Standing Senate Committee on Energy, the Environment and Natural Resources (42nd Parliament, 1st Session)

Past Session:

THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES

EVIDENCE

WINNIPEG, Friday, April 12, 2019

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-69, 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, met this day at 8:02 a.m. to give consideration to the bill.

Senator Rosa Galvez (Chair) in the chair.

[English]

The Chair: Good morning, and welcome to the meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.

My name is Rosa Galvez, senator from Quebec and chair of this committee. I ask my senator colleagues to introduce themselves.

Senator Richards: Dave Richards, New Brunswick.

Senator Neufeld: Richard Neufeld, British Columbia.

Senator Patterson: Dennis Patterson, Nunavut.

The Chair: I want to take this opportunity to introduce the analysts of the Library of the Parliament, Jesse Good and Sam Banks, and the clerk of the committee, Maxine Fortin.

I also thank the stenographers, the communications officer, the communications official staff and all the other staff travelling with us and working behind the scenes.

Today, we are continuing our study of Bill C-69, 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.

For our first panel, from the Canada West Foundation, Marla Orenstein, Director, Natural Resources Centre, and from NuVista Energy Ltd., Jonathan Wright, President and Chief Executive Officer.

We will start with your opening statements, to be followed by a question period.

Ms. Orenstein, the floor is yours.

Marla Orenstein, Director, Natural Resources Centre, Canada West Foundation: Thank you for inviting me to provide testimony with respect to Bill C-69. I greatly appreciate the opportunity. I also want to thank you for taking the time to travel around the country to hear views on this matter. I am sure you’re sick and tired of travelling by now and just looking for your own beds.

I come here wearing two different hats. The first is in my role with the Canada West Foundation. The Canada West Foundation is non-partisan and evidence based. We consider ourselves environmentalists. For example, we support the carbon tax. We also recognize the importance of our resources and getting them to markets.

My second hat is quite different as past president of the International Association for Impact Assessment, the leading global network on best practice in the use of impact assessment for informed decision making on policies and projects. I also look at this bill in terms of how well it provides for a meaningful process of assessing the impacts of a project on people and on the environment. For this reason, my perspective may be a bit different from that of the other people you’ve heard from.

I see this legislation in terms of two different objectives. The first of these has to do with what I call small “i” and small “a” impact assessments, identifying how a project could positively or negatively affect the local environment and people in local communities, and then ensuring that the project has appropriately considered how to mitigate any adverse effects and how to enhance any potential benefits. This is a scientific and technical regulatory exercise.

In Canada we do this very well. We are world leaders in impact assessment. It’s something that we should be proud of. This is a point that is often overlooked in Bill C-69 discussions. This process will be further strengthened in the bill through better inclusion of Indigenous knowledge, the use of an early planning phase, and the use of regional and strategic assessments. This will enable us to have strong environmental protections and resilient communities, something I believe we all want.

The problem is that the legislation has a whole other side, but we use almost the same words to talk about it. We also use the term impact assessment within this legislation to talk about the process of obtaining project approval from the government. This is much larger than just a question of whether or not a project can be implemented in a way that minimizes adverse impacts. Rather, it’s a question of whether or not we want to allow certain kinds of development. It’s this side of the impact assessment process where all the problems are arising.

You have heard from many people about the problems in the bill, including a lack of clarity that opens the process to a judicial challenge, too much opportunity for political discretion, a bias toward higher weighting of the negatives in decision making and overly long timelines. We share many of these concerns, but we also feel that it is possible for the Senate to amend this bill in a way that will substantially help.

To be clear, we want this bill to pass, but we also believe it needs to be meaningfully revised to address those very real problems. To this end, we support the majority of amendments put forward last week by CEPA and by CAPP. We believe that these amendments are not about tilting the scales toward project proponents. Rather, they add clarity and balance and help reduce the likelihood that unclear language will result in problems down the road. We feel they represent minimum acceptable amendments for going forward.

In addition, we believe that these amendments do not quite go far enough. In moving the project approval function from the NEB to the new IAA, the bill introduces some major unintended consequences such as the loss of judicial endorsement of the NEB process.

For example, the Governor-in-Council, that is cabinet, must issue a decision statement to the project proponent to inform them about whether or not the project is approved. This is the same as what is currently done under CEAA 2012. However, subclause 65(2) of the bill introduces something new. It states that not only must the decision be based on the agency’s report, but it must also consider and demonstrate in writing that it has considered the five public interest factors listed in clause 63.

This action is new and different, and we argue problematic. First, it obliges the GIC to second-guess the regulator’s determination. The GIC can no longer merely rely on the regulator’s report and recommendation.

In doing so, it also undermines previous jurisprudence. For example, the Federal Court of Appeal in the two instances of Northern Gateway and Trans Mountain determined that a GIC decision wasn’t challengeable because the GIC was able to rely on the regulator’s report and was not obligated to investigate further.

With the new provision, this is no longer the case and this jurisprudence no longer applies. We anticipate that this change and other procedural changes in different places in the bill will set the whole system right back to square one in terms of court challenges and that the loss of this jurisprudence is unrecoverable.

Finally, I want to recognize that there is a fundamental problem no amount of amendments or amending will solve, and that is that the regulatory approval process is being substituted for policy making. For the regulatory process to work, we need clear policy guidance coming from the federal government.

To what extent does our country want to support hydrocarbon development? How much GHG emission is acceptable? How will we allocate it? The regulatory system is not set up to deal with policy debates. Nor should it be. However, it has become the de facto forum for debating these concerns. Without clear policy to guide the technical decision making of the regulator, we will continue having these same arguments over and over again with every new project application.

In conclusion, we need Canada to be economically competitive and environmentally responsible. This is not a trade-off. We need both. Getting this piece of legislation right is critical.

I am happy to take questions about the bill, proposed amendments or the process of impact assessment in general.

The Chair: Thank you.

Mr. Wright.

[Translation]

Jonathan Wright, President and Chief Executive Officer, NuVista Energy Ltd.: Ladies and gentlemen, honourable senators, thank you for the opportunity to discuss a very important piece of legislation with you, Bill C-69.

[English]

It will now be obvious to you that it’s probably better if I continue in English. I did my best. If the grammar was poor, it’s because I wrote it.

I have been president and CEO of NuVista Energy Ltd. for eight years. We produce approximately 50,000 BOEs per day, including clean Canadian natural gas and condensate. We employ over 125 people in Alberta of which over 30 per cent are women. We spend $500 million per year in the Canadian economy. For additional context, I am a member of the board of governors of CAPP, the Canadian Association of Petroleum Producers.

As you will be aware from the letter I sent you, I share with many in our industry a grave concern over the proposed Bill C-69. I care deeply about our country. I consider myself a proud Canadian first and an Albertan second, but I must confess that my convictions seem to have been tested lately.

I have worked in many places in Western Canada, Ontario, the North Sea and Southeast Asia. I am very proud to say from personal experience that Canada already has among the finest standards in the world. This has been independently verified in a recent WorleyParsons world-wide study. We are fortunate to have some of the best ethical standards, equal opportunities and transparency on the planet. We are not perfect, to be sure, but Canada is certainly near the top.

For the first 20 years of my career, as an industry we followed ample regulations and quietly got it done with few public concerns. We were well regulated but competitive. If you’re not competitive, you do not get to exist.

In the past five-plus years we have somehow lost our way. There have been many negative and misguided messages from Canada to the investment community about our industry. Those are outside the scope of today’s discussions, but suffice to say we are a country which used to be “can do” and now is seen as “cannot do.” The concerns over Bill C-69 are significantly heightened due to the pile-on effect of these prior signals.

I am aware that this committee has already heard many voices similar to my own, including many facts and figures. I too could quote numbers, but I thought it was a better use of your valuable time for me to simply be present today to place a human face on this issue and to discuss any questions you may have.

I am trying to be as frank as I possibly can be. I deal with the leaders of probably 50 other oil and gas companies in Calgary at CAPP and other meetings. I can assure you I have not met one dissenting voice on the key concerns I am highlighting. There are a half million jobs for Canadians across Canada.

As part of my role at NuVista, I also conduct over 250 meetings per year with U.S. and Canadian small and large investment institutions. I would be happy to share some of the colour I hear from investors in those meetings too, if you wish.

Bill C-69 goes too far in an already very well-regulated country. It brings in items which are duplicative to other regulations and drivers in Canada. It is therefore costly and harmful. I strongly recommend that Bill C-69 be scrapped or radically modified. If it isn’t, it is impossible for me to believe that another major project in oil and gas in Canada could ever go ahead.

I have six recommendations to present today. First, clearly define a reasonable standard to be met in duty to consult.

Second, include tighter clear and hard deadlines for project approvals and maximums. We must ask ourselves how it could ever be okay to take longer than two years.

Third, remove downstream GHG emissions from the evaluation criteria. They are unreasonable and duplicative to existing regulations for GHG improvement.

Fourth, remove ministerial discretion.

Fifth, remove reference to gender and ethnicity in project evaluation criteria. We already have many existing overlapping criteria, which are spurring positive change in this regard in Canada.

Sixth, apply a firm test such that only directly affected individuals and organizations may have standing in approval considerations.

Canada used to be a nation of builders. From the TransCanada pipeline and the Trans-Canada Highway to the St. Lawrence Seaway and on to our ports, we have always been able to get it done. Inside Alberta and most other provinces we continue to build now, but interprovincially and nationally we have lost our ability to get it done. We need to get back to clarity of approvals for nationally important projects because they meet our stringent regulations as opposed to spending billions of dollars over the years to then wonder if the regulations will allow us to build.

Bill C-69 as currently written only increases the level of uncertainty. Without certainty, investors will simply go elsewhere. In many cases they already have. This can be fixed, and for Canada it must be fixed.

The solutions are actually very simple. We need only to look at history to see how it was done. I see no great environmental or social damage from Canada’s projects of the past. Yet today’s regulations are only stronger than they were then, but they need not be unworkable.

I would be happy to entertain any questions.

The Chair: Thank you very much for your statements.

Senator Simons: Ms. Orenstein, I will start with you. I want to know more, if I could get you to expand on your concerns, about subclause 65(2). I have looked at the public interest test and have been concerned that it’s all negatives and no positives.

This is the first time somebody has explained to us the potential legal implications of looping back to GIC and not giving them the capacity to say that was the decision of the regulator.

Could you elaborate a bit more on your point about the potential legal implications of that change?

Ms. Orenstein: I would be happy to do so. First, I want to say is that I am not a lawyer, although I have been working closely with our CEO, Martha Hall Findlay, who is a lawyer. She is the one who has recognized this point.

These issues are really difficult. We have been looking at this bill for a year. It has taken us a very long time to dig down to what some of these issues are. You allude to clause 63, the public interest factors. We have problems with those, which we’ve brought out before, such as the imbalance between the negatives and the lack of any overt place to talk about national interest or national economic interest. It’s buried in sustainability.

What I am talking about with clause 65 is different entirely. It is a new provision; it does something new. It’s asking the GIC to demonstrate in writing or to present reasons, showing that they have clearly taken into account the clause 63 factors, and demonstrating why and how they have done so. In doing so, this undermines the jurisprudence that was there before. In both cases on Trans Mountain and on Northern Gateway, and possibly in others including Bigstone, the Federal Court of Appeal judge said that they were not questioning the decision of the Governor-in-Council. They had the right to make the decision they made because there is nothing in here that would allow us to second-guess what they’ve done.

They have received a report. It qualifies as a report. They have discharged their duty in considering the report and coming up with a determination. That is no longer the case with the new language. I don’t know if it’s worth reading out clause 65 here.

Senator Simons: Please.

Ms. Orenstein: Sure. It says:

The reasons for the determination must demonstrate that the Minister or the Governor in Council, as the case may be, based the determination on the report with respect to the impact assessment of the designated project and considered each of the factors referred to in section 63.

The onus is on demonstration going above and beyond reliance on the report and what is in there. It is on saying that we’ve done our own independent thinking, which requires them to second-guess what is the regulator’s determination. Now they must show that they have done something different. This being new, this being above and beyond what the previous jurisprudence endorsed, means that we opened this up for a new type of challenge.

There may be some who say that it is an appropriate role for the GIC and that we really want them to do that. I think there is a legitimate argument to be made there. In that sense the intention to create robust legislation which, to the extent possible, can rely on previous court judgments to move forward instead of starting back at the beginning again is a problematic phrase.

Senator Simons: As somebody who is not a lawyer but who has a lot of experience with impact assessment around the world, you mentioned that we have an enviable system. What do you think about the way lifecycle regulators are treated in Bill C-69, to the extent that their expertise seems to be downplayed by saying there can only be one member of a lifecycle regulator on any review pane?

Ms. Orenstein: We find that highly problematic, particularly in the context of safety. There are two lifecycle regulators. One regulates pipelines and transmission lines. The other one regulates nuclear projects. They both have extensive in-house expertise that they will have to continue to apply over the lifecycle of these projects. That remains critically important.

We have an excellent safety record for pipelines, with an excellent safety record for nuclear, and nobody wants to jeopardize that. If they don’t have a seat at the table or enough of a seat at the table at the beginning, the problem is that it makes implementing those rules and monitoring for the right things down the line very difficult. We have spoken with both of the lifecycle regulators, and they have confirmed this to us.

The two analogies that come to my mind in terms of listening to the expertise rather than just having it there is that I could try to build my own house or I could call a builder and get their advice. It’s not the same if that builder actually holds the hammer. It’s going to be a much more solid house when they’re actually doing the work and not merely putting in some words of advice.

Perhaps a better way to think about it might be in the context of policing. Police officers can be out on the street enforcing the laws. If the laws were created and the rules were created without their input, it’s somewhat meaningless in terms of what they can do.

The provision that marginalizes lifecycle regulators and says that they can’t be the majority and can’t be the chair should be flipped on its head. We feel that they should form the majority in these cases. We feel it’s the only way to get the appropriate technical expertise at the time the decisions are being made. The lifecycle regulator can then do its job for the rest of the lifecycle of the project.

Senator Simons: Would you say the same for offshore boards, presumably?

Ms. Orenstein: I would, although I haven’t studied the issue as closely.

The Chair: You know that one of the objectives of travelling was to collect regional and provincial information and concerns and worries of the local people with respect to Bill C-69.

Could I ask each one of you what is the situation in Manitoba? What types of projects does Manitoba have in terms of hydro, gas and other energy? What are the issues the province has with Bill C-69, please?

Mr. Wright: My answer will be fairly brief. I can’t speak for the people of Manitoba. I am from Calgary. I was invited to come here today.

I will say that I have worked in southeast Saskatchewan. Some of those properties border into Manitoba. There is a small energy industry portion of Manitoba. I would say all of the concerns I have been bringing up would apply to that industry as well, in terms of enabling it to continue to grow and thrive.

Ms. Orenstein: I am based in Calgary, but the Canada West Foundation is funded in part by the Government of Manitoba. It is supposed to look at prosperity in the west writ large. Having said that, many of the people who will be speaking later today are better placed than I am to talk about the concerns of Manitoba.

The issues we’ve raised do not only pertain to the oil and gas industry or to pipelines. Certainly they apply to large hydro projects, of which Manitoba has many. They also apply to transmission projects. Even within Manitoba we have seen that large transmission projects are contentious, and they will always be contentious.

There are same concerns in many different communities being affected. It is absolutely a parallel question. We see the heat of public opinion crystallized around pipelines today, but transmission lines are also a nimbyism issue. It’s something that could easily be turned. The more we think about wanting to develop the renewable energy industry in Canada, the more it is also something we have to take into account. Again, the issue of the NEB comes back in with respect to transmission lines in Manitoba.

The Chair: Thank you.

Senator Carignan.

[Translation]

Senator Carignan: My question is for the Canada West Foundation representative. Your perspective on the detailed reasons component is quite interesting. Do you think subsection 65(2) of the Impact Assessment Act should be amended to include broader considerations? The Governor-in-Council’s determination must be based on the impact assessment report and take into account public interest factors such as the economy, among other things.

[English]

Ms. Orenstein: Thank you, senator. You don’t ask easy questions, do you? Just the important ones.

I have a strong belief that the regulator is in a very good position to be able to make a recommendation. Again, in my personal opinion, it is entirely appropriate for the Governor-in-Council to rely on that report and not have to second-guess.

The regulator has received the 5,000 to 20,000 pages of the impact statement and has digested them. They have done their own analyses, come to their own conclusions, prepared their own reports and determined the significance. They are also the ones who had the opportunity to hear from affected parties in hundreds and thousands of hours of testimony.

All that has gone into the regulator’s report and determination. There certainly are larger interest factors that fall squarely into the lap of the federal government. I work in analogies. To have them revisit the regulator’s conclusions about the magnitude of impact and the extent and mitigatibility of adverse effects seems to be analogous to having somebody who has read the back cover of a book decide whether or not it was a good book. You can decide if you want it in your bookstore.

That’s a different question, but the council has not themselves had the benefit of hearing any of that information or hearing from the directly affected parties. In my opinion, enabling them to rely on the recommendation and having there be a discrete recommendation coming from the regulator and not just a report would be the preferred way to go.

[Translation]

Senator Carignan: My next question also has to do with the reasons for the determination. It must take into consideration so-called public interest factors. Paragraph 63(e) reads as follows:

the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.

Do you think consideration of greenhouse gas reductions elsewhere in the world should be built into the provision? I am talking about an oil and gas project that would increase greenhouse gases in Canada but, through exports, replace coal plants in China, for instance. Internationally, at least, the project would lead to reduced greenhouse gas emissions and contribute to progress. Should the government amend the bill to take account of the global impact, rather than simply navel gaze, if you’ll pardon the expression?

[English]

Ms. Orenstein: Again, what a wonderful question. There are two parts of it that I’d like to address.

The first is a question on what is called carbon leakage. The fact that you may be displacing coal in China but you don’t get the benefit of adding that in, strictly speaking, is an accounting problem. Yes, if you are to be looking at the downstream effects, the net benefits themselves must also be included.

When we’re looking at projects and approving them one by one, the larger question to me is: How do you address the effects of greenhouse gas emissions? How do you identify how much is enough? How do you put the regulator in the position of saying that the project is much too much or not enough?

In my mind, this task should not fall into the regulator’s lap. I think the government has recognized this. The government has brought forward the strategic assessment of climate change guidelines, one of the first strategic assessments.

I was hugely disappointed in it, and I have spoken with others on all sides from environmental activists to very much not so. The problem is that the government has dropped the ball on this one. What we need from a strategic assessment of climate change is a determination of basically how much greenhouse gas emission should be allowed and how do we allocate it.

Basically, it’s something that would set targets, benchmarks and thresholds. Then the job of the regulator is to be able to compare any one project against the target that has been set out. That’s how the regulator will know how much is too much.

The strategic assessment of climate change didn’t do that. All it provided was a methodology for how the project proponent would report greenhouse gases in the impact assessment. It’s missing a huge opportunity. We need methodological guidance, but that’s not the same thing as a strategic assessment of climate change.

We are still lacking moving in the direction of saying that this is what Canada wants to do, this is how we’re going to count it, this is what our targets are and these are what the benchmarks are. Once again, that has been kicked back into the regulator’s court. It’s going to be a problem because it’s going to be challenged one at a time.

If we’re never saying how much is enough, how much is too much or how do we allocate, how can the regulator possibly know? All you have is a number that’s in front of you. It doesn’t tell you anything about the placement or the context of that number. I find that really problematic.

The Chair: Do you want to complement that, Mr. Wright?

Mr. Wright: Yes. I agree with what Marla Orenstein has said. I would like to add that this is a bit of what I was trying to talk about in terms of duplicative regulations. Article 6 of the Paris Agreement is already trying to deal with the question of world wide and credits for countries where you actually make some gains. I think the senators are probably familiar with that.

That exists. We already have a government that has put in place carbon taxes. There’s support for moving toward renewables. These are all things I agree with, by the way. Those are things that involve long-term thinking. The government can choose a direction and then impose regulations that cause industry to move in a certain direction.

I have been personally working with CAPP and with both the federal and provincial governments to help this happen. When you actually start embedding some of these things into regulations that say whether or not one pipeline or one project can go ahead, it’s like driving by looking in the rear-view mirror. You have individual decisions being made.

I believe industry should decide whether or not they need a pipeline from here to there. The government should decide whether that is being done in an environmentally effective way and meets the long-term regulations that are in place.

This is part of the reason I was talking about this duplicative nature being very dangerous. All of Western Canada saw in Q4 in Alberta what happens when a pipeline gets full because they couldn’t build the next pipeline. We had a catastrophic reduction in oil prices. That’s the sort of thing that I am referring to.

Senator Patterson: Ms. Orenstein, I would really like to thank you for pointing out the major problem with sublause 65(2). I think you said that it heightens the litigation risk that some of us are concerned about in the bill.

Let me get this right. Under subclause 65(2):

. . . must demonstrate that the Minister or the Governor in Council . . . based the determination on the report with respect . . . and considered each of the factors referred to in section 63.

Clause 63 has five factors that are incapable of easy definition. They include:

. . . any adverse impact . . . on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, . . . .

Holy cow. I mean I participated in three years of federal/provincial meetings following the repatriation of the Constitution to define what existing Aboriginal rights meant under section 35. We never got anywhere. Courts have opined on this huge, vague, undefined concept. It’s important but it’s terribly vague.

Then one of the other factors is:

. . . the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.

This is another thing that is clear as mud on how it impacts our commitments in Paris and Kyoto. The cabinet must address these five issues. I’ve only mentioned a couple of them. There are three others that are equally hard to define.

You said that you endorse the CAPP amendments, at which I’ve just taken a quick look. At quick glance, the CAPP amendments don’t seem to address the subclause 65(2) problem that you mentioned.

I have two questions. You said that there was a Federal Court decision which said that the Governor-in-Council decision could not be challenged. First, what is the name of that court decision, please?

Second, what is the fix here? Do we just eliminate subclause 65(2)? I am not sure that anybody, even environmentalists maybe, wants to see the Governor-in-Council decision. It will be the last stage of what many think already is probably a too-long process. Then it will be turned into litigation heaven for the lawyers of Canada right up to the Supreme Court, undoubtedly.

Do we take out subclause 65(2)? I guess I’d like to know why that seems not to have been addressed by CAPP and CEPA, if I understand that correctly.

Ms. Orenstein: With respect to the actual names of the cases, I will make sure we get those to you. I don’t want to misspeak.

Senator Patterson: That is fine.

Ms. Orenstein: Why CAPP and CEPA didn’t pick it up, frankly, is something that we’ve been circling around and even just landed on last week when we were going through the wings of the actual jurisprudence. It’s fairly late to the game, but in terms of a fix, which is the most critical part of the question, there is something you can do with subclause 65(2).

You can enable the GIC to rely on the regulator’s report, but this provision is one of a pattern of disempowering the regulator in this process. It’s something that goes throughout Bill C-69. It’s the inclusion of the political discretion, this being another example of where it could be applied.

I have heard it said in these hearings that the regulators are not trusted and that they are broken. This is inconsistent with what we found in our own research. Trust in the regulatory system is not necessarily broken.

The federal government stated that it feels it’s important to have an independent arm’s-length regulator to enhance credibility and transparency. This bill goes in the opposite direction. Rather than having any sort of an independent arm’s-length regulator making project decisions, it’s entirely the IAA, which is part of the government ministry.

There are numerous elements where political discretion can override the work the regulator has done. If this issue is to be tackled, it’s not just a question of this one important provision, but a question of looking throughout the bill to see where it is that the regulator’s determination can be undermined by other and political considerations.

This is something that should worry all sides. Governments change. What’s in one group’s favour one day may turn out to be quite different on a different day. Ensuring that we have a strong, fair and transparent regulator who is able to do their job, without interference, should be of paramount importance to everyone on all sides of this issue.

Senator Patterson: Would that reasoning also apply to clause 22? We have discovered that it is also equally vague in terms of meaning. Yesterday in Saskatoon, a witness who told us about the intersection of gender and other identity factors. She is an expert; she is a professor. She told us about other identity factors in addition to gender. There are 10 other identity factors ranging from sexual orientation to disability, to age and to ethnic status. This one little item on a list in clause 22 opens a whole vague minefield of imprecision and detail that have to be put into environmental impact statements. It is rife with litigation challenges if the regulator doesn’t adequately address, jeepers, 11 factors in only one subclause of 22.

Is clause 22 another example of the ultimate weakening of the independence of the regulatory authority?

Ms. Orenstein: I personally don’t have a problem with the provision on the intersection of sex and gender with other identity factors because we already do it. In impact assessments that have been done under CEAA 2012, a term of reference is created. It specifies exactly what has to be looked at. Frankly, no good impact assessment has been done of housing, economics, jobs and all those things that wouldn’t look at different impacts across different populations.

You don’t want to know just how it will affect the average person but how it will affect different groups differently. Doing that is best practice. Including it in clause 22 is somewhat problematic because it’s waving a red flag in front of a bull, clearly.

Going back to the larger question of what is in clause 22, it is a parallel issue of saying it is challengeable if all these things aren’t adequately considered. Good practice and challengeability are different things. The legislation is the framework you want to be able to hang all of this on, versus how you want to implement it.

Even if that provision is eliminated from clause 22, impact assessments in the future certainly wouldn’t look at differences by gender, differences by ethnicity, differences by disability status, or differences by those kinds of things. I feel that it’s important to look at those things.

One suggestion has been made about clause 22. Instead of saying the impact assessment must look at all these things, CEPA’s amendments say that it may look at all these things. That would give the regulator the ability to say that these are the relevant ones of this list of 13 or 15 things. It would give them a bit of discretion to say that in this case this one, this one and that one really just don’t make any sense; let’s not use them.

I support the changing of the language from “must” to “may” so that there is discretion to tailor those requirements to the project as appropriate.

The Chair: Do you want to add a little something?

Mr. Wright: I’ll keep it short.

I have to say that I can’t agree. I feel strongly that this is an area where it just has to be removed. I mean, this is the vagueness that is duplicative and very dangerous because of the discretion it brings with it.

I think you were referring to subparagraph 22(1)(s) when you refer to gender and ethnicity. If we’re building a new LNG plant, why should we be worried about gender and ethnicity just for that project? We should be worried about it for every area of our corporation. I don’t even know exactly which minister would be in charge, but the minister in charge of human rights should have rules upon us to make sure we’re doing the right things everywhere where we work, not just on the next new project.

It’s a complicating factor that is very dangerous for progress in the country.

Senator Neufeld: Thank you both for being here. I go back to when the government decided that they were to change the progress. I guess it was the Prime Minister who was talking about the NEB being broken. People had lost trust in the NEB and the Canadian nuclear regulator.

I was glad to hear you mention, Ms. Orenstein, that the NEB really wasn’t broken. It needs to be modernized, and the same with the other ones. They’ve been around for a long time. The jurisprudence is there. They can go back to see how they’ve dealt with other issues.

I am a firm believer in that also. I think it’s totally wrong that this bill annihilates all that. You don’t have it anymore. It’s gone. To me, that’s terribly, terribly unfortunate.

With that, I guess you can kind of understand where I am coming from. This bill was probably designed to either stop oil and gas development in Canada or development of any kind that this bill applies to.

Would you agree with me that there may be a political reason behind putting all of these questions into a bill like this one to actually stymie development? Then they just don’t have to say no. Actually money will flee, as we’ve heard?

Along with that, both of you talked about local communities or locals having standing. Under the old act it was those most affected and experts. If they wanted more information, they could take it. Now it opens it up to the world.

Yesterday, we heard from some First Nations that they are very concerned about that. What happens to them is they get drowned out by those that have a particular idea of closing down. They don’t want anything to happen. That’s why Trans Mountain is being opposed by so many real strong environmental movements. They want to close down the oil sands.

I know my question is a bit long, but maybe I could get feedback on it from both of you.

Ms. Orenstein: To address the second one first on the issue of standing, we share the same concerns. Broad participation is a good thing, but not if it drowns out the voices of those who are most closely affected.

The issue of standing was something that could be introduced to the NEB because it was a quasi-judicial body. I don’t know if you can even introduce the concept of standing to something that is just a department like the IAA. However, that being said, we feel strongly that it is important for something to be in the bill that explicitly enables the NEB to determine how different groups can be heard.

We can ask for meaningful participation in saying that anybody who is interested can participate, but we should also be able to empower the IAA explicitly to say you have the authority to determine how different groups or how different individuals can participate so that it is legitimate to say to some people that you are allowed to make online comments or written submission, whereas this other group will be heard in person at a panel hearing.

There is no such provision in there right now that would enable the IAA to do that. I know it’s something they want to do. Going back to the court challenge, I worry if we don’t have anything in there to reinforce the different methods of appropriate participation. It can be decided by the regulator that there will be challenges later by somebody who is not really affected saying, “I didn’t get to speak.” We strongly support amendments that will at least enable the regulator to triage different types of communication.

With respect to whether these changes are politically motivated, I really wouldn’t want to speculate or care to say. Most definitely discretion has been built into this bill that could be used in certain ways, and it will be used one way by one government. It will be used one way but one government, and it will be used in a different way by a different government.

Mr. Wright: I will be as quick as I can. You did hit several topics there, senator. No, I don’t believe that most Canadians think the NEB was broken. I have to agree with that. I ask most Canadians I meet with, and those outside the industry have no idea what the NEB is about. They simply trust their government and their regulator to do the right thing.

Whether it’s politically motivated, it’s best for me not to speculate. I don’t know, but I will say that it’s either designed to stop us or it just has some really bad designs in it which will stop us. Either way, let’s just worry about fixing them. I am focused on having our industry work.

We work more closely with First Nations than just about any industry. We are out there in the rural communities working right beside and right with First Nations. I personally meet with the chiefs of the First Nations in our area to understand their concerns. We work very hard to make sure they have jobs and economic growth from the opportunities we bring to their area. We are very passionate about that. We’re very concerned that it could be stopped by the things within this bill.

I should say that I was at a session yesterday where we were discussing this very topic. We had Stephen Buffalo, President of the IRC. Dale Swampy, President of the National Coalition of Chiefs, who had 62 chiefs behind him, spoke very passionately about the need for building economy and the opposition to Bill C-69.

In terms of standing, I want to very quickly bring the analogy to Alberta. I am very familiar with the inside provincial regulations of Alberta, Saskatchewan and B.C. There are good tests if someone has a concern about your project but really has no standing. The regulator listens to that and then sets it aside. Whereas, if someone actually has a direct concern or a direct link to what is going on because they’re in the industry or live in the area, they get absolute standing. They get listened to at these hearings.

It’s very important to be able to triage and set aside concerns so that vocal minorities that want to simply frustrate development cannot have that power unless they have direct impacts from the project.

Senator Richards: Senator Neufeld covered a question I had, so I will make a bit of a statement. I want you to respond to it, Mr. Wright, if you don’t mind.

The philosophy of this bill is entirely duplicitous. It is social justice theories on the backs of everyday Canadians. It’s a self-righteous, bullying bill if we disagree with it. Not much of this bill is positive. It puts chains around the body of the industry because the government does not want the industry that it pretends to be helping with this bill.

I am wondering what you think about that statement.

Mr. Wright: Again, I am a simple person. I am not smart enough to figure out motives. I can only agree with you in that this bill is extremely dangerous.

I am deeply passionate about our industry doing great things for Canada and for Canadians, and this bill has many things in it that stop us from being able to do that.

Senator McCallum: Thank you, Madam Chair, and I apologize for being late today.

I am from the Barren Lands First Nation, Treaty 10, Manitoba region. I wanted to go back to Senator Patterson’s concern about defining existing Aboriginal treaty rights and to the gender-based assessment.

There has been a lack of voice historically from First Nations. They have been drowned out, but now we’re getting stronger. Resource development has been linked to different forms of violence in Indigenous communities. You will see that in Manitoba with all the hydro projects with First Nations.

We don’t need laws to tell corporations, to tell businesses or to tell governments how to treat Indigenous people like human beings to ensure that their human rights. Unfortunately this is the way that we make people sit up and listen. We have existing Aboriginal rights. The only way Indigenous people have been allowed to take them forward is through litigation. The only way we can look at the violence that comes from gender-based issues is by bringing them forward.

We’re not here to stop development. First Nations want to be treated fairly. We don’t want to be left out of the picture again, and we won’t be.

A lot of unintended consequences from previous bills have occurred that weren’t fair to First Nations. When we look at the suggestion that subclause 65(2) should be removed or that it heightens litigation, could you comment on that?

Ms. Orenstein: I completely agree with your comments, senator.

My background has been as a practitioner in doing impact assessments. My own path came from epidemiology first through to 12 years doing health impact assessments of major resource development projects both in Canada and around the world.

I have seen the ways that communities are both positively and in many tragic ways adversely affected by major development projects. This is very real. It absolutely has to be addressed. I agree with that 100 per cent. I agree 100 per cent that is the responsibility of the proponent and then the regulator to identify and understand what’s likely to happen, how to mitigate it and the flip side of how to enhance positive benefits.

Where I have seen this being most effective is in the engagement directly between the proponent and the community, sometimes driven by a sense of responsibility by the company and sometimes by the fact that they have obligations the regulator has set out in the fact that they want to get their certificate.

I have never seen good outcomes driven by the end-level, high-level decision, which is what we’re talking about in Bill C-69. I am very much in favour of enabling the regulator to be able to ensure that it can look at what those impacts will be, what can be done and how a project is implemented in the best possible way.

That’s not my problem with this bill whatsoever. To me, it’s this other layer of decision making on top of it. I don’t think that having cabinet revisit the questions under clause 63 will ensure that.

Cabinet has a role, in my mind. There’s an appropriate role from the nation-to-nation relationship of ensuring that rights have not been adversely impacted. That is not the same as exactly what you’re talking about. On a community basis. How are women going to be impacted? How is it that this community will experience things? How is it that traditional trap lines will be disturbed?

That’s something that all happens way earlier. That happens in the technical regulatory stuff. I am supportive of very strong regulations being designed to ensure that it is looked at well. When it comes down to the sausage making of certificate issuing behind the scenes, that is where it’s procedurally all mixed up. I am not sure that working with the process as outlined in clauses 63 and 65 will achieve those very same things.

That’s my opinion on it.

The Chair: Thank you very much for your testimony and the conversation.

For our second panel, from Manitoba Hydro, Grainne Grande, Legal Counsel, and Jennifer Moroz, Legal Counsel; and from the Wa Ni Ska Tan Alliance of Hydro-Impacted Communities, Stephane McLachlan, Professor, University of Manitoba, David Scott, Elder, Swan Lake First Nations, Manitoba, and Leslie Dysart, Community Association of South Indian Lake, South Indian Lake, Manitoba.

We will start with your statements and follow them with a period of questions and answers.

Grainne Grande, Legal Counsel, Manitoba Hydro: Thank you for extending the opportunity for Manitoba Hydro to speak on Bill C-69.

As a provincial Crown corporation and the sole supplier of electricity to retail customers in the province, Manitoba Hydro has a mandate to provide for the energy needs of Manitobans in an efficient and economical manner. We achieve this mandate through a cost recovery model. The costs incurred by the utility are paid for by our customers via the rates they pay.

We have extensive experience in the planning, construction, operation and maintenance of electric generation transmission and distribution facilities. This includes several interprovincial power lines and four international power lines, IPLs, with a fifth in the regulatory approval stage.

We are thus here advocating for changes to Bill C-69 in five key areas. Our seven recommendations follow in our written submission provided to you today.

First is the need for certainty of process and timelines under the proposed Canadian Energy Regulator Act or CERA. Manitoba Hydro takes our responsibility to provide for the energy needs of our customers seriously. When doing so, timing and certainty matters. We need to know the maximum time for approval of a project to achieve timely project in service. Manitoba Hydro is concerned that there are no fixed deadlines for approval for IPL applications. In fact, there is no deadline at all for a decision to be reached on a permit application.

Although certificate applications have specified deadlines, a proponent cannot elect to proceed by way of certificate if it wants provincial law to apply to the land acquisition process for the project. Moreover, the deadlines for issuing a certificate can be indefinitely extended under the proposed legislation.

Second is the proportionality of process to complexity of project. Manitoba Hydro shares the view of the Canadian Electric Association or CEA that the degree of regulatory review required for a project should be proportional to the complexity of the project. CERA does not contain any provisions assuring proponents that simple modifications like those involving no additional land acquisition or changes of voltage to existing IPLs would not be put through the same complexity of process as constructing a new IPL, which is currently the case.

We have seen nothing concrete in the amendments to the proposed legislation to date to suggest anything other than the same rigour of process applying to simple modifications as to new projects. While Manitoba Hydro believes that the introduction of designated officers to perform certain functions is a step in the right direction, there is a number of uncertainties about whether such officers would be permitted to process applications for modifications to existing IPLs.

Section 54 of CERA only permits designated officers to perform confined functions and is dependent on future regulations still to come.

Third is the treatment of interprovincial transmission lines. CERA has not clarified under what conditions or at what point in time an IPL may be designated as requiring regulation and therefore approval under the act. This leaves considerable uncertainty for proponents of projects that may have spent a significant amount of time and cost meeting provincial assessment requirements and are then faced with having to obtain an additional federal authorization prior to construction. Unknown and unplanned steps in a process put into jeopardy both the cost and timeline of achieving a project for customer needs.

Fourth is the certainty of costs and timelines within the Impact Assessment Act. We are concerned with the financial implications and uncertainty of the IAA. We agree with the proposal of Canadian Hydropower on cost recovery. Manitoba Hydro is also concerned with the latitude provided to the agency and review panel to require proponents to conduct studies and collect information as set out in sections 26(2), 38 and 52(2) of the IAA.

As currently drafted, those sections create unpredictability both from a financial perspective and timeline perspective for proponents. Accordingly, we recommend inserting a process by which the agency or review panel and the proponent work together to determine the need and scope for the proponent to conduct additional studies and collect additional information. Manitoba also supports less ministerial direction for timeline extensions throughout the IAA.

Fifth is navigable waters. As the Canadian Navigable Waters Act is currently drafted, it may be difficult to maintain, repair or rebuild structures expeditiously. The process for obtaining approvals for work on existing facilities requires amendment. We recommend including a simplified process for approval of alterations or rebuilding existing structures.

In this regard, Manitoba Hydro agrees with the recommendation of the Canadian Hydropower on this matter. We also agree with its recommendations on amending the definition of major works to ensure that works located on a secondary channel are not captured by this definition.

In conclusion, Manitoba Hydro appreciates and acknowledges the complexities and challenges when recrafting legislation on topics of such significance. When finalizing Bill C-69, we urge the adoption of our recommendations put forward today.

It is critical that all parties have certainty of process and timelines and that the process is proportional to the complexity of a project. Just as important, ensuing regulations must be developed in a meaningful collaboration with interested parties to ensure the legislation itself is effective. To this end, we urge collaboration on drafting of regulations with all interested parties, including proponents like Manitoba Hydro that seek a clear, predictable and cost-effective assessment process for IPLs and projects.

David Scott, Elder, Swan Lake First Nations, Manitoba, Wa Ni Ska Tan Alliance of Hydro-Impacted Communities: The three of us here represent Wa Ni Ska Tan. We put this organization together to deal with hydro-affected communities in the North. As a traditional person, I have a concern regarding industry and its effects on our people specifically. I hear talk about time frames being too short or too long. I hear that the rights of Indigenous people are not defined.

I live on an Indian reserve in Southern Manitoba. The concerns I have for water or the environment are specific to those areas because that is where I live. I see what hydro has done to my brothers and sisters to the North. It’s easy to say that we need easier rules around navigable water or that we need to ease up on the process of consulting our people. Our people’s knowledge of where we live and what we are supposed to be as a race of people in our areas is minimized because the law states that we have to talk specifically about the laws we are subject to.

It is disturbing to hear that ethnic concerns should not be considered. In clause 22 dealing with impact assessments where is our ability to say no? Why are the costs of industry activities too high for those of us who live in those reserves?

The potential for environmental disasters, particularly from pipelines, is different when it impacts a community. If it impacts a private landowner, you are dealing with one family. If it impacts an Indian reserve, it impacts an entire community.

That is the way we live. We live together. We stay together. That is what we do. If something happens environmentally in our areas, it affects the entire community, not just one family.

I support this bill. I do. It’s better than Bill C-45 and Bill S-38, the bill passed under the previous government and how Idle No More came to be. I don’t believe that this will answer all the problems. It isn’t, but we have to take steps forward in trying to create a safe environment for the people that are yet unborn.

Yes, industry will develop. We’re not against industry, but you must consider the impacts of industry on the lives of Indian people. For the most part, we are still confined to our Indian reserves. Yes, as long as the Indian Act stands, I am an Indian from an Indian reserve.

In the absence of federal government exercising its fiduciary right to protect us from local and provincial government activities in our province, Manitoba Hydro is licensed by the Manitoba government, which is the beneficiary of Manitoba Hydro.

Those are our concerns. Why is there no option for Indian people? The cost is just too high for the lives we need to live.

I took a bit more time than I intended to. Thank you.

Leslie Dysart, Community Association of South Indian Lake, South Indian Lake, Manitoba, Wa Ni Ska Tan Alliance of Hydro-Impacted Communities: I come from the community of South Indian Lake, also known as the O-Pipon-Na-Piwin Cree Nation. I am a trapper, a hunter and a fisher, but I am also the chief executive officer of the Community Association of South Indian Lake, which signed agreements with Manitoba Hydro in 1992. More importantly, I am a father.

I want to acknowledge the elders present and that we are on Treaty 1 territory.

I am in support of the current legislation before you, Bill C-69. I am bringing to you my experience as a person of a community who has witnessed first hand the practices by an industry that have decimated us, that industry being Manitoba Hydro, and the lack of regulation by government provided by weak legislation. It is my hope that legislation such as this bill will put in place better practices than are currently present with the rollbacks of 2012.

I have lived every second of my life under the oppression, devastation and harmful practices of Manitoba Hydro, which they are proposing to continue into the future permanently. Canada is absent from these processes. Manitoba Hydro has flooded our lake, decimated our lands, forced our relocation, and allowed the burning and destruction of our traditional homes. It continues to impact us and to impact our overall environment negatively and at times unnecessarily, destroying a fish population and our economy, all under the approval and so-called regulation of Manitoba.

South Indian Lake was once the third largest lake whitefish fishery in North America, with an average annual income that was seven to eight times greater than other northern communities. Stretching the terms of legislation to allow looser requirements allows industry such as Manitoba Hydro to continue to destroy Indian people, waters and lands. We need the federal government to bring forward better legislation to assist in the protection of our communities.

Canada has allowed industry and provinces to impact Indian peoples for far too long. Strengthening of legislation is a step in the right direction. Canada has been totally absent for the most part when it comes to protecting the Indian peoples of South Indian Lake, disappearing from the scene once Manitoba Hydro proposed to flood South Indian Lake with the Churchill River Diversion, the CRD.

Manitoba has allowed hydro to stretch the terms of the interim licence granted in 1973 beyond recognition under the Augmented Flow Program or the AFP. Where is the legislation that should be in place not to stop industry but to give it some pause or even sober second thought, if you will? Our rights should be better accommodated or at least steps should be taken in the right direction. Kinanâskomitin, thank you all.

Stephane McLachlan, Professor, University of Manitoba, Wa Ni Ska Tan Alliance of Hydro-Impacted Communities: I am an environmental scientist at the University of Manitoba. Like my two colleagues here, I am cautiously optimistic about the proposed bill.

I welcome the attention that it pays to sustainability, broader public participation, transparency and accountability, addressing our commitments to climate change, its Gender-Based Analysis Plus, frequent references to UNDRIP article 35 and consultation with Indigenous people.

I would argue that the current legislation is broken and does little to anticipate and much less to adequately address the impacts of these projects on the environment or affected communities.

I have three concerns I wanted to highlight, though, as I wrap up. The first is the reflection of both Indigenous knowledge and Western science as reflected in the bill is important but inadequate. Under the current system the science is defined by the proponent and ultimately favours the proponent in this regard.

As such, cross-cultural approaches, if you like, are terribly important. It’s a very tricky process to balance the Indigenous knowledge with Western science. This has more detailed in the current bill. I feel what will take place is the continued domination of science over Indigenous knowledge/ I have much experience in this regard with respect to Manitoba Hydro and how this has taken place, especially with respect to their “two-track model.”

The second is the incorporation of regional and strategic assessments as reflected in the bill. Again, they are important but inadequate. They rarely occur. When they do, as was conducted recently by the Manitoba Government as part of the CEC process, they are controlled by the proponents. I feel we need more detail in that regard.

Finally, the post-project activities, including monitoring, mitigation and remediation, have not received adequate attention in the bill. This is systemic for impact assessment. We rarely see these “follow-up activities.” Such activities, I would argue, need to incorporate both Western science and Indigenous knowledge and centre on the needs of the affected communities. Again with respect to Manitoba Hydro, I have lots of experience with the recent NEB process around the international transmission line, which I can talk about.

In summation, while I have concerns regarding this bill, it represents an important step forward. Thank you for inviting us to present today. We, of course, welcome all your questions and comments.

Senator Simons: I am from the Alberta Treaty 6 territory. The arguments there are always around oil and gas. In this time when people are so concerned about climate change, a lot of people have been looking to hydro as the greener alternative. It’s very eye-opening for me to hear your presentations. I wondered if I could ask the three of you to decide among yourselves who is best to answer my question.

Could you tell me a bit more about specific environmental impacts that you faced as a result of hydro development? Then I would ask Ms. Grande to respond to some of those concerns.

Mr. Dysart: Do you have all day?

Senator Simons: I have three minutes.

Mr. Dysart: I can’t do it justice. Manitoba Hydro’s energy is not clean. It’s destruction at its purest. All I can do is invite you to my community so that you can see clean energy at work, and I use that term very, very loosely.

That energy is produced on our backs, the backs of our children and the backs of future generations. We are being sacrificed to generate this power. In some cases it has become unnecessary.

We have an abundance of power in this province. To add to the grid is not really working out well for Manitoba Hydro. You only have to look at their bottom line of $23.6 billion in debt. It was a bad decision after bad decision, all basically with the sacrifice of our community and our children.

Visualize entire boreal forests entering water systems. This is not a one-time event. It is a continuous process that has gone on over 46 years. It’s happening as we speak. We are either flooded or dewatered to extremes. There is no balance going on up north.

I cannot do this justice. You need to see it for yourself. It’s not a one-time event. It’s a continuous process which is very loosely regulated. Manitoba Hydro has deviated from its interim licence granted in 1973. Since 1979, they have not followed the terms of their 1979 licence. They have operated under a very loose arrangement with the province called the Augmented Flow Program, which is devastation in its purest sense.

This approval is granted by simple letter. It has never been analyzed under an impact assessment or even thoroughly under a regional cumulative effects assessment.

Speaking to oil and gas, I know very little about it, but I know that Manitoba Hydro is banking on oil and gas expansion. They have to because they have lost so much money. They could probably do a lot more belt tightening first before compounding the power generation in this province.

Many of their recent decisions have been very self-serving to the bloated executive at Manitoba Hydro and not necessarily contributing to this province and the environment.

Mr. Scott: Just to add to that, there were bad decisions and weak regulations. Bipole III was developed here, and their argument was because a tornado could happen. They went all the way over to the west side of the province, down through our community and into the United States. That’s not good business practice.

Those are the things we face as long as the Province of Manitoba licenses its own corporation. That’s the problem we face here, as well in the absence of the federal government to exercise its fiduciary right to protect us from exactly that kind of activity.

I hope that some of the law you are talking about in Bill C-69 is rolled out in the regulations and policy part after it is passed.

The Chair: Ms. Grande, do you want to comment?

Ms. Grande: Thank you, Elder Scott and Mr. Dysart, for sharing your perspective.

Manitoba Hydro wants to take a moment to distinguish between generation, the provincial jurisdiction that is being discussed, and transmission, the subject matter of Bill C-69. Indeed we are here to speak to Bill C-69 and any proposed amendments required so that it is passed and is effective.

Senator Simons: When we were in Saskatoon, Saskatchewan, yesterday, we heard from Indigenous people who were really happy with the kinds of community benefit agreements that they had with companies like Cameco. They really seemed to be making a huge effort to hire Indigenous workers and to buy their construction materials from Indigenous businesses. We heard similar stories in Fort McMurray.

Does Hydro Manitoba make any effort to work with Indigenous communities, to hire Indigenous workers and to have community benefit agreements?

I am quite disturbed by what we’re hearing from this delegation, and I would like to know how that relationship works.

Ms. Grande: Thank you, Senator Simons. I can indeed acknowledge and provide you with a bit of detail on what Manitoba Hydro does in order to work with the Indigenous communities.

We have a very comprehensive Indigenous employment program. Over 19 per cent of our total corporate employees are Indigenous. More importantly, over 49 per cent of total northern employees are Indigenous. We have Indigenous employment at Keeyask where over 43 per cent of total hires are Indigenous and over 29 per cent of active hires are Indigenous. We have pre-placement programs, on-the-job training programs and waterway management programs. We have many Indigenous business opportunities, programs and objectives.

Mr. Dysart: I would like to add to that. I come from Northern Manitoba. I live and breathe there. Most of the employment programs that have been mentioned by Manitoba Hydro are total failures for northern residents. We were almost put in as an afterthought.

The last completed project of Wasagamack had a First Nations partner that Manitoba Hydro failed to mention. I was a member of that First Nations at the time. The employment was very low. A lot of the employees came from Quebec. I mean that is great for Quebec and the people of Quebec, but it is not so great for northern Aboriginal people. Most of the works mentioned exist, but they are usually not very successful and are add-ins after the fact.

Senator Patterson: First, I have a question for Manitoba Hydro. We have heard from the Canadian Electricity Association, of which I am sure you’re a member. They have collaborated, as I understand it, with CAPP and CEPA in proposed amendments to Bill C-69.

You have raised seven recommendations on issues that need to be addressed. My simple question is: Were your concerns covered under the amendments that the Canadian Electricity Association recommended, or were they additional issues that need to be addressed on top of the proposed recommendations from CEA?

Ms. Grande: I can confirm that several of the issues or portions of several of the issues we have raised today in our submission and in the recommendations you will see in that submission were part of the overall CEA submission. However, we have raised some very important issues regarding the proposed Canadian Energy Regulator Act, in particular with respect to the treatment of international and interprovincial power lines that we feel have not been covered on the record to date.

We haven’t been privy to the past week of your Senate hearing, so I am not sure if other parties across Canada, starting from the west and working this way, have raised any issues about the lack of clarity regarding SaskPower.

It is definitely an issue that we want to draw to your attention. We feel it is something that has been possibly inadvertently overlooked. It is something that definitely needs attention so that there is certainty, predictability and clarity of process that will only benefit all interested parties to the process.

Senator Patterson: I want to say to my colleagues and the committee that I am so glad we came to Manitoba. I want to address the Indigenous concerns as well.

It seems like in every hearing our attention is drawn to things that were simply not considered in the bill and things that were greatly in need of clarification. I am starting to think that this bill must have been drafted in a terrible hurry because it is so full of flaws.

I mean there are amendments on top of amendments, on top of amendments that are being strongly recommended to us. I thank you for that answer. As far as Indigenous witnesses are concerned, we came to Manitoba to hear first hand from folks like you. I thank you for your submissions.

I guess I have a couple of questions. First, I think Elder Scott asked, “Where is the no? Where is the opportunity here to say no?” I wonder if you could elaborate on what you meant by that. Do you believe that rights holders in areas impacted by developments should be able to have the final word on whether a project goes ahead?

I also have to say that we have had hearings all across the country and in Ottawa too. Particularly in our travels across the country, we hear people saying, “We don’t want Ottawa invading our jurisdiction.”

In Alberta, they say that the energy regulator has dealt with oil and gas production for decades. They’re doing a good job. They’re efficient. Everyone seems to have confidence in what they’re doing. The feds should not come and invade. It’s better if we have a homegrown process.

That’s how we do it in Nunavut. We have our own made-in-Nunavut process that gives a strong voice to Aboriginal people.

You’ve said you want the feds to come in. You don’t have confidence in your own Manitoba regulators. I think you suggested, Mr. Dysart, there is a conflict between the one who owns and the one who licenses. Would it not be better to have a process run by Manitobans that has credibility rather than something run out of an Ottawa-based regulator?

I guess there are two questions.

Mr. Scott: I will start, and Mr. Dysart has something to say as well.

There is a cost to hydro on our lives. The impact is great because we don’t have the power to say no. The Province of Manitoba pushes these things through. We know the process that we go through with CEC. Hydro knows there is a licence at the end of it, so we’re just put through the motions.

Under article 91(24), Canada is supposed to act in the best interest of Indians. When those dams started being constructed up there, Warren Allmand was the Minister of Indian Affairs. He said, “It’s not the best, but it’s the best we can do.” What he didn’t say was: at the cost of your lives and the way you live.

That is what happens in this province when the provincial government is the beneficiary of the money that hydro generates. Now they’re punishing hydro because hydro has such a big deficit. The whole board resigned. That’s what we have to face here.

They don’t consider the impact on our lives up there. They minimize Indigenous knowledge. They say, “No, your concern is this, and that’s all you can talk about.” That’s what we’re faced with. The recent cumulative effects assessment and all the things it found was done because we pushed the idea to look at the impacts of hydro on our lives in the North. That’s where all those criminal events have happened, and that’s what happening now.

In terms of the NEB, whenever a proponent impacts an Indian reserve or Indian people in general, I believe it is the federal government’s responsibility to assess that issue because of article 91(24) and article 35 rights. When I talk about article 35 rights, I don’t mean the rights of chiefs and councils. I have that right. That’s my constitutionally protected right. It is not the chiefs and councils. I have to give my chief and my council the right to talk about that right with proponents.

That’s where I am coming from when I say there has to be an ability to say that is just too much. It impacts on our lives too much, and we have to say no. That could be extended to municipalities and to farmers. Farmers are impacted by hydro as well. We try to defend our way of life out in the rural areas beyond the perimeter highway of Winnipeg.

The Chair: Do you want to add something?

Mr. Dysart: I will be brief. I wasn’t suggesting for Ottawa to come in and dictate or control. I am suggesting that we come and work together in partnership. For the last 60 years Manitoba has had too much leeway when it comes to the regulating and licensing of Manitoba Hydro.

Manitoba Hydro has been running the Churchill River Diversion, which was described by Dr. David Suzuki as the biggest experiment in Canada, if not in the world, in 1996. They need a watchdog. We are being sacrificed by having these loose arrangements. They don’t even follow the very loose terms of the 1973 CRD interim licence since 1979.

I am suggesting we work in partnership with First Nations people and not necessarily just chiefs and councils. I’ve seen that at play with Manitoba Hydro. It’s very selective by the province and hydro with whom they work. I use that term very loosely.

I represent an organization or a corporation that has signed an agreement with Manitoba Hydro and the province in 1992. They have refused to talk to us since 2013.

Senator McCallum: I want to make a comment before I ask a question of Manitoba Hydro.

The relationship Indigenous peoples have with Canada and the federal government has been one that we have tried to iron out for all my life. Canada transferred some of that responsibility to the provinces. Now we have another level of problems created by the provincial government.

When we look at our lives, we cannot segregate each part of our life by saying that this bill will only take care of this or this bill will only take care of that. It involves all our lives. This week, we looked at the language bill, the child welfare bill and the impact bill. All those bills affect us. Their limitations put forward unintended consequences from each bill. We’re trying to correct these little problems that come about because the laws exist in silos.

One of the fundamental areas of concern is land acquisition historically and today. This includes lands crossing different Indigenous communities. It also raises the concern of outstanding land claims, some of which have not been resolved in 26 years.

I have been to South Indian Lake, to Cross Lake, to Norway House, to Split Lake and to Gillam. I have seen all the devastation of hydro. That is why I recommended that this committee fly up North to see the damage. It’s only when you see it can you understand the cumulative effects.

When I look at the land acquisition and how historically people were forcibly displaced at Chemawawin, Fox Lake and South Indian Lake, where a few had to move from your site, I understand that they made you burn the houses. There was never any compensation for people. I read the story about Fox Lake and how they were left in the centre while the hydro homes went up. They were without sewage and without water, and people in Winnipeg were using that water to generate their electricity.

What is the process today when we look at how you work with First Nations and the lands that surround them and fed them? How are you dealing with that?

Ms. Grande: Thank you, Senator McCallum, for sharing your experience. I understand your concern with bills and silos, so thank you for expressing that.

I want to first begin by saying that I personally am not in a position to speak at great length about details of the past and particular past projects that may or may not have had regulatory scrutiny. I can advise that Manitoba Hydro has acknowledged the negative impacts it has had on Indigenous communities through its past development and has taken steps to address these impacts.

We are taking steps by looking at all the processes throughout the overall project build, including land acquisitions, to ensure that where possible we are consulting as early as possible with Indigenous communities. We are engaging in that preplanning phase. We are engaging where we can and as early as possible in the onset.

Jennifer Moroz, Legal Counsel, Manitoba Hydro: Perhaps I could just add to that. It’s also important to say that Manitoba Hydro recognizes the diversity of different Indigenous communities. When it approaches the issue of engagement, it does so on a community-by-community basis. It understands that different communities like to engage in different methods. The resulting agreements that might come out of that engagement, such as community benefit agreements, are tailor made to the individual community.

That type of approach to engagement with Indigenous peoples and addressing their concerns is something that has developed over time and through the past lessons that Manitoba Hydro has learned through its various developments, both generation and transmission related.

Mr. McLachlan: I am sure my colleagues would like to respond. One of the narratives in this is that impacts are all in the past and somehow things are being done differently today. The three of us partook in the NEB process around the most recent international transmission project. I dove deeply into that in terms of an expert report on Wa Ni Ska Tan that I wrote for the NEB.

What took place at the service level is that impacted Indigenous communities were given a bit of money to do their traditional knowledge studies. Then hydro dominated in terms of resources with their own science-based impact assessment. When it actually came to presenting and to interacting with the NEB panel, it was clear that Manitoba Hydro paid no attention to what the community said. In a sense, it just perpetuated the impacts the communities were concerned about.

In this case it was the electromagnetic frequencies. It was the use of pesticides. It was the implications of the corridor for traditional-use plants and for wildlife. In terms of the dialogue, Manitoba Hydro was completely defensive. They weren’t inclusive. They didn’t reach out. They weren’t consultative. Ultimately, as reflected in the NEB report which came out just a few months ago, the project is going ahead seemingly. On paper, yes, it looks impressive but the reality is that nothing has changed over the last 40 years.

The Chair: Dr. McLachlan, you mentioned in your answer that you wrote a report. Do you think you could share that with our clerk?

Mr. McLachlan: Of course. Elder Scott also wrote a report. We can share them.

The Chair: We have three last questioners: Senator Carignan, Senator Neufeld and Senator Plett.

[Translation]

Senator Carignan: My question is for the Manitoba Hydro representatives. You talked about the principle of proportionality, which I find interesting. It’s the first time a witness has brought that up. Could you briefly describe what you mean by proportionality?

I am a lawyer, and Quebec’s Code of Civil Procedure provides for the principle of proportionality, which maintains that the actions taken, pleadings filed and means of proof used must be proportionate, cost- and time-wise, to the nature and complexity of the matter and the purpose of the demand. That’s a bit like what you’re talking about.

Should a similar principle be set out in the legislation and apply to certain requirements or studies sought by the agency? Should it factor into the minister’s decision-making criteria? Would you mind explaining the concept to us? I think it’s quite compelling.

[English]

Ms. Moroz: I think I can respond to that question, senator. Yes, we definitely believe that proportionality is a very important component of the regulatory process. To give you a bit of a practical example, a lot of focus has been placed on the construction of a new international power line or a new pipeline.

However, if you look at Manitoba Hydro’s four existing international power lines, one of those power lines has been before the National Energy Board seven times to be modified. Manitoba Hydro has a number of concerns that haven’t been fixed with the bill in relation to those types of projects.

As you said, proportionality is an important component. Modifying an international power line can run a very broad spectrum of modifications. They can be minor modifications where you are simply taking out one tower and replacing it with another tower, or a fairly large restructuring project where you are completely reconfiguring the line and increasing its voltage.

The way the current bill works for those types of projects is essentially the same way the National Energy Board works today. There is simply one provision in the act which deals only with modifications to lines that have been issued a certificate before June 1990. There are no provisions addressing lines which need to be modified that have been authorized by way of permit. Nor are there any provisions about certificates that have been issued after June 1995. Manitoba Hydro lines fall into those categories or will fall into that category if another line is authorized.

There is only one provision, as I said, that deals with a modification. It’s a fairly bare-bones provision. With that type of a vacuum, Manitoba Hydro is concerned that the current practice of the National Energy Board for dealing with those matters is to simply continue on with the commission.

Currently, because there is little specificity in the statute itself, the board’s Electricity Filing Manual dictates what type of requirements need to be put in an application. Through Manitoba Hydro’s experience, the board has been applying all of the requirements that are required for the instruction of a new power line to any type of modification to an existing line, however small.

All of those approvals would need to be done by the commission under the new bill. Manitoba Hydro doesn’t think that is reflective of proportionality. It’s not looking at the nature of the project and how simple or complex it might be. It’s not fair to the proponent to be put through the same rigour of analysis for a project that is not nearly as complex as the Manitoba-Minnesota Transmission Project.

[Translation]

Senator Carignan: If I understand you correctly, you are saying that that aspect of the bill should be reworked, but you aren’t going as far as to call for the proportionality principle, as I described it. That would entail including a provision or obligation to apply the principle of proportionality to the minister’s decision-making, or the requirements or studies imposed by the agency. Would you go as far as to recommend that?

[English]

Ms. Moroz: Yes, I just hadn’t gone that far yet.

We think that implementing the concept of a designated officer could go a long way toward addressing the concept of proportionality. If you add to Bill C-69 some very simple baseline requirements for a modification application, designated officers with clear authority to analyze and review the scope of those projects, authority to ask for additional information, if warranted, based on the scope or the complexity of the project, and authority to issue decisions on minor matters, you would go a long way toward addressing proportionality for those types of projects.

However, we would also definitely support proportionality in the exercise of other roles, such as the ministerial role, in terms of designating interprovincial power lines as requiring regulation under the Impact Assessment Act and things of that nature.

Yes, we definitely endorse the concept of proportionality throughout the legislation, but we want to make sure that people are not just focusing on new lines but on all continued modification of existing lines.

The Chair: Senator Plett, do you want to have the last question?

Senator Plett: I apologize to the committee that I was a little late. I just flew in this morning, as many of you know.

My questions and comments will be related a little more to past mistakes than the future mistakes inherent in Bill C-69.

As has Senator McCallum, I have spent a good part of my life in most of Northern Manitoba. I certainly spent a great deal of time in South Indian Lake working on housing projects and working on the school in a past life. I am certainly aware of some of the devastation there has been in South Indian Lake. I certainly feel some of your pain in that regard.

I am also from Manitoba. I am from rural Manitoba. Elder Scott talked about the impact on the rural areas of Manitoba. I am outside of the perimeter about 40 kilometres southeast of here in Landmark. I want to talk a bit about Bipole III that has been mentioned. Many of us tried hard and led the charge to have Bipole III go on the west side of the lake as opposed to on the east side. For the east side it was well over a billion dollars in more money than going on the west side. Bipole III comes all the way down the east side of the lake, goes well south of Winnipeg, then west, and comes right by my community, two miles from where I used to live.

These decisions were made by a different provincial government. I don’t know that we can particularly blame hydro for it. It was more a government decision than a hydro decision, but could you tell me a bit about what the impact would have been on Bipole III had it gone down the west side? Would it have been better or worse in as far as some of the issues you’re raising?

Audience Member: With all due respect, senator, you’ve got the information wrong.

Senator Plett: Excuse me, chair, but my question is to the witness. I think people who want to talk need to be removed.

The Chair: Yes. I think we are going to —

Audience Member: I am sorry to object. I really apologize to the presenters and to senators, but I oppose —

Senator Plett: Again, chair, I don’t think that this person is on the witness list.

The Chair: We accept that —

Audience Member: I don’t think there has been any other legislation in Canadian history that the —

The Chair: We accept that —

Senator Plett: I hope everything is being erased right now.

Audience Member: I am going to go downstairs and hold a news conference and explain that the standards —

Senator Plett: That would be the place you should go.

The Chair: We will suspend the meeting.

Senator Plett: Thank you, chair. Could you please continue?

Mr. Scott: I forget the question.

Senator Plett: The question is based around: Would the environmental impact and economic impact have been a lot different?

Clearly, the Canadian taxpayers know the economic impact was well over a billion dollars. As you know, we’re selling our hydro south of the border for a fraction of what we’re paying for it right here in the southern part and even the northern parts of Manitoba.

Mr. Scott: My answer would be that we were sold on Bipole III as being necessary to ensure that we have hydro down here in the south. That’s what we were sold. Yes, you’re right. Political people did make the decision to put that line where it is today. It was, yes, a different government.

The point is that we have to remove, as much as possible, remove the political interference in some of the things we need to do in terms of protecting the environment. The Manitoba Hydro regime here and the province issuing those licences is wrong. It’s just absolutely wrong because of political decisions being made.

Yes, hydro needs to sell for money to keep our rates down. That doesn’t mean that they should have a licence to do whatever they want under the guise of the authority of the Province of Manitoba. That should not happen. We’re not against development. Do it right and don’t impact our lives so much.

When do have to stop making dams? We have a dam up there right now, Wuskwatim. It’s not generating any revenue, but it sure pays out a lot of money. Take a look at that. That’s what I mean by political people interfering in this process because they give licences to hydro. Take a good look at what’s happening here with hydro.

The Chair: Thank you. Do you want to add something? Be very short, please.

Mr. Dysart: I’ll try to be short. There are a lot of things I want to add to it, but maybe we can talk after.

The Chair: You can submit a longer statement to the clerk.

Mr. Dysart: A licence to destroy. I have looked at Bipole III a bit deeper than the east side/west side debate. I believe that was an argument. The debate was fuelled by industry. The real question is: Did we need Bipole III? The answer was no. Forget the east side/west side debate. We didn’t have enough power generation at the time or currently for Bipole III, period. It’s not needed.

The whole reliability justification was all they could come up with. I mean it’s like somebody buying two vehicles because one might break down. Like, who does that?

You say past mistakes. There are current mistakes being made as we speak that are compounding the environmental and socio-economic devastation. I wish I could go back to the time when you were in South Indian Lake. Even as bad as that was, it’s better than what it is today.

The Chair: Thank you very much. With that, we have concluded the questions for this panel.

(The committee suspended.)

(The committee resumed.)

The Chair: I want to pass the motion that we discussed, Senator Richards and Senator McCallum:

That, notwithstanding the usual practice and pursuant to rule 12(17), the committee be authorized to receive testimony on April 12, 23, 24, 25 and 26, without quorum, provided that two members of the committee be present.

Is it agreed?

Hon. Senators: Agreed.

The Chair: For our third panel, we have from Public Interest Law Centre for Consumers Association of Canada (Manitoba), Byron Williams, Director, Public Interest Law Centre, and from Chemawawin Cree Nation, Chief Clarence Easter.

We will start with your opening statements, followed by a question period.

Clarence Easter, Chief, Chemawawin Cree Nation: Thank you and good morning, honourable ladies and gentlemen. [Indigenous language spoken].

My community of Chemanwawin Cree Nation has approximately 1,500 members living on reserve approximately five hours north of Winnipeg. I am here today to talk about my community’s overall focus on health.

In 1964, my community was forced to relocate, in its entirety, to allow the flooding of Cedar Lake and its surrounding areas. The flooding of approximately 200,000 hectares placed the majority of our traditional lands and home community underwater to create what is now known as the Grand Rapids Generating Station reservoir and the Cedar Lake resource management area as we know it today.

We did not have any say regarding this relocation or its effect on our resource area. For decades, we struggled to recover from this relocation and the complete altering of life as we knew it. Our way of life and everything we knew were changed overnight, in five minutes. I cannot begin to relate to you the extent of the environmental, social, cultural and financial impacts this project has had on our people. In spite of this, we’re willing to pursue a working relationship with the Crown and build upon current programs to manage our resource area.

Approximately 10 years ago, I had to step back and revamp my community focuses and priorities. After years of unchecked operations and assistance from numerous so-called experts and/or consultants, my community was slowly slipping into a state where it was facing a bleak future.

Our financial state was approaching third-party intervention. Our community infrastructure had eroded due to a lack of funds and capabilities. We had a significant housing project that couldn’t be finished and was at risk of being cancelled. Our employment rate was at an all-time low. Our health programs had been declining and continually declining up until then. I needed to change the way we did things and our overall focus.

I decided the main theme for our community was to improve our health perspective. I said to my people, “We have to turn a new leaf.” My first step was to find a partner to assist us in our operational and financial restructuring. With that focus, we raised over $10 million in operational debt and stabilized our finances to a healthier financial state.

We then moved into security and long-term employment by managing our lake and resource management areas to bring our lake back to a safe and healthy state. We have worked to recover from the devastated fishing industry that saw us close the lake entirely for five years, in aid of rejuvenating our fish stocks.

In spite of the devastation we incurred as a result of our relocation and the flooding of our way of life, we structured our resource management agreements to see us working in partnership with the Crown and industry. We currently employ approximately 120 band members each year through these programs. We are into the eighth year of a renewable 50-year agreement.

Following the initiatives of our resource management area focus, we turned our efforts into a crumbling and non-existent infrastructure. We could not get support from INAC at the time, so we financed our own community plan in excess of $800,000 to map out our needs for today and up to 20 years in the future.

We began addressing water and waste systems that had experienced years of neglect and undertook the massive task of creating effective drainage and building up our road system to a degree where there is a sound road base that could be resurfaced. We were able to obtain conventional financing approximately four years ago and completed the undertaking of paving all the roads in our community.

In approximately 2012 we partnered with a health centre here in the city to provide safe accommodations for our members while in the city. To pursue health services solutions for our members, we partnered with three other underserviced communities for this initiative from the North. For three years now we have a fully operational mental-wellness team that provides services directly into our communities and provides life skills group counselling programs to our members in our facility here in the city.

For the past year we have recruited three physicians that also provide services to our members in our communities and here in the city as well. These are Indigenous-led solutions for Indigenous people in partnership with private and government entities.

I am here today to ask for your support in continuing our efforts toward improving our overall health. In addition to your support of our pursuit of better health services in our community and for our members, I am also asking for your support in ensuring that our resource management area continues to be on the same path of improving its health and does not become vulnerable to projects and development in the future.

We hereby ask Transport Canada at Cedar Lake, in the scheduling of important navigable waterways, to ensure higher priority is given to reviewing future projects or development works in the Cedar Lake resource management area. We also request that Transport Canada enter into a partnership arrangement with our community for co-management of navigation within the Cedar Lake resource management area building upon our existing programs and expertise.

We further request that you consider amending section 27 of the Navigable Waters Act to include agreements and arrangements so that Transport Canada can recognize the jurisdiction of a First Nations that already has a Crown agreement for co-managing a navigable waterway, especially where waterway is integral to the culture and economy of the First Nation.

Thank you for your time today and for allowing me to tell my story. I hope you can assist us in continuing to build for the future. Draft amendments will be forthcoming.

The Chair: Are you going to submit supplementary information to the clerk of our committee?

Mr. Easter: Yes.

Byron Williams, Director, Public Interest Law Centre, Public Interest Law Centre for Consumers Association of Canada (Manitoba): Good morning, Madam Chair and members of the panel.

With me in the second row is the Executive Director of CAC Manitoba, Gloria Desorcy, as well as Dr. Patricia Fitzpatrick from the University of Winnipeg. They have collaborated on this project under the instructions of CAC Manitoba.

It’s a great honour to be here today before the standing committee and obviously an honour to be on Treaty 1 lands in the heartland of the Métis Nation.

We provided two documents for the panel. One is a seven-page PowerPoint. The title is “An Uneasy Compromise.” We also provided to the panel a single-page sheet called, “Canadian Legislators and Consumer Engagement.” We will focus on the PowerPoint, but we brought this single-page sheet to you because there has been a lot of conversation in this process in Calgary about the directly affected test. We wanted to share with this committee examples of Canadian regulators that are working innovatively to incorporate the viewpoints of thousands of Canadians.

On this page you’ll see examples of what the CRTC did just last fall in their retail sales practices proceeding involving over 9,000 Canadians, or what our Public Utilities Board did in a recent rate hearing involving over 2,300 Manitobans. They are innovative approaches to get more consumer input rather than trying to stifle public engagement. From our client’s perspective, one of the key messages to this committee is that there are innovative processes which are actually more time stressed than the environmental processes and which can provide meaningful value to the process.

You may ask: What is a consumer organization doing here speaking about impact assessment? Over the past 60 years in Manitoba and the past 20 years of impact assessment, our clients believe very deeply that as consumers they have a responsibility to look at the products they purchase, and at the health, social, environmental and economic impacts of their production. As consumers they are directly affected.

In terms of our contribution, the CAC presentation has been developed by the three of us as a team which has been involved in at least 10 major provincial and federal environmental assessment projects or need for alternative assessments involving over $30 billion worth of projects. We’ve seen it from the hydro side. We’ve also been intimately involved in pipeline proceedings. We certainly have seen the lack of a robust process in the pipeline context of evidence before the National Energy Board.

The point we want to make on this page 3 of our PowerPoint is that you’re very familiar with all the noise, the fury and the polemics of federal legislation, but there have been some very interesting innovations, some successful and some failed, at the provincial level in Manitoba. Those involve the development of environmental impact statements, not just from a Western legal and scientific perspective but from a Cree world view and Indigenous perspective. They include a regional cumulative effects assessment of the very highly compromised Nelson River Watershed, which had many flaws but also identified the history of violence against women that was collateral to some of these projects.

We also have in Manitoba our clients’ direct experience in attempting sustainability-based assessment. Frankly, Manitoba Hydro through its multiple account benefit analysis does a version of that and directly addresses issues such as climate change. Our clients certainly aren’t as afraid of that concept as you might hear in other jurisdictions.

Manitoba has also been innovative in terms of monitoring, including First Nations participation in monitoring. We’re the first jurisdiction with two after the fact analyses of major products to see how they’re doing and how we can adaptively manage those projects. Interestingly, in Manitoba we’ve had many failures. A need for an alternative analysis resulted in the mothballing of a $10.5 billion hydro project, which clearly was out of step with market realities.

I will not be going to spend a lot of time on slide 4, but I highlight that meaningful early engagement matters. Involving the public can help reasonable projects become better and can make their approval less contentious while providing early warnings of high-risk projects.

I also want to highlight, especially in the Manitoba context, the third bullet on how important are cumulative effects. You heard the senator from Manitoba earlier speak to that. Our Nelson River and Churchill River watersheds are highly compromised. Additional activities could be a significant environmental tipping point. When looking at projects in Canada in highly compromised areas, it’s difficult for a proponent to cover the whole regional context by itself. This underlines for our clients the importance of regional cumulative effects assessments.

On slide five our clients talk about some of the promising elements they see in Bill C-69. One is a process element. There was extensive public engagement with over 1,000 witnesses in person and over 500 written briefs, again in a compressed time period.

Our clients also see promise in the early planning involving the agency and enabling meaningful public participation. Our clients see that as a way to make good projects better and to warn about negative projects. Our clients also see important opportunities in transparent guidance for decision makers, participants and the public.

I do this stuff a lot, unlike others. From our clients’ perspective, clause 22 in terms of the factors, clause 63 in terms of the public interest test and clause 65, are important in enhancing public accountability and enhancing the quality of decision making. My friend, Ms. Orenstein, whom I know well and with whom I have worked, is a brilliant epidemiologist. When it comes to her concerns about subclause 65(2), I do not share those concerns. I think subclause 65(2) merely reflects what our Supreme Court of Canada has told us, that decisions must be transparent, justiciable and intelligible.

Our clients have a number of concerns with Bill C-69. Those are set out on page 6, but I wish to draw to your attention the third one. Will the legislation protect Manitoba water? I can’t say it will, but we have included a quote of a Cree individual from Northern Manitoba talking about the destruction of a vibrant, sustenance sturgeon fishery, the near extrication of brook trout and cumulative effects that are profound, largely unmonitored, unmitigated and unrehabilitated. Think of this highly compromised and highly vulnerable watershed and of the role that Canada could have. Given species at risk, Crown lands, First Nations reserves and waters that have been navigated since time immemorial, the reality is that the Government of Canada has been sitting on the sidelines throughout CEAA 1992 and throughout CEAA 2012. This begs the question: Does this legislation move Canada forward in that regard? From our clients’ perspective, they’re not persuaded.

First, this panel has been presented with a lot of thoughtful recommendations. You’re under tight time frames if this bill is to be passed. Our clients have more modest recommendations that appear on page 7. One is recognizing the fact that meaningful public participation is critical and important. It should be defined under section 2 of the Impact Assessment Act. We have proposed a definition there.

Second, if the bill is to be about transparency, when monitoring reports are prepared by the proponents shouldn’t there be an obligation to make those reports publicly available and easily accessible?

Third, to enhance the protection or the tool of regional cumulative effects assessment, we have suggested an amendment to subclause 97(1) to oblige the minister to develop a list of priority areas where we can take a hard look at highly vulnerable regions, at potential futures for them leading to better impact assessment and, frankly, at taking some of the burden off of individual proponents.

We’re very grateful for this opportunity and look forward to any questions the panel may have.

Senator Richards: I am glad to see you here, Chief Easter.

Every time the federal government seems to do something to help one species or one part of my home province, they end up hurting another inadvertently. This is a broad perspective. I don’t know how it can pinpoint some of your problems, but it’s kind of the same thing. They wanted to save the bass 20 years ago, so they cut out fishing of speck bass on the Miramichi. This devastated our salmon, and now we’re in a fight to save our salmon.

With the seals it was the same thing. They stopped the culling of seals, and now there are so many seals in the Northumberland Strait that it is an added burden to the salmon. It seems that every time the government gets involved with one thing, it kind of destroys another thing. That’s part of the problem with everything that’s being done to the reserves, to the wildlife and to the nations as a whole. They use Agent Orange in New Brunswick to stop the growth over power lines. Of course, 500 people died because Agent Orange was devastating. They didn’t know at the time, but that is what happened.

My question is a little different, and forgive me for rambling a bit. You were talking about the health aspects. In my other life I mentored a lot of First Nations kids that come through schools and get to the universities. From talking to Chief Ganesh and other people, one of their major concerns on the reserves is education. When you were talking about health, I was thinking that there is one female First Nations surgeon in this country. I know Senator McCallum is a dentist, but it must impact the reserves and the people not to have their own health specialists. What can be done to help the First Nations buoy that to make sure their kids get better education? It would be great for a First Nations person to be able to go to a First Nations doctor. I don’t think that’s happening in Canada.

Could you comment on that?

Mr. Easter: I guess I’ll respond to your question by telling you a bit about the way we look at things. We look at things to understand our environment, to understand what our land is doing, and to understand what the lake is doing. Right now we don’t understand Cedar Lake. What is it doing? We need to know what it’s doing so that we can adapt to it. Right now we’re not adapting to our environment. A lot of our people are getting sick because of our environment.

For example, we had to deal with dogs. Before we knew how to deal with dogs, but since coming into the relocated area we don’t know how to deal with dogs. They run rampantly. In the last 10 years we began to deal with dogs. Every six months we have a dog clinic. Everybody needs to understand how to deal with dogs. We have spaying and neutering. We also deal with stray dogs. We pick them up and give them away. We’ve picked up over 400 dogs in the last three years and spayed and neutered over 350 dogs. That has worked. There are no stray dogs now. That’s an environment. We understand that. We try to understand that environment in terms of dealing with dogs. In terms of dealing with our environment of the lake, we need to understand what the lake is doing. We need to understand the results of the monitoring and be able to adapt to them.

Senator Richards: I absolutely agree with you. The same issues are happening and the same problems are occurring on the reserves in New Brunswick where I come from. I have grown up near three reserves, and they face some of the same problems.

I suppose my question was a little off topic, but talking to Chief Ganesh and others, their main concern was the more First Nations youth get a post-secondary education, the more they have a chance to come back to the reserve and help solve these problems. That is what I was getting at.

Mr. Easter: That helps too, but as soon as you educate people, they leave the reserve to go work somewhere else.

Senator Richards: That’s a problem too, sir. I realize that.

Mr. Easter: We need development in the community for our people to come back. We have a problem now where you educate people, but they leave to go work somewhere else.

Senator Richards: Yes.

Mr. Easter: We need to build infrastructure to make sure they come back to our community.

Senator Richards: That’s right.

Mr. Easter: That’s the reason for our health facility in Winnipeg. We sort of gather all the physicians in the city and filter them out to the communities. A doctor doesn’t have to move into the community to be able to work there. We can get them there and get them back to the city for the weekend.

Senator Simons: Thank you very much, Chief Easter, for being here.

My question is directed to Mr. Williams. It’s about your third recommendation on priority lists for regional and strategic assessment. We have a separate problem on the committee, which is that we don’t yet have a project list for what kinds of projects will be included in impact assessment. You’re speaking of something related but different about giving priority to particular regional and strategic assessments.

Could you explain a bit more about how that would work and why your agency thinks that is an important amendment to make?

Mr. Williams: We often talk about the death of a thousand cuts and how we can’t look at one project in isolation when we’re looking at environmental impacts. We also have the dilemma in environmental assessment that it’s not fair to a proponent to have to bear the burden, even research wise, for all the underlying issues related to a particular region.

The theory behind regional cumulative effects assessment is to develop a baseline of knowledge related to a vulnerable region to look at possible different futures. That’s kind of a source of information to assist government in its planning exercises and to assist industry and the public when they’re looking at issues to develop that kind of information.

In regions that you might think of in Canada, such as the Ring of Fire, a highly controversial in Northern Ontario, wouldn’t it be nice, rather than have it totally politicized, to have some common evidence in terms of what different futures look like for that region based on traditional knowledge and science? The Nelson River Watershed where we attempted but had a failed regional cumulative effects assessment in Manitoba is another natural one.

Senator Simons: Certainly the Wood Buffalo area near Fort McMurray.

Yesterday in Saskatoon, we discussed another one of your suggestions that I like a lot. It is the idea of mandating some kind of follow-up so people can see how proponents actually lived up to the expectations placed upon them. I am trying to figure out, though, if that belongs in the act or if that’s better dealt with in regulation.

Do you have an opinion about whether that could be handled in a regulation once the act is passed, or does that need to be written, in your opinion, into the hard text of the act itself?

Mr. Williams: You will be hearing from Dr. Sinclair later today who will have some opinions. Some directional guidance in terms of the need for assessments after the fact, the obligation to make monitoring transparent and the value of having First Nations and other Indigenous people participating in monitoring, is very important. It’s not just about seeing how we did on a report card. We know we’re going to be wrong and projects are going to get through. We know that our predictions are going to be wrong and most projects will get through. Then we have to manage adaptively afterward. Some would argue that in many ways the most important under-realized part of this legislation is in monitoring.

Senator Neufeld: Thank you both for being here. I appreciate your information. What testimony do you listen to in a standing test? Do you listen to what this bill will allow the world in general, or do you listen to those that are going to be directly affected? There could be experts from outside that come in and give opinions.

We’ve heard a variety of responses from First Nations who mostly said that they should listen to if they’re being directly affected. Maybe both of you could just briefly answer that, and then I will have another question for you.

Mr. Easter: I can only give it to you by example. After relocation everything else was devastated. The fishermen on Cedar Lake couldn’t trap anymore, so they focused on fishing alone. They kept going back to Manitoba and asking for increases in their licences and their quotas. Over the years they sort of overfished the lake. Some 20 years ago, in 1996, they just about overfished. There was only one-year class fish left on Cedar Lake. They came to me and said, “We can’t go fishing; there’s no fish.” They asked the province and the province said, “You’re overfishing the lake.” They wouldn’t listen, so I said, “You have to close the lake and get the stocks rebounding.” I said, “When you open it again, you have to reduce the number of licences on Cedar Lake to 40 and reduce the quota by half so the lake can be sustainable.”

We understood what needed to be done. We had to do it to save the lake and to save the fish in that lake. That’s what I am listening to. I want to tailor the act so that we understand what the lake is doing and adapt to it.

Mr. Williams: I would argue that a direct standing test is an invitation to delay and litigation. There are ways to do it within a tribunal’s process that allow for different gradations of participation. That’s why I gave you those two examples.

The CRTC engaged actively in different ways with over 9,000 Canadians, 1,400 or so of whom put in written submissions and 7,700 participated in an online survey. Out of those 1,400 intervenors, the CRTC heard directly in person from a variety. Some were experts, some were really directly affected, and some were just citizens. I do this for a living. I think tribunals are very able to manage their processes with some flexibility.

The Manitoba Public Utilities Board is the other example. They had four types of interventions by participants, intervenors and specialized folks like ourselves, 2,300 comments and consumer panels. There are all sorts of ways to do this. Then you’re fighting about the issues, instead of who gets in and who gets out. That’s my advice, sir.

Senator Neufeld: We were told, especially by First Nations and by others, that even though you let them have the standing, others will come in, disrupt the process and usually get the attention, and the concerns of the First Nations left on the side.

We just witnessed that in this room. There was an elder sitting here talking to us, and what happened? A bunch of people got up with some flags. They were standing there. Where did the cameras turn? They turned there. They ignored the First Nations elder who was actually testifying. When the person that had the big flag said he wanted to do a press conference outside, all the cameras went outside. That’s an example of what happens. People come in with ulterior motives and actually overtake the process.

I think that’s part of the difficulty. We had a very good demonstration of that right here today.

Mr. Williams: Perhaps I could respond quickly, sir.

Senator Neufeld: Yes, and then I will have one question for you.

Mr. Williams: If you have a question, then go ahead.

Senator Neufeld: I know the chair is going to stop me here/

The Chair: Ask your question.

Senator Neufeld: You can comment on what I said, and I’ll give you the question.

The minister shall comply and may amend from time to time a list to be known as a priority regional strategic and assessment list. I am not saying we shouldn’t have assessments, but how in the whole country of Canada does a minister of the Crown decide what and where should be a priority?

I think about my own province of British Columbia. My goodness, you couldn’t do a strategic assessment in the whole province.

Mr. Williams: I think Senator Simons flagged it. In our provinces we probably know hot spots where there is high vulnerability and likely future heavy activity. If you think of the province of Manitoba, our current provincial government has a very laudable intention to develop the North. That’s a starting place obviously here.

I think it can be done, sir, and I think we saw a successful example in the southwest corner of Saskatchewan in terms of oil and gas development where that regional cumulative effects assessment gave good information for future development. I think it made things easier for citizens and for proponents as well, sir.

Senator McCallum: I want to say that when I look at the Impact Assessment Act, it involves health. It’s about protection. It’s about economic development. As Indigenous peoples, we look at this issue holistically. We don’t zero in on some of the technicalities because our voices haven’t been heard in a lot of issues.

This is why the early planning phase is so important. If the early planning phase had been done thoroughly and with collaborative consultation with the people impacted and with non-humans like the moose, the geese and the fish, we would not have such huge adverse cumulative impacts today.

When I look at the amendments that Chief Easter brought forward, they are to address past adverse impacts. They are an attempt to correct what has happened in the past. Would you agree that the early planning phase has increased in importance in the bill since we now have to look at remediation, mitigation, and people continuing to live through the effects of past devastation?

Mr. Easter: I agree with you. I think our communities need to adapt to the environment. They also need to understand what has been done to the environment, how it has been damaged or how it has been compromised.

Ongoing vulnerabilities are happening that we don’t understand. The reason I am here today is to be able to ask whether Cedar Lake can be put on a separate schedule so that I can understand what’s going on in Cedar Lake. Many outside forces affect the lake as a reservoir now. It’s not only that we have to deal with the past. We also have to adapt to what it is currently. We don’t know how to adapt yet, but we’re trying to learn how to do that.

Mr. Williams: Senator McCallum, sadly, I have read in my life tens of thousands of pages of impact assessments. The two best impact assessments I read in my life were about four years ago. One was a 130-page document by the Fox Lake Cree Nation from a Cree world view. The other was about the same length by the York Factory First Nation. Our clients have learned so much from Indigenous world views.

I’ll start with that and I’ll note that clause 22 of the legislation deals with the factors and including Aboriginal knowledge, which is elsewhere in the legislation as well. I am not speaking in favour of substitution as opposed to harmonization, but I will say that one of the interesting things in the legislation is that it would allow an Indigenous jurisdiction within the meaning of the legislation to conduct its own impact assessment if it fits within the substitution criteria between clauses 31 and 35.

I think that’s an opportunity to bring in Indigenous world views and perspectives and look at doing assessments in a way that we haven’t done before. I would argue that we haven’t been doing that great of a job in terms of it. This is a way to do things with a different perspective. I think there is flexibility in this legislation.

Senator Plett: I have a question for Chief Easter and then two questions for Mr. Williams. Perhaps it is a two-part question.

Chief Easter, you’ve talked somewhat about the impacts on fishing in Cedar Lake. Could you give us an idea of how many people on Cedar Lake or, if you could, how many people in Indigenous communities across the province of Manitoba are making their living in commercial fishing? It used to be lucrative and I understand it isn’t. How many people are making their living doing commercial fishing? How many people depend, even for their own subsistence, on fishing either on Cedar Lake or on other lakes? I know it won’t be exact.

Mr. Easter: Cedar Lake right now has only 40 licensed fishermen. They can only catch up to 600,000 pounds of pickerel. Before it was like 1.2 million pounds of pickerel and they overfished it. We had to reduce it into half so that the lake could be sustainable. There are other factors in the fisheries. They cannot trap anymore because of the fluctuation of the water. It fluctuates about 10 feet a year. They keep it high toward the fall and they drain it in the wintertime because power is needed in the winter somewhere. That’s when they drain it down 10 feet and it plays havoc on the lake.

Senator Plett: The problems are clearly fluctuations of water levels and not overfishing and overhunting.

Mr. Easter: Both, yes.

Senator Plett: It was only because the available fishing went down and then the overfishing became a problem.

Mr. Easter: Yes. More people rely on fish and more people rely on moose now, as opposed to before when they had berries, trapping, snaring, hunting and fishing.

Senator Plett: Would I be able to get a licence to fish on Cedar Lake?

Mr. Easter: No. Not right now, no.

Senator Plett: Not right now, but residents can still do some fishing.

Mr. Easter: Yes, they could still go subsistence fishing, but we keep a close eye on it. We manage it. We only allow 40 fishermen and they can only take so many fish out of the lake.

Senator Plett: Mr. Williams, in your PowerPoint there are two issues and you’ve spent some time talking about assessments. In your PowerPoint you refer to an attempt at a flawed regional cumulative effects assessment. What was flawed about it? In a Reader’s Digest version, what was flawed about it?

Mr. Williams: A couple of things. Most importantly, when you do regional cumulative effects assessments you want to set a baseline. You want to look at valuable ecological components, and a very good job of that wasn’t done. They didn’t look at the future. One of the ideas of regional cumulative effects assessments is to get some idea of what are the various different futures. Is it going to be a lumber mill, a hydro development or a mine? What are the different futures that look at the planning horizon. That wasn’t done. Really, it was an historical document that wasn’t done that well, but they didn’t really look at the future.

The one thing they did well was bring forward very powerfully the trauma experienced with sexualized violence. That was something that we had underdiscussed in Manitoba. To the credit of that report, it did a good job of that.

Senator Plett: My second and last question is on mothballing of the high-risk $10.5 billion Conawapa Generating Station. I know it well. A prior witness, Mr. Dysart, said that Bipole III was unnecessary. Would you agree with the assessment that maybe Bipole III should also have been mothballed?

Mr. Williams: Our clients didn’t support Bipole III, and I’ll explain why. The biggest reason was that there was no need for an alternative analysis. There should have been a look at different options, and that just wasn’t done.

Second, there wasn’t a good assessment of Bipole III. Your question focused on the west side of the province, but that is already going through the highly compromised Nelson region. There wasn’t a good assessment of the environmental and social impacts of that project itself. Our clients would have said that there should have been a need for an alternative analysis.

I’ll simply point out, although clause 22 of this bill a bit weak, that there is provision for alternative analysis. In a province like Manitoba where we have a Crown monopoly, they don’t look at the null hypothesis enough about options to Bipole III, to Keeyask or to Conawapa.

Senator Plett: Are you saying that your clients didn’t support the project, period, or didn’t support where it went?

Mr. Williams: The clients didn’t support the project because it was a flawed environmental assessment and they didn’t look at alternatives.

The Chair: Last two questions, Senator Carignan and Senator Patterson.

[Translation]

Senator Carignan: My question is for Mr. Williams. You represent a lot of people, and, if I’m not mistaken, you’ve done a lot of work on poverty issues. Given what witnesses have told us, making representations is a costly process for interested parties, including First Nations groups, so that’s one important thing to keep in mind.

What’s more, organizations like Manitoba Hydro have told us that project modifications to address minor issues can lead to a cumbersome, onerous and costly process. I’m not sure whether it’s the same in Manitoba, but, in Quebec law, the concept of proportionality is quite advanced. Do you think the concept of proportionality should be built into the legislation, to inform the agency’s decisions on certain studies and its advice to the minister on whether or not to subject a project to an environmental study?

[English]

Mr. Williams: Thank you. I just want to make sure I understand the question.

Senator Carignan: That’s the concept of proportionality. Could we use a proportionality concept in the decision process for the agency or for the minister?

Mr. Williams: My practical experience in 26 years of advocacy is whether or not proportionality is in the law, I see it in administrative tribunal practice all the time.

Senator Carignan: Yes.

Mr. Williams: Our public utilities board does it when they’re looking at a $100 million rate application versus a little water utility in Stonewall, Manitoba. Proportionality is undertaken, so I think it’s implicit in a practical reality in administrative tribunals. I would caution jumping to proportionality until we’ve really scoped out the project and done an early planning exercise.

Government agencies and administrative tribunals are pretty good about doing that already. I would say that the issue is to have an early discussion about the project. Let’s get the issues that we’re not going to agree on off the table, and let’s get the issues and the alternatives on the table. That might be the better way to address it because I think we engage in the exercise of proportionality, whether or not it’s in the statutes, every day in administrative law practice.

[Translation]

Senator Carignan: If the concept were built into the legislation, do you think it would help reduce the risk of litigation in cases where a person might cite missing information or evidence or the fact that they were not heard? Introducing proportionality into the legislation would at least provide some assurance around judgments and lower the risk of legal challenges based on a lack of information or relevant evidence.

[English]

Mr. Williams: I am not sure I agree with that, sir. When proponents undertake good engagement, in my experience they do their job going in and there’s a fair hearing. Courts show a lot of deference to the decisions of the Governor-in-Council and to administrative tribunals.

The Kinder Morgan example, with which we’re all very familiar, is a project that was jammed in without due consideration of important environmental considerations. That was a poorly done job by the proponent and the National Energy Board.

I don’t think proportionality will protect administrative tribunals or governments from bad processes and bad decisions. To me, it’s having a commitment to engage in a two-way dialogue as early as possible and work our way through. Courts will show deference to the Governor-in-Council and administrative tribunals, but not in egregious examples like Kinder Morgan.

Senator Patterson: I am mindful of the time. I will try to make it very tight.

Chief Easter, thank you for your testimony and congratulations on the progress you have made with your people. You have recommended an amendment to section 27 to recognize a Crown agreement to manage waterways with your First Nations. I read section 27 as allowing the minister to enter into agreements or arrangements with a person or organization to perform the duties under this act.

Could it be improved? I thought that it does allow, as drafted, other organizations to carry out duties under the act. Is that wording not adequate?

Mr. Easter: The main reason why I included it here was to make sure we put Cedar Lake on a separate schedule and have an agreement with the Chemawawin Cree Nation on the management of the Cedar Lake waterway. I just wanted to emphasize section 27 as well.

Senator Patterson: It’s the schedule that’s the important part.

Mr. Williams, you have told us about great examples of how tribunals have allowed a lot of direct and indirect input in the standing test. Do we need to change the open standing section in the current Bill C-69 to allow these more flexible arrangements to be put in place? We’ve been urged to do that. Many witnesses have said that the open standing test without clarity will create chaos and will create floods of people drowning out even Indigenous rights holders. Do we need to change that section?

Mr. Williams: My experience is that tribunals address it in their rules for practice and procedure. The CRTC and the Public Utilities Board will have and should have a lot of flexibility because they’re expert on the issue before them and expert in their own practices and procedures. Rather than kind of regimenting the legislation, just make sure that the tribunals have the authority to make their own rules for practice and procedure.

Tribunals innovate. I attend a lot of interactions with tribunals. Many of them are begging for greater public engagement because it goes to their legitimacy. They know they have to control it and that not all interventions or participants are equal. There is different treatment within flexible rules. Tribunals are quite competent to do that over time. There is a bit of learning that needs to be done, but I see a lot of great experimentation by tribunals across Canada.

The Chair: Thank you very much for your statements and the conversation.

For the fourth panel, as an individual, Warren Cariou, Professor, University of Manitoba, and from the Métis National Council, David Chartrand, Vice-President, and John Weinstein, Senior Policy Advisor.

Professor Cariou, you can go first.

Warren Cariou, Professor, University of Manitoba, as an individual: I appreciate the opportunity to share my advice on this very important bill. I would like to acknowledge the presence of elders, knowledge keepers and Indigenous community members at this hearing, and I would like to speak mostly in regard to the Indigenous knowledge components of this legislation.

I am a professor at the Faculty of Arts at the University of Manitoba where I have directed the Centre for Creative Writing and Oral Culture for the last 11 years. My expertise is in Indigenous oral traditions and Indigenous knowledge with a focus on Indigenous philosophies of energy.

In the Indigenous narratives and traditional knowledge systems I study, energy is a broader concept than is suggested by the English and French meanings of that word. Indigenous knowledge asks us to consider energy as a relationship to the land, a relationship that has ethical dimensions. These ideas are highly relevant to the impact assessment process addressed in Bill C-69. I strongly support the integration of Indigenous knowledge into the apparatus for approving and regulating designated projects as described in this bill.

This legislation is a step forward in demonstrating good faith in the relationship between the Canadian government and Indigenous peoples. Furthermore, the consideration of Indigenous and Western forms of knowledge together in the review process will result in fairer, more sensitive and more accurate review.

I have three specific recommendations for the committee’s consideration. The first is regarding the definition of Indigenous knowledge in the bill. In its current form the definition is as follows: Indigenous knowledge means the Indigenous knowledge of the Indigenous people of Canada.

I submit that this definition is inadequate because it is essentially a circular statement. It does not reflect the specific philosophical collective and land-based nature of Indigenous knowledge. Therefore, I suggest an amendment to this definition, adding a second sentence that would read: It is held collectively within specific Indigenous communities and it includes the philosophies, cultural practices and long term land-based observations made by those communities. Without such clarification, there is a danger that Indigenous knowledge could be misconstrued in the review and regulatory process as something more generic or less nuanced than it really is.

My second recommendation is regarding Indigenous knowledge and scientific information. I support this bill’s commitments to providing an effective means of integrating scientific information and Indigenous knowledge into the decision-making processes. As the bill stands, there is no hierarchy of value imposed between scientific information and Indigenous knowledge. I argue that this is entirely appropriate. There is no need to make any changes to the bill in this regard.

I understand that a previous witness before this committee, Dr. Ross McKitrick, argued that Indigenous knowledge should be made subordinate to scientific knowledge in cases where the two contradict each other. If this is indeed what Dr. McKitrick meant in his statement, I must disagree profoundly with this argument. In the review and regulatory process, no single form of knowledge should be a priori elevated above others or judged to be inferior to others.

In cases where these two forms of knowledge tell different stories, it should be up to the members of the review bodies to decide what is most convincing in each specific case, weighing all evidence equally. Deciding ahead of time that an Indigenous group’s contribution is inherently less important would not only be manifestly unfair, but it would also send a troubling message to all Indigenous people regarding their relations with the government. Instituting a tiered system of believability for Indigenous and non-Indigenous forms of knowledge may also open this bill to legal challenges based upon Charter rights and Indigenous rights.

The reality is that considering these two forms of knowledge on an equal footing is good policy because it will give assessment and regulatory bodies a more broad-based, nuanced and therefore more accurate idea of the potential impacts of designated projects. No single form of knowledge has a monopoly on the truth. It is better for review bodies to get a broader range of perspectives than a narrower one.

Science is one mode of careful observation and analysis. Indigenous knowledge is another. There are cases where science has gotten something wrong or has been unable to solve a problem, and Indigenous knowledge has provided better answers. In other cases, science and Indigenous knowledge have been consulted in tandem and have been used to verify and strengthen each other. In the discussion period I would be happy to provide specific examples of this. If there is time, I can reference a traditional Indigenous story that narrates a product relationship between Indigenous and Western forms of knowledge in a review process.

I am nearing the end of my allotted time, so I will quickly draw your attention to the third page of my brief where I make two suggestions that will help improve access for the expression of Indigenous knowledge within the review and regulatory process. Part A is a proposed subsection of the Indigenous knowledge section which calls for support for the translation of testimony given in Indigenous languages because Indigenous knowledge is often deeply embedded within the meaning systems of those languages. Part B proposes another subsection acknowledging the fact that Indigenous knowledge can take other forms beyond testimony, such as story and other forms of cultural expression.

In conclusion, Indigenous knowledge should be an important component of decisions that affect the future of this land and of all the people living in relation to that land, Indigenous and non-Indigenous. It can help to clarify what is at stake in those decisions and what constitutes an impact. Indigenous knowledge has developed over thousands of years of intimate connection to the land and observation of how specific ecosystems function. It has a crucial role to play in these decisions. Indigenous people in general must be meaningfully consulted in these decisions. Including Indigenous knowledge in the review and regulatory process is one of the most effective ways of conducting that consultation. It will lead to better decisions and more nuanced evaluations over the life of legislation. Thank you.

David Chartrand, Vice-President, Métis National Council: Thank you very much, Madam Chair. Let me start by welcoming you to Manitoba, the heartland of the Métis Nation, and by thanking those who opened up this gathering with prayer, the elders who are here today and of course the senators. It is great to see my friend Senator Plett.

This is our home. We have created the province of Manitoba. I hope one day, as the Métis Nation of Western Canada, we explain who we are. I also hope one day we overcome the need to explain because it’s automatic and everyone knows who is the Métis Nation and who are our citizens. As sure as if I ask you right now, not every hand would go up.

In fact, on the property next door remains the old Fort Garry where our Metis ancestors established a provisional government under President Louis Riel in 1869. The Metis government negotiated entry of the Red River Settlement into Confederation as the province of Manitoba in 1870 through The Manitoba Act. At that time the Metis were 85 per cent of the population of more than 10,000 in the new province. The promises made to us in The Manitoba Act were betrayed. We struggled for the next century and a half to restore our rights right and rebuild the economic self-sufficiency we once had during the fur trade era. That struggle included our court case spanning 32 years that resulted in a landmark ruling of the Supreme Court of Canada in 2013 upholding the land claim of the Manitoba Metis community. It included another court case that confirmed our harvesting rights under section 35 of the Constitution Act, 1982, and led to a harvesting agreement covering much of the province.

Our struggle over the recognition of our rights in pursuit of economic development shapes our position on major projects. We support a balanced approach to major projects. We support the projects in economic growth as long as the environment and our Métis Nation rights and interests are protected. We believe the Trudeau government shares our balanced approach to major projects, and Bill C-69 is consistent with that vision. The legislation is consistent with the nation-to-nation/government-to-government relationship the federal government is establishing with the Métis Nation. It reflects the government’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples. It requires the new agencies making decisions on major project approval to respect the government’s commitments on the rights of Indigenous peoples. It establishes a distinct-based approach to Indigenous representation on a key committee, which in our case means distinct representation of the Métis Nation. The duty to consult and accommodate is central to rights recognition and a driver of economic development. It must be a critical part of the decision making of the new legislation under Bill C-69.

As president of the Manitoba Metis Federation, I can tell you how it can work and how it can break down. The MMF negotiated collaboration agreements with the province of Manitoba, Manitoba Hydro and Enbridge, which led to contracts with mainline contractors on hydro’s Bipole III transmission lines and Enbridge’s line 3 replacement projects. In fact, it created hundreds and hundreds of jobs. We’ll talk about that later, hopefully, in the rest of the session.

These projects created hundreds of jobs for Metis workers. Many contracts have been fulfilled and are now growing because of the head start that took place with these opportunities. In our province right now we were in court this morning. The premier of our province overruled on a decision after 2.5 years of negotiation with Manitoba Hydro. We went to the National Energy Board of Canada to talk about the environment and the impacts that took place. We made our presentations because we had a 50-year agreement. The duties to consult and accommodate were dealt with, with Manitoba Hydro. We sat down for days upon days coming forward to our presentation at the National Energy Board, on the condition we had to support this project, which we did. That’s what the deal was. We struck a deal with hydro for our duty to accommodate and for our knowledge that we’ll never use this land for 80 years. Once the line goes over it, our use of that Crown land is now gone for 80 to 100 years.

It was understood. We made a deal. The president of hydro and I shook hands. The hydro board ratified. My cabinet ratified it. Then an election occurred in my province. A new premier came in, and he cancelled the agreement after the National Energy Board left Manitoba and after it closed down its hearings in Manitoba. That is shady business. You can’t do that after the fact because my presentations were already supporting the Minnesota transmission line because that’s what my contract and my deal that we negotiated said.

I came before the National Energy Board with clear support on this project. After I supported it, Energy Board went home, the new premier came in and he cancelled it. I went back to the National Energy Board and said, “Wait a second. A shady deal just happened to us. We need you to hear the true opinion of duty to consult and accommodate that did not happen.” The answer of the National Energy Board was: “We can’t. We already closed it. We had to make a decision on what we had before us.” That’s why we were in court this morning. It was unbelievable that would happen in our beautiful province of Manitoba.

An effective major projects approval process must shield us from the whims of governments that can arbitrarily make a decision after the fact and cause everybody to go to court to try to find a balance. Bill C-69 is trying to find an ability to get everybody onside. Perhaps I could state clearly here, for example, that Enbridge was smart when it came in with their pipelines. Not the last one but the one previous, the short pipeline. It knocked on our doors. It came to the Metis government and said, “Look, we want to sit down with you, work with you, establish what your concerns are and how we can address those concerns so we can work together to build our pipeline.” That was a very smart position by the private sector to come and knock on our door. It prevented us from going to the courts. It stopped us from scrapping back and forth on respecting our rights and accommodation. We struck a very good deal. At the end of the day all of us were winners, but that was not what the province was indicating to Enbridge. The message was that they didn’t have to talk to us.

Private industry is getting smarter. They are getting on top. They are getting to know what is necessary to sit down with Indigenous governments and sit down with the peoples that actually own the land and actually have a responsibility for the land. We believe in this balanced approach. For that reason, I joined with the Honourable Perrin Beatty, president of the Canadian Chamber of Commerce, in a number of events and op-ed pieces supporting Trans Mountain. I still support Trans Mountain today. I believe it’s essential to our country. I believe it’s important for all Canadians. I believe that sometimes it has to be give and take. We too, as Indigenous people, have to give and take. We support it. We believe in the central development of the economy of this country. Governments don’t run businesses. Governments operate by collecting taxes. That’s how they manage their affairs. If there’s no economy moving, there are no taxes to collect. How do you expect the government to operate and deal with all of our concerns as citizens?

We hope this project will proceed as soon as possible. We’ll be seeking the opportunity to participate in that project including taking an equity position. On that note, I look forward to any questions and comments you may have on my presentation. Usually I never read a presentation. I speak from the cuff. That’s who I am as a leader for 22 years. I’ve been elected seven times in my province. I am also vice-president of the Métis National Council. I am open to you now for any questions you want to ask of me.

Senator Plett: Thank you, chair and witnesses. It is nice to see you again, Mr. Chartrand. We need to go and play some golf, but the weather outside isn’t cooperating. My two questions are basically for you.

They are really largely the same, but we have heard strong criticism of Bill C-69 from oil and gas producing First Nations. Chief Roy Fox of the Blood Nation said that it would keep his people in poverty. The Indian Resource Council, which represents over 100 First Nations, is also strongly opposed. Yesterday we heard from Des Nedhe Development, a First Nations business conglomerate. They’re primarily involved in business related to the uranium mining sector, and they oppose Bill C-69.

You’re representing an awful large group of people in the Métis Nation. Are any of your people involved in the oil and gas sector or the mining sector? If so, what does Bill C-69 do specifically to those two sectors in as far as your people are concerned?

Mr. Chartrand: I thank you for that statement, Senator Plett, but let me start by stating that there are 400,000 Métis Nation citizens in Western Canada. We’re in parts of Ontario, all the way into parts of British Columbia, up to the Lillooet territory and into the United States. That’s our traditional homeland of our people, and that’s what makes up our nation.

In response to your comments and your references, there are institutions, bodies and First Nations bands that exist out that are truly supportive of this. There is definitely an economic impact occurring as we speak. Also the Metis in our Métis Nation of Alberta and Métis Nation of British Columbia support of the Trans Mountain Pipeline. From a national perspective, even though it doesn’t impact me in Manitoba, it impacts me as a Canadian. It impacts me as a Metis citizen in how it affects all of us. We know this is a major project. It’s actually a national project. It has an impact not only in Western Canada; it impacts us all.

When we did our own evaluation and review of where it fits into the spectrum of economies, we felt it was vital for us to put our support behind it. That must be understood. Why do we support Bill C-69 when Bill C-69 is now being blamed potentially as an anchor that will disallow national projects or major projects to proceed because of the provisions and all the rules that may apply? For you that sit on this side, look from where we sit on this side.

I’ve given a perfect example of what’s happening in Manitoba. It’s unfortunate it’s happening, but it is happening. The premier can call us a special interest group even though we’re protected in the Constitution with section 35 rights and processes that ensure protection of our citizens and moving forward to the best place we fit in Confederation. Let’s look at it from the perspective of Bill C-69. In our view, Bill C-69 is an attempt to bring all of the pieces together: the environmental aspect, the Indigenous aspect, the private sector aspect, and then the government aspect and Canadians in general. It’s trying to bring all those pieces into one spectrum to address it and solve it.

I gave you a prime example of how it could work, if it was to work, because there’s no guidance right now for industry. Industry doesn’t know what to do. Every province acts differently. Every province makes its own rules as to what it’s going to do and who it should consult. Federally, depending on who the government is at the time and depending on the view of the Prime Minister, whoever it happens to be, they may have favoritism toward your side or maybe not.

When you look at it from that spectrum, there is no clarity of how industry needs to move. The most important aspect of all this is that industry needs to know how to move. Enbridge knocked on our door without asking. If they had asked the province, the province would have said, “Don’t bother talking to the Metis.” Then they would have found themselves in court. We would have had no choice but to defend ourselves through the court process instead of sitting at a table and talking, like you and I are right now. We are negotiating.

A key design that Bill C-69 is trying to address is that industry will know who the players are and that they need to cover these aspects. I don’t support all the environmental actions that are happening right now. I made some public statements nationally in this country about that. I made references to people that have fought us in the trapping industry, took away our entire economy and never replaced it with new jobs. They left us. They went back into their worlds. They went back into the urban sites. They fought against us feeding our families and taking care of our opportunities through income from trapping. They left us. They abandoned us. Nobody ever came back to replace all the jobs we lost. It was one-third of our income for most of our families. Nobody ever came back. They fought and said it was against the environment or Greenpeace, but in the end they left us alone.

We know from our side as Indigenous governments there has to be a clear understanding, from the provincial government side, the federal government side, the environmental side and the private industry side, what roles they play. Whose door must they knock on before they get there? If we’re talking a national project like the Trans Mountain Pipeline, you would think that it would be smart enough and wise enough to make that decision.

Let me say this, Senator Plett. We can look back in history, just reflect on ourselves and go back. I am not going to be critical. I am just going to be stating the facts. When Trans Mountain and Kinder Morgan were in play, at that time Harper did not believe it had to fully do the duty to consult and accommodate. He left pieces of that out. He thought he could just push it through. Look what happened. We ended up back in the courtrooms. We ended up stopping and killing the entire project. That should have never happened because this project is a necessity for our country. We cannot let one side, the Americans, take over and put us in a state of control so that we do not have any markets beyond that.

When Harper’s government did not fulfil its duty to consult and accommodate, it left this mess we’re in right now, and we’re struggling with this mess. Bill C-69 is not the perfect document. That I know, but it’s trying to establish everybody’s piece of interest to be inside there. You as senators now need to figure that out. How do you find the pieces of all these four big entities to coincide and in the end sit at the table and come up with a consensus or at least an opportunity?

Most First Nations you referenced are supporting this, majorly in the Prairies and Western Canada. Only a couple First Nations are not. This bill addresses that too. You try to operate by consensus all the way. Unfortunately, if you can’t, we have no choice but to move ahead. There has to be a balance. At the end of the day I can’t see one Metis community opposing the entire Métis Nation and saying the project can’t go ahead, and so we stop. I don’t believe in that. I believe at the end of the day majority will rule, unfortunately for the minorities. Bill C-69 is trying to clear up all of these problems in one package. That’s where the problem lies. It’s a big task that is being asked of you guys and ladies to look at and us to respond to. It’s a big, big task we’re asked to do.

Senator Simons: I will try to ask a quick question of each of you.

Mr. Chartrand, thank you for a really thorough presentation. Since the Métis Nation are not treaty rights holders, do you think that Bill C-69 goes far enough in ensuring that there is proper consultation with the Metis?

Then my question for Dr. Cariou is: I understand what you’re saying about the importance of Indigenous knowledge, but at the end of the day don’t decisions have to be made on the basis of scientific evidence? That’s to each of you.

Mr. Chartrand: Let me answer you first. I know you used the words, “not treaty rights holders.” Actually, there is no hierarchy of Indigenous rights holders in this country. It is a proven fact in law. The Metis definitely are section 35 rights holders equal to the First Nations and equal to the Inuit. Our rights are no less than those of First Nations or Inuit, just to make sure you understand from that perspective.

Senator Simons: I understand that. I know that not all courts seem to understand that.

Mr. Chartrand: The Supreme Court understands it, which is great. That’s the most important one, sometimes. You’re absolutely right that the lower courts need to be educated a lot more.

I lost my thought for a second because I was thinking of the courts. Could you repeat the second phase of your question one more time?

Senator Simons: Maybe you’ve already answered it. Do you think that Bill C-69 is clear enough about establishing Metis consultation rights?

Mr. Chartrand: What I would state here openly is that it’s not a perfect document. I can attest to that. We have some issues with it ourselves. If I can say, Senator Simons, we’re trying to figure out if this is the pathway to some kind of dialogue that’s going to lead us somewhere. It’s going to open the discussion for all the big players to come to the table and find an answer. We need to find an answer. We can’t continue this country in the state it is by unknowns and factors where Indigenous people and clearly our governments have a special place in their own rights. We can’t be putting ourselves and industry in a state of unknowns, whether it’s mining, as Senator Plett has raised, or pipelines. These economies of scale have an effect on all of us as Indigenous people and as Canadians. We need to find that balance between this process, but industry right now has no guiding principle telling it what it has to do. It’s at the whim of the political spectrum of who is there. If somebody does not follow that, then we end up in the courtrooms.

We wouldn’t be in this situation today if we would have done it right the first time. Kinder Morgan wouldn’t be gone. We would have had jobs in place, everything. Everybody is blaming Bill C-69. I am very pleased you guys are looking at it. I always say, “guys.” I am sorry for my language, ladies and men. At the end of the day it’s really clear for us that we need something. We need a pathway. Industry needs a pathway. The provinces need to understand they too have to follow rules of national importance. We have to find a balance between the factors of how we come together I believe that we support it because it leads to something. It’s taking us somewhere. Hopefully it will give us some clarity in the future on how we all come together.

Mr. Cariou: I agree that science should be obviously consulted in an equal way with Indigenous knowledge, but my feeling is strong that the decision as to the evidentiary value of each kind of knowledge should be made by the panels making those decisions at the time. Where shouldn’t be a decision ahead of time that one form of knowledge will be inherently superior to another. I outlined some of my reasoning for that. I think there are some potential legal ramifications in relation to ending up in the courts, as Mr. Chartrand has mentioned as well.

It also speaks to the nature of what impact is. Indigenous knowledge can bring to these discussions a more nuanced sense of what actually impact can be. I am thinking in particular of cultural impacts like sacred sites that have been flooded in Northern Manitoba. To evaluate that on a scientific basis would not necessarily provide the strongest kind of argument that we would want to understand in terms of the ethical impacts or the cultural impacts of the flooding of a sacred site.

It’s important that the panels make those decisions on the basis of the merits of the kind of knowledge presented to them.

The Chair: I would like to make a small comment and ask a little question of you, Professor Cariou. I think you are one of the first that have come up with a definition of what is Indigenous knowledge. First, is this definition supported by some organizations or some academics?

The other little thing I wanted to ask you is: From my professional experience, ecosystems and habitats are unique, so science can definitely not have a complete understanding of the unique habitats and ecosystems. Therefore, we need the complement of the Indigenous knowledge for the description and the understanding of what’s going on. You have added a philosophical and an ethical dimension to that, which I think is highly appreciated.

Mr. Cariou: The definition that I proposed is my own, though it is based on a number of other definitions. If senators would like, I could send some further citations of other definitions by other organizations. UNESCO has a really good definition that is published on their website. I am happy to share that with you as well.

In relation to the specificity of ecosystems and the specificity of particular questions about impact on those ecosystems, I think you’re right. The fact that Indigenous nations have existed for thousands of years on this land and that knowledge has built up over many generations that is very specific about particular places. I think that is absolutely crucial information and knowledge that can be added to the review and regulatory process.

Science has its place and science is obviously a motive, a very close observation, but traditional knowledge involves thousands of years of observation. I think there’s something very important to be contributed from that knowledge for that reason.

Senator McCallum: Thank you both for your presentations. I needed to hear what you both said.

I want to inform the senators here that the producer of the DVD I gave you about Fort Chip and Fort McKay was Warren Cariou. He is a Metis from Meadow Lake who is concerned that the oil industry is coming into Saskatchewan. I am glad you all had a chance to see it.

I wanted to speak to the productive relationship that you both talked about. Any of the bills and laws that come into effect in Canada are literally a relationship building between Indigenous peoples and Canada. We need to make it as productive as possible. To further our understanding of Indigenous knowledge and how productive it is, could you tell us, Mr. Cariou, that traditional Indigenous story?

Mr. Cariou: I am able to tell you about a published story. Because I have familiarity with many other Indigenous stories that have been told to me either in ceremony or in particular protocol contexts, I don’t have permission to share those here. The story I would like to tell you briefly about is by an Okanagan elder named Harry Robinson. Harry Robinson told this story to an anthropologist named Wendy Wickwire and it was published in his book, Write it on Your Heart, published in 2004.

The story is a coyote story of the Okanagan Nation. Coyote stories are commonly told in the Okanagan Nation. It tells a story of how a young coyote travels to the moon and manages to find his way back to earth. When he comes back, he lands in Okanagan territory. Where he lands, his footprints are marked in the ground. The people in the territory know this is where the coyote landed. They go and they can see these footprints.

That’s the traditional story, but as Harry Robinson is telling the story he adds an historical coda to the story. He tells us that later on the railway was being built through Okanagan territory, and the Okanagan people noticed that the surveyors were surveying the land that was right where the coyote’s footprints were. They went to the surveyors, and they said, “Your line is right on our history, and we want you to move it.” The surveyors didn’t listen. Then the Okanagan people said, “We want to show you. We want to take you to that place and show you those footprints.” They took the surveyors there and the surveyors couldn’t see the footprints. They were looking, but they couldn’t see them.

At that point the Okanagan people decided that they had to tell them the story. They told them the story of the coyote going to the moon, coming back and landing in that place, and Harry Robinson says, “The surveyors listened to that story. They heard the story. They changed the course of the railway. The sacred site was preserved.”

That is still held in the oral tradition of the Okanagan Nation. To me it’s a great example of Indigenous knowledge being understood even by people who don’t necessarily have a lot of knowledge of Indigenous culture. It travels outside of those cultural contexts when people are willing to listen. I think this legislation provides the potential for a venue where people can listen to these stories and understand the wisdom that’s in them.

Senator McCallum: Perhaps I could make a comment. As children we learned a lot from stories like that one. That’s how we were taught morals and ethics. Later on, when I went back to those stories as I grew older, I got different messages. I took a course from Val Napoleon on Indigenous Legal Traditions. That’s how they based their work. We did case studies with them, and it showed that those stories carry legal traditions within them. I am glad we’re sharing this knowledge with people.

Mr. Chartrand, I thought you described your concept of what this bill does. I just wanted to thank you. [Indigenous language spoken].

Senator Patterson: I would like to make clear, particularly to Senator McCallum, that my main concern about the new concepts, which have been introduced into Bill C-69 like gender and other identity factors and Indigenous knowledge, is the lack of clarity of definition. We need to know what they mean. Of course, there is no better example of the imperfection of clarity than the example Professor Cariou gave: The definition of Indigenous knowledge means the Indigenous of the Indigenous peoples of Canada. This is a classic tautology.

You have given us more clarity and definition, and I thank you for that. You said you would be willing to give us examples, and maybe you already gave one about the Okanagan. Is there another example you can give where Indigenous knowledge and science have worked together to strengthen each other? This is very new territory in Canada. It’s well discussed in Nunavut and Inuit, but I think another example may help us understand this important concept.

Mr. Cariou: There are indeed numerous examples where traditional knowledge has been utilized to help or to provide advice to scientists so that scientists can ask the right questions. I think the two modes of thinking and the two forms of knowledge can be complementary. Very often they will agree in the longer term when the proponents of the two or the practitioners of the two forms of knowledge are able to communicate effectively.

There is a biologist, a Pottawattomie biologist, whose name is Robin Wall Kimmerer, a botanist. She has devoted her career to scientific study of plants but also to the traditional knowledge of her Pottawattomie people. She has written numerous books and articles about the complementary aspects of traditional knowledge and science. Her book Braiding Sweetgrass is one that I would highly recommend. It is all about traditional knowledge and science and how she as an expert in both realms is able to understand their interactions.

As an example of that interaction, she tells a story of one of her graduate students who had studied the oral traditions of the Pottawattomie Nation and had learned about sweetgrass, how sweetgrass is grown and the practices of the sacred plant in the nation. The student wanted to write a biology thesis and had proposed to test the hypothesis based on the oral traditions of the people. Some of the other scientists on the committee didn’t think this was a good idea. They thought this was not a viable or valid way of conducting her scientific research. With the help of her supervisor, Robin Wall Kimmerer, she persisted in that. She was able to make a neoscientific discovery based on what she had learned from the elders and knowledge keepers in the Pottawattomie Nation. It was a discovery that helped to show how in fact the relationship of humans to the sweetgrass plant makes the sweetgrass respond. It actually has a response of growing more vigorously when it is harvested.

That’s just one of many examples. There are other examples where we know that oral histories, Indigenous oral knowledge, has provided context for scientists so that scientists can ask more nuanced questions. I could certainly follow that up with more detail. I am happy to send further information to you as well.

The Chair: Because we are on the subject, perhaps I could ask you a question again, Professor Cariou. Many people think that using Indigenous knowledge is new but, as you pointed out, it is not new. In the jungle in Peru a lot of pharmaceuticals, including anticoagulants, have been found thanks to traditional Indigenous knowledge.

Could you just comment on how Indigenous knowledge is being used by Western cultures?

Mr. Cariou: I think that dates back to the earliest meetings between Europeans and Indigenous people. We know from the history of Europeans arriving on Turtle Island, in many cases they wouldn’t have survived without the Indigenous knowledge that they were gifted by the Indigenous people they met. In relation to a more scientific kind of realm, I agree that the science of studying traditional knowledge for the purpose of scientific research is highly developed, especially in relation to pharmacology. There are dangers around that. Indigenous communities could lose control of their traditional knowledge.

I feel that this bill has actually done a very good job of ensuring that Indigenous knowledge will not go out of the control of Indigenous communities. The section on Indigenous knowledge in this bill is entirely devoted to the question of maintaining the control and confidentiality of Indigenous people over that knowledge. I applaud that in the bill. I feel that there are other aspects of Indigenous knowledge that need to be highlighted in the bill, and those are the suggestions that I have made.

The Chair: Thank you so much.

Last question, Senator Carignan.

[Translation]

Senator Carignan: My question is for Mr. Cariou. A number of statutes address the concept of Indigenous knowledge. Traditional knowledge was the term used in most of our discussions. We are talking about traditional Indigenous knowledge, but the word “traditional” doesn’t appear anywhere in the definition. Do you think it could refer to knowledge other than traditional knowledge and thus give rise to problems?

[English]

Mr. Cariou: Thank you, senator. I think that is a very good question as well. In my own discipline I tend to use the term traditional knowledge because I work mostly with elders, knowledge keepers and story tellers. I feel it’s important to keep this term as broadly applicable as it can be while still maintaining enough specificity in terms of community ownership in the sense of a long-term connection to the land and the observation that I feel traditional knowledge brings to the discussion.

There is a danger of thinking about Indigenous knowledge as belonging only to the past. To me, Indigenous knowledge, though it often comes from many generations ago, is also deeply connected to the present. Each storyteller who tells a story makes it relevant again to the present and that new audience.

To answer your question, in a sense Indigenous knowledge is always deeply traditional. I think it is always also deeply contemporary. We should be aware of that and to reflect that in the bill. The current wording in the bill of just referring to it as Indigenous knowledge does allow for that flexibility.

[Translation]

Senator Carignan: I see. I have one last question. Section 83 and those following of the Impact Assessment Act address projects outside Canada, so even when a project is carried out outside the country, certain factors have to be taken into account. It’s pretty rare to see Canadian law applied to projects carried out outside the country. However, the Canadian government may, from time to time, fund a project while ensuring it is carried out in an environmentally responsible manner. Of course, projects carried out outside the country do not need to take section 35 of the Constitution Act, 1982, into account. It doesn’t apply to projects carried out outside the country.

Paragraph 84(b) of the Impact Assessment Act refers to the Indigenous knowledge of the Indigenous peoples of Canada provided with respect to the project, so, according to the bill, it is not necessary to take Indigenous knowledge into account for projects outside Canada. Do you think it’s wise to exclude consideration of Indigenous knowledge when a project is being funded outside the country, given that the effects may be significant regardless?

[English]

Mr. Cariou: Thank you very much. I was not aware of that aspect of the bill. My reaction is that I think Indigenous knowledge should still be a part of that assessment even if the impacts are felt outside of Canada as well as within Canada. There would need to be some careful examination of the wording of how Indigenous knowledge would be integrated into those particular review processes. You will note that the definition in the act, as it currently stands, is Indigenous knowledge of the Indigenous people of Canada.

Senator Carignan: Exactly.

Mr. Cariou: The question might be whether Indigenous international experts may be required. That knowledge would be required, especially if the impacts are to be felt outside of Canada. I do think that would be important, particularly because Indigenous knowledge is so connected to place and so developed around that relationship to place that Indigenous people develop over many, many generations.

The Chair: That concludes our panel, so with your permission we will adjourn this meeting.

(The committee adjourned.)