THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
SASKATOON, Thursday, April 11, 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 1:01 p.m. to give consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez. I am a senator from Quebec, and I’m the chair of this committee.
I will now ask senators around the table to introduce themselves starting to my left.
Senator Patterson: Dennis Patterson, senator for Nunavut.
Senator Neufeld: Richard Neufeld, British Columbia.
Senator Cordy: I’m Jane Cordy. I’m from Nova Scotia.
Senator Mockler: Percy Mockler, New Brunswick.
Senator Richards: Dave Richards, New Brunswick.
Senator Wallin: Pamela Wallin, Wadena, Saskatchewan.
The Chair: I would like to take the opportunity to thank the analysts from the Library of Parliament, Jesse Good and Sam Banks and the clerk of the committee, Maxine Fortin, and I would like also to thank the stenographers and all the other staff from the Senate who are here and doing a great job.
This afternoon we are continuing our study of Bill C-69
We welcome our first panel this afternoon: as an individual, Professor Maureen Reed from the University of Saskatchewan; and from the Saskatchewan Chamber of Commerce, Mr. Steve McLellan, chief executive officer, and Joshua Kurkjian, director of research and policy development.
Each of you has approximately five minutes for an introductory statement, after which we will proceed to questions and answers.
Professor Reed.
Maureen Reed, Professor, University of Saskatchewan, as an individual: Thank you very much. I appreciate the opportunity to speak to you about this bill.
As mentioned, I am professor and assistant director at the School of Environment and Sustainability at the University of Saskatchewan. My research over the last 30 or more years has focussed on environmental governance in rural communities, where I have studied how gender plays out in resource management, decision-making and benefit sharing.
I also acknowledge Ms. Heidi Walker and Dr. Amber Fletcher who have collaborated in creating this statement.
Today, on our behalf, I would like to express our strong support for the component of Bill C-69, clause 22, that requires the consideration of the intersection of sex and gender with other identity factors in impact assessments. Rural and resource communities are not homogeneous. Projects have different impacts for different groups of people such as women and men, indigenous peoples, senior citizens, people with disabilities, and low-income earners, among others.
For example, in 2018 the World Bank Group noted that research has shown a correlation between oil, gas and mining projects and rising rates of gender-based violence, including onsite harassment. These impacts typically fall more heavily on women than men, particularly women of lower socioeconomic status in communities and workplaces.
Risks to health and cultural wellbeing may also increase for those with higher reliance on traditional country foods that are rendered less accessible by resource development. Health and social services often become overstretched with influxes of workers into communities. This stress may disproportionately affect women who work in higher numbers in these fields and also affect community members with specific health needs or disabilities.
Employment is typically considered a key benefit of development projects. Although women in rural areas tend to have higher levels of formal education than men, they often face significant barriers in accessing employment and training opportunities in the resource development sectors, especially for higher-paid positions. This may be due to a lack of access to transportation, child care or inability to leave families at home for training opportunities elsewhere. Once employed, women working in natural resource sectors, particularly Indigenous women, experience higher rates of harassment and bullying than men. Gender and diversity analysis can help to identify opportunities for enhancing employment accessibility and for ensuring a safe and healthy workplace.
Furthermore, impact assessment consultation processes are not always inclusive of diverse groups. For example, in Indigenous and rural communities where land based activities are important, proponents may seek out formal hunting and trapping associations which tend to be male-dominated, but do not reach out to some of the less formal groups who might use the land for nonindustrial products such as berries or medicinal plants. Formal meetings and hearings also tend to favour those who are comfortable in formal settings, which prioritizes those with higher levels of education and social status like me.
Gender and diversity analysis can help identify ways to ensure that engagement processes are more broadly inclusive. Some resource companies, like Rio Tinto, are already applying gender and diversity lenses to their day-to-day operations including impact assessment, and the company states, for example, some of the benefits are that it increases their social license to operate, improves the quality of life for women and men in those communities and increases local and Indigenous employment opportunities. However, we believe that the application of gender and diversity analysis in impact assessment will not be consistently applied across projects and companies without a strong legislative foundation.
The differential impacts of resource development projects within communities cannot and should not be scoped out of impact assessment processes. It’s our opinion that the inclusion of gender and diversity considerations in the proposed impact assessment act is a positive innovation that can help ensure that the negative impacts on historically excluded groups are mitigated, that the benefits of new projects are more equally distributed and that decision-making is inclusive, leading to a more socially, economically and environmentally set of sustainable projects that work for all. Thank you.
The Chair: Thank you.
Steve McLellan, Chief Executive Officer, Saskatchewan Chamber of Commerce: Good afternoon and welcome to Saskatchewan, senators, Madam Chair. As always, it is a pleasure to have our Senator Wallin back in Saskatchewan, as it is Senator Tkachuk.
My name is Steve McLellan, and I’m the CEO of the Saskatchewan Chamber of Commerce, and I’m here with my colleague Joshua Kurkjian, who is our director of policy and research.
I want to also begin by acknowledging, as others have this morning, that we are proudly on Treaty 6 territory and homeland of the Métis people. We here today represent the interests of our 10,000 in the Saskatchewan Chamber network. We are proud to say that we have also shared our information, gained insight from our local Chambers in Regina and the Saskatoon Chamber of Commerce and their CEO, Darla Lindbjerg, who is with us today, and also from business groups like the North Saskatoon Business Association and their CEO, Keith Moen, who is also with us today.
The Saskatchewan Environment Committee has been in operation for about 30 years. Those members have exceptional credentials. The chair has been a federal and a provincial regulator, and they have long-term commitments to this province, their companies and the balance between economy and environment. They are focussed on results that balance those issues and have done exceptional work, we believe. Much of that work has been circulated to you in earlier submissions. We want to say thanks for the opportunity, and very much thank you for the opportunity to have Saskatchewan voices heard in our province. I will be as concise as possible and hope to present our position and answer any questions of the committee as fully as we can. Once again, the documents were sent and circulated, so I won’t repeat them verbatim.
I want to say thanks to each and every one of you as senators for making the additional effort to cross the country and to set up the hearings because we know how important this issue is. We also know how important it is that when legitimate voices from across the country are heard, we can do great things together. While some of those voices are frustrated with any discussion on Bill C-69, we understand the process, so let’s keep it moving forward.
The key points I want to emphasize are simply these, that Bill C-69’s deficiencies require a rewrite rather than small amendments. The task ahead of you is not insignificant, but we believe you’re up to it.
Secondly, the debate over Bill C-69 that’s taking place is in an era where the level of private industry confidence in the federal government’s management is at an all-time low. I specifically said federal government, I didn’t say Liberal, because this issue is not brand new, and it has to change for us to grow as a country. It’s not a political issue that we’re debating today; it is a public policy issue.
Thirdly, we believe that keeping sociopolitical considerations separate and distinct from environmental issues and addressed under separate agencies or jurisdictions with specific guidelines is the route to go. For example, the duty to consult, energy management, nuclear energy or gender issues all deserve full attention, not part of a larger program.
Fourth, I would reference that the Crown’s role in its duty to consult is a whole-of-government responsibility and broader than any one department or area. Duty to consult should be addressed separately from environmental or any other issues, and its activities housed in an appropriate entity, perhaps Indigenous relations in Northern Affairs Canada. Again, it deserves distinct focus.
Fifth, it’s ironic, we’ll note, that the discrepancy between broadening the scope of the assessment process from a focus on the biophysical environment to a larger predominantly non-environmental impact assessment and project operation, and yet, still, the final decision-making authority rests with the Minister of Environment, which is, we think, incompatible and not appropriate.
Number six, we would not create and encourage you to not create an impact assessment review agency that’s also responsible for day-to-day project management. Keep the assessment processes and the life cycle regulators separate. Bigger is not better. Focus, and professionalism will result in much better outcomes.
Number seven, the removal of the National Energy Board’s standing test for stakeholders to prove direct involvement will reinforce the vague public interest threshold by concentrating more power of the process with opposing special interest groups. This is a challenge that’s been referenced several times today, but I’ll tell you what, the length of your sessions will be only compounded if there isn’t clarity around standing.
Some NGOs and interest groups want to use Bill C-69 to stack the deck against the legacy oil and gas and mining sectors, which is hypocritical, unfair, and, we believe, inappropriate. It’s interesting that an unintended consequence might be to hobble renewable energy and other large projects. It was referenced earlier that in order to do large wind and other renewables, you need a backup of gas power, and this may stop that. So, again, the unintended consequence is that it may hobble renewable energy projects.
In closing, I want to reference, if you haven’t seen it, what I believe offers exceptional clarity on the issues of oil and gas we face as a country. Chris Slubicki, CEO of Modern Resources, a company in Alberta, is a video star. We had him in Regina last week to speak to our members about oil. He is a social media star, and he has got one social media feed in his life. Some 130,000 people have seen his video. I would strongly encourage you to see it. It offers the clarity on public policy and the realities of this issue.
I would also note that the piling on of our energy sector is unfair and causes much broader concern to people than it should, trust amongst our people and our government. The east-west divide that is growing larger, the foreign imports where we used to be comfortable with trade has now become a highlighted issue and one that we can solve and need to better understand. Piling on the energy sector is not good for Canada and certainly not good for our province. What has been lost are the facts, the science, the public safety and the clarity that good public policy requires. Canada has, must have and, I believe, can develop public policy on an issue like this, but we need to focus on it. Remove the politics. Let’s focus on the public policy. Thank you, ma’am.
The Chair: Thank you very much.
Senator MacDonald.
Senator MacDonald: Thank you, Mr. McLellan and Ms. Reed, for your testimony.
The Saskatchewan Chamber of Commerce recently held a day of action to draw attention to Canada’s lack of pipeline capacity and the discount that causes this for Canadian oil. You have also said that Bill C-69 needs to be fixed. How many businesses supported your day of action? Can you describe the impact on all businesses in Saskatchewan caused by the lack of pipeline capacity for Canadian oil.
Mr. McLellan: There was a day of action in Regina. We were not part of it, but there were hundreds of people out there who voiced their opinions. I can answer the second part of the question more deliberately. The impacts are significant. You have heard from large CEOs this morning from the oil sector, and you’ve heard about the impact on our Indigenous people. I can talk to you about the impact of a woman, a single mother, who lives in Moosomin who works in a convenience store whose income isn’t what she’d like because we can’t get the oil to market. The pipeliners aren’t working.
I could talk to you about the ability of our province to fully fund education because of the tax losses that we’re seeing. I could talk to you about the Indigenous economic opportunities that are at the door of those communities that are not happening because we can’t get these projects built. There is the ability, as I said a minute ago, for us to have a non-political policy discussion with our Indigenous neighbours and the small-town and the large-town people. We’re not having it because we’re seemingly fighting about it. The impacts are dollars and cents and big dollars, of course, in the billions, but they’re also $12, $15 less on a paycheque, and to some that means a bag of potatoes or a supper on Friday. You heard about the hockey stories this morning. That’s real-world stuff, and we’re feeling it across the country, and people don’t know why. They know that the kinds of projects we want to have built make good economic, scientific, environmental sense.
Senator MacDonald: There’s two points about pipelines. One is that everybody thinks about Alberta when they think about pipelines, and Saskatchewan isn’t necessarily at the top of their minds. Of course, it’s an issue here as well. All the major pipeline companies have told us that Bill C-69 will not work for them. Albertans have been very clear to us on what the impact is going to be. In terms of the Saskatchewan economy, if we continue to not get pipelines built, how will it affect the economy in, let’s say, the next 10 to 15 years?
Mr. McLellan: It’s going to impact it in a dramatic way, again, by billions of dollars, without question. The potash folks, who were here this morning, and the agricultural folks sell their products to the world, and people eat better because of it. Potash and grains have to go on rail. If we continue to ship our oil on rail because we can’t get to where it belongs, to where it’s safer and more economical delivered through pipelines, we’re putting pressure on those other commodities, and our manufactured goods is another example. The bottom line is the impact of pipelines not being built is not just an oil impact, it’s way bigger than that. It’s the kid, and it’s a dramatic example, who can’t go to college because Mom and Dad couldn’t get the price they needed for their grains. You might think, “Grains and pipelines; what’s the connection?” That’s the conversation we need to have.
Senator MacDonald: So there’s a real domino effect from this. Thank you.
Senator Cordy: Thank you both for being here. You’ve both brought some new topics to our discussion.
Professor Reed, I would like to start with you. Thank you very much for the analysis that you have done and the information that you have given. We have heard very little of this information on gender-based analysis in regard to the bill, and that would be clause 22 and the intersection of sex and gender with other identity factors in impact assessments.
We did hear from the Native Women’s Association. They were very pleased and said that this is the first time that it’s been in a bill, and they spoke about the opportunity that it would provide for Indigenous women’s voices to be heard. They also welcome jobs coming to communities, but they said that there are things that women face that men may not face. The example that they gave was child care. They said that if they are working shift work in a mine, they need child care centres 24/7, and it’s not Monday to Friday. I think sometimes we live in a world where we think everybody works regular hours during the day, Monday to Friday. In fact, that’s not the case. In light of what they have said, why do you feel that this is such an important initiative to have in this bill, and hopefully in more bills to come?
Ms. Reed: The information that you have received from that association does speak to some of those issues. Rural and resource-based communities still have a very strong division of labour within households as well as within communities, and the bulk of child care and elder care continues to fall on women. Child care is a huge issue whether it’s because of employment, whether it’s to take specific training opportunities so that they can get employment. It may be the way in which shift work is scheduled that it needs to be negotiated within the households as well. It may be daytime daycare, and it may also prevent some people from taking advantage of fly-in/flight-out kinds of opportunities. So there are a whole bunch of effects within households that would prevent certain groups taking up employment within those sectors.
I think that being able to undertake a gender and diversity analysis will ultimately help the industry because we know that in the mining and forestry sectors in particular companies are or will be facing a labour shortage in the very near future, and the proportion of women working in those sectors has not really changed in the last 30 years. I’m now on a national task force that is looking at gender equity in forestry because the numbers are still at around 17 percent.
Yesterday, I was an external examiner for a thesis defence. The candidate was looking at women in the mining sector. Those numbers have not changed in the last 30 years, and there are things that will benefit companies if they are able to find ways to bring women into their workforce more effectively.
Senator Cordy: I’m pleased to see that you spoke about the World Bank Group who did research on the amount of gender-based violence and unfortunately onsite sexual harassment that takes place on some of the natural resources jobs. It’s not something that people like to talk about. Do you have statistics to share from the report of the World Bank? Why are people reluctant to speak about that? I’ve done some reading about it, but we’re not hearing it. You’re the first person who has raised it at our meetings.
Ms. Reed: I didn’t bring the numbers with me, but I could send you some numbers as follow-up. I will say that a very interesting point was raised at the defence, which I think is useful. In the mining sector, health and safety became an issue a number of years ago. The health and safety records of companies have improved dramatically in the last 10 to 20 years. However, there is a lot of discussion around dealing with sexual harassment or bullying in the workplace, sort of official rhetoric, but it’s not reaching the workforce itself. If we think about it as a health and safety issue, however, there may be ways in which that conversation can start to happen on the work floor, as well as in the higher levels of management.
Senator Cordy: Mr. McLellan, in your briefing today you say that it’s important to more clearly define the relevant impact factors, including the use of gender-based analysis. What specifically are you suggesting?
Mr. McLellan: To the doctor’s comments a minute ago, I believe that if you were to take the track record of mining companies of Saskatchewan on human resource policies on this issue, you would be very proud of them, as we are. Although it was referred to, they’re not always being considered. The reality of it here is, in my experience at least, that when there is a bullying issue, when there’s a harassment issue or a sexual gender issue, our companies here are dealing with it immediately and very effectively.
Senator Cordy: In relation to the bill specifically, are you looking for a clearer definition in the bill?
Mr. McLellan: I think it should be a separate entity. Let’s take it out of the bill. Let’s as a country focus more stridently on the gender issues that have been brought into the bill. We just don’t think that there is as dominant a place within a pipeline discussion, as an example, as it should be given.
Do you have anything to add to that?
Joshua Kurkjian, Director of Research and Policy Development, Saskatchewan Chamber of Commerce: Again, I just want to reinforce what Steve is saying. We’re not opposed to having a GBA+ component. We just think just for pragmatic purposes it should be a separate guideline policy. This is novel, at least in a federal assessment process, from my understanding, the inclusion of GBA+ criteria. It’s new.
Senator Cordy: Yes, it is.
Mr. Kurkjian: Tthere is some subjectivity to it, so what industry is looking for is a little more clarification on how to look at this, just some more direction in a subsequent version of the bill.
Ms. Reed: Currently impact assessment looks at environmental impacts as well as associated effects, and employment is one of those associated effects. It’s sometimes difficult to separate those things out, particularly if you’re looking at people who may be engaging in land-based activities. If one of the effects of a resource development is changing patterns for wildlife, for example, that will change food procurement for those individuals. It can then have knock-on effects in terms of culture and sort of social effects. So it’s sometimes difficult to say that there are environmental effects that don’t have immediate social impacts. Thank you.
Senator Cordy: Thank you.
The Chair: You cited the Rio Tinto. I’ve been familiar with them in Quebec doing this gender-based analysis for a while now. It’s true, as my colleague said, that we haven’t heard much on this issue in regard to Bill C-69. I wanted to ask you, is it difficult to do these analyses? There are many other companies that are already doing it, as you said, because of the shortage of manpower. There are benefits, so why do you think there is a resistance to conduct these analyses?
Ms. Reed: You would almost have to ask the companies. It’s new in some respects, the data have not typically been collected, and it would require rethinking on how employment data are collected within the company as well as how they’re analyzed. It would require some expertise, perhaps, that’s not available within the company. Statistics Canada is looking at it in terms of how it collects its data. Cameco, for example, has had to do some work primarily because it’s regulated differently because it’s a uranium company, but they also have a very high proportion of local and indigenous employees, which makes it different from other companies. There are models that we can look at that might give us some guidance about how to move forward.
The Chair: Thank you. We would appreciate it if you could supply any information that you have, through the clerk, to help us in understanding the issue.
Ms. Reed: Absolutely.
Senator Neufeld: Thank you all for being here and bringing some good information. I want to speak to Ms. Reed about some of my experience and this committee’s experience in the last little while. I think it’s great that we’re trying to get more women into the workforce in the mining and the oil and gas sectors and the industrial sectors. That’s all, to me, good work. But in Calgary we heard from Sarah Vandaiyar, president and CEO of the Young Pipeliners Association. It’s a great group, and there is a young lady leading a group. We heard from Katie Smith, the executive director of Young Women in Energy, another great group. This morning I asked Ms. Wong from Cameco Corp. about sexual harassment and those kinds of things. She said they have zero tolerance.
It may have happened at one time — and I’m not saying it doesn’t happen — but generally speaking it’s not like it was a number of years ago. Probably 20 years ago, two decades ago, when I lived in Fort Nelson, the plywood plant wanted to hire women. The chopstick factory had an in-house daycare onsite so women could work. My neighbour, a lady, has worked in the pipeline business for probably 30 years, and not just for one company, for a whole bunch of them, and she has never been hassled. My daughter-in-law, was a fish biologist and went out in the fishing boats, and that’s 15 years ago, and she was never bothered. It’s good that there’s people out there who are making it happen, who are getting results.
BC Hydro has a camp right below Fort St. John where I live. It’s a 4,000-person camp. They have their own trauma hospital right inside the camp, and they have been working there now for two years. I live in the community. I haven’t heard of any negative things taking place. So I think, generally speaking, people are catching on, but it takes continual drive from people like you to keep it front and centre. I’m not sure it has to be part of the environmental assessment process.
That’s just a few things for you that we’ve experienced on this and that I’ve experienced in my life, and there’s a lot more I have experienced, but the Chair will cut me off pretty quick.
Ms. Reed: Would you like me to respond?
The Chair: Could you comment?
Ms. Reed: Sure. I’ll just respond briefly. I think that there are always examples of good practice, and those examples should be things that we celebrate and learn from. But I think it’s also a little bit dangerous to generalize against anecdotes. Perhaps a more systematic review would help to reveal — whether it’s over harassment and bullying or whether it’s unconscious bias. There is a number of ways in which historically, and even today, women have been disadvantaged. I can, in about two weeks’ time, provide you with a copy of the thesis which did a national survey of women and men in management positions across the mining sector, across the country, in which a number of incidents have been reported. It does not deal with any of the people who are on the shop floor for a variety of reasons. It was done as an email survey across the country, and that might provide you with some other things.
Typically, for example, on work sites, people who are the most susceptible are actually service workers who work on job sites, for example, cleaners or other service workers working in the areas that are typically male, living quarters or other things. A lot of those do not get reported because of challenges associated with having to be able to speak to supervisors or others. Those are the kinds of things that have been reported. I recognize that there are lots of good practices as well, and those we should learn from.
Senator Simons: I want to follow up with Dr. Reed. When I was meeting with people in Alberta, industry leaders, and asked about this clause, most of them said that they were not worried about it because their companies do it anyway. However, when I look at the language, I confess, I have some hesitance, because, as it’s laid out in the bill, there is no definition of what it means, and there is no sense of when a company would be able to say, all right, we’ve done that to the satisfaction of the regulator.
The other thing is I thought that gender-based analysis wasn’t just about employees, but about, say, the social impact of putting 150 young men who have no contact with home in a community. Let’s not be naive about this. There is a reason that some communities in Alberta ban work camps from their areas and insist that that’s not a model that works for them anymore. I guess my hesitance about endorsing this as part of the bill is that it is not defined. I don’t know what it means, I don’t know if anybody else knows what it means legally, and I don’t know when a proponent would be able to say with confidence, “I’ve done it. Whatever that thing is, I met the standard.”
Ms. Reed: I would agree with you entirely, that it’s not just about the workforce. That’s probably been a bit of a diversion in terms of our own discussion. There are a number of issues at play. It is difficult to define. I think that when companies go into communities, they may actually need to find out from the community how that’s defined as well because, depending on the type of community, it may be that Indigenous women have something that they want to be able to bring forward, or we may be dealing with an aging or young workforce and need to address their issues.
Whenever anything new is introduced, there is a challenge with defining it, and that definition often comes through practice. That may not be super comforting, but it is a reality. It happened when impact assessment was first introduced as well. So we need to be able to define it as well as we can and then to look for models of good practice that can be emulated.
Senator Simons: Do you feel that Bill C-69 as currently drafted defines it sufficiently? This is my hesitance. I am all in favour of a robust look at the sociological impacts of major developments on communities. I’m all in favour of a discussion about what this means, not just for women, but for LGBTQ members of the workforce, for visible minority members of the workforce, but I don’t know how you can put a clause in legislation, mandate the companies do this, without telling them what the “this” that they’re supposed to do is.
Ms. Reed: I think that if the company is serious, then they will be looking. It is difficult to say that this is exactly the bar, right? When you’re dealing with social analyses, it’s not simply a head count. It’s not as simple as saying that we’re going to set aside certain areas for conservation purposes and have other areas for development purposes. It’s not as clear cut. That’s not comforting in some ways, but I think that when companies work with communities, the communities can help them define what that means in the context of their “context”, and I think that’s probably what we can do at this particular phase.
The Chair: Do you want to add a little bit?
Mr. McLellan: Just to add the point about the lack of clarity in the bill. The other piece that, I think, deserves even a broader discussion is why are we focussing this particular issue on larger projects and not to the extent that we should in this hotel or our chamber office and so on?
As a country, I think we’ve taken huge strides — not far enough, but huge strides, and now that we have a growing volume of academic work on it, let’s keep that momentum going. However, this will be a distraction in this instance, and will move us backwards instead of forwards.
The Chair: Senator Tkachuk.
Senator Tkachuk: Thank you very much for coming.
I was just going to ask a number of questions here. In your research, Ms. Reed, research has shown a correlation between oil, gas and mining and gender-based violence. Where was that research done?
Ms. Reed: That was international research that was done by the World Bank Group, so the International Finance Corporation.
Senator Tkachuk: So international, so South America, Asia, throughout the world?
Ms. Reed: Also in North America and Europe, yes.
Senator Tkachuk: That’s just what I’m asking, so —
Ms. Reed: It’s not just an issue in the global south.
Senator Tkachuk: Was there any breakout for North America or Canada?
Ms. Reed: I would have to give you those data separately.
Senator Tkachuk: Do you have that data?
Ms. Reed: Like I said, I have some of the data for Canada. I can provide you with that separately. I don’t have it here.
Senator Tkachuk: That would be very much appreciated. On the gender-based aspect of Bill C-69, I don’t think there is any resistance from companies. I agree with the Chamber that this should be public policy across the country, and, as Senator Simon says, the problem with this isn’t the gender-based analysis but that people don’t understand what it is, and they don’t know what’s going to satisfy the impact assessment board when they make their presentation, so I think that’s a real problem and a real difficulty with the bill.
I want both of you to comment, because we had a discussion that this is a public policy debate, and that’s part of the problem I have with this bill. What is the public policy of the bill? What is its purpose?
Ms. Reed: The purpose of the bill would be to ensure that environmental and associated social impacts of development projects are assessed.
Senator Tkachuk: Every person we have talked to has said that the possible impacts have all been met, that there is nothing in this bill that’s going to improve any environmental issues at all. If you have examples of where are the environment will be improved because of Bill C-69, I’d sure like to hear them because I haven’t heard them anywhere in the country.
Ms. Reed: I haven’t done a full assessment of the bill at large. My presentation and my comments are really restricted to that one section.
Senator Tkachuk: Thank you.
[Translation]
Senator Carignan: I’ll ask my question in French. It concerns gender interactions and gender identity with other identity factors. I’ve tried to understand the rationale for this provision. I wondered whether I was dealing with a discrimination analysis under the Charter or a pay equity issue, and the addition of a provision regarding the achievement of greenhouse gas reduction objectives... I want to be able to find a link—I can hear you and I still don’t understand it—between this analysis and an environmental impact assessment. It seems that even at the labour law level, there’s no other provision on working conditions. Your points regarding health, workplace safety and pay equity are already covered in the legislation. All the hiring is included in the collective agreements. If you want to attract new employees, you’ll set up daycare systems and improve working conditions. The matter is already being addressed from a working conditions perspective. Do you agree with me? From your perspective, one social determinant with respect to reducing domestic violence is to have a well-paying job. Did I understand this correctly? The higher the income of a person or household, the lower the risk of domestic violence or health issues.
[English]
Ms. Reed: Maybe I could say just a couple of small things.
In terms of the connection between the environment and associated social factors, employment typically is one thing that comes up in impact assessments. Trying to understand who is going to benefit from that employment and how we can encourage recruitment and retention of good employees into those opportunities would be important.
We know as well that, following what Senator Simons has said, there are issues when influxes of resource workers come into rural communities that affect the social fabric of those communities. You’re right that family violence in terms of gender-based violence is something that is done within households, but there are community issues directly associated with the influx of workers.
You can also think about the connection. Moving a little bit away from employment itself, let’s look at social factors that are directly connected to environment. When, for example, resource development moves into a community, there may be effects on the environment that also affect access to country food, to the availability or access to land use for other land users, and that will also have social, cultural and potentially even spiritual effects that are differently experienced within those communities as well.
Mr. McLellan: It’s an excellent, and I have just a couple of quick comments. The clarity of the question is a challenge. If we’re focussed on salary or harassment or the number of people hired at different levels, this sort of thing, the family impacts, we welcome that dialogue. Again, our point is simply that it’s not here.
We created a document about seven years ago that talked about the direct impact, of, we called it then, transient workers going into a small town. We said here are the opportunities, here are some of the things to be cognizant of, but for the last ten years, I’ll call it, the tap on the shoulder of someone being inappropriate is no longer a police officer or law enforcement; it’s a colleague of that person saying, “You missed the memo, pal, step back.” I want to reference that, and I think taking the accumulated best practices of our large industrial suppliers across the board plus the academic work that we’re growing, which is positive, would help, again, the people in this building and the small retail store down the street. There was a previous earlier premier of Saskatchewan, Lorne Calvert, who said a very important thing, that the best social policy is a good job, and these provide good jobs in, we think, very safe environments.
I want to just quickly reference the point that Senator Tkachuk made earlier about what is it we’re trying to fix? I think we do have fundamentally the right policies in place. The problem is we didn’t adhere to them as a country. In terms of Indigenous consultation on the West Coast, we had the right process, but people didn’t follow it. If we had done that, we would be better off.
Last thing, I want to just emphasize again the importance of things like country food access, and a proper duty to consult will identify those things and make them even more special to the community and recognized, whether it’s an industry, a pipeline or a mine coming in. Our companies appreciate those things. That’s part of the conversation of duty to consult. Thank you.
Senator Patterson: I would like to thank the witnesses. Mr. McLellan, I hear your clear concern about the bill moving away from environmental effects in favour of the broader public interest test, and you’ve said that this will politicize the process. I wonder about another risk, and that is the risk of litigation. I wonder if looking at these 20-some factors in clause 22, contributing to sustainability, the extent to which the project meets the government’s obligations with respect to climate change, Indigenous knowledge with respect to the project, how do you find out what is Indigenous knowledge? What are the sources of Indigenous knowledge?
Senator Simons mentioned gender and other identity factors. What are those other identity factors? They’re not defined in the bill. Is it LGBTQ? What else? All of this is ripe for litigation challenge, which we know has crippled development of our natural resources to date in Canada, without these new unknowns. I’m wondering, do you think these definitions on public policy issues also increase litigation risk? Have you looked at that?
Mr. McLellan: We have indeed, and when you look at some of the elements, the intersection of sex and gender and other identity factors, the project contributes to sustainability, the effect of the project on Indigenous peoples. That lack of any concrete definition at this stage makes it very difficult. Everybody in this room, if tasked to find what those meant, would have a different outcome. That’s why I think it makes absolutely no sense that we’re moving forward as it is because those things will be defined not, as it should, by legislation or regulations; they’ll be defined by court rulings. We’ve gone too far in this country and held up projects and people’s incomes and the reputation of the country by having courts decide instead of doing the due diligence that should have been done before the bill was released to have that level of clarity in it. We’re not there as a country right now. We have been, and we need to get back to it.
The Chair: Do you want to add?
Mr. Kurkjian: I am very fortunate to be on the environment committee at the Chamber. I get to sit around the table with some really smart people, technical people, people who are environmental managers, people who have experience managing big projects. By taking this kind of kitchen-sink approach in terms of the mandate and the scope, it makes it very difficult for environmental managers and other scientifically-minded technical people to be able to isolate or split out the environmental components. It’s going to make their jobs harder, and, like, ultimately what is the purpose? If you’re making their jobs harder, and it’s harder for them to identify and isolate the adverse environmental impacts, what are you actually accomplishing? Thank you.
Senator Patterson: Very quickly, do you have any advice on what other identity factors are included in the gender section? Secondly, I see that you did some work for the Canadian Impact Assessment Agency on this issue recently. I wonder if you could tell us what your terms of reference were for that study?
Ms. Reed: Sure. I could list things, but just as a reminder, the federal government does have a process in place called Gender-Based Analysis Plus, and there are tutorials online, but they do actually describe how that process can be played out through all of its programs, departments and initiatives. A concern that we have is that if it is taken out entirely of the impact assessment process, it will not necessarily get the same level of attention as it would if it’s embedded within that legislation.
With respect to your second question, we were asked to undertake — it’s more of a literature review to determine how gender and diversity analysis had been undertaken through academic and other research across North America and primarily in Europe and Australia. That report is really a report on sort of the state of the art in terms of research around that topic.
The Chair: We have just four minutes left, and we have two senators, so Senator Mockler, Senator Wallin.
Senator Mockler: I’ve been in public life for 35 years, and I agree with you, Chamber of Commerce, that there is an east-west divide, and there’s a west-east divide, and Canadians are concerned. I guess when you look at the way we built Canada, people before us and our children and grandchildren going forward, were mindful when we needed to be mindful, like you’ve just said, of national policies. When we look at who we are in Canada, there is something wrong when the previous president of the U.S., Obama, killed Keystone and said no to Keystone, and yet during that same period we built in the U.S. pipelines that are the equivalent of eight to ten Keystones. What does that mean for Canadians, eight to ten Keystones of pipeline? It means from the Port of Halifax to the Port of Vancouver, across Canada three pipelines, 6,500 kilometres long.
My question picks up on Senator Carignan’s, would it be a nation-building policy, an infrastructure, to build a corridor to develop our resources from coast to coast to coast?
Mr. McLellan: I think it’s the best idea in terms of utilities and nation building I have heard in a very long time. My family bought some of the land that was originally granted to the rail lines around Arcola, Saskatchewan that they didn’t need. I think it’s too late to have that happen now, but I think if we had all of our utilities on a 200-metre-wide stretch of the country, we’d be in much better shape, and we wouldn’t have to have the concerns of impact on communities and so on. Could we still do that in certain sections? I think we could. Certainly we have some space in Saskatchewan to learn, and senators know, but I think that’s the kind of conversation that makes sense across the country. Is it too late to go coast to coast? Perhaps, but it’s certainly not in certain areas, and I would applaud it.
Senator Mockler: Notwithstanding the fact that I’m still mad over Energy East.
Mr. McLellan: You’re in good company here, sir.
The Chair: Last question, Senator Wallin.
Senator Wallin: I want to just pick up on a point that Mr. McLellan made because I think it kind of gets at the core of why we are here in the provinces, in the places that are impacted by this legislation. I think we should be doing more of it and not sitting in Ottawa.
You talked about the industry faith in the federal government, Liberal and Conservative alike, that it is at an all-time low, and I think when you say industry faith, that goes out to employees and the communities that are affected. This is something that is profoundly troubling to me. I don’t want to have conversations about western separation, we have spent most of our adult lives talking about Quebec separation, but there is something here that is making me feel very uneasy. Is that what you’re referring to?
Mr. McLellan: No question. Part of it I would blame on social media, but it’s more a human factor, that people need to travel as you have — again, full credit to you, Madam Chair, for bringing the committee here to listen to the voices. We do have different opinions across the country, but at the end of the day when we need to be together, we are, and we have proven that time and time again. So absolutely, this issue can be solved, but we need to solve it quick before our young people say, listen, I think they’ve lost their marbles, the older generation, and away they go.
I know now that international investors, which will provide my kids with jobs into the future and our governments with income, are looking at Canada and saying, “You know what, you folks won a lottery when you became Canadian citizens or you were born here. You won the global lottery, you’re the luckiest people on the earth, and yet we’re acting like spoiled rotten kids.” Shame on us. Shame on us. This is a big issue, an important issue. I’ll tell you what, if we can’t solve this one, God help us if we have a world war, God help us if we have a depression. So I applaud finally the efforts of you folks, and we need you to do your work and do it well. We’re sure you can.
The Chair: Thank you very much for those wise words. To the witnesses, thank you.
Colleagues, we are going to suspend, but don’t go far. We have a second panel.
Ms. Reed: Thank you very much.
The Chair: For the second panel, we have Mr. Gordon Barnhart, President, Saskatchewan Urban Municipalities Association; Sonia L. Eggerman, Constitutional and Aboriginal Law lawyer, MLT Atkins LLP; and from Des Nedhe Development, Sean Willy, President and Chief Executive Officer.
Welcome. You each have five minutes for opening statements, after which we will proceed with some questions and answers. Please go ahead.
Gordon Barnhart, President, Saskatchewan Urban Municipalities Association: Thank you, Madam Chair, and good afternoon, senators. It’s a pleasure to be here, and thank you for asking me to come and represent SUMA.
This is a very unusual experience for me because I was Clerk of the Senate from 1989 to 1994, and I look around the table, and I only see two familiar faces that were around way back then — Senator Tkachuk and Senator Wallin. They swore at me when they came into the Senate the first time, and that was the oath, so good to see you.
SUMA, the Saskatchewan Urban Municipalities Association, is often misunderstood because people often think it’s representing only two cities, and yet we have 440 members. Two of our members, the two largest cities, over 200,000 residents, 14 over 5,000, and more than 225 municipalities under 500 people, so we represent 80 percent of the population representing towns, villages as well as cities spread across a vast province that’s landlocked.
Bill C-69 contains some provisions that we agree with, environmental stewardship, for example. In 2017 our membership passed a resolution opposing the carbon tax, but we also resolved to make our municipalities leaders in terms of carbon reduction strategies, and the proof of that is on our website we are showing now at least 40 projects from our members on environmental issues and sustainability.
We also believe strongly in enhanced consultation on environmental and energy policies and the development of natural resources, but we have some significant concerns with Bill C-69 in its current form. While the bill does support broad consultation, it does not specify and specifically list municipalities as stakeholders, and so we think that that would be a good addition to the bill. We have seen firsthand in our province the critical effects that industrial failures have on our cities and our towns and our villages, so it’s essential that municipalities be consulted early in project development and consulted fully.
On the other side of that consultation we are concerned about some of the changes proposed in the Navigable Waters Protection Act and the Fisheries Act. Our construction season in Saskatchewan is very short. Projects need to be executed in a timely fashion. Delays often mean that projects will be held over until the following year, a very difficult delay in that particular project.
The proposed changes to these acts may make the consultation process overly burdensome for municipal projects that may exceed minor works. In that category there is minor works or the major, and often our municipalities have projects that are just slightly larger than the minor ones, but yet really shouldn’t require all of the review that’s required under major works, and those delays are very costly.
We have a related concern over the ability of our members in the public outside the public area to make formal complaints that must be addressed and mediated. This leaves the process open to abuse by those people who have no actual concerns with the project, but, rather, political or philosophical opposition to whatever waterway-related projects may be under consideration. So we ask humbly the committee to consider an amendment that outlines a category somewhere between the minor projects and the major projects that would reduce this potential for delay, and we’d also ask you to consider redefining who may lodge a complaint against a specific project.
Lastly, Saskatchewan’s economy depends largely on our ability to export our resources the safest and the cheapest way possible and the most effective. It’s much harder for us to watch the reality of our communities dwindling because our resource sector around them cannot get its product to market when this market clearly wants and desires our product. SUMA members have passed two resolutions, one in 2016 and another in 2018, to support the Energy East project, and I think you could apply that to Trans Mountain as well. Pipelines would bring jobs back to southeast Saskatchewan by making it less expensive to move our oil from a landlocked province out to buyers around the world. I heard in an earlier presentation the comment that when you think of oil you think of Alberta. Well, Saskatchewan oil is a huge part of our economy here in this province as well.
We also support pipelines in a general sense. We mourned with the people of Quebec and Lac-Mégantic that disaster, and we are very supportive of finding more safe ways rather than rail to transport oil. Secondly, I know there is senator here from New Brunswick. The Energy East pipeline would be a good energy job provider in New Brunswick, as well as for us.
To ensure these sorts of projects are fairly evaluated, we would like the committee to more closely examine the powers afforded to the minister. Under this bill the minister could stall or delay a project entirely if the minister views it to be in the public interest not to proceed with a full-scale assessment. These powers allow political will to enter the projects where it would carry no weight and threaten no economic productivity.
So I thank you very much for allowing me to come to speak to you today, and I look forward to your questions at the appropriate time. Thank you, Madam Chair.
The Chair: Thank you.
Ms. Eggerman.
Sonia L. Eggerman, Constitutional and Aboriginal Law Lawyer, MLT Atkins LLP, as an individual: Thanks. My name is Sonia Eggerman, and I practise constitutional and Aboriginal law with MLT Aikins in Regina. I have over ten years of experience in providing legal advice on the Crown’s duty to consult and accommodate in a variety of contexts, both federal and provincial decisions. Currently I am representing First Nations and Métis communities in Western Canada on a variety of issues, but I have to say that the most challenging consultations that I have been a part of to date have been the consultations on the interprovincial pipelines.
Today these are my own opinions, and I’m going to confine them to my practical experience in providing Indigenous clients with legal advice on consultation. My comments are also confined to the clauses of the draft legislation that relate to Indigenous participation and strengthening of consultation. In my opinion, Bill C-69 will support increased participation in partnership opportunities for Indigenous Nations and enhance consultation within the federal impact assessment process.
What I would like to talk about, though, are things that aren’t actually in this bill, what’s missing from a legal perspective. I want to touch on three key issues. One was already touched on today, the treatment of Indigenous traditional knowledge; number two, the absence of any reference to the United Nations Declaration on the Rights of Indigenous Peoples; and number three, the fallacy that Bill C-69 will increase litigation from Indigenous Nations.
So the first topic I’ll talk about is Indigenous traditional knowledge. All impact assessments will have to take into account traditional knowledge of Indigenous peoples, according to the bill. This includes the evolving knowledge of Indigenous peoples and is not just historically based. There is also greater emphasis on transparency as well as how confidentiality is protected.
While this is a very positive step in the draft legislation, I don’t think that it goes enough to give practical guidance on how to consider and integrate indigenous traditional knowledge and other indigenous legal systems into environmental decision-making. Indigenous traditional knowledge is regularly a part of almost every consultation process that I have ever been a part of. It’s there at every step of the way whether it’s through a traditional use study or whether it’s traditional users just coming and explaining how they’re using the land and how they feel projects will impact their section 35 rights.
Indigenous knowledge generally refers to the cumulative or collective body of knowledge and experience in values held by a society with a history of subsistence. While traditional knowledge plays a critical role in explaining potential adverse impacts to rights, the evidentiary value of this knowledge has received very little judicial consideration to date, and the unintended result has been the devaluation of Indigenous traditional knowledge where it’s not supported or is inconsistent with western science or other hard science environmental studies, et cetera.
The treatment of Indigenous traditional knowledge when assessing impacts to rights requires more than just an ad hoc approach that’s left to officials or proponents. Respect for Indigenous perspectives necessitates that Indigenous traditional knowledge be treated as having independent evidentiary value separate from scientific evidence. In my opinion, Bill C-69 needs detailed guidelines on the acceptance, priority and weight of this evidence to accommodate the very unique challenges faced by decision-makers, especially when it’s uncorroborated or contrary to western science.
The Supreme Court recently confirmed that the environmental effects of a proposed project based on western science are not to be a direct proxy for potential adverse impacts to rights. There is often this real desire to correlate an adverse impact to the environment as an adverse impact to a section 35 right. This isn’t always the case. There are examples for things like how an Indigenous community would perceive the quality of land or resources that they need to exercise their rights, their experience of exercising their rights in family areas, preferred locations for exercising rights, certain opportunities to uphold stewardship or social norms. I really think that a workable framework for the consideration of Indigenous knowledge is essential for Bill C-69.
The second absence I would like to talk about is the absence of the United Nations Declaration on the Rights of Indigenous Peoples or UNDRIP. On May 10, 2016, the federal government stated that it was a full supporter of the declaration, “without qualification.” Ministers indicated that it would be implemented over time through a mixture of legislation, policy and action initiated by Indigenous Nations. In practice, however, the federal government has taken a serious step back from the language in the Declaration. Rather than seeking to obtain free, prior and informed consent, Canada now says that they will, “seek” to get free, prior and informed consent. This interpretation doesn’t accord with the declaration itself, and, in fact, the interpretation is nothing more than what the law already says about the Crown’s duty to consult and accommodate.
Regardless of whether the UNDRIP is actually mentioned in Bill C-69, the legal implications of Canada’s endorsement can and will be relied upon by Indigenous Nations. Although Canada’s endorsement does not have immediate effect on domestic law, it can be used to influence domestic law and aid in statutory interpretation. Particularly, it will likely be used in the aid to interpret section 35 of the Constitution Act which protects treaty and Aboriginal rights. In my opinion, the federal government is missing a huge opportunity to work with Indigenous communities to create and define a legal framework on how they can collaboratively implement free, prior and informed consent. Some academics like Lorraine Land have argued that free, prior and informed consent is not merely a right to veto infrastructure projects. Instead, it’s a nuanced process of establishing relationships between the state and Indigenous Nations.
In this nation-to-nation approach proposed by Land, information is exchanged, joint analysis is conducted, and both parties have equal power to influence a decision, and this is just one conception. Instead, Bill C-69 is largely focussed on enhanced procedural protections for Indigenous people within the consultation realm. While there are enhanced opportunities, all of the decision-making still remains in the political realm. As David Wright has pointed out, deliberately omitting references to the UNDRIP is sure to widen the expectation gaps that currently exist between Indigenous Nations and the federal government in relation to free, prior and informed consent. Without clarity on the nature of consent within Bill C-69, Indigenous groups will likely be required to seek clarity from the judiciary. In this way, I really think that Bill C-69 is a missed opportunity.
The final point I would like to talk about is the fallacy of increased litigation from Indigenous Nations as a result of this bill. I perceive this to be a major misconception. As a lawyer practising in this area, Bill C-69 can only help to strengthen the consultation process because it increases procedural protections afforded to section 35 rights. In fact, many of the procedural safeguards are already common-sense attributes of a meaningful consultation process, and many are largely implemented in a good consultation process. Regardless of whether Bill C-69 is passed into law, section 35 rights holders will continue to litigate to protect their rights where governments refuse to come to the table and negotiate in good faith. Aboriginal rights is the one area where the Supreme Court of Canada has largely pushed policy for the last 20 years rather than having those elected into leadership to negotiate the content of those rights with Indigenous Nations.
In my experience, consultation is generally highly adversarial, especially in the pipeline context. There seems to be many winners and losers, depending on where the project is located, if it’s on private land or certain Crown lands. It depends on whether nations have good access to good lawyers, archeologists and good consultants. Many proponents will often do the minimum amount required rather than seeking meaningful long-term relationships that will extend for the life of the project, which can be 50 or 60 years or longer. Many nations in Saskatchewan don’t even actually engage in consultation because of a lack of capacity funding, and when nations do engage, there is often a lack of time or expertise to examine the highly technical and highly environmental documents within the environmental assessments.
Although consultation is an important protection for rights, I don’t think it can lead to reconciliation, which is the stated purpose of section 35 of the Constitution. The focus needs to be a shift from consultation and accommodation toward nation-to nation collaborative regimes to regulate the environment together. Without the necessary amendments to Bill C-69 the federal government is missing a very critical opportunity to form this relationship, and I fear that it will be left to the courts to fill in the gaps that are left.
I feel like I might have gone over my five minutes, but thank you for your time.
The Chair: Mr. Willy.
Sean Willy, President and Chief Executive Officer, Des Nedhe Development: Good afternoon. It’s my pleasure to be here today to provide you with our input on the status of Bill C-69 and its potential impacts on Indigenous economic development. I’m proud to be on Treaty 6 Territory in the home of the Métis today. My name is Sean Willy. I’m the president and CEO of Des Nedhe Developments. It is the holding company 100-percent held by the English River First Nation 600 kilometres northwest of Saskatoon. I’m here today to speak from the perspective of the leader of one of Canada’s tier one Indigenous economic development corporations.
First, I was born and raised throughout Canada’s North. I was born in Inuvik, Northwest Territories; lived in Fort McPherson; Rankin Inlet, Nunavut; Yellowknife, Northwest Territories, and Saskatoon, Saskatchewan is the furthest south I’ve gone. I’m a member of the North Slave Métis Alliance of Yellowknife with strong connections to my Métis and Denesuline ancestry. I grew up in a family with a Metis/Dene mother and a mining executive father, so it was bred into me about no duty to consult and no regulations, the fact of inclusion and the business rationale about Indigenous inclusion in our economy.
English River First Nation is one of the proudest and humblest First Nations in the country and has built a machine around business development. They have had a long working history with the mining industry in northern Saskatchewan. Like any relationship, it’s an ongoing partnership with ups and downs, but what English River saw 30 years ago was an opportunity. The community leaders saw that the world wanted and needed the world class uranium deposits found on their traditional lands, and they knew they could support this development if they could be involved in all aspects of the environmental monitoring process and better their communities through the creation of businesses geared to work with resource development companies.
The community leaders have always felt that you cannot drive towards self-determination on government funding alone, you must create your own wealth, but not at the expense of your environment. Over the past 27 years, this has evolved into Des Nedhe Developments. Our mandate as Des Nedhe is based on three key pillars, operate a business that is separated from political influence, provide dividends that support community infrastructure and operations and maximize employment of English River band members and other Indigenous peoples.
We’re comprised of a diverse group of companies. The heart of Des Nedhe is its industrial division, which includes Tron Construction & Mining, the country’s only 100 percent First Nation owned entity which focuses on mechanical piping and electrical construction. Tron has been built through a progressive partnership with the uranium mining industry, but has diversified to attract additional clients in Saskatchewan’s potash mining industry, Saskatchewan’s Crown corporations, national construction and nuclear companies. Tron on average employs 60 percent Indigenous people. It’s one of the largest employers of Indigenous people in the country.
Des Nedhe has also invested in renewable power projects, underground mining opportunities, large steel fabrication, communications, marketing, government relations firms, retail cannabis outlets, catering, housekeeping, and we are currently planning to develop our 140-acre Grasswood reserve, which is south Saskatoon where we already operate a large gas station and 63,000 square feet of commercial space. This is the path to economic reconciliation.
Senator MacDonald: Hear, hear.
Mr. Willy: This was achieved through progressive resource development partnerships with multiple entities with Cameco being a steadfast ally and one of the best partners you can have.
The English River First Nation has always used the land wisely. Still, to this day, members of the band hunt, trap and fish to support themselves. It does not matter to the community what new and updated regulation Canada introduces. The English River First Nation will always manage and protect their lands with the highest level of sustainability in mind.
Our main concerns are with the proposed changes outlined in Bill C-69 in that they will make it much more difficult for any future resource development to occur, thus eliminating the opportunities that can support Indigenous people’s right to economic reconciliation and self-determination. We are not experts in each of the proposed line items of the bill, but in discussions with many of my fellow Indigenous leaders in the country, we feel that this change will cool the resource development opportunities. You have to understand, we were one of the first, and there was about three, that started 30 years ago, and across the country you see now hundreds. This is not a trend that’s going away.
As First Nations, Metis and Inuit people, we all want the rights-based agenda, but there’s no point in having the best rights in the world if you don’t have an economy to support those rights. We feel this adds another hurdle for remote northern projects to jump over. We have a public policy jurisdictional quagmire in this country where we don’t invest in our northern infrastructure, we don’t invest in education, so we essentially have to find super deposits in the northern half of the country, and by adding more regulatory burden, it only slows those projects down. This takes away from the mid-level projects that could add value for all Canadians.
If we specifically look at northern Saskatchewan, Des Nedhe and English River First Nations continually engage with the Canadian Nuclear Safety Commission and multiple federal departments to ensure our voices are heard. We take this on ourselves, and we are progressive in our efforts. We feel this is the highest level of regulatory engagement in the country if not the world.
We feel that there is a risk by treating the uranium and mines and mills differently than other metal mines, which is included in Bill C-69. To us, there is no rationale for this. What it does is it actually moves resources away from Indigenous communities as companies must spend extra time and effort on this burdensome process, and regulatory bodies get extra resources to administer, but we on the Indigenous side lose opportunity and thus employment and own-source revenue. Des Nedhe feels strongly that the path to reconciliation is best achieved through economic development with strong involvement and participation in the environmental process. For the past 30 years English River First Nation and Des Nedhe have shown that this has been achieved through progressive relationships and resource development.
I’ll leave you with this thought: No culture of people has moved up the socioeconomic and self-determination ladder on government or philanthropic funding alone. At some point you need to use your own resources and take those next steps on your own. We feel that Bill C-69 in its current state will take opportunities away from us and all other Indigenous people.
The Chair: Thank you very much for your statements.
We will proceed now with the questions. Senator MacDonald.
Senator MacDonald: Thank you, Madam Chair.
Thanks to all of you for your testimony here. I’ll make two statements for the benefit of Mr. Barnhart and Mr. Willy, because you both raise stuff that’s been repeated to us many times on this tour.
Mr. Barnhart, the stuff you raise in regard to the municipalities and the absence of any mention of municipalities in the proposed bill, we have heard this repeatedly across the country. The issues are about better definition, medium-sized projects, restrictions on those who intervene, the problems with ministerial discretion and decision-making, the arbitrary ability to make decisions. All of those issues have been impressed upon us, and I can assure you the committee will be looking at them with a very critical eye.
Mr. Willy, in speaking to all the Aboriginal concerns across the country, the other thing that’s been impressed upon us is that Indigenous peoples seem to be more worse off than anybody else under this bill, they seem to be impacted most. That has been strongly impressed upon us from across the country and on this tour. We will be taking those considerations and applying them to our work.
My question will be for Ms. Eggerman. I’m not a lawyer. I’m no expert in this field, but I’ve always been curious about this particular division of powers. In terms of authority and responsibility in regard to Native communities in the country, it’s always come directly under the federal government. Of course, half the Natives in this country live off reserve in communities. How does the law apply when it comes to the interaction between Natives and provincial governments and provincial responsibilities and provincial jurisdiction as opposed to federal jurisdiction?
Ms. Eggerman: Specifically in relation to what?
Senator MacDonald: Well, in the application of the law.. Provincial governments really have no written authority or responsibility, in my understanding, according to the Constitution, when it comes to interacting with Natives. I’m just curious, how does that evolve as more and more Natives go into urban areas or off reserve, and when policies like this are being applied and there’s a lot of stuff in the air? How does the legal community deal with that?
Ms. Eggerman: In my context, I’m talking about, consultation. Consultation arises any time a government, whether it’s federal or provincial, is going to be taking an action or making a decision that has the potential to adversely impact Aboriginal and treaty rights. That obligation, section 35, stands alone from the division of powers in sections 91, 92. Section 35 stands alone and separate. The provincial government has the same consultation obligations as the federal government, and in this context their obligations are quite similar. However, this piece of legislation will largely involve federal activity.
Senator Cordy: Thank you very much. The testimony of all three of you has been very helpful.
Ms. Eggerman, I noted your comment about UNDRIP not being part of this bill. We actually have a bill, Roméo Saganash’s bill, before the Senate. It’s been there for a while, and it still hasn’t been voted on. Hopefully it will be at least voted on before the end of our session and before the election. It’s not a government bill because I’m sure if it were, I would have had a number of points of privilege raised. Anyway, that was just for your information, Ms. Eggerman.
I was interested in your comments about Indigenous traditional knowledge and that it’s a positive step to have it in this bill. You said that it doesn’t go far enough. You said that Indigenous traditional knowledge is part of consultations but that it’s received little attention beyond the consultation stage and that, in fact, the judiciary seems to be ruling on the cases when it is used. I’m glad to hear you say that it’s a fallacy that there will be increased litigation with increased C-69. We heard the Native Women’s group who said that it’s better to work together than to litigate. I hope that we would all agree with that.
I wonder if you would expand on your view that the Indigenous traditional knowledge piece doesn’t go far enough, leaving us at the consulting stage with no action beyond that and, once again, with the justice system making policy.
Ms. Eggerman: In my experience, there is a lot of talk about looking for and acknowledging Indigenous traditional knowledge, but when it comes down to how that knowledge is viewed, it’s always undervalued whenever it comes up against environmental or western science. Not always — it can be. There is a tendency, because there isn’t actually judicial guidance from the court. We have guidance on how oral history evidence should be treated in relation to when rights are being proven, but in the consultation context there is a judicial gap on how Indigenous traditional knowledge should be weighed against science, especially when Indigenous traditional knowledge stands on its own as a valued legal system without corroboration or sometimes even in opposition to western science.
I’m not here with the answers, but what I am saying is that it’s important for the federal government to sit down with Indigenous people and work toward a consensual means to have Indigenous traditional knowledge weighed and accepted. Further, there should be rules behind how this evidence should be viewed when it comes up against western science, and that’s one of the things that we don’t have. Currently across Canada, there are often policies on Indigenous traditional knowledge, but the policies are completely different. There is no standardized policy. Each nation may have their own definitions of Indigenous traditional knowledge. As a practitioner on the ground it’s very difficult when you have these broad statements. The legislation doesn’t give guidance on what to do with that evidence, and I think further guidance is required. As we’ve seen time and time again in this area, when there are gaps and the government doesn’t want to fill the gaps, the courts fill the gaps. Sometimes it’s good, but courts aren’t always practitioners in the area, courts aren’t on the ground doing the work, and sometimes they come up with solutions that aren’t the most practical, and working together to fill the gap is an important aspect.
Mr. Willy: Just to add, the most progressive companies integrate it without even thinking about it. I ran Rio Tinto’s corporate responsibility program at the Diavik Diamond Mine, and I ran some of the northern mines for Cameco. We integrated traditional knowledge because it was not only the right thing to do, but the trend in Indigenous communities is to hold discussions with other Indigenous communities about who is the proper resource developer.
I think somebody mentioned earlier that there are items in place already and within legislation. The good companies will do it, and we raise this bar because there’s a few bad apples or some jurisdiction is not implementing a current regulation the right way, and it is used by outsiders as a wedge issue to come into the communities. You have to understand that Indigenous communities want economic development to start moving up Maslow’s hierarchy of needs. We want to fulfill our basic food, security and safety needs, and we’re being bombarded by other groups who are coming in to fulfill their self-actualization needs. Things are not always going to be solved, and you’re not going to be able to do everything, but sometimes our communities are just looking for jobs. Sometimes our communities are looking for options for our young people to stop the suicides.
The good companies are already doing it here in northern Saskatchewan. Cameco has been working with our communities to develop, plan and do projects with incorporating English River’s traditional knowledge.
Ms. Eggerman: I would agree, there are some good companies that do a really good job, but it’s not a standardized process across the board.
Senator Cordy: Unfortunately many laws are brought in because of the actions of a few people.
Anyway, Mr. Barnhart, you spoke about minor projects, major projects, and in-between projects. I’m sure you had a much better word for it than that. What is an in-between project? My understanding in listening to you is that these in-between projects are sort of left floundering because they don’t fit into major or minor. Can you give me an example of an in-between? Are you saying that we should have a definition for that category?
Mr. Barnhart: Thank for your question, senator. I don’t think that we’re really putting a specific dollar figure on it. The issue is that if it’s larger than the smaller projects it’s lumped in with the big ones. That leads to a whole bunch of other evaluations and reviews that are time consuming and often can lead to either delay or the cancellation of the project altogether. So somewhere in-between would be — and we haven’t put a specific definition on it, say, above a million dollars but below whatever — something along that line. It would be very helpful in terms of trying to make sure those municipal projects are able to proceed. They do not fall within that classification of small project.
Senator Cordy: Okay. Thank you.
[Translation]
Senator Carignan: My question is for Mr. Eggerman. I looked closely at the definition of “jurisdiction,” which includes an Indigenous executive leader who “has powers, duties or functions in relation to an assessment of the environmental effects.” Earlier, you said the following: “More often than not, an environmental impact assessment needs to take into account the impact on First Nations, Aboriginal rights or other aspects.” Doesn’t this power to authorize a governing body to conduct the environmental assessment become more theoretical than anything else? Basically, the governing body could end up in a conflict of interest situation with an obvious risk of bias. Isn’t it dangerous to give that right or a semblance of the right?
[English]
Ms. Eggerman: If I could just rephrase your question to see if I have it, I think you’re talking about the substitutional service or the substitution where —
Senator Carignan: Yes, and the definition of an Aboriginal jurisdiction so as to make a study.
Ms. Eggerman: Right. Indigenous groups would be given the ability to do their own IA and substitute it. Again, when I looked at it, I think it’s a unique opportunity that’s out there, and there’s also some other provisions where it talks about Canada entering into other types of agreements, but we don’t know what those look like. Is it co-jurisdictional or is it something less than that? I like the idea of it, and I think that there’s promise. What I don’t like in the law is the lack of clarity and the fact that these will be one-offs for certain nations, rather than a law that covers the bulk of the problems.
While you may have one or two nations that have the ability and desire to do a substituted impact assessment, it’s not something that covers the concerns across the board. Whenever I’m looking at pieces of legislation, that always causes me concern because there’s so much left to the imagination of what could be done. What does this mean, is it a promise that will never be fulfilled? We really don’t know, and as a lawyer, I don’t like that uncertainty.
Senator Simons: I want to thank Mr. Barnhart. I’m just tickled that you were the Clerk of the Senate. That’s very cool. Old home week.
I want to say, Mr. Willy, that your presentation about what you have accomplished in English River is really very moving and inspirational.
My question is for Ms. Eggerman. I don’t know if you were here earlier when Dwight Newman from the university spoke to us. He talked about duty to consult at length, and he argued that the bill is deficient because at no point does it ever explain or define what duty to consult means and that it doesn’t have a place in it where duty to consult is engaged. There is a section about public engagements and public consultation, but there is nothing specific about duty to consult. He argued that the bill in its current form would lead to increased litigation because it was actually creating more murkiness about what duty to consult meant in the context of the bill. I’m wondering what you think about his analysis. He was a bit hesitant to suggest places where we could make amendments, but I was wondering if you had any advice to us how we could clarify that part of the legislation.
Ms. Eggerman: Unfortunately I didn’t have a chance to hear Professor Newman, but I’ve heard him on other occasions, and he is very insightful.
From my perspective, my duty to consult is guided by the case law; what has the Supreme Court of Canada basically said in Haida Nation, Taku River, and Mikisew Cree. So those three cases from 2004, 2005 set the foundation for what the duty to consult is, and that’s what’s going to give me guidance.
I think you’re right in that there is vagueness, and where exactly does consultation fit? When I looked at the bill, I felt that consultation was spread throughout without it being directly identified, and that’s what a lot of legislation does. For example, provincial legislation that talks about environmental impact assessment or environmental legislation doesn’t actually say the duty to consult is required, but it’s required by the Constitution, and has to be acted on and has to be done. It’s usually just woven into the fabric of the legislative process.
I think there are questions on the role of the proponent. That’s one of the questions that I have. I thought, you know, that there’s more emphasis on added and earlier consultation at the front end, but, again, we know from the Supreme Court of Canada that consultation has to occur at the earliest stage possible.
So while I think there’s some murkiness, if I’m a lawyer involved with this piece of legislation, I’m going to put on the record as part of the consultation process any interactions between the Crown or the legislative bodies and the Indigenous clients.
Senator Simons: Professor Newman pointed specifically to the Mikisew Cree decision, which, of course, came out after Bill C-69 was written, and, I think, after Bill C-69 had passed through the House. I have to reread the Mikisew Cree decision because there were sections of it, he said, that made it all the more urgent for us to figure out a way to tweak Bill C-69, that in light of that decision the bill was sort of particularly deficient.
Ms. Eggerman: He must be talking about the second Mikisew Cree decision where the Court has said that there is no duty to consult on legislation.
Senator Simons: Yes, that the province didn’t have to consult on the legislation.
Ms. Eggerman: Or the federal government.
Senator Simons: Yes, but he said that there was also language within that decision that outlined more clearly what duty to consult is.
Ms. Eggerman: I’ll have to take a look at that. I’ll go back to Professor Newman’s testimony, and if I have anything, I’ll put it in writing with my submissions.
Senator Simons: Thank you. That would be terrific.
Senator Mockler: You have all been informative, and to all three, thank you very much.
I come from New Brunswick, and we all know what happened with Energy East. My question is for Mr. Barnhart and the Saskatchewan Urban Municipalities Association. Would an energy corridor from coast to coast to coast be a good policy decision going forward to a modernized Canada? We could call it a transfer of our technologies, better relationships with First Nations, better relationships with municipalities? What would be your comment on that?
Mr. Barnhart: Thank you, senator, for your question. I heard Steve McLellan answer your question earlier too, and I would agree, I’m not sure that it’s going to be possible in terms of getting land access. We have transportation corridors now in terms of the TransCanada and the two major railways, so that is a dream that we could have. You’re very well aware, I’m sure, that Trans Mountain is a corridor in a way because it’s not taking a new route; it’s following the existing route. Could it happen with Energy East as well? I guess that’s possible, but we would have to have a look at who owns all of the land in-between. It’s kind of similar, I think, to smaller centres wanting to have rail connection with the larger cities. Once the rails are gone, it’s hard to put them back again.
Senator Mockler: Thank you.
Mr. Willy: There is already discussions going on about that corridor, senator, especially driven by Indigenous communities. I think that’s what we need to start changing, is that Indigenous communities start these conversations and drive them, especially out West where there is a lot of land north of Saskatoon that is ripe for investment.
Senator Mockler: So let us continue with our thinking hats on about a cross Canada corridor.
Madame Eggerman you are a constitutional lawyer. What if we don’t get the proper amendments to Bill C-69, if after we do our job we propose those amendments and they are disregarded? We have approximately eight or nine premiers now who have concerns with Bill C-69, and there is the letter the Council of Atlantic Premiers sent to the Prime Minister listing their concerns. If those amendments are disregarded, and they don’t accept any amendments that Canadians have funneled through this vehicle, the Senate, would that not be a cause to challenge the Constitution of Canada?
Ms. Eggerman: That is a tough one. The federal government has constitutional authority over areas that involve things like interprovincial pipelines, anything where it’s environmental issues that are on federal land, so as far as jurisdiction goes, I think the jurisdiction is there. I’m guessing that if Canadians don’t like the bill, the way our democracy is set up they would have recourse through the election process.
Senator Mockler: That will solve that.
Senator Patterson: Mr. Willy, thank you so much for everything you said, which I totally endorse, and your great experience on the ground in model projects like Diavik is really appreciated.
We had a doctor of religion, president of the Inter-Church Uranium Committee Educational Cooperative, Reverend Michael Poellet, PhD, tell us about the detrimental effects of uranium mining on human health, social wellbeing and the environment. He said it continues to be minimized and ignored. Your folks work in the field. You’ve got an impressive record of Indigenous employment. Are they experiencing detrimental effects on their health and social wellbeing?
Mr. Willy: I travelled around Nunavut with an elder a couple of years ago when we were having the panel discussions on uranium development, and I think the quote we used was that more people have died in our graveyards of poverty. Nobody there has died of radiation or health impacts from uranium development. You get higher cholesterol because they feed you so well at the uranium mines. You know, like, it’s those very principles, and when somebody from the church is discussing Indigenous people, we’re always a bit wary of their motivation. I’ll leave it at that.
Senator Patterson: To Ms. Eggerman, if I may, I’m concerned that we’ve got these criteria in clause 22 that are ill-defined. You can drive fleets of trucks through them. A previous witness said that we could learn about other identity factors on gender by looking at the GBA+ website. May I quickly recite the identity factors wheel on GBA+?
The Chair: Senator Patterson, we just have five minutes.
Senator Patterson: I know, but I want this on the record. Can I use my time?
The Chair: Okay, go ahead.
Senator Patterson: The 10 other identity factors are education, sexual orientation, income, culture, geography, disability, age, religion, ethnicity and race. Ms. Eggerman, on the Indigenous knowledge provision you said that it doesn’t go far enough to clarify the link with science, that it’s received little attention from judicial authorities, that detailed guidelines and a workable framework are needed, that each nation may have their own definition on what the legislation is wanting and not reflecting that. I guess my question is simply this: Won’t the inclusion of such an ill-defined concept actually weaken Indigenous knowledge, which you support, being included in the bill?
Ms. Eggerman: No, I think having it there, from a lawyer’s perspective, will still be helpful because I’ll go back to the legislation, and with my clients I’ll say, look, in this consultation process you have to take into account Indigenous traditional knowledge because it’s set out as one of these criteria. But, as you so identified, problems will start when you have to look at how is that defined, how is it accepted, and how is it weighted with other forms of western science?
I think it’s helpful still to have it there, but the better solution is to have a proper definition, and as a lawyer, I think that’s with every law. There is nothing harder than having a law where, if you’re on the ground, you don’t understand how to implement the law, and having further clarity, I think, is important. The criteria that you’re talking about are different from section 35 rights. I think it’s important to keep that in mind, that Aboriginal and treaty rights have constitutional protection, and consultation is a constitutional requirement that the Crown fulfills the duty to consult. Whether Indigenous traditional knowledge, again, is written down or not, I would say from my perspective, there is a legal obligation for the Crown to take a look at that evidence to see how that evidence links to potential adverse impacts to treaty and Aboriginal rights.
Senator Neufeld: Thank you for being here.
Mr. Willy, I would just like to say that I was really impressed with what you said about what your community has done to move you out of poverty. I think it’s a model that others should look at. I come from B.C., and there’s also some there that have done very well too, so it’s all good stuff.
Ms. Eggerman, just one question: UNDRIP, free, prior and informed consent. I would like to know your opinion on what consent means. Does it mean a veto?
Ms. Eggerman: I don’t think my opinion on what I think it should look like is necessarily important. From a lawyer’s perspective, we look at this as being a declaration in international law that has been endorsed, again, fully without qualification. It says, free, prior and informed consent. There is nothing about seeking to try to obtain it. What needs to be had is a nation-to-nation discussion where the parties, Canada and Indigenous Nations, sit down and decide together what that should look like.
Again, I think it’s much more about the relationship than vetoing infrastructure. However, when communities are impacted and the impacts are very intense, there should be the ability to say, “Yes, we want this project.” or, “No, we don’t.” or, “Yes, we want it, but we want it with conditions.” Again, I think this issue is going to come up over and over again until there is a shift from consultation to, really, co-decision-making, and I think where Indigenous communities are given a share of the resources that we’re all talking about.
Senator Neufeld: You said it’s not defined earlier, so it will lead to litigation.
Ms. Eggerman: Yes.
Senator Neufeld: That’s why I asked you the question, and I guess that’s some of what people are thinking.
Ms. Eggerman: Yes.
Senator Neufeld: When we talk about litigation we have to get things done somehow. That doesn’t mean you ride roughshod over anybody, and I’m not saying that, but at some point there has to be a decision made.
Ms. Eggerman: I think sitting down and talking about it and making a determination of what free, prior and informed consent is between the nations is a lot better than sending it to the courts. Once the courts decide what it is, that is what it is, rather than having ongoing dialogue and discussion, which I think is something that needs to be had. Like I talked about, there is such a growing divide between how Canada views free, prior and informed consent and how Indigenous communities do. That divide is going to have to be bridged somehow, and I think nation-to-nation discussions are preferable to litigation.
The Chair: Thank you very much. The time has expired, but we have two more questions. Senator Tkachuk, Senator Wallin, two minutes each. Thank you.
Senator Tkachuk: Thank you, Chair.
First of all, thank you all very much.
And, Mr. Willy, I don’t have a question of you, you were so darn clear, but I have one for Mr. Barnhart and Ms. Eggerman.
Ms. Eggerman, you talked about the duty to consult, and you said, that the definition isn’t clear, which is what everybody’s worried about, it isn’t clear. You said that you base that on the court decisions. I think that’s what you said. That has been the problem, we have been basing it on the courts, and we do need a clearer definition. Everybody needs a clearer definition. The lack of definition is good for the lawyers, right? Gateway got held up by the courts and Energy East is being held up by the courts. The pipeline to the south is being held up by the courts in the United States and held up in the courts in Canada. This is nuts.
We do need a definition. We do need people like you to give us definitions that could be written into law so that it would be clearer to people who are trying to build a pipeline or develop a resource, so they won’t have to worry when they start building that someone is going to take them to court. Kinder Morgan went through the whole process twice, I believe. It killed Kinder Morgan, and we’re still waiting. It’s cost the taxpayers $4 billion, and that’s just the beginning of it.
Ms. Eggerman: I think clarity is a good thing. I would agree with you.
Senator Tkachuk: Then, C-69 isn’t a good thing because we don’t have clarity. What’s the point in new legislation if we have no clarity in C-69?
Ms. Eggerman: My point is that clarity should be added.
Senator Tkachuk: Well, that’s good. We would love to hear from you as to what it should be.
Mr. Barnhart —
The Chair: Senator Wallin and —
Senator Tkachuk: I have one more question for Mr. Barnhart, please.
Mr. Barnhart, SARM was here earlier, and they have a number of amendments that they would like passed or they would like introduced that sort of go along with the Canadian Federation of Municipalities. Is your organization behind those amendments, and are those the amendments that you would like to see as well?
Mr. Barnhart: I would have to review those to see what Ray said, but I suspect we are pretty closely aligned in terms of attitude on these issues, but before I give you a definitive answer, I would like to check with him.
Senator Tkachuk: If you could, that would be very helpful.
Mr. Barnhart: Yes, I will, and we’ll get back to you.
Senator Tkachuk: Thank you very much.
The Chair: Now, Senator Wallin, and Senator Carignan has a last one-minute question. Go ahead.
Senator Wallin: I’m going to ask my question before he starts because that will be long.
I just want to say, Chief Willy, that your remarks on partnership versus consultation or whatever, are very heartening to hear. You just want to get it done. As a psych major, I’m also very pleased to hear your concerns about people self-actualizing on your backs. It really resonated with me.
Here is my question. We had Steve McLellan here earlier from the Chamber, and one of his key points was that industry, businesses and the people he represents are losing faith in the federal government, that their faith is at an all-time low, whether it be a Liberal or Conservative government. I am wondering, to the degree that you feel comfortable speaking on behalf of Indigenous people, are you folks losing faith when you see processes like this unfold?
Mr. Willy: It’s all about self-determination of our communities and people, right? Am I losing faith, yes, because the resource industry of Canada is the only reason Indigenous businesses have the success they do. They’re doing all the work. There’s no other industry in this country that engages and employs Indigenous people like the resource developers in the country. Let’s compare it to the federal government. I had to do an access to information over the last ten years for federal procurement. They spent .46 percent of procurement opportunities on Indigenous companies, whereas Cameco spent 70 percent of their procurement on Indigenous companies. We’re doing work at Bruce Power, the world’s largest nuclear facility. We have the quality, the capability to hopefully work with the federal government. So, yes, we’re losing faith in the process. If you’re going to take away the resource development companies and put an extra burden on them, how are we going to get the economic reconciliation? Nobody else is doing anything.
Senator Wallin: Thank you.
The Chair: Senator Carignan.
[Translation]
Senator Carignan: My question is for Mr. Eggerman. You spoke about the duty to consult, which is set out in the Constitution, in terms of Aboriginal rights. That’s fine. However, the bill also establishes a new duty to consult under the legislation. There are two legal sources for the duty to consult. One source is constitutional for the Aboriginal and treaty rights, and another source stems from the legislation. According to your interpretation, when it comes to the duty to consult under the legislation, should Indigenous people or bands be consulted on the 22 factors that must be taken into account in an impact assessment? For example, should we take into account gender interactions and gender identity, or only the aspects that directly affect them or their land?
[English]
Ms. Eggerman: My comments are limited to the legal duty to consult and accommodate, but I understand that this legislation also takes into account not only impacts to rights, but other impacts to Indigenous communities as well. As to the list of criteria that you mentioned, those are issues that have to be taken into account as part of the legislation, but not as part of the legal duty. But I do think that setting out that consultation will include potential impacts to rights as well as other interests of Indigenous communities is a good thing in that it takes the emphasis away from the definition of what rights are. A lot of times in consultation tables there is a lot of discussion over what is a right and what isn’t. Governments view rights quite narrowly, some provinces very narrowly, some a little bit wider. First Nations will view their rights quite differently as well.
One of the benefits to having a bit of a broader definition is that the consultation will focus less on what is a right per se beyond hunting, fishing and trapping, but also other interests that will be engaged, something like adverse impacts to the economy. That might be something specific. It might not be categorized by the court as an Aboriginal or treaty right, but an Indigenous community might have fears about adverse impacts to their economy, and that would be something that would be discussed. I think that broad conception does move us down the path closer to reconciliation and is a more fulsome consultation process than when it’s narrowly defined with a hardline impact on what is or isn’t a right.
The Chair: Thank you very much to our witnesses.
Thank you, colleagues, for your questions.
(The committee adjourned.)