Proceedings of the Standing Senate Committee on
Transport and Communications
Issue No. 2 - Evidence, April 13, 2016
OTTAWA, Wednesday, April 13, 2016
The Standing Senate Committee on Transport and Communications met this day at 6:45 p.m. to continue its study on the development of a strategy to facilitate the transport of crude oil to Eastern Canadian refineries and to ports on the East and West Coasts of Canada.
Senator Dennis Dawson (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I now call this meeting of the Standing Senate Committee on Transport and Communications to order.
[English]
Today the committee is continuing a review for the development of a strategy to facilitate the transport of crude oil to Eastern Canadian refineries and to ports on the East and West Coasts of Canada.
[Translation]
One of the objectives of our public meetings is to study how to best spread out the risks and benefits throughout Canada.
[English]
We have two professors with us here tonight from the Department of Political Science of the University of Lethbridge, Mr. Geoffrey Hale and Mr. Yale Belanger. Both individuals have researched and published on the topic of community engagement in the energy sector. We are pleased to have them with us to discuss their findings.
I invite you to make your presentations and then we'll ask questions after that.
Geoffrey Hale, Professor, Department of Political Science, University of Lethbridge, as an individual: Honourable senators, my name is Geoffrey Hale. I am a professor of political science at the University of Lethbridge. Professor Belanger and I appreciate this opportunity to appear before you to discuss the potential development of strategies to address questions of public confidence in and acceptance of pipeline and other resource infrastructure projects. Professor Belanger will speak to the involvement of indigenous peoples in the decision-making process relevant to their communities.
Public policy in democratic countries, as you know, is frequently about the balancing of varied interests to serve a broader public good. Canadians look to the federal government to provide leadership in this process within its areas of jurisdiction, but it is important that such leadership provide ongoing processes for public consultation and engagement along with cooperation with other senior orders of government.
Contemporary studies of social acceptance of resource and related infrastructure development, sometimes described as social licence, suggests such engagement is important during the full life cycle of such projects and not just in their upfront planning or construction stages.
However, let me state at the outset that while social acceptance is important, it is the responsibility of governments to translate varied concepts of the public good into legally enforceable rules and processes within their constitutionally defined areas of jurisdiction. Various interest groups may contribute to these debates, but ultimately the freedom and security of all Canadians depends on the consistent application of the rule of law.
The main question we were asked to address this evening is how the federal government could help to facilitate social licence for crude oil transportation, and presumably that of other goods, with implications for public safety and environmental protection.
Controversies over resource and infrastructure development frequently revolve around three sets of issues which affect particular communities and their surrounding environments: public safety, including questions of emergency preparedness and management; environmental protection; and the recognition of local and regional interests in the development and operations of particular processes.
It has become increasingly common for project proponents to engage communities potentially affected by their activities in preparing their applications for regulators such as the National Energy Board. Indeed, Supreme Court judgments have made such prior consultation with potentially affected First Nations a requirement under the "duty to consult'' doctrine that will be discussed by Professor Belanger.
It is entirely reasonable for the National Energy Board to establish rules of standing that privilege those individuals and groups that "may be directly affected'' by proposed projects or whom it judges "may have relevant information or expertise related to'' them. Broader community consultations are probably managed most effectively by requiring project proponents to demonstrate that they have engaged local communities and other stakeholders along their proposed routes and to indicate how proposed projects have been designed or modified in response to these consultations.
One example identified in our research is the concept of a "corridor coalition,'' in which project proponents engage communities, including First Nations and other indigenous communities, to identify both potential concerns and opportunities to maximize benefits of proposed developments. Such approaches have been taken by the Pacific Trails Pipeline project in northern British Columbia, and by the BNSF Railway in the United States, to address the intensification of activity along its main line between Chicago and the Pacific Coast.
However, projected-based regulatory processes are, by their nature, often ill-equipped to address questions of cumulative environmental effects — whether on place-based or regionally defined environmental issues or broader questions such as climate change. Neither are they likely to be as successful in major metropolitan areas in which the question of cumulative impacts has broader implications that go beyond individual projects to address a wide range of land use, environmental, public safety, traffic management and other questions.
In such cases, cooperation with provincial governments is necessary — indeed I would say essential — to create a legislative and regulatory framework to enable coordination with, and effective cooperation among, municipalities without creating undue risks of joint decision traps arising from the existence of multiple vetoes. The federal gateways project that was initiated by the Martin government and continued by the Harper government has created what appears to be an effective framework for intergovernmental cooperation and consultation with communities in transportation and related infrastructure planning in major urban centres across Canada.
Outside major urban areas, a persistent concern raised by various societal organizations is the adequacy of federal inspections, monitoring and enforcement of regulations governing the operational integrity and safety of transportation and energy infrastructure. Such concerns apply not only to pipelines but also to railway and truck freight operations.
Canada is a big country, whose major transportation systems cross large stretches of sparsely populated territory. Railway and pipeline operations should be held legally and financially responsible for the safety and environmental effects caused when their systems fail. However, more can be done to anticipate and mitigate the effects of periodic failures — whether they are due to natural causes, human error or intentional disruption.
The National Energy Board's recent requirement that pipeline firms post their emergency response plans online is a largely symbolic but helpful gesture in building public confidence. However, public confidence could be further enhanced were the Government of Canada to, first, negotiate protocols with provincial governments to enable authorized provincial agencies to respond to accidents or system failures along federally regulated railway or pipeline rights-of-way; and second, to require prior disclosure of all relevant emergency response plans and protocols to relevant provincial agencies and municipal first responders, along with timely means to access relevant information on shipments of dangerous goods passing through their jurisdictions.
Current technologies enable the distribution of electronic applications, or apps, on a password-protected basis to facilitate the distribution of such information in real time to authorized recipients. While such measures may require improvements in cybersecurity practices, they offer improved opportunities for cooperation and confidence building between major infrastructure operators and local communities.
I look forward to any questions you may have after Professor Belanger makes his presentation.
Yale Belanger, Professor, Department of Political Science, University of Lethbridge, as an individual: I appreciate this opportunity to appear before you to discuss the potential development of strategies to address questions of indigenous confidence in and acceptance of pipeline and other resource infrastructure projects.
I would also like to acknowledge the territory's original peoples and that we are currently conducting business on what is generally acknowledged to be unceded and unsurrendered Algonquin territory. In recent years it has become common across Canada when engaging in discussions concerning the original peoples to pay homage to this history.
It is, however, more than a symbolic tribute. Prime Minister Justin Trudeau has presented a Canada that is seeking to engage indigenous peoples as partners in nation-to-nation relationships.
With this we are entering a new age of development in which indigenous peoples in Canada will play an increasingly influential role in the country's industrial evolution.
But what this role will come to mean is unclear. My task today is simply to identify some key issues of concern as I respond to the question of how to facilitate the involvement of indigenous people in decisions related to crude oil transport.
As the media continues to frame indigenous peoples as the first ecologists and predisposed to rejecting industrial development, we are also treated to the stories about indigenous capitalism. Take the following examples: Currently, 19 of 634 First Nations in Canada are oil-producing communities. A corridor coalition of 28 First Nations and Metis communities in B.C. negotiated equity ownership in the proposed expansion of the Northern Gateway Pipeline for an estimated $800 million stake, or about 10 per cent of the project. In B.C. again, 300 benefit- and revenue-sharing agreements worth $6 billion have been negotiated with First Nations by the provincial government and private sector firms. And roughly 8.3 per cent of all indigenous employment nationally is directly related to natural resource projects.
The Assembly of First Nations in its report Advancing Positive, Impactful Change promotes improved private sector/ public sector indigenous interface, albeit driven by innovative protocols acknowledging indigenous peoples as more than stakeholders. They must be considered project owners; that is, rather than seen as potential barriers to development, indigenous peoples' stake must exceed consultancy status.
From an indigenous perspective this is rational, considering that the people have been vested with responsibility for the land. As stewards, they are required to ensure its health and well-being. This sacred, historic responsibility translates into the language of ownership for ease of understanding, while offering a sense of why being consulted by outsiders, as potential co-managers or stakeholders, can be considered insulting.
Outsiders prescribing your role in a potential project occurring on lands you've been trusted to safeguard reflects Indian Act beliefs and undermines Aboriginal self-government authority in reserves representing but a portion of former homelands — homelands that still play a vital role in indigenous political, social and spiritual economies — and homelands that for years we in Canada have symbolically been acknowledging as indigenous territories.
Helping to clarify the importance of indigenous equity ownership are several important court decisions confirming meaningful legal rights as well as recent actions of corporate leaders. Take, for example, the narrative emerging from the following contexts: Government officials are bound by a "good faith'' duty to consult and accommodate indigenous peoples about projects potentially impacting traditional lands. On lands where Aboriginal title has not been extinguished, ownership is vested with the original claimants. This has implications in most of B.C., New Brunswick, the Northwest Territories, Yukon, Quebec and the remaining eastern provinces. The fiction of terra nullius obliterated by the Tsilhqot'in decision has weakened future attempts at citing underlying absolute Canadian territorial title based on the doctrine of discovery. Notably, private sector leaders are accepting the duty to consult and accommodate approach as a normative principle as opposed to a legal obligation or a hoop to jump through.
The story reminds us that the nature of Aboriginal title and treaty rights to land is a fluid and ever-expanding narrative. It also empowers indigenous leaders who, for more than a century, have emphasized their certainty of ownership through ongoing stewardship of their territories.
When challenged, however, such as by the National Energy Board's refusal to assess whether the duty to consult has been met by applicants or the Crown for the purposes of regulatory approval, or by B.C.'s refusal to guarantee the duty to consult and accommodate, one must reflect upon the important repertoires of indigenous resistance that include using the courts to clarify the pith and substance of Aboriginal and treaty rights; denying community entry; strategic blockades and reoccupations of traditional lands, thereby halting or delaying project progress; forging partnerships with environmental groups and social movement actors; the "politics of embarrassment'' through media campaigns; and ultimately armed confrontations.
The nature of resistance, however, is not grounded exclusively by principle or fear of potential territorial ruin. My reading of 24 months' of media and the literature suggests that indigenous resistance tends to focus on failed consultation approaches. That is, indigenous leaders seek to become more than co-managers or consultants; they seek economic and political agency in the form of equity ownership that leads to superior authority when planning and conducting environmental assessments.
Our understanding of what indigenous interest in the land means is being recast. One underlying principle, however, is recurrent, and that is of indigenous land stewardship and its attendant duties. In this setting, two general categories of indigenous communities emerge: those that will resist external projects on principle, which is a product of historic interface that will be difficult to overcome; and communities that will potentially negotiate positive economic outcomes while testing the threshold of government and corporate actor deference to these land stewardship protocols. These developments are taking into account traditional historic principles of land stewardship and mutual benefit, principles inherent in indigenous political theory.
Therefore, if you want to facilitate the involvement of indigenous peoples in decisions relating to crude oil transport, first steps require acknowledging indigenous models of land stewardship and avoiding framing indigenous peoples as barriers to ongoing expansion and development.
In referencing an early report submitted in 1993 to the Royal Commission on Aboriginal Peoples, it appears that it is time to accept indigenous peoples as partners in Confederation and the attendant responsibilities for ensuring sustainable national development.
The Chair: Thank you, professor. If I may just remind everybody that we are televised.
[Translation]
I would like to start by introducing Senator Boisvenu, who is from Quebec, and Senator MacDonald, who is from Nova Scotia.
[English]
Senator Black, who is from Alberta; Senator Eggleton, who is from Toronto, Ontario; Senator Mercer, who is from Nova Scotia; Senator Greene, who is also from Nova Scotia; Senator Doyle, who is from Newfoundland and Labrador; Senator Unger, who is from Alberta; Senator Runciman, who is from Ontario; and we have a new member tonight, Senator Pratte, who was sworn in yesterday. Welcome, Senator Pratte. As I already told you, the members have priority, but you will be more than welcome to ask any question once we have finished the first round.
Senator Mercer: Thank you, gentlemen, for being here. We appreciate your input. Very good presentations.
Professor Hale, how does the Mayor of Montreal and the corridor coalition model fit together?
Mr. Hale: That is a really good question, but I think as the person with the longer and more extensive political background, that is a political challenge to be dealt with through the exercise of political judgment. The creation of —
Senator Mercer: And who said he wasn't a politician?
Mr. Hale: I think there are two elements to be dealt with in this process. One is the stakeholder engagement process with those with direct interests and those communities that are along the line of proposed infrastructure developments.
With indigenous peoples, there is some challenge because they frequently view themselves as rights holders and not as stakeholders, as Professor Belanger has said, and that is something that has to be handled quite carefully by resource companies and by the NEB. One way of dealing with that is a two-tier project.
But coming back to the City of Montreal, I think this addresses the challenge of managing developments in and around major urban communities. I think it would be helpful for the federal government to engage its provincial counterparts to ensure that there is a clear legal framework within the context of the province that municipalities who have considerable stake, especially in densely populated urban areas, have an opportunity to put their concerns forward but within the context of relevant land use planning provisions defined by provincial law.
Montreal would fit more closely into a Vancouver-style regional district. I think one of the challenges with the Trans Mountain pipeline is that the provincial government did not have a clear legislative framework to deal with that situation before it got out of hand, and Trans Mountain, therefore, was dealing with municipalities who were trying to act in areas outside of their direct jurisdiction.
The third thing that could be done would be to review the mandate of ports or gateways that would involve the development of industrial lands along waterways. It might not entirely deal with the pipeline issue, although if the pipeline is surveying refineries in the east end of Montreal, it might apply. But if you have a designated federal interlocutor along the model of the Port of Montreal or the Port of Metro Vancouver that would have an explicit mandate to negotiate land use issues and community accommodation issues related to major developments, I think that would go a long way.
I had the privilege through the Pacific Northwest Economic Region — which is a public-private sector organization bridging three Canadian provinces, two territories and five American states — to visit the Port of Metro Vancouver a couple of years ago and to get an explanation of how they interact with communities crossing 18 municipalities and three First Nations communities in the Greater Vancouver Regional District. I don't think I have ever met public sector employees with such a deep skill set in community engagement. I think it was a tremendous tribute to the people in question to be able to navigate among business interests, federal interests, provincial interests and running the port.
I think those are certain models that might be used. I don't think it is appropriate for the federal government to substitute a direct federal-to-municipal relationship independent of the province. I think we have constitutional jurisdictions, and we've all seen what happens when provincial governments get their backs up in areas within their jurisdiction. It can be equally significant to getting First Nations' backs up when their territory is being crossed.
The Chair: Mr. Belanger, do you want to add anything?
Mr. Belanger: No.
Senator Mercer: Thank you for that answer. It was very detailed. I could debate with you about the Port of Montreal managing the Port of Montreal lands, et cetera. I'd feel much more comfortable with that than I would with the Port of Vancouver managing the Port of Vancouver lands; they can't keep the traffic running on the port properly in Vancouver. Anyway, that's an argument for another day.
Mr. Belanger, I really appreciated your comments on the role of indigenous people and how we properly respect their role in this process. These pipelines, if they go ahead, are going to cross their lands. For too long, we have not acknowledged, and Mr. Hale rightfully acknowledged the fact that we are on Algonquin land here, and we need to always remember that, that it is unceded land that was given up by them.
This involvement of the Aboriginal people — and we're not talking one group; we're talking many groups. That's going to drive the cost up. Is there a recommended figure, a buy-in for Aboriginal groups that would, in your estimation, suffice that they will come to the table or be part of the process for X per cent?
Mr. Belanger: No, I don't think so. In recent years we've found that there are communities that just based on principle don't want to deal. I think Kanesatake right now is perhaps the flagship of the resisting communities citing historic indifference, historic interface and a variety of different issues. Chief Simon has made it very clear that irrespective of a dollar figure, they are going to resist any sort of incursion nearby or through their territories.
Other communities have done some interesting things where they have asked for investment in the community so that they're not considered to be stakeholders per se and the companies on the outside aren't viewed as outsiders specifically. Come to the table, make an investment and from there we can initiate a dialogue. We've seen schools built, and water systems improved.
I guess the pith and substance of this is that each community really views itself as independent, notwithstanding the fact that the Assembly of First Nations is taking a leading role in trying to coordinate a dialogue and improve relationships, and each community has to be dealt with individually.
Now, a community in northern B.C. that is going to be lightly touched by this may not have as vested an economic interest per se, where a southern community may throw a number on the table that may be substantial and may have to be negotiated.
I would suggest that, at this point, we have to ignore Aboriginal people as a homogenous community and deal with each community individually as heterogeneous individual nations as they want to present themselves.
Senator Black: Thank you very much, Mr. Chairman. Thank you both, professors, for being here and for your intelligent, helpful and honest assessment of this issue. You're both a reflection on your very fine university and I want to thank you for that.
Professor Hale, I have a question for you. Our challenge is to develop — or to assist in developing — a strategy to achieve the goals that are set forth here. You have observed — and I found it very interesting that you observed this — that you like the current process around gateway, but we still have no pipeline built and no prospect for a pipeline being built in the short term.
Can you help us, please, to know what additional matters governments — proponents — should be considering to get to resolution?
Mr. Hale: I don't think that there is a one-size-fits-all approach for some of the reasons that Professor Belanger has indicated. My understanding was that the major projects management office, which was set up by the previous government to try to coordinate regulatory approvals and internal process issues within the federal government, took a one-project-at-a-time approach, because the legal, environmental and, frankly, the political considerations are likely to vary from one project to another. I was frankly a little appalled at the lower court decision in British Columbia that ruled that the Trans Mountain pipeline was not a national project for purposes of delegation of responsibility between the B.C. government and the Canadian Environmental Assessment Agency.
I think one thing that the government might want to consider is the development of a national projects test, not to freeze the provinces out, which some people have suggested might be the outcome.
[Translation]
The senators from Quebec are familiar with this problem. It is not the issue per se but, rather, the potential abuse of power.
[English]
I think that if a national projects test could be developed based on the understanding that national, in regulatory terms, increasingly means federal-provincial cooperation, I think that would be a helpful step. But in terms of an overarching, one-size-fits-all approach, I think it's a matter of looking at roadblocks — actual or potential — and addressing potential mechanisms to deal with each one, recognizing that in our big, diverse country, one size may not fit all.
Senator Black: The takeaway from that I hear is that we're not missing anything; we just need to continue to work on the process.
Mr. Hale: It's a matter of going through the process. I don't know if there's anyone here who has done project management, but that is an ongoing refinement of efficiencies and processes, and that applies to community relations as well. Anybody in the development industry will tell you that building a project, whether in a medium-sized or large city, is very different today than 20 years ago.
Senator Black: Professor Belanger, may I say that I clearly agree with your analysis. I think we need to understand, and I think there's a broadening understanding, that First Nations peoples view themselves as generational trustees of land and water. And until we come to clearly understand and accept that reality, there will be no development. That would be my view, and I hear you, too. I think we're agreeing.
So my question to you is the same as to Professor Hale: Are we missing anything in our deliberations, discussions and interactions with the First Nations?
Mr. Belanger: I don't know how to respond to that. If we take a look at the corridor coalition that was negotiated in B.C., 28 communities and Enbridge together —
Senator Black: This is on gateway?
Mr. Belanger: On gateway. They bought into the project. It took a long time — 18 to 24 months, roughly — and it was really quite successful. There are 45 communities in that corridor, so obviously not everybody is on board at this point, but I think the takeaway from that was initiating the project with First Nations specifically in mind as partners as opposed to stakeholders.
Now, the language of stakeholder and partnership on the surface might seem muddy; it might not seem that clear, but from the First Nations perspective, as I read it at this point, to simply walk into the community three or four stages into a project and ask for input, to me and to the First Nations leaders that I've spoken with, it really is quite insulting.
One of the concepts that I always hear in indigenous philosophy is one of mutual benefit and mutual respect, the notion being that as partners in Confederation, as John Ralston Saul has been promoting for quite a while now, there's an expectation that they want to contribute to the community and to the growth of Canada as a nation and vice versa. They want to be brought into the process, but not at stage four or five. The immediate point of discussion is to knock on the door first, suggest that there is a project at play. We are considering movement through these territories and we want you on board as a partner, not as a stakeholder. It's essential. I know the language sounds subtle, but partnership compared to stakeholder, at this point, is an absolute essential.
Senator Black: That's very helpful. Thank you.
Senator Unger: Thank you, gentlemen, very much. My first question is for you, Professor Belanger, if you would elaborate on a comment about "indigenous leaders seek to become more than co-managers or consultants. They seek economic and political agency in the form of equity ownership that leads to superior authority over environmental assessments.'' Can you elaborate on what "superior authority'' means?
Mr. Belanger: Within the context of existing projects, oftentimes there's a tokenism attached, or if the First Nations do have a voice, it is as a stakeholder or consultant where they will provide an overview or brief of land use survey that they would like to see ultimately unfold. For the most part, because they are only stakeholders or potential co- managers, their voice is given, let's say, a percentage of the overall say.
When I say "superior,'' I don't mean overarching, or a veto at the end of the day. I think they want to have an equitable voice, something that is heard and not simply shuffled into appendix B of the overarching report and approval document.
Mr. Hale: Could I address that question, Senator Unger?
Senator Unger: Please do.
Mr. Hale: In discussion of the Pacific NorthWest project near Prince Rupert, one of the proposals made by the community to address that issue is to have a joint table between community representatives and Environment Canada to ensure the appropriate monitoring and enforcement of federal environmental regulations. That speaks to the operational side of the life cycle, but it is one model that might be developed on the same basis as having a federal- provincial committee to deal with a project that crosses jurisdictional boundaries.
The great challenge in dealing with that, as indeed Chief Helin has discovered to his frustration, I suspect, is that there may be competing voices within the community that do not recognize his right or the right of the current council to speak for them. So to deal with that issue, it would probably be helpful to have any joint monitoring arrangement subject to a prior vote at the community so that the community leaders are actually authorized to speak and cannot be cut off at the knees, as long as they act within the remit of their authority.
Senator Unger: Thank you. As you know, there are two pipelines or proposed projects that continue to hold promise, the Energy East and Trans Mountain. We have those two and then the proposed Northern Gateway, which has hit a major obstacle with the Prime Minister's announcement of a moratorium on tanker traffic along B.C.'s northern coast.
Aside from the moratorium, I'm wondering if you could give your insights as to which pipeline — I won't say "if any'' — has the most promising outlook in terms of support or opposition of various stakeholder groups.
Mr. Hale: I wish I had that kind of a crystal ball, senator. I think it is one of those long, drawn-out processes that is going to require bringing stakeholders and rights holders to the table on both Energy East and Trans Mountain. The question of regional and Aboriginal benefits will certainly be on the table.
I had a student write a paper on this question, and it was a little bit impudent, but I had noticed he learned enough about federalism from the course that he recognized that one province could not tax another, and I think that is a principle that most provincial governments would accept. So the question is: If there are financial inducements, how are they to be financed? I suspect it would come from the users of the pipeline, to respond to earlier question.
Do I have any insight as to whether Energy East or Trans Mountain will make it to the end stage? I hope the government works on both of them, because I think having a choice of tidewater outlets would be extremely important for the industry.
With Northern Gateway, my reading of the literature and the public comments that have been made suggest that the situation that Professor Belanger warned ought not to happen has happened. The Enbridge people went into the community and in effect created some very enduring enemies, and it will take a great deal of time to work through that process. Whether we will all be around to see it is a very good question.
[Translation]
Senator Boisvenu: Professor Belanger, Professor Hale, I very much appreciate your —
[English]
Senator Unger: I wondered if Professor Belanger was going to comment.
Mr. Belanger: Sorry, I was a little slow in responding.
There were two points that I think are important here. I think that Energy East is going to be trouble just based on the resistance of First Nations in New Brunswick and around Montreal at this point in time. I don't know if there is a model that we can employ that will lead to anything substantive in the short term. Long term perhaps, but obviously we want to expedite.
Up in northern Alberta and B.C., there is a project called Eagle Spirit that has been put together by the Helin brothers. It's essentially a pipeline running from Fort McMurray to Kitimat. At this point in time, they have a buy-in of all 22 First Nations that are located along that transportation corridor. I believe it's about a $14 million proposal. It's an Aboriginal proposal at this point, but to me that would be the most promising at this stage in the sense that buy- in has been established. It has been 36 months in the making, and they're simply looking for capital investment at this point, obviously along with government clearance. But that to me is one of the most promising.
There's a second proposal that was negotiated between the Assembly of First Nations and the Alaska Native population, and that's from Fort McMurray up to Valdez, Alaska. That's an oil-by-rail proposal, and it's agreed, and there's absolute buy-in in that case as well.
What we're seeing is the Aboriginal capitalists and Aboriginal owners are starting to become involved. Because they are on the ground and have an understanding of community protocols, traditions and land stewardship understanding, we're ready to go, in many ways, with those projects.
Just as an add-on to the projects that you mentioned, those are, I think, value-added and would be worthy of at least consideration at this point.
[Translation]
Senator Boisvenu: To start over, I would like to thank you very much for your presentation. I think the topic you are presenting this evening represents one of the greatest challenges that Canada will face, based on the media coverage of what is happening in Aboriginal communities right now. It is striking to see the communities left to their own devices considering that Canada has such tremendous wealth and that it ranks as the second or third richest country in oil. The participation of Aboriginal communities in this wealth should have been resolved 40 or 50 years ago. I think we have quite a painful history in this regard.
My question is whether you observe a difference in the quality of life in communities that play a more active role in resource development on their territory, as compared with other communities that might have fewer resources or that are less engaged in the economic development of their territory. Do you note an imbalance between those that have chosen to participate actively in developing their resources, in transporting the rich resources, and those that oppose or are on the margins of economic development? Are you able to make that distinction in your studies?
[English]
Mr. Belanger: As it stands, no, there's not a great distinction. Part of the problem is that even though we see a lot of money being thrown at these communities for their stake in the project, oftentimes infrastructure and development within the communities is so far behind and so substandard in comparison to mainstream communities that it's not value-added. That money has to be thrown into new water, new infrastructure, new housing. When you start to gauge the amount of money that may be coming in from the project and weigh it against how much needs to be spent within the community, oftentimes whether or not to resist is a simple question. It's just not enough money to properly deal with the issues that are at play.
Now, Attawapiskat, in the media right now, is an obvious go-to example, but at this stage, even with $8 million or $9 million for housing over the last five or six years, they're nowhere close to meeting a quality of life that would run on the United Nations Universal Human Rights Index at about 60 or 70, meaning that they're living in absolute Third World conditions.
A lot of the First Nations leaders I've spoken with have been very clear: There's been a fiduciary obligation that has been ignored. It's been overlooked and outright denied at this stage. If you want entry into the community, perhaps we need to get our communities up to the standard of mainstream Canadian communities. Let's improve the water systems. Let's improve the housing. Let's make sure that the sewage systems work. Let's ensure that we've got the same amount of money going to schools as they go to in non-native communities. Once we can start to check off some of those boxes and improve the quality of life, then perhaps we will sit down at the table and negotiate. At that point, we're negotiating from a point of equality, or closer equality than we are at this point.
[Translation]
Senator Boisvenu: There are hundreds of communities, both geographically and even culturally, and we negotiate with them one by one.
How could we adopt a pan-Canadian strategy to negotiate with these communities? I am trying to see how to get out of this political maze and arrive at a participation and negotiation model that would suit everyone. It is very complex, I have to say, and I am trying to see a way out.
Mr. Hale: Senator, if a consultation system were created, I see an issue owing to the different political cultures, because of the current differences in economic and cultural status and the political development of individual Aboriginal communities.
Trust must be developed on a personal, rather than an institutional, level. We are talking about the law, which is completely different in our majority culture. There is a lack of trust towards majority communities and towards other chiefs. Do you recall what happened to Chief Atleo from British Columbia when he was Chief of the Assembly of First Nations? Some of the chiefs had a different agenda and repudiated him before the assembly. If there is a provincial project and there is good faith between the council of chiefs and the provincial government, if there is good cooperation both internally and externally, it is easier to resolve such problems.
The relationship between the government of Saskatchewan and the council of provincial chiefs is a good example. I think Quebec is also doing good work with the Cree in James Bay. Nationally, however, since each provincial federation, each community and each chief is autonomous within the Assembly of First Nations, it is very difficult to propose a hierarchy. In my opinion, cooperation between the communities and the societies that wish to promote such projects would probably be the best strategy at present.
[English]
Senator Runciman: Going beyond First Nations and the challenges that they pose in terms of getting agreements or social acceptance, I'm looking at your report. You talked about two types of opponents: ". . . those whose acceptance or support can be achieved through effective consultation and feedback, and those who will not change their view, no matter what.''
I think we've seen a lot of that, and it's not just First Nations; it's all sorts of groups, individuals, and some of them very well-funded. You talk about the need for consultation, but how do you deal with that in terms of consultation being used as a delaying tactic, every avenue available, whether it's legal or otherwise. Some of these folks will never agree. They're the drafters of the Leap Manifesto or supporters of it. I'm wondering how you suggest we might look at dealing with that sort of situation.
Mr. Hale: The standard joke, senator, which you have probably heard, is that we have moved from NIMBY, "not in my backyard,'' to BANANA, "build absolutely nothing anywhere near anything,'' to NOPE, "not on planet Earth.'' Negotiating with NOPE is not negotiation.
We first of all need to emphasize the rule of law. Social licence is not a substitute for the rule of law. Second, we need to have a bona fide process whereby communities and, where they have jurisdiction, provincial governments have a formal place at the table so they can manage their own consultation processes, as Ontario has done on elements of Energy East, and ensure that communities who might be overlooked as indirect stakeholders in the project have a chance to have a say. Particularly where you have a politically sympathetic government, there's an opportunity to weigh and balance those things. But at the end of the day, governments are elected to govern. I think mayors do need to be consulted, and I know Senator Eggleton would want to have been when he was mayor of Toronto. But by the same token, being mayor of Toronto does not make you premier of Ontario, and you always recognized that distinction when you were mayor.
Have that balance so that there is a place at the table, but nobody has the right within the existing framework of the Constitution to overthrow the table. I think that is the appropriate balance.
Senator Runciman: I'm not sure if you looked at this or not during your research, but I've seen allegations about foreign money coming into Canada.
Mr. Hale: Lauren Krugel has made an industry of publicizing that.
Senator Runciman: I wonder how significant that is and how much of an impact it's having, if you've had an opportunity to analyze it.
Mr. Hale: It is significant. I don't think the communities in the Lower Mainland of British Columbia needed any external motivation to do what they're doing, but it certainly has broadened and deepened their resources.
Senator Runciman: I won't pursue this any further, but allegedly funds have been used for the election of certain municipal officials, at least to support their election efforts.
The Chair: Speaking of municipal licence, Senator Eggleton, please go ahead.
Senator Eggleton: Thank you both for your submissions. They were both excellent. I appreciate that.
Professor Hale, you mentioned the Ontario consultation. There was an Ontario consultation conducted by the Ontario Energy Board on the Energy East pipeline. It concluded that there is an imbalance between the economic environmental risks of the project and the expected benefits for Ontarians. According to media reports also, indigenous peoples have expressed concerns about the project.
How can the federal government ensure that risks and benefits of crude oil transportation projects are shared as broadly as possible throughout the country? I think they just see it as Ontario; it's just passing through. There are risks involved in the safety and environmental aspect of it, but there really isn't a lot of direct benefit. How would you see balancing the risks and benefits?
Mr. Hale: My recollection of the Ontario Energy Board report, senator — and you can correct me if I'm wrong — is that one of the big issues on the economic side was secure access to natural gas for the public utilities in Ontario and, I believe, also in metropolitan Montreal, that were currently supplied by the Trans-Canada main line. I notice that Trans-Canada just spent $13 billion buying its largest competitor in Marcellus shale in Pennsylvania to ensure that it could continue to supply those communities. That kind of entrepreneurship is, shall we say, putting your money where your mouth is.
In terms of the sharing and distribution of benefits, we need to be careful not to hold up resource development in one province in order to satisfy toll-gating by other provinces. I see Senator Doyle is here. If I were to mention Churchill Falls, I wouldn't have to explain anything about that project to him. It's one of the reasons that Newfoundland and Labrador Hydro is attempting to finance a transmission line across the Gulf of St. Lawrence. At the same time, it's entirely reasonable for the NEB to look at all environmental risks to see what can be done to mitigate them satisfactorily.
When we looked at the Line 9 proposal, which was considered to be relatively straightforward, one thing they found on Line 9 was that the stopcocks to cut off transmission were, in many cases, at some distance from the many bodies of water, including some in Senator Runciman's former constituency of Leeds—Grenville, that would have been crossed by the pipeline. You have to have a stop-caulk on each side of each body of water you're crossing. That may be a little pricey, but it is the modern expectation that oil can't flow for 50 to 60 kilometres before somebody can push a button.
The standards are improving and we can continue to improve them. In terms of economic benefits, one area that needs work is a willingness on the part of communities to suggest ideas that could create win-win situations. When I mentioned BNSF Railway in the United States, the Great Northern Corridor Coalition to deal with their main line, which is a project of similar scale to Energy East except it's an existing piece of infrastructure. They recruited all the state governments along the right-of-way to identify issues that could enhance economic development in the communities and improve the interface between Burlington Northern and the various communities and states involved, as well as identify problems that needed to be fixed so that there was a more efficient way of dealing with them.
We had a similar situation in Alberta in 2005. The CN main line went through a community called Wabamun. For some reason, it dumped a dozen or so tank cars of pole oil in WabamunLake, which had both a vacation community and a First Nation. I remember seeing Mr. Boutilier, the provincial environment minister at the time, sputtering with rage that nobody would answer his phone calls. What happened then was quite instructive as an exercise in federalism. They took the old trucking regulation rules that delegate responsibility for enforcement from the federal government to provincial governments on federally regulated interprovincial trucks and they applied it to railroads. Now, there is an Alberta special environment response team that will respond to any train derailment. The engineers know that if somebody with that card shows up and says, "jump,'' the responsible answer is "how high, sir?''
We could take similar approaches in the case of pipeline safety reviews to ensure that provinces can have ownership. And if there's a benefit sharing to cover the cost of that, just as there is to cover the cost of additional charges for collecting taxes by the Canada Revenue Agency, then so be it. If the provinces are doing the work, they should be paid for it.
Senator Eggleton: Fair comment. The federal government announced in January five new principles in terms of the environmental assessment, which got a fair bit of attention at the time. How far do you think these principles will go in terms of improving public confidence?
Mr. Hale: The answer to that question is: It will depend on what happens the first time they are tested. Statements of principle, as you folks as practical public leaders know, are only as good as their implementation in practice. We trust that the government will do a good job of walking the talk.
Senator Eggleton: Fair comment.
Senator MacDonald: I'll come at this from the federal authority's point of view. I've heard discussions around the table about some analysis by the Province of Ontario and how it's going to benefit us or the Province of Quebec and how it's going to benefit us and are we getting any benefit for our risk. I always remind myself and people that we have over half a billion barrels of oil going through Nova Scotia's water to either refineries in the Bay of Fundy or in the St. Lawrence Seaway and nobody ever questions that risk. Heavy oil in the water is a hell of a lot riskier than heavy oil in a pipeline.
At one point, the federal government exercised its constitutional authority. You mentioned earlier about how provincial governments can push back on the federal government when it comes to intrusions into provincial jurisdiction. But the federal government has federal jurisdiction in this area, there's no question about that. The Constitution makes it very plain. At what point does the federal government say to itself and to the people in the country: "We have a responsibility to the best interests of the country and to raise revenue for the country''?
In Alberta over the last two years, they've determined that the drop in investment in the oil patch has been over $50 billion and that's just investment. That's not counting the loss of royalties to Saskatchewan and Alberta or the loss of tax revenue to the federal government. We live in a welfare state compared to 50 or 60 years ago in my parents' or grandparents' generation. The money pours out. At what point does the federal government exercise its authority if it comes to a dead end on this stuff?
Mr. Hale: That is a political judgment, senator. As long as there are consultations — and it comes back to the same point that Senator Runciman made a few minutes ago — at the end of the day, once the process has played through, the government is accountable for making decisions and answering to the people of Canada for acting within the law within its area of jurisdiction.
Senator Pratte: What worries me, especially with what's happening right now in Quebec about Energy East, which I'm in favour of, really, is that because of some mistakes that the promoter made early on and because of the tragedy in Lac Mégantic and concerns about climate change and some unhelpful comments and so on, a large part of the province's population has become people who resist any projects out of principle and are not sensitive to any kind of rational argument; they're just against any kind of pipeline. It's not infrastructure. It's just because it's pipeline and oil and they're afraid of possible consequences. They don't see any kind of economic benefit.
I'm not sure how large that part of the population is. If you polled people five years ago about the idea of bringing oil from Alberta to Quebec, the results were very favourable. Now you look at polls and there are very different results.
Are you confident that if a promoter changes their tactics, that you can have people change their minds? Can people be more sensitive to arguments? If people are fixed in that camp, is there nothing that can be done? In those cases, I would make the point that in principle, there's a rule of law. The federal government certainly has the constitutional power to say "yes, we go ahead.'' However, if you have 50 or 60 per cent of the population in a province that says we're against it, it's politically very difficult for a federal government, even if it has the constitutional power to give the green light to a project to do so. I'm saying this being very favourable to the project.
[Translation]
Mr. Hale: That is a political reality; I think there is a parallel between the First Nations and Quebec. People would be more open if there were spokespeople for Quebec who promoted the project and if the elected officials in Quebec also promoted it, bearing in mind the problems and concerns of Quebecers.
[English]
It's unfortunate that our country has become so Balkanized. It is very difficult for people in one part of the country to speak effectively to their neighbours in other parts of their country.
[Translation]
Quebec is not unique in this regard; they face the same challenge in British Columbia and perhaps elsewhere. It is a political issue.
[English]
Senator Pratte: Mr. Belanger, what attitude should the federal government and promoters of oil infrastructure projects take with indigenous nations that take that total resistance attitude? If the project is deemed a national interest project and you have five nations who say, "We don't want to negotiate. We want nothing to do with the project,'' what do you do?
Mr. Belanger: My read of the political environment right now is that the folks at Kanesatake are digging in. They have allied with Greenpeace to bolster their bank accounts and learn social movement actions. They have made it quite clear that, on principle, they are going to resist. We know immediately there's going to be one community at this point along that corridor that is going to do its best to disrupt.
A secondary area of study for me is social movements, resistance, blockades and occupations and so on. In this case, we're seeing the chief of the community motivate his people to a point where, like Caledonia or Oka, they may decide to resist physically. We have seen that across Canada on a variety of different occasions. When a project shows up at your territory's borders and you're trying to resist it from coming on to your territories, irrespective of what the Canadian government is going to claim in terms of its sovereignty over those lands, we're seeing those land stewardship protocols activated at that moment. People are not afraid, at times when feeling they've been pushed to the wall, to come forward and actively resist with weapon in hand.
There were 260 different blockades, occupations and moments of resistance from 1981 to 2000. Those are the only numbers I have at this point. That's not including the last 15 years. The issue is basically measuring the community and trying to determine how much capital that community is going to put into resisting a project, and then making the political decision as to whether you want to proceed. But it's a public relations nightmare.
Oka in 1990 was simply about expanding a golf course from one municipality on to what was arguably municipal land. The folks at Oka, or the Kanesatake Mohawks, decided they wanted to claim it as their own historically. That turned into a 79-day standoff that cost $550 million of taxpayers' money. It ultimately caused our Canadian Forces to be mobilized to respond to 100 people who were making a territorial claim at that moment in time. The optics and the public relations really have to be taken seriously.
We know right now in B.C. that there are encampments of individuals who are blocking potential construction and expansion of projects. We know that it's happening in Ontario. There were blockades in New Brunswick and Nova Scotia a few years ago with various natural gas projects. There were police cars burning. These things are not historic; they are contemporary and we really have to take that into consideration.
The Chair: I would like to thank Professor Hale and Professor Belanger for their participation. The committee appreciates the time they took to share their findings.
Honourable senators, next week we will be meeting on Tuesday and Wednesday. We will continue this study and we will be hearing from Benjamin Dachis, from the C.D. Howe Institute, Ken Green from the Fraser Institute, and Alan Ross from the Borden, Ladner and Gervais law firm. Thank you. The meeting is adjourned.
(The committee adjourned.)