Senator Klyne: Gentlemen, in 2022, RBC released a report entitled 92 to Zero: How economic reconciliation can power Canada’s climate goals. The report noted that achieving net zero:

. . . will rely heavily on vital sources of capital held by Indigenous nations. RBC estimates Canada needs roughly $2 trillion in capital over the next 25 years, much of it from Indigenous sources—or unlocked by Indigenous partnerships, including ownership.

The report notes that the Indigenous lands hold vast resources essential to green energy systems, including 56% of advanced critical mineral projects.

With the urgency of economic development, if the government looks at prioritizing some critical minerals projects involving Indigenous lands, can you please walk us through what the consultations and decision making would look like with Bill C-5 compared to without it?

Mr. Ginsberg: I can certainly begin. One of our main concerns about the bill, which has been echoed by the Indigenous groups who have come before you, is that there is no explicit reference to the free, prior and informed consent of Indigenous nations to the types of projects that you mention.

There may indeed be vast wealth stored in Indigenous lands, and Indigenous people may indeed wish to exploit that, but those decisions must be made with them, by them and not over their heads. That is our clear position.

What we are concerned about, having looked at the bill, is that now — to highlight your question about the differences between before and after — getting to a possible yes is a process that happens during the environmental assessment because that is when we understand what the real impacts and benefits are to Indigenous nations. The environmental assessment is an essential element of the consultation process. This bill includes it. Environmental assessment still happens, but the outcome is preordained. There will always be a yes in any event of the environmental assessment, and that cannot be true consultation. Because if the answer is given before the debate occurs, then the debate has meant nothing; the consultation exercise has meant nothing.

So we say the bill should be revised such that Indigenous nations always have a say in both the whether and the how.

Senator Klyne: This gets back to Senator Wilson’s questions and to some of your opening remarks, but Part 2 of Bill C-5 would allow cabinet to exempt a national interest project from the application of Canada’s environmental laws. To name a few examples, Schedule 2 of the bill contemplates cabinet making regulations to exempt projects from the Fisheries Act, the Migratory Birds Convention Act, the Canadian Environmental Protection Act and the Species at Risk Act.

Canadians may have concerns about what such exemptions could mean for, for example, fish habitat, migratory birds, toxic pollution entering the environment and communities or protections for endangered species. Are you concerned that such exemptions could harm the environment, wildlife and people? What advice would you offer to the senators in this chamber?

Mr. Olszynski: Yes, I’m concerned. This is the tricky part about this bill, of course. The government will say, “We’re not going to use it that way,” but the power is there and it will be sought. Someone will want it because their project will be cheaper if they don’t have to worry about fish habitat or migratory birds or toxic substances. It will be the case that proponents will seek to have this power exercised.

The question is this: If the government doesn’t want to use it, then why would it give it to itself? In a sense that’s perhaps harmless because you’d say, “Well, the government will say no,” but it will require bureaucracy. It will require this new office that will be created to implement this bill. It will require a small army of bureaucrats to deal with all the requests to change or waive the standards that currently apply to projects.

As Mr. Ginsberg expressed with respect to the community that he represents, close that gap. Close that ability. Just get on with it. We have standards that are not particularly onerous anyway, frankly. Just keep the standards as they are, require the government and proponents to meet them and then move forward. Just move on and get it done, instead of constantly relitigating this or that law and whether it should or shouldn’t apply.