THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, May 12, 2022
The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 11:55 a.m. [ET] to study Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: I am Paul Massicotte, a senator from Quebec and the chair of this committee.
Today, we are conducting a hybrid meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
Before we begin, I’d like to remind senators and witnesses to please keep your microphone muted at all times, unless recognized by name by the chair. When speaking, please speak slowly and clearly. I will do my best to get to everyone who wants to ask a question to our witnesses. In order to do so, I ask senators to try to keep their questions and preambles brief. Each senator will be able to ask one question and a supplementary question or a follow-up to their first. Please specify to whom your question is for.
I would also like to remind our witnesses that they have a total of five minutes to make their opening remarks.
Now, I would like to introduce the members of the committee who are participating in this meeting: Senator Anderson from the Northwest Territories; Senator Arnot from Saskatchewan; Senator Carignan, P.C., from Quebec; Senator Galvez from Quebec; Senator Gignac from Quebec; Senator McCallum from Manitoba; Senator Miville-Dechêne from Quebec; Senator Patterson from Nunavut; Senator Seidman from Quebec; Senator Sorensen from Alberta; and Senator Verner, P.C., from Quebec.
I would also like to note that we have the sponsor of the bill, Senator Kutcher from Nova Scotia, with us.
Today, we are continuing our examination of Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.
For our first panel, we welcome, from the Assembly of First Nations, Kúkpi7 Judy Wilson, Chief, Victor Odele, Senior Research Policy Analyst, and Graeme Reed, Senior Policy Analyst. Joining us from the Congress of Aboriginal Peoples, we have Elmer St. Pierre, National Chief, and Joshua McNeely, Director of Environment.
Welcome everyone and thank you for being with us. Chief Wilson, you have the floor.
[English]
Kúkpi7 Judy Wilson, Chief, Assembly of First Nations: [Indigenous language spoken] Chief Judy Wilson. I’m from the Neskonlith Indian Band and I’m a member and Secretary-Treasurer of the Union of British Columbian Indian Chiefs and First Nations Leadership Council in B.C. I am calling in from unceded Secwepemc territory, and I’m speaking on behalf of the Assembly of First Nations as Regional Chief Adamek asked me.
Before I start, I want to acknowledge Moose Hide Campaign Day. It’s May 12, and it’s taking a stand to end violence against Indigenous women and children and girls. I want to acknowledge Moose Hide Campaign Day.
It is an honour to be here today to share the perspectives of the Assembly of First Nations concerning Bill S-5. In the short time we are allocated for the opening remarks, I want to focus on the AFN’s long-standing involvement in the CEPA modernization, concerns with Bill S-5 and the recommendations.
Regarding AFN’s involvement in CEPA modernization, First Nations have a unique, sacred and reciprocal relationship with Mother Earth and all living things. Toxic chemicals and wastes pose significant threats to this relationship and, by extension, threaten our livelihoods, food security and socioeconomic conditions, spirituality and overall well-being.
For decades, the chiefs-in-assembly have expressed their concerns about environmental discrimination, racism and a disproportionate exposure from sources of pollution and hazardous activities facing First Nations. These concerns have long been documented in the various efforts to reform CEPA. AFN participated in 2005 and in 2016. In 2016, we noted our 2005 concerns about the lack of protection for First Nations’ constitutional, treaty and international recognized inherent rights and the long-standing regulatory gap created by Part 6 that remained unmet.
In our 2016 appearance to the standing committee, the AFN acknowledged that meaningful change and dialogue takes time. However, this reality is in stark contrast to the breathtaking speed at which new and potentially toxic chemicals and compounds have been deployed in our environment. Unfortunately, the 2022 version of the bill, as is, is not giving Canada the tools to keep up, nor is it addressing the concerns that AFN has raised for over two decades.
Turning to our concerns with Bill S-5, let us be clear that the bill does bring some welcome changes and improvements to CEPA. However, it unequivocally fails to address aspects of CEPA that pertain to environmental protection concerns and needs of First Nations.
Specifically, four areas of the bill stand out. First, the bill has failed to provide amendments to address the regulatory gap on reserve in Part 9, leaving First Nations behind by not prioritizing the obligation to protect First Nations from toxic substances. Second, despite a preambular reference, the bill does not align with the minimum standards contained in the United Nations Declaration on the Rights of Indigenous Peoples. Third, there is a lack of enforceability. As currently written, there is no accountability or redress for the violation of the UN Declaration on the right to a healthy environment. Fourth, there is the lack of amendments in Part 6 to address the issue of genetically engineered plants and animals in Canada, which is a major concern to First Nations.
By these metrics, Bill S-5 fails the Canadian government’s own standards of modernization and improvement with respect to First Nations rights and interests. Our children and vulnerable people cannot wait another 20 years for meaningful change, nor can the environment withstand more years of soft action while the harms and toxins continue to accumulate.
Regarding recommendations, clearly we cannot act softly on this matter. The status quo has failed to protect First Nations people and the environment. Bill S-5 cannot be a continuation of the status quo. Instead, the bill should be guided by the same kind of sacred commitment to respecting, protecting and learning from the land and waters that sustained our ancestors since time immemorial. These teachings must form the foundation of the bill.
The bill needs to clearly and unequivocally reflect that there is no greater priority than the health of Canadians, of Indigenous peoples and of the environment we all depend on.
Canada must recognize that this bill is, in a very real sense, a bill about reconciliation — reconciliation with each other but also reconciliation with the land. Our expectation with the final bill is that it will be a modernized piece of legislation that fully integrates the United Nations Declaration on the Rights of Indigenous People; that it will live up to international best standards; that it will ensure the right to a healthy environment is included as an enforceable right; that it will require accountability if the right to a healthy environment is infringed upon; that it will resolve the regulatory gap or jurisdictional quagmire that currently results in First Nations reserves falling between the cracks of federal and provincial jurisdiction related to environmental protection; and that it will prioritize the interests and concerns of First Nations on matters relating to the introduction of genetically modified organisms.
In conclusion, the AFN appreciates the efforts that have gone into the drafting of Bill S-5 and wants to see a much-improved version passed into legislation. The recommendations put forward in our brief are realistic and achievable, intending to address the long-standing concerns First Nations have with CEPA modernization. The AFN looks forward to Bill S-5 continuing to develop and improve its willingness to offer any assistance in this process.
Thank you. Kukstemc.
The Chair: Thank you very much.
Victor Odele or Graeme Reed, do you want to add something? If not, we’ll go on to the Congress of Aboriginal Peoples. Elmer St. Pierre is here, along with Joshua McNeely.
Elmer St. Pierre, National Chief, Congress of Aboriginal Peoples: Thank you, Mr. Chair, as well as thank you to the standing committee. I am National Chief of the Congress of Aboriginal Peoples.
Before I begin, I would like to acknowledge the traditional and unceded territory of the Mohawk peoples, where I am joining you today from Kingston, Ontario.
CAP is the national voice for off-reserve status and non-status Indians, Métis and Southern Inuit peoples in Canada. We represent our 11 provincial and territorial organizations.
On the matter of Bill S-5, I am here to offer the Aboriginal perspective on this legislation. We, as Aboriginal people, are one with the land, connected to it and all its creations. We have an obligation and a responsibility to protect Mother Earth for many generations to come.
When considering implementation, development and the timeline of two years, the government must consider all national Aboriginal organizations as primary stakeholders when using the principle of environmental justice. All Aboriginal peoples must be provided with the basic capacity to be able to take part in these consultations in each of our communities. We have traditional knowledge and ways of living that respect Mother Earth. CAP recommends that all Aboriginal peoples be included in the implementation of this bill.
I will now turn it over to Joshua McNeely, CAP’s Director of Environment, for additional information. Thank you, Mr. Chair and thank you, standing committee for allowing me to speak.
Joshua McNeely, Director, Environment, Congress of Aboriginal Peoples: Thank you, national chief.
I am calling in from the traditional unceded territory of the Mi’kmaq in Oxford, Nova Scotia.
While CAP welcomes the introduction to a right to a healthy environment, I wanted to add a few points that may cause some issues down the road with the bill.
The primary focus of CEPA is on chemicals management and pollution prevention. However, the expectation of Canadians is that the right to a healthy environment is universal. Many other human activities cause damages to the environment and trample our rights, and those activities are regulated by other legislation. What is the recourse for Canadians where this right is not explicitly recognized within other legislation? Does Parliament intend for CEPA to trump other acts in this regard? If so, is it equipped to do so?
Second, the right to a healthy environment is not well defined in Bill S-5. I believe the intention of proposed section 5.1 recognizes this fact and attempts to give us a couple of years to further deliberate. However, I believe clause 5.1 falls short in that it’s focused on implementation. I think we should focus on developing the text, particularly the principles that Parliament can, after a couple of years, adopt into CEPA to further clarify this right. For clarity, I’m suggesting that we keep the preambular text and later amend the legislation as an evolving right.
To start on this path, there is model legislation in other jurisdictions that we may draw upon for inspiration. I think the adoption of procedural rights, such as those expressed in the Aarhus Convention in Europe, or those proposed by U.S. bill H.R.5986, or even in the Global Compact that’s being discussed internationally right now, gives us a lot of fodder for consideration in Bill S-5, such as the right to access information, to participate in decision-making processes and to access environmental justice. Particularly for environmentally racialized communities such as Indigenous peoples, we require that the burden of proof must be flipped to require proponents to prove the safety of their products and projects.
Finally, as a last point, CAP is most interested in how the right of every Canadian to a healthy environment intersects with Indigenous peoples’ rights as expressed in the United Nations Declaration on the Rights of Indigenous Peoples. While we welcome the broadening of the right to a healthy environment to include all Canadians, we are concerned that competing implementation frameworks may arise.
Thank you, Mr. Chair.
The Chair: Thank you very much. We’ll start our questions with the sponsor, Senator Kutcher.
Senator Kutcher: Thank you to the witnesses.
I have two questions. I want to hear from Mr. Reed and Mr. Odele, and anyone else as well.
Have Indigenous peoples been involved in meaningful discussions about how to improve biomonitoring and other types of toxicology research work to ensure that their needs and realities are addressed?
Second, how could the introduction of Indigenous perspectives be used to inform the Chemicals Management Plan development that Bill S-5 will establish?
Ms. Wilson: Engagement is important. The Assembly of First Nations has been involved in 2005 and 2016. We’re pointing out that there needs to be further engagement.
The bands are dealing with so much in B.C. We’ve had atmospheric rivers, wildfires, flooding, the heat dome and COVID, and then the 215. The bands are overwhelmed with a lot of issues and crises. It is important that there be resources and support to assist the bands in having input. The Assembly of First Nations does the engagement. They’re able to have special meetings and connections with the bands to garner that input in developing these plans and to explain what CEPA and these regulatory things are about. There is a gap, as was pointed out.
I will look to Graeme to add any comments in relation to your questions. Thank you for the question, senator.
Graeme Reed, Senior Policy Analyst, Assembly of First Nations: Meegwetch, senator, for the question. I’ll start and then invite Victor to provide any additional input.
There are two points that I wanted to share. To your question on biomonitoring, Victor will be able to share different initiatives in which First Nations have participated, in collaboration with the AFN. I’m thinking of nationwide studies such as FEHNCY and FNFNES. He will be able to elaborate on that.
Picking up on a point that Dr. Horn shared this morning, the point of establishing baselines in collaboration with First Nations has been insufficient. In my mind, this is connected to the inability of First Nations to participate meaningfully within the development and identification of research priorities and the collection of that information.
Your question relates to specific perspectives on the CMP, and Victor might be able to respond in more detail. There are some foundational ontological disjunctures between the way in which science and our knowledge systems approach certain issues — which are effectively our own systems of science — that we could talk about in more detail.
Maybe, Victor, you could elaborate.
Victor Odele, Senior Research Policy Analyst, Assembly of First Nations: Regarding the participation of First Nations, I would say that there hasn’t been much meaningful First Nations participation in CEPA or in the environmental protection discussion generally.
With regard to biomonitoring, I would say that currently, as you are probably aware, the Canadian Health Measures Survey biomonitoring program doesn’t include First Nations living on reserve, which is a huge gap and presents a big issue of exposure data gap.
As Graeme mentioned, studies have been implemented to try to fill this gap. One such study is the First Nations Biomonitoring Initiative that was conducted between 2008 and 2013; there is the First Nations Food, Nutrition & Environment Study; and currently there is the Food, Environment, Health and Nutrition of First Nations Children and Youth study. All of these studies have a biomonitoring component to them. The real issue is that these studies are not extensive, not frequent enough and not implemented to the same extent as the Health Canada biomonitoring program.
There is a need for consultation with First Nations to establish a proper biomonitoring and environmental monitoring system that would ensure regular and frequent biomonitoring and environmental monitoring of First Nations environments, especially given the long history of First Nations’ exposure to contaminants. Given this issue, there needs to be some form of recurring and frequent biomonitoring in First Nations environments.
Mr. McNeely: The points that Graeme and others have raised are important to show that First Nations are not involved or captured in the biomonitoring. For the off-reserve population that is spread throughout Canada in urban and rural settings, there is a lack of involvement in biomonitoring and in the development of the CMP. This is that much more problematic because our population is spread out in Canada.
Senator Kutcher: Building on what Mr. Reed said about the importance of the ontological fusion of different perspectives, do you think a different framework would be useful in informing the Chemicals Management Plan development in Bill S-5? Either Mr. Reed or Mr. Odele could answer.
Mr. Odele: There is definitely an opportunity for that, and that’s one of the things that First Nations are communicating. There is a strong case to be made that there is an opportunity for the integration of an Indigenous value-based approach to risk assessment and risk management in Canada. Oftentimes, when risk assessment is involved, it does not capture important First Nations and Indigenous contexts. For instance, when risk assessment is done with regard to fish, it’s usually done on fillets, and we know that First Nations and Indigenous people consume more than fillets, so a lot of times these risk assessments are done in ways that do not necessarily capture the depth, context and lived realities of First Nations. There is definitely an opportunity here and a need to integrate the Indigenous value system into our risk assessment process. I mean, I’m not an expert on that. I do know that there are seasoned Indigenous First Nations scholars and academia that are involved in Indigenous values approach to risk assessment that need to be brought to the table on this.
[Translation]
Senator Galvez: My question is for Ms. Wilson and Mr. McNeely.
[English]
You know they took 20 years to review the Canadian Environmental Protection Act and that we cannot miss this opportunity to make it as strong as possible. I understand that it is progress, to have the right to a healthy environment. I know it is in the preamble, and some people consider that it could even be useless in that situation.
We have passed the United Nations Declaration on the Rights of Indigenous Peoples Act. It’s there now in the preamble. I understand that we can say that the law will evolve and that we can develop better texts, but to tell you the truth, I think that this is the opportunity and we have to take this opportunity, because experience says that it won’t happen if we leave it just like that.
My question is: How concretely can we make it stronger and how can we relate the preamble that is there for the right to a healthy environment with the United Nations Declaration on the Rights of Indigenous Peoples in a stronger, more solid way? Thank you.
Ms. Wilson: Our recommendations were not to leave the First Nations behind. We need to have the obligation to protect First Nations from toxic substances.
I was just talking with Graeme and Victor about an example would be the tar sand oil communities that are affected. How does the CEPA help them? It affects the water. There are four nations: The Chipewyan First Nation, the Fort McKay, the Fort McMurray and the Mikisew Cree; they are impacted from tar sands mining, both the toxins in the water and the recent increase in the number of cancers and other diseases. So how do we protect those First Nations?
We need to have CEPA be able to have more substance to it to do that, and also aligning with the UN declaration is important. The third point that we made was enforceability — so what happens — and accountability and redress for any of those violations for those nations that have a right to a healthy environment. I would turn again to Victor or Graeme if they want to add more to that specific question.
But in my mind, as a chief, I always look at these as how do we explain visually? Those are the bands that I’m thinking of in the tar sands. How do we help them? There are many other nations in similar situations.
Victor or Graeme?
Mr. Reed: Yes. Meegwetch Kúkpi7; and meegwetch, senator. It’s good to see you. I have two reflections, and then I would also invite Victor, if he has anything to add.
One, just as a broad reflection on the implementation of UNDRIPA, the United Nations Declaration on the Rights of Indigenous Peoples Act, as the opportunity presented within a bill that requires the operationalization of the minimal standards contained within that bill. I think you’re right, senator. The time to move that sort of thinking away from just preambular references into the entire bill and the operationalization of those provisions is now.
We could point out the different ways in terms of some of the key principles. Obviously, principles around 3, 18 and 19, those that are respecting First Nations’ right to self-determination; those that are participating and ensuring that First Nations representative organizations participate as governments in the decision-making process; as well as the consideration of free, prior and informed consent in the decisions around the designation of toxics; the assessment of impacts and, to the first part of your question, to the right of a healthy environment.
I would say that part of what’s contained within our submission is two components of that. One, how are we making sure that that right is aligned with First Nations knowledge systems that’s inclusive of what both the national chief and Kúkpi7 communicated: The connection between a healthy environment, healthy people, healthy communities and healthy nations that I think is not always well articulated in the interpretation of rights within a Western framework of thinking. In that respect, cultural components of a healthy environment is an omission within the current definition of that right, and then the tendency to then attempt to balance that right with the different components.
There were recommendations brought within our brief to ask about the balancing act that we find within the act in terms of economic and other factors and whether that’s an appropriate way to characterize the right. Also, how do we uphold the international standards to the right to a healthy environment? I think Josh shared some of those examples.
In our submission, we also talked about a recent UN resolution that talks about clean, healthy and sustainable environment, and that would seem to be the international standard contained within.
To conclude, and maybe there are other additions that Victor wants to share, the decision to include in the act an implementation plan two years down the road seems insufficient to the priority of action that Kúkpi7 Wilson shared in her opening remarks. To the extent that we can clear the path for what that implementation plan would look like, I think that’s better. Our interests are about upholding those minimum standards contained within the UN declaration and also including those constitutionally protected inherent international and treaty rights that First Nations hold.
Mr. McNeely: This is an important question because within CEPA right now, there is section of 22 which gives every Canadian an ability to try to hold the minister accountable. That section is not used because it’s very limited in its application to investigations by the minister. Even the standing committee in the House, when they were looking at this back in 2017, recognized that 22 could be a way to put those teeth into CEPA for organizations and communities not only to hold the minister to account but also to hold violators of CEPA to account through civil proceedings. There were recommendations that were made there in the house, as well as a number of recommendations by expert witnesses. That’s one way.
I keep referring back to these procedural rights and being able to, ourselves, be able to determine those rights. I don’t want to litigate everything. Something like that speaks volumes in an act as far as the intent, more than just preambular statements.
Senator McCallum: I want to welcome all our guests, and thank you for your presentations.
First Nations fall into a very unique gap when considering the history and the close connection between interjurisdictional gaps of federal and provincial legislation and how that has allowed industry to overwhelm First Nations’ lives with toxins.
I had posed a question to Dr. Horn this morning regarding the term “vulnerability” and whether it is adequate. I want to quote Elizabeth McGibbon, who said:
The vulnerability discourse implies that an individual or community is somehow more prone to experiencing health inequities in much the same way as one might be prone to catching a cold.
. . . it is time to change our thinking to explicitly identify the threats that are causing ill health: colonization, re-colonization, postcolonialism, neoliberal economic policy . . . .
— in the area of natural resources, which has contributed to the toxicity that exists in our communities and affects communities and lives of First Nations to a very unique extent.
Do you think that the terms “vulnerability” and “the right to a healthy environment” are adequate, or do you think they need clarification?
The Chair: You’re addressing that to?
Senator McCallum: I was thinking of Mr. McNeely, Ms. Wilson and Mr. Reed.
Ms. Wilson: I think you’re hitting on something that is really important, senator, which is how we use the colonial context to describe and interpret. I think Graeme explained some of it already. A lot of it stems from the colonial Doctrine of Discovery, all the intergenerational trauma, intergenerational impacts, from being set up on reserves and being dispossessed from our territories, and then also the band councils not having a lot of regulatory over the developments that happened in their territory or input and say, as Graeme already mentioned.
Is “vulnerabilities” a good word to capture all the intergenerational impacts? We just faced the same similar issue doing presentations this week to the UN Special Rapporteur on freedom of religion or belief. We said those were colonial concepts and we needed to broaden it. In our way, we talked about our way of life, for example. In this context with “vulnerabilities,” it already limits maybe what has impacted us. It’s not just the toxins that all of a sudden show up in our streams or the contaminants; it is a long history of genocidal and intergenerational effects on our people.
I’ll look to Graeme or Victor to expand more on that. I think your thinking is on the right track, senator, in opening up and broadening some of these colonial contexts and terms. Thank you.
Mr. Reed: Maybe I could just add briefly. Meegwetch for that, senator. It’s also good to see you.
I think of two small comments. One, the addition of the definition of vulnerable populations is still insufficient in the priorities expressed by First Nations to address Part 9, the regulatory gap on-reserve. If it’s intended to be a stopgap mechanism for not addressing the other major issues that First Nations have identified for multiple decades, then we’re in a bit of a problem situation.
On the specific definition, I think what Kúkpi7 added — and your question illustrates — is the need to incorporate this structural, intergenerational and intersectional lens to how we interpret vulnerability. We have been trying really hard in the First Nations context to move away from that deficit-based thinking towards the strengths-based thinking that empowers First Nations but also, to Kúkpi7’s point, actually unpacks the structural legacies of colonization on First Nations that create these determinants of health, and that structural determinants of health lens is important in this context.
I’ll also say “vulnerable populations” doesn’t always represent the specific rights that First Nations carry. Often the reality is that First Nations face increased exposure as a result of this colonial legacy, but we’re not in the same circumstances as other communities because of those rights — our inherent rights, those rights enshrined in treaties and also those rights protected under the Constitution. As a result, there may be some thinking required as to whether First Nations are appropriately captured within that definition.
Senator McCallum: The bill adds a new duty for the ministers to consider vulnerable populations and cumulative effects, and that ministers must consider available information regarding vulnerable populations and cumulative effects when conducting and interpreting the results of certain risk assessments. Who is going to define who these vulnerable populations are? Who is going to reach out to them? Are they going to self-identify, or is it appropriate for the federal government to identify these? It’s all about how are you going to now reach out to these? It would be to the same group again.
Ms. Wilson: I’ll answer quickly. As the chief of my community, sometimes we’ll get an email from the federal government just saying, “We’re going to do engagement; here it is; here is the date.” That doesn’t work for us. As I said, we’re already dealing with crisis upon crisis, and we need better context on the importance of it and the engagement. That’s where the Assembly of First Nations is really valuable to our communities. They help set the context. They help explain. They help get the chiefs and the community engaged and do the submissions on our behalf.
I’ll have Graeme or Victor speak about better engagement. I know we have done that on a number of issues. I would say simply the federal government just sending out an email to us is not adequate free, prior and informed consent, nor is it sufficient, and the timelines are always very tight.
Mr. Reed: Meegwetch, senator. Just as a quick response, I think that question ties very deeply to the points that were asked earlier about the participation of First Nations in biomonitoring and other studies. We have identified that there is a gap and a lack of participation, as well as what Victor raised about the points of risk assessment and how risk assessment may not align all the time with First Nations knowledge systems.
In order to do this and to empower First Nations as could be indicated, there needs to be this kind of meaningful participation, inclusion and free, prior and informed consent that aligns and supports with the technical requirements to collect our own data and to communicate decisions on that basis. If it is going to be a model, as is indicated, that upholds that status quo where the federal government is just reaching out to First Nations for their input, it’s insufficient to — as Senator Galvez asked — really operationalize the principles contained within the UN declaration.
Victor and Josh may want to add.
Mr. Odele: If I can add quickly to that, I agree with everything said so far. There is a need for strong consultation and engagement, and that is critical to a lot of the issues you have identified regarding CEPA. Part of that is also making sure that there is extensive consultation on nation-to-nation relationship building to ensure that strategies are identified with First Nations, including strategies for proper resources, research and studies.
I do know that there are times when there are programs that First Nations have to compete for to get access to funding for environmental monitoring programs, but I don’t think that is the right approach. I don’t think that First Nations people should have to compete for funding in order to be able to monitor or access exposures in their environment and in their bodies. I think there has to be strong engagement and consultation to identify systems that need to be put in place to address the issue of biomonitoring.
Mr. McNeely: We made a submission to the Safe Environments Directorate at Health Canada on this very question back in 2018. At the time, I was part of a panel at the CMP Stakeholder Advisory Council on this question of vulnerable populations and who they are. I have not seen any response back from the government on this to have further discussions trying to define and devolve this concept and how it would be used.
For Indigenous peoples, I think you’re on the right track. I agree with Chief Wilson and Mr. Reed. As an example, when there is a risk assessment conducted on a genetically modified organism, risk is defined as hazard times exposure. If you do a risk assessment in one snapshot in time, even if the hazard is quite high, like from the release of a genetically modified organism into the wild, the exposure is often considered to be quite low, so therefore the risk is low, whereas Aboriginal people would look at that in a cumulative aspect and say, “What about further down the years? What about all the other impacts that are happening in this environment?” We look at it as a cumulative effect over time so may have a different value for the risk assessment.
This is something that the Department of Fisheries and Oceans is looking at for cumulative effects; looking at a watershed, for example. I don’t think we have really incorporated that yet at this level for chemical toxicity to the ecosystem or genetically modified organisms. Thank you.
Senator McCallum: I wanted to go back to UNDRIP, because we passed an action plan for UNDRIP that hasn’t been actioned yet, and yet it’s coming up in bills. You talked about the minimum standards in DRIPA. How will this be done when UNDRIP is still only an action plan and there has been no progress made? How do you reconcile that with having UNDRIP placed in this bill?
Ms. Wilson: We have our experiences from the Declaration on the Rights of Indigenous Peoples Act here in B.C., and we went through the processes of the action plan. Even though it wasn’t fully what we wanted, we still have a lot of work in the implementation part and the various provincial legislations, which we’re working on. It has to unpack and align to the laws as well, so there is a lot of work on that. When we’re doing the action plan for the federal government, our nations have to be directly involved, and that’s the co-development part. I know AFN has done a lot of work in that area as well, and they will be structuring to set up how those files will be led.
The other part is that you’re saying we do need to reference the UN declaration in this CEPA legislation. It would be key and critical. I think there is wording that could be amplified in it to say how that is going to work. Free, prior and informed consent, self-determination, all of the languages are key and in part of how we will be implementing that through CEPA.
Graeme, could you expand on that?
Mr. Reed: Thank you, meegwetch, senator, for that question. I have just a few comments.
We know that the declaration has been in place since 2007, and those components and requirements have been well articulated by Indigenous peoples. I think your point is really important. At the same time, I see the opportunities here as really just applying those lessons to the analysis of the bill and the provisions contained within it. For example, I think of — and this is elaborated in our submission — the national advisory committee and the relationship that advisory committee has with the minister and the representation of First Nations governments on that committee. We know that there are those sorts of modifications that can occur currently to better operationalize this nation-to-nation relationship and uphold those rights. Kúkpi7 Wilson indicated a few of those other pieces based on the amendments that were introduced in Bill S-5 that could be strengthened through the application of those provisions. Based on our experience, we see opportunities and opening up those spaces for these sorts of relationships to occur without having to wait for the specific components contained within the action plan, also recognizing that that may not always be directly aligned with how First Nations articulate their rights and priorities.
The Chair: This brings to an end our first panel this afternoon. I want to thank the Assembly of First Nations in particular Chief Kúkpi7 Judy Wilson, as well as Victor Odele, the Senior Research Policy Analyst and Graeme Reed, Senior Policy Analyst. As well, I want to thank the people from the Congress of Aboriginal Peoples, Chief St. Pierre, National Chief, and Director of Environment Joshua McNeely. Thank you very much to all five of you for sharing your knowledge with us. It’s obviously extremely important to us, and we have lots to learn and lots to share. Thank you very much for being with us. Until next time.
[Translation]
For our second panel, we have Karen G. Wristen, Executive Director of the Living Oceans Society, and Robert (Galagame’) Chamberlin, Chair of the First Nation Wild Salmon Alliance. Welcome and thank you for being here.
You have the floor, Ms. Wristen.
[English]
Karen G. Wristen, Executive Director, Living Oceans Society: Thank you very much, Mr. Chair.
If I may begin by introducing my organization, Living Oceans Society is a non-profit dedicated to ecosystem-based management of Canada’s oceans. We operate from an office in West Vancouver on the traditional territories of the Tsleil-Waututh, Squamish and Musqueam peoples. I am a non-practising lawyer, and I serve as executive director. Thank you for this opportunity to address you on the amendment of the Canadian Environmental Protection Act.
It has been 22 years since the act came into force, and during the ensuing years, genetically modified food animals have moved from the realm of science fiction to the dinner plate. Genetic engineering has developed at a remarkable rate, and it has done so with very little public consultation or oversight. The introduction of GM animals into the food supply and potentially into the environment raises questions of ethics, health and safety that our current regulatory system not only fails to address, it simply has no means of addressing.
Part 6 of CEPA suffers from a lack of transparency and opportunity for public input that is striking in comparison with other Canadian legislation. As such, it’s liable to erode social licence for the products it seeks to regulate and for the industry as a whole. I would like to illustrate what I’m saying by describing our experience of trying to participate in the approval of the world’s first genetically modified food animal, AquaBounty’s AquAdvantage Salmon, known as AAS.
I was first alerted to the application by AquaBounty by a colleague who had been closely monitoring the company’s work. Lucy Sharratt of the Canadian Biotechnology Action Network, or CBAN, Living Oceans Society and Ecology Action Centre shared grave concerns for the potential damage to the habitat and genetic integrity of endangered wild Atlantic salmon populations should AAS eggs or the brood fish from which they were produced escape into the environment. We sought to have input into any application they might make to commercialize the technology.
AquaBounty had long operated a research facility in Prince Edward Island, but it was only through a release of documents from the U.S. Food and Drug Administration in 2010 that CBAN learned of their plan to begin commercial-scale manufacture of AAS eggs in that same facility. CBAN wrote to Environment Canada on behalf of 60 fisheries and oceans conservation, environmental and social justice groups to ask if an assessment was under way. Environment Canada refused to confirm or deny that an assessment was in progress.
In 2013, CBAN wrote to Health Canada to inquire whether an application to approve AAS as a novel food might be in progress. In their reply, while acknowledging that the matter is one of significant public interest, Health Canada advised:
As you may know, the Department is not legally permitted to release information that companies submit and consider confidential, as per [subsection] 20(1) of the Access to Information Act. This includes even the mere fact that a submission to the Department has been made.
That letter went on to suggest that media coverage of this issue was adequate notice to Canadians. Later that same month, the Environment Minister announced her decision to allow the manufacture of eggs for export and grow-out in Panama.
The question whether our government was about to allow AAS to be sold in Canadian markets, where it would be required to bear only the label “salmon,” was ultimately answered in 2014 by a single line in AquaBounty’s filing with the U.S. Securities and Exchange Commission, where they said that “the company continues to seek Environment Canada’s approval for the sale of AAS salmon in Canada for human consumption.”
In the complete absence of any public information in Canada regarding the risk assessment or the status of AquaBounty’s application, the Living Oceans Society and Ecology Action Centre filed for judicial review of the decision to permit the manufacture and export of AAS. It would be fully a year before the government produced its record of decision and longer still until we were finally permitted to see the risk assessment.
Our lawsuit triggered a flurry of activity within Health Canada. They had failed to Gazette any of the waiver of information notices that were required by CEPA, Parts 5 and 6, for many years, but even had the required notice been filed in this case, it would only have provided the applicant’s name and a general indication of the type of information waived. At this point in the process, an important decision would have been made concerning the nature of the information that is required to assess toxicity with no public oversight or input.
In the case of AquaBounty, it transpired that Health Canada had waived the requirement for a toxicity assessment. The risk assessment itself confirmed that the environmental hazard of a release from the facility was high, but it made a finding of “not CEPA-toxic,” provided that the activity was confined to the quantities that had been assessed, to be produced in the facility that was assessed and that the manufactured eggs would be exported to Panama for grow-out, where it was considered that an environmental release posed a low risk.
All might have been well enough, had that advice been heeded, but when the government issued its significant new activity notice for AAS, it dropped any restriction on quantity, location or export. This opened the door to AAS being manufactured in any contained facility, in any quantity, for grow-out anywhere, without, we maintained, a risk assessment that justified the finding of “not CEPA-toxic” in all of those eventualities.
Without belabouring what was a very complex lawsuit, I can advise that our counsel presented one interpretation of Part 6, the government presented another, and the court came up with a totally different interpretation from either of the two parties. In the event, we were unsuccessful in our judicial review, which means that the legislation itself permits all of what I have just described to take place in absolute secrecy, with no opportunity for citizens to have input into or to review the activities of the government decision-making process that concerns the safety and integrity of our food.
Health Canada has gone on since the lawsuit to approve AAS for human consumption. It’s now appearing in our marketplaces with no labelling to indicate it’s genetically modified. New facilities are now producing AAS, in Canada and elsewhere in the world, with, so far as we’re aware, no risk assessment that considers the safety of the production facility from the standpoint of environmental releases.
This is why we say Part 6 of CEPA urgently requires updating to reflect the principles of openness and transparency that Canadians expect of their government. We understand the Senate has been offered, if not a unique, certainly a very rare opportunity to amend the bill, to strengthen it, and I urge you to look at Part 6 as one of those sections that really deserves greater attention.
Thank you.
Robert (Galagame’) Chamberlin, Chair, First Nation Wild Salmon Alliance: [Indigenous language spoken]
My traditional name is Galagame’, and I’m of the Kwikwasut’inuxw Haxwa’mis First Nation, part of the Musggamagw-Dzawadaenuxw people.
Today I want to speak from my heart for First Nations across the province of British Columbia and Canada, and I say that not in a sense of lightness. I want to present to you all that, by and large, I have witnessed First Nations across this country stand up in various forms, whether it’s civil disobedience, roadblocks or court actions, and what they are doing in many cases, if not all, are standing up for stronger, more stringent environmental protections for their traditional lands. This is of no small instance when I think of British Columbia. I think of the Delgamuukw Gisday Wa court ruling, which acknowledged that Aboriginal title has not been extinguished in British Columbia, and with that comes certain authorities about decision making.
When I consider that, I think of Canada’s Constitution, the foundation of this country, the foundation of good governance, and within that Constitution I know you’re well aware of section 35(1), which recognizes the existence of Aboriginal rights. When I think about the foundation of this country, I think about the Supreme Court, the last stop of justice in this country, and the ruling it has come out with in terms of the non-extinguishment of Aboriginal title.
When I put both of those components of this country alongside the commitment the federal and provincial governments made for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, I see that there needs to be a substantive change in decision making across this country. I know today we’re talking very specifically about one piece of legislation, but we need to be able to envision a path forward where there is meaningful engagement. I say engagement in place of consultation. Some of the work that I have accomplished has been the implementation of the United Nations Declaration on the Rights of Indigenous Peoples —I believe it’s the first time in Canada’s history — and that came about with First Nations in the province of British Columbia understanding an issue, understanding the rights and title expressions and the obligations of the Crown, and coming up with shared recommendations to both sides of a government-to-government table. It’s not the easiest work to complete, but it is possible.
When I think about a 22-year-old piece of legislation and how we are going to update this, we must then consider the current political environment. We must consider the Crown’s obligations and commitments to First Nations people, and the commitments of reconciliation and good governance that is abiding by the laws of this country. When we talk of traditional lands, we talk about the protection, by and large, for the exercise of Aboriginal rights. These, as I understand it from where I’m from, are largely to do with culture, traditions and food security. When you consider it in that context, you’ll find that all of that is found within the UN Declaration on the Rights of Indigenous Peoples.
When I put all of this together in the spectrum, I see the Crown must develop a path forward regardless of the topic, regardless of legislation, and ensure that the Constitution is respected, the Supreme Court law is respected, the commitment to the UN Declaration on the Rights of Indigenous Peoples is meaningful and find opportunities where there is a path to begin taking the steps to full embracing. I find it difficult to imagine a day when the Crown arrives and says, “We’re ready to change every single bit of what we do by this set of rules.” I see a path of implementation where opportunities are taken up as they arise and accomplishment these goals, abiding by the law and Constitution and demonstrating to Canadians that there is a path forward that should not be feared, that there is a path forward where First Nations people have a meaningful role to play in this government and the decisions that affect the environment and food security.
Lastly, I would talk about the comments around access to information. We have seen in recent reports in the Globe and Mail where the Privacy Commissioner needed to order the DFO to release a document they had hidden for 10 years, and there was no reason that the department should have withheld that science paper. What do you think the odds are of that being the very first and only time that it has occurred across government? I think that we need to ensure that access to information is enacted in a way that is meaningful and not brushed aside and turns people to the media for some measure of information on the government’s function.
Thank you.
The Chair: Thank you very much, both of you.
We will start with the sponsor of the bill, Senator Kutcher.
Senator Kutcher: Thank you very much to the witnesses.
Within Bill S-5, as we currently have it, are there components of your concern that you want to bring to our attention in terms of potential improvements to the bill itself? If so, would you identify the specific clauses?
Ms. Wristen: I’ll take a go at that one, if I may.
I understand that the committee will be hearing from colleagues of mine at both Ecojustice and Nature Canada with some very specific amendments to the bill, but I can say in general terms that what we would like to see are, particularly in Part 6, amendments that are not currently in Bill S-5, and specifically the inclusion of opportunities for public consultation, requirements of public notice and prescribing the information that must be released to the public throughout the course of the approval.
I think Mr. McNeely referred earlier in the first panel to the potential to reverse the onus of proof in the case of the modification of a living organism to require the proponent to prove its safety, and I would say as well its utility, its necessity, before it’s eligible for listing.
The other requirement that really ought to be changed is the opportunity for citizen input. I think the government has taken the position that there is no input other than the scientific input that makes any difference in this process of approval, and I submit that is just not the case. Where my government is assessing the risk of an organism to my food supply, I need to be able to see its homework.
Mr. Chamberlin: As Karen Wristen has mentioned about the need for public notice and consultation, I, as I have stated, realize and acknowledge the federal government’s commitments. I do not believe or acknowledge that this has been meaningful in terms of this piece of legislation if there is consultation that is inconsistent with the UN Declaration on the Rights of Indigenous Peoples path for consent and shared decision making.
I really truly support what Karen Wristen mentioned about the modification of proof, because if it’s not changed, it is then predicated upon approval of something, rather than having someone seeking that being able to demonstrate that the harm is minimal.
In terms of scientific proof, I have heard so many times federal and provincial governments speak about embracing of Indigenous traditional and ecological knowledge. I do not and have no knowledge where this has meaningfully been embraced, other than the Broughton Archipelago LOU. Again, I would suggest that the normal practice or the method of operation of the Crown must evolve. You must be able to engage with First Nations in a meaningful manner and not one where you arrive and say, “We want to have meaningful discussions for our process. Oh, and by the way, we have no resources to assist you.” That is ensuring the table is uneven.
On every piece of legislation that is going to be contemplated and that needs to be brought to First Nations, there needs to be a technical aspect to it to inform and to elicit a response from First Nations that would help guide its development and potential implementation. Thank you.
Senator Kutcher: Thank you both for those prescient suggestions.
As a matter of curiosity, have either you or people you work with tried to use the Government of Canada website to find out information about toxic substances and the like? If so, what has been your experience with that portal?
Ms. Wristen: If I may begin, we certainly used the website when attempting to obtain information about AquAdvantage Salmon when we believed the approval was under way, but as I illustrated in my remarks, there was simply no information to be found. Even the notices required by law to be filed, such as the waiver of information notice, were simply not there.
Mr. Chamberlin: I would like to point out that Canada’s relationship to First Nations is government-to-government, nation-to-nation. A developed portal of information for information, however lacking it is for consumption of the citizens of this country, does not reflect nor implement the true nature of the relationship between First Nations and the Crown. It has been commented on many times, the idea of nation-to-nation and government-to-government. This is language that the federal and provincial governments use, and I believe that needs to be respected in its fullest form, not by commenting, “Oh, by the way, did you happen to see that website?” I think that the relationship depends on and requires a much deeper level of engagement, one that is meaningful and well informed, not one where the government says, “I’m hoping you saw the latest update.” It demands much more if this government is going to obtain reconciliation, as it has purported to do.
Senator McCallum: Thank you for your presentations, and welcome to the Senate.
The ministers are required to develop an implementation framework setting out how the right to a healthy environment will be considered in the administration of CEPA. The bill states that the framework must elaborate on the principles to be considered in the administration of this act, such as principles of environmental justice, including the avoidance of adverse effects that disproportionately affect vulnerable populations in the principle of non-regression. In your opinion, what are the principles of environmental justice, and how should these be considered?
Ms. Wristen: I think Mr. Chamberlin is ideally positioned to answer that question in the context it was asked.
Mr. Chamberlin: Thank you, Karen. I wasn’t sure.
When I think about an implementation framework, again, it’s a perspective that’s been developed by the Crown independently. What it does is perpetuate that “we know what’s best for you people” approach, and I don’t accept that. I don’t believe Canadians accept that anymore. When these things are beginning to be formulated, when the concepts are being developed, I believe that is the time to engage First Nations so we can find a path where we actually work together, not the government arriving later in the day when things are written in stone and saying, “Gee, what do you think?”
When you speak about environmental justice and justice for vulnerable people — and this is something I’ve mentioned to the Crown over the years, especially in terms of global warming, which is a huge environmental concern —who is going to be the first and hardest hit by the changes in the environment? Is it going to be somebody at a grocery store making a menu choice of salmon? Or is it going to be a First Nations community that’s isolated, rural and remote and that has a deep reliance on salmon as a staple food where you don’t have the opportunity to go down to Save-On-Foods or Loblaws. When I think about it in the context of vulnerable people, this is where I see that the Crown would do best to rethink, reshape and implement a new path of engagement at the earliest possible juncture to ensure that the government-to-government, nation-to-nation relationship with First Nations is realized during the process, not after the fact, not when decisions, mechanisms and policies are going forward that are absent of input.
I would say, across this country, it has been well reported in a range of areas, whether it’s housing, education or health, that First Nations people are the most vulnerable. That is something that needs to be paramount in terms of developing environmental protections that provide the food source for impoverished people.
Senator McCallum: How can we salvage and use this bill as it stands? What is your recommendation on what we do now with this bill at this late stage?
The Chair: Are you addressing this question to Galagame’?
Senator McCallum: Yes.
Mr. Chamberlin: That’s a challenging and good question. It is difficult when you consider that a piece of federal legislation is going to apply across the country and to all First Nations territories. I am unclear about how you can salvage a piece of legislation that has gotten to this stage absent of meaningful engagement with First Nations. I would hope that the key areas that relate to — I mean, they’re all key areas. Especially when we consider salmon, we’re talking about the entire watershed. We’re talking about the ocean. We’re talking about many different stressors and impacts. There needs to be a willingness to meaningfully revisit this as it moves forward from this point. It comes down to the question: Does Canada really want to obtain reconciliation with First Nations people. Does Canada really want to implement the United Nations Declaration on the Rights of Indigenous Peoples? This bill is an example of emerging opportunities. It’s far down the road and a little bit long in the tooth, but the fact remains that it doesn’t stop the government from meaningfully engaging and being open to altering the outcome at this late stage.
Senator Patterson: I’d like to thank the witnesses and direct this question to Ms. Wristen.
I understood from your presentation — and I know you’ve been working with Nature Canada as well — that you have recommendations about reversing the burden of proof on requiring proponents to demonstrate that a new organism is not toxic and the need for a public notice of any waiver or exemptions provided by the minister.
I also understand that you may have a concern about the new substance notification regulations. My understanding is that the government is proposing to introduce a discussion paper perhaps this summer to look at improving and changing those regulations. However, I believe there is no authority right now to amend those regulations in this legislation. Is there an issue around the proposed revisions to the NSNRO regulations that relate to this bill that you could describe to the committee?
Ms. Wristen: Thank you for that question. I’m not sure I can address it in full, but I will give it a go.
There is certainly a problem with the way the significant new activity notices are being used and that it demands a review of the regulatory structure and, perhaps even more than that, a more fulsome approach to how we consider risk assessments and how we employ science in decision making as a government, generally.
In the case I described, we had a risk assessment that was very specific: “This quantity of eggs produced in this place and shipped out of the country so that they couldn’t possibly impact our watersheds.” That’s all the risk that’s ever been assessed. And yet, we can now see those eggs being manufactured in any facility in the country, only provided that it’s a contained facility, in any quantity and for grow-out within the country. This is not science-based decision making, in my respectful opinion.
Senator Patterson: Thank you.
Ms. Wristen, did I correctly describe that you’re advocating a change to the burden of proof to require proponents to show that there is demonstrable proof of an economic or social need for that new organism that’s proposed rather than the current burden of proof that seems to be in favour of proponents? Is that my understanding of what you’re advocating that we should scrutinize in this study?
Ms. Wristen: Yes, it most definitely is. The salmon case is an excellent example of why that should be the case. Here we have an organism with a wild counterpart that is culturally central to First Nations of this country, that is endangered and about which so much societal attention is being directed toward recovering. To suggest that we can simply introduce a genetic variant of that without having any discussion about the centrality of the original organism and the importance of the original organism strikes me as being very odd.
Senator Patterson: Thank you for sharing that alarming story.
Mr. Chamberlin: When I think about the modification of proof, I want to provide an example of how government approach misses the mark. In relation to fish farms in British Columbia and the lax or inadequate regulations and policy for the management of that industry, the Department of Fisheries and Oceans made alterations to the Fisheries Act that provided something called the “demonstrated population-level impact.” We had to be able to demonstrate that this industry over there was having a population-level impact on salmon. The problem was that when you consider the diseases and pathogens that come out of fish farms, it is virtually impossible to demonstrate population levels when we’re talking about heart failure and liver failure while they’re out in the ocean. It created an empty safety lever.
When I think about the burden of proof, it must not just fall upon those who have concerns but for any kind of industry to be able to demonstrate that they actually are operating in a way that is not having an impact. It is not just having government creating a scenario where the onus is put upon people who have concerns.
Senator McCallum: My question is for Mr. Chamberlin.
Bill S-5 proposes to explicitly recognize the right to a healthy environment for every individual in Canada. This right would be particularly important for groups whose voices are traditionally underrepresented in discussions with lawmakers and governments, including racialized peoples, LGBTQ+ individuals, newcomers to Canada, those with official language barriers, people belonging to lower socioeconomic groups, people with disabilities, women and youth. Significantly, the minister is required to develop an implementation framework for how this right will be considered. This implementation framework increases the likelihood that the right to a healthy environment will move from aspiration to action. While I know you don’t like the word “implementation,” I don’t know if there is another word that could be put in its place. Do you see this as a chance where First Nations could be at the start of the conversation?
Mr. Chamberlin: Thank you for your question.
I’m happy to hear and know that there is the right for Canadians to have a healthy environment. The various sectors of society that you’ve just read out are the Crown’s obligation — or the Crown has certain obligations, as we’re talking about components of Canadian citizens. I’m pleased with that, but when we consider the role that Canada has with First Nations, it is an entirely different room down the hall from the one of its responsibilities to citizens. This is the fundamental change that the Crown must embrace, to deeply understand that we cannot take a government-to-government relationship and then just scoop the First Nations to be with everybody else in a room. We have a special and unique place, and it flows from Aboriginal title, which the Supreme Court has spoken of in B.C. It has not been extinguished, and the Crown has presumed title. So it’s exercising from a starting point of presumed title or radical title to meet the needs of its citizens, but it first must reconcile with the title-holders, which are First Nations people.
Of course, if we go back to 1763, the Royal Proclamation, and 1867 and the British North America Act and Canada’s Constitution, it’s plain to see there has been recognition of that nation-to-nation relationship. But what’s happened? Society has evolved, and that importance to the Crown has horribly diminished. But the principle of human rights, the United Nations Declaration on the Rights of Indigenous Peoples and Supreme Court law — those are what the Crown must embrace more fully than it has demonstrated since Canada became Canada.
The Chair: Thank you very much. This brings to a close our afternoon session. On behalf of our committee and all Canadians who benefit from the sharing of your knowledge and your participation, thank you very much. Thanks, Ms. Wristen, who is with the Living Oceans Society, and Robert Galagame’ Chamberlin, the Chair of the First Nation Wild Salmon Alliance, for providing so much help and assistance with this bill. Have a good day. Until next time.
(The committee adjourned.)