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Standing Committee on Indigenous and Northern Affairs


NUMBER 104 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Thursday, April 26, 2018

[Recorded by Electronic Apparatus]

  (1530)  

[English]

     We are here at the Standing Committee on Indigenous and Northern Affairs at the Parliament of Canada, and we are talking about Bill C-262, an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
    As we sit here today and we're talking about some of the truths and we're in a process of reconciliation, it's important to recognize that we're on the unceded territory of the Algonquin people and that this is a live process that we're still working our way through.
    We have two groups for the first panel. You'll get up to 10 minutes. However you want to split it up is up to you. I'll give you signals before your time is up. Then we'll go into rounds of questioning.
    We're going to start with the First Nations Major Projects Coalition, Chief Corrina Leween.
    Welcome. Please go ahead.
     First of all, thank you, Madam Chair.
    I am Corrina Leween. I am the Chief of the Cheslatta Carrier Nation. Our territory is situated in a semi-remote location in the north-central interior of British Columbia. Since 2015, I have served as Vice-Chair of the First Nations Major Projects Coalition, which is the point of view I will be speaking from today. Before I begin, I also want to acknowledge our presence today on the traditional territory of the Algonquin people.
    With me today are two members of the coalition's technical support team; Niilo Edwards, who is our Executive Director; and Aaron Bruce, who is our Legal Adviser and also a member of the Squamish Nation in British Columbia. Mr. Edwards and Mr. Bruce are able to respond to questions the committee may have about the coalition's technical work.
    I want to begin by thanking the committee for this opportunity to provide comments on the consideration of Bill C-262. In particular, I want to thank Mr. Saganash for his efforts to bring this proposed legislation forward. I also want to recognize Minister Jody Wilson-Raybould and the Government of Canada for indicating their support for the consideration of this bill.
    Today I see a historic opportunity for indigenous groups and communities to collaborate with other orders of government to create a better and shared future. Bill C-262 represents an important break with the past and a bold step into the future. UNDRIP is a tool of empowerment and a means of taking control of our destiny as the original owners of our traditional lands. This was not always the case. Our past is what has brought us here today, but it is our actions today and in the weeks, months, and years ahead that will give us a chance to set a new path, a path of our choosing.
    I will start by outlining the work and the structure of the major projects coalition, which our nations established to convert our legal and constitutional rights into financial well-being and independence. Established in 2015, the coalition is a first-nations-led response to addressing community-level business capacity gaps. What started as a group of 11 first nations looking for equity ownership in major projects has grown into a first-nations-led organization of 40 elected and hereditary first nations. We have developed a comprehensive suite of economic and environmental technical models that can be used to benefit our communities.
    Our mandate is non-political and business-focused. The coalition is a project-agnostic body that provides access to technical services and capacity support to our members upon request. The coalition's structure makes it possible to provide technical services to a large number of first nations dispersed over a wide geographic area. Services designed to support informed decision-making are provided to coalition members free of charge due to the funding received from the governments of Canada and British Columbia.
    Our structure as a nation-based and community-driven organization has attracted the interest of first nations in other parts of Canada. We are building towards becoming a national initiative. At our March annual general meeting, members of the coalition moved to create an extra-provincial caucus, enabling first nations in other parts of Canada to join the coalition. The coalition and its services are, by design, inspired by the United Nations Declaration on the Rights of Indigenous Peoples. We have submitted a technical brief to your committee that compares key pieces of the coalition's work with articles of that declaration.
    While much has been said at this committee about the political and legal considerations concerning Bill C-262, we are here to speak to issues that highlight its practical application at the community level. I believe discussions of this nature are needed to shape the implementation of this legislation.

  (1535)  

    The coalition's work gives examples of how the government can structure its interactions with indigenous governments to live up to the principles of the declaration. These interactions should, and rightfully so, challenge the status quo and bring about dramatic and substantial change. The presence of the coalition shows that UNDRIP matters in the lives of indigenous people.
    The prospects for significant change also generate fear of the unknown. Consider the principles of free, prior, and informed consent. The coalition explores the principles in the context of major project development. It provides a foundation for shared decision-making processes between indigenous governments, other orders of government, and proponents backing development within traditional territories.
    We often hear the Prime Minister and members of his cabinet say that the environment and the economy can be balanced. We can get to that balance by working together, but it is the approach to working together that matters the most.
    Our tools and models ensure that the traditional and the cultural interests of our members can also be balanced with our commercial requirements. We can use financial prosperity to support our self-determination and self-reliance. This work is organized by the coalition through three cornerstone process documents: one, a model ownership tool kit; two, an environmental stewardship framework and project assessment standards document; three, project identification and capacity support criteria document containing project-scoring criteria, which is in essence a first nations definition of what a major project is to our members.
    Government and project proponents need to understand that this work is currently under way. We are undertaking some of the work necessary to administer our own affairs and advance our own futures.
    The Government of Canada is making comparable efforts through such measures as the rights and reconciliation framework and the sunsetting of the Department of Indigenous Services. That requires the indigenous groups and communities to develop the sustained capacity to fully develop their own decision-making processes. Our nations have and they are ready to act.
    We also have to inform government about our needs and provide them with a road map to developing these collective skills. Likewise, governments can assist the process by engaging groups like the coalition in the technical discussions. These often take place at the political level.
    We need to move these partnerships at the operational level within departments and central agencies. This openness to collaborate must become commonplace across government departments and central agencies, particularly as Bill C-262 is implemented.
    In closing, we need to exercise tolerance and understanding. There will be missteps along the way by our nations and by other governments, but if we believe in UNDRIP, we will accept occasional errors, provided the spirit of collaboration remains strong. UNDRIP changes everything. It provides, finally, our communities with the opportunity to move forward at lightspeed. We call on governments to support our efforts to capitalize on the new reality. We ask them to collaborate with us to build on UNDRIP's potential: a new future, one based on indigenous rights, autonomy, and prosperity. It's within our grasp.
    We want to see UNDRIP synchronized with Canadian laws and legislation. Our communities want control of their future. Bill C-262 is a major step in the right direction.
    I thank you for listening to me, and I look forward to your questions. Mahsi cho. Awitza.

  (1540)  

    Thank you.
    For our second presenters, we have MTI from New Brunswick.
    Chief Rebecca Knockwood and Derek Simon, please go ahead.
     My name is Chief Rebecca Knockwood and I am the Chief of Fort Folly First Nation, and the Co-Chair of Mi'gmawe'I Tplu'taqnn, MTI, representing the Mi'kmaq residing in the province of New Brunswick. Beside me, I have Derek Simon, Legal Counsel for MTI.
    I would first like to acknowledge that we are on the unceded territory of the Algonquin peoples. I wish to thank the Algonquin Nation for the opportunity to be on their territory.
    I would also like to thank the Creator for providing us with the ability to be here today to discuss this most important issue facing our indigenous peoples and facing Canada as a whole.
    The Mi'kmaq are the indigenous people of what is currently known as the Atlantic provinces, parts of Quebec, and parts of New England. We are signatories to peace and friendship treaties with the British crown, to which Canada is now a beneficiary. We have never ceded title to our territory.
    First, the Mi'kmaq of New Brunswick adamantly support Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples act. We are most thankful to the Honourable Romeo Saganash for submitting this private member's bill in furthering the realization of indigenous rights in Canada.
    In considering this bill, we would bring the committee's attention to the following most important issues.
    The first is free, prior, and informed consent, which I will refer to as FPIC. Since Canada withdrew its objector status to the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, in 2016, there has been much concern regarding Canada's adoption of UNDRIP. Specifically, articles 19 and 32 identify the necessity of free, prior, and informed consent and say that Canada must consult with its indigenous people to obtain FPIC where they wish to adopt and implement legislation that will affect them or where Canada wishes to approve any project that will affect indigenous lands or resources.
    There have been concerns raised by many that, if Canada is to adopt UNDRIP, then these specific provisions would provide indigenous people with a veto over legislation and project development.
    FPIC is not a veto. FPIC means that the government must consult with indigenous peoples with the goal of obtaining our consent to use our lands. Where they cannot obtain the consent of the indigenous groups, government must justify its conduct following a framework set down by the court. This is consistent with what the Supreme Court of Canada has said on this issue numerous times, most recently in the Tsilhqot'in decision in 2014. FPIC also means that indigenous people have a right to say no to projects or legislation that affect our rights or our lands.
    This approach is consistent with our rights of self-determination, and UNDRIP's identification of FPIC provides a strong framework for reconciling indigenous rights within the larger context of Canadian society.
    Under article 46 of UNDRIP, Canada has the ability to limit the rights set out in UNDRIP where such limitation is "necessary...for...meeting the just and most compelling requirements of a democratic society.” This is the justification test that is similar to what government currently operates within with respect to the section 35 constitutional rights of indigenous peoples. As has been identified by the Supreme Court of Canada, section 35 aboriginal rights can be infringed upon, so long as Canada can justify the limitation based upon various things, including a legislative objective, conservation, safety, etc.
    Thus, it is clear that there is no veto power for indigenous people contained in UNDRIP, but rather an approach that is consistent with the existing section 35 constitutional framework. That approach is also consistent with our peace and friendship treaties, which require Mi'kmaq consent for use and occupation of our lands.
    What UNDRIP does is clarify Canada's existing legal obligations to indigenous peoples, including making clear the circumstances in which consent is required and the nature of that consent.
    This is important, because while the courts have made the legal requirements clear, legislation and policy have not necessarily kept pace. Environmental laws and regulatory processes often treat indigenous peoples like stakeholders rather than rights holders, and government does not always approach the consultation process with the goal of obtaining consent, leading to costly disputes and litigation with indigenous peoples. We have seen this in our territory, with protests over fracking, disputes over the Sisson Brook mine, and the derailment of the energy east review process. If government had approached these projects with the goal of obtaining Mi'kmaq consent for these activities, rather than simply going through the motions of consultation, outcomes might have been different.

  (1545)  

     Bill C-262 creates a legal requirement and a process for Canada to ensure its laws are in compliance with UNDRIP. However, since policies often influence how government conducts its day-to-day business, we would recommend that the words “and policies” be added after “laws” in clause 4, and that policies be included in the national action plan required by clause 5.
     Another important aspect of UNDRIP is its recognition of our rights to our lands, territories, and resources, and our right to readdress those rights. They have been lost. While these rights have already been recognized by the courts, articles 26 and 28 affirm these rights, and article 27 requires Canada to develop “a fair, independent, impartial, open, and transparent process”, having regard to our laws, customs and systems, to recognize and adjudicate our rights pertaining to our lands, territories, and resources.
    Although the federal government has long recognized that its comprehensive claims and self-government policies do not adequately address the needs, aspirations, and realities of the Mi'kmaq as signatories to the peace and friendship treaties, we have struggled for some time to come up with an effective alternative to address the implementation of our aboriginal and treaty rights and the recognition of our aboriginal title.
    Recently, the Mi'kmaq of New Brunswick, like our brothers and sisters in Nova Scotia, Quebec, and Prince Edward Island, have been working with the Government of Canada and the province to develop an effective process for implementing our aboriginal and treaty rights. This is called the rights implementation approach to negotiation. Much work still needs to be done, particularly on finding a way to achieve due recognition of our title. We would prefer not to have to resort to lengthy court battles in order for our title to be recognized, but we still lack effective mechanisms for addressing this outside of the courts.
    The adoption of the UNDRIP bill is helpful as it creates a legal framework to ensure that our right to an effective process is grounded in law, and not just in policies, which can change from government to government. Beyond adopting this bill, we have suggested a number of specific actions the government can and should take to more effectively address our rights in our submission on the government's proposed rights recognition and implementation framework as well. We will provide the committee with a copy of that submission.
     Wela'lioq for listening to me today.
    I welcome any questions you may have.
     Thank you so much.
    Questioning starts with MP Mike Bossio.
    Thank you so much for being here today and providing your testimony. The efforts you put into providing this testimony are greatly appreciated.
    A number of witnesses have come forward here and have talked specifically about FPIC. I think Professor Dwight Newman framed it best when he said that there are three approaches right now in which FPIC is viewed. The first interpretation is that it's enough to seek FPIC in good faith without necessarily obtaining it. The second is that it's possible to move away from talking about consent itself as long as one has the right type of consensus-oriented process, or what some have called “collaborative consent”. The third, of course, is an outright veto.
    To both of you, in what way do you ascribe to the FPIC interpretation provided by Professor Newman? Or do you have your own interpretation as to what FPIC means and the implications it could have?
    Chief Leween.

  (1550)  

    The major projects coalition is a non-political body that provides technical supports to our individual communities, who are 40-strong right now. I won't speak for any of those communities as vice-chair; I have to wear two hats here. What we do is provide the tools that are necessary for them to make their informed decisions as to what FPIC is. Their decisions regarding veto are their own.
    Okay.
    Chief Knockwood.
    I'll let Derek answer that question.
    I think the view of the Mi'kmaq chiefs is that it's a requirement to seek consent in good faith. I think that's what is often lacking in the consultation process, at the moment. Government and industry are not entering into it with the goal of getting consent, at the end of the day. Good-faith efforts toward consent are what's required, in our view.
    It's kind of a “collaborative consent” type of approach, then.
    Yes. I think Chief Leween referred to it as being sort of shared decision-making, and I think that's the way we look at it as well.
    The Mi'kmaq view on FPIC is informed also by the treaties of peace and friendship, which contemplate a certain amount of shared stewardship and shared decision-making. Certainly, looking at it through that lens, it's a collaborative process.
    Do you think this is a potential flaw within Bill C-262, that there should be a definition of what FPIC is, or should we...?
    There's this argument we've heard here about the legalistic defined approach and then the nation-to-nation relationship approach—you know, the black letter of the law versus political will. Some say that you can't really have one without the other, and others say that it can happen concurrently; it doesn't have to be stated right up front; the black letter of the law does not have to come first, before we enter into UNDRIP and the nation-to-nation relationship that will ensue, in developing a rights framework and toward conciliation.
    What would be your view of that?
    Speaking as a lawyer, I think there's a risk in trying to be too legalistic and black-letter law about it in seeking to define FPIC through legislation rather than allowing that to be worked out as part of the discussion between indigenous peoples and the Government of Canada.
    Another professional lawyer, Thomas Isaac, came forward and spoke about this. He said that this is a deep flaw; that basically UNDRIP will blow up the legal conventions we've established over a generation, since section 35 came into being; and that, if we do this, the sky is going to fall.
    How would you address the concerns he has expressed?
     I don't think we agree there. We're very much of the view that it doesn't impose additional legal requirements beyond what already exists in a section 35 framework in Canadian law. It clarifies those obligations. It clarifies in what situations consent is required and then, obviously, the free, prior, and informed consent finds what consent needs to look like, but I think that's going to be a bit of a dialogue to figure out. It'll be part of the back and forth between Canada and indigenous peoples. I'm sure the courts will provide us with some guidance there as well. Lawyers love to have things legally defined, but I'm hesitant to try to put a strict legal definition to that in the legislation.

  (1555)  

    Mr. Amos and I are on the environment committee and right now we're studying Bill C-69, the Canadian Environmental Assessment Act. This, of course, is a key discussion as part of that act, what amendments need to occur to bring about that meaningful participation, that collaborative consent type of approach, and how we can put that within the act so it recognizes UNDRIP, and starts to work toward a rights framework.
    In going forward with Bill C- 262, I would assume you would agree that we need to ensure that, as we are going through these other acts, we develop a consistent approach across legislation so we can arrive at the place you're discussing right now.
    It's not just across legislation but across policy as well, and that's a point we made. The reality is that I think for many public servants, their marching orders on a day-to-day basis come primarily not from legislation but from policy.
    I'll give you an example. We deal with property dispositions by the federal government and the Province of New Brunswick, and a consultation process is set up for doing that. That policy came into force, I think, in about 2006, maybe 2008, and it's a Treasury Board approved policy. It was done pre-Tsilhqot'in, and so the government officials we deal with acknowledge quite openly that the policy doesn't properly account for title claims, for what the Supreme Court of Canada said about title in Tsilhqot'in. They've tweaked the process a little to try to take into account Tsilhqot'in, and they'll tell you they feel bound by the policy, but the policy, in their view, does not comply with the Tsilhqot'in decision.
    Having that built in is another important feature of the bill: that report and annual review, and making sure those kinds of policies are being reviewed and updated on an ongoing basis to take into account obligations under UNDRIP and new court decisions. Otherwise—
    Thank you.
    Sorry, I don't like to cut you off, because it's an important discussion, but we want everyone to have fair time.
    MP Cathy McLeod.
    Thank you. I want to pick up on two areas.
    I can appreciate that, no question, absolutely the work needs to be done to create a common definition in partnership with communities. We are legislators dealing with legislation. When you leave something as important as potentially three or more definitions interpreted differently across the country from person to person, community to community, I wonder if we're creating more challenges for ourselves rather than less, without doing that work to at least create a common, shared understanding of the meaning of FPIC.
    That's my first question. I leave it to both of you to respond to that.
    I believe we're heading to the implementation stage. We need to start looking at the implementation of all the new legislation that's at hand for our people back home. Again, being non-political in this arena, I believe it's up to our people back home to get the tools they need through capacity building, to understand the actual legislation on the table, and how they implement it within their communities.
     Our different communities are so diverse that we need to be able to acknowledge each specific need back home. Some first nations have the novelty—and I don't know if it's novelty and sometimes it's not—of a highway running through their community where economic development becomes available, and then you have the isolated communities that don't have that. For the major projects coalition to go into those communities and allow technical services where they would not normally have them, our job would be to go in there and give all the information to those communities and have them make their own informed business decisions, which would enable the capacity to be built to have self-sufficiency brought into their community.
     That's still leaving me with—which I think we frankly expressed upfront—some discomfort with proceeding forward until we.... I mean, as legislators, to not understand the implications to passing something....
     I think we all recognize UNDRIP as important, so what we're talking about is Bill C-262.
    How does the Daniels decision overlay into Bill C-262? Perhaps that is a question for the lawyers here.

  (1600)  

     Again, I think to reiterate Chief Leween's mandate, we're an organization that has a mandate to represent the technical interests of a group of first nations, not to get into the more political aspects of it, and so I will not answer that question directly.
    To follow up on Chief Leween's comments, if you really want to understand us, the best is that, in FPIC, this organization is the informed part, it's the information part, so we have a big interest in the implementation. We see the bill as a necessary step in order to have those conversations about implementation, and I think, at the political level, the conversations on what consent means will come about once this bill is passed.
    Mr. Simon, do you have anything to add to that?
    The Daniels decision told us a bit about the federal government's jurisdiction with respect to indigenous peoples, but it didn't really provide us with much more information on who is in an indigenous people or not, so it's sometimes misinterpreted as granting indigenous status to a much wider group of people, and all it really did was clarify that non-status and Métis fell under that federal jurisdiction in the—
    Section 35.
    Under section 91(24).
    I'm going to use a practical example, because you referred to Bill C-45. That's the marijuana legislation, a piece of legislation that clearly will be impacting indigenous peoples across this country.
     It calls for free, prior, and informed consent, so we now know, obviously, the first nations across the country, the Inuit, the Métis.... This is the ability of the Government of Canada to move forward with a piece of legislation needing informed consent. I know right now in the courts, the Liberal lawyers are arguing that that would completely fetter the ability of the federal government to move forward, because you overlay in Daniels how you get to any sort of place where you can do the appropriate work for free, prior, and informed consent with all the treaty and rights holders on something like a law of general application.
    To me, personally, all it is is just about coming and talking to the people. Get out and talk to the people. I know right now within New Brunswick, I don't have the ability to go and talk to the premier, to talk to the MPs and the MLAs. We don't have that, because they don't recognize—this is just me speaking—first nations people, really, in New Brunswick. We're an after fact there, so coming to us first and talking to us first about what's going on would be a good start.
    Thanks.
    Chair, how much—
    You have—I'm going to be generous—another 30 seconds.
    Thank you to the major projects coalition for the work you do. Being from British Columbia, I know that it's very important work, so thank you, and I'm sure in New Brunswick you do wonderful work also.
    Very good.
    The questioning now moves to MP Romeo Saganash.
    Thank you to our presenters, and welcome. Thanks for the support for the UN declaration as well as for Bill C-262. It's very much appreciated. Having travelled throughout the country promoting Bill C-262, I know this is also the desire of all indigenous and non-indigenous communities across the country, so you're perfectly in sync with the rest of the country on this one.
    I want to start with you, Chief Leween. I want to understand more in detail how your organization arrived at the position of using the UN declaration as the basis or framework for the work that you do on behalf of your members.
    I took note of all the expressions that he used about UNDRIP: that your work is inspired by UNDRIP; that it matters for indigenous peoples; that It's the new future; that UNDRIP is about working together, about collaboration and partnership, and so on and so forth.
    Were there difficulties or challenges in arriving at that position about using UNDRIP as a framework for the work you do on behalf of the coalition?

  (1605)  

    Thank you.
    As everything is unfolding, it just fit into what we were doing back home. Without actually knowing that we were using UNDRIP to get the work done, we were doing it already. It came to us as just a blessing—let's say that—because some of the work we do is directly impacted by UNDRIP, and the consent, to speak to your first question, that we get from our members has.... As I said, we grew from 11 to 40 in two years and we are now getting national recognition and interest from all over Canada in looking at our model as one that would work within their communities.
    There was no formal way in which we started implementing UNDRIP into our process at major projects coalition; it just happened.
    I hope that answers your question.
    Yes.
    Was there at any time a fear among your members, as a major projects coalition, about free, prior, and informed consent?
    We have fears in our communities anyway. Trust is a big issue because of all the things that have happened to our people historically: major projects in their territories, the inability to look at the environmental assessment process, the stewardship of the land. We had that fear. As we deliver our message, it's becoming clearer to the people back home, and as I said nationally, that we are an organization that can take some of the fear and mistrust out of their business decision, their ability to access capital, and all the technical services that they don't have and don't have the ability to get advice on.
    Finally, has the UN declaration helped in forging the partnerships that are required for major projects between your communities and governments and promoters?
    Absolutely. We're here in Ottawa now, and that's what we're doing: pounding the pavement to get in the door of government proponents. Back home we do the same, and we allow our community members access to the information that we gather. It has been instrumental in our accessing the technical services and the relationships among the provincial government, the federal government, and our proponents.
    Thank you.
    Chief Knockwood, you're right that Bill C-262 refers to laws strictly, which have to be consistent with the UN declaration in this country. You suggested that we add policies to that. I agree.
    The Prime Minister has talked in a speech about adding another element to laws and policies, namely operational practices, which have to be consistent with the UN declaration. An operational practice is, for example, when the Minister of Justice decides to appeal decisions that are in favour of indigenous peoples. That's an operational practice.
    Do you agree that we should also add operational practices to the bill?

  (1610)  

     Speaking as one chief, I would think that would be a great idea, to add operational practices, because there have been quite a few injustices done to our people. So that would work.
    Maybe to both lawyers, do you think that Bill C-262 adds clarity to everything? I remember the discussions we had back in the days of the early 1980s, when the Constitution Act, 1982, came into effect and the whole concept of aboriginal rights wasn't very clear to me. Do you think Bill C-262 improves on that clarity?
    Yes, I think it's our view, and it's in our submission, that it adds clarity by clarifying where consent is required and by putting that concept of free, prior and informed consent in there so the nature of the consent required is also clear. The Supreme Court of Canada has talked about needing to seek consent, but I think UNDRIP spells that out in more detail.
    Thank you.
    The questioning now moves to MP T.J. Harvey.
    Thank you, Madam Chair, and thank you to all our witnesses for being here today.
    I want to start with Chief Knockwood.
    I want to reference some of your earlier remarks regarding specific projects in New Brunswick. Being the member of Parliament from Tobique—Mactaquac, I have a very good working relationship with both Chief Paul and—
    Chief Ross.
    Yes, Chief Ross, as well as Chief Candice Paul. I think that we work collaboratively despite some differences of opinion on multiple subjects. I think that we overall work very collaboratively together, and in the spirit of collaboration we're certainly putting our best foot forward. You referenced the Sisson project, energy east, and fracking as three specific instances where we've had trouble in New Brunswick. I want to get your opinion on how you felt Bill C-262 could have played a more positive role in the development of any of those projects or how you feel that those projects were adversely affected by its lack.
    Okay, so with the three—
    Individually.
     I was going to sum them up together because they could be very clear together. I'll do Sisson mine, Sisson Brook, as well as energy east.
    When it comes to any projects within New Brunswick, the New Brunswickers divide themselves up, specifically the government. They still go by Ganong Line, which separates the Maliseet and the Mi'kmaq. The Mi'kmaq were never consulted when it came to Sisson mine. When it came to energy east, we had to do a lot of fighting to get consulted there. When it comes to fracking, from my understanding, the Mi'kmaq were never consulted. They were just put in there, and they started. That's why Elsipogtog had the fracking issue. If we had been consulted first and talked to, I think things probably would have been a lot different. Right now we're arguing with the province in regard to Sisson mine because they did ignore the Mi'kmaq. We're doing a TK study now that shows a lot of our Mi'kmaq people have hunted and fished within the areas of Sisson mine project as well as the energy east.
    My question is based around that premise. Having had numerous conversations with Chief Paul, and Chief Ross and Chief Candice Paul and others, there are differing opinions on that issue, but those would be the three communities that would be the closest to Sisson. I recognize the differentiation between the Maliseet and the Mi'kmaq in New Brunswick and how that's traditionally been separated. But the federal process concluded that one group would be adversely affected and one group would not be adversely affected. How do you feel Bill C-262 would have changed the outcome of that?
    I can also put that over to you, Mr. Simon.

  (1615)  

     I've been involved in that file directly.
    One of the big reasons they reached the conclusion that it affected one group and not the other is because they did an indigenous knowledge study for one group and not for the other. I recognize that's something that's being rectified in the proposed changes to the Canadian Environmental Assessment Act,. Again, if you're going into these processes with a view to obtaining consent, as opposed to simply going through the procedural steps of consultation, things like an indigenous knowledge study become of a higher order of magnitude.
     In that project, it simply wasn't considered important by either level of government, or the proponent, to fund an indigenous knowledge study for the Mi’kmaq, so there's no way of determining what the impact on the rights of the Mi’kmaq was, with respect to that specific project.
    From my limited knowledge of the project, even though it's in my riding, I would say that proximity to the mine site was also something that was taken into consideration.
    If a study had been undertaken—by the other group that felt that they were adversely affected, that hadn't been consulted—and had been taken into consideration, do you feel it would have changed the outcome?
    Yes. We've subsequently done an indigenous knowledge study for the energy east project and interviewed about 85 land users as part of that study, and it showed a significant amount of use in the area of the Sisson mine.
    The other thing that it didn't really take into account was... There's no question that the Maliseet Nation has more use in that area than the Mi'kmaq do, but because of the loss of that area, it's displacing Maliseet land users. Where are they going? Six kilometres across the line into the Miramichi watershed.
    It has a knock-on effect on the Mi'kmaq as well, in the sense that the loss of their hunting and fishing grounds in the Sisson mine area puts more pressure on the immediately adjacent Miramichi watershed.
    Okay. Perfect.
    For either of you, in your opinion, what would be the best next steps forward in creating that consensus, specifically in New Brunswick, towards ensuring that projects—with the proper consultation—do have the ability to move forward?
    I would say, talk to us first. The Mi'kmaq have been an afterthought in any major projects that have been done within New Brunswick.
    We're not here to hinder any work at all. We're here to work together with everybody. Maybe if they would come and talk to the Mi'kmaq people and let us know, it would make an easy transition. It would make everything a little easier.
    Perfect. Thank you very much.
    Thank you.
    Questioning will now move into the five-minute round. We'll go to MP Arnold Viersen.
    Thank you, Madam Chair.
    I'm sure those will be the short minutes that I always get.
    Thank you, Chiefs, for being here today. It's much appreciated.
    Chief Leween, could you outline a couple of the success stories that your organization has had, some of the major projects that you've been involved with?
    Currently, we're in the feasibility study stage for one of the major projects, a multi-million dollar project that we want to see happen within my territory as well three other first nations in the area. The success story there is that four first nations are getting together to actually talk about doing a project together. The main reason for the project is the environmental fix that this project can do for our territory, which is flooded yearly. Our graves are washed into the water. We want to fix that.
    The second is the economical portion of it: if it can provide jobs, if it can provide an economic benefit to the communities. That, in itself, is a success story.
    We're so new that we don't have any projects that we've already completed. This project that I'm talking about is 36 years on our desk, and it's finally growing legs and getting into the feasibility stage. That's the success that I can speak of in our community.
    That's not to say that there aren't other projects that we are looking at. There are a couple more projects that different communities in the northern area of British Columbia are speaking to us about, wanting to get the technical advice to head into the feasibility study.
    We may start to mushroom with projects in our territories, as they see this pilot project on the table, and where it's going to go.
    Niilo may want to add something to that.

  (1620)  

     Just briefly here, I will build on the chief's comments. What success looks like for us in this pilot project is to take the last three years of our work, our technical models, and begin to apply them in a capacity sense to get this project off the ground.
    While the project may impact a certain number of members of the coalition, the information is shared freely, so our entire membership can learn as we go and use those examples of success at home for whatever they may be faced with.
    Chief Knockwood, thanks for being here today as well.
    We've been supplied with these really cool, handy-dandy, pocket-size versions of the United Nations declaration, and when I look through it, I don't disagree with the whole idea that this should be part of the national discussion. What's interesting though is that we always talk about major projects. We talk about energy east, mining projects, and things like that, and yet I read that it refers to anything that affects our first nations.
    First nations have been a part of Canada since.... I think the word “Canada” is even a first nations word, so how do...?
    Do the people of your first nation vote in general elections? Would that be considered part of the free, prior, and informed consent when it comes to laws of general application, such as the marijuana legislation, the firearms legislation, or anything that we're dealing with in this place?
    Is it only for major projects that free, prior, and informed consent is part of that, or is it for all these other things that we deal with as well?
    Okay, I just want to clarify.
    When it comes to voting, not all our members vote.
    They do vote.
    Not all of them, though.
    Not all of them.
    Not all of them, no.
    If we want to make a change within my province, we have to get our people out to vote, but in regard to--
    Is that a conscious decision because they don't want to participate?
    It's just their way of thinking. They feel that they don't need to be governed. Back in the day, we were never governed by non-native--
    So it is a conscious decision?
    It is. We have people over my way who are still old school, who are still “back in the day”.
    In regard to your question, I would think that everything should be talked to...in regard to first nations because you said we were here; we were the first people.
    Anything--
    Well, what I said was that we built Canada together, right?
    Right, but anything that is coming across, be it a pipeline, be it marijuana, affects first nations people, right?
    We're going to move now--
    See, I told you I get short minutes.
    Check your clock. You've been very generously compensated.
    MP Danny Vandal.
    Thank you to both groups for your presentations. It's very much appreciated.
    My first question is to the First Nations Major Projects Coalition, and if you've already said this in your presentation, please excuse me. My brief says,“a group of First Nations in British Columbia that works cooperatively to enhance the economic well-being...”.
    How many first nations are represented in your coalition?

  (1625)  

    We're at 41 as of today.
    Two years ago, we were at 11, so we've grown quite rapidly.
    Okay. In what region of British Columbia would that be?
    We have three sub-regions. We have the central interior, the northwest, and the northeast.
    Northwest, central, and northeast.
    Yes. It's mostly up in the northern area, but we do have a couple of others that are in different areas.
    I'm reading an article from the Canadian Chamber of Commerce about the role of indigenous peoples in land and resource planning, and I couldn't agree with it more.
    Has your organization ever been involved with the regional government or the provincial government in regional land use planning, or with the municipalities in actual land use planning, where you can actually sit down, look at a region, and say, “This should be one utilization”? Have you ever embarked on an exercise like that?
     No, not to that magnitude. We do have an environmental assessment stewardship program that looks at land use planning and we have developed a tool kit that allows the land use planning to be part of the process if we're going to have major program development in a certain area, but we haven't done anything to that magnitude as far as working with regional districts is concerned.
    Okay. I'll ask Chief Knockwood or Derek Simon the same question: have you ever worked with a municipality, a regional local government, or a province on land use planning?
    No. The organization is about two years old at this point, and we're really just starting to get more heavily involved in mapping out indigenous knowledge and land use. We're getting to the point where we have some of the information we need to be engaged in those processes. Previously, we didn't.
    We're hoping, and it's something we're looking to our federal and provincial treaty partners for, to do a province-wide indigenous knowledge and land use study to enable us to fully map out where land use is taking place. That would arm us with the information we need to be engaged in those processes. However, to date, no, we haven't.
    Okay. Good.
    You have two more minutes.
    Let's assume UNDRIP gets approved. What should our next step be?
    Let's go back to Chief Leween, or any of your group.
    We've heard it a couple of times around the table today: consent and collaboration, as well as communication. If we all work together to support each other in some of the articles, it will be a success. It's a good foundation for our people. What we need to do now is build on it, and the only way we can truly build on it is with the first nations' informed consent and the collaboration between not only our first nations governments, but the provincial and federal governments, as well as the proponents that will come into our communities, because it's a reality.
    Collaboration is the key word.
    Chief Knockwood.
    I agree totally with Chief Leween that good communication and collaboration amongst everybody is really essential.
    Thank you.
    All right. We don't have any more time in this session, so we'll pause for a short time and then reconvene after a short break.
    Thank you for coming. Meegwetch. We appreciate your comments.

    


    

  (1630)  

    Very good. I see that we are back together.
    We have representatives here from two significant business associations. Mind you, we'll hear from the Forest Stewardship Council whether they're representing conservation or business, because I'm not quite sure.
    Anyway, that's not the point. The point is that we are here to hear from you on UNDRIP and the impacts to Canada, whether you have any changes or amendments to the bill, and how you view this initiative in reconciliation.
    Each group has 10 minutes to present. After the presentations, we'll do rounds of questioning.
    My list starts with the Canadian Chamber of Commerce. Susanna, welcome; you can begin any time you are ready.
     Great. Thank you very much, Madam Chair. I'm used to presenting for five minutes, so I'll be fast, and I'll give my co-panellists the remainder of my time.
    First of all, thank you very much for the invitation to be here this afternoon. The Canadian Chamber of Commerce deeply appreciates it. I'm Susanna Cluff-Clyburne, obviously, and amongst my files at the Canadian chamber is the indigenous affairs file. I too wish to acknowledge, as I'm sure has been done previously this afternoon, the fact that we're meeting on unceded territory of the Algonquin people.
    The Canadian chamber is not a newcomer to the examination of relationships between business and indigenous peoples. I've had the opportunity to meet several of the members of this committee to talk about our work in the past and in the present as well. Our members know that indigenous peoples, the youngest and fastest-growing segment of Canada's population, hold the promise of being a social and economic powerhouse if they have the same opportunities available to them as all Canadians do.
    Over the past several years, Canadian chamber members have given us the mandate and resources to examine public policy tools and business practices that would improve indigenous peoples' participation in, and increase their benefits from, our economy. Indigenous peoples in what is now Canada once enjoyed strong, nation-to-nation, social, military, and commercial alliances with European colonists. Had it not been for the co-operation of indigenous and non-indigenous peoples—for example, during the War of 1812—Canada might not exist, and that was before the Indian Act, residential schools, and a spate of policies and programs aimed at assimilating indigenous peoples.
    It wasn't just government policies that caused harm. Canada's businesses have often fallen short on seeking respectful relationships with indigenous peoples. Governments, businesses, and all Canadians need to do the hard work necessary to restore these nation-to-nation, partner-to-partner relationships throughout Canada. They're critical to the well-being of each and every one of us.
    In its final report, the Truth and Reconciliation Commission called upon Canadian businesses to adopt the United Nations Declaration of the Rights of Indigenous Peoples as the framework for their relationships. Many of our members are doing so and had respectful, mutually beneficial relationships prior to the declaration's existence. Our members support Bill C-262. It's time that indigenous rights took their proper place in Canadian laws and regulations.
    Our members also support the objectives of the approach being taken by the government, first, with its review of the laws and policies affecting indigenous peoples, and more recently, with the process to recognize and implement indigenous rights.
    However—and unfortunately, there is a however—our members are frustrated with the lack of a formal process to allow for their perspectives to be heard as the government moves forward. The environment has become extremely complex on the issue of reconciliation, and our repeated requests to be part of the reconciliation conversation have, to date, fallen on deaf ears.
    Last year, we were encouraged when it was indicated that the government's review of laws and policies would include a formal process to seek the input of stakeholders, including business. The government's engagement process for the recognition and implementation of indigenous rights does not have the rigour we had expected and hoped for, for such an important issue. Those stakeholders not invited to face-to-face round tables can provide their perspectives through an email address or a Canada Post address. However, the engagement guide is still not available online—that's as of this morning—and the deadline for providing input is not clear. I was able to obtain the guide by contacting an ADM at Indigenous and Northern Affairs. That's the only way I could get it.
    Canada's businesses and other stakeholders, as well as indigenous rights holders, need a principles-based, reliable, consistent framework for the governance of their relationships. Until then, we will all continue to rely on a project-by-project approach, based on what we can negotiate and not necessarily on the correct principles. Too often, as it is today, the ultimate outcome will be determined by the courts, and this is not in anyone's interests.

  (1635)  

    Improving indigenous peoples' engagement in our economy is in every Canadian's interest. Companies that have worked hard to establish and now enjoy strong relationships with indigenous communities are the most vocal on the benefits of doing so.
    It's not clear to Canada's businesses and those who invest in them what the government's commitments to reconciliation with indigenous peoples mean for them. A clear, rigorous stakeholder engagement process would greatly assist. The sooner it's clear what the government's commitments mean for Canada's businesses, the better positioned they will be to deliver on sustainable economic reconciliation and the quality-of-life benefits that often accompany it.
    Thanks again for the opportunity to be here this afternoon.

  (1640)  

    Thank you.
    Now we move to the Forest Stewardship Council of Canada.
    You have up to 10 minutes.
    My name is François Dufresne. I am the President and CEO of the Forest Stewardship Council or FSC Canada.
    I would to first acknowledge that we are gathered on the unceded territory of the Algonquin peoples. FSC Canada has been welcomed onto this territory many times since our creation in 1996, and we have been honoured with their support for our work on sustainable forest management.
    FSC Canada would like to recognize Mr. Saganash for introducing Bill C-262 to the Canadian public for review and debate. The UN Declaration on the Rights of Indigenous Peoples has been a guidepost for our work on establishing new standards for forest certification in Canada and around the world. We would like to thank this committee for including FSC in the lineup of distinguished guests to speak on the topic of indigenous rights; free, prior, and informed consent; and UNDRIP.
    I will provide a brief introduction to FSC and then I will turn the microphone over to Pamela Perreault, our coordinator of aboriginal initiatives within FSC Canada, to provide an overview of our work on indigenous rights.
    FSC is a global organization that is present in more than 80 countries with 200 million hectares of certified forests around the globe. It was created in 1993 after the Rio de Janeiro Earth Summit as a voluntary forest certification system. Based on a consensus obtained with social, indigenous, environmental, and economic stakeholders, we set strict standards to ensure that FSC-certified forest products are issued from responsibly managed forests. The wood fibre from certified forests is tracked to retail stores through the FSC chain of custody system. FSC-certified wood, paper, and other forest products are then sold with the FSC label by certified companies in the marketplace. With 55 million hectares, Canada has the largest area of FSC-certified forests in the world. Sixteen per cent of Canada's forests are FSC-certified, and six of the 10 largest FSC-certified forests in the world are located here in Canada.
    Pamela will now explain how FSC has worked within the UNDRIP framework to craft a standard that recognizes and upholds the rights of indigenous peoples.
    Aaniin Boozhoo. My name is Pamela Perreault and I am a member of Garden River First Nation, which is located at the centre of the three largest Great Lakes, just outside Sault Ste. Marie.
    My mentors and elders have taught me the importance of full disclosure when we're talking about important topics such as our rights and responsibilities.
    To begin, I am the coordinator of aboriginal initiatives for FSC Canada, but I'm also an elected councillor in my community of Garden River First Nation. I'm a mother, a wife, a sister, and an aunt. I have a degree in biology and a master's degree in science and forest management.
     I also work for FSC International on the development of the global guidelines for the implementation of free, prior, and informed consent. This work has afforded me the opportunity to travel, meet, and learn from indigenous peoples around the world. My work with FSC and my approach to standard development is clearly guided and influenced by my own experience and understanding of indigenous peoples and community development.
    Before we go into any further detail on our approach as FSC to FPIC and UNDRIP, I'll offer a couple of caveats.
    We are not lawyers or experts in the legal interpretation of section 35 of the Constitution. We are a global, not-for-profit organization with a voluntary membership and a certification process. We do not and cannot claim to represent the voices or aspirations of indigenous peoples, but we strive to enable those voices to be heard at the national and global level.
    Our national office here in Canada has a small staff that takes very seriously the responsibility of convening discussions, dialogue, and sometimes debates on hard topics. We often have been at the forefront of solution-building in terms of conservation and forest management. Our approach to caribou management and the implementation of UNDRIP are two examples. We rely on the knowledge of respected scientists, forest practitioners, indigenous peoples with expertise and experience in working with indigenous knowledge, and of course, knowledge holders themselves.
    As an international organization, FSC developed the first guideline for implementing FPIC in the context of forest certification in 2012. We are currently revising those guidelines to reflect lessons learned through further research and field testing of our guidelines in 14 locations throughout the globe, including Canada.
    FSC has just revised its entire standard and developed a preliminary guidance document on the implementation of FPIC in the context of Canada, which is a first for a national office within our system. This document was first released for public review in December 2017, and the second draft is now available on our website.
    As far as our standard goes, I'll start with a quote from Michelangelo, who said, “The greater danger for most of us lies not in setting our aim too high and falling short; but in setting our aim too low, and achieving [our] mark.”
    The FSC standard for forest management certification and our efforts to protect indigenous rights affected by forest management activities is high, and we are well aware of this. But we also know that it is possible to achieve because we have examples right here in Canada of it being done. We also believe that to effect social change with positive environmental benefits, we have to set the bar high to encourage our certificate holders, forest companies, indigenous peoples, and other stakeholders involved in the certification to work harder, be more innovative, and be more compassionate.
    However, it's also important to note that our system rewards this hard work through access to a growing market of informed consumers and responsive retailers. I believe some of the previous witnesses who have appeared before you have mentioned that while there might be wide support for UNDRIP, there are implementation gaps even in countries like our own with a strong legal framework that protects indigenous rights.
    The question at the top of our minds might be, how do we move from legal recognition to implementation? Herein lies the work of FSC Canada. I'll start with our approach.
    I have summarized our work into five broad categories. First, we lead by example by having a transparent and inclusive governance structure. Our governance structure in FSC is a reflection of the values and priorities of the organization. We use a model that we call “chamber representation”. Internationally, we have three chambers: the environment, social, and economic chambers. Here in Canada, since its inception, we have added a fourth chamber, the aboriginal chamber, to reflect the critical role of aboriginal peoples in the development and implementation of forest management standards.

  (1645)  

     Principle three on the rights of indigenous peoples has six criteria and 17 indicators related to the recognition and upholding of indigenous rights affected by forest management activities. A copy of principle three was included in our presentation package.
    Our second approach is to develop a standard that is high in expectation but relatively low on prescription to allow for innovation, creativity, and relationship building. The requirement for certificate holders to obtain free and informed consent of indigenous peoples has been part of our standard since 2004. FSC revised their international indicators for certification in 2014, resulting in a significant change to our principle three on indigenous rights, which included free, prior, and informed consent. For the last four years, FSC has engaged in dialogue with experts, members of FSC, and indigenous peoples and reimagined what FPIC means in the Canadian context. Our principle three expresses to the fullest extent our understanding of the right to FPIC in a for-certification context here in Canada.
    Because you might not have principle three in front of you, I'll read it out for you. Our principle states that the organization shall “identify and uphold indigenous peoples’ legal and customary rights of ownership, use and management of lands, territories, and resources affected by management activities”.
    If we think of criterion indicators as a road map for achieving that principle, we have 17 of those. The one that I would like to draw people's attention to is indicator 3.2.4 that provides perhaps the most explicit direction for the protection of indigenous rights through the implementation of the right to free, prior, and informed consent. It says that free, prior, and informed consent is obtained “prior to management activities that affect their identified rights...through a process that” engages indigenous people in the assessment of “economic, social and environmental” values of forest management resource.
    We document the approach of identifying the goals and aspirations of affected rights holders related to management activities. This includes a mutually agreed upon dispute resolution process. It includes a support for dialogue regarding the rights and responsibilities of indigenous peoples to those resources. The process informs affected indigenous peoples of their right to withhold consent or modify consent to the proposed management activities to the extent necessary to protect those rights, resources, lands, and territories.
    Finally, the process supports decision-making by affected indigenous peoples that is free of coercion, manipulation, and intimidation.

  (1650)  

    Thank you.
    We're going to go on to the questioning, because you've exceeded the 10 minutes.
    We're going to start with MP Danny Vandal.
    Thank you very much for your presentation.
    Both of your presentations were very good.
    I'll start with Pamela, because I got the sense you weren't quite finished. Do you want to take a minute of my time to finish what you were saying?
    I can end with the key messages and lessons learned.
    After more than 20 years' experience attempting to protect indigenous rights, we've learned that relationship building takes time, empathy, and willingness to learn and change. The forest sector is sensitive to social movements and trends, and the power of the consumer to demand better quality and a higher standard of development is important and has lasting impacts.
    Finally, human rights and indigenous rights are tied to the health of the world's ecosystems. Without clean water, a diverse and abundant selection of plant species, and the diverse knowledge systems that have evolved to support these conditions, we will not meet our social or economic goals nor our basic needs.
    I want to start by talking about FPIC, but before that, you were quite clear. You were saying that the standards that you adopted at the organization are only for the forestry industry, and they're not for other industries. That's good to know.
    What is your interpretation of free, prior, and informed consent? I know you've touched on it, but it wasn't 100% clear to me.
    That's either to François or Pamela.
    The interpretation of our process is that it is first and foremost a journey to build trust relationships with communities in the forest for our certificate holders to maintain their certification. It's not a switch that's on or off. It's not a destination; it's a journey. We need to establish that trust relationship that will find its own dispute resolution cycle within it. It's not something that is obvious to a beginner in our system or even to an expert company that's been with us for 20 years, which are in different positions on that spectrum of establishing trust relationships with first nations. That's my description. I think it's a mutual responsibility to create partnership between communities and certificate holders.
     At some point in the process, though, industry is going to want to have a direct yes or no. Does free, prior, and informed consent provide a veto, or is it just...?
    Yes, at the end of the day, Mr. Vandal, it does provide a veto. If it comes to a dead end in which the trust relationship is impossible, it will end up there. In the spirit of mutual responsibility to build constructive relationships, it's the will of first nations not to end up there in the first place, but yes, it can end up there.

  (1655)  

    Okay.
    Let me switch to Susanna.
    What is your interpretation of free, prior, and informed consent?
    I will answer your question, but in the previous panel someone quoted a report that I wrote in which we talk about other aspects of—
    That was me.
    Good. There you go.
    We have been very clear that UNDRIP is much more than FPIC, so I would like to have the opportunity to talk about some other aspects of UNDRIP.
    Coming back to your question, though, I was listening very carefully to the previous panel. We would agree with the previous panel's interpretation of FPIC, which is—and I would tweak it a little bit—the requirement to build a relationship and seek consent in good faith. It's the collaborative consent approach that would be our thrust.
    Going back to your document, which I briefly scanned, I was impressed with the fact that the Chamber of Commerce stressed the need to do joint land-use planning.
    Could you talk a little more about joint land-use planning with indigenous people?
    This is from our members; these are companies that are actually trying to move projects forward and are engaged on a day-to-day basis with the indigenous communities whom their projects affect.
    Their interpretation—and this is verified by indigenous representatives whom I've spoken with as well—is that there are huge gaps in this country in which you don't have a municipal government or necessarily even have a provincial or territorial government doing regional economic development planning. This was seen to be a major gap.
    This is an area that we had recommended, in a report we issued last year, the federal crown could step into to create regional economic development plans so that there is a benchmark when new projects are brought to the table.
    I note with interest that the Winnipeg Chamber of Commerce today called on the provincial government to move forward on a guaranteed minimum income exercise.
    Do you have anything to say about that?
    No, I do not.
    Okay. It was surprising.
    Moving back to Pamela or François, what suggestions do you have for us—we have less than a minute—to improve Bill C-262?
    I would say the engagement process is really important and that it should include all relevant parties right from the very beginning.
    Our standard is quite explicit about the way development on traditional territories happens. Similar to previous panels, I think collaboration from the very beginning at the strategic and the operational level is very important. Only through those kinds of conversations will we be able to understand the true aspirations and the common ground that we can move forward on.
    I have the same question for—
    I'm sorry; there's no time.
    We're moving to MP Viersen.
    Thank you, Madam Chair.
    Thank you to our guests for being here today.
    I come from northern Alberta. There's lots of forestry going on up there. I was recently at West Fraser, and they were very proud of your certification, which they had on their products up there. I'm familiar with your outfit.
    One thing we're continuing to look for is how this engagement piece is going to work.
    How is your organization funded? It seems that your organization is a neat apparatus to get the free, prior, and informed consent. It can say, we have this badge, and everyone knows that where this is being harvested, it has free, prior, and informed consent.
    How are you funded to get to that place?
     The funding comes from certificate holders' fees, and most is coming from the marketplace. We had 33,000 chain of custody certifications around the world, from big companies such as Procter & Gamble and Kimberly-Clark to name two in North America. That's where most of our income is coming from.
    In terms of governance procedures, the boards of directors of these large companies do ask questions about UNDRIP and whether the rights of indigenous peoples are respected.
    That's where, I think, the market pool comes from, with companies such as the one in Alberta that you were mentioning, Alberta-Pacific Forestries Inc. This is actually where we have the largest territorial certified force in Canada, working towards six million hectares. They produce market pulp for companies such as Kimberly-Clark and Procter & Gamble for their tissue market. It's in great demand. Values such as UNDRIP are key to their buying decisions.

  (1700)  

    It's interesting that it's one side of the equation, I suppose. Is there any buy-in from the indigenous communities?
    With our four-chamber, membership-based structure, we have representatives, not many, but from across the country, who have taken formal memberships. As part of our process since the very beginning, for a certificate to be granted, and also through the annual audit process, there must be proven evidence that the certificate holder or the forest company has maintained and in many cases improved its relationship with the local first nations.
    Is this because of your certification?
    Yes, it's because of the certification. We recently found, while revising our latest version of our standard, anecdotal evidence that many companies have admitted, and been quite forthright in saying, that because of our certification and because of the process, our relationships have improved. They have done things and made innovative choices they wouldn't have considered before, to the benefit of everyone in that region. We're hearing that more and more.
    Again, the bar is high, but people will strive to reach it.
    I would like to add an example, if I could. Three years ago, in the province of Quebec, a certificate holder, a major company in this province, lost two major certificates for three to four million hectares due to a dispute with the Cree nation with regard to the Baril-Moses treaty between government and nation. The auditor suspended their FSC certification because of lack of consent.
    Ms. Cluff-Clyburne, would you see your organization as having a role in giving licenses to the people you represent, your own people, to say our member organizations are meeting FPIC? Would you say that's part of your organization at all?
    Our primary raison d'être is as an advocate on behalf of our members. I think those types of licenses would be up to others to grant. I think that's ultimately what the conclusion is. Ideally, if the regulatory review process works as it should, and as it does most of the time, and it doesn't have to go to the courts, then that would be the ultimate arbitrator of whether or not FPIC had been met.
    Thank you.
    You have more time. You know I'm sensitive to this.
    Moving on to MP Romeo Saganash.
    Romeo will take this time.
    Romeo might.
    Sure. I will take this.
    Thank you, Madam Chair, and thank you to our guests this afternoon. It's good to see you again, Susanna. François, bienvenue. Pamela, thank you for your presentations. At least it gave me hope. The Chamber of Commerce supporting UNDRIP is fantastic news for indigenous peoples, in particular this guy here, and the use of the United Nations declaration for your organization is also great.
    I want to start with you, Susanna, because I'm worried about what you said with respect to the engagement sessions that the government is holding with indigenous peoples, and is excluding business stakeholders in that process. I tend to agree with you, because the circle of engagement with respect to discussions around indigenous rights at the UN declaration has to be inclusive, and that exclusion bothers me a little bit.
    Can you elaborate more on that point, and in what way have you suggested to be included in those sessions?

  (1705)  

     Our knocking at the door predates the most recent engagement process, and it has actually been a plea of our members basically since the last election when it was very clear that the federal government was going in this direction on reconciliation. As you know, business likes clarity. We are a country that needs investment from within and internationally to make our businesses run. Without clarity it is very difficult for companies to get international investments, particularly when they're multinationals, and they're competing amongst their offices in other countries.
    A policy resolution was adopted at our 2016 annual general meeting. It was followed by a direct communication between our president, Perrin Beatty, and Minister Bennett, and the offer of convening members to have a conversation with the minister. I could go on, but there have been several attempts on our part to try to become....
    For this latest initiative, again, we thought it would be a bit more robust, and it has been a bit disappointing, to be perfectly honest.
    It's at least good to you have you in this committee for—
    We're still going to submit something, don't worry, but we had a feeling that it might be a little bit more—
    I'm looking forward to it.
    I'll move on to FSC. As you were approaching the table, the chair mentioned that she wasn't sure whether you're a conservation organization or a business organization. During question period I heard at least 14 times that the economy and the environment go hand in hand.
    Some hon. members: Oh, oh!
    A voice: Or together.
    Or together, obviously.
    Since you're using the UN declaration, as you said, as a guidepost for the work you're doing on behalf of your members, I was wondering if you were aware of two important studies done by the United Nations at the United Nations level. The first one is the compacted business guide to the UN Declaration on the Rights of Indigenous Peoples done by the UN. It's there to help businesses in general to understand, respect, and support the rights of indigenous peoples and how these rights are relevant to businesses. It's a 2013 document that is very important.
    There's another document that was prepared by the expert mechanism on the rights of indigenous peoples. That one was done in 2012, I believe, and it outlines what free, prior, informed, and consent are all about, and how they should work. I think in your explanation of criteria you've touched on them.
    Have you been inspired by these documents? Are you aware that the expert mechanism is preparing another study with very specific case studies on FPIC?
     I will answer the first part, and Pamela will answer the technical part.
    To answer your first question, FSC is a convenor of civil society. We're not economic or environmental; we're both. This also includes the aboriginal part of society and the social part, and unions, to make sure that there's no child labour in the woods, and to make sure that the ILO core conventions are applied. It's a neutral zone for civil society, as a convenor, to offer solutions for responsibly managed forests.
    We use all of the expertise out there that's coming from all of these fields to build a strong standard, including what you mentioned, for sure. All four chambers in Canada have the same weight of vote when it comes to governance, so we're bound to working by consensus. Everybody has to come together with the same weight in the voting process, which makes FSC unique as a not-for-profit organization.
    Our UNDRIP and FPIC approach has been designed by aboriginal people. It's not something non-aboriginal people designed. It's not something coming from me, or an expert, or a non-aboriginal. It's coming from aboriginal people first and foremost, with all the knowledge they bring to the table.
    That being said, I will ask Pamela to answer the technical questions about the UN declaration.

  (1710)  

     I am aware of those two studies. I have the standard in front of me here—the 10 principles we operate under—but we also have an FPIC guidance document, and in that guidance document we reference both of those papers. In fact, we used some of the structure in terms of the business guide in particular, because it's written for the business audience and that is what would translate well to our certificate holders, which are forest companies.
    I didn't know about the case studies; now I do, so I will look it up. I'd love to do a match and comparison with the 14 case studies we've done on FPIC. It would be a great body of work that would, I'm sure, be very compatible.
    Thank you.
    The case studies report is coming out some time in early June. It's going to be an important document because it really takes cases and looks at them and how they fit within that right of free, prior, and informed consent.
    I'm out of time, right? As usual.
    You are.
    We move to MP Will Amos.
    Thanks to our witnesses. It's interesting to hear the wave after wave after wave of witnesses articulating in a different way the importance of UNDRIP and how their organizations see it unfolding.
    There's a question going round and round in my head, and I'm starting to ask it of more and more witnesses now. It is very rare for a private member's bill, which doesn't have the benefit of the governmental apparatus behind it to perfect it, to come forward in a perfect condition.
    Obviously, we support this bill and we're enthusiastic about it moving forward, but I'm keen to hear our witnesses' suggestions for how it might be improved, because we've had a lot of witnesses saying, “This is great. It's good. We've got to do it.” However, we've not heard a lot of, “This is great. It's really good. We've got to do it, and I have some suggestions for what else could be added to it or what might be tweaked.”
    I'm curious to hear if you have opinions on that.
    I will answer the question, but I'd first like to put it in the broader context of where this bill fits. From our perspective, this bill fits in a broader context of what's become a very complex environment. We have this bill, and we have to take it in the broader context of what the government is doing with its work on the recognition and implementation of indigenous rights.
    That takes into consideration as well other work that has gone before domestically, here in Canada. We have the Report of the Royal Commission on Aboriginal Peoples. We have the Constitution, section 35, of course. We also have the Truth and Reconciliation Commission's reporting recommendations. It's a broad swath of work that is going to form the basis of where we move forward, and this is a very important piece of it.
    If you were to press me on improvements, the only thing—and I'm not a lawyer, so we'll get that right out—

  (1715)  

    That's part of your advantage right now.
    I find that there are several different terms used within the bill. The title of the bill is to “harmonize” Canadian laws with the UN declaration, but if you read the bill, the word “enshrined” is used, and the word “applied” is used. That would be my only suggestion: make the language consistent throughout the bill.
    If you're a lawyer maybe those all mean the same thing, but as a layperson they can mean very different things. That would be my only suggestion, if there were to be some amendments made to the bill.
    Thank you.
    Could we hear from the FSC, perhaps?
     To answer your question, I don't know the bill in detail, but I would add this in terms of approach, and it will go back to the comments that Pamela made on engagement. We hear from other jurisdictions in Canada that we do have good management laws for natural resources, and specifically forest management, which we work with. However, there are very clear shortcomings when it comes to the rights of indigenous peoples in this country as perceived internationally, and also the protection of biodiversity, namely woodland caribou for the forestry. That's clear internationally. I think this law can recognize how we can co-manage our natural resources. That's an improvement I think this law can look after.
    Based on our new standard with the UN declaration and FPIC, we're going to evolve toward this landscape approach. We're going to call it indigenous cultural landscape to integrate these two concepts. I believe it is a way forward that will cement the responsible management of natural resources, not only forestry, but also mining and oil and gas.
     I focus on action plans with FSC. The strength of our system I think is in the fact that we emulate the implementation of the right to FPIC, right in our system. It's not just about having somebody else do it and the expectation that it happens out there, but we do it internally as well. We have the four-chamber process. It's very clear from the very beginning that indigenous peoples are part of the action planning.
     The one part I didn't get to in my presentation was an interpretation of FPIC, and that is that consent or decision-making happens on a continuous basis, especially in the context of forest management planning where a lot of decisions are made, sometimes over short periods, but over 10 and 20 years. FPIC is a continuous process that has to happen between the parties. I think continuous engagement needs to be explicit, when it comes to action planning, that it's not a one-time thing, and that it would be great to see a bit more structure around what an action plan might look like.
    Yes. I appreciate all three of those comments.
    Chair, how much time do I have?
    You have only 10 seconds.
    One aspect that I think is challenging about all this is it sets the stage for action planning, and what does it mean, what will it look like, how will it be operationalized? Those are questions we discussed over breakfast with one of Canada's foremost indigenous leaders, and it's very difficult.
    Thank you for your comments.
    Thank you.
    MP Cathy McLeod.
    Thank you.
    I'm going to start with the chamber, and thank you both for your presentations.
    The chamber has formally endorsed both UNDRIP and Bill C-262. Did your membership look at it? What was your process to come to a formal endorsement? Is it both...under Bill C-262?

  (1720)  

    We endorsed the principle of the bill and what it's trying to achieve, along with what the government is trying to achieve.
    Then your members had a vote? Is that how it worked?
    No. I have an indigenous affairs policy committee, and I consulted with the members of that committee.
    You had a very different understanding of free, prior, and informed consent than we heard from Mr. Dufresne. When you talk to your members, perhaps you see something that I don't see, because you said business-like certainty. Let's say the federal government is doing a law of general application that's clearly going to impact your businesses, but it's also going to impact indigenous peoples in this country, and they need free, prior, and informed consent. Did you perceive, with the Inuit and the Métis and all the people who are treaty and rights holders in Canada, that the government would be able to move forward with making laws to the benefit of all Canadians when they have that obligation around free, prior, and informed consent? Did you talk about that issue at all? Did you see your way through that? Quite frankly, I haven't seen a way through, especially around the laws of general application, how you get FPIC from all the people you would be obligated to under this bill to have free, prior, and informed consent. I worry about increased uncertainty for the business community, especially around the laws of general application.
    The issue is that we and our membership regard the UN declaration, as I mentioned before, as being much more than FPIC.
    No, I understand that, but FPIC is really, to be quite frank, one of the significant stumbling blocks. We all look at the UN declaration as being a bigger document, but what we're talking about is that we have legislation here that is going to implement change in Canadian laws to be consistent with the UN declaration, not what was originally envisioned, which was to have the UN declaration be consistent with Canadian law. We're talking about a pretty significant shift. Understanding consent, or FPIC, around the laws of general application is significantly important, and I would think for your membership, very important.
    You're absolutely correct, which is why, again, if the bill could be improved, I'd suggest that the language be clarified.
    I don't think I read “consistent” in the bill, but we've had “harmonized”. I mentioned all the different terms I found when I reviewed the bill. It needs to be clear exactly what we're talking about. Are we talking about harmonization, or are we talking about more explicit terms?
    That would be my answer to the question, that it has to be clarified as to exactly what we're doing when we pass this, or if this bill does ultimately become law.
    We currently have Liberal government lawyers arguing in court that provisions such as those around the laws of general application would completely fetter the government's ability to do anything. To be frank, that's what the lawyers are arguing in a case before court right now. I find it ironic that we have lawyers arguing about how their ability to make laws in this country would be fettered, whereas we have the government saying it's quite happy to move forward with this piece of legislation and the chamber also saying it's very comfortable with that.
    I'm sorry. I don't understand your question.
    These are significant changes.
    That part I understand.
    The lawyers are arguing that this would fetter the government's ability to make decisions around laws of general application specifically, but your members are comfortable with that particular issue.
    I don't think we've had that discussion. We're not lawyers; we're business people.
    However, when you endorse something such as a document like Bill C-262, you're basically saying, “Go ahead; this is great,” that we all should be sitting here voting for it. That's important; what you say matters. If you haven't had that detailed discussion and in-depth look at it to come to those conclusions, I just wonder how....

  (1725)  

    I stand by our position that we support the objectives of this bill, as well as the broader effort of the government and all the different pieces, the objectives that are being pulled together by the government to move forward with reconciliation, of which this is part.
    Thank you.
    Questioning now moves to MP Bossio.
    I don't really have anything. I'm good.
    If my colleague Romeo would like to take a few more minutes, I'd be happy to give him my time.
    It's the gift that keeps giving.
    Am I going to say no to a Liberal?
    How liberal of you.
    Nobody says no to a Liberal.
     Since I feel that I have to reply to some of what you said, in answer to some of the questions that were asked with respect to what could be changed or improved in this proposed legislation, I agree with many of the suggestions that have been made to this committee by many people. Many made suggestions for change in order to strengthen the bill and not to reduce what's being proposed. But, in general, it's a legal framework for the future. It's not a bill that proposes to change the laws that we have today. It's for the future.
     If you want a new legislation on first nations' control of first nations education, then the standards are the UN Declaration on the Rights of Indigenous Peoples. That's what the legal framework is. If you're going to get rid of the Indian Act and replace it with something else, then you have the standards in the UN declaration to follow. Those are the minimum standards. That's what a legal framework means. I think we need to understand that aspect of what is being proposed here.
    I agree that proposing clarity will help business, the environment. Mr. Dufresne referred to a situation in northern Quebec. I come from northern Quebec. There's a separate, distinct regime for forestry in northern Quebec, distinct from the rest of Quebec, and that's normal because the Cree territory is covered by a constitutional regime called the James Bay and Northern Quebec Agreement. Our thoughts when we negotiated that were that if companies continued to cut the way they cut before 2002, then that industry was not going to survive. What we proposed in exchange for the Quebec regime was with the objective of maintaining that industry in northern Quebec, and our traditional territory, for the long term. That was the idea.
    Does your membership view forestry development in the same way, especially in light of using it as a framework, or as a guidepost, to use your expression? Do they view forestry development in that way with a long-term vision of that type of development?
    Most certainly, and I'm glad you asked me that question.
    Madam Chair, I'd also like to say not to be afraid to be bold with this new law and aim for the long term, and I'm sure the first nations will be the first ones to respond positively to build that future together. I think UNDRIP is a great opportunity for that.
     To support Ms. Cluff-Clyburne from the Chamber of Commerce, a lot of these members are also members of FSC on a voluntary basis in order to build that future with FSC respecting the same UN declaration, and they are not shy to take that bold step to implement that. Under one principle, it's very simple. First nations occupy the territory of our natural resources; they're the first ones to be impacted and too often the last ones to benefit from it. I think this needs to be changed for the greatness of this country.
    Thank you.

  (1730)  

    All right. That concludes the time allocated and we've had a good, in-depth discussion of how forestry is both business and conservation, and indigenous, so now we have three legs to the stool.
    The Chamber of Commerce, your insight and clarity is refreshing. The Canadian Chamber of Commerce has had some wonderful pieces, and now you've done it again for this one, so I really appreciate your time and effort to participate in this.
    Merci beaucoup.
    The meeting is adjourned.
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