Good afternoon, Mr. Chair and members of the committee.
My name is Rumina Velshi. I am the President and Chief Executive Officer of the Canadian Nuclear Safety Commission.
I am joined this morning by Liane Sauer, director general of the strategic planning directorate at the CNSC.
Before beginning my remarks, I would like to acknowledge that the land on which we gather is the traditional unceded territory of the Algonquin people.
Thank you for inviting me to provide comments on best practices for engaging with indigenous communities regarding major energy projects.
Before giving you my thoughts on that subject, I will provide a bit of background about our organization.
The CNSC is Canada's nuclear life-cycle regulator and is responsible for regulating everything nuclear in Canada. Our mandate is, one, for the protection of health, safety, security and the environment; two, to respect Canada's international obligations on the peaceful use of nuclear energy; and three, to disseminate information to the public. It is a clear mandate and one that we have fulfilled faithfully for over 70 years.
The commission is an independent quasi-judicial tribunal, comprised of up to seven members, that makes licensing and environmental assessment decisions for major nuclear facilities and activities.
Canada's nuclear sector is broad and ranges from uranium mining, nuclear reactors, nuclear medicine and industrial applications of nuclear technology to the safe management of nuclear waste. Our focus is safety at all times; however, we have many priorities. One of our top priorities is ensuring the meaningful participation of indigenous peoples in our processes.
During my six years as a commission member, I have had the opportunity to hear the perspectives of many different indigenous peoples and leaders during commission proceedings. Now, as president, I'm committed to meet with indigenous community leaders with a view to further enhance the CNSC's relationship-building efforts.
As an agent of the Crown, the CNSC fully embraces its responsibilities respecting engagement and consultation. Those responsibilities include acting honourably in all interactions with indigenous peoples. This means that we appropriately consult on, and accommodate when necessary, indigenous rights and interests when our regulatory decisions may adversely impact them. That is a responsibility we take very seriously.
We have mechanisms in place to ensure that indigenous peoples are consulted on projects that might have an impact on their rights. One important consultation mechanism is the commission's public hearing process. Leading up to a hearing, and beginning very early in a project, CNSC staff meet with potentially impacted indigenous communities to better understand potential impacts and identify ways to avoid, reduce or mitigate them.
Applicants are intimately involved in that process as well, whether in concert with CNSC staff, or separate from them. In fact, we have had a regulatory document in place since 2016, REGDOC-3.2.2, Aboriginal Engagement, which sets out various requirements and guidance for applicants. For example, applicants are required, before an application for a major project is even submitted, to identify potentially impacted indigenous communities and meaningfully engage with them throughout the process.
The outcome of those consultation and engagement activities, and any measures taken or committed to, are then presented to the commission in an open and transparent public hearing. During these hearings, CNSC staff, applicants and indigenous peoples each present to the commission. The commission considers all information presented, and before making a licensing decision, satisfies itself that what is required to uphold the honour of the Crown and to discharge any applicable duty to consult has been done.
We have recently published on our website a compendium of indigenous consultation and engagement best practices, which I have provided to this committee. It builds on our experiences with indigenous communities, as well as those of federal, provincial and international counterparts.
I have mentioned our regulatory document and meaningful participation in commission public hearings, but there are a few other practices that I would like to highlight as well.
Having a mechanism to assist indigenous groups with financial capacity to participate is key. We have a flexible and responsive participant funding program or PFP that we administer and that is funded by licensees. The PFP supports the participation of indigenous peoples as well as other eligible recipients in our regulatory processes. Recently it has been expanded to support indigenous knowledge and traditional land use studies, which will provide important information for the commission to consider in its deliberations.
The PFP also directly supports several other best practices, one of which is multi-party meetings. These meetings bring together indigenous groups, CNSC staff, licensees or applicants, and other governmental representatives, when appropriate, so many issues can be heard and addressed at once. These meetings are often held in indigenous communities, and they allow CNSC staff to get a better perspective of the issues of interest or concern to community members and their leadership. The PFP also supports participation in commission meetings, which are non-licensing proceedings.
The commission has recently decided to provide indigenous intervenors the opportunity to make oral submissions, whereas other intervenors are invited to make written submissions only. That decision was made in recognition of the indigenous oral tradition for sharing knowledge and in the spirit of reconciliation.
The PFP can also be used to support participation in our independent environmental monitoring program or IEMP, which is another best practice. Our IEMP takes environmental samples from public areas around nuclear facilities to independently verify whether the public and the environment are safe. In recent years we have supported the participation of indigenous peoples in sampling activities under the program, including the design of sampling campaigns so it reflects their values and interests.
A final best practice I would like to mention is the CNSC's ongoing engagement throughout the life of nuclear facilities and activities, not just during the licensing phase.
We are committed to building long-term, positive relationships with indigenous communities with a direct interest in nuclear facilities or on whose territory nuclear facilities or activities are found.
As a life-cycle regulator we want to understand all issues of interest or concern and work to address anything that is within our authority throughout the life of a project. We are committed to that and are currently implementing a long-term indigenous engagement strategy with 33 indigenous groups who represent 90 indigenous communities in eight regions in Canada. We welcome the opportunity to partner and work with these groups for many years to come.
I believe we are on a journey in Canada as we continue to explore how best to engage indigenous peoples in relation to major energy projects. Expectations and best practices are evolving, and it is critical that we continue to stay abreast of these developments. We have learned many lessons over time and continue to learn. We value and are committed to long-lasting and positive relationships with indigenous peoples in Canada and look forward to continuing to work together in the spirit of respect and reconciliation. This is how we will move forward together.
Good afternoon, committee members. Thank you for inviting Oxfam Canada to be part of this study today.
I'd like to join my fellow witness in acknowledging the Algonquin territory on which we're meeting.
My name is Ian Thomson. I'm a policy specialist with Oxfam Canada focused on the extractive industries.
Oxfam in an international NGO. We're active in more than 90 countries, working through humanitarian relief, long-term development programs and advocacy to end global poverty.
At Oxfam, we firmly believe that ending poverty and reducing inequality begins with gender justice and women's rights. Oxfam works with indigenous people's organizations in many parts of the world to support their struggles, to defend their rights and to protect their lands, territories and resources.
In 2015, Oxfam surveyed 40 leading oil, gas and mining companies to assess their commitments around indigenous engagement and community consent. Our community consent index revealed that extractive sector companies are increasingly adopting policies with commitments to seek and obtain community consent prior to developing major projects. It has become a recognized and accepted industry norm. It's good development and good business all at the same time.
Further research, however, has identified major gaps in the ways these commitments are being implemented. In several countries our indigenous partners have found that women face systemic barriers in participating fully and equally in decision-making by governments or companies around major resource development projects.
We have two recommendations for the committee to consider today.
First, indigenous engagement processes, whether by the Crown or by private sector actors in the energy sector, should become more gender-responsive and conducted in accordance with international human rights standards, including the UN Declaration on the Rights of Indigenous Peoples.
Second, the Canadian government should be proactive in promoting gender-responsive and rights-based engagement internationally through our trade, aid and diplomatic relations.
I would like to share some research and findings from two indigenous partners in Peru and Kenya that illustrate both the real challenges and opportunities in this area.
A decade ago, social conflicts over energy projects in Peru boiled over into violent confrontations. The conflicts revealed deep failures on the part of both governments and companies to engage indigenous peoples in a meaningful way in decisions around major projects.
In 2011, Peru adopted a new law on indigenous consultation or consulta previa. To date, 43 consultation processes have been recorded by the Peruvian government, 30 of them related to energy or natural resource projects. The Ministry of Energy and Mines reports that only 29% of the participants were women.
In December, with the support of Oxfam, ONAMIAP, the indigenous women's federation of Peru, published a study examining women's participation in these consultation processes over the past seven years. The study was aptly named “Without Indigenous Women, No Way!”. ONAMIAP had conducted surveys with indigenous women in different parts of the country to identify barriers to their participation. Women's participation was hindered by their limited experience of participating in public spaces, the domestic care work that was not taken into account by those organizing when and where consultations were held, the very technical content presented without adequate time or support for people to make sense of projects, lower literacy rates and language barriers, failure to recognize women's rights with respect to communal lands and forests, consultation methods that did not address gender needs, and a lack of genuine dialogue with processes directed at convincing communities to accept projects and conditions.
ONAMIAP recommends that governments and project proponents should be explicit about the differentiated impacts of projects on women and men. Women must be included fully and equally at all stages of decision making processes. Finally, public policy reforms are needed to recognize women's rights and access to communal lands and forests, which would facilitate their participation in these processes.
Last April, Oxfam invited the president of ONAMIAP to an indigenous women's gathering in Montreal, spearheaded by Quebec Native Women. Indigenous women leaders from a dozen countries gathered together to share their experiences, and they quickly learned that their experiences shared striking similarities. Everywhere they recognized that they were tackling an entrenched gender bias in how decisions are made around energy and natural resources.
Turning now to Kenya, where Oxfam is also researching indigenous rights, and in particular the free, prior and informed consent standard, our 2017 study called “Testing community consent” focused on Turkana County, one of the poorest and most remote regions of the country, where significant oil and gas deposits have been discovered.
While most people noted that company engagement practices though initially poor were steadily improving, many key ingredients of free, prior and informed consent were not present. In particular, we noted that pastoralist women who engaged in traditional livelihoods of nomadic herding had been unable to participate in community meetings over oil and gas development projects. Their livelihoods would be affected by the well pads and pipelines and roads being built in the area, but they were least likely to participate due to how the engagement process had been conducted. This year, Oxfam is planning to do follow-up research to look more closely into how those gender justice gaps can be addressed.
Our first recommendation to this committee would be to ensure that indigenous engagement is conducted in a manner that is gender responsive, advances gender equality, and that is consistent with international human rights standards, including the UN declaration. We believe that energy projects must go beyond “do no harm” and actually be transformative and positive changes to advance gender equality where they're being developed. This also means listening to and respecting indigenous people when they say no to certain projects. Project reviews that listen to women and men and take into account the differentiated impacts will result in better-designed projects and share benefits more equitably.
Oxfam is pleased that gender responsiveness could soon be added to federal impact assessment processes through Bill , currently under review in the Senate. Oxfam supports this bill and hopes that gender-based analysis in project reviews will establish this norm across all industries and unlock even more systemic change. Likewise, we welcome Bill , which would ensure that Canadian law is consistent with the UN Declaration on the Rights of Indigenous Peoples.
Interestingly, our stories from Peru and Kenya also have a direct connection with the Canadian energy sector. Peru's largest oil concession, known as Block 192, is operated by a Toronto-based company, Frontera Energy. In Kenya, the oil project in Turkana County that we studied is a joint venture that involves a Vancouver-based company, Africa Oil Corporation. Both of these companies, within the past two years, have had to temporarily suspend their operations due to indigenous protests over unresolved community grievances. Canadian companies operating internationally risk losing their social licence to operate if they can't foster positive and respectful relationships with indigenous peoples.
Our second recommendation is for the Canadian government to take action and raise the bar for Canadian companies operating internationally. The long-awaited Canadian ombudsperson for responsible enterprise, announced by the international trade minister over a year ago, should be appointed without delay and granted the necessary powers to investigate corporate practices internationally.
Canadian embassies should provide more support to women human rights defenders who are working to defend their rights and participate in major decisions around energy projects.
Export Development Canada should have a statutory requirement to respect human rights and gender equality in all of its business transactions.
Finally, Canada's international assistance should support indigenous peoples organizations to engage in and transform natural resource governance, particularly indigenous women's organizations like ONAMIAP in Peru, which have identified many of the solutions but are sorely under-resourced.
I would like to conclude by saying that we believe major energy projects in the future will look very different when they genuinely engage indigenous peoples and respect their inherent rights and title. An energy transition is under way, and Canada can position itself as a leader in the new energy economy.
I'd like to thank the committee for engaging in this study and would welcome any questions you may have.
Thank you all for being here today.
I'm going to turn to Mr. Thomson and pick up where Mr. Schmale left off.
You talked a lot about what's happening abroad, in various examples. We were just talking about the proposed ombudsperson. We still haven't seen that person yet, for some reason, after a year, but coincidentally there was an article in The Globe and Mail today about Canadian resource companies abroad and their actions.
We've heard around this committee room that within Canada we have some of the best indigenous engagement and consultation processes around the globe. We still have a long way to go, I think, but here we have Canadian companies acting one way within Canada and yet, many of them, acting quite differently abroad.
Some may say they're just trying to do what's in their best interest, but it's clear from this article that it would be in their best interest to act as responsible corporate citizens abroad.
We have an example of Tahoe Resources in Guatemala, which now has had a very large mine shut down—they are in dire straits because of that—because the Guatemalan government said that they didn't consult with indigenous peoples properly. There are other examples of the same sort of thing happening.
I wonder whether you could comment on the interests of Canadian companies acting abroad and what indigenous engagement policies they're using, what they should be doing and how it can be brought back to this office of an ombudsperson that we're still waiting to see.
Let me start off with our processes, and I'm sure Ms. Sauer will want to add to that.
Our commission processes are open to everyone, so we don't necessarily go just through the leaders. Anyone can appear. We get participation from all aspects of the indigenous communities. Certainly, women are just as well represented, if not better represented, in our proceedings.
In order to address some of the concerns that Mr. Thomson has identified, one of the things we do with our proceedings is have them in the evenings, if that's what's more amenable. We've heard, not just from indigenous women, but from women generally, that to make our processes more accessible, that would be helpful. There are other things that we do. As I said, it's open to everyone, and we do hear from all aspects and get different perspectives.
Similarly, when we meet within the community, we make sure that we meet not just with the leaders, but with different representatives within the groups.
Did you have anything to add? No.
Thank you, Mr. Chair and members of the committee, for the invitation.
My name is Channa Perera. I'm the vice-president of policy development at the Canadian Electricity Association. I am joined by my colleague, Mr. Ian Jacobsen, the director of indigenous relations at Ontario Power Generation. We are very pleased to be here today to share our perspective on indigenous engagement.
CEA is the national voice of the Canadian electricity industry. Our members represent generation, transmission and distribution companies, as well as technology and service providers from across the country.
Electricity is indispensable to the quality of life of Canadians and to the competitiveness of our economy. The sector employs approximately 81,000 Canadians and contributes $30 billion to Canada's GDP.
As a major economic sector, we are uniquely positioned to help advance Canada's clean energy future and indigenous reconciliation. As we work toward reconciliation with indigenous people, CEA recognizes the importance of the United Nations Declaration on the Rights of Indigenous Peoples and the recommendations of the Truth and Reconciliation Commission of Canada. However, it is imperative for the government to ensure that there is no ambiguity in the implementation of these policy instruments, so that we can work toward genuine reconciliation.
The electricity industry is already at the forefront of indigenous engagement. In 2016, CEA and our member companies developed a set of core national principles for indigenous engagement, further codifying our long-standing commitment to work with local indigenous communities across the country.
Our work with indigenous communities has led to major partnerships and joint ventures, impact benefit agreements, supply chain business opportunities and direct investments in indigenous education, training and employment.
Let me highlight a few examples of these initiatives by CEA members. One example of a joint venture is the 200-megawatt Wuskwatim Power Partnership signed by Manitoba Hydro in 2006. This marked the first time that Manitoba Hydro and a first nation had entered into a formal equity partnership, ensuring the community of important business income, training, employment and other opportunities.
The industry also works with many local indigenous communities in the development of impact benefit agreements. IBAs have become an important instrument, allowing these communities to fully participate in projects carried out within the traditional territory. An example of this is the Lower Churchill project, an IBA between Nalcor Energy and the Innu Nation. These types of IBAs allow companies to work with indigenous communities on many project elements, from mitigating environmental impacts to facilitating education, training, employment and procurement opportunities.
Our efforts do not end there. We are also investing in a new generation of indigenous leaders, through specific education and training initiatives. That's why companies such as ATCO based in Alberta are taking leadership roles. In 2018, ATCO launched an indigenous youth leadership and career development pilot program for grade 9 students across Alberta. This allows indigenous students to explore local work sites and connect with skilled professionals to learn about employment options and how to build a career of their own. In addition, ATCO and other CEA member companies also support indigenous students across Canada, through financial assistance to pursue higher education.
Now, let me turn to my colleague, Ian, who will provide a practitioner's perspective on indigenous engagement at Ontario Power Generation.
Great. Thank you, Channa.
OPG is the largest electricity generator in Ontario, providing about a half of the province's power. Our diverse generating fleet includes two nuclear stations, 66 hydroelectric stations, two biomass stations, one thermal station and later this year, one solar facility.
With operations that span the province, OPG's commitment to building long-term, respectful and mutually beneficial relationships with indigenous communities is based on the acknowledgement that our assets are all situated on the traditional territories of indigenous peoples in Ontario.
OPG and its successor companies have generated electricity in Ontario for over a century. However, we also recognize that hydro development over the better part of the 20th century had significant impacts upon many indigenous communities in Ontario. With this understanding, OPG developed a formal voluntary framework to assess and resolve historic grievances largely related to the illegal flooding of reserve lands. Over the past 27 years, OPG has reached grievance settlements with 21 first nation communities through a respectful, non-adversarial and community-driven process. This process has led to some successful equity partnerships. In fact, this spring OPG and Lac Seul First Nation will celebrate the 10-year anniversary of our partnership on the Lac Seul generating station.
The station was completed in 2009, with OPG and Lac Seul forming a historic equity partnership, the first for OPG, in which the first nation is an equity owner in the Lac Seul generating station, a 12-megawatt unit capable of generating enough electricity to meet the yearly demand of 5,000 homes.
Building on that model, in 2016, OPG completed the $2.6-billion Lower Mattagami River project, an equity partnership with the Moose Cree First Nation. This project was completed ahead of time and on budget. Approximately 250 local indigenous people worked on the project. Moreover, Moose Cree benefited from over $300 million in contracting opportunities. Throughout the project, OPG worked closely with Moose Cree and other surrounding communities on a number of employment, environmental and cultural initiatives. These included the development of the Sibi employment and training initiative, which provided a number of client support services to maximize community employment on the project, as well as undertaking traditional ecological knowledge studies. They also included the creation of the Mattagami extensions coordinating committee in collaboration with Moose Cree, Taykwa Tagamou Nation, and MoCreebec to monitor the completion of the terms and conditions of the environmental assessment approvals. As well, they included supporting the development of the dictionary of the Moose Cree.
More recently, in the spring of 2017, OPG completed the Peter Sutherland Sr. generating station, another equity partnership with Taykwa Tagamou Nation. Named after a respected TTN elder, this new $300-million generating station was placed in service on budget and ahead of schedule. Fifty TTN members worked on the project, which employed about 220 individuals at the peak of construction. In addition, approximately $53.5 million in subcontracts were awarded through competitive processes to TTN joint venture businesses during the construction phase of the station.
In May 2016, OPG announced an equity partnership with the Six Nations development corporation to build a solar generation facility at the Nanticoke generating station on Lake Erie. This was formerly a coal-fuelled power station that was retired in 2013.
The Nanticoke solar park will be capable of generating 44 megawatts of clean, renewable power for Ontario when it is placed in service later this year. In 2018, OPG launched the indigenous opportunities in nuclear program, also known as ION, to support the Darlington refurbishment project and to fill the widening skilled trades availability gap. Working in collaboration with Kagita Mikam Aboriginal Employment and Training and the Electrical Power Systems Construction Association, the ION program seeks to recruit qualified indigenous workers and set them on exciting projects such as the Darlington refurbishment project.
Since the program's launch, ION achieved its 2018 targets for successful placements and we are on track for continued success in 2019. From a project development context, we believe these types of partnerships and collaborative relationships with indigenous communities and the mutual benefits they bring can be excellent models for reconciliation and for OPG to demonstrate what providing power with purpose is all about.
My name is Dwight Newman. I work as a professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan. In this role, I carry on a broad-based program of research on indigenous rights law, with one significant focus within that being on global intersections of indigenous rights and resource development. I also serve in related policy discussion roles, including as a member of the International Law Association committee on the implementation of the rights of indigenous peoples, and I've engaged in some related practice roles. However, I appear today as an individual simply to assist the committee in whatever ways I can.
I'll begin by commending the committee for its attention to this issue framed in broad ways. There's both room and need for broad, strategic thinking in the context of reconciliation in general, and economic reconciliation specifically, and trying to find good ways to move forward together.
I'm going to do two things in my opening remarks. First, while appreciating the committee's efforts to think creatively, I will probably sound somewhat of a cautionary note on the idea of going out and finding international best practices elsewhere, and will urge ongoing attention to the need to keep doing sophisticated policy work and developing the best ways forward that work for Canada and the indigenous peoples of Canada.
Second, I will try to refer to some promising practices present in emerging ways in Canada and in other jurisdictions. I'll suggest learning on a smaller scale, more so than hoping to find one perfect international best practice that we can import.
On my first point, then, we need to be cautious about seeking the perfect international best practice. Let me offer a few examples of some risks that can arise in trying to transplant best practices between very different contexts.
Consider something such as the Sami Parliament in Norway, often cited as a powerful example of an institution for consultation with indigenous peoples. There's a mechanism within the procedures by which Norwegian legislative and policy development processes work so that issues that could affect the Sami people of Norway trigger an alert to the Sami Parliament and consultation may proceed from there at a full countrywide level. However, the Sami Parliament operates in a very different context in which, first, the Sami people are more linguistically and culturally unified than the diverse indigenous peoples of Canada.
A key issue for Canada, were it to think about moving toward some larger scale consultation mechanism as part of Canadian policy, going beyond the duty to consult, in thinking about anything similar to the Sami Parliament, would be the need to see the indigenous peoples of Canada decide in what ways, through what more complex combination of institutions, they could present their interests analogous to the way the Sami present through the Sami Parliament.
Second, we also shouldn't glamorize Norway for its indigenous engagement on energy issues. Most Norwegian energy development and the source of Norway's immense wealth has been North Sea oil, which the Norwegian government took the view had nothing to do with the Sami people whatsoever.
If we're thinking just within Scandinavia, in neighbouring Sweden where resource development questions centre on potential mining development that almost inevitably interferes with the Sami people's reindeer herding—which I think this committee heard a bit about in prior testimony—there's a much more tense situation on indigenous rights generally. Sweden hasn't found the same solutions as Norway, but it operates in a very different context.
In Alaska, which I think has been referred to before in this committee, many indigenous communities have prospered from north slope oil and the foundations it provided for a set of regional economic development corporations. Today, there's meaningful support for the Alaskan system within the state. However, the origins of the system came effectively from a top-down decision that aboriginal title claims in the state were to be resolved on a statewide basis all at once. While there were some negotiations with the Alaska Federation of Natives, which also contributed ideas such as that of a corporate structure in which native Alaskans would be stockholders, the 1971 Alaska Native Claims Settlement Act adopted by the U.S. Congress to implement a resolution to all aboriginal title claims in Alaska at the same time has met with mixed reactions over the years due to its top-down character. Therefore, even while some tout what the Alaskan system achieved, its origins came from a process that would not fit with many Canadian expectations of engagement with indigenous peoples in policy development and claims resolution.
I could go on with more examples along similar lines showing why it's very important to be cautious in transplanting ideas, but I want to turn to smaller-scale best practices that are already emerging in Canada and elsewhere, and that have a lot of potential.
Successful engagement is probably best said to exist when all involved can say they've had a successful process and a successful result. Two jurisdictions in the world stand out, from large numbers, of win-win agreements in the form of indigenous industry agreements to facilitate particular developments. Those are Australia and Canada itself.
Indigenous industry agreements have received much less scholarly study than one might hope, although there is an Australian scholar who has done some important comparative work on agreements in both Canada and Australia. He identifies a lot of contextual factors for what makes for successful agreements and what doesn't.
A colleague and I ran a workshop recently and are working on an edited collection on indigenous industry agreements. I think we would agree with much of that. Facilitating indigenous industry agreements is probably one of the best ways of finding engagement that works.
Here, I deliberately use the term “indigenous industry agreements” as a broader term than just “impact benefit agreements” or IBAs, a concept that has drawn much attention over the years. Some IBAs have brought significant resources into indigenous communities, and some have enabled building for the future, particularly when they have included strong provisions supporting business development that outlasts a particular non-renewable resource or that builds from the base of an existing renewable resource.
There are other, further models to consider, however, including joint venture agreements, equity partnerships—as referenced already in this session—and even indigenous-led development that may be significant parts of the future of indigenous industry agreements more generally. When some indigenous communities themselves seek to undertake particular energy developments, their doing so provides a strong sign of successful engagement or even something going beyond mere engagement.
Here, though, we need to think of many different policy issues, including sound financing mechanisms. We also need to be very attentive to the fact that indigenous communities in Canada are highly diverse. Some wish to ensure strong protections for traditional lifestyles. Others are very enthusiastic to participate in energy development and even to be leaders in energy development.
One of the risks of too much legislation in Canada is framed around our adopting some assumptions rather than others. Too much is framed around old assumptions that development is going to occur or not occur after a bit of consultation with indigenous communities who are assumed to be “in the road”. Then, even in current legislation we continue to see legislation putting obstacles in the road of those indigenous communities that want to carry out indigenous-led development.
There is, then, a lot of complexity at stake.
I'll refer just briefly in closing to the 2013 report of the United Nations special rapporteur on the rights of indigenous peoples, which concerned extractive industries. Even while cautioning against some types of development, the special rapporteur commended the idea of indigenous-led development. I would suggest it is the practice that we should seek to foster in any context in which it works, because it's certainly one that brings everyone together. Wherever it can work, just as constructive indigenous industry agreements work but going even beyond them, indigenous-led development represents a real win-win in resource development, bringing a lot of alignment between otherwise competing interests.
Making it work requires a lot of ongoing and important policy work, on finance issues, opening opportunities for indigenous business and economic success more generally, and all kinds of other policy issues that are different from the traditional concerns we've tended to focus on. I think they speak to the future.
I'll end on what I hope is an optimistic note. It may be possible to learn some things from various practices that have been developed, and I again commend the committee for doing so. In my own view, the best practices are probably still ahead of us and are ones to keep seeking.
Thank you all for being here before us today. It's been very interesting.
I'm going to start with Dr. Newman and try to take advantage of some of his obvious legal expertise on this big subject.
Some of the testimony we've heard—and not just here in this committee, but across the country—about indigenous engagement and consultation is that it's not rocket science. We know how it should be done. It involves, as Mr. Hehr said, early engagement and developing respectful relationships. If we are consulting with indigenous communities and governments, we should not just write down what their concerns are, but try to make meaningful attempts to address those concerns.
Obviously, there are some situations that are more complex than others, especially when we've heard today some examples—and perhaps you might have mentioned it—of where some indigenous communities have one viewpoint on a project and others that are equally as affected have another.
One example that comes to mind is an international situation. You have the Arctic National Wildlife Refuge in Alaska. The Inupiat people who live in Alaska are in favour of drilling there, but the Gwich'in of northern Yukon, who subsist on the caribou that calve in Alaska, are against it.
Could you make some comments on those complex issues and how they can be addressed legally?
I'll just say that, in general, yes, there's a lot of clarity on a lot of issues on consultation in Canada in terms of what's legally required.
You've highlighted two of the issues that actually give rise to complexities.
One of those is early engagement. In one way, that's actually very straightforward for a lot of contexts. A lot of industry proponents take that on board as a given—that they would pursue early engagement—but those that do that tend to be larger companies, those engaged in the development of a resource.
Early engagement can actually be quite challenging at the exploration stage, for example, which often involves smaller enterprises. That's been one of the contexts where we've actually seen conflicts emerge around what can or can't be expected of small exploration stage-type companies. However, there can be ongoing attempts to develop ways of moving together respectfully there.
Meaningful consultation has, of course, been in the news in recent months. A very important principle is that there be meaningful consultation, yet somehow there have been failures to achieve this in the context of the court challenge on Trans Mountain, identifying problems in what the Government of Canada did, even with the guidance that was available from the northern gateway decision. The government has had to go back and do more there.
It highlights the situation that has generated a lot of complexity, which is something like a linear infrastructure project that involves a lot of communities along the route, where some take one view and some take another. You've highlighted this in the context of an international difference between communities, but it, of course, exists even within Canada. It's going to be one of the very challenging things to sort out. How do we sort out situations where there is not unanimity among different indigenous communities that are all potentially affected by a project, some of which, indeed, may be proponents and equity partners in that very project, while other indigenous communities express ongoing concerns about it? That's not something that actually has an easy answer, but it's going to be one of the things that need to be sorted out.
Ironically, the situation that you have raised, I think, might have made for easier answers—where there is the possibility of international law coming into play from the effects in one country of developments that have effects on another country. To put claims based on transboundary harm and principles of international law around transboundary harm, I think, becomes probably the way to deal with some of those types of situations. However, the particular harms would need to be identified very specifically in a way that would engage the international law doctrines that pertain to them. If specific harms weren't clearly identified, they couldn't be taken before an international body.
Obviously, the hope is to fend off the harm before it occurs, so there needs to be a deep international conversation that takes place in the context of that issue to try to find a way forward. The fact that there's one state on each side of it, potentially, actually opens up more possibility for a clearer route forward than in some of the more complex situations that occur even within the country.
So, there are no easy answers, but maybe some answers on some of these.