities — who are predisposed to always wanting to be obstructionists, always pushing an environmental agenda — is strike while the iron’s hot. Case in point, when you’ve got an opportunity like you do now with Eagle Spirit Energy, an unprecedented 35 First Nations have come forward and are making a pretty loud declaration. It’s their traditional territory that’s impacted, and they’re saying that they want to do this. It’s quite a remarkable proposition. You’ll have to forgive me if the underpinning of my conversation is centred on that, but I think it’s very relevant to what you are talking about today.
If the mandate of the government and the ultimate outcome from social licence and consultation is to move projects forward, then I am sometimes confused. It feels, lately, that it is not the motivation of this country to move projects forward. Things have become a bit ambiguous. Ultimately, however, if the goal is to move projects forward, expedite process, get Aboriginal participation and move things forward for regional, provincial, and national prosperity, there is only one real solution; that is using Aboriginal communities that are successful as an example.
I think that doing a before and after snapshot of the metrics of what’s happening in Aboriginal communities with infrastructure, health care, education, disposable income and then showcasing that to other Aboriginal communities is the ultimate goal.
In terms of reconciliation, a lot of the First Nations, respectfully, see that as linguistic camouflage or more of the status quo, more of the same. I don’t want to pontificate too long. I’m sure it’s been a long day for you. This is important. Almost a third of the population is about to retire, the baby boomers. Everybody’s living longer and not paying into the tax system. They are a strain on the medical system. All these things you understand from a macro governance perspective.
In the Aboriginal community, because of the low education, unfortunately, and the lower quality of life, you see more childbirth. You’ve got prolific population growth in Aboriginal communities. So what’s the solution? More government-sponsored welfare or economic self-sufficiency, self-reliance and independence for Aboriginal communities? We’re at an impasse as a country and we need to start being pragmatic and making real decisions. We cannot continue on the trajectory we are on.
I was reading an article titled, “The Canada most people don’t see.” It makes reference to the unemployment rate being worse than Sudan’s and the median income on par with Latvia. The infant mortality rate is worse than in Russia. Sewage systems that don’t work. I’m sure there are some accountability issues in some of those communities. But it’s the bureaucratic bondage of living in the INAC welfare trap that’s created this mess. There’s only one way out of it. We need to address it head on.
It is a national crisis that we’re losing $40 per barrel on Brent Crude pricing. There are 35 First Nations who are prepared to step up and solve that issue for the country. The missed opportunity on social licence and consultation is not to talk to Eagle Spirit or the Indian Resource Council and get their perspective. These people have skin in the game. They’re invested in what is happening. Their interests are congruent and aligned in many respects with the producers in this country. The idea that Aboriginal interests are antithetical to proponents’ interests is archaic and preposterous.
First Nations people are moving towards economic self-sufficiency, and we need a government who will put their money where their mouth is and not offer more feel-good linguistics, more buzz words, more Orwellian double speak, but get behind Aboriginal communities who are prepared to do it. That’s essentially my perspective on the issue.
Michael Cleland, Senior Fellow, Positive Energy Project, University of Ottawa: As with the other speakers, I’ll endeavour to be succinct and to the point. I provided your clerk last week with a briefing note outlining the state of play of our project at the University of Ottawa. Basically we’ve come to the end of a three-year process looking at the state of public confidence in Canadian energy policy, regulation and decision-making. I emphasize that, the whole suite of policy, regulation, and decision-making, and note we prefer not to use the term “social licence.” We think it’s misleading. I’ll come back to that in a minute. The term we prefer to use is public confidence.
I won’t go through all of this in detail, except to note a few of the governing concepts that are particularly important. I’m pleased that the committee’s taking a big view, or a big picture, of the system and how it works before you get to Bill C-69. All I can say is amen and good that you’re doing that, because this is a system. It needs to be thought of in those terms with multiple parts and imperatives to meet, whether it’s to provide jobs or energy services to Canadians or meet any number of environmental and social objectives.
From our work, it seems clear that we need a longer-term vision of where we’re going with energy in Canada if we are to solve some of the problems that we’ve got in front of us. That’s a vision which will need to balance a large number of interests. We think that’s possible. The people are prepared to step up and be constructive contributors to that. We don’t think the system is broken, but it is very much in need of informed reform.
Another concept that we come to and is the title of the report at the end of the three years is a durable balance. There are a number of interests which must be balanced if it’s going to be sustainable, last through changes of government and over time; in particular if we’re going to deal with the long-term issues surrounding greenhouse gas emissions, it must be durable and stay in place longer than one electoral cycle.
So let me talk about some of the work that lies behind this. One is the community’s project, which was a set of case studies that we did from British Columbia to Atlantic Canada. We looked at different kinds of projects under different circumstances; three of them involved Indigenous communities.
A few things stand out. One is that policy failures played a big part. In places where the projects failed, what lay behind that was a policy failure. There were often process failures. Context matters. The other witnesses both made the point that the specific context of the community you’re dealing with is something that has to be taken into account. Also, no community is monolithic. The idea that certain communities are all opposed to development simply doesn’t stand up in the face of the facts.
In the interests of time, I won’t go into the other items that jumped out from the communities project, except maybe to finish up by noting that planning is going to become a bigger and more important part of how we set about this. We need the policy and project approval processes, but in between there is the need for planning to deal with critical issues that individual projects are not capable of dealing with.
That got us to the public authorities project, where we stepped back and looked at how the whole system hangs together. Using a painfully extended zoological metaphor: Many horses have left many barns. One of the things that stands out is that changes in society in the past few years bedevil all of us as we think about how to get these projects built.
At the same time, there are many elephants in many rooms; big policy issues that remain unresolved today. As long as they remain unresolved, individual projects are going to bear the weight of trying to deal with them. The projects and the project decision processes are not built to do to that.
Of course, in all of this, in this context, individual projects and the regulators are sitting ducks. We’ve seen a lot of that in the last little while with regulators and their processes being criticized, perhaps because of failings of the regulators but also because we’re putting such a great burden on them — a burden beyond what they were built to deal with.
With that in mind, we identified three areas that are particularly germane. One is the policy-regulatory nexus — bridging the two silos. Well-articulated public policy is essential. Governments need to talk to regulators, and they can do that without compromising the independence of regulators in any way. We have seen that. I have been involved in some of that myself. There could be a benefit in mechanisms for oversight of the complete decision-making system. It’s something that you as a committee might want to turn your minds to.
Who decides? Clearly, local communities. Indigenous and non-Indigenous communities that are going to have a critical part to play in the decision processes for energy in Canada going into the future. By and large, it will be federal, provincial, territorial governments and Indigenous governments, in some cases, that are the ultimate decision makers. When I say that we think social licence is misleading, that’s really what I’m getting at. The actual legal authority to make the decisions in a democratic society rests with democratically accountable governments. That’s a very important concept for us to keep in mind.
We also have to keep in mind that if we’re going to engage local communities of one sort or another, capacity building is going to be a critical factor. That’s going to require investment to get there.
Finally, how to decide. We agree very much with the previous witnesses that engagement of citizens will need to grow an essential foundation of durable decisions. Information is critical, but it doesn’t do the job on its own. Again, though, that’s something we should be investing in. Capacity will, again, be critical to that.
To wrap it up, we think there is good potential to rebuild public confidence in the decision-making system. In order to do that, we need to step back from it just a little bit, make sure we understand how the various parts fit together and where informed reform of the system can allow us to make progress going forward.
Thank you very much.
The Chair: Thank you very much to the three of you for these very interesting and clear statements you have brought us today.
Senator Massicotte: Thank you very much all for being with us this afternoon. I’m going to address my question to Mr. Newman. You talked a lot about the Supreme Court. In the Supreme Court, as you know, they’ve ruled on quite a number of occasions and defined better and better what consultation is about, how serious and how sincere it must be, and so on and so on.
Sometimes, we’re talking indirectly about a bill coming up — Bill C-69. In that bill, we’re talking about the UN declaration on Aboriginal rights. It’s now in front of the Senate to discuss. In that document, we don’t use the word “consult”; we use the word “consent.” There has been quite a bit of debate at the United Nations on this issue. It’s not “seek to consent”; it’s the word “consent.” If you look in the dictionary, consent means approve, and approve means veto rights. However, you have some scholars saying that when they debated the UN declaration that it was never intended to be a veto right. It’s supposed to be a consideration of a balance of interest.
The concern I have is that we all know the Supreme Court, and we all have immense confidence in the Supreme Court decision in these matters, but will it be confusing to now introduce consent versus the consultation definition the Supreme Court has defined? Why would we get involved in that issue? Also, do you see a difference in the meaning of those words?
Mr. Newman: Certainly, there’s a difference in the meaning between the words “consultation” and “consent.” The words have very different meanings. The duty to consult does not necessarily require the obtaining of consent. The idea of consent is one of obtaining an agreement or at least seeking to obtain an agreement.
You may be referring to Bill C-262 as the bill concerning the implementation of the declaration, that’s before the Senate, having gone through three readings in the House. The bill itself has very limited provisions within it but refers to an appendix consisting of the UN Declaration on the Rights of Indigenous Peoples, which refers to “free, prior and informed consent” in a significant number of provisions in that document. Some of those bear directly on resource contexts. Article 32, for example, bears directly on resource context. Article 19, I might add, bears on all legislative and administrative decisions that could impact Indigenous peoples. It would have a different effect, potentially, than the decision of the Supreme Court of Canada in recent weeks in the Mikisew Cree decision, where they said there wasn’t an obligation to consult upon legislation being passed through Parliament. The UN declaration Article 19 would seem to say there is, if that’s taken into Canadian law.
On your own point, I’ll just say briefly that there’s an ongoing debate, to some extent, on the phrasing of the various articles on consent in the UN declaration. The draft declaration released in 1994 had used stronger language that referred to actually obtaining consent. The final declaration of 2007, passed through the UN General Assembly, has language in most of the provisions about consultation and cooperation in order to obtain consent. And some do, in fact, read that as just requiring the aim of obtaining consent — a meaningful, good-faith effort to obtain consent but not necessarily a requirement that consent be obtained in every circumstance. And those that take that view contrasts that wording to other articles in the declaration that do refer to certain things being done only with consent, for example, the relocation of Indigenous peoples. There is an article on that which refers to requiring consent to be obtained.
That said, there is another reading on all these provisions on free, prior and informed consent, which is one that looks to the purpose of having that protection within the declaration, and that’s one that tends towards a reading that does require obtaining consent.
There are ongoing debates. There would be various sources I could refer you to, but I would say briefly on your main question, would Bill C-262 and its adoption do something different from the duty to consult doctrine. There I would say it does. Consent requirements put in a further set of legal steps that go beyond simply consultation.
Senator Massicotte: Thank you.
Senator Cordy: Thanks to each of you. It has been an interesting discussion.
Mr. Brown, when you were speaking you said we can call it whatever we want to call it but if people don’t feel confidence in whatever procedure it is that going is to take place, then it really is not going to be a fruitful dialogue or consultation or consent or whatever you want to call it. Where do we start to build that confidence on both sides that a meaningful consultation will be a meaningful consultation, will be people looking and reflecting on what each side is saying and coming to a decision that no one loves but both sides can accept or all sides can accept?
Mr. Brown: That’s a tough question. I don’t have the wisdom or discernment to answer that in the concise manner you’re looking for.
It’s very difficult to have policy prescriptions with First Nations engagement where you’re going to have a definitive outcome. There are so many variables. You can consult as much as you want, but if there is no meaningful accommodation, then that’s probably a good starting point. I have heard from a lot of chiefs. Consultation comes off as notification. It’s like a prerequisite checklist — check, we’ve consulted, moving on. “Here is your stipend or here’s what you’re going to get and that’s just the way it is.” So that paternalistic, assertive approach to engagement can be difficult. Of course, on the flip side, you’ll get other bands that are incredibly aggressive and want to engage and are eager for the economic prosperity. It is very difficult.
Going back to what I originally said, social licence in consultation means engaging early. You’ll see a lot of syntax in the different reports from corporations and from provincial governments and from the federal government — early consultation. That’s what will cultivate trust and honour in the government-to-government relationship. But when you’re moving forward with macro policies that are going to have a tremendous impact on the energy sector, and you’ve got Aboriginal communities that are ultimately looking at this as the catalyst for something very substantive and transformational in their community and they’re not engaged in it, it goes back to what I said before — empty platitudes that mean absolutely nothing. It’s hollow. We can come up with as many legal definitions as we want, but if the spirit of the intent of this isn’t honoured, it really doesn’t mean anything. If it’s just the bare minimal legal requirement, it doesn’t mean anything. And sadly, I think the opportunity is lost because there is a moral civic responsibility to try to improve the lives of First Nations and get them on the path towards economic self-sufficiency. There should be monolithic support from government to ensure that those opportunities come to fruition.
I’m looking at it through a different context, a different perspective, but there’s an industry and culture in Aboriginal communities with lawyers and consultants that come in and they paper up documents. There are stacks and stacks of documents; they’re covering all the desks and they can literally line the hallways of the band offices with them. They get their fees, they leave no legacy and the band is still in the bureaucratic INAC bondage welfare trap.
I say this, as respectfully as possible, because I know how difficult your jobs can be. You’re one cog in the wheel, but I think that’s what’s happening now. I know you are here just to vote on bills, but it’s incredibly disconcerting to Aboriginal communities to hear about this consultation and reconciliation and yet, again, I will go back to what’s anchoring this conversation — there are bills being passed and there was no meaningful consultation on it.
Senator Cordy: That was a pretty good answer for somebody who said they couldn’t answer the question. That was very good; thank you.
Another question, Mr. Brown, if I could ask you too. The fastest growing demographic, which you stated in your comments, is the young Aboriginal under 21. If in Canada we don’t recognize that and start doing something, we are going to be in big trouble. Referring to your comments, the either/or, do we want more welfare, do we want successful communities, I would hope that people want successful communities but we better start doing something if that’s what we want.
I was also struck by your comment that we should be showing communities that are really successful. I’m from Nova Scotia and Membertou in Cape Breton is the economic driver for the community. It has been so successful and it’s growing by leaps and bounds. I was down a few weeks, drove through it and it’s just growing. Every time I go there are new community rinks, a new school and wonderful housing.
How do we take the successful communities — because there are a lot of successful communities and you said we should be showcasing them — and showcase them? I’m seeing in Nova Scotia that some Indigenous communities are looking at Membertou and talking to Membertou so they can take that model. But one model cannot fit every community. Every community is different. Membertou is in the middle of a small city, but we also have communities that are isolated. We can’t have a cookie-cutter approach, but there must be some things that would be common that would breed success.
Mr. Brown: You’re right with the cookie-cutter approach and not all bands are created equal. Unfortunately, those are the laws of gravity. Life is unfair sometimes. What you’re talking about is difficult. You have a media establishment that is not interested in expressing or articulating good news stories in Aboriginal communities. They like salacious, sensationalized, negative news stories. That’s what we feed off. You’ve got the academia which, to a certain degree, I’m not necessarily convinced that they espouse a lot of the solutions in those universities, not to attack academia. I have to be careful how I phrase this. I will just say I’m not necessarily convinced that the prescription in some of the universities about Aboriginal issues and social justice is the right answer. The media doesn’t seem interested.
To your point of how to showcase good news stories. You look at the affiliations and associations — different groups regionally, provincially, nationally — that come together under the guise of economic development, self-sufficiency and prosperity. It’s reasonable for the government — which ultimately funds a lot of these groups — to stipulate to those guys that you need to give voice to these bands that are outside of the conventional “we hate government” paradigm and showcase them as bands that are actually doing something.
Calvin put it eloquently and I’m plagiarizing his material when I say there’s an Indian industry that is profiting from the Balkanization of Aboriginal communities. That is what is happening. This is not specific to the national chief. I don’t know the man or his politics, but in a general sense from my experience, a lot of the leaders sow seeds of division and fear, and they are obstructionists to First Nations and government working together. And that’s where a lot of the upside can be. When Gordon Campbell was the chief of British Columbia, a fiscal Conservative, an incredible premier, look at what he did with the Aboriginal communities. He worked very diligently with all the First Nations. The amount of employment growth, economic growth and, by every metric, prosperity in Aboriginal communities was unprecedented. I think that is the closest thing to a platform we’ve seen in the country to working with First Nations and moving it forward.
Ultimately, the government has to get creative but look for low-lying fruit, look for Aboriginal communities that are proactive and trying to self sustain their communities and move ahead. Encourage that double down and work with them and be very creative. It’s very worthwhile imposing that these communities have an opportunity to speak to other disillusioned, disenfranchised communities that have leaders letting them down, essentially Balkanizing their communities and perpetuating the welfare culture. I think that’s where it starts.
Senator Neufeld: Thank you all very much for being here. Mr. Brown, when you were talking about the news media and not getting across any good news, that’s all I’ve experienced through my whole life with politics; it’s what sells newspapers and advertising.
A good example is that the other night, the lead story on CBC was the postal service could go on strike and what will you do to get your marijuana? And I thought, what a way to lead a story. How about the senior that needs their cheque? How about the person that needs medicine that’s sent to him and doesn’t live in a large centre? But leading a story with that kind of line just about makes you want to hit the off switch and turn it off.
I do have a question, Mr. Brown, about the communities. I know that in British Columbia, we have quite a few very successful communities.
It’s a little hard for a government to showcase it all the time because some people will say you’re just bragging about what you did, but we really don’t like what you did. Is there not an opportunity, somehow, for First Nations communities to visit other First Nations communities and see and hear from First Nation people directly without there being any government in between? Is that an opportunity? And if it is, how would you do it?
Mr. Brown: I think it’s an excellent idea anytime you have collaboration and cooperation with different bands. Calvin can provide a lot more historical context on how First Nations communities have interacted since time immemorial, in terms of bartering and working together. I think the biggest hindrance to that is the isolationist model that sometimes comes from some of First Nation chiefs where it serves their political interests to keep them isolated, sometimes even indoctrinated to the government is bad verbiage. I think you’re right. That’s a good idea. It’s a great idea and maybe it’s something that should be encouraged. Case in point example, which I alluded to earlier, if the stars align and you get a megaproject — unprecedented 35 First Nations working together. I’m sure you have a breadth of experience working with First Nations; it’s hard to get two of them to agree on the weather. When you get 35 of them to agree on a project with a $200 billion market cap project that’s a solution for the country, it is pretty remarkable. And with that kind of cohesion, cooperation and inflection point for transformation in their community, I think it’s very plausible that you would find thoroughbred young men chiefs in their communities that would love to showcase those examples.
I think it’s also worth noting that, as I alluded to, metrics are important. Find out where the community was before and after, and being able to showcase that.
To your point, government-mandated prescriptions for how bands should operate and what they should do put you guys in a difficult spot. So it is incumbent on some of the progressive bands that are economically self-sufficient and have had success, to do something like that. I think it’s a great idea.
How do we get there? We need more of our leaders to take a meaningful leadership role and encourage those kinds of dialogues going back and forth with First Nations.
Senator Neufeld: Thank you.
Senator Lankin: Thank you very much. I appreciate all of your input and advice to us.
Mr. Brown, I was going to ask much the same kind of question that Senator Cordy did and follow up from Senator Neufeld. My mind is turning over about how to work to address this project that you have defined in conversation with senators here, and I think it’s something we should follow up on as a group. I can see providing the supports for First Nations themselves to lead this kind of emissary group from nation-to-nation.
That’s for another discussion. I will leave that question. I have a more technical question.
Professor Cleland, you talked about durable balance, and I like that phrase. It’s understandable in terms of what we’re looking for, something that has some possibility of being around for a while, and we don’t flip-flop back and forth in terms of intent on these things and build stability for business, communities and various stakeholders. You talked about context matters and process failures. You also mentioned policy failures, and I’m wondering if you would elaborate on that. I understand the words but I don’t know exactly what you’re referring to in the context of this issue of social licence and duty to consult.
Mr. Cleland: Thank you for the question. On policy failure, there are two that stand out, one being the whole process of reconciliation with Indigenous communities. As we’ve heard, there is a lot of talk, a lot of saying, “Gee, we’d like to do this” and somehow it never gets followed through. But the other one that bedevils us — and will bedevil us a great deal in the next few years — is the failure on climate change policy. I go back to Rio and then Kyoto and then Copenhagen, all sorts of cities and very little action.
We have a commitment today from Paris that we have very little chance of meeting, yet again, and this is a non-partisan thing. Governments have been very balanced in not achieving what they set out or promised to do.
It is quite understandable that people in the public would be a bit skeptical and lack confidence in the decision-making process when that’s what they’ve seen consistently.
Until we come to grips with what it is we want our energy system to do to meet our aspirations as an export economy, the needs of Canadian citizens and how to do that at the same time that we start moving on to a more climate-friendly trajectory in terms of emissions. Until we start taking that seriously, all the project approval processes in the world will fail because they’re up against something that is completely unrealistic.
Senator Lankin: Thank you.
The Chair: Can I jump on what you just said? Because you have studied this question, can you tell me what type of energy planning or programming will get social acceptability in Canada?
Mr. Cleland: Again, it is important to take into account the individual context and you have to get in early talking to the communities.
There’s no inherent reason why people should be opposed to pipelines, for example. If you consult with people, if you address the issues that they see coming at them, if you come up with ways of compensating and if you involve them in the process in a meaningful way, there’s no inherent reason why projects like that should not be acceptable.
But it needs to be seen in the context of where you’re going overall with your energy system. People, for the most part, don’t have a very good understanding of just what it is they actually need as communities, which is another place that I would go; that is, more active engagement of local communities — Indigenous and non-Indigenous — in understanding their energy systems and taking an active role in shaping those systems. Maybe I’m naive, but I believe that if people have a better grip on the systems and understand them better, understand their needs and how they depend on external sources of energy, as do other communities, you’re more likely to get a meaningful dialogue in talking about what it is we need to do.
It’s a matter of process and of better-articulated policy.
Senator Patterson: Thank you to all of the presenters. I will focus on Mr. Brown. His remarks were stimulating.
I wonder if, for the benefit of the committee, you could describe the Eagle Spirit project.
Mr. Brown: I’d be happy to answer that.
In full disclosure, I did just come on board with Mr. Helin probably a week ago. I met Calvin as a result of the oil tanker ban on Bill C-69 and brought to him the contingency plan, which was Alaska Hydro. I knew a group of people that owned the facility there — it’s basically raw land that’s conducive to having a deep-water port — and facilitated discussions between the both groups and signed a memorandum of understanding. That is how I was introduced to Calvin.
Basically, Eagle Spirit Energy is a proposed energy corridor of four pipelines. Two would be oil at 2 million barrels a day, and then two would be liquid natural gas pipelines at 5 million cubic feet a day, ideally. The pipeline corridor would go through the traditional territories of 35 different First Nations, so they’re all impacted and they’ve all signed agreements in principle to move ahead on this.
It is also supported by the large producers in Cenovus, Suncor and MEG Energy. The financial advisers that have a breadth experience are AltaCorp Capital, so they’re in the backdrop too, and recently Calvin signed agreements with four pipeline craft unions. So we have the union support on this project as well. There have been some interesting synergies between the unions working with First Nations on capacity development.
The proposed pipelines go from Bruderheim, Alberta, to Grassy Point, British Columbia. If my numbers are correct, if all four were built, it would have a $200 billion market cap and be a pretty exciting project. I hope that encapsulates what you’re looking for.
Senator Patterson: Thank you. I think it’s useful for the committee to have that picture of the project.
What is the current status of the project? Are there problems? And, if I may, regarding this business of UNDRIP and free, prior and informed consent, do you think we have it both ways in this country? We know that if First Nations refuse to give their consent, that seems to weigh heavily on the decision-making process, but do you feel enough weight is given to First Nations who are in support of major projects when we look at this doctrine of consultation and consent?
Mr. Brown: Not at all. I will go to the last question first.
Senator Patterson: What about the current status of Eagle Spirit?
Mr. Brown: I’ll go with the last question and then go back to Eagle Spirit.
I’m not a lawyer, but I read Bill C-69 and there were close to 60 references to negative impacts in that bill, and I’m looking at it wondering about all of the national prosperity for a project like this. Where is that metric in the bill? I was stunned by that.
In reading the document, there were effects on First Nations and the implicit effects on First Nations were always negative, every time. There was no metric for how this might have a positive impact on First Nations. I thought that was interesting from the policy perspective.
I do feel a little uncomfortable talking about where Eagle Spirit is at specifically because Calvin is ultimately the CEO and the man that represents the company. But broadly, we recently met with the 35 First Nations. That two-day meeting was comprehensive and we had all kinds of people come in as guest speakers. Over that two-day session, it was ratified and agreed upon by the 35 bands that they were going to collaboratively work to frame their own constitution, which will ultimately work as a framework amongst the 35 First Nations to move forward on resource projects.
In full disclosure and candour, their perspective on this is that if there is not going to be collaboration and co-operation and support from the government, they’ll begin to issue their own construction permits and their own environmental permits and move ahead on their own. That’s how resolved they are on the issue. I think that provides some insight into how enthusiastic they are about it and how resolved they are about moving this forward. I don’t think that is the end game as to how they would like to see the process move forward, but that’s the backdrop.
Several groups are interested in working with us on the financing side; Calvin is actively engaged with a series of different potential investors and he believes he has something unique and special, as do the 35 bands, so they’re not getting their hooks on the first person prepared to write a cheque. They’re weighing their options and going through a rigorous due diligence process to ensure they find the best options for financing on this, ultimately.
We have Jason Kenney out of Alberta who has fervently supported this and has been very vocal. Very recently, in one of his speeches, he said that once elected, he was even prepared to write a cheque, whatever that means. Obviously, you have a large constituency of people in Alberta and Saskatchewan that support it. I think Calvin, at this stage of the game, in collaboration with the 35 First Nations, is trying to develop an alliance with Alberta, Saskatchewan, the Yukon and the Northwest Territories. In an ideal world, hopefully our provincial government out here in British Columbia will come on board. That’s a much more fulsome conversation, and I don’t know where that’s going to play out, but that’s ultimately where it’s at right now.
Very disconcerting to the 35 nations, again going back to what I said, is Bill C-69 and Bill C-48. There are actually a couple of resolutions, one of which was Bill C-69.
In the spirit of being upbeat and positive about the dialogue going back and forth, I’ll take a pass on reading it to everyone right now, unless you want me to read it. There is a background on Bill C-69 and a resolution by the 35 bands that has been passed. Without getting into the full context, I’ll read the last part: “Furthermore, we agree that we will collectively file a civil writ seeking to quash an Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts should it become law.”
So it gives you a little bit of a flavour of where Eagle Spirit and the 35 First Nations are at right now in terms of Bill C-69.
Senator McCallum: I want to apologize for being late. I was speaking on debate on the Senate floor and came here after that.
As Indigenous People, we are not born to be on welfare, and we are trying to fight our way out of it. We also want forward movement, but policies, laws and attitudes make it hard going for us.
Our first point of contact in communication is consultation. Consultation has been abused and ignored, and not an engagement that is meaningful nor transformative. If consultation was done in a meaningful way, would we need terms like “social licence” and “acceptance”?
The Chair: Do you have someone in particular that you want to address?
Senator McCallum: Mr. Cleland.
Mr. Cleland: No. I think you’ve got one of the key points here. If we are really working with local communities and engaging them in meaningful ways — and that can take a lot of different forms — that, effectively, does the job. Ultimately, the provincial, federal, territorial or the Indigenous governments, as the case may be, can be accountable for the final decisions, and the idea of social licence eventually just disappears.
We’re a long way from that, and we’re a long way from the necessary effort and resources to make that sort of meaningful engagement.
The Chair: Professor Newman, do you want to complement or comment?
Mr. Newman: The term “social licence” is used for a lot of contexts other than contexts with Indigenous communities, so the term “social licence” probably won’t go away, but getting consultation right with Indigenous communities would go a long way in terms of a better relationship there and probably avoid the need to be talking about social licence in that context.
Other communities will keep talking about social licence, I expect. That’s a different conversation, though.
Senator McCallum: I want to ask why people associate free, prior and informed consent with veto power. When I looked at free, prior and informed consent, to me it was about me being given all the information so that I could make an informed decision. From that, I’m a reasonable person, I’m intelligent, and I will give meaningful accommodation.
I was surprised that these two were joined. It causes me a bit of concern, and I’m wondering what your thoughts are on that.
Mr. Newman: I think that link is often made because there is, of course, the possibility that a right in relation to giving of consent could also be used to withhold consent. So, in effect, it could be used as a veto power. But I think you’re quite right to put the point that it’s not necessarily going to be used in that way by Indigenous communities.
I’d echo a lot of what Mr. Brown said in terms of the lack of weight sometimes given to communities that do consent and do want to support projects. I think that that’s a major problem, and I think his pointing to all of the negative parts in Bill C-69 is a very interesting observation, that it’s always assumed in the references in Bill C-69 that communities are going to be opposed or are going to be harmed.
There are real opportunities of working together and finding prosperity for everyone in working together while also defending other values at the same time and having protections for important non-economic values.
I think it’s very important to enrich this conversation in the ways that your question is encouraging us to and that Mr. Brown has encouraged us to in some of his comments.
Mr. Cleland: I’m not sure that I have a great deal to add, because in some respects that really is a legal question. As a citizen and looking at it from the perspective of common sense, consent sounds to me, at least if you look at the dictionary definition, like something that sounds pretty close to, at least potentially, a veto. But again, I think it goes to your earlier point that if we have meaningful consultation and develop a body of experience around getting the positives out of this, then it could easily resolve itself. At least to my understanding, the courts have stated, fairly definitively, that there is not per se a veto implied in that. I can only go with that.
Senator McCallum: Thank you.
Senator Mockler: To the three witnesses, I want to say thank you. It was very enlightening.
Mr. Brown, I’m a senator from New Brunswick, and I can tell you that we are very proud of a lot of success stories with First Nations. They have produced a lot of economic activities and still do.
Many times we ask if they can define social licence. Social licence varies between, I believe, communities and different types of projects.
I heard you say, Mr. Brown — and I’d like the comments of the others — that a pipeline corridor can be a success story. Would an energy corridor be a success story in order to have all stakeholders at the table so that we can develop and continue to develop our natural resources? In your opinion, has social licence become an additional layer of undefined regulation or is it another buzz word?
Mr. Brown: Yes, social licence to me is unquantifiable. It’s almost esoteric in the way it sounds. Social licence comes through meaningful consultation, which means show me the money. It’s all about monetizing the opportunity for Aboriginal communities. The best social program is a job. Economic mobility is what will ultimately provide prosperity for Aboriginal communities. I can’t emphasize that enough.
Social licence means very little to me when I read it. It’s more of the same. I’ve heard social licence for years. That’s all it is a buzz word.
If proponents show up and meaningfully engage and governments meaningfully engage and support First Nation communities that want to proactive and pre-emptively move economic opportunities forward, we don’t have to fixate on social licence. Social licence to me is Orwellian double speak. It doesn’t mean anything to me.
I’m not speaking just for myself. That’s the feedback from a lot of these chiefs. A lot of hereditary chiefs have been around for a long time and seen a lot of life, they say the same thing.
The underpinning of my narrative is find Aboriginal communities who want to move the needle forward and drive opportunity. That’s how to build a stronger country.
If I could go back to Senator Neufeld’s question, I fell short when he asked how we could showcase these opportunities. It would be beneficial for a coalition of Aboriginal communities that have had great success in economic development, employment growth and economic growth, for them to potentially form their own coalition, much like AFN and a lot of these other organizations. Forming a new coalition, that’s how you’re going to stimulate a lot of interest amongst the other First Nations.
The coalition is not social justice, it’s not Balkanization and casting aspersions on government, but a coalition of First Nations communities coming together to talk about the benefits of the synergies from working with industry and government to improve the lives of First Nation communities.
The Chair: I will jump on that. Mr. Newman and Mr. Cleland, could you clarify something for me? After the last two meetings, it’s clear to me that the term “social licence” is not a legal term, it’s not been used in any legislation. It was proposed and used by corporations.
My question is: If it’s not a legal term and doesn’t appear in any policy and legal context, why are corporations still using it?
Mr. Newman: Well, it functions as a trendy buzz word. That’s one of the main ways it’s used. It’s used internally by corporations as a way to try to measure the effect of whether they have support from communities or not. That’s a very specialized use of it. People have models of how they measure the social licence at any given time, and they use those to predict what might happen down the road.
But the use of it in political discussion is to try to imply that there’s some further requirement that should be put in place, but it’s not a very clear discussion. It’s not a term that I particularly like. I’ve been critical of the term, and it’s not generally a helpful term. But a lot of people want to keep using it for various reasons and often to try to create new impediments to projects. For example, environmental activists of certain sorts argue that there should be an additional requirement of social licence. I think there could be more frank and clear ways of having that discussion of what additional requirements there should or shouldn’t be. I think we could get to more clarity by moving beyond the term social licence to know what people are actually debating.
Mr. Cleland: Madam Chair, your witnesses are all agreeing rather vociferously. I can’t speak for why corporations may continue to use the term. It’s not a term that we particularly like. We find it is, at best, ambiguous; at worst, misleading. Maybe even worse, it implicitly undercuts the idea of democratically accountable, responsible authorities. That’s where we should keep our focus, and they clearly need to set about processes of consultation and engagement with local communities, but that is not the same as social licence. I would avoid it.
Senator Patterson: If I may, supplementary to your question and directed to Mr. Newman, you keep talking about business and environmental groups using the term. The term is used by ministers of the Crown in the current government. Jim Carr, Natural Resources Minister, said:
Social licence is about ensuring public confidence in the decision-making for major resource projects.
Justin Trudeau said:
Social licence is more important than ever. Governments may be able to issue permits but only communities can grant permission.
And the Expert Panel on the environmental assessment process review appointed by the current environment minister:
Acquiring social licence will most certainly help a proponent gain approval for a project. We concluded an effective assessment process should achieve two essential outcomes: pave the way for regulatory approval of accepted projects, and facilitate a proponent’s acquisition of social licence.
So, of course, corporations and environmental groups are talking about it because they’re hearing about it from the highest Crown ministers in the country, including the Prime Minister. So I think it’s more than just that. Would you not agree, Mr. Newman?
Mr. Newman: Yes, I would agree. It’s a buzz word, it’s trendy, it’s some kind of shorthand used by various people to mean different things.
Some of those statements you’ve referenced have had the effect of creating some very high expectations around new, changed ways of doing things that possibly weren’t intended. Maybe they were, maybe they weren’t. Some of these ways of talking have sometimes generated an immense lack of clarity, and maybe that’s part of the aim. I don’t want to cast any aspersions there, but this talk about social licence and communities granting permission create a lot of expectations. Those may or may not be realized upon.
There needs to be a much clearer and more frank discussion of what is or isn’t at stake, what is or isn’t being contemplated in terms of the role of communities. That would be better for all of us, if we could have that greater clarity.
Mr. Cleland: You’re getting an awful lot of agreement from your witnesses, but that’s exactly the point, it is shorthand and not very helpful shorthand in my estimation. That’s why we, as much as possible, try to take it back to a question of public confidence in the decision processes. Again, there I emphasize decision processes starting with policy and running through to project approval.
If I may, I mentioned planning, which is something that sort of sits between policy and project approval. I’m interested in Mr. Brown’s characterization of the Eagle Spirit project. That’s an example of planning, where you have a concept of what you want to develop, you are able to deal with things like cumulative effects, and a whole variety of other things, without putting that on any one project. That’s not something we’ve done much in Canada in the past, planning at a regional level like that. It may be something that we have to come back to.
The Chair: Thank you very much to our three witnesses. Your testimony and your questions and answers were very interesting and enriched the knowledge of the committee on these subjects.
(The committee adjourned.)