Proceedings of the Standing Senate Committee on
Energy, the
Environment and Natural Resources
Issue 21 - Evidence. August 27, 1999
OTTAWA, Friday, August 27, 1999
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-32, respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, met this day at 8:37 a.m. to give consideration to the bill.
Senator Ron Ghitter (Chairman) in the chair.
[English]
The Chairman: Good morning, senators. Welcome to the continuation of our examination of Bill C-32.
We have with us this morning Dr. Leiss, who is from the University of Calgary.
Thank you for coming, Dr. Leiss, and thank you for providing us with your material in advance.
Mr. Bill Leiss, FRSC, Faculty of Management, University of Calgary, and President-elect, The Royal Society of Canada: Thank you, Mr. Chairman, for the invitation to appear before the committee.
I would like to start with MMT, partly because I have been preoccupied by it for the last six months, but also because it is directly relevant to the current proceedings. As well, those of you who have looked at the draft case study that I wrote will know that I made significant use of the testimony heard by this committee on that bill. I have probably reviewed more of the documentary file on MMT than anyone outside government, and perhaps more than most people inside government. Fundamental issues, which go to the heart of the matter and which were never raised anywhere else, were raised before this committee. That is illustrative of what can be elicited with good research and good questioning.
Many Canadians worried about that issue, as they do about toxic substances, which is the heart of CEPA. They claimed that there was unacceptable risk because of neurotoxicity. The sad thing is that we have legislation to deal with toxic substances. It is called CEPA. It existed in 1991 when then-opposition leader Jean Chrétien wrote his first letters to Tory ministers saying that MMT was a neurotoxin and should be banned. CEPA existed then. The Manganese-based Fuel Additives Act was proceeding through the process that eventually led to legislation and the embarrassment that Canada suffered when it was, in effect, rescinded. It is supposed to deal with toxic substances. Why could it not deal with MMT and manganese?
There is a lesson in that for you when considering CEPA, because the new CEPA is pretty much like the old one. It does not change the definition of toxic substances, which is at the heart of CEPA. The old CEPA was pretty much worthless to deal with issues that would confront us and the new one is just the same.
After nearly six years of wrangling among major stakeholders in the so-called CEPA review, there are still fundamental disagreements among major stakeholders about this legislation. It appears that the line of many environmental groups now is that the old CEPA is better than the new one, so it would be okay to keep the old one. That is not what they said two years ago, when substantially the same bill was on the table. In early 1996, industry was pressing for revisions and then suddenly decided that the bill was good the way it was.
The problem is very simple, and it was set out in testimony before this committee in June by Harvey Lerer of Environment Canada. He was asked by Senator Spivak:
Am I correct that this --
-- virtual elimination of releases --
-- deals with the 12 most persistent chemicals and does not refer to the 23,000 which currently exist?
Mr. Lerer: That is correct. There are now 12 which are on the list, nine of which have already been banned in Canada. Our best scientific guesstimate is that over the next five to ten years we may see another dozen of these among the 23,000 that the bill commands us to categorize and assess.
We may or may not. I would not bet on it. He says that we have nine. We have had CEPA since 1988. These are references to Schedule 1, the list of toxic substances. The fact is that no one wants to fight about most of the things that wind up on Schedule 1 any more. It is already over. It is pointless. There is general agreement that these are the kinds of things for which stringent rules should apply. The problem is that it takes too long. It is cumbersome and too limited in scope. I think the public is badly misled by this legislation, not deliberately but inadvertently, because they hear about things like virtual elimination, which sounds good. I refer to that as part of virtual reality. "That sounds good. These are bad things. Oh, we now know that polluters can be required to file pollution prevention plans. That sounds good."
What is the problem here? It is that the federal power for environmental protection as interpreted by the Supreme Court of Canada is narrowly circumscribed. This is set out clearly and definitively in the major decision of Canada v. Hydro-Québec of 1997, which was a case directly on the constitutionality of the toxic substances provisions of CEPA, sections 34 and 35. That is what the court dealt with.
The court was split in a five to four decision, but not on the underlying constitutional interpretation. On that, they agreed that the federal power, which rests on a criminal law power, is the power to prohibit and not to regulate. In a nutshell, that is it. They said it, in my view, clearly and specifically.
Who is to disagree with a court that is one of the finest high courts in the world and which is unanimous on this? The problem rests in the constitutional division of powers.
The precise problem is that there is the power to prohibit but not to regulate. With what we call toxic substances, the point is to regulate and not to prohibit in most cases. That is because toxic substances are useful in most cases. Yes, they are dangerous in some dosages, but in many cases they are around in such quantities because they are used in industry and other places because they are so useful.
My favourite example of that is phosgene, which is the gas that killed soldiers in World War I. It is an intermediate product in the chlorine manufacturing process. It is also something that is so useful that a stream of about 10,000 consumer products eventually emerges from it. It is a very toxic substance, as well as a very useful one, which means that we must regulate it carefully.
I cannot resist coming back to MMT again. Manganese is a metal. Metals are dangerous. Most of them are neurotoxins at sufficiently high doses. Lead is the most famous example of this. However, there is an unfortunate fact that a whole bunch of them are not only not toxic at very small doses, in fact, we need them badly. They are essential nutrients in the body, and I refer to copper, zinc, selenium and manganese. We need them. Common one-a-day vitamins found at any Canadian drugstore contain these four metals. Some people take them every day.
In the end, my argument about the inadequacies of CEPA have to do with the limitations of the federal powers, which are fundamentally powers of prohibition. That is why Dr. Lerer refers to bans of the nine substances and not regulation. The point is to regulate.
If you cannot in your constitutional authority find the legal power to regulate because the court says that it rests with the provinces, there still is a need for a federal role, among other things because most environmental problems are national problems, not provincial ones. Very few are confined within provincial borders. We need the federal presence.
Then, of course, we have the international scene, where many of the pollutants are international. We have looming before us what will be the biggest issue that our generation, or the next, will ever face. I refer to climate change, which will require the federal and provincial governments and other stakeholders to work cooperatively. We need to learn how to do that.
My suggestion is very simple. You cannot change the nature of the federal power. It is rooted in our constitutional tradition. If you cannot compel people, which is the power that most governments like to have, then you have to negotiate. You have to bargain with them. My suggestion is that CEPA be changed to add a general authority for what I call negotiated agreements. Many other people call these voluntary initiatives. That is a very bad word and you should never use it because "voluntary" has the connotation of "discretionary." Environmental protection measures are not voluntary in the sense of discretionary. They are needed.
There are allegations that what people call voluntary initiatives are really just a way for industry to get around regulations. People do not like this, but the reasoning is wrong. The best example of what I call self-initiated action is the Canadian Chemical Producers' Association Responsible CareR Program. No other national sector in Canada has yet adopted such a program. That is because they are afraid to because it is so good and requires so much of them. It starts by saying, "You have to comply with all existing laws and regulations. Then you have to go further." It is not a way of evading one's legal responsibilities. It is a way of adding to them.
There is one other example, which exists only in Canada, of a Responsible CareR type approach outside the framework of that industry sector. It is called ARET. You have probably heard a lot about it. It stands for Accelerated Reduction and Elimination of Toxics. It started in 1991. There is no other example of this taking place. Why? Because there is very little encouragement for it.
I am not a lawyer and I do not draft legal language. I have in my paper given a sketch of what I understand to be the way in which one would do this. Appendix 1 of my paper is called a hypothetical legislative structure. I quote in the footnotes from the text of a submission by the Canadian Chemical Producers' Association to the house standing committee back in April 1998, when one of the endless sets of stages in this endless CEPA review was happening. It contains more formal language for how to do this. It is possible for people to say, "Professor Leiss is just an industry hack." Look at the substance and reasoning behind this. It does not detract from any of the powers in CEPA.
It adds to them. It does not take anything away. My argument is that this is the only way you will really get anything done.
I think I will stop there.
Senator Nolin: Thank you for appearing before us this morning. Even though you are not a lawyer, of course you are dealing properly with our Constitution. When we are talking about the CEPA, many of the provisions in that bill are what we call national concerns. Those specific words are used for a specific reason. I am sure that you are aware that the peace, order and good government (POGG) part of section 91 of the Constitution gives that authority to the federal government, and it has been used by the federal government to embrace the environment question.
However, we also recognize that it is a competing jurisdiction, although competing is not the proper word. We have to collaborate with the provinces because we share that national concern with them.
The bill says, in the preamble, that the federal government should cooperate and try to achieve the goals of the bill with the cooperation of almost everyone.
I should like to see the industry named in there, but perhaps we can have an amendment to the bill.
Having said all that, I hear your argument about the authority to prohibit, not to regulate. However, do you not think that that POGG national concern branch can be used to regulate those substances?
Mr. Leiss: It is a good question. We will have to see, because you probably know of the Supreme Court decision in the Canada v. Hydro-Québec case.
Senator Nolin: We also have the 1998 decision of the Supreme Court.
Mr. Leiss: Canada v. Hydro-Québec is the key decision because it focuses on toxic substances. The justices said that they did not have to consider the POGG issue because the criminal law power is sufficient, so it remains to be tested. I do not think that you can manage the environmental issues through the peace, order and good government section, but that is just my guess. It is very nice now to see that new thing in the preamble but I think that preambles to legislation contain what we used to call motherhood statements, which we now should probably call parenthood statements. They are nice words, but will not do anything, because no direction is given. The argument here is that a grant of authority to pursue these types of negotiated agreements is direction saying, "This is how you should fulfil your obligations." In other words, this operationalizes that statement in the preamble. Without that, the words will be there but people will not use them.
Senator Nolin: We can argue all day on the meaning of a preamble. I think that it could be a very good interpretative tool for the courts to try to understand what the intent of Parliament is when they pass the legislation.
I hear your argument. Of course, I am sure that someone will test this legislation, and we will hear from the courts.
Senator Hays: Thank you for your presentation. I was impressed by what you said. I would ask you to elaborate on the idea of not using the word "voluntary" and replacing it with "negotiated agreement." I see your point. We, as you know, heard from the chemical producers and had a description of the two programs you mentioned. They told us that, in the event that people in their association, or outside of their association, do not adhere to or follow this program, the Department of the Environment or an appropriate level of government may have in place guidelines regarding the standards required to deal with toxic substances. Or perhaps there would be a memorandum of understanding.
It strikes me that there is room in clause 57, which is the only one that mentions "voluntary," to interpret it as containing the teeth that you think need to be there for this to be an effective approach to control toxic substances.
Mr. Leiss: We should not fight about the words. I wanted to make the point that the words can be misleading if they are misinterpreted. Part of the problem is that the voluntary non-regulatory initiative (VNRI) is widely used. I think that is unfortunate, but we should not fight about the words. The CCPA position makes it clear that the legislation or regulation is a floor on which you build more. That is the fundamental point. It is always more than what is legally required. I also think that what is unique about CCPA is that their code of practice in Responsible CareR, which is very elaborate and which goes beyond legislation, is a requirement for membership in their association. That is where you find the teeth. That is very unusual. It is the only example in the Canadian industrial sector so far, 10 years later. No other industrial sector has had the courage to do that. Some of them have halfway measures, but they are not good enough, and we need more.
It is possible that there is enough language in the bill now to encourage this. I do not think so. I have watched this very closely for the last four or five years. Despite the incredible success of ARET -- and I am widely quoted as saying it did more than all the rest of CEPA put together, and I stand by that statement -- there is no other example. It took something like three years of hassling just to get the Minister of the Environment to sign a letter saying that ARET looks like a good thing. It is ridiculous. There needs to be more direction. I am glad this new statement is in the preamble, but just having that there or having the single reference in this huge bill in clause 57 is not enough. It will not do the job.
Senator Hays: I would like to make a point and get your reaction. It is very difficult to administer this act through the bill.
Mr. Leiss: Yes.
Senator Hays: The Minister of the Environment and government have a responsibility and either they carry it out or they do not. Having sat on this committee, I would concede, with my Conservative colleagues here, that the MMT issue that you referred to was not a good example of how the show should be run.
I say that particularly because there were opportunities, during the work of this committee and the Senate on the issue, to have refiners and automobile manufacturers do things that they have not offered to do since and had not offered to do before.
Mr. Leiss: Yes.
Senator Hays: Having conceded that, that is the way in which the law was administered. Everyone wants us to change this bill and rewrite it and basically run the department for the next five years by the wording of the bill. I do not think that is practical, but it might be practical to identify the kinds of things you are saying, and then, when the department's Estimates come up, ask for them in the committee and then go with the officials and the ministers through the kinds of things that we are hearing now must be done, to see whether or not they are done.
You have a concern that the bill does not go far enough in terms of mandating regulation, as opposed to seeking only the ban or virtual elimination of a substance. This piece of legislation is complicated enough and loose enough that I suspect there may be room to do that. Would you comment on that?
Mr. Leiss: I understand anyone's reluctance, after this long a time, to do anything that will potentially derail this bill one more time. An unbelievably ugly can of worms has been sealed into the bill. I understand that no one wants to take a can opener to it again.
Senator Spivak: Yes, they do.
Senator Hays: They may want to use a screwdriver, though.
Mr. Leiss: I would be happy if it were possible to direct the administrative process, from year to year, to address these questions, to ask what is being done along these lines. That would be better than nothing. I just hope that some way will be found to stimulate this approach, whether by changing the legislation or by some other means. That would make me happy.
Senator Hays: You mentioned the government's approach to climate change issues. They have a voluntary challenges program, which does not seem to have produced the results for which we had hoped.
Mr. Leiss: No. We will not meet our Kyoto commitments.
Senator Hays: Do you believe that these provisions dealing with economic instruments should be in this legislation? Are these provisions okay the way they are?
Mr. Leiss: They are okay. There has been a great mystery as to why we have not used economic instruments to any significant degree in Canada, although they have been discussed for 25 years and repeatedly affirmed in government policy papers for the last 10 years. The legislation is certainly sufficient on that point. The point is to act on it. I do not think any change is needed.
Senator Hays: Regarding equivalency and dealing with the provinces, you know that our Constitution divides up power in a unique way. Perhaps all systems are unique, but we are familiar with our system and it seems to be very difficult to change it. Environment is not a head of power under the Constitution, but we have recent Supreme Court cases to help us. This reinforces the fact that the federal government does have a role. You have described it very well.
What about the equivalency provisions of this legislation? You have probably thought about that. We must get along with one another and that will not be easy to do. Are you unhappy with this bill in respect to those questions?
Mr. Leiss: From a legal standpoint, that part of the bill is good enough as it stands. Equivalency can be a very loose term. A lot of distrust can arise. You need a good deal of transparency in the process in order to ask if it is really equivalent.
It is the same thing with harmonization, which is the way they try to operationalize it. Harmonization is also an ambiguous word. The system must have as much transparency as possible in order to say, yes, this really is equivalent and this is why.
Senator Hays: Thank you.
Senator Taylor: You made a very good observation that the federal government can prohibit but cannot regulate. That was not quite the way I read the Supreme Court decision on Hydro-Québec. Five judges said that the regulation of toxics is legally and constitutionally possible. I guess you are saying that that will do. If that is true, then it moves into the field you discussed with Senator Hays. It is a negotiated area. CEPA is good as far as it goes, but its implementation is the key.
I have another question about something that you may have missed. On page 50, clause 77(6)(c) says that the ministers of environment and health can develop a proposed regulation or instrument respecting preventative or control actions for toxics. CEPA allows them to propose regulations on toxics. The amendment you were talking about seems to be already covered by that section.
Mr. Leiss: I am at a bit of a disadvantage because the legal wording may escape me.
Senator Taylor: I am not a lawyer, either.
Mr. Leiss: In my interpretation, the Supreme Court clearly says that any federal regulatory authority derives from the authority to prohibit. In my interpretation, you can regulate what you can otherwise prohibit but not broadly. That message was clear there. Also, it is instructive when the Department of Environment comes to really significant issues such as pulp mill effluent. Pulp mill effluent is the most complicated emission to the environment in terms of its chemical constituents. It contains some 30,000 to 100,000 chemicals and constitutes the most difficult industrial regulatory issue in Canada. Yet, the Department of Environment uses the Fisheries Act and not CEPA.
Senator Taylor: I get the impression that, as another non-lawyer and a quasi-scientist compared to you, everything is in place as you say it should be. We can prohibit. We cannot regulate. The act says that we can meet and should regulate. That boils down then to the thing that scares all legal minds -- the human animal.
It seems to me that we are more dependent on the quality, the will and the energy of the minister in charge to control toxics, more so than on anything that is written here. It is a negotiated settlement. Do you agree?
Mr. Leiss: Yes, in a sense. Everyone needs a little encouragement. We are talking about behaviour. We have good examples of how we should behave in the ARET and Responsible CareR programs. Just as with children, you should encourage good behaviour, provide a few incentives, give them a little "candy." Encourage other people to do the same thing. It is a behavioural issue in the end, yes.
The law provides a framework within which we want to encourage people to do the right thing, in this case for environmental protection. We are asking whether there is enough direction in this behavioural thrust to make a difference. I would like to see more activity, but I think we agree on the direction.
Senator Kenny: We need some ministerial candy.
Senator Taylor: I guess we agree that a minister with CEPA and with the proper equipment, mentally and otherwise, would be able to negotiate what the public should have.
Mr. Leiss: Yes.
The Chairman: Having been a lawyer a long time ago, and I do not profess to do it any more, I have read the judgment and I think you are really reading from the minority view.
As I read the judgment, I think your argument is based on the minority, not the majority. As I read it, the majority said that Parliament may validly enact provisions under its criminal law power against specific acts for the purpose of preventing pollution. It says that this does not constitute an interference with provincial legislative powers and that the use of the federal criminal law power in no way precludes the provinces from exercising their powers.
Prior to that it says that the protection of the environment through prohibitions against toxic substances constitutes a wholly legitimate public objective in the exercise.
It was the minority that made the comment that these listed substances, toxic in the ordinary sense, are those whose use in a manner "....contrary to the regulations of the act ultimately prohibit," et cetera, and they went on it speak in terms of the position that you have stated.
I should like you to reconsider your position, because I think you are quoting from the minority judgment rather than the majority. I am sure you have read the judgment.
Mr. Leiss: In the larger paper that I prepared, which is called "The CEPA Soap Opera", I quote from both minority and majority opinions. What you just read is the prohibition power. Also, remember that the majority based the federal authority on the criminal law power, which is always a very restrictive approach.
In any case, obviously there can be differences of opinion here. My reading of it is that both majority and minority agreed that the federal power is the power to prohibit and not to regulate.
Senator Nolin: But they did not say that that was their only power in environmental matters.
Mr. Leiss: On toxic substances.
The Chairman: I have difficulty with your position, because Part 5 tells me that you can regulate toxic chemicals without prohibiting them. When allowable levels for use of toxic chemicals are in the legislation, that is regulating them, not prohibiting them.
Mr. Leiss: On Schedule 1 substances.
The Chairman: No, not just Schedule 1 substances. From my reading, it says that on anything that comes into the definition of "toxic" under clause 64, as well as the list of 23,000, the minister can set limits.
Mr. Leiss: Only if it has been certified as CEPA toxic. The minister can only do that if it has been assessed and goes on to Schedule 1. That is what Harvey Lerer told you in June as well. It has to first go through the process. You go through the DSL and separate those things out into the PSL. Now we have PSL-2. Then you assess them and, if you find they are toxic within the meaning of the legislation, they go onto Schedule 1 and can be regulated.
The Chairman: Perhaps I misunderstand. I was of the view, from what I had heard before, that it happened once they were on the priority substances list, which is comprised not of nine or 10 but of a considerable number.
Mr. Leiss: Those are the ones that are candidates, but they must first be assessed. You cannot act on PSL-1 substances until you have completed the assessment of them. Once they go onto Schedule 1 you can act, but not before.
The Chairman: This is very helpful to me because I was of a different view. You are saying that under the virtual elimination clauses within clause 65 particularly, the minister can take no steps to control the quantification until it goes through the assessment, and the only numbers that have gone through the assessment are these 12 or so substances?
Mr. Leiss: Yes.
The Chairman: Some people are shaking their heads.
Mr. Leiss: They must be on Schedule 1, which is now comprised of 26. Mr. Lerer was referring to some subset of the 26 when he spoke of 12 and nine. Schedule 1 has 26 substances or classes of substances. On those the minister has the power to act under the virtual elimination clause, but only on that set of 26.
The Chairman: That is not my understanding.
Senator Taylor: Is it possible to call department officials back on that point?
The Chairman: This is unusual, but we do have someone from the department with us. Perhaps she can help us with this.
Ms Nadine Levin, Senior Policy Advisor, CEPA Office: To be absolutely clear, there are about 46 substances on the list. Another 18 to 20 were added in May 1999.
The Department of Justice's advice on and our view of the majority Supreme Court decision is that it provides us with the authority to regulate toxic substances, because the court made it clear that toxic substances fall into a restricted universe, that we are in fact complying with the definition in section 11 of the current CEPA, which has been incorporated into clause 64 with amendments by the House of Commons, and that regulation of toxic substances is in fact legally and constitutionally possible.
Mr. Leiss: If they are on Schedule 1.
Ms Levin: Yes, if they are on Schedule 1. The only other power available to the minister with respect to toxic substances, or substances that are not yet on Schedule 1, where the ministers of health and the environment have identified a significant danger for which immediate action needs to be taken, is something called an interim order power, which is an emergency regulation, and all the authority available in 93(1) to deal with toxic substances can also be used for that situation.
Mr. Leiss: It has never been used, so far as I can tell.
Ms Levin: That is not true.
Mr. Leiss: It could have been used on MMT, but was not.
Ms Levin: The interim order power has been used several times, particularly to deal with the export of PCB wastes.
Mr. Leiss: That was a disaster.
Ms Levin: Professor Leiss is entitled to any opinion he wishes to express.
It has also been used in regard to contaminated fuels being imported into Canada that were contaminated with toxic substances such as PCBs, as well as in other instances. Therefore, it is not the case that it has never been used.
Senator Taylor raised clause 77(6)(c), which says that the ministers may propose a regulation or instrument. An instrument could be an economic instrument, a guideline, or a negotiated reduction plan. "Instrument" is a very broad term.
The guidance the department has received is that various things are possible under the heading of "instrument" in relation to toxic substances.
Mr. Leiss: The most recent copy of the bill I have has only 26 on the list.
Ms Levin: The most recent copy of the bill is the bill as passed by the House of Commons, and at the time of printing there was not time to make all adjustments. However, the department would be happy to provide you with a list.
Mr. Leiss: Just to be clear, Canada is currently being sued under that PCB export ban and we will probably lose that one too.
Senator Spivak: Yesterday, the chemical industry argued for amendments to clause 65. I asked why they are against banning and elimination. They said that they are not, because clause 93(1) can be used. They argued that even though that portion of the bill talked about going straight to the level of quantification, if you had to ban something, you could use the power under clause 93(1).
Is that accurate?
Ms Levin: Clause 93(1) has a paragraph in it, paragraph (l), that allows for regulations for the total, partial or conditional prohibition of the manufacture, use, processing, sale, offering for sale, import or export of a toxic substance or any product containing it.
So that is true.
The Chairman: That refers only to toxic substances in Schedule 1.
Ms Levin: That is right. As I said, if the minister found cause to use the interim order power because there was a danger for which immediate action was required, the minister could in fact take advantage of that paragraph.
Senator Hays: Just to round it out, with respect to new substances other departments are involved for seeds, fertilizers, food, pharmaceuticals and so on. We have had a good discussion as to whether all that should be under one ministry or whether it is okay the way it is. I understand that.
Compared to the existing situation on new substances, my understanding is that we have a stronger situation in Bill C-32 than we did under the 1988 CEPA in terms of ensuring that new substances will not likely find their way on to the list for virtual elimination. I refer to new substances that are either created in or coming to Canada for the first time.
Ms Levin: Are you saying that this bill is stronger?
Senator Hays: Or is it the same?
Ms Levin: In the years after CEPA was passed, a federal toxic substance management policy was developed. It is that policy that deals with the issue of virtual elimination, which is being operationalized in Bill C-32. The concept of virtual elimination is not mentioned in the current CEPA. With the idea of the creation of a virtual elimination list and specifying levels of quantification, the minister can require persons to prepare a virtual elimination plan to show how they will reach that level of quantification. This gives the minister the means to base a regulation or other instrument on those plans. Those kinds of things do not exist in the current CEPA.
The Chairman: Are we finished with Ms Levin? She is not really the witness. Thank you very much for helping us on that point. We appreciate it.
Let us get back to Professor Leiss.
Senator Spivak: Professor Leiss, I have to challenge you on one point. You say there is agreement on phasing out and banning certain substances, yet the witnesses from whom we heard yesterday were opposed on that point. They said, for example, that you cannot phase out or ban the generation of dioxins because they are produced in a process. We also heard from some B.C. people who said that, even though there have been changes in the effluents from pulp and paper mills, effluence is still a horrendous problem.
Mr. Leiss: Who said that?
Senator Spivak: The witnesses from the Western Canada Wilderness Association told us that the effluents from the pulp mills are still quite a problem. They live there and they say that it is a bad situation.
The central issue of debate here is whether virtual elimination can mean phasing out and banning the use and generation of certain substances. However, that wording was eliminated as a result of industry-lobbied amendments moved by the government.
I do not think there is agreement on this point. In fact, there is strong disagreement. That is the whole point.
I do not know whether clause 93(1) is supposed to still allow it. I do not understand why it was so important to industry to ensure that those phrases "phase out" and "ban the generation of" in the preamble and in the concept of virtual elimination were eliminated if it was not an important issue.
Mr. Leiss: I will not speak for the industry. I will speak from the standpoint of how I interpret the public policy position. For me, the word "generation" is ridiculous, because it does not specify how much. The risk assessment approach tells you that it is all in how much, not whether or not you have a molecule, but whether you should worry about it. Do not worry about dioxins. We have solved the dioxin problem.
Senator Spivak: You are saying we have solved that problem?
Mr. Leiss: Yes.
Senator Spivak: I do not agree, but I cannot argue with your position.
Mr. Leiss: We have no known human fatality, ever, from dioxin exposure. We have had some serious illnesses to high levels of exposure, mostly in the Far East from contaminated oil. You can read a whole chapter on that in my previous book.
Senator Spivak: I take your point. I will not argue with you. I am trying to explain to you my view.
I have another question that has to do with MMT. Perhaps I am wrong, but the reason we did not use CEPA with MMT is that CEPA, as well as the proposed bill, exempts CEPA from any product, or whatever, that is regulated under another existing act. Therefore, we have all these other acts to which CEPA does not apply.
I have not read your paper, I am sorry to say. I intend to read it on the plane going home.
Mr. Leiss: What you say is true in the case of pesticides and other things, because they are controlled through legislation. Manganese was not controlled under other legislation. We could have used CEPA. There is a very simple reason why CEPA was not used. It is because Health Canada had already done the risk assessment. They could not have certified it as CEPA toxic, given the Health Canada risk assessment, and it is a very good risk assessment. Thus, Canada had already done what it should have done and showed that it was not an environmental problem. We went ahead anyway.
Senator Spivak: My third question deals with the voluntary approach. I have looked at the two programs and I agree with you that they are excellent programs. You raised the issue of climate change with regard to which that voluntary program has been a dismal failure because we will be 19 per cent over 1990 levels. It has not made even a dent.
I think you have to qualify what the voluntary programs will be used on. I do not think the voluntary approach is one that can be generalized for use in these kinds of situations.
Mr. Leiss: First, it is not a panacea. Second, everyone who knows anything about what are called voluntary approaches, and which I call negotiated approaches, realizes that they will not be of any use if they do not have any teeth. Responsible CareR has teeth because you cannot be a member of the CCPA unless you have signed on to it. You can put teeth into voluntary agreements. People can say, "I am making these commitments." You can say, "If you do not live up to them, there are penalties." It is a piece of cake. You can do that.
Senator Spivak: I have one final comment. The case of MMT shows the deficiencies in the risk assessment procedure.
Mr. Leiss: No, just the reverse.
Senator Spivak: There are many substances that have to be looked at over a long-term period, for which the whole risk assessment procedure is not appropriate.
Mr. Leiss: No, it is.
Senator Spivak: Then you have to consider the precautionary principle, which means that it is not up to us to prove that it is unsafe; it is up to the person selling it to prove that it is safe.
Mr. Leiss: You cannot do that.
Senator Spivak: Why do we need the substance, then?
Mr. Leiss: Because it is useful.
Senator Spivak: Not all substances.
Mr. Leiss: Tell that to the steel industry. There is manganese in steel.
The Chairman: On page 4 of your brief, you make the point in the last paragraph that our need to operate on the basis of risks, not hazards, means that the federal power derived from the Canadian Constitution is largely irrelevant in environmental management. I do not agree with you, and I do not think the Supreme Court of Canada agrees with you.
Mr. Leiss: We can disagree on these things. The language is "environmental management." My interpretation of the Supreme Court decision is that it circumscribes the federal power to a very narrow domain. That is the argument made here.
What "environmental management" means is that we have to manage all substances that may give rise to unacceptable risks. That goes far beyond the list of Schedule 1 substances. The federal power, as interpreted by the Supreme Court, does not allow us to do that very effectively. We need better frameworks for environmental management. That is the argument.
The Chairman: Your conclusion is that, as a result, the new CEPA is pretty much like the old one.
Mr. Leiss: Yes. We may get five or 10 more on the list in another 10 years. That is fine. It will not matter whether we do or not.
The Chairman: So there is nothing gained?
Mr. Leiss: In the sense that we had a chance, from the first CEPA to the second CEPA, to make some progress, in my view we have not made any progress.
Senator Taylor: We have concentrated on toxic substances. To that extent, whether you agree or disagree with it, Dr. Leiss, this seems to be an advance on the old act. There are other portions of the bill. The bill now gives the minister authority to set up a national pollution prevention information clearing house. That is something someone like you would use, is it not? Would you and other scientists not use this as an opportunity to contribute?
Mr. Leiss: I will have to see what is in it.
Senator Taylor: It gives you more input than you had in the old act.
Mr. Leiss: Perhaps. We will have to wait and see.
Senator Taylor: There are deadlines on the toxic substances that we did not have in the old act. In general, public participation and the information feed-in from people like you, Dr. Leiss, is, I think, much better than with the old act.
Mr. Leiss: Yes.
Senator Adams: Professor, the minister told us he did not want to see any amendments from our committee, because it would kill the bill. He also told us that the bill would be reviewed every five years. Will that review include participation from the public and associations such as the chemical producers, or will it just be the House of Commons?
I am asking that because in the case of Bill C-68, the gun control legislation, which I was against, the minister set up a committee with 14 members from across Canada to review the bill; but I don't think anything has happened there, as far as I am aware, and that is now over four years. Will the process work the same way for this bill? Will the public know how they are being protected against pollution through Bill C-32 every five years?
Mr. Leiss: It is good to have a cycle of review. It is ironic in this case that it has dragged on so long and there have been so many different positions. After the minister said he did not want to change it, some of the environmental groups, people I know, said, "That is good because we like the old one better."
From my point of view I do not think it matters whether this bill passes or not, because it is not enough of an advance over the old bill to make any difference.
Senator Adams: The old bill is still law.
Mr. Leiss: Yes. The core of it is toxic substances, and the core has not changed.
Senator Adams: Do you prefer the old one?
Mr. Leiss: It does not matter. You can have the new one. It does not matter.
The Chairman: Those are all our questions, Dr. Leiss. On behalf of my colleagues, I thank you for coming.
Our next witnesses are from the Inuit Tapirisat and I understand that Ms Watt-Cloutier will present their views.
Please proceed.
Ms Sheila Watt-Cloutier, President, Inuit Circumpolar Conference (ICC) Canada; Vice President, Inuit Tapirisat of Canada: Good morning, senators. We appreciate having our voice heard here today.
[Ms Watt-Cloutier spoke in her native language.]
I am assisted today by my technical staff, Terry Fenge of the Inuit Circumpolar Conference; Stephanie Meakin, technical advisor on the POPs issue; and Scot Nickels of the Inuit Tapirisat of Canada.
We thank you for this opportunity. We would also acknowledge the recognition that aboriginal peoples have been given in the act. We are pleased to participate in this review of the CEPA. We appeared before the House of Commons Standing Committee on Environment and Sustainable Development as it undertook the CEPA review and again in 1998 as the committee prepared for its clause-by-clause review of the present bill. Protecting the environment is also an international issue, hence our collaboration with Inuit Circumpolar Conference (ICC) Canada.
Canada is a net recipient of many of these persistent organic pollutants such as aldrin, chlordane, DDT, PCBs and HCB, which reach us from Europe, Asia, North and Central America. The vast majority of contaminants found in the Canadian North come from distant countries where they are used in industrial and agricultural activities. They reach the Arctic through the air and the ocean currents. That is why ICC Canada is extremely active on the international stage encouraging nations to "turn off the taps" on those POPs that contaminate our food chain and endanger our health through our precious country food that we eat.
ICC Canada participated in negotiations of the POPs protocol to the United Nations Economic Commission for Europe Convention on Long-Range Transboundary Air Pollution signed in 1997. Currently we are intervening, in cooperation with the Dene, Métis, Yukon First Nations and indigenous peoples in Northern Scandinavia and Russia, in international negotiations sponsored by the United Nations Environmental Programme toward a convention on POPs to be finalized in 2000.
Contaminants in the Arctic, particularly in the marine food web, which constitutes most of what we eat, pose a significant threat to our way of life. Depending on the type and amount of country food consumed, many of us Inuit have levels of POPs in our bodies well in excess of the level of concern defined by Health Canada.
In the autumn of 1997, studies of Inuit women in the Kivalliq -- Keewatin -- and the Qikiqtani -- Baffin -- regions, showed that 59 and 65 per cent respectively of those studied had quantities of PCBs in their blood as much as five times beyond this level. This is a serious concern for us.
As you have heard, many POPs are endocrine disruptors that cause reproductive, neurological and immune system dysfunctions. Research in the United States shows learning deficits and behavioural effects in children born to mothers with high levels of POPs in their bodies. Most of these pollutants have intergenerational effects because they pass through the placental barrier.
You heard yesterday from the World Wildlife Fund that similar findings have been found with women who have consumed, over a long period, large quantities of Lake Michigan fish contaminated with POPs. Here we really need to stress that the levels of POPs in those mothers and children are well below the levels recorded in Inuit mothers in Northern Canada.
Chemicals that are persistent, toxic, volatile and that bioaccumulate in our food chain, pose a direct threat to our food, our security, our health and our way of life. A new CEPA, as the main piece of federal legislation governing the production, use, generation and release of these toxic chemicals, is the key domestic tool to ensure the safety of our food, ecosystems and health.
Notwithstanding the serious concerns of Inuit about contaminants in the North, information available to us suggests that nutritional, cultural and spiritual benefits of eating country foods currently outweigh the risk posed by eating country food contaminated by POPs. This is what we know today. The social breakdown that results when hunters can no longer provide food for their family, the breaking of bonds between the mothers and infants through discontinuance of breastfeeding and the lack of food alternatives give the Inuit very little choice. We also cannot, as a people, be made to choose between our health and our cultural heritage, including our country food.
The only action that will protect our culture, our ecosystem and our health is the elimination of those chemicals shown to be a threat. The only real solution is prevention -- to end their manufacture, generation and use.
ICC has taken the position in the global POPs negotiations that elimination must be the ultimate goal of any convention. Similarly, elimination of the most dangerous chemicals must be a key goal and principle of CEPA here at home.
It has been made clear to us by the Canadian delegation to the POPs negotiations that domestic law and policy dictate the limits of what can be achieved in the international arena.
Much of what is found in Bill C-32, for example, is based upon the federal government's Toxic Substances Management Policy, which is intended to serve as the centrepiece for the country's position on managing toxic substances in discussions and negotiations with the world community.
An important part of the Inuit position in the global POPs negotiation is the goal of elimination. The changes made at report stage to clause 65 of Bill C-32 render that goal, in our estimation, unattainable.
In this regard, we were impressed by the brief of the Canadian Environmental Law Association. It is of central importance to our health that the POPs elimination principle inform and infuse both CEPA and the global POPs convention.
We rely upon the federal government to fight for our health in the global negotiations. At the last negotiation in Nairobi, which we all attended, Canada's chief negotiator said that Canada favours aggressive action on POPs. This is all very well, but to advocate effectively on the international stage Canada must be seen by other nations to have domestic legislation that incorporates the elimination principle that is being discussed internationally.
The committee has already heard evidence that production and use in Canada of 9 of the 12 chemicals currently on the UN's list for action under the proposed international POPs convention have already been eliminated. The virtual elimination regime now incorporated in Bill C-32 will, unfortunately, guarantee that elimination will not be achieved for the final three substances -- dioxins, furans and HCBs.
Even though action has been taken on those nine substances and even though we feel confident that their production and use can be eliminated globally, we will still be left with their presence in our bodies for generations to come.
It is important to note that additional substances for elimination will, as science progresses, be added to the global convention. CEPA must make way for and accommodate this likely future development. We need your help; there is no doubt about that. We are the people who are most at risk from dangerous chemicals that end up in the Arctic.
We are here today to make one recommendation concerning the principle of virtual elimination so eloquently addressed yesterday by the Canadian Environmental Law Association: Please restore to Bill C-32 the principle of virtual elimination as drafted by the House of Commons Standing Committee on Environment and Sustainable Development.
We Inuit seek to build consensus. In our decision-making, we try as hard as possible not to divide into "Government" and "Opposition," for that can exaggerate small differences into large disagreements, creating and magnifying disunity. Parliamentarians have discussed CEPA for many long months now. In the last few days, we have seen you divide largely on party lines. We are extremely worried about that, for disagreements among you may translate into legislation that will not protect the health of the Inuit of the Arctic. We have suggested that you incorporate the principle of POPs elimination in CEPA, and we will go so far as to say that those who do not do so have a duty to explain to us, the Inuit, why they cannot.
Senator Adams: Thank you for appearing before us today. I believe you made a similar presentation to the House of Commons committee, especially regarding your concern about country food.
Even people down south say that country food is contaminated, as it is in the territories; of course, down south the country food is mostly deer, moose and fish, while up in the Arctic we eat seals, walrus, caribou, and fish. My main concern is that, while down south they have only a short hunting season, we have twelve months a year that we eat country food in the Arctic and in Northern Quebec; and we know that our traditional food has been hurt for many years, because people have been studying there the extent of contamination in mammals and the pollution that is coming from all over the world.
How much will Bill C-32 help if only Canada is ready to cut down on chemicals and pollution while Europe and Russia and other countries continue to pollute the water? You have been to other meetings and heard concerns about the world environment. How will they improve the situation? Do you have any ideas on how to reduce pollution?
Perhaps we will eventually be told that we can hunt no longer and that we must buy beef from down south and that that is the only way we can live now. I hate to think of that happening, but what is the future of our country food? How will we be able to reduce the danger to people from eating country food?
Ms Watt-Cloutier: Senator Adams has raised a very important issue. It certainly is the case that we now say that the benefits outweigh the risks, but how long will that continue to be case? When will the day come when we must make the other choice, not that we as Inuit would like to make that choice? When we live in the Arctic, what choices and alternatives are there?
The cost of food is extremely high in the North. It is not a question of just going to the supermarket. The environment is our supermarket and our way of life. It is not just a case of a physiological contaminant going into our body, but it is the loss of cultural heritage that I stipulated a few minutes ago. We cannot stress enough the importance of that. It may not have a direct link to Bill C-32, but we are talking about a people's way of life that would be lost. All of that is very important. As Senator Adams asked, what choice will we have when it comes to that day?
Mr. Terry Fenge, Advisor, Inuit Tapirisat of Canada: The Canadian government has put in place a number of innovative research programs to try to get the database that is required to make appropriate decisions. Indeed, Canadian science on sources and pathways of contaminants in the Arctic is arguably the best in the world. However, we still lack a considerable amount of data on the effects of contaminants in people in the Arctic. Consequently, it is very difficult to make appropriate decisions and to weigh costs and to weigh benefits.
As has been said, in light of the extraordinary importance of country food, the current information available to us suggests that the appropriate advice is to continue to encourage people to eat country food.
I would make one other point, and I do not say this flippantly. If the levels of contaminants that are being found in the people who eat marine mammals were found in people who eat B.C. salmon, people who eat beef in Alberta, people who eat poultry in Ontario, or people who eat lobsters in Prince Edward Island, it is our view that the sort of bill we would be discussing would be rather different and we would not perhaps be having this rather convoluted and difficult discussion around the principle of virtual elimination.
Senator Adams: Well, the Inuit are not mechanics or producers of mechanical things; we just like living off the land; we like that life.
At any rate, we have heard from some witnesses that they do not like the bill the way it is right now. Some companies do not like the bill. And yet it has been worked on for several years and the House of Commons spent a great deal of time going through it clause by clause.
There are a few mentions of aboriginal self-government in Bill C-32. I do not know what exactly they mean, but some of the clauses do talk about aboriginal self-government. They do not say anything about how Bill C-32 will improve the environment. Do you agree with the clauses that talk about aboriginal self-government and how much we have to say about Bill C-32, if it passes?
Mr. Fenge: The sort of self-government models that Inuit have chosen are rather different from the models of aboriginal governance and government that other aboriginal peoples have chosen. I believe that it is important that you appreciate that.
The Government of Nunavut, for example, is a public government and operates fully on the principles of liberal democracy that are familiar to us all. The Inuit view on this will, perhaps, be rather different from the view of other aboriginal peoples.
Ms Stephanie Meakin, Advisor, Inuit Tapirisat of Canada: Certain provisions in Bill C-32 recognize two important things for Inuit and aboriginal people, the role of self-government and the government-to-government relationship of aboriginal people with the Canadian federal government. To that effect, they are given official seats on the National Advisory Committee as a recognized government body.
The other important inclusion in the bill is the recognition of the value of traditional ecological knowledge and the incorporation of that knowledge into certain clauses of the bill, such as enforcement, for example, where there may be a case that traditional ecological knowledge needs to be incorporated into enforcing parts of the CEPA bill.
It is those two points that we appreciate in this bill, notwithstanding our hesitation and our reticence about the virtual elimination clauses.
Senator Adams: I enjoy hunting when I go home to the Arctic. The average family in our community may consume between 20 and 30 caribou per year. I got five or six myself a month ago. I think it would be a good idea for people taking home caribou, for example, for their families to eat to leave some part of the caribou for study by biologists from the Department of Health. Everything we eat down south is inspected and has the stamp of the government on it. We do not do that up in the Arctic. There should be some clause in the bill dealing with food samples of the food we consume. They could be sent to a lab in the south for examination.
The liver of one caribou I caught looked like sand paper. That must have been caused by pollution. If there is something that looks abnormal, there should be a policy to have it tested in a lab. What do you think about that?
Ms Watt-Cloutier: As the years have gone by, our regions have become stronger and have been developing their own scientific research departments. The Makavik Corporation has our food tested on a continuous basis. I think many of the other regions are starting to develop their own research as well.
As you say, senator, there has to be much more ongoing research done. We at ICC Canada certainly are trying to work through some of those issues as well. It always requires an incredible amount of proposal writing and funding to get these research projects under way.
Ms Meakin: That brings us back to our core recommendation, which is that we believe this bill is not about whether chemicals are useful in society. We can all agree they are. I think we can all agree that minerals in our vitamins are necessary. What we are talking about is certain substances that we believe, based on the current scientific information and the precautionary principle, are too dangerous to be in society.
We have evidence of high levels of these substances in the food that people in the North eat. We have evidence that these chemicals could affect generations to come. They cross the placental barriers. They are found in mother's breast milk. This is something that is not taken lightly in the North. Nor is it taken lightly in the South.
We believe that these are the chemicals that need to be eliminated from our society. Even if the taps are turned off today, it will take generations to remove these substances from the environment. We are not saying that these are not important. We are saying that, if we have a clause that stipulates that certain substances must be removed, it puts the onus on society and industry to come up with alternatives. There are always alternatives. The nine substances in Canada that have been removed or eliminated were eliminated because they were replaced by alternatives.
We are not making any argument to remove needed or important substances from society. We are saying that we have a responsibility to future generations; and the Inuit in the North may be the canaries in the coal mine. We have high levels; yet we have no definitive proof of effect. Such studies cost millions of dollars. The Canadian government does not have that type of time or money to put in to definitively tell us that this level in mother's breast milk causes that effect. However, we have evidence to suggest it does. We simply need to use common sense, and have some sensibility of the precautionary principle. These are all substances that were designed to kill. Why would they not cause harm?
If we talk about testing country foods, many people, many different organizations and many government departments are trying to answer these questions. We know that there are contaminants in the country food of Inuit people. We know that in the laboratory they have detected the effects of these chemicals. We know that many of the chemicals we are talking about have an effect even in extremely low amounts, but these are matters which the regulations cannot reach. It may be a matter of one exposure to one small dose at a certain time of foetal development that causes the effect.
These are difficult questions to answer. If we have enough information, we have to strive for elimination of these critical chemicals.
Senator Adams: Mr. Fenge, what are your concerns as far as this bill is concerned and how it affects those of us who live in the Arctic?
Mr. Fenge: I do not live in the Arctic. That is one of those open-ended questions that I guess witnesses either like or not. We have observed the very difficult process that you have been going through. We have been sitting at the back of the room watching the debate and hearing the witnesses. It was because of the difficult issues that face you and the political difficulties that face you that we put the final paragraph in our brief. It is for that reason that we have confined our substantive recommendations to you to one point.
Many of the people who have come before you have said, "Gosh, there is a whole raft of things that we would like to change, if we could, but we recognize that it is pretty late in the game and therefore we will bring ourselves down to the most important things."
That is what we have done. We have only made one recommendation to you regarding the reinsertion of an expansive definition, understanding and implementation of the principle of virtual elimination. We have confined our recommendation to that core principle, because that is the most important one to us. Indeed, we are fighting exactly the same battle, and we are providing exactly the same information, on the circumpolar and on the international fronts, as we provide here to you today.
I think you have heard from some industry representatives in the last few days regarding the ongoing global convention on POPs. It is important that you appreciate that that convention may well become a POPs elimination convention. Certainly, that is something we are striving for and it is being pursued by various other organizations. The debate you are having here is mirroring the debate going on at the international level.
The last point I will make is that we were particularly keen to get you to appreciate and understand that the sort of debate that is going on here, informally and formally, provides the negotiating instructions for the Canadian delegation when they are off to Geneva to put forward the Canadian position. A weakened CEPA will translate into wayward, less-than-top-line positions that Canada will take and argue internationally. We have said in our brief that the problem in the North, by and large, is international. That is where we are expending a great deal of our political and technical effort.
Senator Adams: Since joining this committee, yesterday was the first time I heard environmentalists opposing an environmental bill. They are usually telling us not to kill the seals and not to kill any more caribou or fish and so on, but yesterday they were here opposing this bill. For instance, when the Sierra Club appeared before us on the bill for the establishment of Tuktut Nogait National Park, they opposed, for environmental and other reasons, having the land transferred to the mining company. However, yesterday, Ms May told us she was opposing this bill. As I say, that was the first time I ever heard environmental people being against a bill like this. I found it strange to hear that they do not want to see the bill passed by the Senate.
Mr. Fenge: We have characterized our job as to come before you and do everything we can to persuade and cajole you into making a core amendment to the bill. We perceive our job solely and only as trying to assist you to improve this bill. We are not before you requesting you either to kill it or to send it through. We have defined our job relatively narrowly.
Senator Chalifoux: I think, Mr. Fenge, you have answered part of my question. I have been watching for a long time the marvellous effort that your organizations in the Arctic have put forth in the areas of circumpolar pollution and the food chain and those sorts of issues. It is well established that, through circumpolar air currents and water currents, other countries are affecting our atmosphere and our environment in the North. Does this bill improve the negotiating power that you would have when you go to Geneva and when you start working at the international level?
Ms Watt-Cloutier: I think that is the whole point. If we have a strong CEPA, one that moves towards elimination, it will absolutely have the effect of strengthening the position of the Canadian delegation in Geneva and throughout the process until the year 2000, when we hope to have a finalized convention on POPs.
Senator Chalifoux: But does this bill assist you in comparison to the old CEPA?
Mr. Fenge: A strong CEPA will assist markedly. In fact, it is important that the committee appreciate that Canada has played a leadership role, in certain instances, on the international front. It was Canada that used Arctic data, published by Canadian scientists and federal government scientists, to persuade the United Nations Environment Program's governing council to put the idea of a global POPs treaty on to the international agenda. That was done some years ago. We have found it curious and passing strange that that original enthusiasm, that original commitment, seems to have waned somewhat in the last few years.
We have had some successes on the international front. Let us take, for example, the LRTAP POPs protocol to the United Nations Economic Commission for Europe. As with many of these international treaties, it is a rather boring and turgid document, but if you look at the preambular provisions, you will see cogent and concrete reference to indigenous peoples and to the Arctic. That is there because we and other aboriginal peoples are fighting on the international stage. We will do the same thing again at the global POPs negotiations. We are having significant successes. Canada, as a significant Arctic nation, is seen to be one of the lead nations in this debate, and we are hoping that a weak CEPA will not cut the legs from underneath us.
Senator Chalifoux: I am still asking you whether this bill will make your negotiating position better or will it be weaker than with the existing act?
Ms Meakin: When we are at these international meetings, it is becoming very clear that there are certain majority factions that would like to see this become a bill of perpetual chemical management. Yet there is another group of people who would like to see it become a global convention for the elimination of those worst substances in society. What we need in the new CEPA is the provision in clause 65 that stipulates that those worst substances will be eliminated -- not the interim steps that are set out in this new CEPA that would in essence allow producers to move towards an acceptable release or use of a substance.
International policy does not move domestic policy. It is the other way round. If we go to Geneva with domestic legislation that says that, no matter how toxic a substance is, it can be released in an acceptable quantity set by the government or by the minister, then we really have not achieved virtual elimination, so how can we, internationally, ask countries, where alternatives exist and are appropriate, to stop using a substance of concern?
What we need in this new bill is the wording of clause 65 from the report stage, which made the virtual elimination attainable. That is what we are hoping to achieve.
Senator Chalifoux: But in your opinion, does this new bill assist you more than the old CEPA? Do you have more clout? I know you are not satisfied with it, but compared to CEPA 1988, is this bill worse?
Ms Meakin: No, it is the same. With respect to the virtual elimination clause, it is about the same.
Senator Spivak: I want to absolutely clarify what you are saying. The bill was changed not only in the preamble but also in the virtual elimination reference to ensure that it did not relate to the ultimate goal of phasing out usage. That is the problem with the bill.
You are saying that, on the international stage, we must be certain that virtual elimination means phasing out the use and generation of certain substances. As the bill stands now, though, it refers to certain levels of quantification as being okay. Let us be very clear. In order to do as you ask, we must make an amendment to the bill.
You say that many POPs are endocrine disrupters that cause reproductive, neurological and immune system deficiencies. The United States is testing 15,000 substances for these endocrine disrupters. Canada is not testing any; we are still looking at the research. Even more important, we have the concept in the bill of risk assessment.
Risk assessment is not a good strategy, as I understand it. I would like your opinion. Endocrine disrupters have been discovered only recently and they are very disturbing. Risk assessment is very long-term approach. This type of damage may not be assessable in a very short period of time. Such studies take a lot of money, too.
The concept of risk assessment then is opposite or contradictory to the concept of the precautionary principle, which should be used to respond to these particular kinds of substances.
Again, I am glad you reiterated that we are not looking at the 23,000 substances. We understand that some chemicals are toxic and yet they need to be used. We are only looking at a very few substances.
Can you comment on whether you have looked at that in the bill? Endocrine disrupters cannot show up on the list because they are just now being studied. Would you comment on the concept of the precautionary principle with regard to endocrine disrupters versus the concept of risk assessment?
Ms Meakin: Just on those few questions a few Ph.D. theses could be formulated, I am sure. I will try to respond.
I do not believe that risk assessment and the precautionary principle actually have anything to do with each other. Risk assessment is a very technically and scientifically defined meeting of criteria that have been established through a specific process. The precautionary principle perhaps takes a less scientific position. For instance, certain substances were created to destroy the neurological systems of insects. Now we are finding them in Inuit children and we are seeing a higher incidence of immune system diseases and ear infections. Perhaps there is a link.
We will never, ever have enough information to satisfy risk assessment and risk management. At some point in time, as a society, we must make a decision that, based on the information we have and the alternatives available, perhaps we can and should do something differently. That decision is made not with all the information that could possibly be attained through every study that could be done. That decision is made on the basis of human common sense saying that there is an alternative and we can use it.
With your example of endocrine disruption, perhaps we have to look at the definition of inherent toxicity. Perhaps we have to say that the use of some substances already shows cause and effect. We could move that substance ahead in the assessment process. Maybe that substance need not pass through two years of scientific study, when we already have cause and effect right here.
Senator Spivak: Risk assessment is designed to show proof of harm, right? You must show proof of harm. In the precautionary principle, those who are producing the product must prove that it is safe. It is a reverse onus. That is also a valid concept in science, is it not?
Ms Meakin: Whose rights are we protecting? Do the chemicals have more rights than people? Where do we make that decision? In a perfect society, you would not be able to use a substance unless its effects were proved harmless.
We say that we already have a system in place that does that. The system in place is a very good system, but we have new evidence on substances like endocrine-disrupting chemicals that can have a one-dose, one-time effect. That is not part of our health assessment system. We know that a developing foetus, at a certain day and time, if exposed to a certain chemical, can suffer an effect. We know that. Those one-time exposures are not yet part of any assessment process of which I am aware.
That is where the precautionary principle comes into play. We use our judgment. We look for alternatives and we encourage society and industry to develop and use those alternatives. We do not continually and perpetually allow money to be poured into reducing emissions or reducing inputs.
Senator Taylor: I compliment your group for a clear and focused presentation. I want to talk to you about one of your clear goals regarding virtual elimination. You are apparently well informed. Some complain that virtual elimination is a moving target, but, technically, it means that a substance exists at levels so low they cannot be measured. As measurement techniques improve continually, industry, from an investment point of view, needs to know what the target will be.
Have you overlooked clause 93(1) on page 66? It states:
...the Governor in Council may, on the recommendation of the Ministers, make regulations...respecting,
(l) the total, partial or conditional prohibition of the manufacture, use, processing, sale, offering for sale, import or export of the substance or a product containing it;
In other words, you want to know whether the minister has the wherewithal to enforce it. The authority is already in there to eliminate a substance without going through the gobbledy-gook of virtual elimination. What would be your comment on that?
Ms Meakin: We still believe in our assessment of the bill, including the fact that clause 93, as written, does not compel the government to enforce the aspect of virtual elimination. The CELA brief spoke to those issues. We believe that, if we had in clause 65 a clearer definition of "virtual elimination," the following clauses that stipulate the progress or how to implement virtual elimination would follow from that.
Even though clause 93 does say what you have just read, we do not believe it is attainable to achieve virtual elimination, even with regard to that clause.
Senator Taylor: It boils down to whether you believe, as we say out west, that they are a big enough stud to get the job done.
The Chairman: That is an important point that one must clarify. My understanding of the point that Senator Taylor is raising is that, under clause 90, the minister must be satisfied that the substance is toxic. Then you must go through the whole process and the risk assessment that we have heard so much about that takes forever.
When I first looked at that, Senator Taylor, I concluded that there were powers there, but when I look at clause 90 we get into being satisfied that it is toxic and we are right back into the other problem. Is that right?
Senator Taylor: I do not know if I can help you.
The Chairman: It is such an important point.
Senator Taylor: All your colleagues in the House of Commons voted unanimously for this bill. I do not know where you stand.
The Chairman: That was very helpful, Senator Taylor. I thank you for that.
Senator Spivak: That is very scientific. That is a good scientific system: "Everyone voted for it."
Senator Taylor: As they say, "We have seen the enemy, and it is us."
On the question of information, Bill C-32 has two new things that were not in the old CEPA. This particularly applies to our northern peoples. It imposes an obligation on the Government of Canada to apply "traditional aboriginal knowledge." In other words, you have input here that you never had before. It also allows the Minister of the Environment to sign administrative agreements with aboriginal people. Those agreements could cover the monitoring of environmental quality by aboriginal people, the carrying out of research, the sharing of information, or the enforcement of one or more parts of the bill. Would you consider making such an arrangement with the minister so you would be right in on the ground floor?
Mr. Fenge: We said earlier that the Government of Canada has put in place research programs, and I am very happy to tell you that those research programs, specifically the northern contaminants program, are implemented cooperatively with Inuit Tapirisat, ICC, the Dene nation, the Council for Yukon First Nations, and the Métis Nation of the Northwest Territories. You will also find reference to putting an onus on the Government of Canada to consider and to utilize traditional ecological knowledge in certain other statues, such as the Canada Oceans Act. While we acknowledge and applaud these things, you should not think this is anything tremendously unusual.
Senator Taylor: Here again, CEPA is setting up that consultation about which we heard earlier in the Quebec court decision. It is setting it up with our aboriginal peoples in the North so you will have a much better monitor on it and be in an the starting point.
Mr. Fenge: Yes, but in the North this is happening primarily through land claim agreements that have been signed by the Government of Canada and the aboriginal peoples concerned.
Senator Taylor: Up to now, it has been that way, but this act seems to me to broaden that base so we do not have to wait for a diamond mine to come along in order to work it out.
Mr. Fenge: I am sorry.
Senator Taylor: Are you suspicious?
Mr. Fenge: It is not a matter of suspiciousness; it is knowing what takes precedence. The rights enshrined in a land claim agreement take precedence over any federal or territorial legislation. That is where the sea change has been, through the rights enshrined in the land claims agreements. If you look at the Nunavut agreement, there are specific provisions in that agreement regarding environmental monitoring. That is what has really changed things. The legislation before you now is following a path that has already been followed.
Senator Taylor: The point is that, no matter the reason, you are questioning Santa Claus about the presents under the tree, but they are under the tree now, and we are progressing in that way.
Senator Cochrane: I thank you for all the time that you have devoted to this and the effort that you have made to come here and give us the benefit of your expertise and concerns about Bill C-32.
On August 16, I received a letter from Senator Adams. He has voiced several concerns as well. He stated that levels of PCB in breast milk of the Nunavut and Northern Quebec women were 10 times higher than levels in women in other parts of Canada. He also said that, over the long term, he wanted to protect the health of northerners and others against ever-increasing threats brought about by the use and abuse of chemicals. He stated that it was his view that environmental and health matters in the North may be the most serious in the country. He stated that he believes this bill should clearly state the intention to phase out these products entirely. He stated that it was his intention to propose several amendments, which he believes will strengthen both the intent and the application of Bill C-32, and that, at the appropriate time, he will do that.
I am sure you have been in consultation with Senator Adams and I am sure he understands your views, because you have a common entity here on all your problems.
Would you like Bill C-32 to be the same as the one drafted by the House of Commons committee? Would you like to see us put that amendment in?
Ms Meakin: Our recommendation is to take the definition of "virtual elimination" from the bill at report stage.
Senator Cochrane: You have been sitting here for all these hearings, I understand, and you have expressed your concern about the set-up of our committee and so on. We know, and you know as well, that Senator Taylor has put forth a motion to restrict the number of witnesses that we can hear and cut off hearings as of September 1. That being the case, of course, any amendment will also be wiped out, because our committee is seven-four, unless Senator Adams and other senators wish to put forth the amendment that you wish.
I do not know what to say to you about this. I know you have spent a lot of time here, and I sure hope that your time will turn out to have been well spent. How do you feel today? Do you feel a little better about your presenting this argument to us?
Ms Watt-Cloutier: This is not scientific or technical, because I do not think your question is that. When the Inuit voice is heard and people are listening to it in some form, it is always a good day. That is in and of itself good in that sense.
However, since I came to this elected position at the international level, and this is one of the biggest files that I handle, I must say that it has been a real challenge for me to have this voice not so much heard as translated into real effective action so that we can feel reassured that our Canadian government is behind us 100 per cent of the way on this issue.
Anyone who has an eye on the Inuit world will understand that the challenges that we face as a people are monumental. We are trying on a daily basis, because of the tumultuous changes that have occurred in our homelands over the past 50 to 60 years, to pick up the pieces for our children, to create solid, strong institutions that reflect wisdom and all the rest of it. In terms of our children, the last thing we need is to worry about is endocrine disrupting pollutants that affect the intellect of our children who we are trying to prepare for strong leadership so that we may survive culturally.
That is the bottom line. It is not just about chemicals going into our bodies. This is a way of life that is at stake. I cannot say that stronger than I say it now. We need your help. We are pleased and happy that you hear us, but this is our way of life that is at stake here. It is not just about food in our bodies. It is about spirituality. This is everything. We lay that out to you to hear us.
Senator Cochrane: God bless you and good luck.
Senator Hays: Amendments can be proposed by this committee. This committee could refer the bill back saying it should not be passed or that it should be amended. Only time will tell what will happen. I think its likely disposition is its passage. However, that is not a certainty and will not be until it is passed in the Senate. It is not correct for Senator Cochrane to say that that is precluded by the motion moved by Senator Kenny. She has her opinion and I have mine.
It occurs to me that you might be here anyway, even if the bill were as it was when it came out of the House at committee stage, because, you know, under clause 65(3) the minister could take prolonged steps to achieve virtual elimination.
Senator Spivak: No. That was taken out.
Senator Hays: Oh, was it?
Ms Watts-Cloutier: But we agree that that is what we would like.
Senator Hays: Then I guess I am misinterpreting this document in its wording, "before and after report stage."
The bill as it has gone through the various stages seems to provide for a discretion either on the part of the minister or on the part of the government by Order in Council as to the time-frame within which virtual elimination is achieved, as well, of course, as to the inclusion in the list of substances to be virtually eliminated.
The thrust of your argument, with which I am very sympathetic, is that over time we have seen an unacceptable buildup of particularly persistent organic pollutants in the systems of people who eat food high up on the food chain or who survive on that food for cultural or other purposes. At the various stages of the way in which this legislation has proceeded, there has been that discretion. The minister does not have to put it on the list. There will be people from the environmental community and from the community who want to use or who have created a substance about which we are concerned. This is a process that will occur no matter what is in this legislation. In any of the stages of the way in which clause 65 has been drafted, it occurs to me that that would be the case.
I am suggesting to you, as I did to an earlier witness, that the key problem here is the way in which we administer the legislation. It is not so much the wording of the legislation, given what has been presented to us as a bill and the various ways in which it was worded prior. The wording I am looking at is after House report stage, which looks very similar to Bill C-32. I was told that the wording "after House committee stage" was not really relevant.
Ms Meakin: I am not sure if there is an answer to your question.
Senator Hays: For you, the key issue is the wording of the bill and not so much the way it is administered. You want to drive the process through the act.
Ms Meakin: We want to see virtual elimination as the ultimate goal, not the process.
Senator Hays: What does virtual elimination mean to you?
Ms Meakin: It means the phasing out or the cessation of production and use.
Senator Hays: Just to go to the example of the chemical producers having to do with diesel engines, some of the substances are by-products of combustion. I do not know about by-products of gasoline. We could go from diesel to gasoline which would have other implications. What I heard them saying is that we need some flexibility there, some time to phase out diesel engines, to phase out wood combustion and these other things if we are to eliminate all of these substances from the environment. Someone has to make hard decisions, saying, "No more diesel. No more wood fires," and so on.
Do I hear you saying that you want to put in the legislation that there is no discretion there, that those things must be gone within say seven years or five years? Explain your position on that, please.
Mr. Fenge: Concerning your first question, it is our view, and I think it is the view of any and every Inuit organization that I have worked with and for, for many years, that public policy should be driven by parliamentarily approved statutes. We appear before a variety of parliamentary committees and we very much favour the principle of parliamentary scrutiny and oversight. We are suspicious, if I may use that term, of overly wide discretionary limits being given to the executive. As a general principle, that is where we come from.
That is why you find that land claim agreements are highly detailed documents, not modelled on the old 19th century numbered treaties which may be just one page in length. The principle has been: if it moves, tie it down; define it. That is how we view the world.
Having said that, let me reiterate what Ms Meakin said earlier. We recognize certain principles of common sense, which may not be defined in the bill and which are difficult to define. We are not trying to deindustrialize society or make silly decisions here. Of course there is discretion, and discretion will be based upon common sense.
Senator Hays: But won't that common sense be good or bad, used or not used, in any of the three versions of the bill that exist? Will it not be driven by the same principle? The role of a committee of parliamentarians is to ensure that the government is presented with the best possible legislation based on input, such as the input you are giving today. That having been done, they then have some responsibility to ensure that they act accordingly, and then, periodically, we have elections by which members of the House of Commons are made to account for their actions. That is the main driver of the result that you are asking for today.
What you want is a better environment for people in the North, and a bill which eliminates or identifies, in the case of new substances, a situation where we have a problem of build-up of accumulative effect, of exposure to chemicals we want eliminated from our environment.
Mr. Fenge: I think, at a general level, we are in fundamental agreement. The view of Inuit organizations has been that parliamentary scrutiny and parliamentary oversight are extraordinarily important principles. Consequently, we say, in the last couple of sentences in our brief to you, that, in light of the public health dimension of this issue to the Inuit, we believe that there is an onus upon you individually to explain to us, when votes come forward, why you would not be able to adhere to the sort of virtual elimination recommendations that we have made.
Senator Hays: I have one final point, Mr. Chairman. I am looking at Senator Spivak's copy.
Senator Spivak: This comes from the minister's office.
Senator Hays: I was quoting from the legislation as it came out of the House of Commons committee, and it said that, when taking steps to achieve the virtual elimination of a substance, the minister shall, and so on. It seems to me that must be worried about the steps. You do not want steps taken; you want it done. However, I think you also acknowledge that there must be some flexibility in the way that it is done. It is a question of how much, and I understand that you see less flexibility in the previous manifestation of this bill than you do in the one that was passed by the House of Commons. I think I understand your position and your objective. I share it, and we will see how the bill goes.
Ms Meakin: Perhaps I could make one point of clarification on our position. Implementing the concept of virtual elimination is important, as well. If we have the steps, as the clauses are laid out in the bill you are reviewing right now, there is very little emphasis on moving to that eventual goal. The orientation is toward these interim goals that have been established. It is quite clear that it was amendments supported by industry which changed those clauses, not that that makes me suspicious, but the interim goals concern me.
Senator Hays: I understand that. In groups like this, we listen to everyone, including industry, and try to achieve the correct balance. I hope that is what arises out of our work here.
Senator Adams: The minister was here earlier this week. It was mentioned that the bill has the power, if we pass it, to ban lawn mowers and Ski-Doos. In every community up north, people use Ski-Doos to get around. If they are banned, how will people in the communities get to their hunting grounds to get food for their families?
Ms Meakin: We support alternatives, if we can find them. I think industry is capable of anything. I think that has been clear through the advances we have made. If we can make advances to reduce emissions from snowmobiles and lawn mowers, I think that is what we should be supporting. We acknowledge the need and the use of chemicals in the industrial system we live in.
Senator Adams: There was also talk about the problem with pollution from diesel engines. Every community up north has diesel generators, and it is the same problem. We have to find a way to improve them so that we are not polluting the atmosphere with them. I know that on some calm days I can see the smoke in the air from the diesel plants and generators in the community. It will take time to change.
Senator Hays: Is it windy up there.
Senator Adams: Perhaps we could put windmills in.
The Chairman: I have not seen the amendments that Senator Adams plans to move, but I can guarantee you that there will be amendments moved that will deal with what you have raised. I do not think the amendments will be what you think they will be, because I do not believe that the House committee in their wording would satisfy what you are asking for. Clause 65 talks about the ultimate reduction on the basis of quantifiable levels. If we are going to have virtual elimination, we should not be talking about ultimate reduction, I think we should be talking about ultimate elimination. Clause 65 merely sets out levels that may be released. What I am hearing from you is that you want ultimate elimination, not ultimate reduction on the basis of quantifiable levels.
I know that the amendments that will be coming from my colleagues will relate to what you are saying. What happens to them, obviously, is in the hands of this committee and ultimately in the hands of the Senate, but I can assure you that some of us totally support what you have just said, and I hope it works out for you.
Thank you very much for your presentation.
Our next witnesses are from the Métis Provincial Council of British Columbia.
Please proceed.
Mr. Jody Pierce, Métis Provincial Council of British Columbia; Métis National Council: We thank your committee for inviting the Métis National Council to appear before you in your review of Bill C-32.
The Métis National Council was formed in 1983 following the recognition of the Métis as a distinct people with aboriginal rights in the Constitution of Canada, 1982. The Métis National Council consists of five governing member organizations: the Manitoba Métis Federation; the Métis Nation of Saskatchewan; the Métis Nation of Alberta; the Métis Provincial Council of British Columbia; and the Métis Nation of Ontario.
The board of governors consists of democratically elected leaders of these organizations through a ballot box system. Each governing organization has a regional structure and a network of community-based locals.
The Métis National Council is the national organization representing the Métis Nation of Canada. According to the 1996 census data, there were over 210,000 Métis in Canada. Most Métis live in Western Canada in both remote and urban communities. There are over 300 Métis-only communities across the homeland.
Unfortunately, our environmental representative of the Métis National Council, Mr. Morin, is unable to be here today. At the national level, Mr. Morin has been active in contributing to the Canadian biotechnology strategy task force as an ad hoc working group for the National Pollutant Release Inventory, the Canadian Wildlife Services regarding endangered species and the Canada-wide Accord on Environmental Harmonization.
The Métis Nation has a wealth of knowledge regarding environmental issues at community levels across the homeland. The Métis are a resourceful people and can provide historical information about the specific geographic areas within Canada, as well as the impacts that current situations have created on the ecosystems and on the livelihoods and lifestyles of Métis families.
As the number of environmental organizations grows with public demand, Métis people stretch to ensure that our voices are heard across the country. We recognize the profound impact that environmental management has upon our people. We have taken on the task of protecting our homelands. The Métis have a responsibility to contribute knowledge required for the protection and management of the Canadian environment.
Through this piece of legislation, there is recognition of the importance of the traditional aboriginal knowledge in making decisions related to protecting environmental and human health. It is critical that partnerships are formed and the needs of aboriginal and non-aboriginal peoples are met. However, in order to participate as partners in environmental management, the Métis people need the capacity to do so.
At present, the Métis National Council has no vehicle to ensure our involvement and representation within the different aspects of Canadian governments' renewal and development of the Canadian environmental strategy and other governmental processes. It is a fiduciary responsibility of the federal government to ensure that First Nations organizations have adequate resources to participate in these important environmental processes.
As a constitutionally recognized aboriginal people, the Métis must be given equal consideration and involvement in the consultation and development processes, along with the First Nations and Inuit. What I mean, honourable senators, is that the Métis are not being treated equally. We must be at the table as partners in Canada.
There is a need for the Métis National Council to establish an environmental network. The Métis National Council environmental network will have two primary functions. It will be a means of gathering, storing and disseminating information. It will also assess human resources and needs in environmental management and coordinate training for the Métis to fulfil the essential services required to ensure the longevity of the Canadian environment.
The Métis National Council is submitting a proposal for the development of the environmental network to Environment Canada and seeking the support from this committee for the proposal on contributions to the environmental policies and legislation and processes.
Many of these issues considered in the legislation are of concern to the Métis Nation. We appreciate the opportunity to put forth our recommendations on behalf of the Métis people of Canada. Bill C-32 calls for ministers to establish a National Advisory Committee consisting of governmental representatives and six representatives of aboriginal governments to be selected on a regional basis. The definition of "aboriginal government," as contained in the legislation, excludes the Métis governing body. During some of your earlier proceedings, it was recognized that only about 15 aboriginal governments will meet the definition, and the Métis will be excluded.
Will the Métis people of Canada be adequately represented in the proposed advisory committee? As the legislation reads now, the Métis National Council must express concerns over these compositions.
Métis people have real-life experiences, insight and knowledge to contribute to the sectors of mining, forestry, agriculture and health, among others. Although an increasing number of Métis people live in urban centres, the majority of our people still make their homes in the North and in rural areas.
Thirty to 40 years ago, the Métis were self-sufficient. Many of them were not dependent upon government programs for their survival. Our people have gained a livelihood from the resources of the land today involving forestry, hunting, trapping, guiding, mining, and the traditional gathering of berries and medicines. However, the economic development ventures are intensifying and resources are being extracted by industry. This negatively affects the land and environment.
With increased industrial production around the world, there is also an increase in the number of pollutants. In the Fraser River, there are few fish swimming now. You can go fishing off the coast of the lower mainland where the salmon used to be plentiful, but there are not as many there now. It is difficult to sustain a livelihood.
I can name a few projects that are affecting our lands and our communities. There are the gas and oil projects in northeastern British Columbia, the nuclear waste projects in Saskatchewan and the nuclear waste out of Slave Lake, which is also draining into Lesser Slave Lake. The elders tell me that they do not eat the fish from there anymore because they are worried about the pollutants, which are flowing into those lakes.
As a result of environmental mismanagement, transitional livelihoods have been undermined, and this is creating poverty. We are at a crossroads. We need to change the way we relate to our environment and the way we approach development. The Métis National Council believes that we can play a major role in this change.
Another concern of the Métis National Council is the definition being used of "aboriginal land." Regulations under this bill apply to aboriginal lands. The definition of "aboriginal lands" includes reserves, surrendered lands that are subject to the Indian Act, as well as the land that is subject to comprehensive or specific claim agreements or under self-government agreements.
There is no process in place for us, the Métis, to address our aspirations and our land claims and self-government issues. This bill excludes the traditional lands of the Métis. The Métis National Council believes that Métis people and the communities are key stakeholders and need to be represented and involved in these matters.
We appreciate the opportunity to speak to you today. We should like to conclude with some specific recommendations. We recommend that the Government of Canada ensure our participation in the national environmental harmonization as one of the bases for a nation-to-nation approach, with the emphasis on partnership. We recommend that the proposed national advisory committee be restructured to ensure adequate Métis participation; that the Government of Canada provide resources to establish the Métis National Council environment network that will ensure meaningful participation in environmental processes. We also recommend that resources be provided to the Métis for capacity building in the area of environmental protection, including training in areas of environmental emergencies, monitoring, testing, analysis and enforcement. In addition, we recommend that the agreements being negotiated between the Government of Canada and the Métis people include provisions to establish environmental protection regimes and provide adequate authorities and resources for the implementation of some regimes where Métis seek to establish control over environmental protection on our lands, such as nuclear waste sites in northwestern Saskatchewan.
The Métis do not have a comprehensive environmental management scheme in place with regard to the self-government land claims agreements. We want to have the opportunity to work as equal partners to coordinate perspectives and environmental management regimes.
Mr. Bob Stevenson, Advisor, Endangered Species and Harvesting, Métis National Council: Senators Adams and Chalifoux will know, since I have known them for many years, that I not only work with the Métis National Council on various environmental and other issues, but also with the Harvesters Committee of the Assembly of First Nations and from time to time with the Inuit on the issues of trapping, et cetera. We have seen each other many times at various meetings. I am very glad to see them here.
Métis people should be regarded as equal to the Inuit. We are not properly recognized as First Nations with land bases, nor are we are recognized in many areas, including the environment. Most native people try to work with everyone. Many of us demonstrate that all of the nations of the world are important to us by wearing a button with the colours yellow, black, red and white. As you know, Canada is made up of all people from all nations of the world. It is important for us to impress upon governments that we should not be excluded because we try to work with and include everyone with regard to environmental protection.
I have a concern with this bill with regard to the inclusion of what is known as traditional aboriginal knowledge. Scientific knowledge seems to be the only type of knowledge recognized in many fora, although gains are being made in that area.
I also serve on the Indigenous Peoples Secretariat on the Convention on Biological Diversity, which is headed by Environment Canada. It has an aboriginal component with many aboriginal groups working on it.
Last week, I was asked to chair a meeting of about 30 aboriginal peoples from across the country on the Endangered Species Act. It was held at the Friendship Centre here in Ottawa.
As Senator Adams and Chalifoux will know, I have for a long time been an advocate of aboriginal trappers, the fur industry, et cetera. I have worked in that field for the last 13 or 14 years.
I do much work with schools. I teach a life skills on the land program, which is comprised of outdoor education, native awareness, survival in the woods, and aboriginal environmental issues. I teach these things from a Métis and aboriginal perspective.
I cannot overemphasize my concern for native trappers.
I hear much in the news about nuclear waste. We are very concerned about this issue. It is included in the negotiations of the Métis of Saskatchewan for a land base of their own. The only recognized Métis land-based communities are currently in Alberta. That is not yet federally recognized. I should like them to eventually be recognized federally. They are similar to reserves but they are Métis settlements.
Those people have attended the endangered species meeting and they want to have proper input and involvement right from the start. Even the Métis settlements, which are recognized provincially, have had trouble being properly recognized with regard to environmental issues.
Senator Chalifoux: I thank you both for attending. I am happy to see you here because I know the work you have done throughout the years on environmental issues.
The bill before us is being reviewed. I should like to have your opinion, Mr. Pierce, as to what you would like to see in this legislation and what you feel is omitted from it.
Mr. Pierce: I am not an expert on the legislation, but I think we need to get back to the basics of how this will affect our people. I can only go by example.
Kelly Lake is the oldest Métis settlement in British Columbia. When the community was established, the government people came and put the sewer lines directly into the lake. Today, there are no fish in it.
There are problems like that. We need to be consulted on these issues, and we need to be a part of that process if we are to make change.
I can only stick with the basics. There may be many areas within the act in which our people in the communities might be able to participate and be helpful, in partnership with Canada, to make this a good and positive act.
Senator Chalifoux: Clause 3(1) of this bill reads:
"aboriginal government" means a governing body that is established by or under or operating under an agreement between Her Majesty in right of Canada and aboriginal people and that is empowered to enact laws respecting
(a) the protection of the environment; or
(b) for the purpose of Division 5 of Part 7, the registration of vehicles or engines.
It goes further to define "aboriginal land."
I would like your opinion. How does this include the Métis, as it is written?
Mr. Stevenson: As you know, this is a very long bill, and this is one of the areas we highlighted as being an area of concern.
As we mentioned with the land claims processes, it does not include the Métis, even the ones in Alberta where they have the settlements. I would like to see it specified as Métis. It took many years, but we are now in the Constitution, and the Métis are recognized as aboriginal people.
I think land claims negotiations for the Métis people should take place in the various communities and cities and towns or areas adjacent thereto. That is what I meant when I mentioned the land base for the Métis settlements. They should be included specifically. Any time you include Indian or Inuit, something should be reserved or applied for the Métis as well.
The committee that we mentioned, headed by Alan Morin, has not been given adequate resources to be able to get together to look at a bill like this or any of the legislation that is being developed by the Canadian government, such as that on endangered species. We had a bit of money to hold one, quick meeting to work on some of these issues. They call it consultation. We want to be consulted properly, as the First Nations people are.
I read the presentation that Phil Fontaine gave last year, and many of the areas he mentioned that are of concern to First Nations people are of concern to Métis people, as well.
Specifically dealing with the definition of "aboriginal land," I agree that there should be something there for the Métis, as well.
Mr. Pierce: I would like to comment on the phrase "aboriginal lands." To my mind, this definition does not include the Métis people. It certainly does not build a process to deal with these issues. Often, these exclude our people. When we talk about the Inuit, the Métis and the First Nations, in my view many times the third partner, the Métis, are dealt with like Third World people, or even aliens. We are not there as part of the process. We are included in the definitions, but are we really consulted, or are we really engaged in the process?
We talked about the $1 billion injected into First Nations communities, and certainly they deserve it, but the real issue here is the $9 million that has been given to Métis and off reserve and non-status people. These other partners are not being consulted. When we talk about the land, as I mentioned in my presentation, there is no process for us to be involved.
Mr. Stevenson: I am glad it is in the bill for First Nations and Inuit people. Do not misunderstand us. We applaud the government for having it in there for those people. All we are saying is, "Please include the Métis." The clause about aboriginal government is another one that should be revisited. What does it mean?
As we mentioned, our people in the provinces that are under the Métis National Council are all elected. In Alberta, they are holding an election soon. It is a ballot box system. We like to brag about that from time to time now because we are into the process where we have a vote. Years ago, all we were afforded or allowed to be able to have is a little delegation of people to come and scream for us in Ottawa or wherever. Now, we are in the process of being able to elect our people.
Senator Adams: I am glad to see my friend Bob Stevenson here today.
I remember when they were talking about the gas line and exploration in the High Arctic and Western Arctic. At that time, the government had no pollution policy for the Inuit. That is something that the people needed in the beginning, as they were concerned about damaging the land. Mr. Stevenson and I went through that process and through the territorial government process as well, talking with all of the companies involved. We could not go anywhere without the government. Tom Berger started the process during the Mackenzie pipeline hearings.
People came to our communities and said that they would build natural gas pipelines up to the High Arctic.
The pipes were 48 inches in diameter. They were asked how they would do it. They said they had a pipeline across Canada from west to east. We told them that our land is not the same as that land. We asked if they would put it underground or on the surface. We were told they had the technology and there would be no danger of damage in the future with spills and so on. But the land is not the same where we live as it is in other places. As soon as the ground freezes, it pushes everything up from the ground. We live there and we understand that.
We asked how they planned to cross the islands and cross over the sea. We were told they had the technology to do it. We asked about the seals and the fish and the whales. People began to realize at that time that the government did not have a policy. I think we started the process going because of our concerns.
We learned something from Alaska. At that time most people had no concern about the Inuit and Indians living in Alaska. They started in the summertime, with bulldozers and so on up at Prudhoe Bay and the Beaufort Sea, breaking up the top layer of the earth. Two years later, it came up the river.
We are concerned about the environment. I remember the Mackenzie Valley Pipeline proposals. The Dene did a good job and Tom Berger was involved and delayed it for 10 years. There were plans to build a railroad and bring the gas down south, or even to have balloons to carry the gas down south. People in the communities said these things posed a danger.
Mr. Stevenson: The pipeline is a good example. I used to be vice-president for the Métis in the Northwest Territories, and eventually I became the president of the Métis of the Northwest Territories before I moved down here about 15 years ago.
Senator Adams raises a good example. We all know how these mining companies and others would come in and would not involve the native people of the North. A lot of these companies closed down their mines and left. Some of those people are now finding out that they are dying from the pollution that those companies left behind. Pine Point and Uranium City are examples. They have come and gone without any involvement of the native people of the area.
All we are saying is that, if anyone comes in to work in that area, we want to work with them to have a proper process take place so it will be meaningful for everyone.
Senator Adams: You are right. The mining companies left a lot of equipment behind, including barrels. That has to be taken into consideration in terms of Bill C-32 and how those areas can be cleaned up. People said that drilling could not be done in the High Arctic in the summertime, and finally the federal government made a regulation saying there would be no exploration in the summertime because it could damage the land. The people in the North understand these things.
Senator Hays: It was interesting to hear Senator Adams refresh our memories on the Canadian Arctic gas study and the ultimate end of that Mackenzie Valley process. I suppose with natural gas prices again at $3 on their way to $5, we may well have another Mackenzie Valley issue coming up for that polar gas.
It is an interesting example because of the end result. It was probably as much market-driven as anything else, but the end result was that nothing happened. We have the Norman Wells south line for oil but we have no further industrial activity.
A lot of good work was done in terms of what the problems were, and the inputs from the Inuit and other aboriginal communities played an important role in setting a stage for revisiting it. Hopefully, we have not forgotten all of what we did at that time.
The point I want to make is on how you would like to see the Métis National Council, or some equivalent in each of the provinces, play a role on, say, the National Advisory Committee. If the Métis settlement had an agreement, they would be an aboriginal government, and in the Province of Alberta they would be eligible to vote through the aboriginal representative to the National Advisory Committee. If in each province that was the case, that would be one way of doing it.
Another way of doing it would be to follow the Inuit example, where they have one representative elected by all Inuit. They are assured of an Inuit input. If the Métis had aboriginal governments in each of the five regions, while they would not necessarily be assured of a Métis place at the table, they would be assured of a role in the process of determining who did sit at the table, which would take into account the interests that a Métis entity would have. It would have to have agreement and basically have to have an environmental role. I can understand that. In other words, it is not just an aboriginal government but an aboriginal government that has an agreement that has the power to enact laws respecting the protection of the environment.
How would you like to see this playing out?
Mr. Pierce: First, the Métis National Council is the only legitimate representative of Métis people in Canada. In my view, when we have a ballot box process in place, Métis people are eligible to vote, and from there they determine the leadership.
With respect to the settlements, I would have no problem having a partnership with the settlements in the land that affects them.
Our national president is Gerald Morin. We have a democratic process. Be it region to region or province to province, we all have a voice at the national table. Reports come back to us and the affiliates know what is happening on that issue.
We feel that the Métis National Council would have to be at the table, at the same level as the Inuit Tapirisat of Canada.
Senator Hays: It is clear to me that the Métis are close enough to a First Nation that you have a good argument, which you are making very well. I am not sure you have refined the mechanism so that I can understand it exactly. It could play out under this structure or it could be something that is added. Thank you for your comments on that.
Mr. Pierce: As far as the technical details, we need a process to open up the dialogue.
Senator Hays: There is a tie-in. The people on the committee have an environmental role within a governance context. You have described the council. I know the settlement from Senator Chalifoux's description. It could get closer to an entity, which has, or could have, an environmental aspect so that it fits within these categories that are envisioned now within the act. I have not heard you say that either the national organization or the provincial or regional associations are there yet.
I am interested in your feeling about that. Do you think that that is an important criterion? It is the criterion for all other aboriginal people to get to the National Advisory Council table. Do you agree it should be the same for the Métis? If you do not have that aspect now, you would have to create it. That can be done.
Mr. Stevenson: We have a chairperson in charge of environmental issues, who travels to many meetings upon behalf of the Métis around the world discussing national and international issues. The problem is that the Métis National Council has no funding to have a proper committee of environmental representatives from each province.
This is how the First Nations are set up. They have their national chief and their regional chiefs set up within their structure. The Métis National Council has the same type of structure, however, the problem has been the funding. As you well know, the Department of Indian Affairs is there for the Indians but not for the Métis. The interlocutor for the Métis has no money. Somehow the Canadian government must be more responsible for providing that funding based on the fact that the Métis are recognized in the Constitution the same as the Inuit and the First Nations are.
Mr. Pierce: I know what we would like to see. I have described briefly some of the things that affect the area I represent in British Columbia. Other representatives in different provinces would have different issues pertaining to their communities.
We would like to see our participation on the committee in the form of five Métis National Council members representing each of the provinces sitting at that table.
Senator Hays: All the other aboriginal governments have only half a dozen representatives and I wonder how that would match up. The details need a bit more work. The committee needs to be of a workable size and it needs to truly reflect its mandate of protecting provincial interests with special attention to be paid to aboriginal governments. That coverage has been provided in the bill, but the Métis have no representation other than through their provincial governments. In theory, you have the same right to give input as any citizen of a region.
You disagree and say that you should be on the aboriginal side, that you are aboriginal. Accepting that for purposes of our exchange, it might be a lot to ask for five regional representatives to sit on that committee. Perhaps it will go that way. I do not know the relative populations involved.
It makes sense to me that whoever sits at the table, whether it be a provincial representative through the regions or an aboriginal representative, must come from some entity that has protection of the environment as part of its legal responsibility and some empowerment to do something about that issue. That requirement must be addressed or resolved in some way before the Métis can come to the table.
The Chairman: Would you accept one seat at that table?
Mr. Pierce: Senator Hays has gone through the process of who can sit at the table and how many can sit at the table. We are discussing fairness here. The Métis National Council needs to have a voice at that table. Be it with 15 people or 20, we need a process in which partnerships can be built and goals can be reached.
Senator Nolin: Let us be practical. At page 12, clause 6(2)(c) includes a list of six regions or groups of people who will send representatives to that national committee. If we were to amend the bill and add a seventh subclause, parallel to these six, which deals only with the Métis, would you agree to that? That would allow one representative for all Métis aboriginal governments.
The question is, do you consider yourself a government? I am sure the answer is yes.
Does the bill consider your group to be a government? The bill can provide a solution to that little problem.
On the same page, clause 6(3) states:
Where there is no Inuit aboriginal government or aboriginal government for a region referred to in any of the subparagraphs...
We could add in there, "or Métis aboriginal government." Then a regulation would be written to govern how your representative is appointed. If we agree, this committee can do that.
Senator Taylor: I am not sure that the Métis would want that.
Senator Nolin: That is why I am asking this question. Is this a solution?
Mr. Stevenson: That would help because you are building a bill to which, hopefully, the provincial governments will have to adhere or listen.
Senator Nolin: They have already discussed that with the federal government in preparing the act.
Mr. Stevenson: We have not.
Senator Nolin: One is better than none, right?
Mr. Stevenson: We are very cautious about how provincial governments treat aboriginal people in general, including the Métis, with respect to all kinds of things. They like to have us under them. They like to include us with the newcomers that are still coming. In the many different fora that we attend, we try to change that, as we are trying to do with this act, as well. We are trying to change legislation, or to influence the people who make the legislation in order to get them to include us.
Mr. Pierce: I think we would accept that, providing there were some resources to help out with the environmental network. There is currently absolutely no capacity to do that.
With respect to the words "aboriginal government," I want to ensure that that is not exclusive, that it does not say that we are not a government. Clause 6 or clause 3 would create a process for us to participate.
Senator Nolin: It is up to you to decide. Would that suit your second recommendation?
Mr. Pierce: Yes, it would.
Mr. Stevenson: It would be a good start, yes.
Senator Nolin: Let us work at it.
Senator Chalifoux: On Monday, I questioned the departmental officials about the definition of "aboriginal." They stated that they had used the Constitution definition, but they did not go far enough and I challenged them on that. In the Constitution, "aboriginal" means three separate and distinct nations of aboriginal people; the First Nations, the Inuit and the Métis.
If that definition had identified the three aboriginal nations, much of this would have been redundant, but it does not and that is why it is so important. The Métis National Council was established after the Constitution because in the Constitution we were recognized as a nation of aboriginal people. Mr. Pierce is right that the Métis National Council is our government. We recognize it as our government. We must be included under section 35 of the Indian Act.
With regard to the environment, Mr. Pierce has said that they have a senior Métis bureaucrat in the environment portfolio, but no resources. We have to deal with the question of resources.
Clause 44 of the bill talks about resources. It says that the minister shall -- not may -- "establish, operate and maintain a system for monitoring environmental quality." That is possibly where from the resources could come.
The Métis are really the Third World people of this country. In order to address that issue, we must provide resources. I should like the senators on this committee to consider that carefully. If anyone must be considered, it is the Métis. As I said yesterday, the majority of our people live in the mid-Canada corridor. Everyone is concerned about the southern part and the northern part of the country, but the majority of the Métis population who live in the mid-Canada corridor are left out. We must include all aboriginal Canadians and this may possibly be a route for getting some funding for it.
Senator Spivak: Clause 44(2) says:
(a) in establishing a system referred to in paragraph (1)(a), cooperate with... any person who has established or proposes to establish any such system;
And that system is a system for monitoring environmental quality. Is that the clause about which you were thinking, Senator Chalifoux?
Senator Chalifoux: Yes.
The Chairman: From the point of view of funding, that will always be at the discretion of the minister. There is nothing this committee can do in that regard. It would make sense to have you include it as you have requested. I think there would be much support here for an amendment of that nature. However, the funding is, of course, a discretionary matter. Once you get your foot in the door, you would have a greater opportunity.
Senator Chalifoux: That is why I identified this part of the bill for them.
Senator Nolin: When a minister is discussing his Main Estimates, you can ask why there are no funds included for specific groups.
The Chairman: You seem to have some support around the table.
Mr. Pierce: Often, a process is developed with no real mechanism for participation. We want to be included as partners. We do not want to be there as a figurehead so that it can be said that the Métis were there, forgetting about the real work that needs to be done. If we are to do this properly, we must be equal partners and we must have the resources to enable us to do the job properly.
The Chairman: You must be full participants.
Senator Taylor: I would like to explore a few other areas.
With regard to your idea of adding the Métis as another category, you may want to check that out thoroughly with the Métis people. As it stands, it is representation by geographical region. You might have trouble in Newfoundland, Prince Edward Island and Nova Scotia, but I think you would hold your own in Quebec, and perhaps in Ontario. In Saskatchewan and Alberta you would run away with it, as well as in B.C. and the Yukon. I would be very careful about accepting only one seat, because if you are grouped with these other governments, you may pick up three seats on the council. Do not give away your bargaining rights now.
Senator Spivak: How do you figure that?
Senator Taylor: They would be included as aboriginal people, and in two or three of those areas they could dominate the vote. All I am saying is that you should check it over carefully before you look a gift horse in the mouth. This one certainly has a silver-lined mouth.
I am fairly familiar with the Métis National Council. I get the impression that it does not want to restrict itself to mid- or Western Canada. Senator Spivak will remember that we met with a Métis organization in Timmins, Ontario, on timber. They have legitimate rights. You have a Métis group in Quebec with very legitimate rights. I would think that you would be looking at a national Métis organization. The Métis name is a Western name and will win out. Down here they use the term "half breed" more than anything else.
I would be interested, since we are talking about national governments, in how you see the Métis National Council going from sea to sea rather than, dare I say it, from Winnipeg to Vancouver.
Mr. Pierce: On your first comment about the seats, I believe in my heart that there are three aboriginal peoples in Canada and three aboriginal governments.
The Métis National Council is democratically elected through the ballot box. We met in Quebec earlier this summer, and the Métis population there needs attention.
Senator Taylor: As does the Métis population in New Brunswick.
Mr. Pierce: Certainly, the Métis National Council, through the ballot box process, represents the Métis homeland.
Senator Taylor: Are you working on that idea?
Mr. Pierce: Yes.
Mr. Stevenson: You said that it is from western Winnipeg, but in fact it is from western Ontario. The Métis Nation of Ontario was established only in the last few years. As Mr. Pierce says, it started in the West many years ago, but it is working its way across the country.
Senator Taylor: The preamble of the bill has 14 "whereas" clauses, and four of them mention aboriginal people. That is a fair shot. I think the government's intention is on the right line.
The sixth "whereas" at the top of page 2 says:
Whereas the Government of Canada recognizes that all governments in Canada...
It has a small "g," so that would recognize a Métis government. It says "all governments." That goes right down to municipal governments. As Senator Nolin mentioned this morning when he was talking about the Quebec decision, this bill does not carry a hammer. It sets out the framework within which you work, and the Constitution is such that you have to work with other governments, particularly the municipal ones. It mentions that, and I think the Métis would come under that.
Right underneath that, it recognizes the importance of cooperation with provinces, territories and aboriginal peoples. There again, in lower-case letters, it says "aboriginal peoples." It does not say "Inuit" or "First Nations" or "Métis"; it says "aboriginal peoples." With the record that the Métis peoples have of living as close to the environment and the soil as they have, any government would be insane if it did not have a very close relationship with them.
Farther down, and I think this is fairly important, particularly to men like Mr. Stevenson, it says:
Whereas the Government of Canada recognizes the integral role of science, as well as the role of traditional aboriginal knowledge...
As you well know, there is nothing worse than a double Ph.D. coming in and telling the trappers what the wildlife is like. This is a chance for you to be heard. You have input which is not coming down through the minister responsible for wildlife and the bureaucrats, and I am not saying that there is anything wrong with bureaucrats because we need them.
The second last "whereas" on that page reads:
Whereas the Government of Canada is committed to ensuring that its operations and activities on federal and aboriginal lands...
I think you hit a point here. I am not sure about the definition of aboriginal lands. This is one key area where I might agree with Senator Nolin and a few others. I think that the definition of aboriginal lands is pretty loosey-goosey. Métis lands are recognized as aboriginal lands in Alberta. Does that carry through? I am not enough of a lawyer to know that, but enough people around the table are either lawyers or they have relatives who are lawyers who might want to make money trying to take this suit to court to prove that Métis lands are aboriginal lands.
This part of the bill has really bent over to incorporate people like you and Mr. Stevenson into the decision-making process.
Mr. Stevenson: You pointed out the "whereas" clauses in the preamble, but we would like to see it within the act itself.
Senator Spivak: I am looking at this neat solution that Senator Taylor presented, whereby perhaps Métis people could have three representatives on the committee. If you refer to clause 2.2 of page 12 the bill, you will see that it states:
the representative of aboriginal governments shall be selected by the aboriginal governments he or she represents.
Does that mean an aboriginal government is a government that has been established by treaty with the government?
The Chairman: It is defined in clause 3. Senator Hays mentioned that earlier.
Senator Spivak: Then it has to be an agreement, which I understand to be a treaty. I am wondering if under clause 2.2, prior to an agreement, you could be selected as a representative. It says:
Subject to subsection (3), the representative shall be selected by the aboriginal governments...
When you look back to the definition of "aboriginal government," there needs to be an agreement.
The Chairman: You would have to amend clause 3 to have "aboriginal government" include the Métis government.
Senator Spivak: That is what I think. It is not as simple as Senator Taylor says.
The Chairman: That involves another amendment.
Senator Taylor: I was not speaking ex cathedra. I was throwing out an idea for consideration.
Senator Spivak: The idea must be operational and viable before we can accept it. That is not my major point and I ask your indulgence for a question that is not directly related to this bill.
Mr. Stevenson is a trapper. Senator Taylor and I went up to Lac Mistassini. We heard some very desperate stories there about the way in which those trapping lands are devastated. The same things are happening in my province, too. Can you comment, please, on the trapping situation?
Mr. Stevenson: Unless you know a trapper -- they now call themselves harvesters -- and can prove that that is where your fur coats came from, then do not buy a fur coat. That is my comment.
With respect to the lands, you are right that many areas and many trappers in the North have been badly affected by hydro and other industrial and environmental damages.
We were talking about the Mackenzie Valley pipeline. As a result of the 10-year moratorium in that area, the oil companies came to us as aboriginal organizations, the Dene and Métis, and started to negotiate how we could work together on building this pipeline. I still brag about being involved in that process, along with George Erasmus and Jim Burke.
We were able to negotiate with the oil companies that no one would be hired on that project unless it came through an office established by the Métis, the Dene and by Esso. The first individual who was selected happened to be a Métis person. He was placed in an office in Norman Wells. Anyone who had a subcontract or a contract with Esso had to go through our office in order to be hired, no matter where they came from. That is one example of how working together can achieve proper results.
As another example, the trappers themselves were set up as monitoring agents. If any company came along with a bulldozer to work on the pipeline, the trapper had the authority to stop them. They did not just stand and complain as we do now.
We like to say that we trappers are the antennae of the land. We live there. If something happens to the environment, we are the first ones to start screaming about it, but who listens? The companies can go on by and keep going.
On that particular project, we managed to negotiate that the trappers themselves would monitor any subcontractor who was building the line itself. It worked well because these companies knew that they could be shut down by a trapper. Therefore, they listened to them. The trappers knew the best routes to be taken. They knew how to avoid bulldozing through a beaver dam or a muskrat house, especially in the winter when snow and ice covered everything. The trappers directed them along the various ridges that were there. The trappers were happy to do that because now they had a better road to travel on. It worked both ways.
Senator Spivak: I have seen a map of northern Manitoba, from The Pas to the north, indicating the traplines, which have existed for thousands of years. The Government of Manitoba has maps of that area, which looks empty. Is that true in other areas as well? We asked the trappers whose areas were logged bare, right down to their cabins, why they did not simply move over to an area that was not logged. They said that they could not move over because every single area was marked out and had belonged to the various trappers for years and years.
Mr. Stevenson: We have seen the province, as we say, "giving the land away" to various companies. We have seen the maps showing areas claimed by oil companies like Shell and Esso so that they can explore there.
Senator Spivak: In many instances, no land claims have as yet been settled in those areas. This goes back to the idea of aboriginal knowledge. A people who have lived in such an area for thousands of years are likely to know a lot more about it than anyone else who comes in.
Mr. Stevenson: Someone came up with the good idea of making a map of Canada that shows every endangered species habitat. Then we would overlay a map of all the First Nations lands and reserves. We would add another overlay for the Inuit. I said that whatever was left would be Métis land.
The Chairman: That is being done in the United States for the areas of biodiversity. My nephew does this in the state of Kentucky. The mappers post almost every tree, every bit of wildlife and every bird. The whole ecosystem is being mapped out, for important reasons. I hope that one day we can start similar programs in Canada to help protect our ecosystems.
Mr. Pierce: I have a comment on gas and oil development and how it affects the woodland caribou. There are less than 3,000 woodland caribou today because of the migration and the pipeline. The Métis people are particularly affected by this loss.
Mr. Stevenson and Senator Adams were discussing the gas and oil problems. In northeastern British Columbia, American companies are putting up pipelines and roads right through areas that are being devastated. Our communities and our environment and our jobs are being devastated. Who are the stakeholders in oil and gas projects?
We have discussed here today the definition of "aboriginal land." Imagine sitting around a table with gas and oil people and getting them to understand that same term. They deal with the reserves only as outside stakeholders.
What about jobs in the gas and oil industry for Métis people? Our names appear here as Inuit, Métis and First Nations. If there is a loophole to exclude the Métis and to avoid dealing with us in any way, it will be taken. It is happening today.
When gas and oil companies come through, they destroy the land and the trapping. They destroy the environment for hunting and for the older people. My grandmother never ate beef in her whole life. I am only 35 years old, so that is not that long ago. She would grab a bucket and walk down the hill to get water from the creek. Many of your parents lived in similar conditions.
We, too, have health issues. The sugar diabetes problem affects Métis people, as well.
The gas and oil pipelines run through our country. Who gets the jobs? We do the grunt work with the shovels. Can we not be the technicians? Can we not learn to run the machines? Are we really involved in the process at this level? We can fly across Canada third class, but are there any Métis pilots flying those jets?
We need to be a part of the process. We want an equal voice for the Métis. You have asked about Quebec and the Northwest Territories. The Métis National Council is the governing body of the Métis people, just like Louis Riel's provisional government.
We are not here to exclude people. My mother is white. My father is Métis. He is Métis in his heart, but he has a First Nations card because he needed it to survive. He had no health care and he was sick. He needed the card to get health care.
What do you do in such cases when a person has a white mother and an Indian father? If I go out hunting with my father, following the traditional lifestyle, and if he kills a moose but I carry it out, then I can go to jail because I am a Métis. How can we build families that way? How can we build Canada by excluding people?
I am not a legal technician. I will leave the technical stuff for the technicians. I came here today to speak about the bottom line for the Métis people. I know what it is like to be Métis. You can see an Inuit and a Métis and a First Nations person walking down the street and they seem to be equal. When it comes time to go to jail, they all go to jail. When it comes time to get a job, the Métis get no jobs. When it comes time to give out services, the Métis get nothing. When it is time for equality, the Métis are counted in the numbers of aboriginal people, but then it ends.
We use the social services programs. Our children are also being taken away. Our young men are in the jails. We use all the services. What will the new Firearms Act do for our people who have guns stored in their barns? What happens if the RCMP come in and find out that the owner has not registered a gun? An old-timer will go to jail and get a criminal record. Our people are getting stuck in a dismal system.
We need a better process. I am not a technician, but I know my community and I know what is important to my people. We need to be involved. We need the proper resources to do our jobs and meet our responsibilities as Canadians. What is Canada without the Métis? There would not be a Canada without them.
The Chairman: Thank you, Mr. Pierce. That was very well said and was an important statement. We appreciate you sharing your views with us.
We have one final group of witnesses, Mr. Michael Anderson and Mr. Francis Fleet from Manitoba Keewatinowi Okimakanak Inc.
Mr. Michael Anderson, Research Director, Manitoba Keewatinowi Okimakanak Inc.: Thank you for your invitation to appear before you today. I am very pleased to be here, especially on a matter of this importance.
Within the MKO region, which is the portion of northern Manitoba north of the 52nd parallel, the first lines drawn on the map indicating government interest were drawn during the treaty-making process between 1871, in our southern region, and 1910. The significance of these lines, in addition to them being the first time that the lands of First Nations territory were divided, is that they formed a solemn relationship between Her Majesty's government and the First Nations people of northern Manitoba in Treaties 4, 5, 6, and 10. The First Nations within our territory view that relationship as solemn and everlasting. It is upon the foundation of the relationship between Her Majesty's government and the Cree of northern Manitoba that I base many of the comments that I will be delivering today.
With the creation of the Province of Manitoba, in stages between 1912 and 1930, the province took its current shape. To the new Government of Manitoba, of course, it looked like a resource hinterland in an area that could be developed from the Red River Valley all the way to the new Northwest Territories boundary. In the process of doing this, the government did not see that in this same territory there were a large number of First Nations. Today, there are 27 First Nations that are members of MKO, the combined traditional territories that cover almost three-quarters of the Province of Manitoba north of the 52nd parallel.
The significance of that to us is that, of the 47,000 members of MKO, about 70 per cent of our membership still resides in our home communities. Many of you are aware that the aboriginal population of Winnipeg is growing, but in our region 70 per cent remain in their home communities.
Of the 32,545 members that are living in our home communities throughout this territory, approximately 46 per cent, or 15,000, live in isolated communities that are accessible only by air, ice road, or rail. In many of those communities, 80 to 90 per cent of the population remain in their communities.
The point is that, for our remote communities in particular, the surrounding waters, lands, and natural resources support traditional and commercial harvesting practices that remain the foundation of our livelihoods and economies in the region.
An example of the value of the resource economy and traditional harvesting activity within the region is that in 1992 the research program for Technology Assessment in Subarctic Ontario, or TASO, did an analysis of the traditional harvesting economy along the Hudson Bay lowlands in Ontario. Many of our communities, particularly in this region, which is remote, not only have relatives in northern Ontario but have very similar hunting, trapping, and fishing practices.
If you applied the results of the TASO research to the numbers of MKO members living in remote communities, it would show an annual value for the traditional harvest economy of $21.8 million. If you applied the results of the TASO research to all of the MKO members that are resident in their home communities today, it would show $47.1 million a year for the value of game, fish, berries, and medicinal plants; all the resources that are harvested. It is interesting to note that the commercial harvest values of fish and game comprise less than 15 per cent. The cash replacement value of game and fish is fully 85 per cent of these values. Therefore, the domestic harvesting economy for our remote communities remains a substantial foundation. It is one of the reasons we are so intensely interested in environmental protection legislation, environment assessment legislation, and environmental management and planning.
These values, of course, do not describe the value of the traditional economy in terms of intangibles such as the continuation of traditional hunting practices, the maintenance of aboriginal languages, the strengthening of family and community ties, the significant health benefits associated with harvesting activities, and access to high-quality country foods.
As many of you may be aware, the incidence of adult onset diabetes and other forms of diabetes in our communities is skyrocketing. The elders say that it is in large part due to the fact that people have lost access to country foods, the activity, and the community association; all things that go along with good health.
The MKO First Nations have seen a long period of development over the last many decades. The beginning of this development was the mine at Flin Flon in 1926-27 by Hudson Bay Mining and Smelting. From this overhead, you can see that today the tailings pond is right in the centre of town. Of course, that was all First Nations territory at the time it was constructed and First Nations were not consulted or advised when the development took place. The fellow who found this deposit was a trapper from the Cree nation. He was reportedly rewarded with a sack of flour, a sack of tea, and some dry beans. Today, his tiny gravesite lies half buried under the road access to the southern end of the town.
You can see on this overhead the changes to the landscape as well.
The next lines that were drawn on the map were partly intended to assist the interests of First Nations. That was the development of the registered trap-line system in Manitoba.
In the 1930s and following, when the Prairie Farm Rehabilitation Association was moving people out of the Palliser triangle, many of them followed the rail line into northern Manitoba and northern Saskatchewan. Those settlers ended up competing with First Nations for lands and resources. The Government of Canada intensely worried that First Nations peoples would be dispossessed by the Province of Manitoba turned over vast tracts of lands to the migrants. As a result, the registered trap-line system was created, in part to provide for dedicated resource harvesting territories for First Nations.
Following the trap-line system by many years, beginning in the 1960s and 1970s, of course, was the progressive development of the hydro power resources of Manitoba. These are the transmission lines and hydro dams of Manitoba Hydro. As you can see, almost all of the major dams -- in fact, all of the biggest ones -- are in MKO territory, beginning with Grand Rapids, Kelsey, Jenpeg, Kettle, Long Spruce, and Limestone. Today, if we look at these hydro projects, plus their transmission lines and systems, using satellite imagery, we can see the Kettle Rapids Dam, Long Spruce, and Limestone, stretching down the whole upper section from Split Lake to Limestone Rapids on the Nelson River.
Of course, this was all high-value resource area, perfect for hunting fish and game. There were several camps and communities in this territory because the Nelson River, as you can see, flows through a heavy channel as it leaves this district. Today, the Fox Lake First Nation lives in the shadow of three major hydro stations and has no arrangement, agreement, or reconciliation with the governments of Canada or Manitoba.
The significance of that in terms of items that are being examined for consideration and restriction in the lists in CEPA is that on these transmission lines, of course, have been for many years used a wide variety of herbicides. They continue to spray herbicides throughout this entire region. These transmission lines cross lakes, streams, bogs, some of the largest expanses of wetland in North America. Up until now, it has been barely regulated.
In addition to the hydro development, we have had the very large forest allocations. This slide shows the predecessor company that operates today. The point of showing you this is that the Province of Manitoba allocated 108,000 square kilometres of northern boreal forest to a single corporation. Again, that was done without any discussion with First Nations, without any preplanning on the effects of the 38 stream crossings, which have been built since 189, and the 2,000 kilometres of roads. Only one of the stream crossings has had a bare environmental assessment, and that was subject to litigation in the Federal Court. I refer to the Sullivan case, now referred to as "Tolko." They have taken off part of their southern boundary.
Senator Spivak: Could you briefly describe that case, in terms of what is and is not being subjected to environmental assessment?
Mr. Anderson: When Repap Manitoba acquired the timber rights to this territory on May 4, 1989, they were given not only 108,000 square kilometres of land in Manitoba but the rights to harvest 3.235 million cubic metres of timber per year. They were also allowed to build all their roads. Between May 4, 1989 and 1997, they were never subjected to any form of environmental assessment review whatsoever. This includes their annual plans, their five-year plans, and their 20-year plans. At the request of the First Nations, and largely MKO, there was a joint federal-provincial review panel that was convened in 1991. However, because the development plans of the sawmill did not materialize, it just literally faded away. At the present time, there is a 385 air-dried metric tonne per day unbleached craft pulp mill right there. It produces XPX craft, which is the highest grade craft paper available in North America. It is not that plant making the best, but it is the same grade. It is a profitable operation. What they wanted to do is bulldoze this little plant and convert it into two plants, one 500 air-dried metric tonnes and one 1,200 air-dried metric tonnes, for a combination operation of 1,700 air-dried metric tonnes using bleach.
At the time, that was the concept of the Province of Manitoba's sustainable long-term development of Manitoba's northern forests.
The Chairman: What was the date of that award?
Mr. Anderson: The share purchase agreement and forest management licence for Repap Manitoba was issued May 4, 1989.
What might be of interest to senators as well is that, because of the obvious significance this would have to the 14 MKO First Nations within this cutting area, we requested copies of the share purchase agreement from the Manitoba government. We took the position that we had treaty rights, that there were constitutional obligations involved, that the government owed First Nations a duty to at least discuss the potential impacts of this huge operation with the First Nations harvesters and others who were using the region, not the least of which is our interest in economic development planning, given the high rate of unemployment in all the communities. This was notwithstanding the fact that the Forest Act specifically provides that timber cannot be allocated for economic development purposes.
The point is we were refused. The Minister of Finance said that it was a commercial document. We are the research group for the Council of Northern Chiefs. I knew that Repap Manitoba had a material acquisition asset in Kimberley, Wisconsin. Therefore, it was regulated by the United States Securities and Exchange Commission. The SEC had gone private with all its data. We phoned them and purchased this secret document that Canadians were being denied in the United States because we desperately needed it for a committee meeting that night in the legislature. It is a very big document of several hundred pages. We had the SEC people send half of it to one fax machine and half to another. Just as fast, we put it on two other faxes and faxed it to Winnipeg.
This secret document that the province would not let anyone see, not even the MLAs, arrived, and the rest is history.
This is characteristic of the approach that the Province of Manitoba takes to massive resource developments like this with respect to their relations with First Nations. We have to go after the United States to find out what our own government is doing.
The end result of it is what the landscape now looks like as a result of provincial forest planning. We have the ability to process geographic information system-type data, as well as process satellite images. Covering an area that is three-quarters of the Province of Manitoba, it is the only way we can handle the resource information requirements.
The next slide depicts the impacts of hydro development and forestry. The yellow area depicts the low-water impacts created by the Jenpeg Generating Station. Many of you may have seen photographs of Cross Lake with docks that extend hundreds of yards into the river because they are just mud flats. The magenta colour highlights the logging activity that took place on the same image.
If you combine the transmission lines, the logging, hydro impacts, et cetera, you can see that the Cross Lake First Nation has suffered tremendous impacts to the core of their traditional territory.
This next image depicts the 1989 fires. It was given to us by the National Aeronautics and Space Administration because they knew of our interest in satellite imagery, and clearly our interest in the 1989 fire.
The next image depicts the coast of Hudson Bay, Lake Winnipeg, and Lake Manitoba. You can see that virtually all of the northern region, primarily First Nations land use territory, is in flames in this image. It is also of interest, as you can see, that the area that is being used by Repap is not anywhere in as much danger because that is where the water bombers and helicopters were concentrated. They let First Nation's traditional territory go up in smoke while protecting commercial timber.
Without getting too far off, the cost-effective analysis that government does is shown in this very image. This is a difficulty in Senator Adams' territory, too, where fire planning to protect caribou is a critical issue for the people. This is an example of a cost-effective environmental management decision by the Government of Manitoba.
In this next image is the north end of Lake Winnipeg. This is the Nelson River. The areas that are baby blue in this image were yellow in the one that I just showed you. These emerald green areas are the burns from 1989 when the fires were let go. These areas that looked chewed up represent the forest harvesting activities. If you look down here at the bottom, these are the areas that I had on the earlier image. They are so big that they look like farms on this image.
If you combine transmission lines, roads, fire, logging, and hydro damage, you can see that the northern territory in our region is under a fair bit of assault. Hence, our interest in environmental protection legislation is paramount. The legacy this has left us is that our community members really view the record of government actions to protect the environment in our territories as virtually non-existent, either federal or provincial, and I mean actions. There are many fine scientists and researchers with the Freshwater Institute and others who are doing some very important work, but they have no authority to enforce or monitor the circumstances that arise from this kind of disturbance to the land.
The MKO First Nations have observed that governments and resource developers view the north as a resource hinterland where standards for environmental protection are applied differently than they would be in the south and where the rights, interests, and lands of First Nations have been swept aside, literally, to facilitate major resource development and extraction. More recently, even in the face of obvious and significant threats to environmental quality and human health in this region, the Government of Canada has often appeared immobilized in the face of provincial and corporate resistance to any federal intervention in environmental matters, particularly with regard to the protection of northern environments and First Nations peoples south of the 60th parallel.
In addition to the obvious direct impacts that our community members endure and live with, our First Nations members are also aware of much of this research that is going on. It creates a great deal of concern. In 1979 and 1984, the health branch of the federal government conducted a study on mercury contamination in native communities across Canada. That study revealed that 20 per cent of the samples exceeded the normal range of mercury levels. Many Inuit communities clearly are suffering, as well as Dene, Cree, and some West Coast peoples. In areas where 50 per cent of the samples exceeded the normal range of mercury levels, there are Inuit, Cree, and Dene communities, where fish consumption is heavy. The James Bay Cree is no mystery. This is Island Falls and Flin Flon. There were old gold mines in the Island Lake area and pulp mills in this region. None of this is a mystery.
We are really concerned, though, about the communities where 80 per cent of the samples exceeded the normal range. It is mainly Inuit communities and three Cree communities, two of which are MKO First Nations. The other is the James Bay Cree.
This community is Pukatawagan, which means "place where you fish with nets." It is not surprising that they are consuming their nearest corporate neighbour. The reason for the rail line is Flin Flon, and Lynn Lake is to the north. In the Island Lake region, there were gold mines in the 1940s.
This mercury issue has never been resolved. Almost no research on the mercury uploadings in this region has been done since 1984. We are very concerned about this, especially since two communities were found to have 80 per cent of their samples above the normal range.
In terms of us resolving these issues, we also routinely blend traditional knowledge and science. I want to share with you how we do that. In an area that is in the Nisichawayasihk Cree Nation Territory east of the Ruttan Mine, Hudson Bay Mining and Smelting, is this lake called Doughnut Lake by the trappers. This island is the centre of the doughnut. You can see that it is a lake with wetlands that come into it. It is in fairly pristine shape, not affected by regulation.
We began to be concerned when the trappers who used Doughnut Lake said, "We will not drink the water. We will not make tea with it. We will not use Labrador tea because the leaves are curling. We will not eat the fish or beaver meat out of that lake." What concerned us is that Doughnut Lake is not anywhere near the licensed operations of the Ruttan Mine, though it is close in proximity. Doughnut Lake had nothing to do with the direction of the licensed discharge from the tailings impoundment from Ruttan. The Ruttan tailings are lined and then blown into the Vermillion River and disappear up towards the Churchill River.
We talked with the trappers, and the late Joseph Linklater, Sr., in particular, who gave us his land use maps and information. These are people from Hudson Bay and a private-sector environmental testing laboratory person that we had to acquire from Ontario so that we could trust the results. We used the trappers' maps to identify the testing sites. These are images of tailings that are not inside the tailings impoundment. They are not near the mine; they are southeast, toward the community of Nelson House. This large sand bar is in the middle of a bog. These are photographs of tailings that had released from the Ruttan tailing site. Also, there were oil slicks on nearby ponds. We brought out a crew from the Nelson House Cree Nation.
As we traced the sand plume back, the mystery disappeared. We discovered, as you can see, that the tailings impoundment blew out and a large amount of tailings let go and went southeast from the mine and contaminated Doughnut Lake.
To our knowledge, neither Fisheries and Oceans Canada, Environment Canada, nor Manitoba Environment, not anyone, has ever brought Hudson Bay Mining and Smelting to task for this. This area, where a series of trappers had developed camp sites for generations, is unusable to them. It is not part of the licensing, monitoring, sampling, and enforcement process, because all of that takes place at the northern discharge into the Vermillion River. All the sampling is done right in that channel. When they take samples out of the discharge from the tailings impoundment at Ruttan, they are taken right there.
This is a picture of D'Arcy. His father gave us the maps. In this picture, he has his father's map rolled up under his arm. He is in disbelief about what has happened in this region.
In addition to combining science, technology, and even linkages with corporations, we also identify for the Grand Council of the Crees of Quebec the territories of the MKO First Nations. The white area is not empty. It is the territory of the three independent First Nations.
In doing more detailed mapping, we can identify specific territories that are used, even in overlaps with some of our First Nations. By continuing on, we also identify the territories, including Cree language and Dene place names, to return the land.
We work with all of our communities to conduct inventories of environmental issues for every single parcel of land under First Nations jurisdiction in our territory. Then we code the concerns of the community. We initiated the first digital database of reserve lands in Manitoba.
We also do traditional land use research, particularly for the more southerly part of our region. Only eight interviews were used here; this is an interim product for this particular First Nation. It shows areas of timber harvesting, fishing, hunting, travelling, and trails.
We can overlay this kind of information with development. Then we can begin to incorporate the environmental and resource effects of proposed forest harvesting, including harvesting that might be contemplated by First Nations themselves.
We have managed to do research throughout a large part of our territory, and we are still working.
Our work relates in many respects to the significant inclusion in this current version of Bill C-32 of the recognition of aboriginal jurisdiction. However, the language used for aboriginal governments and the structure of the bill do not recognize any of the work we have been doing. We have no standing or capacity formally under the current structure of the bill. We cannot use any of this hard work here. All these connections and linkages and partnerships should have a bearing on environmental protection within the MKO region.
There is a purpose to my story. The government has an obligation under treaty to protect the lands of First Nations people. That obligation is absent from this bill.
There is often a world of difference between the views of the First Nations and those of the governments. The Constitution Act, 1982, and the Supreme Court decision in R. v. Sparrow only add to those differences of view.
Some actions that are authorized by government infringe on the exercise of aboriginal rights. In the context of CEPA, such actions would include government authorization of release of substances into the environment such that the targeted ecosystem is no longer suitable for traditional harvesting.
The images of Ruttan are stark. That situation resulted from an authorized release. One of the few substances released and mentioned on Schedule 1 is mercury. Nonetheless, that shows a government-authorized impact on the traditional harvesting practices of First Nations people, contrary not only to the terms of treaty in our view but to the Constitution Act and to the Supreme Court decision in R v. Sparrow.
That brings us to difficulties in the current bill and things like the structure of consultation with the committee in terms of recognition of First Nations governments.
I was very interested in the discussion that you had with the Métis National Council witnesses about that the "whereas" clauses. The "whereas" clause on international obligations comes closest to the clause that I believe should be inserted, which would state that the Government of Canada must be able to fulfil its constitutional obligations in respect of the environment of the aboriginal peoples of Canada.
I recognize that there are many passages discussing partnership and the use of traditional knowledge, but the "whereas" clauses at the beginning of the bill do not confirm that Canada has a treaty obligation to protect lands and the environment such that they can be utilized, for example, for traditional harvesting pursuits.
Our data on mercury indicates that people are putting themselves at risk by consuming fish, particularly pregnant women and their unborn children. We know from the Ruttan trappers that they can taste substances which scientifically are barely measurable. This bill sets standards for virtual elimination of substances at levels that are barely measurable. It is well known that human beings can taste substances, especially metals, at levels far below measurable levels in current technology. There are great machines that can sample anything. The gas chromatograph is one. Compared to the commonly used testing equipment such as that used in Ruttan, the trappers led us right to it with their tongues.
I am concerned that the bill does not recognize this obligation to protect lands for the continuing pursuit and protection of traditional harvesting activities. In numbers, this is the single largest activity conducted by First Nations within our region. The First Nations, Inuit, and Métis worked very hard with the Government of Canada to protect what was left of the fur trade in Europe. It is not the dollars from fur trapping that matter out in the bush; what is important is the food that the people bring home.
Such a recognition has an implication. If the effect of authorization for the release of substances into the environment is such that harvesting cannot take place, then that is a prima facie infringement and violation of the Constitution and litigable using the principles in R. v. Sparrow.
The Chairman: What about damages that would flow? Is there a legal obligation?
Mr. Anderson: The Supreme Court raised an issue in the Sparrow doctrine about consultation limits of government regulatory authority and the requirement to consider the traditional harvesting practices of First Nations. That doctrine has become regalvanized in Delgamuukw. It is causing a tremendous amount of activity. The Supreme Court has said that you cannot go into First Nations territory and do what you did in Manitoba or in B.C. anymore.
Senator Spivak: They are still doing it.
Mr. Anderson: The capacity council is being developed now to negotiate the $15 million from Indian and Northern Affairs Canada invested in getting people geared up to negotiate with resource developers.
In Sparrow, the Supreme Court indicated that, in the situation of expropriation, fair compensation is available. Expropriation to us would include authorized contamination of an ecosystem by a substance resulting in effective denial, prevention of use, or access. That is an expropriation. If you put a tailings pond on top of someone's trapline, you have expropriated it. If you release mercury into a river such that it is dangerous to eat the fish, de facto that fishery resource has been expropriated by government authorization and compensation is due.
This legal principle is established in Sparrow. It is not well tested, but it has certainly being subject to negotiations in British Columbia. Parts of the principle of control are in the Nunavut Act and the Nunavut land claims agreement, which are remarkable documents for protecting land resources.
There is a lawful obligation on the part of Canada to protect and to uphold and honour treaty rights. The environment is an interesting indicator of the fulfilment of the honour of the Crown. In northern Manitoba, using my satellite images, it is clear that the honour of the Crown has sadly been forgotten.
It is critical in this bill that we begin to turn that page back to what the minister described as reconciliation and renewal, back to honouring what Canada in its response describes as "Gathering strength."
Doing things the same old way will not address these issues -- the herbicides, the mercury, the other contaminants that are being released into the environment with minimal oversight.
The other issue that I wanted to discuss was the interpretation clause, 3(1).
If that is analyzed from a First Nations government perspective, it clearly indicates that the Government of Canada is not including bands, as defined under the Indian Act, as First Nations governments. It clearly means that it is a land claim agreement, like the Nunavut land claim settlement, or it might be something like Bill C-49. I was fascinated to know that there are no consequential linkages between this bill and Bill C-49, an act providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management. The First Nation nations affected by Bill C-49 are empowered, as in this definition, to pass regulations affecting environmental protection.
Therefore, we are basically left with people who are signing framework agreements with the minister, and land claim settlements.
I will use Part 9 as an example. Clause 209(3) deals with regulations affecting First Nations lands. Part 9 deals with lands reserved for Indians and administered under the Indian Act by Indian bands as recognized in the Indian Act. The consultation described at clause 209(3) does not meet those requirements. It meets none of the commitments ministers have made in the past not to pass regulations affecting reserve lands without the consent of each chief and council. I recognize that Minister Irwin was terribly frustrated with the demise of the Indian Act Optional Amendments Act, but that is what happened. The minister attempted to pass regulations changing the legislation without consultation with each First Nation chief and council and the bill died on the order paper, even after being renamed.
Speaking from the perspective of MKO, even as a regional organization representing 27 First Nations -- 47,000 First Nations people or over three-quarters of the Province of Manitoba -- we would never provide anything other than advice such as this on regulations affecting our individual 27 member First Nations. Only our First Nations can make decisions about their own lands. That is the principle that appears in the memorandum of understanding between our two grand chiefs and the Minister of Natural Resources on Manitoba's protected areas initiative.
I submit that consulting through a committee talking about regulations affecting reserve lands will not work. I cannot see it functioning. In the MKO region, even the grand chief would not consider providing advice on regulations for our membership. I see great difficulty and potential legal challenge with this national committee providing advice in numerous clauses of the bill on very substantive regulations.
Where regulations affect First Nations reserve lands, the First Nations chiefs and councils, the bands as recognized in the Indian Act must be consulted. You can certainly ask the committee for advice, just as you would ask MKO, but in the end the regulations must be approved by chief and council.
We have an overarching concern about the concept of equivalency. In Manitoba, there is no equivalency; it is illusory. If this bill relies on equivalency between all the provinces and territories, without Canada intending to enforce a national standard of environmental protection, there will not be environmental protection. There is no equivalent standard in Manitoba.
In our perception, federal government officials seem to spend their time changing the legislation and thinking of reasons not to get involved, rather than taking affirmative, authoritative action to protect the environment.
Part 9 is a fascinating distillation of the entire bill. It seems to be the only part Canada intends to retain. Much work has gone into this bill, and I recognize its intent, but without federal authority gluing it altogether I am deeply concerned about the future of our ecosystems in Canada. In terms of equivalency, I know that only three provinces have signed on to the North American Agreement for Economic Cooperation. Canada cannot even glue that international obligation together with the provinces. I believe that that is in part because there is a complaint mechanism under article 14 of the agreement of which British Columbia and others have already availed themselves. Complaints against B.C. Hydro and others have already appeared in this international forum.
Equivalency must be written so that there is some substantive, evaluative analysis of it. With respect, it must not be a presumption of validity by the minister or the minister's staff. If this is to work with this structure, there must be actual study and evaluation of equivalency and analysis, and the reimposition of federal authority where necessary.
Senator Hervieux-Payette: In Quebec, there are many projects currently being discussed. The Churchill Falls project certainly obliges the governments of both Quebec and Newfoundland to consult with the aboriginal people. That multi-billion dollar project is probably at its most critical stage.
I was with the engineering group on the Limestone project when this was discussed. I go back as far as the James Bay project. I was part of the team that negotiated the agreement for compensation for the native communities. That was a new process in Canada. That was before the constitutional amendment. Although they may have been limited compared to today, there was discussion with the people occupying the territory.
Recently in Quebec, an injunction was granted by the court with regard to a major power line. The law has stopped its construction.
I sometimes have the impression that it is bills other than this one that should be amended. That is why I want you to clarify. I have the impression that it is the Indian Act or other acts that would have to be modified or changed to clarify who owns what and who is responsible for what. The environmental bill in itself was not necessarily the major cause.
You mentioned the Repap project in 1988. That was after 1982. Why could there not have been an injunction such as happened in Quebec recently where a project was stopped because there had not been a proper assessment?
I remember when Mr. Bouchard, the Premier of Quebec, refused to have a joint panel assessment of the impact of the Great Whale project. At the time, the federal authority said, "We want our joint panel." The guy who today is saying he wants to separate from Canada was saying, "No, the federal government has something to do," and this was to study the impact on certain birds. We are talking about native people; they are a little more important than birds. At the time, we were involved in assessing the impact. Why would this process not be possible today, when there are major projects, so that these joint impact assessments can take place? Is it because, in terms of constitutional responsibility, the federal government cannot go far enough? This bill seems to be drafted in such a way as to respect provincial jurisdiction. For me, coming from Quebec, you understand this is a more complicated problem. Once we have recognized the power of the provinces in environmental areas, we cannot just say, "You are not doing your job so we are going to take back the responsibility."
Where do you draw the line between the federal and provincial jurisdiction, and between the Indian Act and CEPA?
I would just like you to clarify that for us. Which bill deals with what? For instance, for your territory, which bill defines who has the ownership or who is going to intervene? Is it the province, the federal government, the aboriginal people who will be granted certain rights?
You made a wonderful presentation. This imaging technology is something I have worked on, but I am more confused on where the environmental bill fits into that picture.
Mr. Anderson: With respect to lands, I was actually going to suggest a specific amendment, adding a subclause (d) to the definition of "aboriginal land" to fit the change to the preamble. It would add a new definition to include federal oversight where necessary to provide for treaty protection. That would add (d), lands, including water, that are used by aboriginal people for traditional land uses pursuant to section 35 of the Constitution Act, 1982.
Actually, that mirrors a fragment of section 2 of CEAA legislation, which requires that every federal act conducted, where they are examining an environmental effect, must consider environmental effects on the traditional uses of lands by aboriginal people. In a case in the Federal Court of Canada, the court found that it was an error in law not to consider the impacts on traditional land uses in an environmental assessment. So we are trying to merge the kind of thinking that Canada placed in CEAA, by adding that definition of lands to which the proposed legislation could apply, realizing that there are all these other provisions for exemptions and equivalency.
The provinces have nothing to fear. Canada is just stating its intent: "If you do not look after the lands used by First Nations people for traditional pursuits pursuant to the treaties and the Constitution Act, we will do it for you." No one is doing it now.
We pointed out in our paper that in the Tolko and Louisiana-Pacific hearings the rights, interests, and lands of First Nations people utterly fell through the cracks. Manitoba said, "We do not have any responsibility." Canada said, "Yes, you do." Canada and Manitoba were pointing fingers at each other; as a result, First Nations interests were simply not assessed, which is why litigation is now before the courts.
I do not think it is an understatement to say they were not assessed. Even provincial government officials were advising the Department of the Environment officials that there were large gaps, omissions, and things that were just downright wrong, but the government, in its intent to proceed with an expeditious review of the licence, made no amendments, declared no deficiencies, and required no further information.
In terms of the Indian Act, my comment was about Part 9. It is federal policy to consult directly with First Nations governments, bands as recognized under the Indian Act, on regulations affecting them. It is a long-standing policy that has been accepted. Under things like the Manitoba Framework Agreement Initiative, the FAI, it would be a breach of that agreement to do otherwise. One of the final products of the FAI process is to change the Indian Act and establish regulations for land environmental protection. In fact, section 5.9 of the FAI agreement says very clearly that, with respect to fiduciary obligations, the condition of the reserves prior to the signing of an agreement resides with the minister, with Canada, and that the condition of reserves when decision-making authority is unfettered by federal authority resides with First Nations.
Without trying to be confusing, what I am saying is that there are numerous other commitments Canada has made to First Nations governments, that is, at the band level, that are not reflected in CEPA. I highlighted that one issue in Part 9 of the bill because it was the one that was the most glaring to me, recognizing what happened to other legislation that was proposed without adequate consultation, and regulations have the same effect on reserve.
The Chairman: On that point, may I ask: Does not the obligation reside anyway with the federal government, with or without CEPA?
Mr. Anderson: Absolutely, under 91.24 of the British North America Act.
The Chairman: Why do you need CEPA? It seems to me the obligations that you are suggesting are obligations that the federal government must maintain exist anyways.
Mr. Anderson: Partly I am working with the government's intent within the bill, which is to bring First Nations into a national environmental protection regime.
The Chairman: You would like a more express declaration of the commitment that probably already exists.
Mr. Anderson: The inherent right to self-determination is part of the rights that we described as being comprised in section 35 of the Constitution Act.
The Chairman: Thank you. Other questions?
Senator Cochrane: Could you just give us an a brief description of your background?
Mr. Anderson: I am the research director of MKO's natural resources secretariat. We deal with everything that flies, swims, crawls, grows, flows, lies on and under the earth over three-quarters of the Province of Manitoba. We deal with resource development initiatives by our First Nations for forestry. We do forest management planning, for example. We are also involved in litigation in support of our First Nations. I will be in examinations for discovery on the Louisiana-Pacific case on October 13. We also assist in negotiating partnerships between corporations, government, and First Nations. We also helped to negotiate the agreement between the chiefs and the Government of Manitoba on the protected areas initiatives.
Senator Cochrane: Are you an employee of the First Nations?
Mr. Anderson: I am the director of the Natural Resources Secretariat of the Manitoba Keewatinowki Okimakanak, Inc., yes.
Senator Cochrane: Are you part of the First Nations of Canada? Were you born here?
Mr. Anderson: No. I have worked with MKO for 11 years and helped establish the Natural Resources Secretariat, literally from a few boxes of references to what we have today.
Senator Spivak: Clause 217 contains a glaring example of enforcement by a province. In that clause, the minister may designate enforcement officers or analysts for the purposes of this proposed act or any provisions of this proposed act. I do not know quite how far this goes. It is a question I have asked before, and the answer will be forthcoming.
How do you feel about the designation of enforcement officers to provincial administrators or officials? Does that trouble you? I do not know how many enforcement officers there are in Manitoba in the Department of the Environment.
Mr. Anderson: The federal Department of the Environment has virtually no personnel in Manitoba. Many of the environmental inspections are done by the environmental directorate of Indian Affairs in the Manitoba region.
We wrote a paper, as part of the discussion process on these very issues, called "Fiduciary Obligation and the Environmental Management of First Nations Lands." One of the case studies in our paper is about the Manitoba region making an arrangement with the provincial government to send people on to reserves to do inspections of fuel tanks. Manitoba government inspectors were writing up the bands and giving notices to chief and council for repairs, even though it is clearly within federal jurisdiction.
There are numerous cases of overlap that were not formally negotiated. Generally speaking, the position is that the relationship is bilateral.
Senator Spivak: It only says that the minister "may." If the minister designates a certain area, is the province obligated to do it? If there are no enforcement officers, what is the point of designating?
Mr. Anderson: Boiling down the cross delegation of authority between Canada and the provinces in environmental issues is something about which a study all on its own can be done. There are natural resources officers of the Province of Manitoba who are deputized officers of the Department of Fisheries and Oceans. The natural resources officers in Churchill used to issue Northwest Territories fishing licences. Now they are Nunavut licences. Everyone is doing everybody else's job, which is one of the other things about equivalency that concerns me so deeply.
When I asked Fisheries and Oceans whose jurisdiction was the seabed and sea of Hudson Bay, legal counsel indirectly came back through Fisheries and Oceans officials in Winnipeg saying they do not know. No one is really sure.
Senator Spivak: I am sure there are many tasks that could be done by various officials in different departments, and there is no harm in doing that. However, when it comes to environmental assessment, and particularly when it comes to the obligations as set out here concerning biological diversity or when you look at the biotechnology products, they are not serious. Let us get serious.
Mr. Anderson: I agree. The issue is simply that on many of these issues we are monitoring an assessment and an evaluation is being done. Someone needs to be in charge.
Ms Levin: I should explain that this proposed section allows the minister to appoint people as enforcement officers or analysts, but only for the purposes of enforcing CEPA.
Senator Spivak: I understand that.
Ms Levin: It is not for anything else. Those persons, Senator Spivak, would not do things like take a product of biotechnology and determine what its environmental impact might be. Those persons are not necessarily scientists. They are people who are there to enforce the law, who will do inspections, who will do tests and measurements, who will do investigations of suspected violations and inspections and tests to verify compliance. There is no obligation on the minister to make these kinds of appointments.
The other clarification about equivalency should be that, first, a province has to ask for it. For example, they would say, "We have a regulation on secondary lead smelters. There is a regulation under CEPA on lead releases from secondary lead smelters. We think our regulation is equivalent to yours. We have equivalent limits, test procedures, and so on." These things would be evaluated. In addition, a province must have in place, or another government for that matter, that is, territorial or aboriginal, the same kind of rights of an individual to request an investigation.
Keep in mind that equivalency is not that the federal government is abdicating anything. Someone has to apply for equivalency. This is also subject to an Order in Council by cabinet. A proposed equivalency agreement must be published for consultation and comment.
This is a completely transparent process. It is not automatic across the board, but it would be generally provision-specific.
Senator Spivak: I understand completely what you are saying. The larger issue is that the authority for regulation and enforcement is diffuse. Much of it is exempted from this legislation. Much of it is in provincial hands. Somehow what is being asked for here is federal leadership in setting national standards so that there would be a legal obligation to go through whatever needs to be gone through to protect the environment. I picked that out, perhaps wrongly.
Senator Adams: Mr. Anderson, we heard from the chemical producers yesterday morning who said that they could live with the 1988 CEPA. What are your concerns around Bill C-32? There is pollution caused from forestry and mining. How do you feel about that? Should the bill be amended or passed without amendment?
Mr. Anderson: I believe the suggestions I am making today will make the bill stronger. Passing it today, especially without going into that again, will cause great difficulty if it is not restructured. I do believe that it is important to restructure the intent of the bill to recognize Canada's obligation to First Nations under treaty and to make many of the other changes that I suggested.
It is a large piece of legislation with numerous facets and objectives. It is clear that a great deal of work has gone into it. We have also followed the various processes as the earlier versions of the bill went through. However, I believe that some changes are necessary to allow it to function. If the bill is passed and some of these structural difficulties are not resolved, it may result in exactly the opposite intent than the government had -- to involve First Nations directly in a national regime for environmental protection.
On that point, when we were talking about applying for investigations, and I will be brief again, this is a government as a band. The Supreme Court of Canada agreed with the Manitoba Court of Appeal that First Nations bands have special interests sufficient to sue Crown corporations in neighbouring provinces over legislation that was not being enforced. The invitation to file an investigation in my view also sets aside something the Supreme Court has already given to First Nations recognized as bands under the act. They do not need the permission of the Attorney General of Canada, or Manitoba, in our case, to file actions against Crown corporations in other provinces where special interests on reserve are affected. In other words, here is another place where Indian bands have recognized status for advancing litigation to protect their interests that has been changed in the structure of the bill to following through a process.
Aboriginal governments as defined in this proposed legislation relate to land claims agreements and things like Bill C-49. I am concerned that bands as recognized in the Indian Act, which are the vast majority of First Nation governments in Canada, have not been adequately incorporated into this proposed legislation. I fear the intent of the Crown may be somewhat frustrated in their attempt to breathe life into this once it is passed. That is clearly not in anyone's interests.
Senator Adams: Did you appear before the House of Commons committee as a witness on Bill C-32?
Mr. Anderson: No, we did not appear before the Commons committee on this bill.
Senator Taylor: Even if everything you said was correct, and I do not think I agree with you, we come down to the very basic question: If this proposed legislation does not go through, you are under the old act. Are the Indian bands any better under the old act than they would be under the proposed new act?
Mr. Anderson: I would say that each piece of legislation required review and amendment, and that is precisely what has happened with this bill.
Senator Taylor: You are not sure.
Mr. Anderson: The old legislation had many of the same difficulties. There was no role for bands as governments in terms of a national regime for environmental protection. This proposed legislation makes an effort to include aboriginal peoples and First Nations governments; however, my concern is that the effort is going in that direction.
Senator Taylor: We are making an effort.
Mr. Anderson: These structural flaws may in fact frustrate the Crown's intent.
Senator Taylor: This is making an improvement over 1988 CEPA. Thank you.
The Chairman: I did not hear say him say that.
Senator Taylor: That is as close as you will ever get a researcher to say "yes."
Mr. Anderson: There are changes in this bill that incorporate additional interests of First Nations governments in a role of being involved directly in environmental management regimes and environmental protection. Clearly, it is structured to acknowledge land claim settlements and agreements like Bill C-49 primarily because those are governments that Canada recognizes clearly as governments. The bill does not recognize an Indian band as a government.
The committee adjourned.