THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, June 9, 2026
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9 a.m. [ET] to examine and report on any matters related to the duty to consult and accommodate Indigenous Peoples, which flows from the honour of the Crown derived from section 35 of the Constitution Act, 1982.
Senator Michèle Audette (Chair) in the chair.
[English]
The Chair: Good morning. Before we begin, we all know what we need to do with the earpieces. For our special guests, we have to make sure that we protect those who are interpreting for us, so don’t put your earpiece too close to the microphones. We also want to make sure cell phones are turned off and not sitting too close to the microphones.
[Translation]
Thank you for the work that our champions are doing behind me.
[English]
I would like to say thank you to the Anishinaabe people. Every day, they welcome and remind us that they are the guardians of this territory. For those who were in the chamber yesterday, an Elder made beautiful opening remarks about her relationship with the land but also with people. It was very beautiful.
Before we officially begin this important study, I want to say thank you to the Honourable Mary May Simon. She made history. It was beautiful to see many comments on social media where Inuit people were proud of what she did and still does. It is the same for the Innu community, where I am from. Also, in this committee, we made history with the Indigenous steering committee: We are all from different territories. It is important for me to acknowledge this.
My name is Michèle Audette, and I am the chair of the Standing Senate Committee on Indigenous Peoples. I would like to ask my colleagues to introduce themselves.
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory. Welcome.
Senator Karetak-Lindell: Nancy Karetak-Lindell, Nunavut.
Senator McCallum: Mary Jane McCallum, Treaty 10 territory, Manitoba region.
Senator Clement: Good morning. I’m still on a high from yesterday’s Governor General installation, too. Bernadette Clement, senator for Ontario, more specifically from Cornwall, which is on traditional Mohawk territory.
Senator Tannas: Scott Tannas from Alberta.
Senator Francis: Brian Francis, Epekwitk, Prince Edward Island.
Senator Greenwood: Margo Greenwood, originally from Treaty 6 territory, which is now known as central Alberta. I’m from British Columbia.
[Translation]
The Chair: Thank you, honourable senators.
I understand, Senator Greenwood, that your suitcase is arriving on Parliament Hill.
[English]
I’m glad that you’re here with us.
[Translation]
Honourable senators, you know that people are listening closely. I welcome everyone who is taking the time to watch us conduct this important study. The purpose of the study, of course, is to look at the issues around the duty to consult and accommodate Indigenous peoples, which flows from the honour of the Crown derived from section 35 of the Constitution Act, 1982.
For this first panel, we are pleased to welcome, from the Mining Association of Canada, Tara Shea, Vice-President, Regulatory and Indigenous Affairs; and from the First Nations Land Management Resource Centre, Andrew Beynon, Director of Land Governance, accompanied by Hayden Guilderson, Chair, First Nations Land Governance Registry, who is appearing by video conference.
Thank you for being with us today. You have five minutes for your opening remarks, and then we will move on to questions.
We will start with Ms. Shea.
[English]
Tara Shea, Vice President, Regulatory and Indigenous Affairs, Mining Association of Canada: Good morning, chair and members of the committee. Thank you very much for the invitation to take part in this important study. I am Tara Shea, Vice President of Regulatory and Indigenous Affairs at the Mining Association of Canada, or MAC.
I want to begin by acknowledging that, for those of us here in Ottawa, we are gathered today on the unceded traditional territory of the Anishinaabe Algonquin Nation.
My remarks this morning will focus on two themes. I will be sharing some information about the mining sector’s approach to respectful Indigenous engagement and our sector’s experience with the federal government’s approach to implementing the duty to consult and accommodate.
With rising global demand for critical minerals and other commodities, there is a significant opportunity ahead for Canada’s mining sector. Our industry recognizes that this opportunity comes with a responsibility to ensure that Indigenous rights are respected, environmental standards are upheld and impacted communities have the opportunity to share in the benefits.
Mining is the largest private sector employer of Indigenous Peoples on a proportional basis in Canada. Beyond employment, there are over 520 agreements in place between mining companies and Indigenous communities, which are contributing to economic reconciliation.
Early and meaningful engagement is core to the Mining Association of Canada’s Towards Sustainable Mining, or TSM, program, an internationally recognized standard that is mandatory for our members’ Canadian operations. Overseen by the national Community of Interest Panel, comprised of Indigenous groups, environmental and social non-governmental organizations, labour and the financial sector, TSM requires third-party external verification and public reporting across key environmental and social responsibilities, including specific criteria for genuine engagement with Indigenous communities built on trust and collaboration.
Now I would like to shift to our sector’s experience with the federal government’s approach to the duty to consult and, where appropriate, accommodate.
While the duty to consult rests with the Crown, certain procedural aspects are routinely delegated to mining companies. For mining projects, significant engagement with Indigenous communities often occurs well before a project enters the federal assessment and permitting systems. Despite this, mining proponents regularly encounter process-related challenges.
Provincial and federal requirements are often misaligned in scope, timing and expectations, including identification of which Indigenous groups must be consulted. A lack of coordination within the federal government can also lead to repeated or contradictory engagement.
In the absence of clear and consistent direction, mining companies are often left to determine which communities may be impacted and, therefore, should be engaged in agreement negotiations. The concern is not simply that proponents lack clear direction on whom to talk to but that ill-defined consultation processes also create uncertainty about appropriate accommodation measures.
Given this, we welcome federal initiatives that seek to address these challenges. For example, the work under way to update the Aboriginal Consultation and Accommodation Guidelines for federal officials is long overdue. MAC continues to encourage the federal government to draw on the experience and expertise of the mining sector as guidance is developed.
We’re also encouraged by proposed coordinating mechanisms like the Crown Consultation Hub within the Impact Assessment Agency of Canada, the transportation projects office and by the consultation-related commitments expressed in the recent provincial-federal cooperation agreements on impact assessment.
While these initiatives are welcome, more is needed. As the committee undertakes this important study, I want to leave you with the following recommendations, which are directed at the federal government.
First, ensure preliminary assessments of rights are informed by Aboriginal title, treaty rights and strength of claim so that consultation is appropriately scoped and also proportionate to the severity of impact. This includes modernizing tools such as the Aboriginal and Treaty Rights Information System, or ATRIS, to support accurate an assessment of rights and information sharing among various parties.
Second, improve coordination and clarify roles with respect to the duty to consult and, where appropriate, accommodate, both across federal departments and between federal, provincial and territorial governments.
Third, be clear and consistent with the federal government’s approach to implementing the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDA, and free, prior and informed consent particularly.
Fourth, support capacity building through effective deployment of federal funding programs, including the Indigenous Natural Resource Partnerships program.
In closing, we believe a more coordinated and predictable approach to the duty to consult will produce better outcomes for Indigenous communities, industry and Canada as a whole.
Thank you. I welcome your questions.
The Chair: Thank you very much. I will now ask Mr. Guilderson and Mr. Beynon to present their opening remarks. They will share their five minutes.
Hayden Guilderson, Chair, First Nation Land Governance Registry, First Nations Land Management Resource Centre: Good morning, honourable senators. My name is Hayden Guilderson, and I appear today as Chair of the First Nation Land Governance Registry, or FNLGR. I am also a councillor for my home community of Tzeachten First Nation in British Columbia.
In Budget 2021, Canada invested $35 million to explore a First Nations–led land registry for land code First Nations under the Framework Agreement on First Nation Land Management, or FAFNLMA. The investment was made to address a serious gap that continues to directly affect consultation today: outdated and fragmented land registry systems that do not reflect First Nations’ jurisdictions over their lands.
The First Nation Land Governance Registry, or FNLGR, has evolved through grassroots engagement as a First Nations-led initiative. It does not share the Crown’s duty to consult. Instead, we have focused on direct engagement with participating First Nations, and they can rely on the elected FNLGR board and staff for ongoing support and onboarding into the system.
I am proud to say that the registry, thus far, has been delivered on time, under budget and is capable of service that is far above initial expectations.
The FNLGR has made two key requests to Canada in Budget 2026: The first is stable, 10-year funding to support the registry system for First Nations, and the second is minor legislative amendments to the FAFNLMA to ensure the registry can operate efficiently.
To put it simply, we have built a state-of-the-art plane, and it is now ready for takeoff. Without long-term funding and necessary legislative amendments, the registry risks becoming ineffective, leading to financial loss and depriving First Nations, governments and stakeholders of a vital tool for reliable land information and meaningful consultation.
Meaningful consultation hinges on reliable, accessible and trusted information regarding rights and interests on First Nations lands. Often, consultation is delayed not out of intent but due to incomplete or hard-to-access governance information. Thus, consultation represents not only a legal obligation but also an information and governance challenge.
The First Nation Land Governance Registry is a governance tool that enhances transparency and certainty around land interests, helping all parties consult with a shared understanding of the stakes involved. Unfortunately, consultation often occurs reactively, only after decisions are already in progress. In contrast, proactive governance infrastructure, like the FNLGR, establishes clarity before any conflicts can emerge, enhancing consultation and accommodation processes. Therefore, the registry should be seen not as an isolated initiative but as essential infrastructure for improving consultation outcomes across all jurisdictions.
I will share the remaining time with Andrew Beynon from the First Nations Land Management Resource Centre, or FNLMRC.
Thank you.
Andrew Beynon, Director of Land Governance, First Nations Land Management Resource Centre: Good morning, honourable senators. My name is Andrew Beynon, and I appear here today on behalf of the First Nations Land Management Resource Centre. I, too, want to acknowledge that we are on the traditional territory of the Algonquin peoples.
We will be filing a formal submission to the committee with a number of recommendations regarding consultations, but our key recommendation regarding consultations is this: Experience has shown that it is extremely difficult for Canada to lead changes to legislation, policies and programs directly affecting First Nations, and one of the greatest difficulties faced is consultation. Far greater success is achieved when First Nations lead the way, generating support of First Nations.
I have personally experienced many cases where Canada has invested considerable time and money trying to consult on needed innovations but still failed to convince First Nations that their rights have been respected and triggered complaints about consultations.
Senators will likely recall many examples, but, for example, there were significant protests over the proposed first nations governance act to replace Indian Act failures.
Our proposed First Nation Land Governance Registry has been designed every step of the way with grassroots input. We can deliver better-than-Canada solutions that will be supported by First Nations while ensuring costs are acceptable to Canada. The same is true of our overhaul of additions to reserve. Both are items we want to see dealt with in federal Budget 2026.
Canada’s additions to reserve, or ATR, process has been broken for a long time, but now consultations risk making things worse.
When a First Nation proposes an ATR, Canada insists on consultations with other First Nations and sometimes the Métis. Unfortunately, in many cases, an ATR is further delayed, leaving all First Nations with unresolved section 35 rights to land and blocking all First Nations from building new housing and seeking other important economic opportunities. The situation is especially difficult where the First Nation has a concrete ATR proposal and neighbouring First Nations, many of whom may be friends and relatives, have unresolved specific claims or litigation.
We have proven over the past 30 years that First Nations self‑government over lands benefits the entire Canadian economy. Experience with consultation provides further proof of the merits of a self-government approach — a First Nations-led approach — to the development of legislation, policies and program reforms.
I will stop there. Personally and on behalf of the resource centre, I want to thank Senator McCallum for her efforts to promote improved enforcement of First Nations laws.
[Translation]
The Chair: Thank you for your remarks, comments and recommendations. I’ll turn it over to Senator Francis.
[English]
Senator Francis: This is for anyone who would like to answer.
How do you measure the quality of consultation? Does high‑quality consultation also mean that it leads to potential accommodation measures? What are some examples of accommodation measures that Indigenous governments have sought or achieved?
Mr. Beynon: I will start with the first part of your question. How do we see success regarding consultations? I’m a lawyer by background. Lawyers will tend to say, “Well, the legal duty to consult has been met.”
I will share with senators that when I was a lawyer advising the federal government, I was constantly asked, “Do we have a legal duty to consult? What exactly do we have to do to meet the legal duty to consult?”
I kept saying, “You are asking me the wrong question. The fundamental question you need to ask is: What things are you trying to achieve as the federal government? Are there First Nations who also want to achieve the same things or who might want to cooperate and engage and support what you are doing? If First Nations are proposing an innovation, is there something you can bring to the table in terms of support for success from Canada?”
Success is when you see both First Nations and Canada celebrating an outcome and agreeing that things were done the right way.
Senator Francis: Thank you.
Ms. Shea: I’m happy to build on that.
There is a lot to unpack there. When I think about the quality of consultation, we have to start from the very beginning around understanding how rights may be impacted and the severity of those impacts and appropriately tailor the consultation process to the facts and the circumstances at play because there is really no one-size-fits-all approach to consultation. It has to do with the decision in front of decision makers to appropriately scope.
We have a recommendation here about some of the tools to support adequate assessment of rights and the severity of impact, and the courts have provided guidance in that regard as well.
Second, I think it comes down to coordination. It is the nature of Canada that we have provinces and territories making decisions on natural resource development, and we have federal decisions on natural resource development. As I mentioned in my remarks, we don’t always have coordination on the first step — the scoping of consultation — as well as the execution. I think we can do a lot better in improving that coordination.
Even within the federal government, we have multiple departments engaging with an impacted community on a single project. Say, with a body of water, you have Transport Canada coming in to talk about navigation, and you have Fisheries and Oceans Canada coming in to talk about impacts to fish and fish habitat. Consultation is necessary, but serial consultation can undermine the objective that we are trying to achieve and undermine trust.
The other thing that can be really successful is coordination with proponents as well, having officials join for some of the meetings that proponents are having with the community and understanding the information that is being shared and the questions that are being asked.
The other thing I need to emphasize is that it has to be in good faith. As was just mentioned, it cannot be a check-the-box exercise. It really has to be for a purpose. It is something we have stressed through Towards Sustainable Mining and our Indigenous and Community Relationships Protocol. Doing some of these standards, like we have in TSM, doesn’t guarantee an outcome, but if you don’t do the things outlined in these standards, it is pretty straightforward that you are not going to get the outcome you want and you’re not going to have the support and trust. So it’s things like providing information in an accessible way and the right language, providing time to review proposals, capacity support and understanding what is important to the communities so that you are not going to talk about everything under the sun but have focused conversations.
In terms of accommodation measures, it varies and has to depend on the circumstances. Something that is very common in the mining sector is negotiated agreements between companies and impacted communities, which outline everything from procurement opportunities, education and training, employment, environmental stewardship initiatives and social investment.
I’ll stop there.
Senator Francis: Thank you. That’s a great answer.
The Chair: That’s very interesting. Would Mr. Guilderson like to add something?
Mr. Guilderson: Yes. Thank you. I’ll just be really quick. Some of my opening statements on the registry specifically spoke to the government’s infrastructure that is in place for successful consultation.
Prior to my election into our community governance, I spent five years in our lands department, working day in and day out with the federal registry that we are trying to replace. A couple of weeks ago, when the registry was in Ottawa, being with a lot of you senators and ministers, we did meet with Minister Alty, and we were able to create an account for the new FNLGR in five minutes and run a demo for Minister Alty of the new updated system, whereas creating an account in the federal system to look at parcel abstracts and title searches can, oftentimes, take six weeks. So moving at the speed of business is a measure or marker of successful consultation, and this registry is built to do that.
Again, moving at the speed of business and efficiency is key. A lot of our communities want to continue to reach that level of economic prosperity so that they are able to implement programs and services for their membership regardless of funding. This is an aspect of consultation. We are not looking to rush consultation. It is still necessary. But if we have the tools and the necessary infrastructure in place to do consultation in a fast and efficient way, that is success to me.
That’s all I have on that question. Thank you.
Senator Francis: Thank you.
Senator Prosper: Thank you to our witnesses here. I have a couple of questions.
Ms. Shea, maybe I’ll begin with you. I appreciate your work and certainly your expertise and experience. You mentioned that there are over 500 agreements that exist with Indigenous groups, and I’m sure there are a lot of experiences and best practices associated with that. Can you please elaborate on the mining proponents’ determination of “affected communities”? Is there consistency with that determination when it comes to the government as well? Do they align?
Further to that, you mentioned having some advance discussions, which seems like a really good practice. I’m curious about those advance discussions. Does that align with the federal and provincial approaches as well? If not, how does that impact your work when you have those discussions with First Nations?
I have another question. Maybe I’ll look to Mr. Guilderson and Mr. Beynon. I’m curious about your evidence and position on the relationship between consultation and information. Mr. Guilderson, you mentioned that it is a vital tool to have reliable, accurate and trusted information. Certainly, that can feed within any consultation process. There was a mention of specific claims and ATRs. I’m curious if you could draw upon that link between reliable, accurate and trusted information and how that is vital to any consultative process.
Ms. Shea, we’ll begin with you.
Ms. Shea: I will try to be brief. It is an important question. With the way natural resource projects, mining in particular, are approved in this country, typically, we’re primarily in provincial jurisdictions and territorial in the North. We also have federal approvals that we have to go through before we can begin mining.
If you look at the phases of mining, starting with early exploration into advanced exploration and then into permitting and construction, a lot of that takes place at the provincial level, well before you enter federal permitting. You are going to have to go through permits, say, for some of your advanced exploration work, which is going to trigger the duty to consult. Provinces are going to instruct proponents on the scope of consultation that they need to undertake.
What happens too often is that for almost a decade a proponent can work through the provincial system, engaging with communities for regulatory purposes but also building relationships, because there is an understanding that proactive engagement and relationship building will benefit you long term, not just through permitting but through the operation of your mine.
So that’s happening for, say, a decade. Then you enter into the federal impact assessment process, and you get guidance on the scope of consultation. Let’s say that you started with 5 communities through the first decade, and now, when you enter the federal process, you have 15 or 20 communities that are scoped in with very little rationale for why there is such a difference between the provincial list and the federal list.
I know the agency is trying to coordinate a bit better through these impact assessment agreements, but once you have a consultation list, it is really hard to change that. I have heard examples where there is confusion among the communities that were involved for that first decade. So the risk is that not only does it slow down the regulatory process because you are starting from scratch, but it could also potentially dilute the voice and benefits of those who are directly affected by the project.
I’ll stop there.
The Chair: Very, very hard —
[Translation]
You have an educational approach. I could listen to you for a long time.
[English]
Time is precious.
Mr. Beynon: I’m going to ask Mr. Guilderson to speak first, and then I will add a few comments if you don’t mind.
Mr. Guilderson: Thank you, Senator Prosper, for the question. As I have mentioned a couple of times, the registry is the tool to help facilitate the consultation. It gives both First Nations and external stakeholders that certainty. I’m assuming what Mr. Beynon will speak to next is the linkage to the ATRs and the specific claims and how it does all naturally connect together as an aspect of creating certainty for not only our First Nations but also improving the Canadian economy and for proponents involved in major projects.
One aspect that is new to the registry that does play a role in this is mapping tools. That is publicly available information that is far more precise, accurate and accessible than the current federal registry system that is in place. Like I said, the ability to access it is easier as well. You’re not waiting on a six-week process to get an account to look into the system. It’s much simpler when you can request from a First Nations lands office or the FNLGR to get in and have a look at parcel abstract searches or title history searches and have an idea of what you’re looking at so that you could go into a consultation process more readily prepared.
I’ll let Andrew take some more time on this one.
Mr. Beynon: Senator Prosper, your question is a fascinating one. The courts began to enforce duties to consult at a time, of course, when many First Nations communities still had unresolved asserted rights. The landscape as to where the rights are found is a backdrop of uncertainty — unresolved specific claims. First Nations will have expectations that mining companies or others will consult with them in respect of their rights, yet the location and the full extent of those rights haven’t been determined.
I suggest that the government should strongly support First Nations that are exercising self-government and are advancing the resolution of their claims in territories as well as specific claims and those opting for land code self-government because it leads one part of the avenue to more reliable, trusted and accurate information regarding the scope and location of rights.
In addition to building a First Nation Land Governance Registry, which will be capable of performance at levels comparable to provincially regulated registries, we have also proposed for fall Budget 2026 that there be an associated First Nation survey authority, again, contributing to much better information for First Nations, Canada and industry when engaged in consultations.
I’ll offer another thought, which is that there is something quite remarkable about the landscape of consultations in Canada over the past decade or more, and it is an issue for consideration for senators. Canada leads on deciding who has rights and, therefore, should be consulted and where those rights may be, giving signals to the mining industry, forest industry and others as to where consultations take place.
I mentioned in my opening remarks the world of additions to reserve. We have many First Nations in Canada trying to go through the broken ATR policy and finally — eventually — get lands added to reserves. Canada has begun to consult on that, and many First Nations are reacting and saying, “We don’t think these other groups that you’re asking to consult with have rights on the territory that we have.”
There needs to be much more engagement with First Nations themselves regarding the resolution of whom has rights and where.
The Chair: I think you got the cue. Thank you so much. Those are really fascinating answers from amazing witnesses.
We have quite a list of senators, so I ask witnesses to be concise in their response if possible.
Senator Greenwood: I listened with great interest to your presentations. Thank you for that. My questions are kind of all over the place.
Mr. Beynon, I want to build on what you just said because I had a question around how mining companies take on the federal government’s responsibility for the duty to consult. I believe one of you said that early on in your presentation. It’s Canada who determines who has rights and who doesn’t, so I find that quite fascinating.
What I also find fascinating is that under provincial jurisdiction, as you said many times, Ms. Shea, the province determines what level of consultation should occur.
Where are the First Nations’ voices in this? It seems like there is a lot of outside determination, and then that responsibility is passed to mining companies, but it’s unclear, as you said, Ms. Shea, what the parameters are and all those sorts of things.
I’m a bit long-winded. I would love to hear what you both have to say about that.
With respect to the registry, I understand it’s a tool, and it’s probably a great tool that is led by Indigenous Peoples in this country. What do you do when a nation doesn’t want to be involved in that and wants direct bilateral consultation? I know that one size doesn’t fit all. I’ve been in it for a long time.
What are the strategies around that? Can you continue to support them, or do nations do that work on their own with the mining company in their own relationship?
Sorry, Madam Chair. I’m taking a long time.
My final question is on the education of the people involved in this. I have met a lot of people who don’t know the history of this country and the rights of Indigenous Peoples, even at a very surface level. How do you ensure that people are educated so that, when they are making these kinds of decisions on people’s lives, they have some background to do so?
The Chair: Do not apologize, Senator Greenwood. It’s a very important topic. Of course, if you don’t have enough time, you are always able to submit a written submission.
The three of you will share two and a half minutes to respond so we can have the other senators also ask questions.
Mr. Beynon: Can I offer very quick answers?
Yes, there is a role for the industry — the particular forest proponent or mining proponent, whoever it may be — in consultations, but Canada should not be delegating or abandoning the consultations.
It is much better for Canada to be present as a partner and, to some extent, as a regulator. Canada should engage, not abandon this to industry.
Second, on the problem of Canada determining who has rights and where, we’re proposing — and we will provide more on this to the committee — that Canada should very much respect First Nation-led approaches to developing protocols or understandings amongst themselves regarding where their rights are. If you have that First Nation support when ATRs arrive or where development arrives, it’s going to work much better.
For First Nations who may not want to be heavily involved with registry data and registry information or use that tool, I always say that it’s better to have a lot of tools, even if you don’t want to use some of them. We are making a registry available for those who want to use it extensively. Some of our land code First Nations may not want to use it very much at all.
On the last point on education, I agree with you 100% that better understanding of the history and rights in this country is vital, but I’ll briefly comment for a second on federal public servants. Many have lengthy experience, knowledge and familiarity in working with First Nations. The vast majority don’t, and there is so much turnover in the public service now. I urge one thing from senators, and it goes back to that what Senator Francis asked: What is really the purpose and objective for carrying out consultations, and what does success look like?
Junior public servants and all public servants need to learn that because otherwise they are being trained on process and not understanding why they are doing it.
Senator McCallum: Thank you for your presentations.
When we look at the duty to consult, the ultimate goal of consultation is reconciliation. That came up with court cases, right?
I want the panellists to comment on the importance of self‑government and self-determination to consultation. The reason I ask that is because I had reviewed the American Indian Tribal Energy Development and Self-Determination Act. They are so much further ahead of us. That’s why I’m asking about self-determination.
What is their role? Does federalism impact reconciliation? Are they compatible? Do First Nations have true self-determination?
Mr. Beynon: I will offer a brief comment on your first question, senator.
I think everything that can be done in Canada, based on my long-time work on this, to support the advancement of self‑government drives a much better situation regarding consultation and engagement in the Canadian economy in terms of reconciliation.
One of the remarkable things about land code First Nations, those who choose to opt into that mechanism and out of the Indian Act, is that it doesn’t just improve the governance of lands, the environment and natural resources; it revolutionizes internal political capacity and technical capacity to work with other governments in Canada.
I’ll just answer that one because I think your question about reconciliation and how we get there depends on the strength of First Nations in dealing with the rest of the Canadian economy.
Ms. Shea: Maybe if I can just build on this — and MAC will submit a formal brief with more information — in the context of moving faster on major project approvals, something that I have been really interested in is how we position communities to come to the table and be prepared for these conversations. To date, some of the work we have been doing in that regard has been inadequate.
Something I have always struggled with is this: When you go through a federal impact assessment on a project and, parallel to that, governments and proponents are funding traditional land use studies that would then inform the assessment, wouldn’t it be ideal for those studies to be done proactively so that when you’re starting the assessment, you have navigation routes that are documented, traditional land use studies, no-go areas and an understanding of areas that are sacred before the engineering designs are done? I think we could do a better job of deploying funding for capacity support to have that proactive work done.
I think the concept of regional assessments is underutilized. We have a few examples, but if we use some of the tools that are available to support that proactive work, it can help communities come to the table prepared and on an equal footing. By doing it in parallel, I don’t see the meaning in some cases.
We will submit a written brief. I also wanted to comment on some of the education pieces as well, but we’ll cover that in writing. Thank you.
Mr. Guilderson: I would like to build on Andrew’s comments regarding reconciliation and the importance of self‑governance and self-determination.
With my community of Tzeachten First Nation, I’m proud of our path on this. Over 25 years ago, we were 90% dependent on federal funding, only generating about 10% of our own-source revenue. We have been able to flip that through the aspects of the land code and the First Nations Fiscal Management Act institutions to 90% own-source revenue and 10% federal funding. It’s really just flow-through dollars that any other municipality would receive.
I think that’s what has enabled us on our path to self‑determination. It has allowed us to make these vital community decisions for ourselves.
Very quickly — I know we’re strapped for time — Andrew mentioned consultation in the ATR process. Two years ago, we were able to run a fast-track ATR on an adjacent property next to our reserve in around six months. In terms of the consultation aspect that was in there, we pushed back on Canada. With regard to First Nations communities and overlaps around the area, we said that the geographical range is too large. The communities in this range they were proposing had no rights to this land, so we took on the consultation with the communities adjacent to our tribal area. We had those discussions. It was managed.
What I’m getting at is that when First Nations do the consultations themselves, it’s often done more efficiently. Thank you.
Senator Clement: Another spectacular panel, honestly. Thank you for saying that you will provide written briefs because that’s great. Mr. Beynon, your comments about the federal public service really hit.
I’m a senator for Ontario. I have been to a couple of mines now in the last six or seven months. Bill C-5 last year got me a bit concerned about proponents, infrastructure and consultation, so I’ve been travelling to the north of this province. I’ve been impressed sitting down with the mines in Timmins and Red Lake. They seem much more comfortable with the process than the federal government.
If you could say more about ATRIS because it’s the first I hear of it, and acronyms are difficult. Say more. The mines talked about: the earlier consultation, the better. If you could say more about that.
Mr. Beynon and Mr. Guilderson, you have talked a couple of times now about the Canadian economy. I have to tell you, in my role as a senator and as an ally, I sit at tables where racism is just casually tossed out. I want to understand what I’m to say in those spaces. You talk about how this kind of efficient process will help the Canadian economy as a whole. How do I say that in five sentences when I’m in an elevator or when I’m at a table where racism is just casually being put out there? Those are my questions.
Ms. Shea: I can begin briefly with ATRIS. This is a federal tool that I believe Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, manages. It is meant to be a tool for federal officials to do that early identification of communities. There is a map you can go to, and you put a point on it and then draw some boundaries around it. It will give you the names of the communities that would be in that region. It will give you some information about maybe legal decisions or pending decisions that might affect it and the status of treaties and negotiations. I believe there is a back end that federal officials can see that is not open to the public as well, which I would hope touches on past consultations and issues that have been raised by the community in various forms. I’m not sure if that’s there on the back end, but one would hope.
CIRNAC will give anyone training on it. I have gone through the training — they provided a webinar — but it’s dated. I think there is so much opportunity to have it populated with more information and more transparency for communities to understand why the federal government is scoping something a particular way and for industry to use that on the early engagement piece as well.
I have a copy of Bryn Gray’s report from 2016. There are a bunch of recommendations in there about updating ATRIS, which were submitted to the federal government, and they are all still highly relevant, unfortunately.
I think it’s about modernizing the tools, and I’m really interested in this registry that they are talking about here. Any information we can share among parties to refine the scoping and consultation process would be welcome.
Mr. Beynon: We see that issue. The media picks up on disasters, such as boil-water advisories. The success of First Nations through self-government isn’t well known. If that can be communicated better, I think it tempers some of the concerns.
We are trying to make the point that, as the current government tries to address the global economic challenges and transform Canada’s economy, if you don’t keep an eye on First Nations issues, you’re going to have massive consultation problems, injunctions, confrontation and, worse, First Nations sidelined by economic opportunities. It would be far better to look at some of the self-government approaches we have and to respond to the tools that we are trying to get to be contributors.
We will also share with you economic studies that now show that the self-government that is executed by First Nations, like Tzeachten First Nation, is not just benefiting First Nation members but non-member residents and the local economy as a whole.
Senator Karetak-Lindell: This has been very interesting. Thank you for your interventions.
Being from Nunavut, I am going to focus on the Nunavut Land Claims Agreement. I’m wondering if the process is easier when there is a land claims agreement. Does it provide more certainty? We have the Nunavut Impact Review Board, which we will hear from later. I’m wondering if there are certainty and more guidelines as to how consultation is going to be. I know our land use plan hasn’t been approved either, so I’m wondering how that impacts processes in my region.
Listening to you all makes me realize that there are best practices already being used by communities. Do you ever have opportunities to help another group in Canada? In terms of what is happening in the West or with someone maybe in Ontario, do you have opportunities to share some of those best practices or your experiences and say, “We faced the same issue five years ago. Is there a way that we can help you with the right questions?” We all know that we have to ask the right questions when we’re doing assessments.
Sometimes communities are just not prepared to ask the right questions, or they get intimidated by someone who has a lot of letters behind their name and is just stating fact after fact, which might be done on purpose to intimidate people asking questions.
I’m just trying to see how we can empower communities to be able to talk back to these kinds of consultations we see in the communities. Thank you.
Mr. Guilderson: I don’t have too much to add on this one. I think it would probably be better handled by Andrew, but thank you for the question.
Mr. Beynon: I think all examples of self-government, including what is achieved through land claims agreements, do have the potential to help greatly. Senator McCallum mentioned that reconciliation and land claims agreements often create that path to reconciliation.
Years ago, I worked on the Nisga’a Treaty, and I remember Jim Aldridge, the lawyer for the Nisga’a Nation, saying, I think to a Senate committee, that, unfortunately, Canada approaches land claims agreements as a divorce but that they’re trying to see it as a marriage.
In answer to your question, if it’s properly implemented through the target of effective reconciliation by meeting and embracing consultations, then the land claims agreement can help enormously.
To your question about the challenges faced all across Canada and sharing lessons learned, our Framework Agreement on First Nation Land Management is self-government that applies all across Canada. We are only missing Nunavut. We have a resource centre and our elected Lands Advisory Board that are there to assist First Nations with best practices, templates and models, if they want them, and strategic help. We also have avenues to legal help and so on.
So, yes, I think that could be something looked at from consultation perspectives. Too often, it’s a small, isolated or lower-capacity First Nation trying to take on massive industrial operations.
Ms. Shea: Where there is clarity on lands and governance, it helps with certainty. Understanding the rules of engagement and the process can help businesses.
On sharing best practices, we do that within MAC with our members, of course. Also, there are some interesting forums out there, like the First Nations Major Projects Coalition, which has put out interesting tools that help support communities with what questions need to be asked. There are resources out there in that regard.
Senator Karetak-Lindell: When I was in the House of Commons as a member of Parliament, I was chair of the Standing Committee on Aboriginal Affairs and Northern Development, as it was called at the time, and we dealt with the Nisga’a Treaty. We travelled to B.C. to do hearings. That’s about 20 years ago now already, so I’m pleased to hear that.
The Chair: Thank you for that comment. We will conclude with Senator Prosper. If it’s possible, please provide a written response to his questions.
Senator Prosper: I have just a couple of questions. As mentioned by the chair, if you could provide some written comments, that would be appreciated.
Ms. Shea, you talked about trust and the importance of trust within the consultative process among proponents, government and Indigenous groups.
Can you draw a correlation or comment further about the relationship between adequate capacity within Indigenous groups and organizations who undertake the consultations and that element of trust? What is the linkage there?
Mr. Beynon and Mr. Guilderson, what I understand from your testimony with respect to the registry and the justifications you’re putting forward is that it’s simply better than what exists out there today, with obvious linkages to improved consultation. Why is it better? Thank you.
[Translation]
The Chair: Thank you.
This concludes the first part of our meeting on our study of the duty to consult and the honour of the Crown.
I am impressed by my colleagues’ discussions and questions, as well as by the witnesses’ answers.
Thank you to the elected official, Mr. Guilderson, for taking the time to join us at 6 a.m. thanks to technology.
[English]
Thank you, everyone.
[Translation]
I would like to welcome the witnesses for the next panel.
For this second panel, we are pleased to welcome, by video conference, from the Nunavut Impact Review Board, Dionne Filiatrault, Executive Director; and from the Canadian Nuclear Safety Commission, Colin Moses, Vice-President, Regulatory Affairs and Chief Communications Officer, who is accompanied by Adam Levine, Director, Indigenous Consultation and Engagement Division.
[English]
Ms. Filiatrault, you have the floor.
Dionne Filiatrault, Executive Director, Nunavut Impact Review Board: Thank you, Madam Chair and the committee.
Madam Chair and members of the standing committee, my name is Dionne Filiatrault, and I am the Executive Director of the Nunavut Impact Review Board, which I will call the NIRB or board throughout my remarks.
Due to technical issues, the chairman, Mr. Albert Ehaloak, sends his regrets.
I am happy to appear before the standing committee on behalf of the NIRB to provide information that you may find relevant in the committee’s study of the Crown’s duty to consult and accommodate Indigenous Peoples.
The NIRB is one of the five unique institutions of public government that make up the integrated regulatory system established under the Nunavut Agreement. The NIRB is responsible for assessing the potential environmental and socio‑economic impacts of projects in Nunavut. Again, we appreciate the invitation to appear today.
We are here to share our recent work with federal, territorial and transregional partners focused on better aligning the NIRB’s impact assessment process with the Crown’s consultation and accommodation processes that may be triggered by development projects in Nunavut.
My remarks today will focus on one aspect of the standing committee’s study: identifying promising practices and ways to build positive working relationships in the context of the NIRB’s fulfillment of its roles and responsibilities for conducting thorough and timely impact assessments and the federal Crown’s fulfillment of its duty to consult and accommodate the rights of Indigenous Peoples potentially impacted by a project under assessment in Nunavut.
The driver for the NIRB’s recent work is based on a practical question: How can the NIRB and the federal government better align the NIRB’s impact assessment process with the Crown’s consultation and accommodation obligations when a project in Nunavut may impact the section 35 rights of Indigenous Peoples?
By way of background, for projects in Nunavut, the NIRB is responsible for conducting impact assessments on development projects under the Nunavut Agreement. Through our public hearings, registry and community engagement, the board helps ensure that projects are reviewed in an open, transparent and informed way.
However, the NIRB does not have jurisdiction to decide constitutional questions, determine rights beyond those set out in the Nunavut Agreement or fulfill the substantive aspects of the Crown’s duty to consult and accommodate.
In practice, however, Canada often relies on the NIRB’s engagement processes to support the procedural aspects of consultation with Indigenous Peoples outside the Nunavut Settlement Area who assert section 35 rights within Nunavut.
In our experience, when the Nunavut impact review process and the Crown’s consultation and accommodation activities are misaligned, it can create challenges for both processes. In some cases, the federal Crown carries out separate consultation and accommodation discussions with section 35 rights holders after the NIRB has completed its impact assessment and issued its final report and recommendations. When that happens, new information and issues may be considered by the responsible ministers that were not raised during the NIRB’s public process and that were not discussed or considered by the board or other participants. As a result, responsible ministers may be asked to make decisions based on information that did not form part of the NIRB record.
To address challenges created by post-assessment Crown consultation and accommodation, the NIRB and the Government of Canada have been working with transregional regulators, such as the Mackenzie Valley Environmental Impact Review Board in the Northwest Territories, and section 35 rights holders, such as the Ghotelnene K’odtineh Dene in Manitoba, to improve early coordination, reduce duplication and seek better alignment of our respective processes so that all decision makers are basing their decisions on the same information and also so we can ensure that the information relied upon by decision makers is available on the public record. To this end, we are working together to develop and implement tools such as memoranda of understanding, implementation plans, project-specific charters and joint engagement and consultation protocols.
We can provide more detailed information about specific initiatives upon request. I will conclude with our central message: Early coordination and transparent processes can improve clarity, reduce duplication and better align assessment processes with consultation and accommodation responsibilities.
We hope these observations are helpful to the committee’s study, and I would be pleased to answer any questions.
[Translation]
The Chair: Thank you, Ms. Filiatrault, and to your very cute dog that we could see behind you.
[English]
Thank you to the two witnesses.
Now we have Mr. Moses.
[Translation]
Colin Moses, Vice-President, Regulatory Affairs Branch and Chief Communications Officer, Canadian Nuclear Safety Commission: Thank you, Madam Chair.
Good morning, honourable senators.
[English]
My name is Colin Moses, Vice-President of Regulatory Affairs at the Canadian Nuclear Safety Commission, or CNSC. Thank you for the opportunity to appear before you today.
[Translation]
As was noted at the beginning of the meeting, I would like to begin by acknowledging that we are gathered on the traditional unceded territory of the Algonquin Anishinaabe people, a territory I have also chosen to live on as a resident of Cantley, Quebec, on the banks of Tenagadino Zibi.
The trust of Indigenous nations and rights holders is central to nuclear regulation in Canada. At a time of growing interest in nuclear energy, the Canadian Nuclear Safety Commission builds on clear dialogue, ongoing collaboration and the integration of Indigenous knowledge to ensure transparent and balanced regulation among stakeholders, licence holders and the rights of Indigenous peoples.
[English]
Our approach is to build and maintain long-term, respectful relationships with nations and host communities built on a foundation of transparency and trust and supported by sustainable engagement, communication, governance and consultation practices that are consistent throughout the life cycle of a nuclear project.
As an agent of the Crown, we uphold the duty to consult and accommodate with Indigenous nations and communities across our regulatory activities and the country. Central to our work is the recognition, protection and integration of Indigenous knowledge, which provides critical insights into the environment, ecosystems, cultural values and the cumulative effects of projects over time.
We’re guided by the United Nations Declaration on the Rights of Indigenous Peoples, which reinforces the importance of working in partnership with Indigenous Peoples. Our work must include early, inclusive and culturally appropriate engagement and have processes that respect Indigenous rights, governance and decision-making structures. When a project potentially impacts Indigenous or treaty rights, we seek to obtain free, prior and informed consent of Indigenous nations and communities.
Recognizing that we must remain responsive to Indigenous interests, we are committed to continuously improving our practices. For example, we’ve just published the What We Learned Report outlining the results of a five-month listening tour, where we engaged with Indigenous nations, communities and organizations to solicit input into the experience working with the CNSC and identify opportunities to make our regulatory practices more conducive to Indigenous participation. During the tour, participants spoke about their experiences with the CNSC, touching on different aspects of our policies, procedures and processes.
We were recognized for the responsiveness of our staff, positive interactions with our funding programs, appreciation for recent changes in the physical layout of commission hearings and recognition for our shared commitment to the protection of people and the environment. We also heard about many areas for improvement, including strengthening our cultural awareness and to continue providing more transparent, culturally respectful and responsive engagement.
We are moving forward on an action plan, informed by further engagements with nations, that seeks to ensure our work continues to be consistent, respectful and well informed, including exploring improvements to our internal tools and expanding the practice of having consistent relationship leads who engage with nations to strengthen connections and ensure meaningful, community-centred dialogue.
[Translation]
We also offer two funding programs, one is related to commission meetings and the other is about capacity building to strengthen engagement and build relationships. These financial resources help Indigenous nations and communities participate in the commission’s regulatory processes so that their voices and perspectives are heard and reflected in our work.
[English]
Capturing how consultation is carried out in practice, we develop consultation and long-term engagement protocols with Indigenous nations and communities and, to date, have signed 12 such protocols, with more to come. These arrangements help to establish shared expectations for consultation, engagement and collaboration throughout the nuclear project life cycle.
[Translation]
In addition, we support the participation of Indigenous nations and communities in environmental and nuclear oversight activities. For example, to support our Independent Environmental Monitoring Program, we work with Indigenous nations on our sampling and oversight activities. This approach builds trust and transparency and gives Indigenous nations and communities direct access to information on the impact of regulated activities on their lands and waters.
[English]
Transparency and meaningful consultation and engagement remain central to our work. CNSC proceedings are open to the public, and decisions are made by the independent commission, where Indigenous Peoples are active and valued participants.
In closing, we recognize that our obligations require continuous learning and improvement, and we remain committed to advancing reconciliation through respectful and sustained relationships with those who have rights and interests in relation to Canada’s nuclear sector.
Thank you for the opportunity to be with you today. I look forward to your questions.
[Translation]
The Chair: Thank you, Mr. Moses.
[English]
Senator Greenwood: You mentioned Indigenous knowledge. I have a couple of questions.
How is Indigenous knowledge weighed during Crown consultation efforts? How do you think about that? Do Indigenous knowledge and culture ever alter a potential project designer’s scope? In your experience, have you seen Indigenous knowledge shift the direction of a project and its scope? Do you have any examples of co-planning initiatives where you have brought Indigenous knowledge into your thinking and into the development of your project right away?
Mr. Moses: Thank you very much for the questions.
I referenced in my opening remarks our work to improve cultural awareness of the organization. For example, one of the things we do is regularly host open learning sessions with the organization. We hosted two representatives from the University of Manitoba who spoke about two-eyed seeing and bringing that concept into our regulatory processes.
I furthered my knowledge in that space by participating in cultural learning hosted by a local First Nation, the Algonquins of Pikwakanagan, who integrated both historical awareness but also Indigenous ways of knowing, foodstuffs and natural products. That’s a particular area of interest to me.
One of the examples that has impacted our oversight is our work under the Independent Environmental Monitoring Program. That’s a program we do that independently supervises and takes samples from publicly accessible locations around nuclear facilities and runs them through our CNSC laboratory to assess for the presence of any contaminants. Working closely with host Indigenous nations, we identified specific foodstuffs and participated in the collection of samples. We identified wild rice, for example. We also collect the results of fishing and hunting exercises and offer to sample and assess those for any potential radionuclide content.
That’s a direct example of where we have taken Indigenous knowledge and worked collaboratively with it. We have hosted a number of visits to the laboratory so Indigenous nations can see how we actually process those samples through the analytical process.
Indigenous knowledge is also taken in during our formal commission proceedings. That is when the independent commission hears from interested parties, including Indigenous nations and communities, and receives their input directly, both through public proceedings and also, in more recent cases, through in camera sessions, where Indigenous nations, at their request, can share their Indigenous knowledge in a safe and secure space, which is then factored in and protected accordingly. It is factored into the decision making of the commission in granting their licences.
Senator Greenwood: Thank you.
Senator Prosper: Thank you to all of our witnesses. I have a couple of questions.
Ms. Filiatrault, thank you for your testimony and for sharing your experience. I can only imagine the frustration that your organization faces when things are not coordinated and aligned more specifically with the federal processes that are involved and impact your assessment process under, I believe, the NIRB, as you mentioned.
You mentioned the idea of early engagement and transparent processes. It is something that I have heard often used within the context of consultation. I am curious if you can elaborate on best practices associated with early engagement and those transparent processes. That is my first question.
Mr. Moses, thank you for your evidence. You mentioned free, prior and informed consent, or FPIC, and how your commission is guided by UNDRIP. You also mentioned early inclusiveness, but you also mentioned how FPIC is sought from communities. I would imagine there is a process associated with the determination on FPIC. I’m just curious if you can expand upon the definition in terms of what FPIC means from the commission’s perspective.
Maybe we’ll start with Ms. Filiatrault, and then we’ll go to Mr. Moses.
Ms. Filiatrault: Thank you for your question. There are various aspects of early engagement, but the fundamental component of early engagement is a requirement that we put on industry and the proponents and how they engage. There are two aspects to this. One is how we build consistency and transparency and accountability for the industry to do early engagement. We are working towards the development of public engagement guidance documentation that will support how best in Nunavut specifically to support early engagement.
From an early engagement point of view, there is also an opportunity here with devolution. The jurisdiction that we are in is still fairly new and ever evolving, and the pace at which Nunavut is evolving is unprecedented. It is an honour to be a part of that. But with respect to the transparency that we as an organization and as an institution of public government are responsible for getting to every Nunavummiut person — we represent 25 communities over 2 million square kilometres — early engagement and how you do that and the realities of how you implement that can be a challenge.
However, we as an institution of public government also have an obligation on education and to inform what we do, how we do it and how it fits into what is considered the integrated regulatory process in Nunavut. When Nunavut was created in 1999, we branched off into silos of the process, and engagement was done individually. With devolution there is an opportunity to re‑engage and work in a coordinated fashion to get early engagement and also education and outreach initiatives, which we are looking at right now strategically, not just individually within the institutions of public government, or IPGs, but also at a federal level. We are looking to coordinate with the Government of Nunavut, the territorial government, the regional governments and community representatives to try to build that transparency and that outreach.
Senator Prosper: Thank you.
Mr. Moses: Thank you very much for the question. I wish there was a simple answer. FPIC is complex, and I know this committee is very seized with exploring what that means in practice. I’ll answer maybe from a personal perspective, and then I’ll ask my colleague Adam to speak about how we put it into practice in our regulatory processes.
First of all, if you look at each of those words individually within FPIC and unpack what each word means in practice, it helps guide how to approach the concept of FPIC. “Free” to me is about allowing nations the opportunity to explore and understand and bring their insights in a way that follows their own practices, laws and cultures.
One of the advantages of our regulatory system is that it is an objective-based regulatory system for nuclear energy, protecting the environment and health and safety of individuals. It is not prescribed, which allows us to adapt those processes in many ways to accommodate and align with the laws and practices. We are still learning in that regard. In every commission proceeding we hold, we work with nations and communities to understand how they would like to participate in that and engage with us. In some cases, communities have well-established protocols. In the What We Learned Report we just published, we included a couple of examples of publicly available protocols that we work with the nations. In other cases, they are still to be developed. In our work with Kebaowek First Nation, following Justice Blackhawk’s decision, for example, the first stage of that work was the community developing their own law, which I believe they referenced in earlier testimony, which guides interaction with the community for future proponents.
“Prior” is — and we have heard it before — that early engagement. It starts well before you enter into a regulatory process. We have an advantage in the nuclear sector. Proponents and governments who are exploring nuclear energy tend to make that known early, before they have made decisions on locations, technologies and approaches, and that allows us to initiate outreach and information sessions to introduce us to new communities who may not have dealt with the nuclear sector or with the CNSC in the past and to continue that relationship building as a life-cycle regulator through the entire life cycle.
It is a long game in the nuclear sector: early-stage planning through the operation, decommissioning and eventual abandonment of those facilities. That early engagement is so critical to establishing and starting those relationships on good footing.
Regarding “informed,” the nuclear sector is a complex world. We have 1,200 PhDs, scientists and experts in all sorts of domains related to nuclear energy in our organization. Nations and communities don’t have that luxury of expertise. So being open and transparent, working with them, understanding their concerns and trying to bridge between the Western science that we know and the Indigenous ways of knowing, as I spoke about earlier, are ways to help ensure that Indigenous nations feel informed as they enter into our regulatory processes.
“Consent” is allowing the nations to follow their own protocols and ways of making their own decisions within their communities and giving them space to share that and feed that into our decision-making processes within the Nuclear Safety and Control Act.
Adam, I think I went on a little longer than planned but feel free to add some context.
Adam Levine, Director, Indigenous Consultation and Engagement Division, Canadian Nuclear Safety Commission: Thank you. Just quickly, when we are doing this in practice with nations, it really starts with the relationship. As a life-cycle regulator, we have that ability to build those relationships and trust. Those are real, genuine relationships and not just saying that in passing; it is a real commitment. Those processes and these projects are complex. There are a lot of issues to unpack. When you are representing an agent of the Crown, it comes with a lot of weight. As we heard earlier, you have to understand when you are coming into that space what that means and carries and you have to understand that history. It is a lot of preparation on our end as CNSC staff and building an understanding with communities about the nuclear sector and what it means in their territory for them to help make the best decisions possible collectively.
Then what we try to do is work on each issue, concern and potential impact and try to reach consensus. We are trying to help make sure the nations, as Colin indicated, are well informed and get the best objective science and information about the projects and their potential impacts on their territories’ rights and their communities and cultures and then work through those issues with the proponent, ourselves, other departments and agencies and the nations and their advisers to really get down to what the key issues are, how we can resolve them and how they can be mitigated and addressed to try to go through this process. Where we end up, which is our hope, is a joint recommendation to our independent commission. If we have a nation-to-nation view of it and are looking at it from the same way, coming at it from maybe different perspectives but have reached consensus, then we can have a really solid recommendation to our commission that brings us together and not apart and avoids that conflict where possible.
It takes a lot of work and effort, but it is definitely what creates sustainable long-term relationships and decisions.
Senator McCallum: Thank you for your presentations.
I wanted to go back to the integration of Traditional Knowledge. I have worked with communities across the country that have experienced environmental racism. I’m looking at how you address nuclear waste. That’s one of the big concerns of people. At Chalk River it was put on the land. Indigenous and non-Indigenous people were very concerned about it, but it still happened.
As a commission, do you have a mandate to consult? Some do — tribunals and others are given that mandate — but sometimes in limited ways, so I’m curious about your mandate.
Mr. Moses: Thank you for that question. Maybe I’ll answer the easy part first. The second part of your question was around whether we have a mandate, and the short answer is yes. In practice, because of the Constitution of Canada, within our act it identifies the commission as being an agent of the Crown. That clear articulation within our law assigns us accountability for consultation within the scope of our work and activities.
Being a life-cycle regulator and the sole nuclear regulator, although we do collaborate with other regulatory agencies that have domains of oversight, we tend to be the principal party for consultation around nuclear projects. That formal designation in our act, in practice with the work we do and the fact that we’re a life-cycle regulator, means we do have a mandate for consultation. It’s a mandate we take seriously.
With respect to your question around waste, you spoke about the Chalk River facility. Chalk River Laboratories is a long-term nuclear research laboratory north of Ottawa. They were established, essentially coincident with the establishment of our predecessor, the Atomic Energy Control Board, in the 1940s to research nuclear technologies, and that research continued over many decades.
As part of that work, before the risks around radioactive and nuclear material were known, there was an accumulation of waste. The first stage for us and our first concern with respect to waste is ensuring that it’s currently managed properly and safely in a way that mitigates risks of any contamination being released into the environment and that it’s contained and managed appropriately. However, there is also a need to look at a long-term solution for that waste.
At Chalk River Laboratories, there was a proposal to look at a low-level waste storage facility. A proposal was put forward for a near surface disposal facility for permanent disposal, and there was a long regulatory process to give consideration to that. I alluded to the earlier Blackhawk decision, which gave us further guidance on how we actually apply the UNDRIP principles in our regulatory processes. So we have lots to learn through that regulatory process, and we continue to learn as we go through that.
When we look at those facilities — and we have one under consideration in Northern Ontario, for example, right now — we look at the measures, mechanisms and practices that are in place to ensure the continued safety of those facilities.
In our consideration, engagement and consultation activities, there is clearly concern, as I would have and do have, around those facilities. We wouldn’t exist if there weren’t risk associated with nuclear activities. That’s why the Government of Canada established our organization.
Our mandate is to ensure that those risks are appropriately managed and to be responsive to the input we receive and the concerns we hear from communities when we do that consultation around those facilities so we can ensure that any concerns are informed but also that they influence our own regulatory oversight and activities.
In certain facilities, for example, we collaborate on that oversight. Through our funding programs, we support guardian programs, where nations have members of their community present on-site at those facilities to learn about the activities and provide feedback and share with the community what they learned and provide that sort of independent oversight, as an example.
Senator McCallum: With your mandate, you have been given the ability to consult, but, at the end of the day, the federal government has to accept it. They have the ultimate responsibility. It’s the same with tribunals. It’s the same with other groups. How do you engage with the federal government?
Mr. Moses: One of the tenets of international nuclear safety is the independence of the nuclear regulator. That’s encoded into our legislation. That empowers, in fact, the commission to take licensing decisions on these nuclear facilities.
When it comes to a licensing process, they are completely independent from the government in making that determination, but, as I mentioned, as an agent of the Crown, they have that accountability as part of that determination to assess whether the formal duty to consult has been triggered and whether it has been met in the context of their consultations. So they have that independent empowerment to make that decision.
As part of the earlier processes on certain facilities that are subject to other acts, such as the Impact Assessment Act, we also work with the Impact Assessment Agency through their process under that act to assess the potential impacts of those facilities. That needs to be concluded and a decision made before we move forward with any licensing decision on those projects.
Senator McCallum: Thank you.
[Translation]
The Chair: Thank you to our witnesses. My questions are about accommodation.
Do you have any examples of specific lands where it was decided that a project would be developed in your sector and where a decision was made that the project would be carried out on a given land? Are accommodations made based on the elected officials or leaders at the time, or is it for the entire lifespan of what nuclear can bring to the territories? That’s my first question.
My second question is this: Can you give us examples of communities that have accepted or have anticipated concrete examples of accommodations without necessarily accepting them? Does it come from different departments or from you? That would surprise me. I would need concrete examples of what accommodation is or what accommodations are to include them in our report.
Mr. Moses: Thank you for the question. I’ll start at a more general level and ask my colleague to expand on my answer with concrete examples.
Accommodations can take all kinds of forms. Mr. Levine talked about our process for exploring concerns, potential impacts and mitigation measures, and that is where we can identify specific constraints and obligations. These conditions can then be included in a regulatory agreement and in the licence issued by the commission. For example, the commission includes compliance conditions and issues the licence with those conditions. Our compliance program includes overseeing the implementation of the mitigation measures. For example, a new condition of licence has been established that holds licence holders accountable for the commitments they have made to Indigenous groups.
Studies have made it possible to oversee certain measures. Including these conditions in a licence imposes a legal obligation on the licence holder for the duration of the licence.
Mr. Levine: I will continue by providing some details on the examples for accommodating Indigenous communities.
In our case, it largely falls on the shoulders of the licensees or proponents, because it’s their projects. As we heard earlier this morning, engagement and relationships between project proponents start earlier than for us as a regulator. In relationships with proponents, we can identify issues that are really important for communities, such as jobs, commitments on environmental assessments, lessons learned from Indigenous knowledge and ways to include them.
[English]
The Chair: I know that there is no more lake, river or forest. What is the accommodation? I ask because it’s for a long, long time. Do you have examples of other departments saying, “We’re the ones involved because there is no more forestry or the caribou was affected” and so on? Is it very short, or is it during the life of —
[Translation]
— nuclear projects or nuclear repositories, rather.
[English]
We will now go forward with Ms. Filiatrault.
Ms. Filiatrault: Thank you, Madam Chair. I just want to jump in a little bit because there are a couple of examples I can give where there has been accommodation in relation to engagement and consultation, as well as the misalignment that happened in Nunavut. For example, when the board issues its decision in terms of conditions and makes its recommendation to the responsible ministers, it’s after that fact that further consultation engagement is done from a perspective of the duty to consult.
In several instances, when the responsible ministers refer their final determination to the board, they will include recommendations to — I’m going to use a concrete example — develop a cumulative effects framework for the territory and for that project.
That is a policy and a standard practice type of recommendation that really shouldn’t be imposed in a project-specific manner. The board loses its flexibility to create and improve its policy standards. After it has been imposed on a particular project or a particular proponent, they are then subject to trying to achieve compliance and work in cooperation with the development of a policy while they are trying to operate their mine.
Similarly, a responsible minister will come back and recommend the implementation or establishment of a monitoring committee. The obligations for monitoring are already legislatively set to be a responsibility of the Nunavut Impact Review Board. You have a responsible minister coming back and trying to accommodate rights after the fact, saying, “Please set up a special monitoring committee.”
We should hold the responsible authority accountable for implementing their mandate. If they are not doing it effectively, then re-emphasize that and provide the support needed to be able to do that, versus creating duplication and then trying to accommodate, thereby creating additional work effort in areas where there may not be the capacity across the boards to be able to accommodate that.
[Translation]
The Chair: The list of senators has grown, so I’ll give you a few seconds if you want to add anything. Otherwise I’ll give the floor to my colleagues.
Mr. Moses: I would like to give you a specific example. Construction and site preparation have recently been authorized for two uranium mines in northern Saskatchewan. The projects will have a potential impact on caribou. At the time of the consultation, we worked with nations to understand the potential impacts, and we also worked with Environment and Climate Change Canada about applying the Species at Risk Act to identify potential risks and minimize impacts, including compensation, for example. Those conditions have been included.
The Chair: Thank you.
[English]
Senator Clement: Thank you all for your testimony. I want to come back to your exchange with Senator McCallum. I’m an Ontario senator, and that Ontario case is important. I would like to hear you say more about your specific take-away from that case involving the Kebaowek First Nation and nuclear waste.
I would also like to hear you say more about this listening tour. You’re speaking about life cycles and a long period of building relationships. You went on a listening tour, and you heard the criticism that you need more work on cultural awareness. So what is your plan in terms of responding to that case, and what is your plan in terms of responding to those criticisms of your organization?
Mr. Moses: Thank you very much for the question. First of all, with respect to that specific facility, as was alluded to, the commission made a decision on that, which was appealed to the Federal Court of Appeal. There was a decision released that provided important guidance, not just for the Canadian Nuclear Safety Commission but the federal government as a whole in terms of the application of the principles of UNDA. As part of that exercise, one of the key directions from the court was to go back and work with the Kebaowek First Nation through a more robust process that is better adapted to their own practices, laws and knowledge. That’s what we have been doing for the last two years.
The court gave us a deadline to complete that work by September 2026. We are close to being on track for meeting that deadline, after which the commission will hear the evidence that we gathered in the context of our work with the community and the proponent. It will also hear from the proponent and, more importantly, from the Kebaowek First Nation about what they have gotten out of that exercise and their input to help inform the commission’s decision, after which they will be asked to reconsider that matter.
You asked what we learned from that process. When the initial decision was issued, it was very soon after the passing of UNDA. The commission looked at that question and the commitment for an action plan and recognized that that action plan was still in development. Ultimately, they made a conclusion, which was outlined in their reasons for their decision. In hindsight, when we look back on the practices we undertook there and what we have learned through this new exercise, there are many ways that we have since adapted our processes and practices.
A specific example of that also came out in the context of your question on the listening tour, which was the way that the commission proceedings are held with respect to this forum. The commission meetings were also quite a formal process. We had the commission members sitting on a podium. Questions were directed to the president and not to the participants in the proceedings. It was quite a formal process, which was intimidating to participate in. It was intimidating for me as a member of the commission staff, so you can imagine that it would also be intimidating when nations come to share their views, particularly if those are views are contrary to other views being expressed. It was a difficult process.
The commission has looked at how to make that more conducive to participation. One of the things they did was to get off that podium. They adopted something that, although it’s not a full round-table arrangement, definitely brings them to the same level, bringing everybody who is participating in that process to face each other so that their voices and views are better expressed.
They have also introduced cultural elements into their proceedings. At the recent licence to construct for the Darlington New Nuclear Project, they worked very closely with the host nations, the Michi Saagiig Nations, to bring in certain protocols. For example, they took earth from the site, and that earth was brought into the proceedings. Throughout the entire testimony during the commission proceedings, that earth heard the testimony that was shared with the commission. It was then returned to the site. That’s just as an example of some of the practices they have adapted.
That, to me, is the most important lesson learned. It’s what drove us to launch that listening tour, that recognition that our formal, western and legislative processes are really not conducive to engagement and to hearing voices and bringing voices forward. It’s a very important and necessary part of our regulatory process, but there are many ways we can make that more welcoming, as an example.
Senator Clement: Thank you.
The Chair: We have another senator that added her name to the list, so I have three more senators. Is it okay if you ask all your questions and then the witnesses try to respond? Or I’m going to have to cut you off, and I don’t like to do that.
Senator Karetak-Lindell: We know that Bill C-5 has launched a 30-day consultation on major projects reform. I’m wondering how that impacts your process of consulting. With NIRB, you already have the mandate to consult in Nunavut. How does this affect your thorough consultation process when there is a 30-day consultation time limit and they have created a Crown consultation hub? Does that conflict with your processes? Thank you.
Senator McCallum: I wanted to ask my question to Ms. Filiatrault. I’m the critic of the modern treaties, and I looked at the first two in 1975, which were with Quebec and Nunavut. Those two remain the most successful of all the modern treaties that exist.
You remain successful and self-determining. You had said that there were policies, an implementation plan, memoranda of understanding, or MOUs, and other guidelines. Would it be possible for us to get any material that you could share on what makes you successful? Thank you.
Senator Greenwood: My question is a bit of curiosity but also a bit around the preparation of people to participate. Earlier in other testimony, we heard about the importance of people being prepared to listen and participate. They were speaking in part about First Nations and Indigenous Peoples but also about government and agency people.
When you were telling the story about bringing the earth in, did people understand the significance of bringing the land in and then taking it back? That is a very sacred and spiritual piece that was shared. That is my understanding. When we share those things from communities, I wonder whether people really understand how significant that is to them.
It makes me think of when people interpret the treaties. There is always the interpretation of treaties from the community perspective and the interpretation of treaties from a government perspective. So when I see that, I wonder about the interpretation of what that is and how people are prepared to participate in a good way.
That’s my question. I don’t want you to answer now, but please contemplate that. If you want to give something written, that would be great. Thank you so much.
The Chair: I think you witnessed how blessed I am with my amazing colleagues and their knowledge and expertise. I’m sure we all had that little reaction when you mentioned the earth. Thank you so much, Senator Greenwood.
Regarding the last three questions and comments, you are more than welcome to provide us with a written response. At the end of the day, as you often say in English, how can we present a report to the federal government, who is doing an exercise to improve their guidelines, to make sure that voices or initiatives that have recommendations that work well are heard?
If you want to have the last two minutes to conclude, the floor is yours.
Ms. Filiatrault: With respect to Senator Karetak-Lindell, thank you; I appreciate your question. With respect to Bill C-5, just to clarify, NIRB remains the impact assessment authority in Nunavut. The federal impact assessment doesn’t apply in Nunavut. Consequently, the Building Canada Act does not apply directly in Nunavut. I think this is fairly unique. But NIRB still needs to remain aware of the dynamic developments in relation to what is happening at that national level, and we’re taking that into account. Does it conflict right now with our process? The answer directly is no.
With respect to Senator Greenwood’s questions related to modern treaties, yes, we are very honoured that Nunavut is a success story. With respect to the strategy that we are using not only locally but regionally, territorially, federally, et cetera, in relation to all of the various mechanisms related to education, outreach, coordination and streamlining and the success related to the policies, the MOUs and all of that information, we recently, at the request of Minister Chartrand, provided her with a ministerial briefing note that spoke directly to a lot of these initiatives that we are undertaking in the specific context of a currently considered project, the Grays Bay Road and Port project. That ministerial briefing can be provided as well as samples of all of the other initiatives, MOUs, et cetera. We are an institution of public government and can provide that to the committee.
With respect to Senator Greenwood’s questioning regarding people and participation, we are also doing a lot of things with respect to project and strategic outreach in relation to how we get to the community and get effective contributions. In fact, we do community round tables that target the various demographics. I think it’s important to focus on not just engagement but also who we are engaging. In Nunavut, the young jurisdiction is important for us. One of our core focuses across the institutions of public government, or IPGs, is how we engage our youth in our processes. We will definitely follow up with a written submission to the committee on how we do that with everyone, from youth, women and Elders.
The Chair: Thank you very much. Thank you, Ms. Filiatrault and the cute dog behind you. That is very unique, just so you know.
[Translation]
Thank you for taking the time to be with us. We could have listened to you more.
Ms. Filiatrault: Thank you.
The Chair: However, [Technical difficulties], of course, to receive the examples you mentioned in writing. Thank you.
That officially concludes the meeting.
(The committee adjourned.)