Proceedings of the Standing Senate Committee on
Transport and Communications
Issue No. 34 - Evidence - May 9, 2018
OTTAWA, Wednesday, May 9, 2018
The Standing Senate Committee on Transport and Communications, to which was referred Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada, met this day at 6:45 p.m. to give clause-by-clause consideration to the bill.
Senator David Tkachuk (Chair) in the chair.
The Chair: Honourable senators, this evening the committee is completing its study on Bill S-245, the Senate transportation modernization bill. Our meeting today will have three parts because of the instructions from the Senate on the amendments to Bill C-49. We will do about 45 to 50 minutes with our first witnesses. So keep your questions crisp and I’m sure the witnesses will do the same.
Then we will do the Senate instructions on Bill C-49, and then we will do clause-by-clause. That’s the order for the meeting.
For the first part, I’d like to introduce our panel of witnesses. We have Chief Ian Campbell from the Squamish Nation, and Chief Nathan Matthew from the Simpcw First Nation.
I invite Chief Campbell to make his opening remarks, followed by Chief Matthew, after which the senators will ask questions.
Gentlemen, please proceed.
Chief Ian Campbell, Squamish Nation, British Columbia: Greetings to all the leadership. Thank you for the opportunity to address you today. This is a very important issue near and dear to the Squamish Nation and many of the residents on the West Coast here in Vancouver.
This certainly has been many years in the making around building a relationship with Canada and First Nations people, around garnering true consent, which has not been the case for this particular issue. This leaves us very much with a lot of concern around the future and the fate of our homelands and waters.
We’re not satisfied with any of the procedural fairness thus far that Canada has exhibited towards the Squamish Nation around Trans Mountain, with the UNDRIP principles of free, prior and informed consent or any meaningful engagement that would allow the Squamish Nation to provide its consent. Instead, Canada chooses to frame this as though consultation was adequate and Canada had the sole discretion to decide whether or not consultation has been met.
We do not agree that consultation with the nation has been met, yet we are here today to discuss this particular bill that has grave consequences towards my people, my Aboriginal rights and title to my homelands. We are on unceded territory, where we do not have treaty with the Crown. So the legitimacy of the Crown to issue rights to third party interests atop of our Aboriginal title is at question.
We are currently in two judicial reviews before the courts, one against the federal government in their approval of Trans Mountain and one judicial review against the Province of B.C., for their approval of the project without our consent.
We have met with succession after succession of ministers and have sent delegations to Ottawa on numerous occasions to implore the Crown to create a proper framework of engagement that would lead to true nation-to-nation opportunities to reconcile the ability for us to move forward collectively.
Instead, Canada has chosen to frame this as “national interest,” which is a new term that we’ve heard many times before, around running roughshod over our particular interests in the name of settlers. That continues to be troublesome and is counterproductive to the spirit of reconciliation.
We do remain optimistic and hopeful that we can mature as a society and move forward to create a proper nation-to-nation framework, one that looks to shared decision making and shared governance for the Squamish and other First Nations; one that looks at economic prosperity that moves Indigenous peoples from abject poverty to taking our rightful place to flourish and prosper from projects in our homelands; and the third principle being the environmental stewardship of our homelands and waters that does not solely rely on Western science but looks to Indigenous science that we have managed and stewarded on our lands and waters for millennia, countless generations.
That has tremendous value in a global context, especially in an era of climate change and sea level rise, with great peril towards our resident orcas. Our wild salmon stocks are in peril, our Indigenous languages are in peril, and we have been alienated and marginalized from our waters without our consent and compensation, and that continues to be the modus operandi. This, again, greatly troubles my people, my residents, my elders and, more importantly, our future generations.
I believe this is a pivotal moment in our time to address these in a candid and meaningful way so that the decisions that you’re tasked with are not simply veto over top of my rights in title but will look at this nation to nation, where we’re not going cap in hand to any other level of government to “please consider our interests,” but that we are truly engaging in a meaningful relationship that values First Nations people and our input in major projects within our homelands and territories.
Those are my opening comments. Thank you very much.
The Chair: Thank you.
Chief Nathan Matthew, you have the floor.
Chief Nathan Matthew, Simpcw First Nation: I am Chief Nathan Matthew from the Simpcw First Nation, which is a division of the larger Secwepemc Nation in the Interior of British Columbia.
The reason we’ve been speaking out on this issue is that we have, as well as Chief Campbell, unceded territory that we’re dealing with at both levels of government. And we’re currently following with interest the discussions about the United Nations Declaration on the Rights of Indigenous Peoples and how the federal and provincial governments have accepted the principles and the articles in that declaration. Certainly of interest are the articles regarding recognition of Indigenous peoples’ rights and title to their traditional homelands, and the right to self-determination and self-governance over themselves and over their lands and resources. So we come at it from that perspective.
With respect to this pipeline, we’ve had a fair bit of experience with Kinder Morgan. In 2006, they doubled their line between Jasper and Valemount, in the northern part of our territory. We engaged in discussions and had consultations, and ultimately we ended up signing an agreement for that section of the pipeline. So we’re familiar with Kinder Morgan and their processes. Certainly they recognized our right to the territory and we had discussions on that basis.
Recently, we’ve been listening with interest to the discussions between Canada, the Province of B.C. and Kinder Morgan, and really believe that we, as a First Nation, should be part of that discussion in the same manner that we’re in discussions with other aspects of resource development in our territories. It seems that a lot of the media was around the First Nations that were opposing the project, and we just wanted to make it clear that the Simpcw First Nation and the Secwepemc First Nation had an agreement with Kinder Morgan, signed in 2015, and that we were moving forward on the basis of that agreement with respect to how we deal with this project.
We certainly respect that other First Nations have their own decision-making processes — they have the same kinds of rights as we do — and have the right to take any position they please with respect to this project. We simply want to have that same respect given to us.
One third of the pipeline goes through our territory, which is about 400 kilometres. We think that’s significant and felt that we had a bit of responsibility to speak out on our decisions with respect to the pipeline.
Again, we look with interest at the discussions that are taking place around this issue and really believe that we, as well as other First Nations, should be at the table during these discussions and negotiations.
I’ll leave it there.
I have some information about the mutual benefits agreement that we’ve signed. Suffice to say that we did our own environmental assessment and our own cultural heritage research along the right-of-way of the pipeline. We had community sessions along the way. It took a period of over two years. At the end of the day, we put it to a vote of the Simpcw people, and majority of those who voted, voted in favour, and we went ahead and signed the agreement on that basis.
That’s what I have for now. Thanks for listening.
The Chair: Thanks very much.
Senator Galvez: Thank you very much for your statement. It’s very nice to meet with you via video conference.
This Kinder Morgan pipeline is 60 years old, and I have read that there were several leaks and oil spills over these 60 years. Did you experience these spills? What can you tell us about them? How did they impact the land and the water, the people and the ecosystem? Can you tell us about some of the impacts?
Mr. Campbell: Thank you for your question.
The existing pipeline was established in an era when the Squamish Nation did not have any legal recourse under Canadian law, so it was imposed on us, as well as the proposal for this new pipeline being imposed upon our peoples against our will. That was a challenge for us. As we’ve seen the degradation of our environment around what we call Lheklhukwaytn, which is the traditional name of the Burnaby Mountain area where the existing terminus is. That was one of our best areas for sea urchins, which is one of my favourite delicacies. Unfortunately, there are no more sea urchins in that area along that foreshore because of the operations that have continual impact on degrading the environment in that area.
The other notable impact from the existing pipeline is that the area in Burrard Inlet where the shipping takes place was the traditional calving ground of the resident orcas. We no longer have resident orcas in Burrard Inlet, and we no longer enjoy the beauty of the relationship and the spiritual and cultural values that derive from that relationship with the orca.
To go specifically to your question, the spills have occurred — I forgot the exact year — but recently, within the last 10 years. There was an incident where there were some earthworks and a backhoe did rupture a line where we saw the pipeline spewing oil. In the Burnaby residential area, there was an evacuation. Notably, it took many hours before there was a sufficient response to shut the pipeline off and to begin cleaning up.
The oil released from that rupture did leak into Burrard Inlet, and it further degraded the seashore and the foreshore, the intertidal zones which our people relied on for millennia for our sustenance. We can no longer eat our food from that area.
Senator Galvez: Thank you.
According to statistics, the way leaks are identified is more than 80 per cent by people, by workers, and not by surveys, automatic methods. Can you comment on that? Have your people identified leaks?
You talked about the time it took to shut off the pipeline the last time. It took several hours. If we multiply the flow by the time, we will have the number of barrels or litres that were leaked.
My question is this: Can you confirm that when there is a leak, it’s mainly recognized and called in by the people and not recognized by the surveillance systems?
Mr. Matthew: I have a comment on that. We have quite a large amount of territory that the line has run through for the last 50 or 60 years, and there have been no major spills or leaks. There probably have been some smaller ones. We haven’t been disadvantaged to the same extent. We’ve been able to continue to enjoy access to the territory over which the pipeline has run in terms of hunting, fishing, gathering and those kinds of things.
We have an understanding that the leaks are minor and we have a better understanding of how they actually are able to keep the line in shape. They just haven’t left it in the ground for 50 years; there’s constant maintenance. We actually have a contract with Kinder Morgan to be involved with the maintenance of the line, and so I think we are becoming a little more confident about the way the system operates.
That’s not to say that there is a possibility or potential of a major spill or a leak. We don’t have the same experience where we can identify or we’ve lost species of plants or animals as a result of the pipeline being there.
The Chair: The sea urchins and the orcas, I wasn’t quite sure of your answer. Are you saying, Chief Campbell, that the sea urchins are gone because of the pipeline and the orcas are gone because of the pipeline, or are there other reasons why they may not be there?
Mr. Campbell: We noticed that once the existing pipeline was established and operations commenced, there has been cumulative impact to our shellfish, particularly sea urchins, that would indicate the cumulative impact has caused the disappearance of urchins where we can no longer consume urchins or oysters or any other shellfish, including crab, from that area. That would be directly linked to the operations.
Before the operations were there, we enjoyed the privilege of exercising our Aboriginal rights by harvesting seafood for our own community and cultural purposes, and post-operations we can no longer conduct those activities. In fact, we can’t even step foot on those beaches because of the security and the heavy surveillance. Kinder Morgan will criminalize our people if we step near their operations, so it is a complete alienation of our peoples from that part of our territory.
The Chair: They just want to keep you away from the pipeline for safety reasons; is that what you’re saying?
Mr. Campbell: We can no longer step foot anywhere in the vicinity for any cultural activity, whether it was to harvest urchins or any other activity, because of their operations and, yes, their security.
Senator Bovey: I want to thank you both for being here. I appreciate what you have had to say about your experiences.
I want to get to a couple of definitions, if I may. This bill is looking at works that are declared to be works for the general advantage of Canada. Chief Campbell, I think you talked about national interest. One of my questions is this: Could you, from your two perspectives, define “national interest”?
Your two nations seem to have had different experiences and consultation and, thereby, decision making. I’d like your thoughts on what consultation is. What is appropriate consultation?
Those are my two questions for both of you.
Mr. Campbell: In our concern with the term “national interest,” we’ve seen this succession after succession upon arrival of settlers to our homelands, where it is always in the best interest of the settlers to disregard Indigenous nations.
We saw that with the Gold Rush. We saw it with the commercial fishery, with the stripping of our old-growth forests, and with the fur trade, which was decimated by 1841 along the West Coast in our homelands. Now it’s oil, gas and mining, where the guise of national interest happens to be a modern term, but in our experience with settler governments, it continues to simply be that settlers take precedence over Indigenous people regardless of whether we oppose a project or not.
To move towards true consent, I appreciate what my colleague said about the United Nations Declaration of the Rights of Indigenous Peoples. I would point your attention to a recent exercise that we undertook around an independent environmental assessment of a wood fibre LNG — liquefied natural gas — export facility near the town of Squamish. The Squamish Nation conducted our own environmental assessment, a parallel process to the Canadian environmental assessment process. We utilized Western science analysis along with a number of our own studies on spiritual and cultural values, and we issued 25 legally binding conditions to the proponent, which the proponents have adhered to.
So that was an exercise to garner consent of a project where we were able to look at effluents that would potentially flow into Howe Sound that would have an adverse impact on herring biomass, which has finally returned to our waters after decades of absence, as well as the cetaceans that are in pursuit of herring, such as resident porpoises, orcas and all of the other cetaceans that have now reinhabited Howe Sound.
We also moved the project design in that particular instance to completely avoid the Squamish River Estuary through directional drilling. And we were able to move the compressor stations, which posed a hazard to our residents in proximity to our inhabited reserves, to outside the municipal boundaries.
Those were three major design changes that we were able to effect through proper process and engagement with government and proponents that still made the projects viable and created greater certainty with the final condition being the impact and benefit agreement that would see our peoples participate in the value chain. So it’s the decision making, the value chain and the environmental stewardship, and we had to ensure we had meaningful engagement and shared decision-making in order to garner our consent.
That was in stark contrast to the National Energy Board process, in which the procedural fairness continues to be something that we are dismayed by.
Senator Bovey: Can I have Chief Matthew answer the question as well? I am interested to hear that experience too.
Mr. Matthew: I have a slightly different take on it, but it’s very similar.
In terms of the experience of the relationship we’ve had with settler peoples, the colony of the province and the establishment of Canada, the colonial racist perspective that was forced upon us was very real, and that approach to the relationship was all to the disadvantage of our First Nations.
I guess initially it was in the national interest that First Nations weren’t allowed to vote. I guess that’s what the rationale was, or that it was a national interest to settle the lands of First Nations people and provide virtually free lands to settlers through pre-emption, which were converted into fee-simple lands, which the national and the provincial governments say are now off-limits to us for discussion. That’s the majority of the lands. That happened a very long time ago. I assume that the establishment of the CNR through our territory, which goes through the same 400 kilometres, was in the national interest too. They gave the railroads such a benefit in terms of land and access, and we simply didn’t have any say about it.
The highways, the federal fisheries laws, Jasper National Park, which falls in our traditional territory, I assume those lands and resources were all taken in the interests of the nation and for which we didn’t have any say.
It’s very late in the day in terms of the allocation of resources within our territory. We look around and virtually every square foot of our territory is taken up by some other interest that is protected by our nation of Canada and the Province of B.C. through their constitution. We feel that our backs are against the wall when we come to any kind of say. If we’re going to realize the full intent of the United Nations Declaration on the Rights of Indigenous People with regard to rights and title to our traditional territories, we have a long way to go. And this pipeline issue is just another example of the experiences we have had in order to be able to have any kind of discussion with the province and the federal government and the developers of the natural resources within our territory. It seems like a big thing, but it’s something that has been going on for a very long time, and we look forward to some positive change.
Senator Bovey: So you had consultations on this project,though, and had the agreements. Am I correct?
Mr. Matthew: I couldn’t hear your question.
Senator Bovey: I’m sorry. You mentioned that you have a mutual benefits agreement on this project?
Mr. Matthew: We have an agreement with Kinder Morgan. As part of it, through this agreement, we say you’re okay to put in your pipeline through our territory, yes.
Senator Sinclair: Thank you both for agreeing to be here.
I wanted to clarify and make sure that senators here understand that assuming a proper benefit agreement can be negotiated, Chief Campbell, and that your conditions would be met, you’re not opposed in principle to the pipeline, but you want to be sure that your consent is obtained and that the conditions you have are met. Am I fair in saying that?
Mr. Campbell: I think that’s quite accurate, senator. The entire Port of Vancouver has been built with the exclusion of Squamish Nation’s participation or that of the Musqueam and Tsleil-Waututh families. We hope that we would mature as a society and that Canada would engage with us in a meaningful and proper manner, to look at the proper value chain of these projects, so that we are involved in the shared decision making, the economic stimulus generated from these projects and the environmental stewardship.
If we can create a framework that looks to these principles and start actualizing the nation-to-nation aspect, we are not averse to progress or development as long as we are not the ones that are always paying the ultimate price and inheriting the risk associated with these projects.
Senator Sinclair: Chief Matthew, do you want to respond to that?
Mr. Matthew: I think I may have answered it. We were free to discuss whatever issues we wanted with regard to the pipeline going through our territory, and we did. We believe we examined the issues that were of relevance to us and, including the environment, our cultural heritage values and the kind of benefits that we would expect as being recognized as a result of a project going ahead through our territory.
So yes, we did have due consideration, and at the end of the day, we said fine.
Senator Sinclair: The United Nations Declaration on the Rights of Indigenous Peoples talks about free, prior and informed consent with regard to projects of this nature.
Chief Campbell, I know you used the word “consent” a couple of times. I want to be sure that the senators here understand: When is it that you think your consent needs to be obtained? Are there circumstances in which consent is not necessary and mere consultation would be enough?
Mr. Campbell: I think we need to look to case law, where the magnitude of infringement deems the importance of consultation. To what end of the height or spectrum are we talking when it comes to legal court rulings?
When we look to consent on a project that Canada deems of national interest, the bar should be a lot higher when it comes to engagement with First Nations people.
To simply have a minister meet with us a couple of times, have no real agenda or substance and chalk that up as consultation really does not bode well for the spirit of reconciliation where the narrative is nation-to-nation.
If this is of such importance to Canada, then the level of engagement should reflect that importance appropriately. In this instance with Trans Mountain, our primary grievance is procedural fairness and that we had no real opportunity to engage in any meaningful analysis. We relied solely on what Kinder Morgan put through the NEB process. We were interveners. We were not able to cross-examine any of the information. There were only two calls for information to the proponent, and the responses that came back were generic and really didn’t say anything about our interest.
So for the Crown to discharge consultation and say that “We’ve adequately consulted,” one of our questions is, according to whom? Because First Nations are the only ones that can discharge consultation and say whether or not our interests have been heard, whether or not there are mitigative measures we can come to agreement on, and whether or not the project is indeed in the best interest of all Canadians, including First Nations people.
The Chair: So if I’m clear, you were involved in the consultation; you’re just not happy with the result. Am I missing something here? You’re talking about what happened here, and this didn’t work out and that didn’t work out. Are you going to benefit at all from the Kinder Morgan pipeline?
Mr. Campbell: We have no agreement at this time on the Kinder Morgan pipeline. We don’t see any benefits in increased tanker traffic in our waters without full engagement with the Squamish people. We’re not going to subject our peoples to simply be the clean-up crew when an incident should happen.
The metrics, the quantification and qualification of how this is deemed in the national interest has not been shared with the Squamish Nation, how Canada came to that conclusion. Canada failed on meaningful engagement with the Squamish Nation to look at what Canada’s assessment was on our strength of claim.
Our strength of claim assessment of Canada would be very weak, that Canada does not have legitimate veto to impose these types of projects on our homelands. So those rubbing points are really the opportunity for us to grow.
Yes, we participated as interveners in the NEB process, but it was a sham. The process was not a good one for many people, and there are many First Nations who are completely unsatisfied with that process.
The Chair: There are many that are.
Mr. Campbell: And I don’t speak for those other First Nations, with respect. I’m a hereditary chief and elected official of my homelands and waters here in Vancouver, and the Salish Sea, and we have strong ties to the Coast Salish people. It is transboundary in Canada and the U.S., and many of our tribes in the U.S. shared our concerns and were also interveners in the NEB process.
Senator Gagné: Thank you for being here tonight.
I have a quick question: How do you see the next step on our part if this bill were to be adopted as is?
Mr. Matthew: I’m assuming if the bill is adopted then it’s deemed to be of national interest and the federal government will press the green light on it again, and there will be more weight on the balance of moving forward with this project.
Senator Gagné: Chief Campbell?
Mr. Campbell: I would be extremely disheartened if this proceeds in light of the information we’re sharing with you. I believe Canadians deserve better. We can do better than this in this modern day and era. I think this reverts and is contrary to the spirit of reconciliation and “reconcili-action” — the actions that go with that. I think that it would just be the modus operandi of Canada to continue to run roughshod over my Aboriginal rights and title, and that would be an extreme loss to all Canadians.
If this was to proceed in its current form, I would then beg the question: What is the vision for nation to nation? What does that actually look like? What are the actions that go with that? If we are going to share in decision making, what does that look like? Right now, that is a great uncertainty in our minds. It represents great concern for our people.
The increased shipping in our waters is a risk. There have been spills in English Bay, and it takes up to 11 hours for someone to even report these major spills and even longer for people to take action. That has a direct impact on not only the Squamish Nation but the citizens of Vancouver and other sectors that rely on this for their quality of life.
Senator Gagné: If this bill is adopted as is — and, obviously, they didn’t receive your consent — would your nation bring subsequent federal actions before the courts?
Mr. Campbell: That’s always a tool that the Squamish are willing to consider, legal action. We have two judicial reviews presently before the courts. Those are mirrored from the Northern Gateway and Enbridge court rulings where consultation was not met adequately on those projects. Many of our arguments are very similar. The qualities of this project are very similar to the Northern Gateway project.
If there has been a sudden change in those dynamics, we would be interested to hear what those are in contrast to current case law.
Mr. Matthew: In terms of the nation-to-nation piece, we’re all saying that is an appropriate way to establish and maintain a relationship with Indigenous First Nations people in this country. It would seem that that idea would not include, in terms of a final decision on anything, where the Parliament of Canada can simply say, “Okay, let’s just vote on this and just pass a law.” That’s what you’re doing right now. Is that what you’re going to do any other time you’re dealing with natural resources within the country where it’s seen to be a national interest, that the Parliament of Canada says, “We’ll take this on, and all it will take is a vote by ourselves in favour of it to give a green or red light on projects?” That, to me, isn’t sufficient to meet any kind of test with regard to nation-to-nation relationships around decisions on natural resources that are held by First Nations people.
As a bigger scope on this particular issue, this is just one instance. What’s going to happen down the road for another 10, 15, 50 years in terms of how Canada, as a nation, deals with First Nations on a nation-to-nation basis?
I don’t see it’s sufficient, at the end of the day. It is just a vote. I would say why not just give it to us? We’ll vote and tell you what you’re going to do with our territory. How would you feel if you were on our side of the table, representing our nation?
Senator D. Black: Thank you very much for being here, gentlemen. Just so you know, I’m the sponsor of the bill, so you have the context around my involvement here this evening. I appreciate you being here and the work you have done to date.
Chief Campbell, I understand from your comments that you actively participated as an intervener in the NEB hearing. Did you also actively participate as an intervener in the British Columbia Environmental Assessment panel hearings?
Mr. Campbell: I didn’t personally engage in those.
Senator D. Black: This pipeline has two permits, one from the NEB and one from British Columbia, which went through an exhaustive process that I’ve just referred you to. You have told me that, to the best of your knowledge, you had no involvement in that process.
As you likely know, on January 27 and May 17 of 2016, before the NEB decision was issued, the Government of Canada determined that it was appropriate to have, on two separate occasions, additional consultations with First Nations people. One was through the Interim Measures for Pipeline Reviews, and the second one was for consultations with a ministerial panel. Did you yourself engage in either of those processes?
Mr. Campbell: With the extension of the additional six-month consultation process?
Senator D. Black: Yes.
Mr. Campbell: Yes. We did meet with Minister Carr, I believe, during those times. We did have hope that the six-month extension would have substance. Unfortunately, there was no real agenda or an answer as to how Canada would reconcile our interests and take our questions and concerns seriously through any real analytical process and share with the Squamish Nation the findings of the questions we posed.
So we participated, but in our opinion there was no real substance. None of our concerns were actually answered or met, and that’s ultimately what led to more of the court action. Many of our points are around why Canada not take this seriously enough to answer the questions we had around the faith and ability to clean up diluted bitumen and other concerns around operations, shipping and impacts.
Senator D. Black: What you have indicated to us here today is that your belief is the pipeline cannot proceed without what you call your true consent. Did you also tell Minister Carr that only First Nations can determine when consultation is complete?
Mr. Campbell: Correct.
Senator D. Black: Thank you.
Let’s talk about your engagement with Kinder Morgan. Have you had any consultative discussions with Kinder Morgan?
Mr. Campbell: Yes. We did welcome President Anderson to our offices on one occasion. We did speak with Mr. Anderson, and we did indicate to Ian that our issue is with Canada, that we are demanding a proper process of engagement, and we have serious concerns associated with the process in which Canada is deeming this in the national interest, and it is not moving to the place where the Squamish Nation could garner consent.
Senator D. Black: Thank you for that answer.
I want to refer you to the Trans Mountain Pipeline Aboriginal Consultation Report of June 2017. Article 3.61 talks about the Squamish Nation. This is a public document. I’m going this to read you, and you can comment on it. It says:
Trans Mountain engaged the SMN —
— the Squamish Nation —
— regarding the BC . . . permits and environmental plans concerning [the] NEB and —
— British Columbia —
— Conditions. As of June, 2017, the SMN has not provided feedback on the BC . . . permits or environmental plans.
Trans Mountain will continue to engage with SMN to understand any concerns and receive feedback.
Further:
Trans Mountain extended an invitation to SMN to attend a . . . workshop regarding environmental protection and construction; however, the Squamish Nation declined to send any participants.
Do you confirm that?
Mr. Campbell: Yes, I do.
Senator D. Black: I want to follow up on a very important question that Senator Bovey had asked you, Chief Campbell, and that is the consequence, for you, your people and Canada if this pipeline proceeds. We’ve heard your general comments today.
You can tell me if this is right or wrong, but I’m going to refer you to the comments in the recent press, May 2, of a gentleman who refers to himself as Khelsilem. Are you aware of Khelsilem?
Mr. Campbell: Yes, I am.
Senator D. Black: This news articles states:
“I think that we’re witnessing the beginning of what will likely become the largest civil disobedience in Canadian history,” Khelsilem, an elected council member of the Squamish Nation who goes by his traditional Squamish name, told reporters Wednesday.
“Our people are willing to put our lives on the line.”
Do you agree with that?
Mr. Campbell: I’m going to take you back, because you’ve moved on from your previous comments. If I can take a moment to address the consultation record that you cited, we were very clear with the government in our writings that our process is not to engage with the proponent until we have a proper process with Canada.
We continue a letter-writing campaign. I’m sure that’s probably in your package. It’s also public record and before the courts on what our consultation looks like with Canada, as well as the proponent.
What we asked in the NEB process was a series of questions to satisfy our concerns on the risk this project brings to our homelands and waters. The responses we got back were general and vague and very generic, citing all First Nations people as opposed to being specific to Squamish Nation.
Our question to the Crown was: How did you come to your assessment to discharge consultation? Under what consultative process, and what does that record look like? What are the agendas and substance? How did you address in a meaningful manner the concerns that were put forward? Also, how did Canada deem the strength of claim to the Squamish Nation without ever once getting that information other than through the NEB process? How does Canada come to that determination?
Those were very legitimate and reasonable questions that we put before the Crown. So our concern has always been with the Crown, that we expect better.
The Chair: Sorry, Chief Campbell. I thought you were done. Do you have more to add?
Mr. Campbell: No. I’ll leave it at that for now. Please go on with your second question. Thank you.
Senator Neufeld: Thank you, chiefs, for being here this evening and talking to us about this project.
Chief Matthew, you said that one third of the pipeline traverses your territory. That’s about 400 kilometres. Is that correct?
Mr. Matthew: That’s true, yes.
Senator Neufeld: You have had a relationship with previous owners of the pipeline, Terasen Gas, and I guess there would have been others prior to that. Would you have had agreements with them on operations, on employment and some sharing of benefits prior to Kinder Morgan?
Mr. Matthew: No, I didn’t. I think that the whole relationship and the obligation to consult have only come on stream in recent years. We would have certainly been more than willing to talk about any kind of issues that we could and that we had an interest in that line going through our territory. But that just wasn’t in the cards even 10 years ago. We wouldn’t have gotten in the door. They would have said, “We have absolutely no obligation to talk to you about this project.”
It’s in the same way as right now, Canadian National Railway, if we went and talked to them and said, “Hey, you’re shipping a billion dollars worth of materials through our territory every month, so let’s sit down and talk about that, the hazards that you present to us and the way our rights are being, I guess, recognized through your right-of-way and your activity,” they would say, “Go away.”
So I think this whole relationship has been evolving. Right today, as a First Nation, and I’m sure it’s the same way for Ian, we have just a world of negotiations now that our rights are being somewhat recognized and we are gaining a foothold here and there.
We certainly are willing to do a lot of discussion, a lot of consultation and negotiation with respect to how natural resources are being developed within our territory, and we certainly plan to do even more of that. It’s just that, in the past, a lot of the benefits that companies and individuals and the province and Canada have derived from our resources are long gone.
So it’s a good challenge for us, and it’s a good challenge for our relationship. We’re more than willing. We are, every day now, negotiating various aspects of resource development in our territory, and we’re certainly willing to do that on the evolving relationship that our rights are being recognized and respected and becoming more of the day-to-day activities of government and corporations.
Wwe appreciate that, but we still believe there’s a long way to go in terms of recognizing the value that others, other than our First Nations, have been able to get from the development of our natural resources — billions of dollars. The wealth of this country and this province has been built on the backs of First Nations’ rights, which have been long suppressed for very specific purposes, I believe.
Again, the pipeline is part of a larger story, and we’re willing to carry on with our part of the story.
Senator Neufeld: Chief Campbell, could you tell me how much of your territory the pipeline goes through?
Mr. Campbell: The pipe itself comes in from the east into Burnaby Mountain, which is the eastern extent of our territory. I don’t know the square kilometres that covers, but one of the risks of the drilling and boring through the mountain is potential risk of seismic activity and the ability to shut these valves off and to clean up or to repair.
The real concern in addition to the pipeline penstock is the increase in tanker traffic through Burrard Inlet and the Salish Sea. One of our questions in the NEB and our judicial review is: Is this the right location? Why not put it out towards Deltaport, where it’s a direct shot through the Juan de Fuca Strait, straight to the Pacific Ocean, where you’re avoiding two narrow channels in Burrard Inlet, the First and Second Narrows crossings, and completely avoid this area? Have there been studies to look at alternative locations? That’s one of the issues that we put forward. Apparently, there were some analyses on alternative locations, but they chose to stick with this existing location.
So to answer your question, it’s really the shipping that goes right past three of our inhabited reserves, where the majority of our Squamish people live in Burrard Inlet, and it goes by many of our unoccupied reserves as well, through the Vancouver area.
Senator Neufeld: So it traverses very little property. I know the geography somewhat, so I know where Burnaby Mountain is.
You’re concerned mostly about the shipping, then. Do I have that correct? Other than all the other things about consultation, we’ve had lots of talk about that, but one of your concerns is the shipping. Is that correct?
Mr. Campbell: Absolutely. The shipping is one of the fundamental concerns we have, but so is the boring through Burnaby Mountain with the potential for seismic activity. That’s another question we asked: Why approve the project before that analysis is complete?
Senator Mercer: In your opening presentations there was some reference to an environmental assessment and the use of science for that, which I thought was good. But then, Chief Campbell, when you talked about the absence of the orca and of shellfish, you did not mention science as a method of determining why that happened. It was anecdotal. Was science not used to try to determine why the orcas and the shellfish are gone? You left us with the impression that you thought it was because of the pipeline.
Mr. Campbell: For the Squamish Nation, we have our own institutes and methodology of Indigenous science, which spans thousands of years. We know our territory. We know our homelands. We have place names, history, village sites, burial grounds and resource gathering areas that have been stewarded by our lineage through our ancestral names, through the management regimes that are built into our laws, ceremonies and language.
Those responsibilities continue to be handed down from generation to generation, even standing the test of time of residential schools, where there was a deliberate attempt to eradicate that knowledge under Canadian regimes.
We measure these things according to our metrics, our history, our knowledge and the ceremonies that we continue to practise. But we pair that with Western science.
When we asked the questions in the calls through the NEB process for more information and only received generic answers, we then say, naturally, “Why are there not more assessments done that would incorporate Western science along with Indigenous science?” When those are left unfulfilled, it leaves gaping holes in our ability to make informed decisions on these projects and leaves us with the alternative that our concerns are not being taken seriously.
To answer your question, I would love to see the science being conducted to ask that very question: Why are there no more sea urchins or orcas in Burrard Inlet and is that related to Kinder Morgan? That should be a concern of Canadians.
The Chair: Thank you, Chief Campbell and Chief Matthew. This has been a lively and interesting session. We thank you very much for your participation.
Senators, we’re now going to go in camera to have a discussion on the instructions from the Senate. Then we’ll come out of camera to actually adopt the committee report.
With that, we’ll suspend for a couple of minutes to go in camera and then be right back.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: I call this meeting of the Standing Senate Committee on Transport and Communications back to order. We are now dealing with the report on Bill C-49 amendments.
Is it agreed that the report outlining the reasons for the insistence on the Senate’s amendments be adopted and that the chair present the report in the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the report, taking into consideration today’s discussions, with any necessary editorial, grammatical or translation changes as required?
Hon. Senators: Agreed.
The Chair: We are then done with that and will now go to clause-by-clause consideration of Bill S-245.
Before we begin, senators, I will call out each clause in the order in which they appear in the bill. If there are any clauses for which a member has an amendment, please let me know and I will allow the member to speak at that time.
I would ask you to read your amendment first and allow the staff to distribute copies of your amendment to all members of the committee before we begin debate. I understand there are amendments, and I think they have been distributed.
Following a review of all the clauses, if any have been postponed or stood, they will then be considered one after the other in the order in which they are deferred. If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but rather to vote against the clause as standing as part of the bill.
I wish to remind senators that if there is ever any uncertainty as to results of a voice vote or show of hands, the most effective route is to request a roll call, which obviously provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
If there are no questions, we can now proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble stand postponed? My understanding is that Senator Sinclair will have an amendment, so the committee will deal with the preamble at the end. Agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Senator Sinclair: I have an amendment.
Let me draw to your attention a document entitled MS-1, which proposes to change a couple of lines. Let me draw your attention to the first.
I move that Bill S-245 be amended in clause 3, on page 2:
(a) by replacing lines 5 and 6 with the following:
“that are carried out in accordance with the Constitution of Canada, federal legislation and the Certificate of Public Convenience and Ne-”; —
— which are the first two letters of the word “necessity.” The words being added to those lines are the “Constitution of Canada.” If you wish, I can speak to it.
The act itself is about the Constitution of Canada. The purpose of the act will now read:
. . . to ensure that the Trans Mountain Pipeline Project and any works related to it that are carried out in accordance with federal legislation and the Constitution of Canada . . . . .
The reason that is important is because later on, in another amendment, there will be reference made to section 35 of the Constitution. In order for the two to be working together, that word needs to be in there.
In addition to that, we are in fact invoking the Constitution by referencing this as a federal jurisdiction project. Therefore, because we’re changing the legal status of it by virtue of the parliamentary declaration, it’s proper for us to reference the Constitution in this document.
So there are two reasons. The second one would be because we are in effect making this, through this legislation — and you will see, incidentally, that there is no intention on my part to change that declaration aspect. But the inclusion of the reference to the Constitution of Canada ensures that people know we have put our minds to it.
The Chair: If we defeat that amendment, how does that affect your other amendment, or does it?
Senator Sinclair: It probably doesn’t because all legislation is deemed to be subject to the Constitution of Canada.
The Chair: So why do we need this?
Senator Sinclair: This simply clarifies that we’ve put our minds to it. There is no harm in putting it in, and I think it makes sure that we are able to say that we thought about this.
Senator D. Black: I agree completely with Senator Sinclair as far as this goes. Of course this legislation is subject to the laws of Canada and, of course, to the Constitution of Canada. We don’t need to say that nor should we say that because it’s just extra fluff. We don’t need that. We already know that the Constitution and the laws of Canada will affect any project. We’re talking here about ensuring that the certificate of public need and convenience can be enforced, period, subject to law obviously. So I guess it has no purpose.
Senator Galvez: In many of the previous cases that are in court, the Constitution of Canada has been named. And in all the cases that are in court at present concerning the rights of Aboriginal people, Indigenous people, for any project, the Constitution of Canada is mentioned. I think that it’s important that it’s —
Senator MacDonald: It’s not necessary. If it’s mentioned, then it’s not necessary.
The Chair: Senator MacDonald, I’ll put you on the speakers’ list next, and then we’ll go to Senator Mercer and then back to Senator Sinclair. I’ll try to keep some order here.
Senator Galvez.
Senator Galvez: I think it is for more clarity. It could be redundant, but this bill is very short, so I think adding a couple of words doesn’t make much difference.
Senator MacDonald: Again, if you say it’s always coming up in court, the Constitution is —
Senator Galvez: During.
Senator MacDonald: During. Well that would seem to answer your question. The Constitution is always evident and always applied.
Senator Mercer: Well, that may very well be true. We are in the political business around here of proposing legislation. People will read this in the future and look at the moment we are in history. It’s important that we state that we actually talked about this, that this issue was brought forward, and the only way we’re going to do it is if it’s in the legislation.
Senator Sinclair: The point Senator Black made was only with regard to the second of the two points I made with regard to why I wanted it in here. The first one was because there is a reference later on to the issue of section 35 of the Constitution. I think it’s important for us to keep that in mind as we are going through this because this will highlight again that the Constitution of Canada and, later on, section 35 were an important consideration when we came to discussing this bill. So I would ask that we decide to keep it there.
Senator Bovey: I would agree with it being in. I think it clarifies it and puts it right up front.
[Translation]
Senator Gagné: I think there are benefits to the amendment. In exercising such a power, we reassure the public that we will not exceed the bounds of the Constitution. We will not go beyond the Constitution.
[English]
The Chair: Are we done here? All in favour of the amendment raise your hands. One, two, three, four, five.
All opposed? One, two, three, four, five.
It’s a tie. The motion fails.
Senator Sinclair: Can we have a recorded vote?
The Chair: Sure, I can do that. Let me get my list.
Oh, I’m sorry, motion defeated. It was defeated anyway. Okay, we’re done.
So you want a recorded vote? Give me the list. I will start from the list and make sure. I will ask the clerk to name all the senators present who are entitled to vote at this time.
Victor Senna, Clerk of the Committee: The Honourable Senator Tkachuk, the Honourable Senator Black, the Honourable Senator Boisvenu, the Honourable Senator Bovey.
[Translation]
The Honourable Senate Gagné. The Honourable Senator Galvez.
[English]
The Honourable Senator MacDonald, the Honourable Senator Mercer, the Honourable Senator Neufeld, the Honourable Senator Oh, the Honourable Senator Sinclair.
The Chair: So let’s start from the top. Any member here who does not wish to vote can withdraw. The clerk will now call the member’s name, beginning the chair, followed by the remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote by saying “yea” or “nay” or “abstain.” The clerk will announce the results at the end of the vote, and then the chair will declare whether motion is carried or defeated.
Senator Neufeld: So the motion is to amend.
The Chair: To amend.
Mr. Senna: The Honourable Senator Tkachuk?
The Chair: No.
Mr. Senna: The Honourable Senator Black?
Senator D. Black: No.
[Translation]
Mr. Senna: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
[English]
Mr. Senna: The Honourable Senator Bovey?
Senator Bovey: Yes.
[Translation]
Mr. Senna: The Honourable Gagné?
Senator Gagné: Yes.
Mr. Senna: The Honourable Senator Galvez?
Senator Galvez: Yes.
[English]
Mr. Senna: The Honourable Senator MacDonald?
Senator MacDonald: No.
Mr. Senna: The Honourable Senator Mercer?
Senator Mercer: Yes.
Mr. Senna: The Honourable Senator Neufeld?
Senator Neufeld: No.
Mr. Senna: The Honourable Senator Oh?
Senator Oh: No.
Mr. Senna: The Honourable Senator Sinclair?
Senator Sinclair: Yea.
The Chair: The motion falls, so clause 3 carries.
Shall clause 4 carry?
Senator Sinclair: I have another amendment on 3.
The Chair: The results were five yeas, six nays.
Senator Sinclair: I had a proposal as well with regard to clause 3:
(b) by replacing line 8 with the following:
“December 1, 2016, are not unduly frustrated or delayed.”.
This particular amendment adds the word “unduly” to the line. The original subclause leaves open the possibility that court action and litigation may in fact delay, and the word “unduly” is necessary for us to show that there will not be any undue delay but there might be some legal delay.
The Chair: If there is a court action, wouldn’t there be a delay anyway?
Senator Sinclair: That’s what I’m saying. Otherwise it would say, “are not frustrated or delayed.”
The Chair: That’s right. That’s what it says now.
Senator Sinclair: The addition of the word “unduly” is an implied word in any event, but the addition of it clarifies that there cannot be any undue delay with regard to the project.
The Chair: So we’ve got another amendment.
Senator D. Black: I would simply repeat my earlier argument. The word “unduly” adds absolutely nothing. If there are court cases, of course they’re going to be considered. This is not about hanging extra ornaments on a tree. We do not need the word “unduly.” It adds absolutely nothing.
The Chair: Is there any other conversation? If not, all in favour —
Senator Sinclair: I want to respond to the point Senator Black made. It adds a great deal from a judicial perspective looking at sentences like this. The way it would read now is that the purpose of the act is to ensure that the project is not frustrated or delayed. By adding the word “unduly,” we would be clarifying that there may be reasons why it can be delayed. Court litigation is probably the only one in this particular scenario. The word itself is an important one, unlike the previous one. I think we should consider putting it in.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment? All in favour? All opposed?
Senator Galvez: I want a recorded vote.
Senator Sinclair: Can we for the record agree that the same people voted the same way as the last time?
The Chair: I think we have to go through the process. If you want a recorded vote, we will have to do a recorded vote. That’s what we’re going to have to do.
Say the names and then we’ll go through the process.
Mr. Senna: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Mr. Senna: The Honourable Senator Black?
Senator D. Black: No.
[Translation]
Mr. Senna: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
[English]
Mr. Senna: The Honourable Senator Bovey?
Senator Bovey: No.
[Translation]
Mr. Senna: The Honourable Senator Gagné?
Senator Gagné: Yes.
Mr. Senna: The Honourable Senator Galvez?
Senator Galvez: Yes.
[English]
Mr. Senna: The Honourable Senator MacDonald?
Senator MacDonald: No.
Mr. Senna: The Honourable Senator Mercer?
Senator Mercer: Yes.
Mr. Senna: The Honourable Senator Neufeld?
Senator Neufeld: No.
Mr. Senna: The Honourable Senator Oh?
Senator Oh: No.
Mr. Senna: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
The Chair: The results are five yeas, six nays. The amendment fails.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
Senator Sinclair: I have a proposal for new clause 5.
The Chair: A new clause 5. This is in addition to the clause after clause 4. So please go ahead.
Sorry. It’s MS-2B.
Senator Sinclair: If you look at the document that has been circulated to you, MS-2B is the wording that I am going to propose. With the advice of members of the staff, words have been added to my initially proposed wording. Let me read the proposed amendment:
That Bill S-245 be amended, on page 2, by adding the following after line 11:
“Aboriginal Rights
5 For greater certainty, this Act is not to be construed as to abrogate or derogate from the protection afforded for existing aboriginal or treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of these rights in section 35 of the Constitution Act, 1982, including the right to be properly consulted and to provide their free, prior and informed consent when required.”.
The Constitution Act of 1982 has the provision referenced here that the existing Aboriginal or treaty rights of the Aboriginal peoples of Canada are recognized and affirmed. The evidence is that Kinder Morgan has, under the direction of the NEB or on its own, negotiated benefit agreements with some of the First Nations along the route but not with all of them. The law is very clear that there has to be agreement with all of the First Nations and any other Aboriginal groups that are protected by the Constitution Act.
The issue of free, prior and informed consent is raised directly by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has signed and which it declared at the United Nations in 2016. It accepted, without reservation. So Canada, itself, is committed to requiring free, prior and informed consent in a blanket way.
But the Supreme Court of Canada has indicated in various court decisions, including the Tsilhqot’in case, that when the impact upon the territory of the Indigenous peoples is over territory which is very clearly within the territory of the group and for which they have an established right, then consent will be required. And consultation will be of varying degrees where there’s no established right or title to the land, but where the title to the land has been established and is in place, then consent will be required, such as, for example, under the Indian Act, where you cross an Indian reserve, that’s defined in the Indian Act. There has to be a legal surrender and consent has to be obtained in that way.
The purpose of this amendment and this addition is to ensure that the government and the parties understand that there is no intent here to derogate at all from the Indigenous rights established in the Constitution and to clarify that the right to be properly consulted and to provide free, prior and informed consent, when required, is made clear.
Senator D. Black: Senator Sinclair, thank you very much for that presentation.
Again, a couple of points need to be made here. The first point is that section 35 of the Constitution Act recognizes Aboriginal rights. That’s what it does, and it recognizes Aboriginal rights whether we acknowledge it or we don’t. That is the law, so that has been to be recognized.
Senator Sinclair’s suggestion that consultation must lead to consent is simply wrong in the law.
Senator Sinclair, I suspect that you have read the Clyde River decision and you’ve read the decision coming from southwest Ontario that was released the same day, which makes the requirements for consultation very clear, and then it becomes a question of fact. In the Clyde River case, consultation wasn’t adequate. On the Thames case, consultation was adequate. That’s what we’re doing here.
As to using the language “free, prior and informed consent,” we have to be extremely careful. Suggesting in any way that the United Nations’ declaration is the law of Canada is simply not accurate. We heard it from Dr. Newman yesterday, who made it very clear. If you check the two Supreme Court decisions I’ve just referenced, there is no mention of that declaration. Why? Because it’s not part of our law. So for us to be putting this in is absolutely dangerous. It’s irresponsible for us to do this, in my view.
[Translation]
Senator Boisvenu: Senator Sinclair, with regard to your term “prior consent,” if there was one community out of 30 that did not consent, would that jeopardize the project?
[English]
Senator Sinclair: For that community.
[Translation]
Senator Boisvenu: I see. If there was one kilometer of pipeline missing between the start and the end of that community’s territory, and that kilometer was not built because the community did not agree, that could jeopardize the whole project, could it not?
[English]
Senator Sinclair: Exactly, and that’s the nature of the issue of Aboriginal title.
To deal with Senator Black’s point, I want to remind senators that when we were dealing in committee with Bill S-203, the dolphins and whales bill, the issue of consultation with the Inuit was raised and the lack of a clause to indicate that the rights of Inuit people to continue to harvest and participate in the sale of their product was jeopardized by the bill. So a non-derogation clause, which is what this is, was inserted into the bill to address that concern, and it was raised by Conservative senators.
I just want to point out that this is an issue that you, as a party, have indicated a great concern about. This is being consistent with your own approach to legislation that you’ve expressed in the past. I want to encourage you to be consistent here.
Senator D. Black: In respect of that particular argument, I would question whether section 35 would apply to that piece of legislation, but that’s a legal question. Section 35 applies here; we don’t need to say it.
I circulated a memo last week. It’s important that senators understand that along this pipeline route, 43 of the First Nations groups have entered into benefits agreements. That represents 80 per cent of the First Nations groups along the line. As Donald Trump would say, that’s a fact, so we need to keep that in mind here.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
The Chair: No. The motion fails.
Do you want a recorded vote? We’ll do a recorded vote. Read the members present who have the right to vote.
Mr. Senna: The Honourable Senator Tkachuk, the Honourable Senator Black, the Honourable Senator Boisvenu, the Honourable Senator Bovey, the Honourable Senator Gagné, the Honourable Senator Galvez, the Honourable Senator MacDonald, the Honourable Senator Mercer, the Honourable Senator Neufeld, the Honourable Senator Oh, the Honourable Senator Sinclair.
The Chair: So let’s get started.
Mr. Senna: The Honourable Senator Tkachuk?
The Chair: No.
Mr. Senna: The Honourable Senator Black?
Senator D. Black: No.
Mr. Senna: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
Mr. Senna: The Honourable Senator Bovey?
Senator Bovey: Yes.
Mr. Senna: The Honourable Senator Gagné?
Senator Gagné: Abstention.
Mr. Senna: The Honourable Senator Galvez?
Senator Galvez: Yes.
Mr. Senna: The Honourable Senator MacDonald?
Senator MacDonald: No.
Mr. Senna: The Honourable Senator Mercer?
Senator Mercer: Yes.
Mr. Senna: The Honourable Senator Neufeld?
Senator Neufeld: No.
Mr. Senna: The Honourable Senator Oh?
Senator Oh: No.
Mr. Senna: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
The Chair: The results of the vote are six no, four yes, and one abstention. The motion fails.
Shall clause 1, which contains the short title, carry? We don’t have a clause 5.
Mr. Senna: So it’s defeated.
The Chair: Yes, it’s defeated. Sorry about that.
I got interrupted here. Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Senator Sinclair: I have a proposed amendment, please.
I draw your attention to document MS-3, which has some proposed changes to the preamble, and I’ll read them to you now:
That Bill S-245 be amended in the preamble, on page 1:
(a) by replacing line 8 with the following:
“Whereas, for greater certainty regarding jurisdic-”; and
(b) by adding the following after line 13:
“Whereas parts of the Trans Mountain Pipeline Project traverse Aboriginal land;
Whereas there are currently legal actions by Aboriginal peoples asserting, among other things, that they have neither been properly consulted nor given their required consent in respect of those parts of the Trans Mountain Pipeline Project affecting Aboriginal land;
And whereas this declaration regarding the jurisdiction of the Parliament of Canada over the Trans Mountain Pipeline Project should not be read as abrogating or derogating from existing rights of the Aboriginal peoples of Canada;”.
That’s the extent of the amendment.
The Chair: Perhaps the law clerk could help us out on this.
From what I gather from the law clerk, MS-3 can only be adopted if MS-2 is adopted, and MS-2 failed, so this is out of order.
Senator Sinclair: I’m just speaking to the law clerk. I want to clarify the understanding and the advice that we’re getting.
Based upon the advice of our legal counsel, I’ll withdraw the proposed amendment.
The Chair: Shall the preamble carry, then?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry? Agreed?
Senator Sinclair: On division.
The Chair: On division.
Does the committee wish to consider appending observations to the report?
Senator D. Black: Excuse me, Mr. Chair. I may have misheard. Did you say the bill, as amended, carry?
The Chair: Sorry. I’ve had a long day. I apologize.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Are we all done now?
Senator Sinclair: I just want to advise all members of the committee that I still intend on introducing the amendments at third reading in the chamber.
The Chair: Yes.
(The committee adjourned.)