THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Tuesday, March 19, 2024
The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 7:03 p.m. [ET] to study Bill C-226, An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: Good evening. My name is Paul J. Massicotte. I’m a senator from Quebec and chair of the committee.
Today, we’re conducting a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. I would like to begin with a reminder. Before asking and answering questions, I would like to ask the committee members and witnesses in the room to please refrain from leaning in too close to the microphone or removing their earpieces when doing so. This will prevent any sound feedback that could negatively affect the committee staff in the room.
I would like to ask my fellow committee members to introduce themselves, beginning on my right.
[English]
Senator Arnot: David Arnot, senator from Saskatchewan, Treaty 6 territory.
Senator White: Judy White, senator from Newfoundland and Labrador.
Senator Sorensen: Karen Sorensen, Alberta, Banff National Park, Treaty 7 territory.
Senator McPhedran: Marilou McPhedran, independent senator from Manitoba.
Senator Galvez: Rosa Galvez from Quebec.
[Translation]
The Chair: Today, the committee has invited the sponsor of the bill, the Senate sponsor of the bill and government officials to appear as part of its examination of Bill C-226, An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice.
[English]
At this point, let me apologize for the delay. The rules are very clear; the committee cannot meet if the Senate is still sitting. I’m sorry for the delay, but as a consequence, unfortunately, we still have to finish our session by 8:30. We’ll cut down each session by 40 minutes, if we can. That’s not too much. I would appreciate your cooperation to get there.
[Translation]
For our first panel, we’re meeting with Elizabeth May, Member of Parliament for Saanich—Gulf Islands, and sponsor of the bill. We all know and appreciate her. We’re also meeting with the Honourable Mary Jane McCallum, senator and sponsor of the bill. Welcome, and thank you for being with us.
You have 10 minutes each for your opening remarks and for our questions.
Senator Galvez: Mr. Chair, a senator has just arrived.
The Chair: Can you introduce yourself?
Senator Oudar: Good evening. Manuelle Oudar from Quebec.
The Chair: Thank you, and we apologize for the delay. Ms. May, you have the floor.
Elizabeth May, Member of Parliament, Saanich—Gulf Islands, sponsor of the bill: Thank you, Mr. Chair. It’s a great honour to be here with you. Thank you for giving me the opportunity to introduce this vital legislation, Bill C-226, An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice. We need to create a program that will work and make a big difference for environmental justice.
[English]
I’m watching my clock. I know I have exactly 10 minutes. I know you are pressed for time, and I want to make sure that we have enough time for discussion.
I wanted to stress in the presentation of this private member’s bill — and also, of course, I want to thank Senator Mary Jane McCallum for being the sponsor of this bill in the Senate. I want to thank the Senate as an institution and the individuals within it for having already seen the bill through to getting to this stage, past second reading in the Senate and in front of this committee.
It’s certainly my intention to emphasize that I hope the bill will receive speedy passage here. The time limits built into this bill mean that once it receives Royal Assent, the government will have two years within which to put forward the most important part of the bill, which is not just talking about the problem but putting in place a strategy that will work.
In struggling with how to present the bill; I’m always torn between setting out all the empirical evidence that Canada has an issue with environmental racism and that it’s a thing that exists. I shouldn’t make any reference to social media in polite company anyway, but the treatment of the issue on social media lets me know that some people mock the very notion. I want to set out, rather than explain, all the reasons that we know that there is such a thing. I know you will have other expert witnesses coming before you. I want to briefly summarize how I came to this issue but, more importantly, to set out what other jurisdictions have already done, because we are not dealing here in Canada with an unknown issue or with a tabula rasa. We have experience of other jurisdictions, and I hope we will build on that.
Again, I want to thank the chair and the members of the committee for being here today.
I first started working on this issue so very long ago. I was from Cape Breton Island before I was from Vancouver Island and working on an issue that some of you may recall — the issue of the Sydney Tar Ponds. They were Canada’s largest toxic waste site. I was working on that issue through the 1990s and the early 2000s. Canada’s largest toxic waste site was the creation of a steel mill in what became industrial Cape Breton in the beginning of the 20th century. That steel mill used extremely contaminated local Cape Breton coal, which created a toxic waste site out of what had been an Indigenous fishing grounds. It created what became known as the Sydney Tar Ponds.
[Translation]
In French, these are known as the tar ponds of Nova Scotia on Cape Breton Island, in Sydney.
[English]
It had the highest cancer rates in Canada.
I lived on the other side of the island, a pretty idyllic spot called Margaree Harbour, with a population of 42 people. If anyone had told me — in fact, they did tell me — that there was such a thing as racism in Cape Breton, I would have been astonished and denied it. One of my best friends, Clotilda Yakimchuk, was originally from the Caribbean. She was the first Black woman in Nova Scotia to graduate from the Nova Scotia Hospital School of Nursing. She was the first Black woman president of what is now known as the College of Registered Nurses of Nova Scotia. She received an Order of Canada for her leadership in many areas. She told me a story that shocked me to my shoes. She told me that when she had come back from running a hospital in the Caribbean, as a single mom with young kids, she had gotten a job at St. Rita’s Hospital in Sydney and she wanted to rent a decent place to raise her kids.
No landlord would rent her a decent home anywhere in Sydney except between the steel mill and the coke ovens. There was enforced segregation in my community and I knew nothing about it. If you only could live between the coke ovens and the steel mill, that meant where you were living was the equivalent of smoking several packs of cigarettes a day because of the pollution from the coke ovens and the steel mill.
The first person and community with whom I started working on environmental racism was Clotilda Yakimchuk and the community of Sydney. Through a series of coincidences and mostly through my work with Sierra Club Canada as director, we came to know that in the United States there was a program in environmental justice through the U.S. Environmental Protection Agency. We twinned with an African-American community in Fort Valley, Georgia, where they were dealing with an old pesticide plant that had been shut down. They were accessing programs through the U.S. Environmental Protection Agency to confront environmental racism programs and environmental justice. You can go to the U.S. EPA website. When you get my brief —
[Translation]
I asked the House of Commons for a translation of the system. Unfortunately, we have an error.
[English]
I have it only in English, but the U.S. EPA website contains their definition of “environmental justice,” which I commend to all of us:
“Environmental justice” means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation or disability, in agency decision making and other Federal activities that affect human health and the environment . . . .
It’s an intersectional definition and it means that people in marginalized communities in the U.S. can access experts. They can confront the deep pockets of polluters with their own experts — lawyers, epidemiologists, hydrologists, doctors — to help to get a rebalancing of the power imbalance between the polluters and the communities. We approached Bill C-226 with experience from other jurisdictions.
I also want to commend to this committee work from Europe. The United Nations Economic Commission for Europe has a convention called the Aarhus Convention, which deals with access to information, public participation in decision making and access to justice in environmental matters. Aarhus is a city in Denmark. The convention has developed a number of tools and I think that they will also provide assistance to our government when, I hope, the bill passes. We now have an Environment Canada website and people at Environment Canada who are dedicated to working on what a program in environmental justice will look like. The website notes that “. . . environmental racism and justice is a new area of work for the Government of Canada . . . .”
If I leave you with nothing else, I want to leave you with this: It is not a new area of work in the world. It is a new area of work in Canada. We have experience from the United States, a program since 1994, which has grown and recently grown even further under the Biden administration. Tools for environmental justice are not bumper stickers. Tools for environmental justice are real. In the hands of marginalized communities, Indigenous peoples and racialized communities are tools to access rights and justice, and rights that exist.
This bill will make a huge difference, but it will take ongoing work. I am ready for your questions. Thank you for your attention.
[Translation]
The Chair: Thank you. It’s much appreciated. We’ll now turn to Senator McCallum.
[English]
Hon. Mary Jane McCallum, sponsor of the bill: Thank you all for being here today, and a special thank you to you for sponsoring this bill.
Social justice and societal expectation hold that all Canadians have the right to clean air, water, land and health. However, countless First Nations and Black communities on Turtle Island continue to face some of the worst environmental devastation and degradation in our country. Yet, Canadian governments continue to fail in addressing environmental inequity and racism as an important policy problem.
Environmental ethics consider the relationship between humans and the environment and how human actions impact the ecosystems that surround us. Pollution, the depletion of natural resources, loss of diversity, destruction of ecosystems and climate change are all part of the ethics debate.
Ethics are imperative to the survival of humanity because in not adhering to them now, the world inherited by our future generations would be uninhabitable.
The article entitled “Environmental Racism and First Nations: A Call for Socially Just Public Policy Development” states:
While the US environmental justice movement has developed at an exponential rate, Canadian efforts have been far less effective, resulting in uneven attention to and action regarding environmental justice. . . .Canadian legislation that deals directly with the inequalities created by environmental injustice is for the most part non-existent . . . current public policy regarding environmental justice for First Nations people is needed to ensure equal rights to a safe environment for all Canadians, regardless of race and/or economic status. Failure to commit to such change is tantamount to endorsing the continuance of racist practices, a far cry from the goal of a just society.
You will hear first-hand from witnesses their own realities of how environmental racism, through capital colonialism, has severely disrupted their communities, families, governance, lives, health, self-determination and culture. That is why social justice for First Nations involves relations based on respect, upholding First Nations’ knowledge systems and world views, identity and culture and understanding what colonization did to our people.
In Taiaiake Alfred’s book entitled It’s All About the Land, he states:
Removing us from our land has been the project from the beginning. . . . where the Native opposes the development of the land for exploitative purposes: that Native is defined out of existence or pushed out of existence. For us to defer to this notion of Aboriginal and try to structure ourselves and conceptualize our goals accordingly is the end game of colonization. . . .
In the seven years I have been a senator, I, along with other members of the Energy Committee, have heard about environmental and health hazards affecting Indigenous communities across Canada, but little has been done to correct this injustice. A long-term solution to these issues around pollution prevention includes strengthening regulations. Equitable remediation has been largely ignored by industry. One just has to look at the number of orphaned wells or the leakage of tailings ponds into our water systems. It is time to confront environmental racism, which systematically constructs inequities by conferring advantages upon one racial group at the expense of others.
Power and privilege are distributed unevenly, enabling industry and government to allow private control of extractive systems where, in the quest for profit and land, the public is exposed to known disproportionate risks and effects, with little protective or preventative action taken.
Bill C-226 is intentionally not prescriptive in how to develop and execute a national strategy, as it must be developed in concert with affected individuals and communities. As we begin deliberation of Bill C-226, I made comments under the headings of “assessing, preventing and addressing environmental racism.”
To assess environmental racism, environmental inequity becomes racism when environmental harms and lack of access to protective features disproportionately affect racialized communities. The term is used to bring attention to the outsized role that structural racism plays in contributing to environmental inequities. Environmental inequity has a long history in Canada, yet no national initiative exists to address the disproportionate and deliberate exposure of certain populations to environmental hazards. The paucity and insufficiency of health assessment data, including health of land, water, air and ecosystem, and their effects on the humans and non-humans who live in those areas, remain unresolved.
In assessing environmental racism, we must no longer rely on assumptions; we need facts.
Neighbourhood-scale mapping holds great promise for assisting communities in identifying risks posed by environmental hazards to different social groups and for the development of more detailed, complete and positionally accurate information by incorporating local knowledge.
Under prevention, prevention requires an understanding of how structural racism contributes to environmental inequities. The contribution of racialized communities in data collection around land use, public health and environmental conditions can help influence policy and planning decisions. To address environmental racism, environment is deeply intertwined with human health. Consideration of a holistic approach to making intersectional change will most benefit from involving multiple sectors, including, but not limited to, racialized communities, grassroots organizations, researchers, health practitioners, industry leaders and government.
Extractive capitalism violently and continually perpetuates dramatic social and economic inequalities that limit First Nations’ sovereignty and autonomy. As First Nations, we have witnessed the extractive capitalism technique of domination by expansion through a series of legal rhetorical, economic and political ways that erase the autonomy of First Nations in their territories.
The Chair: We will give you another two minutes, and after that, we will go to question period.
Senator McCallum: Okay.
It is in the heart of these resource-rich territories that First Nations exist in complex tensions with extractive capitalism and land defence, where they protect land and each other at often extremely high personal and communal cost.
I want to encourage everyone here to foster deliberative decision making in this critical endeavour. We must remember that the best interests of all children and the generations yet to come continue to be at stake, and that those rights are entitled to full and fair consideration of the impacts of environmental racism. Thank you.
The Chair: Thank you very much. We’ll go to question period now.
Senator Arnot: I hope to ask two questions. I know time is really tight, so I’ll cut right to the chase.
Senator McCallum, in your sponsor speech, you emphasize the unique perspectives and experiences that Indigenous peoples bring to the table. How should Indigenous knowledge, ways of knowing and practices be integrated into the national strategy to combat environmental racism effectively?
My question for Ms. May is that you referenced the U.S. environmental justice program as a model. What specific elements of the U.S. approach do you believe should be adapted or avoided in the Canadian context to effectively address environmental racism?
I’m not sure that I’ll get an oral answer in time, so I would like a written answer if we can’t.
The Chair: Who would like to answer?
Senator McCallum: I’ll start.
When we look at Indigenous knowledge, that is best done by the knowledge keepers. That’s why I said community and grassroots elements need to be involved in this, and I hope they will be. They’re the best people to bring that.
Ms. May: I was remiss and wanted to thank and put on the record deep gratitude to Dr. Ingrid Waldron. I know she will be a witness at the committee, so I wanted to say that her academic research sets the bar on this issue.
The engagement of Indigenous peoples in the consultation — and other marginalized and racialized communities — is critical. The experience I’ve seen with the U.S. EPA environmental justice program, and the part that I would want to recommend to the government to consider once the bill has passed, is putting the tools in the hands of the communities themselves to allow them to harness their own Indigenous knowledge, and harness and mobilize their own agency, empowerment and sovereignty to bring solutions to their own communities through access to the tools that are needed.
We have built into our legal system — I used to practise law — barriers for communities that don’t have deep pockets. It is things like cost awards to punish a group that causes trouble; things like injunctive relief that overwhelmingly goes to corporations and not to communities that are trying to protect human health; things like SLAPP suits that only in some provinces are not allowed — SLAPP standing for strategic litigation against public participation.
So the goals here at every stage are engagement with the marginalized communities where we find them and their empowerment to act on their own behalf, using the legal tools that rebalance what Senator McCallum has already referenced accurately as a pattern of colonialism, disempowerment, exploitation and abuse that have created structural imbalances that definitely fit the definition of environmental racism.
The Chair: Did you have a supplementary question?
Senator Arnot: I don’t think I want to take the time. I’ll cede to other senators. I have lots of questions that I would have loved to ask, but I got the two that I wanted, so thank you.
Senator Sorensen: My first question is quite quick, and I will try to get a second one in. The bill is about collecting information and having a strategy in place to address and prevent environmental racism and to promote environmental justice; however, the text of Bill C-226 doesn’t contain official definitions of either of those. Do you think it would be helpful for those terms to be defined within the body of the legislation for greater clarity? I’ll go first to Ms. May to see if we can help with that and if she thinks it’s necessary.
Ms. May: Another person I neglected to thank was the original author of this bill, former Member of Parliament Lenore Zann. In looking at the bill and taking it forward myself, and because it had already gone through committee, I was more concerned to make sure that we get it passed than that we add or amend. Because there’s a general understanding and because well-understood definitions exist, the House Environment Committee looked at this and decided to proceed without adding definitions.
Senator Sorensen: Thank you. That’s perfect. If they need it in the report, they can do it in the report.
My second question is to both of you. Maybe Senator McCallum can jump in first. Many examples of environmental racism in Canada are the consequences of overlapping jurisdictions between federal, provincial, territorial and municipal governments. Do you believe the strategy coming out of this bill will be able to address this issue? What work needs to be done to ensure that environmental racism will be considered in community planning? And I don’t mean Indigenous communities; I mean non-Indigenous communities. As you know, that lies outside of the federal jurisdiction and in provinces and territorial decision making.
Senator McCallum: The issue of interjurisdictional gaps has always existed for First Nations. It has existed forever. When we start to have the conversation in the Senate about an issue — a lot of this was brought to me from First Nations people and other people who are marginalized. When we start that conversation, it allows them to give voice in their own provinces and to start working with the provincial governments and with their municipalities.
In Manitoba, there is a policy on environmental racism and how they are to work with First Nations. Sometimes it doesn’t work, like with hydro, but that’s ongoing work. It’s the ongoing work that makes the characters of the people come out, so that they are going back to the way they used to be before colonization came in. They’re giving voice, they’re getting stronger and they know they’re resilient.
Senator Sorensen: Thank you.
Senator Galvez: Thank you for bringing up this legislation. It’s a long time that we’ve been waiting for it, and it’s absolutely needed. There are big cases, such as the Mississippi River Valley, the toxic valley that affects millions of people, but there are small cases, too. For example, in my own city of Quebec, we have the Basse-Ville, which suffers from nickel pollution from the port. It’s been there for years.
We have all these cases that have been there for years and years. People have collected data, medical data, on the effects, but then we also have recent things that are happening, like the Fort Chipewyan area and the spill of all kinds of toxic substances.
I want to know how this framework will push for concrete actions to solve the problems. That’s my first question.
Senator McCallum: When we look at the action that is needed, that has to come from the communities. They’re the ones that are actively undergoing the environmental racism. They know their land. They know their governance systems. Unique solutions will come forward from each of these communities. That’s why it’s important that they be involved in the work that we do.
Ms. May: That is exactly right. I would add, too, in terms of Senator Sorensen’s question, this isn’t an issue where you need to figure out constitutionally which box the problem is in. This is a question of existing rights. Access to those rights has to be rebalanced through the removal of barriers. Then the tools for agency are in the communities’ hands to resolve the problems.
Problems will have different characteristics. As you say, some are historic; some are new. But if you have access to rights and access to justice, you pursue those in ways where the rebalancing happens through tools that a community with lots of money might not — where it is racialized and not Indigenous, and was within a structure that assumes that the power is there, and so we don’t see a toxic waste site in Rockcliffe Park and so we don’t see contamination occurring in Rosedale.
These are obvious things across Canada. That’s why, with the tools in the hands of the community, they will find and will make concrete changes. The courts will see to it and the authorities will see to it once those communities can access the tools for equal justice.
Senator Galvez: That brings me to my second question. How does this bill connect or interact with other bills, like the one that we recently passed, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, or even the CEPA, the Canadian Environmental Protection Act, which we just modernized?
Ms. May: They are very closely connected, as is any suggestion of Canada putting in place quantifiable and enforceable environmental rights. That would be very closely related to this. Right now, Environment Canada’s website links the two. The bill couldn’t stand on its own without those, but clearly the work that was done, including the work done by many senators on Bill S-5, improved the characteristics and the quality of what can be described as rights to a healthy environment — not rights “for” the environment. Canada didn’t take that leap which, for instance, Bolivia and other countries have taken, but this is very focused on asking if humans have the right to clean air, clean water, healthy soils. Regardless, do humans, whether Indigenous or racialized, wealthy or impoverished, have those rights? Those rights are funnelling now towards us through the evolution of Bill S-5.
The Chair: Thank you very much to our experts and witnesses. It’s very much appreciated. Thank you for sharing your knowledge. I’m sure we’ll learn a lot from it. It’s the start of an important process to inform ourselves and to recommend the appropriate actions.
[Translation]
For our second panel, we’re meeting with witnesses from Environment and Climate Change Canada. We’re joined by Heather McCready, Director General, Legislative and Regulatory Affairs; Susan Martin, Director General, Strategic Policy Directorate; Amanda Monforton, Director, Policy Development, Environmental Justice and Gender-based Analysis Plus.
I gather that Ms. Monforton will be speaking on behalf of the group. You have 10 minutes. Go ahead.
Amanda Monforton, Director, Policy Development, Environmental Justice and Gender-based Analysis Plus, Environment and Climate Change Canada: Thank you and good evening.
[English]
Environmental justice as a principle and concept has grown and evolved since its early inception in the 1980s. There is no established definition; however, the principles and concepts of environmental justice are broadly understood to include improved procedural, recognitional and distributive justice. Procedural justice and recognitional justice seek to improve the ways in which decisions are made and to ensure that those who are affected by environmental injustice are reflected and included in decision-making spaces.
Distributive justice involves identifying the ways in which certain populations face disproportionate environmental burdens, such as pollution, and seeking to improve environmental benefits for those communities.
In Canada, the issue of environmental racism has been studied for decades. Provincially, a similar bill has been debated since 2015 in response to Indigenous and African-Nova Scotian communities that have been most impacted by environmental racism. The African-Nova Scotian communities of Birchtown and Shelburne, Nova Scotia, were historically among the largest settlements of Black people outside of Africa, and these Canadians continue to experience the harms of environmental racism.
Last week, Minister Guilbeault heard from the Black community in Shelburne, and I had the privilege to join him. We heard of the ongoing impacts of the Morvan Road Landfill located in the south end of Shelburne, uphill and in direct proximity to a community of African Nova Scotians. The landfill was used for residential, industrial and medical waste from eastern Shelburne County and was burned for 75 years. Although labelled a “landfill,” this is excavated land used for waste storage with no protection of groundwater or surface water, and allowed open burning of the trash.
The landfill closed because of the community’s grassroots efforts in 2016 surrounding the disproportionate impacts of the ongoing environmental burden and related socio-economic impacts of the Black community. Community members Chris Jacklyn, Christina Farmer and Darlene Cooper, who spoke at the round table, walked me through the south end of town and, most importantly, brought me to the landfill to share their stories. These stories depicted the landfill as a childhood playground where they would find food, toys and more. As adults they now understand the hazards and are advocating for future generations.
[Translation]
Federally, the concept of a national environmental justice strategy was first considered when the member for Cumberland—Colchester introduced private member’s Bill C-230 in February 2020. I understand that the situation in Shelburne, Nova Scotia was a key driving force behind the bill’s introduction. Bill C-230 died on the Order Paper when the 2021 election was called. An amended bill, the bill that we’re discussing today, was reintroduced in February 2022.
[English]
The bill, if passed, would require the Minister of Environment and Climate Change Canada to develop, in consultation or cooperation with any interested persons, bodies, organizations or communities, a national strategy to assess, prevent and address environmental racism. Such a strategy would be the first focused approach at the national level to redressing environmental racism.
Bill C-226’s requirement to develop a national strategy respecting environmental racism and environmental justice aligns with the Minister of Environment and Climate Change Canada’s 2021 mandate letter of commitment.
Since environmental justice is a broad set of principles and/or concepts, there are several direct references to environmental justice in federal initiatives. Gender-based Analysis Plus is a key component of the government’s decision-making process and is used to assess how different subgroups of the population may experience policies, programs and initiatives. There are other tangible examples of opportunities to address environmental justice issues through programs like the Federal Contaminated Sites Action Plan and in our minister’s mandate to identify and prioritize the clean-up of contaminated sites in areas where Indigenous peoples, racialized and low-income Canadians live.
There are broader policy initiatives like the federal Anti-Racism Strategy, which seeks to more widely consider the impacts of policies and programs on racialized, Indigenous and religious minority communities.
Canada’s National Adaptation Strategy is another example of recent federal policy framework that considers concepts of environmental justice, where “advancing equity, climate and environmental justice” is one of the strategy’s four guiding principles.
On the legislative front, the Government of Canada now recognizes that every individual in Canada has a right to a healthy environment under the modernized Canadian Environmental Protection Act, or CEPA. CEPA now requires the consideration of a number of principles, including environmental justice, within the context of implementing a right to a healthy environment under the act.
While issues related to environmental justice are being considered in many contexts across the Government of Canada, a national strategy as required by the bill would have its own specific objectives and intent. Reading the preamble, the intent of the bill is clear. Focusing the strategy on the intersection of environmental hazards and marginalized communities would be important to maintaining a manageable scope within the broader concept of environmental justice in the short, legislated timeline, and to delivering meaningful, measurable outcomes.
Within this scope, an eventual strategy could explain the legislation, policies, programs and initiatives that contribute to the strategy outcomes, demonstrate policy coherence and could identify gaps to be closed via targeted interventions in existing programs.
From an Indigenous perspective, to respect the United Nations Declaration on the Rights of Indigenous Peoples Act, the government would explore potential approaches to developing a strategy that reflects the rights of Indigenous peoples across Canada, regardless of location, and that ensures Indigenous ways of knowing are respected.
In preparation to meet the requirements of Bill C-226 and to inform a Canadian-specific approach to the development of an environmental justice strategy, the department has undertaken research on the concept, along with policies, initiatives and models that exist in other jurisdictions.
In closing, I’d like to thank you for inviting my colleagues and I to speak with you today. We are happy to answer any questions you have related to your study of Bill C-226. Meegwetch.
The Chair: Thank you very much.
Senator Galvez: Thank you so much for being with us tonight to answer our questions.
First, it’s impactful that you’re recognizing that you knew about environmental racism for decades. So it took decades to get this bill here, and to support it — because now it’s supported by the government, which is very good. But the devil is in the details, and when we studied CEPA modernization here, there were two important changes. One is that we took out “prevention” and replaced it with “control and management” of pollution, but if we don’t prevent pollution, we will always end up in the situation of having to clean up whatever is contaminated. I would like you to put in context these changes.
The other thing, again, is that another important change in CEPA was that Schedule 1, lethal toxic substances, had its name changed, and now it’s only called “Schedule 1.” Now in the courts, people are debating what is toxic, what is not toxic; plastic is toxic or it’s not toxic. All of this creates a lot of confusion, and it doesn’t make the court case clear, or we put too much pressure on courts to take a position.
Can you please clarify how you are going to harmonize this bill with CEPA, and with others, the other environmental impact assessment that was also modernized, which says that cumulative effects of climate change should be considered today. Ms. McCready.
Heather McCready, Director General, Legislative and Regulatory Affairs, Environment and Climate Change Canada: I’m Heather McCready, and I’m the Director General, Legislative and Regulatory Affairs at Environment and Climate Change Canada. Thank you for the question. We may want to follow up with you in writing, because there might be important contributions from our colleagues at Health Canada on your question relating to toxic substances.
I’ll start by saying that environmental justice and the concept of a right to a healthy environment are related and complementary but not identical. As we heard from the witnesses earlier this evening, both of these concepts are important and support each other. A right to a healthy environment, first of all, applies specifically to CEPA and the things that CEPA governs, and the administration of that particular act, not other acts, where environmental justice could be broader, whereas environmental justice is focusing on addressing wrongs to do with environmental racism, so it necessarily focuses on specific communities and specific areas, but they are related.
The specific changes that were made to CEPA as a result of Bill S-5 included a number of things. There were two main focuses, which you would all remember very well, as you were a big part of this, one being the strengthening of the Chemicals Management Plan; and second, adding the right to a healthy environment. On the question of chemicals, again on the specifics, we’ll probably consult with colleagues from Health Canada to help explain some of those a bit better, but the overall intent is to strengthen the way we manage chemicals in Canada. While you had specific questions about the word “prevention,” I think the overall intent is to provide additional tools and clarity that will actually provide a regime that is stronger than before. So there may be wording changes that provide a bit of confusion potentially, because they’re new, but these things are being worked out in the implementation framework for the right to a healthy environment and the related things that go with the implementation of Bill S-5.
I might leave it there on that one, unless you have anything to add?
Senator Galvez: Who does the cause-effect study to determine when there is pollution that has caused health problems and environmental racism in racialized communities? Who would run that study?
Susan Martin, Director General, Strategic Policy Directorate, Environment and Climate Change Canada: Thank you for the question. As you know, in the bill, it does indicate that there is a requirement for a study. This includes statistics about the location of environmental hazards and socio-economic profiles. The Government of Canada has a wealth of information on environmental releases and socio‑economic status, so the intention is for the Government of Canada, if the bill were to come into force, to undertake that study and use that study to help inform the development of the strategy.
Senator White: Thank you for your presentation. When you talked about the consult and cooperate with interested persons, I would be curious about the scope of the consultations. There is a lack of details in the bill, but I didn’t expect that to be in the bill anyway. How exhaustive will it be? When are you going to consult, when are you going to cooperate and what groups will be determined? It is a big question, but I’d be very curious what your thinking is as of now.
Ms. Martin: Thanks for the question. Yes, certainly there is an emphasis on consultation in the bill; you’re right. Our thinking is that will be a significant feature obviously of our work over the next two years, but as you heard earlier this evening, that collaboration with the communities doesn’t end at the end of the two-year mark when the strategy is tabled.
I think there’s a certain amount of consultation on what people would like to see from the strategy and a certain amount of collaboration when you’re talking to specific communities that have experienced environmental racism, to help identify what things those communities need, the tools they need to be able to address the situation. That will help inform some of the broad measures that might find their way into the strategy, but it may also inform the kinds of measures that might ensue following the publishing of the strategy as the work unfolds over the next several years.
Senator White: At what point, then, do you think the minister’s obligation, as it relates to consultation and cooperation with these groups, would be fulfilled?
Ms. Martin: That’s a great question. I think that his requirement to consult on the strategy will happen within the two-year timeline that is legislated by the bill. With any kind of strategy the government develops, there’s always a period of consultation to ensure that the policy that is being developed meets the needs of those it’s serving. It wouldn’t be any different in this case. So I think that part of the consultation requirement will be met in the context of the development of the strategy, so within the first two years.
Senator McCallum: Thank you for your presentation.
In my brief, I said that very little has been done, and when I look at what the government has put in place — Gender-based Analysis Plus, Canada’s Anti-Racism Strategy, Canada’s National Adaptation Strategy, and then we look at CEPA — we have legislation in place that should already address or lessen the impacts of resource extraction. So it appears that there are some safeguards in place that would promote environmental justice and equality in sections 22 and 185(2) of CEPA, but it also appears that there’s a breakdown that occurs when it comes time to implement and follow the regulation of the law.
Our office works with First Nations across Canada, and things are not improving. That’s why I said nothing is being done, because no one is listening or implementing, and I’m talking about industry. You say that you already have a wealth of info on stats, so it seems you have everything in place. What is going to change now so that things will move ahead as they should and that First Nations and the Black community don’t continue to live in places that are unhealthy, when we always have an inherent right to a healthy environment?
Ms. Monforton: Thank you very much for the question. I think a couple of pieces here, and then I may pass to my colleagues to add in, but it’s important to recognize that the right to a healthy environment is limited to CEPA, and so the issues of environmental racism go much broader than just CEPA. That is the first part there.
The second piece is having a strategy that can have focused, targeted efforts coming together, and really understanding how those initiatives are working to advance environmental justice overall, but specifically what are those pieces that are needed, because every community will be different. The issues of environmental injustice in one community to another may be very different, and so it is really making sure that there’s one thing for a national piece and then there’s something else when you look at it a little bit more focused. But having that focused strategy provides the attention to the issue, and maybe I will see if there’s anything else to add.
Ms. Martin: You’ve covered it well. Thank you, Amanda.
I do think that is the real difference with this piece of legislation; it puts at the forefront the goal of addressing environmental racism as an issue, as opposed to it being a secondary thing that is considered in the context of other policies, programs and initiatives in the purview of the Government of Canada.
Senator Arnot: I want to dig down on the clarification on consultation concerns. With respect to Bill C-226, some have argued that the consultation process is overly broad in scope, and I know that the information collection and consultation are central to the work that you do, particularly the kind of processes described in this bill. Could you elaborate on how you plan to implement an optimal consultation process and what you do to ensure that specific groups and stakeholders are directly involved in the discussions?
Ms. Martin: Thank you for the question.
You’ve raised two important parts of the work that would be ahead of us should this bill come into force. As you mentioned, there’s a study that will help us understand the issue and where the problems are, where they are most acute and whom we should therefore be talking to, to understand exactly what needs to be done to address this important issue.
I think it’s fair to say the consultation would unfold in two phases, one that is broader and is trying to understand from any interested party what their views are on this issue before using the information that’s available through the study that would be undertaken to help focus engagement with those groups that have been most affected by environmental racism.
As I mentioned earlier, the work with these communities would continue beyond the publishing of the strategy. It necessarily has to to ensure that these issues are addressed.
Senator Arnot: With respect to Indigenous knowledge, ways of knowing and experiences, how do you see that being incorporated in the development of this strategy?
Ms. Monforton: Thank you for the question. That’s quite important because you need to look at Indigenous ways of knowing from a distinctions-based approach as well. What First Nations do may be different than what, let’s say, Métis rights holders may be looking at.
From that perspective — what this looks like — this is where we have spoken about whether we have to do a more focused approach to respect the United Nations declaration act. I think this is the important piece where we have to say, as the Government of Canada, how do we interact? How do we ensure that we are able to use the holistic nature of the way Indigenous ways of knowing work and that holistic approach rather than saying that it’s just one consideration? It actually has to be woven and braided through all the work we do.
Senator Arnot: There’s one other element I’d like you to address, if you could. If Bill C-226 does not become law, could specific amendments to existing laws like CEPA to combat environmental racism and advance environmental justice be implemented as a matter of policy?
Ms. McCready: This is an answer I always find frustrating to give because it’s probably frustrating to receive. It’s not appropriate for us to opine on any amendments the government should or should not make because that’s a question for cabinet. But there are a number of initiatives under way in the department — Amanda mentioned several of them in her opening address — that are relevant to the issues here.
I also earlier mentioned the right to a healthy environment, which is an important first step for the Government of Canada to have this be embedded in the primary piece of legislation that protects the environment and human health. It is an extraordinary step. I think some of the work is done there, but this bill would go further and would complement those existing efforts.
Ms. Martin: Just to build on what Heather has already mentioned, I think there are a number of programs that operate in this space, so I think to look at individual amendments to different pieces would make it more complex than actually a single bill that goes at this issue directly.
Senator Sorensen: I’m going to take an opportunity to get a bit of a status update. I think most people in the room are aware of this, some may not be.
Last year, Imperial Oil and the Alberta Energy Regulator hid from Athabasca Chipewyan First Nation the fact that a massive spill had occurred in their community. If it’s okay, I thought I’d take an opportunity to ask for an update on what’s happening with that scenario.
To tie it to the bill, do you believe that the strategy that will come out of this bill will assist the federal government with better tools and proper tools to ensure the protection of communities like Athabasca Chipewyan First Nation and more accountability for, in this instance, the regulator?
Ms. McCready: For the update, we will have to get back to you in writing. It’s good that you got it on the record, but we’ll get you a better answer from the appropriate officials.
Senator Sorensen: Yes, I’d be curious to know where it’s at. I was reading an article from several months ago.
Ms. McCready: For the bill, I’ll pass it over.
Ms. Monforton: The bill itself will provide targeted interventions, of course. I think that’s what the strategy would result in. If you think of that community in particular, it’s important that a community address themselves as having experienced environmental racism. That’s not something one could say, but it’s also understanding what they believe are the solutions on their end, and then how does the federal government support them to continue advancing and advocating for the issue to have it addressed? Because, again, the jurisdictional issues do come into play. I would also add that how these pieces work together to get to an end result is the important piece.
Senator Sorensen: The bill to me right now seems quite philosophical. I just have to accept that it’s important this gets through, that it gets identified and that the real meat on the bones comes as we start to work on this strategy and that there’s a timeline to do that.
Ms. Monforton: Absolutely.
The Chair: As you notice, many of the questions surround the fact that governments have a reputation of having bold ambitions, but sometimes the results are not there. You can see a bit of skepticism on our part, so you’re wondering if it will be any different. How serious is it? Do you have enough money? Do you have the skill set? Or will we find ourselves five years from now saying it was a good opportunity, we nearly did it, we didn’t get there and everybody gets frustrated again?
In your personal situation, do you have enough authority? Do you have enough money to get the job done?
Ms. Martin: Thank you for your question. I think it’s a valid one to consider.
I will say that, as was mentioned in the opening statement, this commitment was in our minister’s mandate letter since the fall of 2021 and it’s now the winter of 2024. We’ve certainly had enough time to think about what it would mean if this bill were to come into force, what the work plan would look like and to secure the resources we need to undertake the work towards a strategy development over the two years that would ensue from the bill coming into force.
I can confirm that we are prepared to undertake that work. We understand the work that needs to happen, and a decision on the scope and scale will happen at a later date, when the strategy is developed, and it will be resourced at that time accordingly.
Senator McCallum: I had touched on social justice and that it will be different for First Nations because of what we have lost, and it’s governance. It’s not just economy. It is our history, our identity. It is what we have lost through the land theft that still continues today. We just don’t want to work with an industry. We need to move out from under their oppression.
Can you see how you would work with the nations? Because they are nations. It’s a different relationship completely from other groups. How would you work with the nations so that recolonization isn’t happening?
Ms. Monforton: On this one, it’s important to look back to the UN declaration act and really to embody the free, prior and informed consent in developing this strategy.
The way we work with First Nations and Indigenous rights holders would have to be the key element here in how we move forward. I think working on that nation-to-nation level and ensuring that First Nations communities also understand what this issue is — they understand how they are impacted by it, how they may want to be involved in the development of the strategy and how they may need to be involved as well. It’s important that those discussions happen with the communities and the rights holders because how one community works with the federal government may be different than how another community on the other side of Canada may want to work on this issue. From that regard, I think we’re waiting to say how right now in order to make sure that it responds to their requirements, again going back to free, prior and informed consent.
Senator Galvez: Thank you so much. This is very important. I know you’re going to say “yes” or “no” to my question, but I was thinking that there’s still not enough clarity about how three or four pieces of environmental protection legislation will complement each other. I was wondering if maybe we can think about an observation that harmonizes the impact assessment, the modernized CEPA and environmental racism.
As I said earlier, the devil is in the details, and if you don’t have good definitions, we are not going to solve the problem, and it’s going to be just relayed to the future.
Ms. Martin: Thank you for the question. Without opining on what changes could be made, it’s important to understand what the intention is behind the strategy. The strategy is to consider all of the existing interventions that operate in this space, the kinds of policies, programs, legislation and other initiatives that are brought to bear, including other factors that have led to a particular situation.
The strategy in and of itself doesn’t have a measure. It has a strategy that brings together all of these existing pieces. In a sense, the strategy helps to provide that coherence around how those different pieces operate together and, perhaps, what adjustments or changes might be required to some of those pieces should they be found to be contributing to the problem.
The Chair: Thank you very much. You have a big job and an immense responsibility. You’re very important to Canada. I wish you all the best of luck. If we can be of any help, let us know. It is very important.
(The committee adjourned.)