Thank you for inviting me to speak before the committee. It is a great honour. It is also interesting that Canada is the one looking for international best practices for engaging with indigenous peoples. Usually we look to Canada for good practices for engaging with indigenous peoples.
At the outset, it is worth noting the fundamental difference between indigenous peoples in large parts of Canada, I believe in particular in the Canadian north, who have completed land claim agreements. In Sápmi, the Sami, areas, there are few or close to zero, territories where Sami rights are recognized. The exception is the county of Finnmark in Norway, where the Finnmark Act establishes the Finnmark Estate, which is considered to be co-management of the land, as the Sami Parliament and Finnmark County Council each appoints three members to the board. The Finnmark Act transfers the common land, which the national state claims to own, to the Finnmark Estate. The Finnmark Estate, as the land owner, can be engaged in energy projects as well. So far, to my knowledge there has not been any mechanism in place to engage with indigenous peoples in particular in the one established over Windmill Park, beyond the usual standard national procedures, of course, of conducting environmental impact assessments related to local authority and their spatial planning procedures and applying for licence and the hearing process connected to that applied in national law and for involving stakeholders.
No other considerations are carried out related to Sami peoples. Sami interests are considered part of the Finnmark Estate Board, as I said.
Industry and authorities often call for dialogue. The Sami people often claim that dialogue is needed as well. This is also related to energy projects, as is the question. But we also have gained experiences that tell us that entering a dialogue is a risky business, as the Sami people who are impacted by a project go into a dialogue hoping for understanding of their needs for access to land end up coming out of it without a satisfying outcome, while the project leads go ahead claiming that a dialogue has been conducted, the boxed is ticked and they move on. Without recognition of land rights, it is hard to match the industry that simply follows the national legislation. We end up depending entirely on goodwill.
With no recognition of territory, Sami rights to land are also in the hands of goodwill from the authorities and the legislation they develop. In speeches and jubilees, ministers claim the Sami culture is valuable and important, and enriches Norwegian, Finnish, Swedish or Russian culture, but often some interests have to give way to more important national interests. Now that is the green shift to mitigate climate change.
A recent example in Norway is the permission given to the Nussir copper mine in Fâlesnuorri/Kvalsund. In the name of supporting a green shift and the need for copper to, among other things, produce batteries to replace fossil fuel, both reindeer herding lands and the health of the fjord are put at risk by the mine tailings being deposited on the sea floor. Marine experts have pointed to the environmental risk of this, but through a political decision to support the green shift, the mine has deliberately chosen to take that risk.
There are also several examples of huge windmill plants placed on Sami reindeer herding land, representing a fundamental change in land use in the name of reducing CO2 emissions to promote the green shift. This is a very delicate dilemma.
The Sami people are constantly under pressure to give up land use and fishing grounds for the good of the nation states' interest in the name of mitigating climate change and promoting the green shift.
I am sorry I was not able to provide best practices so far. There is, however, one here in my neighbourhood where the windmill project and reindeer herding entity came to an agreement on the placement the windmill park. I am not aware of the degree to which the company informed the reindeer herders of the fact that the project will produce much more energy than the electricity lines—the grid—to have capacity to send out to the market. Now the company is working hard to get a huge new electricity line established to be able to transfer the energy out to the market.
This is why free, prior and informed consent would be very important when engaging with the indigenous peoples. The information part, as in this example, would have been essential to understanding the full picture through the engagement process.
I would also like to add before I conclude that beyond the Sami region I could mention that, as I'm engaged in the Arctic Council work, there are two forthcoming reports prepared through the Arctic Council. One is on the Arctic environmental impact assessment conducted through the Sustainable Development Working Group, and the other is through the Protection of the Arctic Marine Environment, PAME, Working Group, a project called Meaningful Engagement of Indigenous Peoples and Local Communities in Marine Activities. This is an inventory of good practices in the engagement of indigenous peoples, mostly examples from Canada and America actually.
I don't know your deadlines, but these will be published at the beginning of May at the Arctic Council ministerial meeting, so it might be worthwhile for the committee to consider these two reports.
In conclusion, from my perspective, best practice should be to focused on our own consumption patterns to spend and waste less, use energy and resources more efficiently, and reuse resources that are already taken. I would rather do this than occupy more territory for the mitigation efforts.
I hope I kept to the time limit.
Just very briefly, good morning from Brisbane and thank you very much for the opportunity to speak to you.
By way of background, my research for the last 25 years has focused on the interrelationship between indigenous people and extractive industries. Over that time I've also worked as a negotiator for aboriginal peoples. I have worked with them to conduct what I refer to as indigenous or aboriginal impact assessments. A number of these have related to large energy projects, particularly to a number of liquefied natural gas projects in the northwest of Western Australia. My experience extends to Canada. I've undertaken fieldwork in Newfoundland and Labrador, in Alberta and in the Northwest Territories.
My comments on international best practice draw on that 25 years of both research and professional engagement.
I want to stress that I am addressing what I consider to be best practice. That, to me, involves two components. It involves the conduct of indigenous or aboriginal impact assessments of major energy projects and, based on those, the negotiation of legally binding agreements between aboriginal peoples, governments and proponents, covering the whole life of energy projects.
The reason for stressing those two points is as follows. Conventional impact assessment has dismally failed indigenous people. That applies in Australia, it applies in Canada, it applies throughout the globe. There are numerous reasons for that. Time means I can't go into them in detail, but I am happy to take follow-up questions.
The major issues are that conventional impact assessment is driven by proponents and the consultants they employ. Their objective is to get approval for projects and, as a result, they tend, for example, to systematically understate problems and issues associated with projects, and to overstate particularly their economic benefits.
Conventional impact assessment tends to deny the validity and knowledge of indigenous knowing, indigenous views of the world. It fails to adopt appropriate methodologies and it tends to be very much project focused. It tends to deal with one project at a time.
The result of that last point is that cumulative impacts tend to be either ignored or very much understated. That, for example, is very evident in the context of oil sands in Alberta.
In response to these fundamental problems, what is happening increasingly is the emergence of indigenous-conducted impact assessment. There are a number of different models that can be applied in developing indigenous-controlled impact assessment. Again, I am happy to elaborate.
Just to mention one, for a proposed liquefied natural gas hub in the northwest of Western Australia, a strategic assessment was conducted by the federal government and the state government in Western Australia. There were a number of terms of reference for the strategic assessment that related to indigenous impacts.
What occurred was that the regional representative aboriginal body, the Kimberley Land Council, and aboriginal traditional owners of the site negotiated with the proponent and the governments that they would simply extract all of the terms of reference that dealt with indigenous issues and would conduct the impact assessment in relation to those terms of reference.
It is extremely instructive to compare the six-volume impact assessment that emerged from that exercise with an impact assessment conducted by the lead proponent, Woodside Energy, in relation to another LNG project in another part of Australia. There is a world of difference. Indigenous impact assessment is much more capable of properly identifying the key issues for indigenous people and, just as importantly, of identifying viable strategies for dealing with those impacts.
The second component of best practice is the negotiation, based on those impact assessments, of legally binding agreements for the whole-of-project life.
One fundamental factor is that the political reality—and this isn't just an issue in relation to indigenous peoples—is that once projects get approval, the attention of government moves elsewhere. Given that many of these projects will last for 20, 30, or 40 years, there is a huge issue of making sure that over time there is a continued focus on dealing with the issues identified in impact assessment and in dealing with changes over time. No project is the same after 10, 20, or 30 years. How do we ensure that there is a continued focus?
One way of doing it is to negotiate agreements that cover the whole of project life and provide the resources to make sure that the focus can be maintained, and to provide management mechanisms and decision-making mechanisms that provide for ongoing input from affected indigenous peoples.
It is essential that those agreements extend through the whole of project life, because as we're becoming increasingly aware, as projects developed in the 1960s and 1970s reach the end of their lives, there are very major issues about closure and rehabilitation of projects and about dealing with project impacts that can in fact extend far beyond the operational life of the mines, the gas fields, and the oil fields concerned.
I would stress that I am talking about international best practice that's emerging, but there are very clear examples of such practice having been realized.
The final point I would stress is that the negotiation of agreements for the life of projects must occur in a context in which indigenous peoples have some real bargaining power. If they lack that bargaining power, then the agreements that result are likely to entrench their disadvantage, their lack of power. It is thus critical to have an appropriate legal framework and international legal instruments such as the United Nations Declaration on the Rights of Indigenous People, with its emphasis on free, prior and informed consent. It's an example of the sort of framework that can provide that real bargaining power.
[Witness speaks in Northern Michif
Thank you for the invitation to appear today. I'm really excited that this committee is undertaking this important study, so much so that I was willing to take the afternoon away from my three-month-old daughter. My apologies if I'm perhaps not as put together as I might normally be, but I managed to pull together my presentation while she was napping on my lap over the last couple of weeks. I'm really excited to be here, and I look forward to having some time for questions, so I will try to be as succinct as possible.
For your information, I am a professor in the Faculty of Law here at the University of Manitoba. I've been participating in the international indigenous rights movement for the past 15 years. I am also the co-chair of the rights of indigenous peoples interest group for the American Society of International Law, and a member of the International Law Association's implementing the rights of indigenous peoples committee. I've also provided technical assistance to the UN expert mechanism on the rights of indigenous peoples for their study on best practices for implementing the UN declaration.
Today, I want to focus my remarks on the idea of international best practices, but I want to highlight the international legal standards that should guide Canada's engagement with indigenous peoples. I'll make reference to three main rights, which include the right to self-determination, the right to participate in decision-making and the right to free, prior and informed consent.
While many people cite the UN Declaration on the Rights of Indigenous Peoples in relation to these rights, it's important to know that these rights are grounded in broader human rights treaties that Canada is a party to, including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.
My presentation here today is going to draw on four main documents, which I provided to the clerk this morning. There are two studies by the UN expert mechanism on the rights of indigenous peoples: the new World Bank environmental and social standards, as well as the “zero draft” of the convention on business and human rights, which is based on the UN Guiding Principles on Business and Human Rights.
To this end, while I would say that I'm providing a presentation on best practices, I actually think it's much more than simply best practices. I'm trying to provide what, in my expert opinion, are the minimum necessary standards that Canada is required to meet to uphold its international human rights obligations.
What I've done is try to compile some of the key areas that I think Canada must uphold, based on these various documents. As a starting point, I think it's quite clear in international law that indigenous peoples must not just be able to participate in decision-making processes that affect their rights, but must also actually control the outcome of such processes. To this end, the participation must be effective. The processes must uphold indigenous peoples' human rights, including the right to self-determination and the right to use, own, develop and control their lands, territories and resources. This is critical, because, in this regard, FPIC safeguards cultural identity. For indigenous peoples, as we know, cultural identity is inextricably linked to their lands, resources and territories.
When we're speaking about FPIC, we have some guidance on what these different standards are. “Prior” means that the process must occur prior to any other decisions being made that allow the proposal to proceed. The process should begin as early as possible in the formulation of a proposal. The international standard is for indigenous peoples' engagement to begin at the conceptualization and design phases. It must also provide the necessary time for indigenous peoples to absorb, understand and analyze the information provided and to undertake their own decision-making processes.
We speak about “informed” consent. International law requires that independent specialists be engaged to assist in the identification of project risks and impacts. Indigenous people should not have to rely solely on the materials put forward by the proponent.
Finally, there is “consent”. I'm sure I'll field more questions on this, so I didn't put too much into the presentation, but I think importantly consent means that indigenous peoples must not be simply required to say yes to a predetermined decision; there has to be the opportunity to engage in a more robust process.
To this end, the process must occur in a climate free from intimidation, coercion, manipulation and harassment. It must promote trust and good faith and not suspicion, accusations, threats, criminalization, violence toward indigenous peoples or the taking of prejudiced views towards them. The process must ensure that indigenous peoples have the freedom to be represented as traditionally required under their own laws, customs and protocols, with attention to gender and representation of other sectors within the community. Indigenous peoples must also be able to determine how and which of their institutions and leaders represent them.
Under international law, indigenous peoples also have the power to determine the course or the actual consultation process. This includes being consulted when devising the process of consultation and having the opportunity to share or use or develop their own protocols in consultation.
Finally, the process must also allow for indigenous peoples to define the methods, the timelines, the locations and evaluation of the consultation process.
One question often raised is when FPIC is required. Generally, it's when a project is likely to have a significant direct impact on indigenous peoples' lives, lands, territories and resources. It's important to note that it's indigenous peoples' perspective on the potential impact that is the standard here. It's not the state's or the proponent's determination of the impact, but indigenous peoples'. Also, this right of FPIC is not limited to lands that Canada recognizes as aboriginal title lands; it includes lands that indigenous peoples have traditionally owned or otherwise occupied and used, including lands, territories and resources that are governed under indigenous peoples' own laws.
It's important during these processes that states engage broadly with all potentially impacted indigenous peoples through their own representative institutions. They must ensure that they are also engaging indigenous women, children, youth and persons with disabilities, bearing in mind that government structures of some indigenous communities may be male-dominated. To this end, consultation should also provide an understanding of the specific impacts on indigenous people. It's not just about having indigenous women, children and youth present, but also specifically turning your mind to how the project may impact indigenous women differently or specifically.
Another area that I think is particularly important in Canada is the importance of ensuring that FPIC processes support consensus building within indigenous peoples' communities and must avoid any process that may cause further division within the community. In relation to processes that might further divide, we want to be aware of any situations of economic duress, such as when communities may be feeling pressure to engage in the process because of economic duress, and trying to ensure that any process, consultation or otherwise is not further dividing the community.
As was already mentioned, these consultation processes should occur throughout the project, ensuring that there is constant communication between the parties. Under international law, it's important to note that these consultation processes where indigenous peoples are engaged in decision-making and provide their free, prior and informed consent should not be confused with public hearings for the environment and regulatory regimes.
Sorry, I think I am running short of time. I want to make one or two more points.
International law does recognize that indigenous peoples may withhold their consent in several circumstances, which include following an assessment and conclusion that the proposal is not in their best interest, where there are deficiencies in the process, or to communicate a legitimate distrust in the consultation process or the initiative.
Some might say that the UN declaration is unclear because different articles provide different wording. However, I think the UN Expert Mechanism on the Rights of Indigenous Peoples has tried to clarify that the terms “consult” and “co-operate” denote a right of indigenous peoples to influence the outcome of the decision-making process, not just to be involved in it. I think the standards and international law are quite clear, and Canada should be taking steps to uphold these obligations.
Finally, to wrap things up, there are some broader objectives that the right to participate in decision-making seeks to achieve that can help us guide these processes. The first is to correct the de jure and de facto exclusion of indigenous peoples from public life, and the second, to revitalize and restore indigenous people's own decision-making processes.
Finally, free, prior and informed consent also has some underlying rationales that should guide our implementation: To restore indigenous people's control over their lands and resources; to restore indigenous people's cultural integrity, pride and self-esteem; and to redress the power imbalance between indigenous peoples and states, with a view to forging new relationships based on rights and mutual respect between the parties.
[Witness speaks in Northern Michif:]
I'm sorry, but I'm getting a bad echo on the line now. Anyway, I'll keep going.
I'd like to begin by perhaps following up on your question about dialogue being a risky business.
I think that one issue with conventional impact assessments is exactly that. When indigenous people don't control it, they're in a dilemma because if they engage with it, it can be taken as an indication of their consent. On the other hand, it very rarely is effective in taking into account the issues they have.
I will fill in on a couple of the points. One is the failure to properly acknowledge the importance of indigenous world views, of indigenous understandings of the universe and indigenous expertise. There tends to be a deeply in-built assumption that western science offers the only valid understanding of environmental processes and outcomes. As a result of that, even if use is made of information provided by indigenous people, for example through land-use studies, it tends to be co-opted and presented in a frame that's very much dominated by western assumptions and western values.
Another point I would mention is the failure to use appropriate methodologies for engaging with indigenous people. The very much standard approach in conventional impact assessment is to use meetings in offices, in buildings, to do that in a one-off form so that you come to a meeting, you provide people with information and you ask for their response. For various reasons, that sort of approach is entirely inappropriate. If you look at the way in indigenous-controlled impact assessment is conducted, you see that it tends to have a much broader variety of forms of engagement. It will involve small group meetings, individual meetings. It will involve perhaps separate meetings with men and women. It will involve meetings “on country”, as we say in Australia, in other words, meetings at the places on the land, in the waters, where these impacts are expected to happen, where indigenous people feel much freer and are much better able to express their understandings.
It is iterative. In other words, there will be a succession of exchanges where initial information is provided, people are given time to think about it and come back and ask questions. Further information is provided. You will have this backwards and forwards process over an extended period of time.
I think there are both fundamental and systemic issues in the way indigenous knowledge is treated, and there are a series of very practical issues of what the appropriate ways of engaging with indigenous people are to make sure that they do in fact have a real impact on what is said in environmental impact statements and on the recommendations that emerge from that.
If any of my co-panellists would like to jump in, I'm happy to hear international perspectives on these matters.
I'm not sure I have an answer, but I appreciate your highlighting the example, because it hits on one of the most challenging issues, namely, the right of indigenous peoples to participate in decision-making and free, prior and informed consent, which is to ensure that these processes do not create further divides amongst indigenous peoples and do not engage in divide-and-conquer types of tactics. I think projects such as Trans Mountain really exemplify the complicated nature of these conversations when projects are so large, crossing so many territories and engaging so many different people.
One of the questions I often get governments and industry asking is who has the right to say yes? Or whose approval do we have to get when there are so many different people? What happens if not everyone agrees? My answer, which may or may not be the one you're hoping for, honourable member, is that I'm curious to know if the communities who have raised concerns regarding Trans Mountain feel as though they've been heard. And I mean truly heard with regard to the concerns they've raised. Has consideration been given to what the impacts are? Can they be mitigated, and has there been space for real conversation? Or have all of the conversations or consultations occurred in a climate of “this project is going forward. Get on board or get out of the way”?
I fear that on large complicated projects such as Trans Mountain, on which there are people with different perspectives, it becomes easier for Canada and industry to work with indigenous peoples or first nations who are willing to work with them, and to then perhaps ignore or sidestep the concerns raised by other people. I think that's fundamentally a problem.
I don't know enough of the specific concerns that are being raised to say this is the way forward. But I think the right, as contemplated in international law, is about trying to uphold rights and to create space for a real conversation, in which all parties have the opportunity to speak and be heard. I would say that as a starting point for these large projects, we need to make sure all those who are potentially impacted have an opportunity to be heard.
I also think that with projects like Trans Mountain, if I'm correct, there may be a distinction between indigenous communities that are directly impacted by the project, whose traditional territories the pipeline will cross through, and those for whom there may be more indirect impacts. I think that needs to be part of the conversation. I'm not trying to in any way suggest that those who have indirect impacts have lesser rights, but that's just a recognition that there may be different rights at play and so we want to try to get that broader picture.
I have a quick response to the previous question, if I may. I think it's also a question of who has the right to determine future generations' rights to live off the land, just to add to the complication.
Norway has developed, but not Finland and Sweden, a consultation agreement with the Sami Parliament. The Sami Parliament is an elected body of the Sami people. There is one in Norway, another one in Finland and a third in Sweden.
In Norway there is a consultation agreement. An amendment to the act is under discussion now that it should also involve municipalities and provinces, or counties as we call them.
On the question of the technical expertise and capacity, I think the capacity today is what is built in the Sami parliaments, and the employees there have mostly legal backgrounds to do these consultations. But on the technical expertise, which was also raised in one of the previous presentations, we still rely very much on the proponents' reports and findings rather than trusting the indigenous knowledge there.
Of course, in this process with the environmental impact assessments, which Norway, Finland and Sweden conduct, the money is put in by the proponents to carry it out. For example, I don't even know if the Sami have reflected that they could demand to conduct the assessment rather than letting the technical people do it to ensure the holistic and the Sami world view is taken care of. When that has been tried, I don't know of any successful efforts in that regard.
I think we are quite up to date on the legal aspect. We have a lot of legal experts who can take part in this. But when it comes to the more technical part, there is a shortage.